CRIMINAL PROCEDURE
(THE BAR LECTURES SERIES)
Updated Edition
BY
WILLARD B. RIANO
Bar Reviewer in Remedial Law, Commercial Law and Civil Law
Author: Fundamentals of Civil Procedure; Evidence,
(A Restatement for the Bar);
Civil Procedure (A Restatement for the Bar);
Evidence (The Bar Lectures Series)
Dean, College of Law, San Sebastian College Recoletos-Manila
Member, Remedial Law and Commercial Law Committees,
U.P. Law Center
Professor and Lecturer, Philippine Judicial Academy,
Supreme Court of the Philippines
2011
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WILLARD B. RIANO
ISBN 978-971-23-6158-6
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iii
PREFACE
After this work was submitted for publication on January 5, 2011,
materials became available which contained court decisions worthy to be
recommended for further readings. Foremost of these cases is that of Judith
Yu v. Samson-Tatad (G.R. No. 170979, February 9, 2011), which ended
previous speculations as to the applicability of the "fresh-period" rule to
appeals in criminal cases. Hence, the need for an updated edition.
This edition required the insertion of new case citations within the main
chapters as well as the discussion of more recent Court rulings under the
heading, Synopsis of Selected Cases. The cases selected were those with facts
not involved in those decisions treated in the original edition. The criminal
procedure aspects of the Rules of Procedure in Environmental Cases were
likewise added.
In the process of enhancing the current material, some paragraphs which
could have possibly given rise to misunderstanding were deleted. Mere
matters of opinion were likewise taken out so as not to detract from the
instructional purpose of this material. Also, certain portions which are matters
of purely substantive law were expunged and only those necessary to explain
procedural concepts were retained. Some paragraphs were likewise reworded
for greater clarity in the presentation of procedural principles. In some
instances, adjustments to editorial oversights in the original edition were
effected.
It is worth reiterating that this work is written primarily for the bar
reviewee and the law student who need to be adequately equipped with the
"core" knowledge required to hurdle the bar examinations. It is based on an
empirically anchored deep-seated philosophy that passing the bar
V
examinations requires a quick recall of the law and the rules. Hence, topics in
this work have been treated with emphasis on the very substance of the Rules
of Court, a treatment traditionally referred to by academicians as a 'codal'
approach.
While the framework of this material is mainly codal- based, it is
supported by cases which mirror, not only the current position of the Supreme
Court on vital issues in the criminal litigation process but also by significant
foreign cases designed to aid the reader to understand a particular rule from a
parallel doctrinal perspective. Cases have been judiciously selected to permit
the reader to appreciate how the Supreme Court grappled with and settled a
wide range of issues arising in the various stages of criminal procedure.
The scope of this book reveals its having no pretensions of being an
exhaustive treatise on criminal procedure. Honest efforts have been taken to
strip it of materials which veer away from what is fundamental and basic to
allow a reasonably wide wiggle room for the reader to focus on procedural
principles and concepts which have a fairly high probability of being utilized by
the examiner in the framing of bar questions.
As he goes through the various concepts of procedural law, the student
is reminded that the principles underlying criminal procedure, like those of any
other procedural rule, are construed liberally to meet the demands of justice.
In our academic life we have always been beset by questions on matters
involving consistency in the application of the rules. We have actually
endeavored to show that there are no inconsistencies, and in order to fully
appreciate the wisdom of Court decisions, the student must be aware that
each case is decided in accordance with the facts and the issues raised by the
parties.
While our concern for the academic needs of our law students supplied
the motivation for us to start and complete this work, the invaluable
participation of Atty. Ernesto C. Salao and Atty. Maria Theresa P. Cabayan in
the publication of this work is sincerely acknowledged for without their
tremendous encouragement, assistance, and editorial skills, this material
would not have seen the light of day.
vi
Lastly, the bar candidate and the law student is asked to consider this
work as a humble recognition of their perseverance and their unwavering
commitment to their future in the legal profession.
WILLARD B. RIANO
Quezon City September
15, 2011
vii
CONTENTS
Chapter I PRELIMINARY CONSIDERATIONS
I. BASIC CONCEPTS
Concept of criminal procedure ........................................................................................
1
The adversarial or accusatorial system...........................................................................
2
Liberal interpretation of the rules....................................................................................
3
Due process; mandatory ..................................................................................................
3
A. Requisites for the Exercise of Criminal
Jurisdiction .................................................................................................................... 4
Requisites ............................................................................................................................... 4
Jurisdiction over the subject matter versus
jurisdiction over the person of the accused............................................................. 4
Jurisdiction over the territory; venue in criminal
cases (Bar 1997) ........................................................................................................... 5
When a court has jurisdiction to try offenses not
committed within its territorial jurisdiction............................................................. 6
B. Criminal Jurisdiction Over the Subject Matter ................................................... 10
Jurisdiction over the subject matter ................................................................................. 10
How jurisdiction over the subject matter
is conferred ................................................................................................................. 11
How jurisdiction over the subject matter is
determined................................................................................................................. 12
Statute applicable to a criminal action............................................................................. 13
Use of the imposable penalty............................................................................................ 14
Principle of adherence of jurisdiction or
continuing jurisdiction............................................................................................... 14
Dismissal on jurisdictional grounds; special
appearance................................................................................................................. 15
Raising the issue of jurisdiction for the first
time in the Supreme Court....................................................................................... 16
C. Criminal Jurisdiction Over the Person of The
Accused (Bar 2008) .................................................................................................... 17
ix
II.
D. Injunction To Restrain Criminal Prosecution
(Bar 1999) ................................................................................................................... 19
E. Mandamus to Compel Prosecution (Bar 1999).............................................................. 20
CRIMINAL JURISDICTION OF COURTS
A.
III.
Criminal Jurisdiction of the Municipal Trial
Court, Municipal Circuit Trial Court,
and Metropolitan Trial Court (MTC)....................................................................... 21
B. Criminal Jurisdiction of Regional Trial
Court (RTC) ................................................................................................................. 23
C. Criminal Jurisdiction of the Sandiganbayan
(P.D. 1606, R.A. 7975 and R.A. 8249)...................................................................... 24
Offenses subject to the jurisdiction of the
Sandiganbayan (Bar 1997)....................................................................................... 28
Officials and employees with a salary grade
of "27" or higher ........................................................................................................ 29
Officers falling below salary grade '27" .................................................................. 30
Salary grade alone does not determine
jurisdiction of the Sandiganbayan .......................................................................... 33
A student regent of a state university is a
public officer............................................................................................................... 34
Offenses committed in relation to the office ........................................................ 34
When the actual specific allegations of the
intimacy between the offense and the official duties of the accused need not
appear
in the information ..................................................................................................... 38
Anti-Money Laundering cases................................................................................. 40
Forfeiture cases.......................................................................................................... 40
Summary procedure in criminal cases................................................................... 40
Prohibited pleadings, motions and petitions in summary procedure (Bar 2004); civil
and criminal case ............................................................................................. 42
SYNOPSIS OF THE CRIMINAL LITIGATION PROCESS
Initial contact with the criminal justice system ......................................................................... 43
Filing of the information or complaint and other
processes .................................................................................................................... 47
Implied institution of the civil action .......................................................................................... 48
Availment of provisional remedies ............................................................................................ 49
Bail .................................................................................................................................................. 49
Arraignment; bill of particulars; suspension of
arraignment ............................................................................................................... 50
Quashal of complaint or information......................................................................................... 51
XXV
Pre-trial................................................................................................................................
Trial; demurrer....................................................................................................................
Judgment............................................................................................................................
Post-judgment remedies .................................................................................................
Entry of judgment .............................................................................................................
51
52
53
53
54
Chapter II
PROSECUTION OF OFFENSES (RULE 110)
I.
INSTITUTION OF CRIMINAL ACTIONS
II.
Purpose of a criminal action .............................................................................................. 55
How criminal actions are instituted (Bar 1999)............................................................... 55
Institution of criminal actions in Manila
and other chartered cities .................................................................................................. 56
No direct filing in the Regional Trial Court and Metropolitan Trial
Court of Manila and other
chartered cities .................................................................................................................... 56
Effect of the institution of the criminal action on the
prescriptive period (Bar 1993) ........................................................................................... 57
Illustration of the above rules............................................................................................ 57
Rule on prescription for violations of special laws
and municipal ordinances.................................................................................................. 59
PROSECUTION OF THE CRIMINAL ACTION
III.
Who must prosecute the criminal action; who
controls the prosecution (Bar 1990; 2000) ...................................................................... 67
Appearance of a private prosecutor................................................................................. 68
Effect of filing of an independent civil action on the right of the offended party to intervene
in the
prosecution of the offense................................................................................................. 68
Consequences of the rule that a criminal action is prosecuted under
the direction and control
of the public prosecutor ..................................................................................................... 69
Prosecution of a criminal action in the Municipal
Trial Court or Municipal Circuit Trial Court ...................................................................... 74
Prosecution for violation of special laws.................................................... ..................... 74
INTERVENTION OF THE OFFENDED PARTY IN THE PROSECUTION OF
THE CRIMINAL ACTION
Intervention of the offended party................................................................................... 75
When a private prosecutor may prosecute a case
even in the absence of the public prosecutor ................................................................. 76
xi
IV.
Extent of the authority given to the private
prosecutor when duly authorized to prosecute
the action ............................................................................................................................. 77
PROSECUTION OF "PRIVATE CRIMES"
V.
Prosecution of adultery and concubinage....................................................................... 77
Prosecution of seduction, abduction and acts
of lasciviousness.................................................................................................................. 78
Effect of R.A. 7610 (Special Protection of Children Against Child Abuse, Exploitation and
Discrimination Act) ............................................................................................................. 78
Prosecution of Defamation................................................................................................ 79
THE COMPLAINT AND INFORMATION
Meaning of'complaint' .....................................................................................................
In whose name and against whom filed........................................................................
Meaning of 'information' (Bar 1994,1995,1996) ..........................................................
Distinctions between a complaint and an
information (Bar 1999)...........................................................................................
Infirmity in signature in the information........................................................................
Sufficiency of the complaint or information..................................................................
Test for sufficiency of the complaint or information....................................................
Questioning the insufficiency of the complaint
or information .........................................................................................................
Objections as to form........................................................................................................
Date of the commission of the offense..........................................................................
Determination of the nature and character
of the crime.................................................... ........................................................
How to state the name of the accused ..........................................................................
How to state the name of the offended party who
is a natural person...................................................................................................
How to state the name of the offended party which
is a juridical person..................................................................................................
Rule if the name of the offended party is unknown
in offenses against property..................................................................................
Designation of the offense ...............................................................................................
Effect of failure to designate the offense by the statute
or failure to mention the provision violated......................................................
Effect of failure to specify the correct crime ..................................................................
Statement of the qualifying and aggravating
circumstances (Bar 2001).............................................................................
Cause of the accusation....................................................................................................
How to state the date of the commission
of the offense ................................................................................................
Duplicity of the offense (Bar 2005) .................................................................................
xii
79
80
80
81
81
81
82
82
83
83
84
84
85
85
85
86
87
88
88
92
96
97
VI. VENUE OF CRIMINAL ACTIONS
Rule where offense is committed in a train, aircraft
or vehicle ..................................................................................................................
Rule where offense is committed on board a vessel ...................................................
Rule when the offense is covered by Art. 2 of the
Revised Penal Code ................................................................................................
How to state the place of the commission
of the offense...........................................................................................................
VII. AMENDMENT OR SUBSITUTION OF THE
COMPLAINT OR INFORMATION
Amendment of the information or complaint
99
99
100
100
before plea; no need for leave (Bar 2001; 2002).......................................................... 100
When leave of court is required even if the amendment
is made before plea .......................................................................................................... 100
Rule as to amendment made after the plea
of the accused.................................................................................................................... 101
When an amendment is formal or substantial
(Bar 1997) ........................................................................................................................... 101
Substitution of complaint or information (Bar 2002)............................................................. 104
Distinction between substitution and amendment
(Bar 1994) ........................................................................................................................... 104
Chapter III
PROSECUTION OF CIVIL ACTION (RULE 111)
Implied institution of the civil action with the
criminal action.............................................................................................................................. 107
Purposes of the criminal and civil actions................................................................................. 108
Judgment of conviction includes a judgment on the
civil liability .................................................................................................................................... 109
Who the real parties in interest are in the civil aspect
of the case..................................................................................................................................... 109
Rule applicable.............................................................................................................................. 109
When a civil action may proceed independently; independent civil actions and quasi-delicts
(Bar 2005)...................................................................................................................................... 109
Consequences of the independent character of actions
under Articles 32,33, 34 and 2176 of the Civil Code ................................................................... Ill
When there is no implied institution of the civil action.......................................................... 112
Reservation of the civil action..................................................................................................... 113
No reservation of the civil action in Batas
Pambansa Big. 22 (Bar 2001; 2002) .......................................................................................... 113
xiii
When the separate civil action is suspended ............................................................................114
Consolidation of the civil action with the criminal action ........................................................115
Suspension of the period of prescription ................................................. ................................116
When no reservation is required; when civil
action is not suspended....................................................................................................
Counterclaim, cross-claim, third-party claim in a
criminal action ...................................................................................................................
Rules on filing fees .........................................................................................................................118
Effect of death of the accused on the civil action ......................................................................118
Novation: extinguishment of criminal liability ..........................................................................120
Effect of acquittal or the extinction of the penal
action on the civil action or civil liability ....................................................................
Effect of payment of the civil liability ..........................................................................................124
Effect of judgment in the civil case absolving
the defendant....................................................................................................................
Subsidiary liability of employer....................................................................................................125
Concept of a prejudicial question (Bar 1999).......................................................................... 125
Reason for the principle ................................................................................................................126
Requisites for a prejudicial question (Bar 1999)................................................................ ....... 126
Effect of the existence of a prejudicial question; suspension of the criminal action
(Bar 1995; 1999; 2010).............................................................................................. .
Suspension does not include dismissal................................................................................. 129
Where to file the petition for suspension ..................................................................................129
Case illustrations ............................................................................................................................130
116
117
120
124
128
Chapter IV PRELIMINARY INVESTIGATION
Nature of preliminary investigation; purpose
(Bar 1985; 1986; 1991; 1998; 2004)................................................................................
Nature of the right to a preliminary investigation ....................................................................145
Right to a preliminary investigation; waivable .......................................................................... 150
Preliminary investigation vs. preliminary examination
(preliminary inquiry) .........................................................................................................
Probable cause in preliminary investigation.............................................................................. 150
Kinds of determination of probable cause ................................................................................ 152
Cases requiring a preliminary investigation; when not
required (Bar 2004)...........................................................................................................
Procedure for cases not requiring a preliminary
investigation.......................................................................................................................
Direct filing with the prosecutor .................................................................................................. 155
Direct filing with the Municipal Trial Court ................................................................................156
xiv
143
150
154
155
When preliminary investigation is not required even if the offense is one
which normally requires
a preliminary investigation......................................................................................................... 157
Person arrested lawfully without a warrant may ask
for a preliminary investigation................................................................................................... 158
Bail for a person lawfully arrested during the
preliminary investigation............................................................................................................ 159
Questioning the absence of a preliminary investigation..................................................................... 160
Absence of preliminary investigation; effect on
jurisdiction of the court............................................................................................................... 162
Absence of preliminary investigation; not a ground
for motion to quash .................................................................................................................... 162
Inquest proceedings.................................................................................................................................. 162
Possible options of the inquest prosecutor........................................................................................... 163
The inquest must pertain to the offense for which
the arrest was made ................................................................................................................... 164
Who may conduct preliminary investigation and determine
existence of probable cause....................................................................................................... 168
The procedure for preliminary investigation must
be strictly followed ...................................................................................................................... 171
Initial steps in preliminary investigation; filing of the
complaint for preliminary investigation................................................................................... 174
Dismissal of the complaint or issuance of a subpoena........................................................................ 175
Filing of counter-affidavit by the respondent; no motion
to dismiss ...................................................................................................................................... 176
Action to be taken if the respondent does not submit
his counter-affidavit .................................................................................................................... 176
Clarificatory hearing if necessary; no right of cross
examination .......................................................... ...................................................................... 177
Determination by the investigating officer............................................................................................ 177
Discretion of prosecutor in filing of a criminal
complaint or information (Bar 1999)........................................................................................ 177
Resolution of investigating prosecutor; certification
of preliminary investigation ....................................................................................................... 178
Effect of the absence of the required certification
(Bar 1998)...................................................................................................................................... 179
Forwarding of the records of the case for action; need
for approval before filing or dismissal ...................................................................................... 179
Rule when recommendation for dismissal is disapproved ................................................................ 179
Motion for reconsideration ..................................................................................................................... 180
Appeals to the Secretary of Justice; filing a petition
for review...................................................................................................................................... 180
Rules of Court provisions when resolution is reversed
or modified by the Secretary of Justice .................................................................................... 183
XXV
Power of the Secretary of Justice to reverse
resolutions of prosecutors.......................................................................................................... 183
Assailing the resolution of the Secretary of Justice;
petition for review under Rule 43 not allowed;
Petition for certiorari under Rule 65.................................................................................... 184
Appeal to the Office of the President.................................................................................................... 187
Appeals under Rule 43 and Rule 45 ...................................................................................................... 189
Records supporting the information or complaint
filed in court .................................................................................................................................. 189
Action of the judge upon the filing of the complaint
or information .............................................................................................................................. 189
When warrant of arrest is not necessary ................................................................................191'
Withdrawal of the information already filed in court
(Bar 1990; 2003) ........................................................................................................................... 192
Some judicial pronouncements on preliminary
investigation ................................................................................................................................. 196
Chapter V
ARREST, SEARCH AND SEIZURE
I. ARREST (RULE 113)
Arrest; how arrest made...................................................................................................
Requisites for the issuance of a warrant of arrest........................................................
Preliminary inquiry (examination) versus
preliminary investigation ......................................................................................
Method of arrest with a warrant; warrant need
not be in possession of the officer .......................................................................
No unnecessary violence .................................................................................................
Authority to summon assistance ....................................................................................
When person to be arrested is inside a building...........................................................
When a warrantless arrest is lawful
(Bar 1988; 1989; 1996; 1997; 2000; 2004; 2010) ...............................................
Who may make warrantless arrest; duty of officer;
citizen's arrest..........................................................................................................
The basis of the in flagrante delicto exception;
requisites .................................................................................................................
Existence of an overt act of a crime in the presence
of the person making the arrest...........................................................................
The hot pursuit exception (Bar 1997; 2004) .................................................................
Method of arrest without a warrant .............................................................................
Time of making an arrest.................................................................................................
Rights of a person arrested (R.A. 7438) .........................................................................
xvi
201
202
208
209
210
210
210
211
212
213
214
220
222
223
223
Custodial investigation; expanded concept ..................................................................
Penalties under R.A. 7438 .................................................................................................
Effect of an illegal arrest on jurisdiction
of the court ..............................................................................................................
Effect of admission to bail on objections to an
illegal arrest..............................................................................................................
Waiver of the illegality of the arrest; effect of
illegal arrest (Bar 2000; 2001)................................................................................
Persons not subject to arrest ...........................................................................................
224
224
224
225
225
227
II. SEARCHES AND SEIZURES (RULE 126)
Nature of search warrant (Bar 1994)..............................................................................
The Constitutional provision............................................................................................
Arrest distinguished from search and seizure...............................................................
Definition of a search warrant under the Rules............................................................
Application for a search warrant; where to file .............................................................
Search warrants involving heinous crimes
and others................................................................................................................
Ex parte application for a search warrant..................................................................
Property subject of a search warrant .............................................................................
Requisites for the issuance of a search warrant ...........................................................
Probable cause in search warrants.................................................................................
Probable cause to arrest and probable cause
to search...................................................................................................................
How the examination shall be conducted by the judge...
Particular description of place or person .......................................................................
Particular description of the items to be
seized; general warrants (Bar 2005).....................................................................
Ownership of property seized not required..................................................................
Extent of the search ..........................................................................................................
Search of third persons not named in the warrant......................................................
Issuance and form of the search warrant......................................................................
Duration of the validity of a search warrant .................................................................
Time of making the search................................................................................................
Manner of making the search .........................................................................................
Rule if the officer is refused admittance; "knock
and announce rule"................................................................................................
Duties of the officer after the search and seizure;
delivery and inventory ...........................................................................................
Duty of the judge; return and other proceedings.........................................................
Duty of the custodian of the log book............................................................................
Objection to issuance or service of a warrant...............................................................
Where to file a motion to quash a search warrant
or to suppress evidence .........................................................................................
xvii
228
229
230
231
231
231
233
233
234
235
238
239
241
245
251
252
253
253
254
254
254
255
256
256
257
257
258
Who may assail the issuance of a search warrant .......................................................
Petition for certiorari for unwarranted quashal
of a search warrant.................................................................................................
Exceptions to the search warrant requirement
(Bar 1988; 1995; 1996; 1997; 2008)......................................................................
Search incident to a lawful arrest (Bar 2003) ...............................................................
Parameters of a search incident to a lawful arrest;
immediate possession and control rule ..............................................................
Searches of moving vehicles............................................................................................
Check points .......................................................................................................................
Buy bust operations; warrant not needed (Bar 2003).................................................
Entrapment and instigation.............................................................................................
Applicable tests in a buy-bust operation;
adoption of the 'objective test' .............................................................................
Effect of absence of prior surveillance before a
buy-bust operation.................................................................................................
Effect of absence of record in police blotter..................................................................
Plain view doctrine (Bar 2007; 2008)..............................................................................
The 'inadvertence' requirement under the plain
view doctrine...........................................................................................................
Other cases.........................................................................................................................
Terry searches or stop and frisk; history of the
doctrine (Bar 1995; 2003) ......................................................................................
Summary of the Terry doctrine.......................................................................................
Terry search vs. a search incident to a
lawful arrest.............................................................................................................
Bond to ensure the return of the seized items .............................................................
Consented Searches..........................................................................................................
Effect of an illegal search and seizure; fruit
of the poisonous tree doctrine (Bar 2005) ..........................................................
Civil damages; criminal liability........................................................................................
Authority of the Executive Judge and Vice
Executive Judge re search warrants in Manila
and Quezon City......................................................................................................
258
259
260
262
263
270
271
273
274
275
277
278
278
283
284
290
293
296
297
298
298
300
300
Chapter VI BAIL (RULE 114)
Meaning, nature and purpose of bail (Bar 1998).......................................................................
302
Constitutional basis of the right to bail.......................................................................................
304
Bail in the military .............................. . ..........................................................................................
306
Bail in extradition proceedings .............................................................................................................. 306
Exception to the "no bail rule" in extradition proceedings ......................................................
308
xviii
Purganan case re-examined..........................................................................................................309
Bail in deportation proceedings....................................................................................................310
Who furnishes the bail ...................................................................................................................312
Obligation and right of the bondsman; arrest
without a warrant .............................................................................................................
312
The applicant for bail must be in custody....................................................................................313
Bail to guarantee appearance of witnesses (Bar 1999).............................................................315
Bail for those not yet charged .......................................................................................................315
Effects of failure to appear at the trial......................................................................................... 316
Court cannot require arraignment before the
grant of bail.........................................................................................................................
317
Forms of bail (Bar 1999) .................................................................................................................320
Guidelines in fixing the amount of bail (Bar 1999) .................................................................... 323
Duration of the bail.........................................................................................................................324
No release or transfer of person in custody; exceptions...........................................................325
When bail is not required ..............................................................................................................325
When bail is not allowed ...............................................................................................................327
When bail is a matter of right (Bar 1999; 2006; 2008)...............................................................328
Remedy when bail is denied ........................................................................................................ 329
When bail is a matter of discretion
(Bar 1999; 2006; 2008) ......................................................................................................
329
Where application for bail is to be filed when bail is a matter of discretion
and after conviction by the
Regional Trial Court ...........................................................................................................
331
When application for bail after conviction by the RTC
shall be denied ...................................................................................................................
332
Bail pending appeal where penalty imposed exceeds
six years ...............................................................................................................................
333
Hearing of application for bail in offenses punishable by death, reclusion perpetua, or life
imprisonment;
burden of proof in bail application..................................................................................
334
Duties of the trial judge in a petition for bail in offenses punishable by
reclusion perpetua, life imprisonment
or death...............................................................................................................................
337
Evidence in bail hearing are automatically reproduced
at the trial ............................................................................................................................
339
Capital offenses ...............................................................................................................................339
Effect of Republic Act No. 9346 on the graduation
of penalties .........................................................................................................................
339
Where application or petition for bail may be
filed (Bar 2002) ...................................................................................................................
341
Increase or reduction of bail ......................................................................................................... 343
Bail for accused originally released without bail ........................................................................343
xix
Forfeiture of bail ............................................................................................................................ 343
Cancellation of the bail; remedy ................................................................................................. 344
Application for or admission to bail not a bar to
objections on illegal arrest, lack of or irregular preliminary investigation........................... 345
Chapter VII RIGHTS OF THE ACCUSED (RULE 115)
Rights of the accused at the trial
(Bar 1992; 1996; 1998; 2004) ...........................................................................................
347
Presumption of innocence (Bar 2005) ........................................................................................
348
Prima facie presumptions of guilt................................................................................................
349
Proof beyond reasonable doubt..................................................................................................
351
Prosecution must rest on its own merits....................................................................................
354
Effect of failure to identify the perpetrator ................................................................................
355
Failure to comply with post-seizure procedures
set by law ............................................................................................................................
357
The equipoise rule..........................................................................................................................
359
Right to be informed of the nature and cause of accusation.... 360 Right to counsel of the accused
and of persons arrested, detained or under custodial investigation;
Republic Act No. 7438 (Bar 1990; 1991; 1998; 2002) ...................................................
368
Meaning of custodial investigation; extended meaning..........................................................
369
Rights of persons under custodial investigation;
custodial investigation report..........................................................................................
369
Right to choose a counsel is not plenary; right
may be waived...................................................................................................................
372
Competent and independent counsel.......................................................................................
373
Right to counsel in administrative cases .....................................................................................
376
Extrajudicial confessions; rights of persons under
custodial investigation (Bar 2006)...................................................................................
377
Right to speedy trial; speedy disposition of cases
(Bar 1996; 2002; 2007).....................................................................................................
381
When right to speedy disposition of cases is violated ..............................................................
383
Purpose of time limits set by law or the rules;
principle of speedy trial is a relative term ......................................................................
388
Remedy for a violation of the right to speedy trial....................................................................
390
Factors for granting continuance .................................................................................................
391
Guidelines to determine violation of the right to speedy trial
and speedy disposition of cases; balancing test ...........................................................
391
Approaches to speedy trial ...........................................................................................................
393
XXV
The privilege against self-incrimination
(Bar 1996; 1998; 2004; 2005) ...........................................................................................
The privilege applies only to natural persons .............................................................................
The privilege protects a person from testimonial
compulsion or evidence of a communicative nature ..................................................
Force re-enactments ......................................................................................................................
Meaning of compulsion.................................................................................................................
Writing exemplars or samples......................................................................................................
Questions which the witness may refuse to answer ................................................................
Privilege extends to lawyers advising a witness
to invoke the privilege ......................................................................................................
Persons who are mere custodians of documents
cannot claim the privilege ................................................................................................
Proceedings in which the privilege may be asserted ................................................................
Distinctions between the claim of the privilege by an
accused and by a mere witness ......................................................................................
Waiver of the privilege...................................................................................................................
The privilege will not apply when witness is given
immunity from prosecution ............................................................................................
Immunity statutes; examples .......................................................................................................
The right to defend himself; right to be heard ...........................................................................
The right to testify as a witness.....................................................................................................
The right to confront and cross-examine the witnesses
against him .........................................................................................................................
Right to use testimony of a deceased witness ...........................................................................
Right to compulsory process............................................................ ...........................................
Right to appeal ................................................................................................................................
396
399
400
405
406
406
410
411
412
413
414
416
416
418
421
422
423
425
425
426
Chapter VIII ARRAIGNMENT AND PLEA (RULE 116)
A. BASIC CONCEPTS
Meaning and importance of arraignment (Bar 2007) .................................................
Duty of the court before arraignment ...........................................................................
Options of the accused before arraignment and plea.................................................
Plea made before a court with no jurisdiction..............................................................
Arraignment under an amended information;
substituted information .........................................................................................
428
429
429
432
432
B. HOW ARRAIGNMENT AND PLEA ARE MADE
Where arraignment is to be made ..................................................................................
How arraignment is made ................................................................................................
When arraignment is to be made....................................................................................
xxi
433
433
433
Arraignment after submission of the case
for decision..............................................................................................................
Record of arraignment......................................................................................................
Presence of the accused ...................................................................................................
Presence of the offended party.......................................................................................
When a plea of'not guilty' shall be entered
(Bar 1992; 1993; 1996)...........................................................................................
Plea of guilty is a judicial confession; effect on
aggravating circumstances ...................................................................................
Exception to the admission of aggravating
circumstances .................................................... ...................................................
Plea of guilty to a lesser offense; plea bargaining
(Bar 1995; 2002) ......................................................................................................
Requisites for a plea of guilty to a lesser offense ..........................................................
Plea of guilty to a lesser offense after arraignment;
plea bargaining during the trial proper ...............................................................
No need for amendment of information/complaint...................................................
When plea of guilty to a lesser offense is
not mitigating .........................................................................................................
Plea of guilty to a capital offense (Bar 1995)..................................................................
Meaning of "searching inquiry" ......................................................................................
Plea of guilty to a non-capital offense.............................................................................
Improvident plea of guilty ................................................................................................
Production or inspection of material evidence .............................................................
434
436
436
436
436
439
440
440
441
442
442
443
443
445
448
448
449
Chapter IX MOTION TO QUASH (RULE 117)
Time for filing the motion to quash........................................................................................... 451
Form and contents of the motion to quash............................................................................. 451
Motion to quash is not a demurrer to evidence;
distinctions.................................................................................................................................... 451
Court shall consider only those grounds stated
in the motion................................................................................................................................ 453
Motion to quash; grounds for a motion to quash (Bar 1987; 1990; 1991; 1992; 1993; 1994; 1995;
1996; 1998; 1999; 2000; 2002; 2003; 2004; 2005;
2009; 2010) ................................................................................................................................... 453
Execution of an affidavit of desistance is not a ground
for a motion to quash ................................................................................................................. 454
Absence of probable cause not a ground to quash
an information ............................................................................................................................. 455
Matters of defense are not grounds for a motion
to quash......................................................................................................................................... 455
xxii
Absence of a preliminary investigation is not a ground
to quash an information................................................................................................... 455
Test in appreciating a motion to quash................................................................................................. 456
Effect of failure to assert any ground of a motion
to quash ........................................................................................................................................ 457
Grounds not waived ................................................................................................................................ 458
Denial of a motion to quash ................................................................................................................... 458
When court shall order the amendment of the
information or complaint................................................................................................. 459
Order sustaining a motion to quash is not a bar
to another prosecution; exceptions (Bar 1994) ...................................................................... 459
Double jeopardy....................................................................................................................................... 460
Effects of double jeopardy; on criminal
and civil aspects ........................................................................................................................... 462
Double jeopardy; requisites.................................................................................................................... 465
Court must have competent jurisdiction.............................................................................................. 466
Curing an erroneous acquittal; grave abuse discretion of
amounting to lack jurisdiction ................................................................................................... 469
Preliminary investigation; double jeopardy
not applicable............................................................................................................................... 474
Res judicata and double jeopardy; res judicata
in prison grey (Bar 2010).;........................................................................................................... 475
Administrative cases; double jeopardy not applicable ...................................................................... 475
Valid complaint or information (Bar 2002; 2004) ................................................................... 477
Accused should have pleaded to the charge (should
have been arraigned) (Bar 2002; 2003).................................................................................... 479
The accused has been convicted or acquitted, or the case against him dismissed or terminated
without
his express consent ..................................................................................................................... 482
Dismissal or termination must be without the express
consent of the accused ............................................................................................................... 485
Dismissals equivalent to acquittal even with the consent
of the accused; speedy trial; demurrer to evidence............................................................... 487
Double jeopardy in quasi offenses ........................................................................................................ 491
When double jeopardy shall not apply despite a prior
conviction (Bar 2005) .................................................................................................................. 495
Meaning of same offense; when not the same
(Bar 1993; 1994)........................................................................................................................... 496
Provisional dismissal; requisites (Bar 2003).......................................................................................... 503
Time bar rule; when provisional dismissal becomes
permanent.................................................................................................................................... 506
Effect of People v. Lacson............................................................................................. .......................... 507
Withdrawal of information distinguished from a
motion to dismiss ........................................................................................................................ 510
xxiii
Chapter X
PRE-TRIAL, TRIAL AND DEMURRER TO EVIDENCE (RULES 118-119)
A.
PRE-TRIAL (RULE 118) (Bar 1986; 1989; 2004; 2008)
B.
Courts in which pre-trial is mandatory..........................................................................
Matters to be considered during the pre-trial;
purposes..................................................................................................................
When pre-trial shall be held.............................................................................................
Non-appearance in the pre-trial conference;
consequences..........................................................................................................
Duty of the Branch Clerk of Court ...................................................................................
Recording of the minutes.................................................................................................
Duty of the judge before the pre-trial conference .......................................................
Duty of the judge when plea bargaining is
agreed upon; prosecution and offended party
agree to the plea ....................................................................................................
Duty of the judge when plea bargaining fails................................................................
Asking questions during the pre-trial .............................................................................
Pre-trial agreements; signing of admissions made ......................................................
Pre-trial order ..................................................... . .............................................................
Pre-trial in a civil case vs. pre-trial in a
criminal case ............................................................................................................
Effect of pre-trial order......................................................................................................
Judicial dispute resolution (JDR); purposes ...................................................................
Stages in the judicial proceeding with JDR;
confidentiality..........................................................................................................
Cases subject to mediation for JDR.................................................................................
Salient features of the suggested JDR process ..............................................................
Court-annexed mediation guidelines.............................................................................
Discovery procedures in criminal cases..........................................................................
TRIAL (RULE 119)
511
511
512
512
513
513
513
513
514
514
514
515
515
516
517
517
518
519
521
524
When trial shall commence ...................................................................................................... 526
Summary of periods .................................................................................................................. 527
Time to prepare for trial ............................................................................................................ 527
Effect of not bringing the accused to trial within
the prescribed period....................................................................................................... 528
Delays to be excluded from computing the period for
commencement of the trial;
some examples ................................................................................................................. 528
When delay or suspension of trial is justified
by reason of the absence of a witness........................................................................... 529
xxiv
Continuous trial..................................................................................................................
Trial period..........................................................................................................................
Postponement or continuance .......................................................................................
Factors to be considered for granting
continuances or postponements .........................................................................
Prohibited grounds for a continuance............................................................................
Conditional examination of witnesses even
before trial................................................................................................................
How to secure appearance of a material witness
(Bar 1994; 1999) ......................................................................................................
Discharge of accused to be a state witness;
requisites (Bar 1988; 1990; 1994; 2006)...............................................................
Evidence adduced during the discharge
hearing......................................................................................................................
Effect of discharge of an accused to be a
state witness; acquittal...........................................................................................
Mistake in charging the proper offense .........................................................................
Order of trial .......................................................................................................................
Modification of the order of trial; reverse trial
(Bar 2007) .................................................................................................................
Reopening of the proceedings.........................................................................................
Trial in absentia (Bar 1998)...............................................................................................
Instances when the presence of the accused
is required.................................................................................................................
Some rules on witness' credibility...................................................................................
Comments and questions of the judge during
the trial......................................................................................................................
Corpus delicti in criminal cases; murder
or homicide ..............................................................................................................
Lack of formal offer of evidence during the trial...........................................................
C. DEMURRER TO EVIDENCE (RULE 119)
530
530
531
531
531
531
532
533
534
534
534
535
535
535
536
537
538
538
539
540
Demurrer to evidence (Bar 1991; 1994; 1996; 2001;
2003; 2004; 2007; 2009)................................................................................................... 540
Demurrer to evidence with leave of court
(Bar 2003) ........................................................................................................................... 541
Demurrer to evidence without leave of court ........................................................................ 542
Not every motion to dismiss is a demurrer
to evidence......................................................................................................................... 543
Granting of demurrer is an acquittal ........................................................................................ 544
Demurrer to evidence in a civil case vs. demurrer
to evidence in a criminal case (Bar 2007)....................................................................... 545
XXV
Chapter XI
JUDGMENT, REMEDIES AFTER JUDGMENT OF CONVICTION
AND PROVISIONAL REMEDIES
I.
JUDGMENT (RULE 120)
II.
Meaning of judgment ......................................................................................................
Requisites of a judgment .................................................................................................
Contents of a judgment of conviction; contents
of judgment of acquittal ........................................................................................
Rule when there are two or more offenses in a single information or
complaint (duplicitous
complaint or information) ....................................................................................
Judgment rendered by judge who did not hear
the case.....................................................................................................................
Variance doctrine; variance between the allegation
and proof (Bar 1993; 2004)...................................................................................
When an offense includes or is included in another....................................................
Variance in the mode of the commission of the offense...
Promulgation of judgment (Bar 1997)...........................................................................
How accused is to be notified of the promulgation.....................................................
Rule if the accused fails to appear in the
promulgation of judgment....................................................................................
Modification of judgment (Bar 1989) ............................................................................
When judgment becomes final ......................................................................................
Entry of judgment ............................................................................................. ...............
NEW TRIAL OR RECONSIDERATION (RULE 121)
III.
546
546
548
549
550
550
551
551
552
552
553
554
554
554
Filing a motion for new trial or a motion for
reconsideration .......................................................................................................
554
Grounds for a new trial ....................................................................................................
555
Requisites for newly discovered evidence ....................................................................
555
Grounds for reconsideration of the judgment .............................................................
556
Form of the motions; notice............................................................................................
556
Notice of the motion ........................................................................................................
556
When hearing of the motion is required.......................................................................
557
Effects of granting a new trial or reconsideration ........................................................
557
The Neypes rule ............................................................................................................
557
APPEALS (RULES 122,124,125) (Bar 1991; 1992; 1993; 1998)
Appeal not a natural right.......................................................................................................... 558
Who may appeal......................................................................................................................... 559
Subject matter for review on appeal ....................................................................................... 560
xxvi
Change of theory on appeal ............................................................................................
Factual findings; credibility of witnesses.........................................................................
Where to appeal ................................................................................................................
How to appeal ....................................................................................................................
When appeal is to be taken..............................................................................................
Service of notice of appeal................................................................................................
Transmission of the papers to appellate court (RTC)....................................................
Withdrawal of appeal .......................................................................................................
Appeal not mooted by accused's release on parole.....................................................
Effect of appeal by any of several accused (Bar 1998).................................................
Appeal from the civil aspect .............................................................................................
Period to apply for probation...........................................................................................
Stay of execution...............................................................................................................
Power of the Court of Appeals to receive evidence .....................................................
Dismissal of appeal by the Court of Appeals.................................................................
Ground for reversal of judgment or its modification....................................................
Review of decisions of the Court of Appeals..................................................................
Applicability of the rules on appeal in the
Court of Appeals to the Supreme Court..............................................................
Rule if the opinion of the Supreme Court
en banc is equally divided ..................................................................................
When preliminary attachment is available....................................................................
561
561
563
564
565
566
566
566
567
567
568
568
569
569
569
570
570
570
570
572
IV. PROVISIONAL REMEDIES IN CRIMINAL CASES
Availability of provisional remedies ................................................................................
571
Synopsis of Selected Cases............................................................................................................
574
Criminal Procedure Aspect of the Rules of Procedure
in Environmental Cases....................................................................................................
600
Case Index .......................................................................................................................................
609
xxvii
CHAPTER I
PRELIMINARY CONSIDERATIONS
I. BASIC CONCEPTS
Concept of criminal procedure
1. Criminal procedure treats of the series of processes by which the
criminal laws are enforced and by which the State prosecutes persons who
violate the penal laws. In the clear language of the Court, criminal procedure
"regulates the steps by which one who committed a crime is to be punished"
(People v. Lacson, 400 SCRA 267).
While criminal laws define crimes and prescribe punishment for such
crimes, criminal procedure lays down the processes by which an offender is
made to answer for the violation of the criminal laws.
2.
Criminal procedure is "a generic term to describe the network of
laws and rules which governs the procedural administration of justice" (Black's
Law Dictionary, Fifth Edition, 1979). The procedure starts with the initial
contact of the alleged lawbreaker with the justice machinery including the
investigation of the crime and concludes either with a judgment exonerating
the accused or the final imposition of a penalty against him.
3. The enforcement of the criminal laws of the state inevitably leads
to governmental intrusions into an individual's zones of privacy and how these
intrusions can be reconciled with constitutional and statutory tenets protecting
individual rights is an inescapable theme tackled in criminal procedure. Thus, in
the prosecution for the violation of the penal laws,
l
2
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION
criminal procedure has the imposing task of balancing clashing societal
interests primarily between those of the government and those of the
individual. Hence, a common thread among innumerable treatises on the
subject is the tendency to describe criminal procedure in relation to its
ultimate goal of harmonizing the governmental functions of maintaining and
promoting law and order law while at the same time protecting the
constitutional rights of its citizens.
The adversarial or accusatorial system
1.
The system of procedure in our jurisdiction is accusatorial or
adversarial. It contemplates two contending parties before the court which
hears them impartially and renders judgment only after trial (Queto v.
Catolico, 31 SCRA 52).
The system has a two-sided structure consisting of the prosecution and
the defense where each side tries to convince the court that its position is the
correct version of the truth. In this system, the accusation starts with a formal
indictment called in our jurisdiction as a complaint or an information, the
allegations of which must be proven by the government beyond reasonable
doubt. The government and the accused present their evidence before the
court which shall decide either on acquittal or conviction of the accused. In its
decision-making process, that court shall consider no evidence which has not
been formally offered. The court in this system therefore, has a passive role
and relies largely on the evidence presented by both sides to the action in
order to reach a verdict.
2. The adversarial system should be distinguished from the
inquisitorial system where the court plays a very active role and is not limited
to the evidence presented before it. The court may utilize evidence gathered
outside the court and a judge or a group of judges under this system actively
participates in the gathering of facts and evidence instead of mere passively
receiving information or evidence from the parties. The judge steers the course
of the proceedings by directing and supervising the gathering of the evidence
and the questioning of the witnesses to the case. The counsels in the
CHAPTER I
PRELIMINARY CONSIDERATIONS
3
inquisitorial system have a less active role than in the adversarial system.
Liberal interpretation of the rules
1. The rules on criminal procedure, being parts of the Rules of Court,
shall be "liberally construed in order to promote their objective of securing a
just, speedy and inexpensive disposition of every action and proceeding" (Sec.
6, Rule 1, Rules of Court).
2. In a case, petitioner's former counsel erroneously appealed her
conviction to the Court of Appeals instead of to the Sandiganbayan. Petitioner
pleaded that Section 2 of Rule 50 of the Rules of Court which mandated the
dismissal of cases erroneously appealed to the Court of Appeals be relaxed and
the Court 6f Appeals be directed to forward the records of the case to the
Sandiganbayan. The Supreme Court, in granting petitioner's prayer held that
since the appeal involved a criminal case and the possibility of a person being
deprived of liberty due to a procedural lapse is great, a relaxation of the Rules
was warranted. The rules of procedure must be viewed as tools to facilitate the
attainment of justice, such that any rigid and strict application thereof which
results in technicalities tending to frustrate substantial justice must always be
avoided (Cenita M. Cariaga v. People of the Philippines, G.R. No. 180010,
July 30, 2010).
Due process; mandatory
Due process in criminal proceedings is mandatory and indispensable and
cannot be met without the proverbial "law which hears before it condemns
and proceeds upon inquiry and renders judgment only after trial." (Quotation
from Albert vs. University Publishing House, G.R. No. L-19118, January
30,1965)
Monte v. Savellano, Jr., 287 SCRA 245, enumerates the requirements
of due process in a criminal proceeding, to wit:
(a) that the court or tribunal trying the case is properly clothed with
judicial power to hear and determine the matter before it;
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION
4
(b) that jurisdiction is lawfully acquired by it over the
person of the accused;
(c)
that the accused is given opportunity to be heard;
and
(d)
that judgment is rendered only upon lawful hearing.
A. Requisites For The Exercise of Criminal
Jurisdiction
Requisites
A reading of jurisprudence and treatises on the matter
discloses the following basic requisites before a court can
acquire jurisdiction over criminal cases (Cruz v. Court of
Appeals, 388 SCRA 72):
(a)
Jurisdiction over the subject matter;
(b)
Jurisdiction over the territory; and
(c)
Jurisdiction over the person of the accused.
Jurisdiction over the subject matter versus jurisdiction over
the person of the accused
1. Jurisdiction over the subject matter refers to the
authority of the court to hear and determine a particular
criminal case. One case, Antiporda, Jr. v. Garchitorena, 321
SCRA 551, mandates that the offense is one which the court
is by law authorized to take cognizance of.
2.
Jurisdiction over the person of the accused refers to
the authority of the court, not over the subject matter of the
criminal litigation, but over the person charged. This kind of
jurisdiction requires that "the person charged with the offense
must have been brought in to its forum for trial, forcibly by
warrant of arrest or upon his voluntary submission to the
court" (Antiporda v. Garchitorena, 321 SCRA 551; Cruz v.
Court of Appeals, 388 SCRA 72; Cojuangco v. Sandiganbayan,
300 SCRA 367).
CHAPTER I
PRELIMINARY CONSIDERATIONS
5
Jurisdiction over the territory; venue in criminal cases (Bar 1997)
1. This element requires that the offense must have been committed
within the court's territorial jurisdiction (An- tiporda, Jr. v. Garchitorena, 321
SCRA 551). This fact is to be determined by the facts alleged in the complaint or
information as regards the place where the offense charged was committed
(Fullero v. People, 533 SCRA 97).
In all criminal prosecutions, the action shall be instituted and tried in the
court of the municipality or territory wherein the offense was committed or
where anyone of the essential ingredients took place. Hence, if any one of
these elements is proven to have occurred, let us say, in Pasay City, the proper
court in that city has jurisdiction (Barrameda v. Court of Appeals, 313 SCRA
477).
2. Venue in criminal cases is an essential element of jurisdiction.
Hence, for jurisdiction to be acquired by a court in a criminal case, the offense
should have been committed or any one of its essential ingredients should have
taken place within the territorial jurisdiction of the court. It is in that court
where the criminal action shall be instituted (Sec. 15 [a], Rule 110, Rules of
Court; Foz, Jr. v. People, G.R. No. 167764, October 9,2009).
3. It is doctrinal that in criminal cases, venue is an essential element of
jurisdiction, and that the jurisdiction of a court over a criminal case is
determined by the allegations in the complaint or information. The rule that
the criminal action be instituted and tried in the court of the territory where the
offense was committed or where any of its essential ingredients occurred is a
fundamental principle, the purpose of which is not to compel the defendant to
move to, and appear in, a different court from that of the province where the
crime was committed as it would cause him great inconvenience in looking for
his witnesses and other evidence in another place (Campanano, Jr. v. Datuin,
536 SCRA 471, October 17, 2007; Bonifacio, et al. v. Regional Trial Court
ofMakati, et al., G.R. No. 184800, May 5, 2010).
6
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION
4. Territorial jurisdiction in criminal cases is the territory where the
court has jurisdiction to take cognizance or to try the offense allegedly
committed therein by the accused. Thus, it cannot take jurisdiction over a
person charged with an offense allegedly committed outside of that limited
territory and if the evidence adduced during the trial shows that the offense
was committed somewhere else, the court should dismiss the action for want
of jurisdiction (Macasaet v. People, 452 SCRA 255; Foz, Jr. v. People, G.R. No.
167764, October 9, 2009). It is doctrinal that in criminal cases, venue is an
essential element of jurisdiction, and that the jurisdiction of a court over a
criminal case is determined by the allegations of the complaint or the
information (Campanano, Jr. v. Datuin, 536 SCRA 471; Macasaet v. People,
452 SCRA 255).
5. The concept of venue in actions in criminal cases, unlike in civil
cases, is jurisdictional — for jurisdiction to be acquired 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 v.
People, 525 SCRA 735). Similarly, it has been held that the RTC of Manila has
no authority to issue a search warrant for offenses committed in Cavite (Sony
Computer Entertainment, Inc. v. Supergreen, Inc., 518 SCRA 750).
When a court has jurisdiction to try offenses not committed within its
territorial jurisdiction
The rule that the offense must be prosecuted and tried in the place
where the same was committed admits of certain exceptions.
1. Where the offense was committed under the circumstances
enumerated in Art. 2 of the Revised Penal Code, the offense is cognizable
before Philippine courts even if committed outside of the territory of the
Philippines. In this case, the offense shall be cognizable by the court where the
criminal action is first filed (Sec. 15[d], Rule 110, Rules of Court).
Under Article 2 of the Revised Penal Code, the provisions of the Revised
Penal Code shall be enforced not only within
CHAPTER I
PRELIMINARY CONSIDERATIONS
7
the Philippine Archipelago but also outside of its jurisdiction against offenders
who:
Should commit an offense while on a Philippine ship or airship;
Should forge or counterfeit any coin or currency note of the
Philippine Islands or obligations and securities issued by the
Government of the Philippine Islands;
Should be liable for acts connected with the introduction into
these Islands of the obligations and securities mentioned above;
While being public officers and employees, should commit an
offense in the exercise of their functions; or
Should commit any of the crimes against national security and the
law of nations.
Included in crimes against national security are the crimes of (i) treason,
(ii) conspiracy and proposal to commit treason, (iii) misprision of treason, (iv)
espionage, (v) inciting to war and giving motives for reprisal, (vi) violation of
neutrality, (vii) correspondence with hostile country, and (viii) flight to enemy's
country (Articles 114-121, Revised Penal Code).
Crimes against the law of nations are piracy and mutiny described under
Article 122 of the Revised Penal Code and qualified piracy under Article 123
thereof.
2. Where the Supreme Court, pursuant to its constitutional powers
orders a change of venue or place of trial to avoid a miscarriage of justice
(Section 5[4J, Article VIII, 1987 Constitution of the Philippines).
3. Where an offense is committed in a train, aircraft, or other public
or private vehicle in the course of its trip, the criminal action need not be
instituted in the actual place where the offense was committed. It may be
instituted and tried in the court of any municipality or territory where said train,
aircraft, or vehicle passed during its trip. The crime
8
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION
may also be instituted and tried in the place of departure and arrival (Section
15[b], Rule 110, Rules of Court).
4. Where an offense is committed on board a vessel in the course of
its voyage, the criminal action shall be instituted and tried not necessarily in the
place of the commission of the crime. It may be brought and tried in the court
of the first port of entry, or in the municipality or territory where the vessel
passed during the voyage (Section 15[c], Rule 110, Rules of Court).
5. Where the case is cognizable by the Sandiganbayan, the
jurisdiction of which depends upon the nature of the offense and the position
of the accused (Subido v. Sandiganbayan, G.R. No. 122641, January 20,
1997), the offense need not be tried in the place where the act was
committed but where the court actually sits in Quezon City.
Under Sec. 2 of R.A. No. 8249 (An Act Further Defining the Jurisdiction
of the Sandiganbayan), when the greater convenience of the accused and of
the witnesses, or other compelling considerations so require, a case originating
from one geographical region may be heard in another geographical region.
For this purpose, the presiding justice shall authorize any divisions of the court
to hold sessions at any time and place outside Metro Manila and, where the
interest of justice so requires, outside the territorial boundaries of the
Philippines.
6. Where the offense is written defamation, the criminal action need
not necessarily be filed in the RTC of the province or city where the alleged
libelous article was printed and first published. It may be filed in the province or
city where the offended party held office at the time of the commission of the
offense if he is a public officer, or in the province or city where he actually
resided at the time of the commission of the offense in case the offended party
is a private individual (Article 360, Revised Penal Code as amended by
Republic Act No. 1289 and Republic Act No. 4363; Bar 1995J.
7. The case of Agbayani v. Sayo, 89 SCRA 699, restated Article 360
of the Revised Penal Code (written defamation) as follows:
CHAPTER I
PRELIMINARY CONSIDERATIONS
9
(a) Whether the offended party is a public official or a private
person, the criminal action maybe filed in the Court of First Instance (RTC)
of the province or city where the libelous article is printed and first
published.
(b) If the offended party is a private individual, the criminal
action may also be filed in the Court of First Instance (RTC) of the
province where he actually resided at the time of the commission of the
offense.
(c) If the offended party is a public officer whose office is in
Manila at the time of the commission of the offense, the action may be
filed in the Court of First Instance (RTC) of Manila.
(d) If the offended party is a public officer holding office outside
of Manila, the action may be filed in the Court of First Instance (RTC) of
the province or city where he held office at the time of the commission of
the offense (Foz, Jr. v. People, G.R. No. 167764, October 9, 2009).
One recent case held that if the circumstance as to where the libel was
printed and first published is used by the offended party as basis for the venue
in the criminal action, the information must allege with particularity where the
defamatory article was printed and first published, as evidenced or supported
by, for instance, the address of their editorial or business offices in the case of
newspapers, magazines or serial publications. This pre-condition becomes
necessary in order to forestall any inclination to harass.
In a case pertaining to defamatory material appearing on a website on
the internet, the place where the material was first accessed cannot be
equated with "printing and first publication." This interpretation would, said
the Court, "spawn the very ills that the amendment to Art. 360 of the RPC
sought to discourage and prevent. It hardly requires much imagination to see
the chaos that would ensue in situations where the website's author or writer,
a blogger or anyone who posts messages therein could be sued for libel
anywhere in the
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION
Philippines that the private complainant may have allegedly accessed the
offending website. For the Court to hold that the amended information
sufficiently vested jurisdiction in the courts of Makati simply because the
defamatory article was accessed therein would open the floodgates to the libel
suit being filed in all other locations where the x x x website is likewise accessed
or capable of being accessed" (Bonifacio, et al. v. Regional Trial Court of
Makati, et al., G.R. No. 184800, May 5,2010).
Merely alleging that "the newspaper is a daily publication with a
considerable circulation in the City of Iloilo and throughout the region" did not
establish that the said publication was first printed and first published in Iloilo
City (Foz, Jr. v. People, G.R. No. 167764, October 9,2009).
Also, merely alleging that the offended party is a physician and medical
practitioner in a particular place does not clearly and positively indicate that
said person is residing in such place at the time of the commission of the crime.
One who transacts business in a place and spends a considerable time thereat
does not render such person a resident therein (Foz, Jr. v. People, G.R. No.
167764, October 9,2009).
B. Criminal Jurisdiction Over The Subject Matter
Jurisdiction over the subject matter
1. Generally, jurisdiction is the right to act or the power and authority
to hear and determine a cause — it is a question of law (Gomez v. Montalban,
548 SCRA 693). The term imports the power and authority to hear and
determine issues of facts and of law, the power to inquire into the facts, to
apply the law and to pronounce the judgment (21 C.J.S., Courts, § 2, 1990).
Specifically, criminal jurisdiction is the authority to hear and try a
particular offense and impose the punishment for it (Antiporda, Jr. v.
Garchitorena, 321 SCRA 551).
2. Jurisdiction over the subject matter is the power to hear and
determine cases of the general class to which the
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PRELIMINARY CONSIDERATIONS
11
proceedings in question belongs (Reyes v. Diaz, 73 Phil 484). It is the power to
deal with the general subject involved in the action, and means not simply
jurisdiction over the particular case then occupying the attention of the court
but jurisdiction of the class of cases to which the particular case belongs (21
C.J.S., Courts, § 10,1990).
How jurisdiction over the subject matter is conferred
1. Jurisdiction over the subject matter is conferred by law (Durisol
Philippines, Inc. v. Court of Appeals, G.R. No. 121106, February 20,2000;
Magno v. People, G.R. No. 171542, April 6, 2011). It is the law that confers
jurisdiction and not the rules (Padunan v. DARAB, G.R. No. 132163, January
28, 2003). The rule is that in order to ascertain whether a court has jurisdiction
or not, the provisions of law shall be inquired into (Soller v. Sandiganbayan,
G.R. Nos. 144261-62, May 9, 2001).
When the law confers jurisdiction, that conferment must be clear. It
cannot be presumed. It must clearly appear from the statute or will not be held
to exist (De Jesus v. Garcia, 19 SCRA554).
2. Jurisdiction cannot be fixed by the will of the parties nor can it be
acquired or diminished by any act of the parties. In determining whether or not
a case lies within or outside the jurisdiction of a court, reference to the
applicable statute on the matter is indispensable (Tolentino v. Social Security
Commission, 138 SCRA 428; De la Cruz v. Moya, 160 SCRA 838).
3. Jurisdiction over the subject matter in a criminal case cannot be
conferred upon the court by the accused, express waiver or otherwise, since
such jurisdiction is conferred by the sovereign authority which organized the
court, and is given only by law in the manner and form prescribed by law
(Fukuzume v. People, 474 SCRA 570).
4. Since jurisdiction is conferred by law, it is not conferred by mere
administrative policy of any trial court (Cudia v. Court of Appeals, 284 SCRA
173).
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UPDATED EDITION
How jurisdiction over the subject matter is determined
1. While jurisdiction of courts is conferred by law, jurisdiction over a
criminal case is determined by the allegations in the complaint or information.
Hence, "(I)n order to determine the jurisdiction of the court in criminal cases,
the complaint or information must be examined for the purpose of
ascertaining whether or not the facts set out therein and the punishment
provided for by law for such acts fall within the jurisdiction of the court in which
the criminal action is filed. If the facts set out in the complaint or information
are sufficient to show that the court has jurisdiction, then that court indeed has
jurisdiction" (Mobilia Products v. Umezawa, G.R. No. 149357, March
4,2005).
2.
The jurisdiction of the court over criminal cases is determined by
the allegations of the complaint or information and once it is so shown, the
court may validly take cognizance of the case (Macasaet v. People, 452 SCRA
255; Foz, Jr. v. People, G.R. No. 167764, October 9, 2009). It is the averments
in the information which characterize the crime to be prosecuted and the
court before which it must be tried (Pangilinan v. Court of Appeals, 321 SCRA
51).
3.
"The jurisdiction of the court is defined by the Constitution or
statute. The elements of that definition must appear in the complaint or
information so as to ascertain which court has jurisdiction over a case. Hence,
the elementary rule that the jurisdiction of the court is determined by the
allegations in the complaint or information, and not by the evidence presented
by the parties at the trial" (Larson v. Executive Secretary, 301 SCRA 298). It
was held however, that if the evidence adduced during the trial shows that the
offense was committed somewhere else, the court should dismiss the action
for want of jurisdiction (Macasaet v. People, 452 SCRA 255 as cited in Foz, Jr.
v. People, G.R. No. 167764, October 9, 2009).
Thus, in criminal cases, the court must examine the complaint for the
purpose of ascertaining whether or not the facts set out and the punishment
provided by law for such act,
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13
fall within the jurisdiction of the court (U.S. v. Jimenez, 41 Phil. 1; U.S. v.
Mallari, 24 Phil. 366).
4. In cases cognizable by the Sandiganbayan, both the nature of the
offense and the position occupied by the accused are conditions sine qua non
before the Sandiganbayan can validly take cognizance of the case (Uy v.
Sandiganbayan, 312 SCRA 77).
5. In complex crimes, jurisdiction is with the court having jurisdiction
to impose the maximum and most serious penalty imposable on the offense
forming part of the complex crime (Cuyos v. Garcia, 160 SCRA 302; Bar 2003;.
Statute applicable to a criminal action
1. It is a hornbook doctrine that jurisdiction to try a criminal action is
determined by the law in force at the time of the institution of the action and
not during the arraignment of the accused (Palana v. People, 534 SCRA 296,
September 28, 2007).
2. The statute in force at the time of the institution of the action
determines the jurisdiction of the court over the subject matter and not at the
time of its commission even if the penalty that may be imposed at the time of
its commission is less and does not fall under the court's jurisdiction (People v.
Logon, 185 SCRA 442; People v. Magallanes, 249 SCRA 212). Other decisions
have similarly and consistently held that it is well established that the
jurisdiction of a court to try a criminal case is determined by the law in force at
the time of the institution of the action (People v. Cawaling, 293 SCRA 267;
Sogod v. Sandiganbayan, 312 SCRA 77; De la Cruz v. Moya, 160 SCRA 838)
and not at the time of the commission of the offense (People v.
Sandiganbayan, G.R. No. 167304, August 25, 2009; People v.
Sandiganbayan, G.R. No. 169004, September 15, 2010).
3. Where the offense was allegedly committed on or about
December 19,1995 and the filing of the information was on May 21,2004, the
jurisdiction of the Sandiganbayan to try a criminal case is to be determined at
the time of the institu
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION
tion of the action, not at the time of the commission of the offense. The
applicable law therefore, in the case against the public officer is Presidential
Decree 1606 as amended by Republic Act No. 7975 on May 16,1995 and as
further amended by Republic Act No. 8249 on February 5,1997 (People v.
San- diganbayan and Victoria Amante, G.R. No. 167304, August 25, 2009).
Use of the imposable penalty
1. In determining whether or not the court has jurisdiction over an
offense, we consider the penalty which may be imposed upon the accused and
not the actual penalty imposed after the trial (People v. Purisima, L-40902,
February 18,1976; People v. Savellano, L-39951, September 9,1982).
2. The jurisdiction of the court is not determined by what may be
meted out to the offender after trial, or even by the result of the evidence that
would be presented at the trial, but by the extent of the penalty which the law
imposes for the offense, on the basis of the facts alleged in the information or
complaint (People v. Buissan, 105 SCRA 547; People v. Purisima, 69 SCRA
341).
Principle of adherence of jurisdiction or continuing jurisdiction
1. The jurisdiction of the court is referred to as "continuing" in view of
the general principle that once a court has acquired jurisdiction, that
jurisdiction continues until the court has done all that it can do in the exercise
of that jurisdiction (20 Am. Jur. 2d, Courts, § 147, 1965). The jurisdiction once
vested, cannot be withdrawn or defeated by a subsequent valid amendment
of the information (People v. Chupeco, L-19568, March 31, 1964). It cannot
also be lost by a new law amending the rules of jurisdiction (Rilloraza v.
Arciaga, L-23848, October 31,1967).
For instance, in Flores v. Sumaljag, 290 SCRA 568, the court was held
not to have lost jurisdiction over the case involving a public official by the mere
fact that the said official
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PRELIMINARY CONSIDERATIONS
15
ceased to be in office during the pendency of the case. The court retains its
jurisdiction either to pronounce the respondent official innocent of the charges
or declare him guilty thereof.
2. Once a court acquires jurisdiction over a controversy, it shall continue
to exercise such jurisdiction until the final determination of the case and it is
not affected by the subsequent legislation vesting jurisdiction over such
proceedings in another tribunal. A recognized exception to this rule is when the
statute expressly so provides, or is construed to the effect that it is intended to
operate upon actions pending before its enactment. However, when no such
retroactive effect is provided for, statutes altering the jurisdiction of a court
cannot be applied to cases already pending prior to their enactment (People v.
Cawaling, 293 SCRA 267; Azarcon v. Sandiganbayan, 268 SCRA 647; Palana
v. People, 534 SCRA 296).
As a result of the above rule, once a complaint or information is filed in
court, any disposition of the case such as its dismissal or continuance rests on
the sound discretion of the court (Jalandoni v. Drilon, 327 SCRA 107;
Domondon v. Sandiganbayan, 328 SCRA 292) and even if the prosecution
files a motion to withdraw the information, the court may grant or deny the
same in the faithful exercise of judicial prerogative (Pilapil v. Garchitorena,
299 SCRA 343).
The Court has been steadfast in declaring that when a court has already
obtained and is exercising jurisdiction over a controversy, its jurisdiction to
proceed to the final determination of the case is not affected by new legislation
placing jurisdiction over such proceedings in another tribunal unless the statute
expressly provides, or is construed to the effect that it is intended to operate on
actions pending before its enactment (Palana v. People, 534 SCRA 296,
September 28, 2007).
Dismissal on jurisdictional grounds; special appearance
1. The rule is settled that an objection based on the ground that the court
lacks jurisdiction over the subject matter
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION
may be raised or considered motu proprio by the court at any stage of the
proceedings or on appeal (Fukuzume v. People, 474 SCRA 570; Foz, Jr. v.
People, G.R. No. 167764, October 9, 2009).
2. A special appearance before the court to challenge the jurisdiction of
the court over the person is not tantamount to estoppel or a waiver of the
objection and is not a voluntary submission to the jurisdiction of the court
(Garcia v. Sandiganbayan, G.R. No. 170122, October 12,2009).
Raising the issue of jurisdiction for the first time in the Supreme Court
1. An accused is not precluded from raising the issue of jurisdiction of
the trial court over the offense charged because the issue may be raised or
considered motu proprio by the court at any stage of the proceedings or on
appeal. Moreover, jurisdiction over the subject matter in a criminal case cannot
be conferred upon the court by the accused, by express waiver or otherwise,
since such jurisdiction is conferred by the sovereign authority which organized
the court and is given only by law in the manner and form prescribed by law
(Fukuzume v. People, 474 SCRA 570; Foz, Jr. v. People, G.R. No. 167764,
October 9,2009).
2. A party cannot invoke the jurisdiction of the court to secure
affirmative relief against his opponent and after obtaining or failing to obtain
such relief, repudiate or question that same jurisdiction (Antiporda, Jr. v.
Garchitorena, 321 SCRA 551). After voluntarily submitting a cause and
encountering an adverse decision on the merits, it is too late for the loser to
question the jurisdiction or power of the court. While the jurisdiction of a
tribunal may be challenged at any time, sound public policy bars one from
doing so after their having procured that jurisdiction, speculating on the
fortunes of litigation (People v. Munar, 53 SCRA 278).
The rule is the same as in civil cases. In Tijam v. Sibong- hanoy, 23 SCRA
29, the Court earlier ruled that a party may be estopped from questioning the
jurisdiction of the court
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PRELIMINARY CONSIDERATIONS
17
for reasons of public policy as when he initially invokes the jurisdiction of the
court and then later on repudiates that same jurisdiction.
However, the doctrine of estoppel laid down in Tijam is an exception and
not the general rule and the rule still stands that jurisdiction is vested by law
and cannot be conferred or waived by the parties. Hence, even on appeal, and
even if the reviewing parties did not raise the issue of jurisdiction, the reviewing
court is not precluded from ruling that the lower court had no jurisdiction over
the case (Pangilinan v. Court of Appeals, 321 SCRA 51).
"Estoppel in questioning the jurisdiction of the court is only brought to
bear when not to do so will subvert the ends of justice. Jurisdiction of courts is
the blueprint of our judicial system without which the road to justice would be
a confusing maze. Whenever the question of jurisdiction is put to front, courts
should not lightly brush aside errors in jurisdiction especially when it is liberty of
an individual which is at stake" (Pangilinan v. Court of Appeals, 321 SCRA 51).
For Tijam v. Sibonghanoy to be applied to a criminal case, the factual
circumstances which justified the application of the bar by laches, must be
present in the case (Foz, Jr. v. People, G.R. No. 167764, October 9, 2009
citing Fukuzume v. People, supra).
C. Criminal Jurisdiction Over The Person of the Accused (Bar 2008)
1. It was held that jurisdiction over the person of the accused is acquired
upon his arrest or apprehension, with or without a warrant, or his voluntary
appearance or submission to the jurisdiction of the court (Valdepehas v.
People, 16 SCRA 871; Gimenez v. Nazareno, 160 SCRA 4).
As a general rule, seeking affirmative relief is deemed to be a submission
to the jurisdiction of the court (Sapugay v. Court of Appeals, 183 SCRA 464).
The voluntary submission of the accused to the jurisdiction of the court may be
effected
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UPDATED EDITION
by filing a motion to quash, appearing for arraignment, participating in the trial
or by giving bail (Santiago v. Vasquez, 217 SCRA 633; Antiporda, Jr. v.
Garchitorena, 321 SCRA 551; Miranda v. Tuliao, 486 SCRA 377).
2. The assertion that the court never acquired jurisdiction over the
person of the accused because the warrant of arrest issued is null and void
because no probable cause was found by the court issuing it, cannot be
sustained because he posted a bail. The giving or posting of a bail by the
accused is tantamount to submission of his person to the jurisdiction of the
court. Even if it is conceded that the warrant issued was void, the defendant
waived all his rights to object by appearing and giving a bond (Cojuangco, Jr. v.
Sandiganbayan, 300 SCRA 367; Velasco v. Court of Appeals, 245 SCRA 677).
Note: To be read in relation to Sec. 26 of Rule 114).
By submitting oneself to the jurisdiction of the court as shown by
entering into a counsel-assisted plea, the active participation in the trial and
presenting evidence for the defense, the accused is deemed to have waived
his constitutional protection against illegal arrest (People v. Rivera, G.R. No.
177741, August 27,2009).
3. However, not all acts seeking affirmative relief would constitute a
voluntary appearance or submission to the jurisdiction of the court. Making a
special appearance in court to question the jurisdiction of the court over the
person of the accused is not a voluntary appearance as when in a criminal case
a motion to quash is filed precisely on that ground. There is likewise no
submission to the jurisdiction of the court when the accused files a motion to
quash the warrant of arrest because it is the very legality of the court process
forcing the submission of the person of the accused that is the very issue in a
motion to quash a warrant of arrest (Miranda v. Tuliao, G.R. No. 158763,
March 31,2006).
4. Being in the custody of the law is not necessarily being under the
jurisdiction of the court. "One can be under the custody of the law but not yet
subject to the jurisdiction of the court over his person, such as when a person
arrested
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PRELIMINARY CONSIDERATIONS
19
by virtue of a warrant files a motion before arraignment to quash the warrant.
On the other hand one can be subject to the jurisdiction of the court over his
person, and yet not be in the custody of the law, as when an accused escapes
custody after his trial has commenced. Being in the custody of the law signifies
restraint on the person, who is thereby deprived of his own will and liberty,
binding him to become obedient to the will of the law. Custody of the law is
literally custody over the body of the accused. It includes, but is not limited to,
detention" (Miranda v. Tuliao, G.R. No. 158763, March 31, 2006).
D. Injunction To Restrain Criminal Prosecution (Bar 1999)
As a general rule, the Court will not issue writs of prohibition or injunction
preliminary or final, to enjoin or restrain, criminal prosecution. With more
reason will injunction not lie when the case is still at the stage of preliminary
investigation or reinvestigation. However, in extreme cases, the Court laid the
following exceptions:
(1) when the injunction is necessary to afford adequate protection to the
constitutional rights of the accused; (2) when it is necessary for the orderly
administration of justice or to avoid oppression or multiplicity of actions; (3)
when there is a prejudicial question which is subjudice; (4) when the acts of the
officer are without or in excess of authority; (5) where the prosecution is under
an invalid law, ordinance or regulation; (6) when double jeopardy is clearly
apparent; (7) where the Court has no jurisdiction over the offense; (8) where it
is a case of persecution rather than prosecution; (9) where the charges are
manifestly false and motivated by the lust for vengeance; and (10) when there
is clearly no prima facie case against the accused and a motion to quash on
that ground has been denied (Camanag v. Guerrero, 335 Phil. 945, 970-971
[1997], citing Paderanga v. Drilon, 196 SCRA 86 [1991]; Brocka v. Enrile, 192
SCRA 183; Crespo v. Mogul, 151 SCRA 462 [1987]; Mercado v. Court of
Appeals, 245 SCRA 594, 598 [1995] cited
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION
in Samson v. Guingona, Jr., G.R. No. 123504, December 14, 2000).
E. Mandamus To Compel Prosecution (Bar 1999)
1. Mandamus is a remedial measure for parties aggrieved which shall
be issued when "any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty
resulting from an office, trust or station." The writ of mandamus is not
available to control discretion. Neither may it be issued to compel the exercise
of discretion. Truly, it is a matter of discretion on the part of the prosecutor to
determine which persons appear responsible for the commission of a crime.
However, the moment he finds one to be so liable, it becomes his inescapable
duty to charge him therewith and to prosecute him for the same. In such a
situation, the rule loses its discretionary character and becomes mandatory
(Metropolitan Bank and Trust Company v. Rogelio Reynaldo and Jose C.
Adrandea, G.R. No. 164538, August 9,2010).
If despite the sufficiency of the evidence before the prosecutor, he
refuses to file the corresponding information against the person responsible,
he abuses his discretion. His act is tantamount to a deliberate refusal to
perform a duty enjoined by law. The Secretary of Justice, on the other hand,
would gravely abuse his discretion when, despite the existence of sufficient
evidence for the crime as acknowledged by the investigating prosecutor, he
completely ignored the latter's finding and proceeded with the questioned
resolution anchored on purely evidentiary matters in utter disregard of the
concept of probable cause. To be sure, findings of the Secretary of Justice are
not subject to review unless shown to have been made with grave abuse but a
case like this calls for the application of an exception (Metropolitan Bank and
Trust Company v. Rogelio Reynaldo and Jose C. Adrandea, G.R. No. 164538,
August 9,2010).
2. "Generally, a public prosecutor is afforded a wide latitude of
discretion in the conduct of a preliminary investiga
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PRELIMINARY CONSIDERATIONS
21
tion. By way of exception, however, judicial review is allowed where
respondent has clearly established that the prosecutor committed grave abuse
of discretion, that is, when he has exercised his discretion in an arbitrary,
capricious, whimsical or despotic manner by reason of passion or personal
hostility, patent and gross enough as to amount to an evasion of a positive duty
or virtual refusal to perform a duty enjoined by law" (Metropolitan Bank and
Trust Company v. Rogelio Reynaldo and Jose C. Adrandea, G.R. No. 164538,
August 9,2010).
II. CRIMINAL JURISDICTION OF COURTS
A. Criminal Jurisdiction of the Municipal
Trial Court, Municipal Circuit Trial Court, and Metropolitan Trial Court (MTC)
Except in cases falling within the exclusive original jurisdiction of the
Regional Trial Court and of the Sandiganbayan, the MTC shall exercise the
following criminal jurisdiction:
1. Exclusive original jurisdiction over all violations of city or municipal
ordinances committed within their respective territorial jurisdiction (Batas
Pambansa Big. 129, Section 3211); Republic Act No. 7691);
2. Exclusive original jurisdiction over all offenses punishable with
imprisonment not exceeding six (6) years irrespective of the amount of fine,
and regardless of other im- posable or accessory penalties, including the civil
liability arising from such offenses irrespective of kind, nature, value or amount
(B.P. 129, Sec. 32[2]; R.A. 7691);
This rule disregarding the amount of the fine and other accessory
penalties in determining jurisdiction applies where the offense is punishable by
imprisonment or fine or both but not when the offense is punishable by fine
only.
Note that the jurisdiction of the MTC is qualified by the phrase "Except in
cases falling within the exclusive jurisdiction of the Regional Trial Court and
of the SandiganbayanThis indicates that the MTC does not at all times have
jurisdiction
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION
over offenses punishable with imprisonment not exceeding six (6) years if
jurisdiction is vested by law either in the RTC or Sandiganbayan.
Based on Article 27 of the Revised Penal Code, the MTC has jurisdiction
over offenses punishable by up to the maximum of prision correccional which
shall not exceed six (6) years. There are however, offenses which even if
punishable by prision correccional are not cognizable by the MTC because of
an express provision of law like libel as defined in Article 355 of the Revised
Penal Code. Under this provision, libel by means of writings or similar means
shall be punishable by prision correccional in its minimum and medium
periods or a fine ranging from P200 to P6,000 pesos or both. Nevertheless,
under Article 360 of the Revised Penal Code, the criminal action as well as the
civil action for such offense shall be filed simultaneously or separately with the
CFI (now RTC).
Also, some forms of direct bribery under Article 210 of the Revised Penal
Code which are punishable by prision correccional in its medium period, are
within the exclusive jurisdiction of the Sandiganbayan pursuant to Sec. 4(a) of
P.D. 1606 as amended. Indirect bribery, a felony punishable by prision
correccional in its medium and maximum periods under Article 211 of the
Revised Penal Code are likewise cognizable by the Sandiganbayan pursuant to
Sec. 4(a) of P.D. 1606 as amended.
3.
Where the only penalty provided for by law is a fine, the amount
thereof shall determine the jurisdiction of the court under the original
provisions of B.P. 129 (Sec. 32[2]) which provided that the MTC shall have
exclusive original jurisdiction over offenses punishable with a fine of not more
than Four Thousand (P4,000.00) Pesos;
4. Exclusive original jurisdiction over offenses involving damage to
property through criminal negligence (B.P. 129, Sec. 32[2]; RA. 7691);
5. Violations of B.P. 22 (Bouncing Checks Law) (A.M. No.
00-11-01-SC, March 25,2003);
CHAPTER I
PRELIMINARY CONSIDERATIONS
6.
Summary procedure in the following cases:
a. Violations of traffic laws, rules and regulations,
violations of the rental law; and violations of municipal
or city ordinances;
b. All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment
not exceeding six months, or a fine not exceeding one
thousand pesos (PI,000.00), or both, irrespective of other
imposable penalties, accessory or otherwise, or of the civil liability arising therefrom;
c.
Offenses involving damage to property through
criminal negligence where the imposable fine does not
exceed ten thousand pesos P10,000.00 (The 1991 Rule on
Summary Procedure [Sec. IB]).
7. Special jurisdiction to decide on applications for bail
in criminal cases in the absence of all RTC judges in a province
or city (B.P. 129 [Sec. 35]).
B. Criminal Jurisdiction of Regional
Trial Court (RTC)
1. Exclusive original jurisdiction in all criminal cases
not within the exclusive jurisdiction of any court, tribunal or
body, except those now falling under the exclusive and concurrent jurisdiction of the Sandiganbayan (B.P. 129 [Sec. 20]);
2. Appellate jurisdiction over all cases decided by the
MTC within its territorial jurisdiction (B.P. 129 [Sec. 22]);
3. Special jurisdiction to handle exclusively criminal
cases as designated by the Supreme Court (B.P. 129 [Sec. 23]);
4. Jurisdiction over criminal cases under specific laws
such as:
(a) Written defamation (Art. 360, Revised Penal
Code);
(b) Jurisdiction of designated courts over cases in
violation of the Comprehensive Dangerous Drugs Act of
2002 {RA. No. 9165) as provided under Sec. 90 thereof;
23
24
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION
(c) Violations of intellectual property rights [A.M. No. 03-03-03-SC
2003-06-17, Effective July 1, 2003 implementing the Intellectual
Property Code of the Philippines [R A. 8293]).
The public prosecutor has the authority to file a criminal information for
violation of Presidential Decree (P.D.) 957 and the Regional Trial Court has the
power to hear and adjudicate the action, the penalty being a P20,000.00 fine
and imprisonment of not exceeding 10 years or both such fine and
imprisonment. This penalty brings the offense within the jurisdiction of the
Regional Trial Court (Victoria P. Cabral v. Jacinto Uy, et al, G.R. No. 174584,
January 22,2010).
5. Jurisdiction in Money Laundering Cases. — The Regional Trial Courts
shall have jurisdiction to try all cases on money laundering. Those committed
by public officers and private persons who are in conspiracy with such public
officers shall be under the jurisdiction of the Sandiganbayan (Sec. 5, RA. 9160,
Anti-Money Laundering Act of2001).
C. Criminal Jurisdiction of the Sandiganbayan (PJ). 1606, RA. 7975
and RA. 8249)
1. The jurisdiction of the Sandiganbayan is set by P.D. 1606 as
amended and not by R.A. 3019 or the Anti-Graft and Corrupt Practices Act as
amended (Serana v. Sandiganbayan, G.R. No. 162059, January 22,2008).
2. The applicable law provides:
u
Section 4. Jurisdiction — The Sandiganbayan shall exercise original
jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise
known as the Anti-Graft and Corruption Practices Act, and Republic Act
No. 1379, and Chapter II, Section 2, Title VII, Book II of the Revised Penal
Code, where one or more of the accused are officials occupying the
following positions in the government, whether in a permanent, acting
or interim capacity, at the time of the commission of the offense:
(italics supplied)
CHAPTER I
PRELIMINARY CONSIDERATIONS
25
(1) Officials of the executive branch occupying the
positions of regional director and higher, otherwise classified as
Grade "27" and higher of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758), specifically
including:
(a) Provincial governors, vice-governors, members
of the sangguniang panlalawigan, and provincial
treasurers, assessors, engineers, and other provincial
department heads;
(b) City mayors, vice-mayors, members of the
sangguniang panlungsody city treasurer, assessors,
engineers, and other city department heads;
(c) Officials of the diplomatic service occupying the
position of consul and higher;
(d) Philippine army and air force colonels, naval
captains, and all officers of higher rank;
(e) Officers of the Philippine National Police while
occupying the position of provincial director and those
holding the rank of senior superintendent or higher;
(f) City and provincial prosecutors and their
assistants, and officials and prosecutors in the Office of the
Ombudsman and special prosecutor;
(g) Presidents, directors or trustees, or managers of
government-owned or controlled corporations, state
universities or educational institutions or foundations (Note:
See People v. Morales, G.R. No. 166355, May 30,2011).
(2) Members of Congress and officials thereof classified as
Grade "27" and up under the Compensation and Position
Classification Act of 1989;
(3) Members of the judiciary without prejudice to the
provisions of the Constitution;
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UPDATED EDITION
(4) Chairmen and members of Constitutional
Commissions, without prejudice to the provisions of the
Constitution; and
(5) All other national and local officials classified as Grade
"27" and higher under the Compensation and Position
Classification Act of 1989.
b. Other offenses or felonies whether simple or complexed
with other crimes committed by the public officials and employees
mentioned in subsection "a" of this section in relation to their office.
c.
Civil and criminal cases filed pursuant to and in connection
with Executive Order Nos. 1, 2, 14 and 14-A, issued in 1986. Note: The
Sandiganbayan also exercises civil jurisdiction (Antiporda v.
Garchitorena, 321 SCRA 551).
"In cases where none of the accused are occupying positions
corresponding to Salary Grade '27' or higher, as prescribed in the said
Republic Act No. 6758, or military and PNP officers mentioned above,
exclusive original jurisdiction thereof shall be vested in the proper
regional trial court, metropolitan trial court, municipal trial court, and
municipal circuit trial court, as the case may be, pursuant to their
respective jurisdictions as provided in Batas Pambansa Big. 129, as
amended.
"The Sandiganbayan shall exercise exclusive appellate jurisdiction
over final judgments, resolutions or orders of regional trial courts
whether in the exercise of their own original jurisdiction or of their
appellate jurisdiction as herein provided.
"The Sandiganbayan shall have exclusive original jurisdiction over
petitions for the issuance of the writs of mandamus, prohibition,
certiorari, habeas corpus, injunctions, and other ancillary writs and
processes in aid of its appellate jurisdiction and over petitions of similar
nature, including quo warranto, arising or that may arise in cases filed or
which may be filed under Executive
CHAPTER I
PRELIMINARY CONSIDERATIONS
Order Nos. 1, 2, 14 and 14-A, issued in 1986: Provided,
That the jurisdiction over these petitions shall not be exclusive of the Supreme Court.
"The procedure prescribed in Batas Pambansa Big.
129, as well as the implementing rules that the Supreme
Court has promulgated and may hereafter promulgate,
relative to appeals/petitions for review to the Court of
Appeals, shall apply to appeals and petitions for review
filed with the Sandiganbayan. In all cases elevated to the
Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman through its
special prosecutor, shall represent the People of the Philippines except in cases filed pursuant to Executive Order
Nos. 1, 2,14 and 14-A, issued in 1986.
"In case private individuals are charged as co-principals, accomplices or accessories with the public officers
or employees, including those employed in governmentowned or controlled corporations, they shall be tried
jointly with said public officers and employees in the
proper courts which shall exercise exclusive jurisdiction
over them."
xxx
3. Prior to R.A. 8249, the law which governed the
jurisdiction of the Sandiganbayan was R.A. 7975 amending P.D. 1606.
R.A. 7975 conferred jurisdiction on the Sandiganbayan
over certain specified offenses "where one or more of the principal accused" are officials occupying the positions enumerated in the law. A significant amendment introduced by R.A.
8249 was the removal of the word principal before the word
accused thus transforming the phrase to read: "where one or
more of the accused" (Sec. 4[a]ofP.D. 1606 as amended). Thus,
as the law is now written, one of the accused no longer has to
be a principal accused and may simply be an accomplice or an
accessory. Also, not all of the accused need be those officials
mentioned in the said law. It is sufficient that at least one of
them be an official occupying any of the positions enumerated.
27
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Offenses subject to the jurisdiction of the Sandiganbayan (Bar 1997)
1. The phraseology of the governing law discloses that the jurisdiction of
the Sandiganbayan is not confined to violations of the Anti-Graft and Corrupt
Practices Act. Specifically, the following offenses are subject to the jurisdiction
of the Sandiganbayan:
a. Violations of Republic Act No. 3019 as amended, otherwise
known as the Anti-Graft and Corrupt Practices Act (Section 4[a] of
Presidential Decree 1606 as amended).
b. Violations of Republic Act No. 1379 or otherwise known as
the Act Declaring Forfeiture in Favor of the State Any Property Found to
Have Been Unlawfully Acquired by Any Public Officer or Employee (Sec.
4[a] of P.D. 1606 as amended).
c.
Violations of Chapter II, Section 2, Title VII, Book II of the
Revised Penal Code (Sec. 4[a] ofP.D. 1606 as amended). These
offenses refer to the law on bribery in all its forms including corruption of
public officers (Articles 210-212, Revised Penal Code).
d. Other offenses or felonies (aside from the above), whether
simple or complexed with other crimes, committed by public officials
mentioned in letter "a" of Sec. 4 in relation to their office (Please refer to
the enumeration of these officials earlier made under the topic
'Criminal jurisdiction of the Sandiganbayan' above).
The terms "offenses or felonies" in letter "d" above are so broad in
meaning and are not restricted to the laws earlier mentioned. These
offenses however, must be those committed by officials *in relation to
their office."
Thus, in Serana v. Sandiganbayan, G.R. No. 162059, January 22,
2008, the Court declared in no uncertain terms, that the Sandiganbayan
has jurisdiction over felonies committed by public officials in relation to
their office. The court further held that estafa is one of those
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PRELIMINARY CONSIDERATIONS
felonies and the Sandiganbayan has jurisdiction if (a) the
offense is committed by a public official or an employee
mentioned in Sec. 4, paragraph "a;" and (b) the offense is
committed in relation to his office.
In another case, the accused argues that the crime of
falsification as defined under Articles 171 and 172 of the
RPC is not within the jurisdiction of the Sandiganbayan.
He also points out that nowhere under Sec. 4 of Presidential Decree No. 1606, R.A. 3019, R.A. 1379, or in Title VII,
Book II of the RPC is "falsification of official document"
mentioned. The Court struck down the argument and
ruled that falsification of public document under the RPC
is within the jurisdiction of the Sandiganbayan (Pactolin
v. Sandiganbayan, G.R. No. 161455, May 20,2008).
e. Civil and criminal offenses filed pursuant to
and in connection with Executive Order Nos. 1, 2,14 and
14-A issued in 1986 (Sec. 4[c] P.D. 1606 as amended).
These executive orders refer to orders on sequestration
cases.
Officials and employees with a salary grade of "27" or higher
1. Should one or more of the officials charged have a
salary grade of "27" or higher for the Sandiganbayan to have
jurisdiction over the case? It is submitted that the query be
answered in the negative. The law mentions salary grade "27"
only in relation to the following officials:
(a) Officials of the executive branch, occupying the
position of regional director and higher (Section 4[a][l]);
(b) Members of Congress or officials thereof (Section 4[a][2J); and
(c) All other national and local officials (Section
4[a][5]). These officials are those who are not enumerated
in letters "a" to "g" of Sec. 4(a)(1).
The salary grade of "27" has no reference for example to
provincial governors, vice governors or members of the sangguniang panlalawigan, sangguniang panlunsod, directors or
29
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managers of government-owned or controlled corporations, city mayors, vice
mayors, city treasurers, assessors, engineers, trustees of state universities, and
other officials enumerated in Section 4(a) (l)from letters "a" to "g" of
Presidential Decree 1606 as amended.
Those enumerated are subject to the jurisdiction of the Sandiganbayan
regardless of salary grade (Inding v. Sandiganbayan, 434 SCRA 388). Thus, if
the accused does not belong to the national and local officials enumerated, in
order for the Sandiganbayan to acquire jurisdiction over the offense, the
same must be committed by officials classified as Grade 27 and higher, aside
from other officials, expressly covered.
2. Instructive is the ruling of the Court in Inding:
"Clearly, therefore, Congress intended these officials regardless of
their salary grades, to be specifically included within the
Sandiganbayan's original jurisdiction, for had it been otherwise, then
there would have been no need for such enumeration (italics supplied).
xxx
"This conclusion is further bolstered by the fact that some of the
officials enumerated in "a" to "g" are not classified as SG 27 or higher
under the x x x Position Titles and Salary Grades of the Department of
Budget and Management x x x."
Officers falling below salary grade "27"
1. Geduspan v. People, 451 SCRA 187, raised the issue on whether or
not the Sandiganbayan has jurisdiction over a regional director/manager of
government-owned or controlled corporations organized and incorporated
under the Corporation Code for purposes of R.A. 3019, the Anti-Graft and
Corrupt Practices Act. The petitioner assumed a negative view in a petition for
certiorari under Rule 65 filed with the Supreme Court. The Office of the Special
Prosecutor argued otherwise, a view shared by the Sandiganbayan.
CHAPTER I
PRELIMINARY CONSIDERATIONS
31
The records showed that, although the petitioner was a Director of
Region VI of the Philhealth, she was not occupying the position of Regional
Director but that of Department Manager A in accordance with her
appointment papers. It is petitioner's appointment paper, held the Court and
the notice of salary adjustment that determine the classification of her position,
that is, Department Manager A of Philhealth.
The petitioner admitted that she holds the position of Department
Manager A of Philhealth. She, however, contended that the position of
Department Manager A is classified under salary grade 26 and therefore
outside the jurisdiction of respondent court. The Court found that the
petitioner held the position of Department Director A of Philhealth at the time
of the commission of the offense and that position is among those enumerated
in paragraph 1(g), Section 4a of R.A. 8249 over which the Sandiganbayan has
jurisdiction and which provision includes "Presidents, directors or trustees, or
managers of government-owned and controlled corporations, state
universities or educational institutions or foundations" (italics supplied).
It is of no moment, added the Court, that the position of petitioner was
merely classified as salary grade 26. While the first part of Sec. 4 of P.D. 1606
covers only officials of the executive branch with the salary grade 27 and higher,
the second part thereof "specifically includes" other executive officials whose
positions may not be of grade 27 and higher but who are by express provision
of law placed under the jurisdiction of the said court.
2. In a relatively recent case, a member of the Sangguniang Panlungsod
of a city was charged for allegedly criminally failing to liquidate certain cash
advances he made in violation of the Auditing Code of the Philippines.
The core issue raised in this case of People of the Philippines v.
Sandiganbayan, G.R. No. 169004, September 15, 2010, was whether or not
the Sandiganbayan has jurisdiction over a member of the Sangguniang
Panlungsod whose salary grade is below 27 and charged with violation of The
Auditing
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UPDATED EDITION
Code of the Philippines. The Court held in the affirmative, citing the provisions of R.A. 8249 and
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.
In resolving the issue in favor of the People, the Court explained:
"Particularly and exclusively enumerated are provincial governors,
vice-governors, members of the sang- guniang panlalawigan, and provincial
treasurers, assessors, engineers, and other provincial department heads; city
mayors, vice-mayors, members of the sangguniang panlungsod, city treasurers,
assessors, engineers, and other city department heads; officials of the diplomatic
service occupying the position as consul and higher, Philippine army and air force
colonels, naval captains, and all officers of higher rank; PNP chief superintendent
and PNP officers of higher rank; City and provincial prosecutors and their
assistants, and officials and prosecutors in the Office of the Ombudsman and
special prosecutor; and presidents, directors or trustees, or managers of government-owned or controlled corporations, state universities or educational
institutions or foundations. In connection therewith, Section 4 (b) of the same law
provides that other offenses or felonies committed by public officials and
employees mentioned in subsection (a) in relation to their office also fall under
the jurisdiction of the Sandiganbayan" (People of the Philippines v.
Sandiganbayan and Rolando Plaza, G.R. No. 169004,
September 15,2010).
3. The earlier case of People v. Sandiganbayan, G.R. No. 167304, August
25, 2009, was decided under facts substantially similar to those in the other case of People
v. Sandiganbayan cited in the immediately preceding number.
The issue presented to the Court for resolution in the case involving the respondent was
whether or not a member of the Sangguniang Panlungsod under salary grade 26 who
was charged with violation of the Auditing Code of the Philippines for failure to liquidate cash
advances falls within the juris
CHAPTER I
PRELIMINARY CONSIDERATIONS
33
diction of the Sandiganbayan. Earlier, the Sandiganbayan dismissed the case
against the accused for lack of jurisdiction without prejudice to the filing of the
case in the proper court. The People sought to have the dismissal reversed and
set aside by the Supreme Court.
Those that are classified as grade 26 and below may still fall within the
jurisdiction of the Sandiganbayan provided they hold the position enumerated
in the law. As in the other case, the Court held that Section 4 (b) of the same
law provides that other offenses or felonies committed by public officials and
employees mentioned in subsection (a) in relation to their office also fall under
the jurisdiction of the Sandiganbayan.
Thus, "x x x those public officials enumerated in Sec. 4(a) of PD1606 as
amended may not only be charged with violations of R.A. 3019 (Anti-graft and
Corrupt Practices Act), R.A. 1379 or Chapter II, Section 2, Title VII of the Revised
Penal Code, but also with offenses or felonies in relation to their office. The said
other offenses and felonies are broad in scope but are limited only to those
that are committed in relation to the public official or employee's office, x x x as
long as the offense charged in the information is intimately connected with the
office and is alleged to have been perpetrated while the accused was in the
performance x x x of his official functions x x x the accused is held to have
been indicted in relation to his office" (People v. Sandiganbayan, G.R. No.
167304, August 25,2009).
Salary grade alone does not determine jurisdiction of the Sandiganbayan
It is not only the salary grade that determines the jurisdiction of the
Sandiganbayan. The Sandiganbayan also has jurisdiction over other officers
enumerated in P.D. 1606 as amended. While the first part of Sec. 4(a) of the
law covers only officials with salary grade 27 and higher, its second part
specifically includes other executive officials whose positions may not be with
salary grade 27 or higher but who are by express provision of the law placed
under the jurisdiction of
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UPDATED EDITION
said court (Geduspan v. People, G.R. No. 158187, February 11, 2005; Serana
v. Sandiganbayan, G.R. No. 162059, January 22, 2008; People u.
Sandiganbayan, G.R. No. 169004, September 15,2010).
A student regent of a state university is a public officer
The petitioner in one case contended that the Sandiganbayan has no
jurisdiction over her person. As a student regent she claimed she was not a
public officer since she merely represented the students of the institution, in
contrast to the other regents who held their positions in an ex officio capacity.
She added that she was just a simple student and did not receive any salary as
a student regent and thus could not fall under any salary grade.
The argument that she was not a public officer was struck down by the
Court. The petitioner is a public officer whose position is covered by the law
vesting jurisdiction over the Sandiganbayan. The provisions of Sec. 4(a)(1)(g)
of P.D. 1606 as amended, explicitly vested the Sandiganbayan with jurisdiction over Presidents, directors or trustees, or managers of government-owned
or controlled corporations, state universities or educational institutions or
foundations. The petitioner, as a student regent falls under this category. The
board of Regents of the University of the Philippines performs functions similar
to those of a board of trustees of a non-stock corporation. By express mandate
of the law, the petitioner declared the Court, is a public officer as
contemplated by P.D. 1606. The Court added that compensation is not an
essential element of a public office and is merely incidental to the public office
(Serana v. Sandiganbayan, G.R. No. 162059, January 22,2008).
Offenses committed in relation to the office
1. As a rule, to make an offense one committed in relation to the office,
"the relation has to be such that, in the legal sense, the offense cannot exist
without the office." In other words, the office must be a constituent element of
the crime as defined by statute, such as for instance, the crimes defined
CHAPTER I
PRELIMINARY CONSIDERATIONS
35
and punished in Chapter Two to Six, Title Seven of the Revised Penal Code
{Montilla v. Hilario, 90 Phil. 49), like direct bribery, frauds against the public
treasury, malversation of public funds and property, failure of an accountable
officer to render accounts, illegal use of public funds or property or any of the
crimes from Articles 204 to 245 of the Revised Penal Code.
2. Public office is not an element of the crime of murder, since
murder may be committed by any person whether a public officer or a private
citizen (Cunanan v. Arceo, 242 SCRA 88). Public office is not the essence of
murder. The taking of human life is either murder or homicide whether done
by a private citizen or public servant (Montilla v. Hilario, 90 Phil. 49).
There is also no direct relation between the commission of the crime of
rape with homicide and the office as municipal mayor because public office is
not an essential element of the crime charged. The offense can stand
independently of the office (Sanchez v. Demetriou, 227 SCRA 627).
3. However, even if the position is not an essential ingredient of the
offense charged, if the information avers the intimate connection between the
office and the offense, this would bring the offense within the definition of an
offense "committed in relation to the public office" (Sanchez v. Demetriou,
227 SCRA 627).
4. An offense maybe said to have been committed in relation to the
office if the offense is "intimately connected" with the office of the offender
and perpetrated while he was in the performance of his official functions even
if public office is not an element of the offense charged. It is important
however, that the information must allege the intimate relation between the
offense charged and the discharge of official duties because the factor that
characterizes the charge is the actual recital of the facts in the complaint or
information. If the information lacks the required specific factual averments to
show the intimate connection between the offense charged and the discharge
of official functions, it was ruled that the
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UPDATED EDITION
Sandiganbayan is without jurisdiction over the case (Esteban v.
Sandiganbayan, 453 SCRA 236; People v. Montejo 108 Phil. 613).
5.
In Esteban v. Sandiganbayan, 453 SCRA 236, the accused filed
motions to quash the two informations filed against him for acts of
lasciviousness allegedly perpetrated by him against a female casual employee
assigned to his office. The accused argued that the Sandiganbayan has no
jurisdiction over the offense charged since the alleged acts imputed to him
were not committed in relation to his office as a judge. When the motion to
quash and the subsequent motion for reconsideration were denied, he
brought the issue of jurisdiction before the Supreme Court on certiorari under
Rule 65. The Supreme Court sustained the Sandiganbayan because the
information alleged with clarity that the accused used his official position to
commit the acts charged. As alleged in the information, the victim was
constrained to approach the accused because it was the latter whose
recommendation was necessary for her appointment as a casual employee
but the accused imposed the condition that she has to become his girlfriend
first and report to his office daily for a kiss. While it is true, explained the Court,
that public office is not an element of the crime of acts of lasciviousness,
nonetheless, he could not have committed the crimes charged were it not for
his being the judge of the court where the victim was working. Taken together
with the fact that the accused had the authority to recommend the
appointment of the victim as an employee, the crimes committed were
therefore, intimately connected with his office.
6. In the much earlier but significant and frequently cited case of
People v. Montejo, 108 Phil. 613, involving a city mayor accused of murder,
one issue sought to be resolved was whether or not the accused committed
the murder in relation to his office. Examining the allegations in the
information, the Court found that the information sufficiently indicated the
existence of acts and events intimately connected to the public office of the
accused. The information clearly alleged that the murder was a consequence
of his act as a mayor;
CHAPTER I
PRELIMINARY CONSIDERATIONS
37
that he organized armed patrols and civilian commandos and provided them
with arms. Also acting as the city mayor and leader of the patrols, he ordered
the arrest and maltreatment of the victim who died as a consequence. While
public office is not an element of murder, the offense as alleged shows its
commission while the accused was in the performance of his official functions
and that the offense could not have been committed had he not held his office.
Public office is not, of course, an element of the crime of murder, since
murder may be committed by any person. However, the averments of the
information could bring the offense within the meaning of an "an offense
committed in relation to the public office'' and thus, the offense would fall
within the jurisdiction of the Sandiganbayan (Cunanan v. Arceo, 242 SCRA
89).
7. The previously cited cases require that the information must contain
the specific factual allegations that would indicate the close intimacy between
the discharge of the official duties of the accused and the commission of the
offense charged, in order to qualify the crime as having been committed in
relation to public office.
This requirement however, was not met in Lacson v. Executive
Secretary, 301 SCRA 298. While the amended information for murder against
the several accused was alleged to have been committed "in relation to their
official duties as police officers," it contained no specific allegations of facts that
the shooting of the victim was intimately related to the discharge of the official
functions of the accused.
Lacson held that the said phrase is not what determines the jurisdiction
of the court. What is controlling is the specific factual allegations in the
information.
Declared the Court in lucid terms:
"The stringent requirement that the charge be set forth with such
particularity as will reasonably indicate the exact offense which the accused is
alleged to have committed in relation to his office was, sad to say, not
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UPDATED EDITION
satisfied. We believe that the mere allegation in the
amended information that the offense charged was
committed x x x in relation to his office is not sufficient.
The phrase is merely a conclusion of law, not a factual
averment that would show the close intimacy between the
offense charged and the discharge of the accused's official
duties."
xxx
When the actual specific allegations of the intimacy between
the offense and the official duties of the accused need not
appear in the information
1. It would appear from a reading of jurisprudence that
if public office is a constituent element of the crime charged as
provided for by statute, there is no need for the information
to state the specific factual allegations of the intimacy
between the office and the crime charged, or that the accused
committed the crime in the performance of his duties. These
crimes are those in which the public office is a constituent
element as defined by statute and the relation between the
crime and the offense is such that, in a legal sense, the offense
committed cannot exist without the office like malversation
of public funds or property defined and penalized by Article
217 of the Revised Penal Code, and the illegal use of public
funds or property defined and penalized by Article 220 of the
same Code. In these felonies, public office of the accused is a
constituent element in both felonies.
2.
In those cases where public office is not a constituent
element of the offense charged, the information has to contain
specific factual allegations showing the intimate connection
between the offense charged and the public office of the accused,
and the discharge of his official duties or functions — whether
improper or irregular. The requirement is not complied with if
the information merely alleges that the accused committed the
crime charged in relation to his office because such allegation
is merely a conclusion of law (Barriga v. Sandiganbayan, G.R.
Nos. 161784-86, April 26,2005; Escobal v. Garchitorena, 422
SCRA 45).
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PRELIMINARY CONSIDERATIONS
Barriga further elucidates:
"x x x There are two classes of public office-related
crimes under subparagraph (b) of Section 4 of Rep. Act
No. 8249: first, those crimes or felonies in which the public office is a constituent element as defined by statute
and the relation between the crime and the offense is such
that, in a legal sense, the offense committed cannot exist
without the office; second, such offenses or felonies which
are intimately connected with the public office and are
perpetrated by the public officer or employee while in the
performance of his official functions, through improper or
irregular conduct.
The Sandiganbayan has original jurisdiction over
criminal cases involving crimes and felonies under the
first classification. Considering that the public office of
the accused is by statute a constituent element of the
crime charged, there is no need for the Prosecutor to state
in the Information specific factual allegations of the intimacy between the office and the crime charged, or that
the accused committed the crime in the performance of
his duties. However, the Sandiganbayan likewise has
original jurisdiction over criminal cases involving crimes
or felonies committed by the public officers and employees enumerated in Section (a) (1) to (5) under the second
classification if the Information contains specific factual
allegations showing the intimate connection between the
offense charged and the public office of the accused, and
the discharge of his official duties or functions — whether
improper or irregular. The requirement is not complied
with if the Information merely alleges that the accused
committed the crime charged in relation to his office because such allegation is merely a conclusion of law."
3. In summary, an offense is deemed to be committed
in relation to the public office of the accused when, (a) such
office is an element of the crime charged, or (b) when the
offense charged is intimately connected with the discharge of
the official functions of the accused.
Even if the position is not an essential ingredient of the
offense charged, if the information avers the intimate connection between the office and the offense, this would bring the
39
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION
offense within the definition of an offense "committed in relation to the public
office."
Where the information averred facts showing that the accused took
advantage of his official functions as municipal mayor when he aimed his gun
and threatened to kill a councilor during a public hearing, clearly the crime
charged is intimately connected with the discharge of official functions (Alarilla
v. Sandiganbayan, 338 SCRA 485).
Anti-Money Laundering cases
Those money laundering cases committed by public officers and private
persons who are in conspiracy with such public officers shall be under the
jurisdiction of the Sandiganbayan (Sec. 5, RA. 9160, Anti-Money Laundering
Act of2001).
Forfeiture cases
A forfeiture case under R.A. 1379 arises out of a cause of action separate
and different from a plunder case, thus negating the notion that the crime of
plunder absorbs the forfeiture cases. In a prosecution for plunder, what is
sought to be established is the commission of the criminal acts in furtherance
of the acquisition of ill-gotten wealth. On the other hand, all that the court
needs to determine, by preponderance of evidence, under R.A. 1379 is the
disproportion of respondent's properties to his legitimate income, it being
unnecessary to prove how he acquired such properties (Garcia v.
Sandiganbayan, G.R. No. 171381, October 12,2009).
Summary procedure in criminal cases
1. The Metropolitan Trial Courts, the Municipal Trial Courts in Cities,
the Municipal Trial Courts and the Municipal Circuit Trial Courts shall have
jurisdiction over cases falling under summary procedure committed within
their jurisdiction (Sec. 1, The 1991 Rule on Summary Procedure).
2. The following cases are subject to summary procedure:
(a) Violations of traffic laws, rules and regulations;
CHAPTER I
PRELIMINARY CONSIDERATIONS
(b)
Violations of the rental law and BP 22;
(c)
Violations of municipal or city ordinances;
41
(d) All other criminal cases where the penalty prescribed by law
for the offense charged is imprisonment not exceeding six (6) months, or
a fine not exceeding one thousand pesos (PI,000.00), or both,
irrespective of other imposable penalties, accessory or otherwise, or of
the civil liability arising therefrom.
(e) Offenses involving damage to property through criminal
negligence where the imposable fine does not exceed ten thousand
pesos (P10,000.00) (Sec. 1[B], The 1991 Rule on Summary Procedure).
3. The filing of criminal cases under summary procedure may be
either by complaint or information. In Metro Manila and other chartered cities,
the filing shall be by information except when the offense is one which cannot
be prosecuted de officio (Sec. 11, The 1991 Rule on Summary Procedure).
The complaint or information shall be accompanied by the affidavits of
the complainant and his witnesses in such number of copies as there are
accused plus two (2) copies for the court's files. This requirement has to be
complied with within five (5) days from the filing of the case, otherwise the
same may be dismissed (Sec. 11, The 1991 Rule on Summary Procedure).
4. Should the court find no cause or ground to hold the accused for
trial, it shall order the dismissal of the case. If there is a ground to hold the
accused for trial, the court shall set the case for arraignment and trial. (Sec. 13,
The 1991 Rule on Summary Procedure).
5. Before conducting the trial, the court shall call the parties to a
preliminary conference during which the following may be done:
(a) entering into a stipulation of facts;
(b) considering the propriety of allowing the accused to enter a
plea of guilty to a lesser offense; or
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(c) taking up such other matters to clarify the issues and to ensure a
speedy disposition of the case (Sec.
14, The 1991 Rule on Summary Procedure).
6. If the accused refuses to stipulate or fails to do so, such refusal or
failure shall not prejudice the accused. Also, any admission of the accused
made during the preliminary conference must be reduced to writing and
signed by the accused and his counsel. If this requirement is not met, such
admission shall not be used against him (Sec. 14, The 1991 Rule on Summary
Procedure).
7. During the trial, an actual direct examination of the witnesses is
not required because the affidavits submitted shall constitute their direct
testimonies. The witnesses however, may be subjected to a
cross-examination, re-direct examination or re-cross examination.
Should the affiant fail to testify, his affidavit shall not be considered as
competent evidence for the party presenting the affidavit. However, the
adverse party may utilize the same for any admissible purpose (Sec. 15, The
1991 Rule on Summary Procedure).
8. The court is mandated not to order the arrest of the accused
except where the ground is his failure to appear when required by the court. If
he is arrested, he may be released on bail or on recognizance by a responsible
citizen acceptable to the court (Sec. 16, The 1991 Rule on Summary
Procedure).
9. Where a trial has been conducted, the court shall promulgate the
judgment not later than thirty (30) days after the termination of the trial (Sec.
17, The 1991 Rule on Summary Procedure).
Prohibited pleadings, motions and petitions in summary procedure (Bar
2004); civil and criminal cases
1. Motion to quash the complaint or information except if the ground is
lack of jurisdiction over the subject matter or failure to comply
with the barangay conciliation proceedings;
CHAPTER I
PRELIMINARY CONSIDERATIONS
43
2. Motion for bill of particulars;
3. Motion for new trial, or for consideration of a judgment, or for
reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings, affidavits or any
other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition against any
interlocutory order issued by the court; (Bar 2004)
8.
9.
10.
11.
12.
Motion to declare the defendant in default;
Dilatory motions for postponement;
Reply;
Third-party complaints;
Interventions (Sec. 19,1991 Rule on Summary Procedure)
III. SYNOPSIS OF THE CRIMINAL LITIGATION PROCESS
Initial contact with the criminal justice system
1. The criminal litigation process presupposes the prior commission of a
crime or at least the perception that a crime has been committed. There can
be no criminal action unless a crime is believed to have been committed.
When a crime is committed, there is an offender and generally, there is
a victim. The victim may be a private person who may be either a natural or a
juridical person. The crimes of homicide, murder or parricide for instance, are
crimes committed against a private individual and classified as crimes against
persons.
Crimes may however, also be committed against juridical or artificial
persons as when the offender commits theft or robbery against the property of
such juridical persons. Sometimes the offense is not committed against a
private
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UPDATED EDITION
person as when the offense is committed against public interest like
counterfeiting the great seal of the Government of the Philippine Islands or
committed against public order like rebellion, sedition or disloyalty of public
officers and employees. Crimes may be committed against national security
like treason and other related offenses. A crime may also be committed by the
mere possession of goods or things prohibited by law.
2. No matter how or against whom the offense is committed, the
mere commission of a crime does not automatically trigger the application of
the rules of criminal procedure. The rules come into operation only when acts
are initiated that would put the offender in contact with the law. This contact
with the law is normally effected when the criminal act is brought to the
attention of duly constituted authorities.
For instance, the offended party may file a written complaint before the
barangay or in proper cases a sworn complaint before the prosecuting arm of
the government. In certain cases, the aggrieved party may initiate the filing of a
complaint directly with the Municipal Trial Court. Contact with the law may
also occur when law enforcement officers search a place under the control of
the alleged offender and seize goods, articles or things found therein. This
initial contact may likewise happen when an offender is arrested in flagrante
delicto or by virtue of a "hot pursuit."
3. There are violations of laws or ordinances which require
compliance with the barangay conciliation proceedings originally provided for
under Presidential Decree 1508 and now under R.A. 7160 (Local Government
Code). Compliance with the procedure set by these proceedings will set in
motion the initial contact of the parties with the criminal justice system.
R.A. 7160 establishes the rule that the referral of a case to the Lupon for
conciliation or settlement is required before a complaint, petition or action is
filed in court. The invocation of judicial authority shall be allowed only if a
certification is issued by the proper barangay official that judicial intervention
may
CHAPTER I
PRELIMINARY CONSIDERATIONS
45
now be availed of because the desired conciliation or settlement was not
reached or when after a settlement previously forged was repudiated by a
party. With the certification to file action, the case is now said to be ripe for
filing in court.
4. Not all cases however, require barangay conciliation. In those
cases beyond the ambit of the barangay conciliation process or where for
instance, the penalty prescribed by law for the allege offense is at least four (4)
years, two (2) months and one (1) day, the rules on criminal procedure begin to
grind when a complaint in affidavit form is filed before an authorized officer for
the purpose of conducting a preliminary investigation, an inquiry aimed at
determining whether a crime has been committed and that the person
complained of is probably guilty thereof and hence, must be held for trial.
Under current rules, the filing of a complaint for the purpose of conducting the
requisite preliminary investigation is a way of instituting a criminal action.
After the required preliminary investigation has been completed, the
investigating prosecutor may either recommend the dismissal of the complaint
or the filing of an information in court with an accompanying resolution to that
effect prepared by the prosecutor. Such resolution is subject to further action
by a higher officer in the prosecution hierarchy without whose written
authority or approval no complaint or information may be filed or dismissed by
an investigating prosecutor. Such action may be further reviewed by the Secretary of Justice in accordance with the Rules of Court and existing DOJ rules on
appeal. The Secretary may reverse or modify the resolution of the provincial or
city prosecutor or of the chief state prosecutor.
5. There are cases which do not require a preliminary investigation
because the penalty is less than four (4) years, two (2) months and one (1) day.
In these cases, the complaint or information may be filed directly with the
Municipal Trial Court and such filing, pursuant to the Rules, is one of the recognized ways of instituting a criminal action. The Municipal Trial Court may
dismiss the same for lack of probable cause
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UPDATED EDITION
after an evaluation of the evidence consisting of the affidavits and other
supporting documents of the complainant and his witnesses or after following
the process required in the examination of the complainant and his witnesses.
If the court finds probable cause, the court shall issue a warrant of arrest or a
commitment order if the accused has already been previously taken into
custody although the judge may issue summons instead of a warrant of arrest
if the judge is satisfied that there is no necessity for placing the accused in
custody.
In places like Manila and other chartered cities which require that the
complaint be filed directly with the prosecutor, the said officer shall act on the
complaint based on the supporting affidavits and other supporting documents
submitted by the complainant and his witnesses. The prosecutor may either
dismiss the complaint or file the complaint or information in court.
6. The initial contact with the law may also occur when a person is
lawfully arrested without a warrant either by a peace officer or by a private
person. The arrest is deemed lawful when, for instance, the person arrested
has committed, was actually committing or was attempting to commit a crime
in the presence of the person effecting the arrest at the time the arrest was
made. The arrest is likewise lawful when the arrest was made after a crime has
just been committed and the person making the arrest has personal
knowledge of facts and circumstances which engenders in him a belief that
there is probable cause that the person to be arrested has committed the
offense. In any of the cited grounds for a warrantless arrest, the rule mandates
that the person arrested shall without delay be delivered to the nearest police
station or jail.
When the accused is lawfully arrested without a warrant, he shall not, as
a rule, undergo a preliminary investigation even if under the Rules, the offense
involves a penalty which normally would require such investigation. The
complaint or information may nevertheless, be filed by the prosecutor after an
inquest has been conducted. Where an inquest prosecutor is not available, the
complaint may be filed by the
CHAPTER I
PRELIMINARY CONSIDERATIONS
47
offended party or a peace officer directly with the court on the basis of the
affidavit of the party or arresting officer or person. Under existing rules of the
Department of Justice, the inquest prosecutor may, instead of filing the criminal
action, release the person for further proceedings. This occurs when for
instance, the prosecutor finds that the arrest made does not comply with the
rules on a valid arrest. The person arrested is then released to be notified later
on of a subsequent preliminary investigation.
The rule that a complaint or information may be filed against the person
lawfully arrested without need for a preliminary investigation is not absolute
because before such complaint or information is filed, the person arrested may
ask for a preliminary investigation after validly signing a waiver of the provisions
of Art. 125 of the Revised Penal Code. Notwithstanding the waiver, he may
apply for bail even before he is charged in court.
Even after the filing of the complaint or information, the rule allows the
person arrested to ask for a preliminary investigation within five (5) days from
the time he learns of the complaint or information being filed and with the
same right to adduce evidence in his defense.
7. The wheels of the criminal justice system could also start grinding
when law enforcement authorities are in possession of information on possible
criminal activities. The authorities may initiate a search and a seizure by virtue
of a search warrant duly issued. The search and seizure may also be conducted
without a warrant under well-recognized exceptions to the rule requiring a
warrant. When the search yields property or effects constituting a crime or
subjects of a crime or are means to commit a crime, the appropriate criminal
action shall be instituted.
Filing of the information or complaint and other processes
1. A criminal action is commenced by the filing of a complaint or an
information in court and shall be prosecuted
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UPDATED EDITION
under the control and direction of the public prosecutor although in special
cases, a private prosecutor may be authorized in writing by the chief of the
prosecution office or the regional state prosecutor to prosecute the case
subject to the approval of the court
2. The complaint or information is required by the Rules to be in writing.
The caption of a criminal case contains at least two names. The first name
refers to the party that brought the action and this party is denominated as the
"People of the Philippines." This is because a crime is deemed to have been
committed against the "People" and under whose name a crime must be
prosecuted. The second name refers to the person named as offender. He is
the party against whom the action is brought.
The complaint or information must state the name of the accused (or
under a fictitious name when his true name is alleged to be unknown), the
name of the offended party, the designation of the offense, the acts or
omissions constituting the offense, and the specific qualifying and aggravating
circumstances involved.
The complaint or information must also state the cause of the accusation
against the accused so he may know the offense for which he is charged and
also to enable the court to pronounce judgment. The cause of the accusation
necessarily includes the attendant qualifying and aggravating circumstances.
The date of the commission of the offense which need not be the precise date
unless the same is a material ingredient of the offense, shall be stated in the
complaint or information.
Implied institution of the civil action
1. When the criminal action is instituted, the civil action for the recovery
of the civil liability arising from the offense charged shall also be deemed
instituted with the criminal action. However, when the offended party waives
the civil action, reserves the right to institute the same separately or institutes
the civil action prior to the criminal action, the civil action is not deemed
instituted with the criminal action.
CHAPTER I
PRELIMINARY CONSIDERATIONS
49
2. Also not deemed instituted are those civil actions which although
may arise from the same acts constituting the offense charged, are
denominated as independent civil actions because they do not legally arise
from the offense charged and are independent sources of liability.
3. After the criminal action has been commenced, the separate civil
action arising from the offense, cannot be instituted until final judgment has
been entered in the criminal action. Also, if the criminal action is filed after the
civil action has already been instituted, the civil action shall be suspended in
whatever stage it may be found. Independent civil actions however, are not
suspended and shall proceed independently of the criminal action.
4. The suspension of the civil action when the criminal action is
commenced does not also apply to a situation which poses a prejudicial
question. Instead, it is the criminal action which may be suspended upon a
proper petition on the ground of the existence of a prejudicial question. This
question exists when the previously instituted civil action involves an issue
similar or intimately related to the issue raised in the subsequent criminal
action and the resolution of such issue determines whether or not the criminal
action may proceed.
Availment of provisional remedies
When the complaint or information is filed and the civil action arising
from the offense charged is properly instituted in accordance with the Rules,
the offended party may avail of the provisional remedies available in civil
actions. For instance, the offended party may have the property of the accused
attached as security for the satisfaction of any judgment that may be recovered
from the accused when circumstances arise justifying the attachment as when
the criminal action is based on a claim for money or property embezzled by the
accused.
Bail
1. A person under the custody of the law may gain his release from
confinement by availing of the constitutional right to bail which may be given in
the form of corporate
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UPDATED EDITION
surety, property bond, cash deposit, or recognizance. He may apply for bail
before or after he is formally charged and as a rule, the application shall be
made in the court where his case is pending but no bail shall be allowed after a
judgment of conviction has become final. If before such finality, the accused
applies for probation, he may be allowed temporary liberty under his bail.
2. It is not however, correct to assume that bail may be availed of
only after the filing of the complaint or information. A person in custody who is
not yet charged in court may apply for bail with any court in the province, city,
or municipality where he is held.
3. An application for bail shall not bar the accused from challenging
the validity of his arrest.
4. Bail may be a matter of right or a matter of judicial discretion. Even
a person charged with a capital offense may be allowed bail when evidence of
his guilt is not strong. That the evidence of guilt is strong is one which the
prosecution has the burden of proving.
Arraignment; bill of particulars; suspension of arraignment
1. Whether or not the accused is under detention or out on bail, the
court shall thereafter set the case for arraignment. Arraignment is the formal
mode and manner of implementing the constitutional right of an accused to
be informed of the nature and cause of the accusation against him. Without
arraignment, the accused is not deemed to have been informed of such
accusation. If before his arraignment, the accused escapes, the court has no
authority to try him in absentia.
2. The accused is to be arraigned before the court where the
complaint or information was filed or assigned for trial. It is made in open court
by the judge or clerk and consists of furnishing the accused with a copy of the
complaint or information and the reading of the same in a language he
understands. He is then asked whether he pleads guilty or not guilty.
3. During the date set for arraignment, the accused need not enter
his plea outrightly because before the arraign
CHAPTER I
PRELIMINARY CONSIDERATIONS
51
ment and plea the accused has several options. The accused may move for a
bill of particulars if there are defects in the information or complaint which
prevent him from properly pleading to the charge and preparingfor trial. He
may also move for the suspension of the arraignment when justifiable reasons
do exist for its suspension as when among others, the accused appears to be
suffering from an unsound mental condition which effectively renders him
unable to fully understand the charge against him and to plead intelligently
thereto. The accused may likewise, at any time before entering his plea, move
to quash, i.e., to dismiss the complaint or information.
Quashal of complaint or information
An accused may move to quash the complaint or information on any of
the grounds provided for by the Rules. For instance, he may move to quash on
the ground that the facts charged do not constitute an offense or that the court
trying the case has no jurisdiction over the offense charged or over the person
of the accused. A motion to quash is a written motion signed by the accused or
his counsel which is supposed to distinctly specify both its factual and legal
grounds. The motion is filed before the accused enters his plea. If the complaint
or information is not dismissed or quashed, and a subsequent plea of not guilty
is entered, the machinery of the criminal justice system shall proceed to its
natural course.
Pre-trial
1. After the arraignment of the accused and within thirty (30) days
from the date the court acquires jurisdiction over the accused, the court shall
order the mandatory trial conference to consider certain matters including plea
bargaining, stipulation of facts, the marking of the evidence, the waiver of
objections to admissibility, a possible modification of the order of the trial and
such other matters that will help promote a fair and expeditious trial of the
criminal and civil aspects of the case.
2. After the pre-trial conference, the court shall issue an order reciting
the actions taken, the facts stipulated and
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the evidence marked. The pre-trial order shall bind the parties, limit the trial to
matters not disposed of, and control the course of the action during the trial,
unless modified to prevent manifest injustice. All agreements or admissions
made or entered during the pre-trial conference shall be reduced in writing
and signed by the accused and counsel, otherwise, they cannot be used
against the accused.
Trial; demurrer
1. Within thirty (30) days from the receipt of the pretrial order, trial
shall commence. The rule is that once the trial is commenced, it shall continue
from day to day as far as practicable until terminated but it may be postponed
for a reasonable period of time for good cause.
2. Normally, the trial begins with the prosecution presenting its
evidence but when the accused admits the act or omission charged but
interposes a lawful defense, the order of trial may be modified.
3. When the prosecution rests its case, the accused may now
present his evidence to prove his defense and the damages he may have
sustained arising from any provisional remedy issued in the case. However, the
accused may, instead of presenting his evidence, opt to move to dismiss the
case by presenting a demurrer to evidence on the ground of insufficiency of
evidence. This demurrer may be presented with or without leave of court. The
court may, for the same reason, dismiss the case on its own initiative after
giving the prosecution the opportunity to be heard.
If the demurrer filed with leave of court is denied, the accused may
adduce evidence in his defense but shall waive the right to present evidence if
the demurrer to evidence filed without leave of court is denied.
The prosecution and the defense may, in the same order present
rebuttal and sur-rebuttal evidence. Upon admission of the evidence of the
parties, the case shall be deemed submitted for decision unless the court
directs them to argue orally or to submit written memoranda.
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PRELIMINARY CONSIDERATIONS
53
Judgment
1. After trial, the judgment of the court shall follow. A judgment is the
adjudication by the court on the guilt or innocence of the accused and the
imposition on him of the proper penalty and civil liability, if any. It is required to
be written in the official language, personally and directly prepared by the
judge and signed by him and shall contain clearly and distinctly a statement of
the facts and the law upon which it is based.
2. The judgment is promulgated by reading it in the presence of the
accused and any judge of the court in which it was rendered unless it is for a
light offense in which case the judgment maybe pronounced in the presence of
his counsel or representative.
Post-judgment remedies
1. Before the judgment of conviction becomes final or before an
appeal is perfected, the accused may file a motion for the modification of the
judgment or for the setting aside of the same.
2. Also, at any time before the judgment of conviction becomes final,
the accused may move for a new trial or a reconsideration. A motion for new
trial shall be predicated upon errors of law or irregularities during the trial and
the discovery of new or material evidence. Within the same period, a motion
for reconsideration may also be filed on the grounds of errors of law or fact in
the judgment. The court also may, on its own motion with the consent of the
accused, grant a new trial or reconsideration.
3. Before the finality of the judgment, the accused may also appeal
from a judgment of conviction in accordance with the procedure set forth in
the Rules. Notwithstanding the perfection of the appeal, the court may allow
the appellant, upon proper motion to withdraw the appeal already perfected
before the record has been forwarded by the clerk of court to the proper
appellate court. An appeal may even be withdrawn upon proper motion of the
appellant before the rendition of the
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UPDATED EDITION
judgment of the case on appeal in which case the judgment of the court of
origin shall become final and the case shall be remanded to the latter court for
execution of the judgment.
4. Cases decided by the Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court or the Municipal Circuit Trial Court shall be
appealed to the Regional Trial Court. Cases decided by the Regional Trial Court
shall be appealable either to the Court of Appeals or to the Supreme Court in
the proper cases provided for by law. Cases decided by the Court of Appeals or
the Sandiganbayan shall be appealable to the Supreme Court.
5. The appeal to the Regional Trial Court, or to the Court of Appeals in
cases decided by the Regional Trial Court in the exercise of its original
jurisdiction, shall be by notice of appeal filed with the court which rendered the
judgment or final order appealed from.
6. The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its appellate jurisdiction shall be by
petition for review under Rule 42.
7. The appeal in cases where the penalty imposed by the RTC is
reclusion perpetua or life imprisonment, shall be by notice of appeal to the
Court of Appeals in accordance with Rule 122. A review of the case by the
Court of Appeals is necessary before the same is elevated to the Supreme
Court.
8. Decisions and final orders of the Sandiganbayan shall be
appealable to the Supreme Court by petition for review on certiorari in
accordance with Rule 45 of the Rules of Court.
Entry of judgment
When all remedies have been exhausted and the judgment has become
final, the same shall be entered in accordance with existing rules.
- oOo -
Chapter II
PROSECUTION OF OFFENSES (Rule 110)
I. INSTITUTION OF CRIMINAL ACTIONS
Purpose of a criminal action
The purpose of a criminal action, in its purest sense, is to determine the
penal liability of the accused for having outraged the state with his crime and, if
he be found guilty, to punish him for it. In this sense, the parties to the action
are the People of the Philippines and the accused. The offended party is
regarded merely as a witness for the state (Heirs of Sarah Marie Palma
Burgos v. Court of Appeals, 169711, February 8, 2010).
How criminal actions are instituted (Bar 1999)
1. The institution of a criminal action generally depends upon
whether or not the offense is one which requires a preliminary investigation
(Sec. 1, Rule 110, Rules of Court).
Where a preliminary investigation is required, a criminal action is
instituted by filing the complaint with the proper officer for the purpose of
conducting the requisite preliminary investigation (Sec. 1, Rule 110, Rules of
Court).
2. Where a preliminary investigation is not required, a criminal action
is instituted in either of two ways:
(a) by filing the complaint or information directly
with the Municipal Trial Court and Municipal Circuit
Trial Court; or
55
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UPDATED EDITION
(b) by filing the complaint with the office of the
prosecutor (Sec. 1, Rule 110, Rules of Court).
Institution of criminal actions in Manila and other chartered cities
In Manila and other chartered cities, a special rule prevails. In these
places, the rule is that "the complaint shall be filed with the office of the
prosecutor unless otherwise provided in their charters" (Sec. 1, Rule 110,
Rules of Court).
No direct filing in the Regional Trial Court and Metropolitan Trial Court of
Manila and other chartered cities
1. There is no direct filing of an information or complaint with the
Regional Trial Court under Rule 110 because its jurisdiction covers offenses
which require preliminary investigation.
A preliminary investigation is to be conducted for offenses where the
penalty prescribed by law is at least four (4) years, two (2) months and one (1)
day (Sec. 1, Rule 112, Rules of Court). The Regional Trial Court has jurisdiction
over an offense punishable with imprisonment of more than six (6) years, a
period way above the minimum penalty for an offense that requires a
preliminary investigation. On the other hand the Municipal Trial Court has
exclusive jurisdiction over offenses punishable with imprisonment not
exceeding six (6) years (Sec. 32[2], Judiciary Reorganization Act of 1980 [B.P.
129]). Note: Please refer however, to the last sentence of the first
paragraph of Sec. 6 of Rule 112.
2. There is likewise no direct filing with the Metropolitan Trial Court
of Manila because in Manila, including other chartered cities, the complaint, as
a rule, shall be filed with the office of the prosecutor, unless otherwise
provided by their charters (Sec. 1, Rule 110, Rules of Court). Although in
Manila and other chartered cities the complaint shall be filed with the office of
the prosecutor, in case of a conflict between a city charter and a provision of
the Rules of Court, the former, being substantive law, shall prevail.
CHAPTER II
PROSECUTION OF OFFENSES
(Rule 110)
Effect of the institution of the criminal action on the prescriptive period (Bar 1993)
The present rule categorically provides that the "institution of the criminal action shall interrupt the period of
prescription of the offense charged unless otherwise provided
in special laws9 (Sec. 1, Rule 110, Rules of Court; italics supplied).
Since one way of instituting a criminal action is by filing a
complaint with the proper officer for the purpose of conducting
the requisite preliminary investigation for offenses where
a preliminary investigation is required (Sec. l[a], Rule 110,
Rules of Court), the filing of the complaint with the proper
officer for such purpose, would, under the Rules of Court,
interrupt the period of prescription. The exception is when a
different rule is provided for in special laws.
For offenses where a preliminary investigation is not
required, the filing of the information or complaint directly
with the Municipal Trial Courts and Municipal Circuit Trial
Courts, or with the office of the prosecutor, shall likewise
interrupt the period of prescription of the offense charged
because it is a mode by which a criminal action is instituted
under Sec. 1 of Rule 110, unless of course, there be a special
law which provides otherwise.
In Manila and other chartered cities, the filing of the
complaint with the office of the prosecutor shall also operate
to interrupt the period of prescription of the offense charged,
unless also provided otherwise in special laws.
Illustration of the above rules
1. One case which is illustrative of the rule on the effect
of the institution of the criminal action on the prescriptive
period of the offense charged is People v. Bautista, G.R. No.
168641, April 27, 2007, a case involving physical injuries.
Here, the Supreme Court did not agree with the view of the
Court of Appeals and of the respondent that upon approval of
the investigating prosecutor's recommendation for the filing of
57
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UPDATED EDITION
an information against respondent, the period of prescription began to run
again. It is a well-settled rule, declared by the Court, that the filing of the
complaint with the fiscal's office suspends the running of the prescriptive
period. The proceedings against respondent were not terminated upon the
City Prosecutor's approval of the investigating prosecutor's recommendation
that an information be filed with the court. The prescriptive period remains
tolled from the time the complaint was filed with the Office of the Prosecutor
until such time that respondent is either convicted or acquitted by the proper
court.
2. The issue as to when the prescriptive period of an offense is
interrupted has been the subject of various contending views interpreting
some laws relating to prescription particularly Articles 90 and 91 of the Revised
Penal Code and Act No. 3326 as amended.
3. The diversity of opinions started with the interpretation of Article
91 of the Revised Penal Code which partly provides:
"x x x The period of prescription shall commence to run . . .
and shall be interrupted by the filing of the complaint or
information..."
The early case of People v. Tayco, 73 Phil. 509, ruled that the
'complaint' or 'information' referred to in Art. 91 is the one filed in the proper
court and not the denuncia or accusation lodged by the offended party before
the fiscal's office or with the justice of the peace court for preliminary
investigation (See also People v. del Rosario, L-15140, December 29,1960;
People v. Coquia, L-15456, June 29, 1963 and cited in Francisco v. Court of
Appeals, 122 SCRA 538).
Arrayed against the ruling in Tayco are the opposite views expressed in
various decisions (People v. Uba, L-131106, October 16, 1959; People v.
Aquino, 68 Phil. 588) which consider the filing of the complaint before the
justice of the peace (municipal judge) for preliminary investigation as sufficient
to interrupt the prescriptive period for the offense.
CHAPTER II
PROSECUTION OF OFFENSES
(Rule 110)
59
Tayco was not followed in the subsequent case of People v. Olarte,
L-13027, June 30 1960, where the Court ruled that the filing of the complaint
with the justice of the peace for preliminary investigation interrupted the
running of the statute of limitations. In the other case of People v. Olarte, G.R.
No. L-22465, February 28,1967, the rule became more clear.
The Court in Olarte gave the following justifications for its ruling: First, the
words "shall be interrupted by the filing of the complaint or information," does
not distinguish whether the complaint is filed in court merely for preliminary
investigation or for "action on the merits;" Second, the filing of the complaint
for preliminary investigation already represents the initial step of the
proceedings against the offender; Third, it is unjust to deprive the injured party
of the right to obtain vindication on account of delays that are not under his
control.
The pronouncements in Olarte were subsequently confirmed in
Francisco v. Court of Appeals, 122 SCRA 538, to be the "true doctrine." Thus,
the filing of a denuncia or complaint for intriguing against honor, changed later
to grave oral defamation, even in the fiscal's office interrupts the period of
prescription. Quoting Olarte, the Court in Francisco held that after reexamining
the question and after mature consideration, the Court has arrived at the
conclusion that:
. .the true doctrine is, and should be, the one established by decisions
holding that the filing of the complaint in the Municipal Court, even if it be merely
for purposes of preliminary examination or investigation, should, and does
interrupt the period of prescription of the criminal responsibility, even if the court
where the complaint or information is filed cannot try the case on its merits."
Rule on prescription for violations of special laws and municipal ordinances
1. Act No. 3326 as amended, is the law which governs the period for
prescription for violations penalized by special acts and municipal ordinances.
Zaldivia v. Reyes, 211 SCRA 277, a case involving an offense punishable
by a municipal ordinance, held that when
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Act No. 3326 says that the period of prescription shall be suspended "when
proceedings are instituted against the guilty person," the proceedings referred
to are "judicial proceedings" and not administrative proceedings.
Accordingly, the prescriptive period in these cases is governed by Act No.
3326 and is interrupted only by the institution of judicial proceedings because
Sec. 2 of the law provides that prescription begins from the commission of the
crime or from the discovery thereof and the institution of judicial proceedings
for its investigation and punishment. Zaldivia further declared that if there be
a conflict between Act No. 3326 and Rule 110 of the Rules of Court, the latter
must yield because the Court, in the exercise of its rule-making power, is not
allowed to "diminish, increase or modify substantive rights" under the
Constitution and that"... Prescription in criminal cases is a substantive right."
2. Recent cases however, appear not to strictly adhere to the line toed
by Zaldivia in cases involving violations of special laws.
For instance, Sanrio Company Limited v. Lim, G.R. No. 168662,
February 19, 2008, a case involving a violation of the Intellectual Property
Code, a special law, ruled differently from Zaldivia.
The case involves as the petitioner, Sanrio Company Limited, a Japanese
corporation which owns the copyright of various animated characters such as
"Hello Kitty," "Little Twin Stars," "My Melody," "Tuxedo Sam" and
"Zashikibuta" among others. While it is not engaged in business in the
Philippines, its products are sold locally by its exclusive distributor, Gift Gate
Incorporated (GGI).
Sometime in 2001, due to the deluge of counterfeit Sanrio products, GGI
asked IP Manila Associates (IPMA) to conduct a market research. The
research's objective was to identify those factories, department stores and
retail outlets manufacturing and/or selling fake Sanrio items. After conducting
several test-buys in various commercial areas, IPMA confirmed
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that Respondent's Orignamura Trading in Tutuban Center, Manila was selling
imitations of petitioner's products. Upon application by the petitioner, a search
warrant was duly issued. On the same day the warrant was issued, agents of
the NBI searched the premises of Orignamura Trading and seized various
Sanrio products.
The petitioner, Sanrio filed a complaint-affidavit with the Task-Force on
Anti-Intellectual Property Piracy (TAPP) of the Department of Justice (DOJ)
against Respondent for violation of Section 217 (in relation to Sections 177 and
178) of the Intellectual Property Code (IPC). The TAPP dismissed the complaint
due to insufficiency of evidence.
The petitioner's subsequent motion for reconsideration was denied.
Hence, it filed a petition for review in the Office of the Chief State Prosecutor of
the DOJ. The Office of the Chief State Prosecutor affirmed the TAPP's resolution
and the petition was dismissed for lack of reversible error.
Aggrieved, the petitioner filed a petition for certiorari in the Court of
Appeals which likewise dismissed the petition among others, on the ground of
prescription. It based its action on Sees. 1 and 2 of Act 3326 which state:
Section 1. Violations penalized by special acts shall, unless otherwise
provided in such acts, prescribe in accordance with the following rules: (a) after a
year for offenses punished only by a fine or by imprisonment for not more than
one month, or both; (b) after four years for those punished by imprisonment for
more than one month, but less than two years; (c) after eight years for those
punished by imprisonment for two years or more, but less than six years; and (d)
after twelve years for any other offense punished by imprisonment for six years or
more, except the crime of treason, which shall prescribe after twenty years;
Provided, however, That all offenses against any law or part of law
administered by the Bureau of Internal Revenue shall prescribe after five years.
Violations penalized by municipal ordinances shall prescribe after two months.
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Section 2. Prescription shall begin to run from the day of the commission
of the violation of the law, and if the same may not be known at the time, from
the discovery thereof and the institution of judicial proceedings for its
investigation and punishment.
The prescription shall be interrupted when proceedings are instituted
against the guilty person, and shall begin to run again if the proceedings are
dismissed for reasons not constituting jeopardy, (underscoring for em-
phasis supplied).
The Court of Appeals ruled that because no complaint was filed in court
within two years after the commission of the alleged violation, the offense had
already prescribed.
The petitioner disagreed, and in the Supreme Court, petitioner averred
that the Court of Appeals erred in concluding that the alleged violations of the
Intellectual Property Code (IPC) had prescribed because it had actually filed a
complaint with the corresponding Task Force of the DOJ. It contended that said
filing tolled the running of the prescriptive period for the offense.
The Supreme Court found the contention meritorious. It likewise
confirmed that under Section 2 of Act 3326, the prescriptive period for
violation of special laws starts on the day such offense was committed and is
interrupted by the institution of proceedings against respondent (i.e., the
accused). It also found that the petitioner in this instance filed its
complaint-affidavit with the TAPP of the DOJ before the alleged violation had
prescribed. The Court categorically ruled that the prescriptive period for the
prosecution of the alleged violation of the IPC was tolled by petitioner's timely
filing of the complaint-affidavit before the TAPP.
3. In Panaguiton, Jr. v. DOJ, G.R. No. 167571, November 25, 2008, the
issue raised was whether or not the filing of a complaint for violation of B.P.
Big. 22 before the Office of the Prosecutor interrupts the running of the
prescriptive period for the offense. Here, the Assistant City Prosecutor dis
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missed the complaint against the respondent because the case had already
prescribed pursuant to Act No. 3326, as amended, which provides that
violations of laws as those penalized by B.P. Big. 22 shall prescribe after four (4)
years. Accordingly, the four (4)-year period started on the date the checks were
dishonored and the filing of the complaint before the Quezon City Prosecutor
did not interrupt the running of the prescriptive period, as the law
contemplates judicial, and not administrative proceedings. Thus, considering
that more than four (4) years had already elapsed from the dishonor of the
check and no information had as yet been filed against the respondent, the
alleged violation of B.P. Big. 22 imputed to him had already prescribed.
The DOJ affirmed the resolution of the Assistant City Prosecutor and held
in favor of the respondent. Subsequently, the DOJ, this time through the
Undersecretary, ruled in favor of the petitioner/complainant declaring that the
offense had not prescribed and that the filing of the complaint with the
prosecutor's office interrupted the running of the prescriptive period. Thus, the
Office of the City Prosecutor of Quezon City was directed to file three (3)
separate informations against the respondent for violation of B.P. Big. 22. The
informations were filed. Later, the DOJ, presumably acting on a motion for
reconsideration filed by the respondent, ruled that the subject offense had
already prescribed and ordered the withdrawal of the three (3) informations
for violation of B.P. Big. 22. In justifying its sudden turnabout, the DOJ explained
that Act No. 3326 applies to violations of special acts that do not provide for a
prescriptive period for the offenses thereunder. Since B.P. Big. 22, as a special
act, does not provide for the prescription of the offense it defines and punishes,
Act No. 3326 applies to it, and not Art. 90 of the Revised Penal Code which governs the prescription of offenses penalized thereunder. The DOJ also cited the
case of Zaldivia v. Reyes, Jr., 211 SCRA 277, wherein the Supreme Court ruled
that the proceedings referred to in Act No. 3326, as amended, are judicial
proceedings, and not the one before the prosecutor's office.
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Aggrieved, the petitioner then filed a petition for certiorari before the
Court of Appeals assailing the latest resolution of the DOJ but the petition was
dismissed by the Court of Appeals on technical grounds. In the Supreme Court,
the DOJ reiterated its earlier argument that the filing of a complaint with the
Office of the City Prosecutor of Quezon City did not interrupt the running of
the prescriptive period for violation of B.P. Big. 22. It argued that under B.P. Big.
22, a special law which does not provide for its own prescriptive period,
offenses prescribe in four (4) years in accordance with Act No. 3326. The
respondent also claimed that the offense of violation of B.P. Big. 22 has already
prescribed per Act No. 3326.
On the other hand the petitioner assailed the DOJ's reliance on Zaldivia
v. Reyes, a case involving the violation of a municipal ordinance, in declaring
that the prescriptive period is tolled only upon filing of the information in court.
According to petitioner, what is applicable in this case is Ingco v.
Sandiganbayan, 338 Phil. 1061, wherein the Supreme Court ruled that the
filing of the complaint with the fiscal's office for preliminary investigation
suspends the running of the prescriptive period. Petitioner also noted that the
Ingco case similarly involved the violation of a special law, Republic Act (R.A.)
No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.
In resolving the issue, the Court declared:
X X X
We agree that Act. No. 3326 applies to offenses under B.P. Big. 22. An
offense under B.P. Big. 22 merits the penalty of imprisonment of not less than
thirty (30) days but not more than one year or by a fine, hence, under Act No.
3326, a violation of B.P. Big. 22 prescribes in four (4) years from the commission of
the offense or, if the same be not known at the time, from the discovery thereof.
Nevertheless, we cannot uphold the position that only the filing of a case in court
can toll the running of the prescriptive period.
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The Court also explained, that when Act No. 3326 was passed,
preliminary investigation could be conducted by justices of the peace, thus, the
phraseology in the law, "institution of judicial proceedings for its investigation
and punishment x x x."
We rule and so hold that the offense has not yet prescribed. Petitioner's
filing of his complaint-affidavit before the Office of the City Prosecutor x x x
signified the commencement of the proceedings for the prosecution of the
accused and thus, effectively interrupted the prescriptive period for the offenses
they had been charged under
4. A significant pronouncement which confirms the rule that the filing of
a complaint for purposes of preliminary investigation interrupts the period of
prescription of criminal responsibility, was made by the Court in the case of SEC
v. Interport Resources Corporation, G.R. No. 135808, October 6, 2008.
This case relates to a Petition for Review on Certiorari under Rule 45 of
the Rules of Court, assailing the Decision of the Court of Appeals enjoining the
Securities and Exchange Commission (SEC) from taking cognizance of or
initiating any action against the respondent corporation, Interport Resources
Corporation (IRC) and members of its board of directors with respect to
Sections 8, 30 and 36 of the Revised Securities Act.
Respondents have taken the position that this case is moot and
academic, since any criminal complaint that may be filed against them resulting
from the SEC's investigation of this case has already prescribed. They point out
that the prescription period applicable to offenses punished under special laws,
such as violations of the Revised Securities Act, is twelve years under Section 1
of Act No. 3326, as amended by Act No. 3585 and Act No. 3763, entitled "An
Act to Establish Periods of Prescription for Violations Penalized by Special Acts
and Municipal Ordinances and to Provide When Prescription Shall Begin to
Run." Since the offense was committed in 1994, they reasoned that
prescription set in as early as 2006 and rendered this case moot.
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Ruling against the respondent, the Court held it to be an established
doctrine that a preliminary investigation interrupts the prescription period. A
preliminary investigation is essentially a determination whether an offense has
been committed, and whether there is probable cause for the accused to have
committed an offense. Under Section 45 of the Revised Securities Act, which is
entitled Investigations, Injunctions and Prosecution of Offenses, the
Securities and Exchange Commission (SEC) has the authority to "make such
investigations as it deems necessary to determine whether any person has
violated or is about to violate any provision of the law. After a finding that a
person has violated the Revised Securities Act, the SEC may refer the case to
the DOJ for preliminary investigation and prosecution."
The Court added that while the SEC investigation serves the same
purpose and entails substantially similar duties as the preliminary investigation
conducted by the DOJ, this process cannot simply be disregarded. The Court
further ruled that a criminal charge for violation of the Securities Regulation
Code is a specialized dispute. Hence, it must first be referred to an
administrative agency of special competence, i.e., the SEC. Under the doctrine
of primary jurisdiction, courts will not determine a controversy involving a
question within the jurisdiction of the administrative tribunal, where the
question demands the exercise of sound administrative discretion requiring
the specialized knowledge and expertise of said administrative tribunal to
determine technical and intricate matters of fact. The Court observed that the
Securities Regulation Code is a special law. Its enforcement is particularly
vested in the SEC. Hence, all complaints for any violation of the Code and its
implementing rules and regulations should be filed with the SEC. Where the
complaint is criminal in nature, the SEC shall indorse the complaint to the DOJ
for preliminary investigation and prosecution as provided in Section 53.1.
Indubitably, declared succinctly by the Court, the prescription period is
interrupted by commencing the proceedings for the prosecution of the
accused. In criminal cases, this
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is accomplished by initiating the preliminary investigation. The prosecution of
offenses punishable under the Revised Securities Act and the Securities
Regulations Code is initiated by the filing of a complaint with the SEC or by an
investigation conducted by the SEC motu proprio. Only after a finding of
probable cause is made by the SEC can the DOJ instigate a preliminary
investigation. Thus, the investigation that was commenced by the SEC, soon
after it discovered the questionable acts of the respondents, effectively
interrupted the prescription period. Given the nature and purpose of the
investigation conducted by the SEC, which is equivalent to the preliminary
investigation conducted by the DOJ in criminal cases, such investigation
would surely interrupt the prescription period.
Note that the cases of Sanrio, Panaguiton and SEC, cited above all
involved violations of special laws. Uniformly in these cases, the Court had
declared that the filing of the affidavit of complaint for preliminary investigation
interrupted the running of the prescriptive period.
II. PROSECUTION OF THE CRIMINAL ACTION
Who must prosecute the criminal action; who controls the prosecution (Bar
1990; 2000)
1. A criminal action is prosecuted under the direction and control of
the public prosecutor. This is the general rule and this applies to a criminal
action commenced either by a complaint or an information (Sec. 5, Rule 110,
Rules of Court; Uy v. People, G.R. No. 174899, September 11,2008).
All criminal actions covered by a complaint or information shall be
prosecuted under the direct supervision and control of the public prosecutor
(Ricarze v. Court of Appeals, G.R. No. 160451, February 9, 2007; Adasa v.
Abalos, G.R. No. 168617 February 19, 2007). Even if there is a private
prosecutor, the criminal action is still prosecuted under the direction and
control of the public prosecutor.
2. The rationale for the rule that all criminal actions shall be
prosecuted under the direction and control of a public
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prosecutor is that since a criminal offense is an outrage against the sovereignty
of the State, it necessarily follows that a representative of the State shall direct
and control the prosecution thereof (Chua v. Padillo, G.R. No. 163797, April
24,2007). The mandate that all criminal actions, either commenced by a
complaint or information shall be prosecuted under the direction and control
of a public prosecutor, is founded on the theory that a crime is a breach of the
security and peace of the people at large, an outrage against the very
sovereignty of the State (Baviera v. Paglinawan, G.R. No. 168380, February
8,2007).
Appearance of a private prosecutor
1. The appointment of a private prosecutor is done by the offended
party and is the mode by which the latter intervenes in the prosecution of the
offense. This intervention is however, only allowed where the civil action for
the recovery of the civil liability is instituted in the criminal action pursuant to
Rule 111 (Sec. 16, Rule 110, Rules of Court).
2. Hence, the offended party may not intervene in the prosecution of
the offense through a private prosecutor if the offended party (a) waives the
civil action, (b) reserves the right to institute it separately, or (c) institutes the
civil action prior to the criminal action.
Effect of the filing of an independent civil action on the right of the
offended party to intervene in the prosecution of the offense
1. The institution of an independent civil action does not deprive the
offended party of the right to intervene in the civil action through a private
prosecutor.
2. Under Sec. 1 of Rule 111 of the 2000 Rules of Criminal Procedure,
"When a criminal action is 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 ..
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3. Note however, that pursuant to said provision, only the civil liability
of the accused arising from the offense charged is deemed impliedly
instituted in a criminal action, unless the offended party waives the civil action,
reserves the right to institute it separately, or institutes it prior to the criminal
action. Those not arising from the offense charged like the independent civil
actions referred to in Arts. 32, 33, 34 and 2176 of the Civil Code are not deemed
instituted with the criminal action. These actions, according to Sec. 3 of Rule
111 of the Rules of Court shall proceed independently of the criminal action.
Thus, the 2000 Rules of Criminal Procedure deleted the requirement of
reserving independent civil actions and allowed these to proceed separately
from criminal actions because they are separate, distinct and independent of
any criminal prosecution even if based on the same act which also gave rise to
the criminal action.
4. Thus, it was ruled that as one of the direct consequences of the
independent character of actions brought under Arts. 32,33,34 and 2176 of the
Civil Code, even if a civil action is filed separately, "the ex delicto civil liability in
the criminal prosecution remains, and the offended party may — subject to the
control of the prosecutor — still intervene in the criminal action, in order to
protect the remaining civil interest therein" (Philippine Rabbit Bus Lines v.
People, G.R. No. 147703, April 14,2004).
Consequences of the rule that a criminal action is prosecuted under the
direction and control of the public prosecutor
1. The public prosecutor, in the exercise of his functions, has the power
and discretion to: (a) determine whether a prima facie case exists, (b) decide
which of the conflicting testimonies should be believed free from the
interference or control of the offended party, and (c) subject only to the right
against self-incrimination, determine which witnesses to present in court.
(Chua v. Padillo, G.R. No. 163797, April 24, 2007). The public prosecutor may
turn over the actual prosecution of the criminal case to the private prosecutor,
in the exercise of his discretion, but he may at any time, takl*
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over the actual conduct of the trial (People v. Tan, G.R. No. 177566, March
26,2008).
The executive department of the government is accountable for the
prosecution of crimes. The right to prosecute vests the prosecutor with a wide
range of discretion, the discretion of whether, what and whom to charge, the
exercise of which depends on factors which are best appreciated by
prosecutors (Gonzalez v. Hongkong & Shanghai Banking Corporation, G.R.
No. 164904, October 19,2007).
2. The power to prosecute includes the initial discretion to determine
who should be utilized by the government as a state witness (People v.
Fajardo, 512 SCRA 360, January 23, 2007).
3. The prosecution is also entitled to conduct its own case and to
decide what witnesses to call to support its charges. The non-presentation of a
witness by the prosecution cannot be construed as suppression of evidence
where the testimony is merely corroborative (Ritualo v. People, G.R. No.
178337, June 25, 2009).
4. Not even the Supreme Court can order the prosecution of a
person against whom the prosecutor does not find sufficient evidence to
support at least a prima facie case — the only possible exception to the rule is
where there is an unmistakable showing of grave abuse of discretion on the
part of the prosecutor (Chua v. Padillo, G.R. No. 163797, April 24,2007).
5. In one case, three informations were filed against the petitioner
before the Regional Trial Court (RTC) of Pasig City.
One information pertains to allegations that petitioner employed
manipulative devises in the purchase of Best World Resources Corporation
(BW) shares. The other informations involve the alleged failure of petitioner to
file with the Securities and Exchange Commission (SEC) a sworn statement of
his beneficial ownership of BW shares.
d.- Petitioner was arraigned and pleaded not guilty to the charges.
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Subsequently, the trial court ruled that the delays which attended the
proceedings of one of the petitioner's cases were vexatious, capricious and
oppressive, resulting in violation of the petitioner's right to speedy trial and
hence, ordered its dismissal. The dismissal was later on reversed by the Court
of Appeals and reinstated the. case previously dismissed.
Petitioner moved for a reconsideration of the decision of the Court of
Appeals and filed a motion for inhibition of the Justices who decided the case
but both motions were denied.
The petitioner hence, filed a petition for review on certiorari, raising
among others the issue that the certificate of non- forum shopping attached to
the People's petition for certiorari before the Court of Appeals should have
been signed by the Chairman of the SEC as complainant in the cases instead of
Acting DOJ Secretary Merceditas N. Gutierrez.
The Court found the petitioner's argument futile holding that the Court
of Appeals was correct in sustaining the authority of Acting DOJ Secretary
Merceditas Gutierrez to sign the certification. The Court went on to say that it
must be stressed that the certification against forum shopping is required to be
executed by the plaintiff. Although the complaint-affidavit was signed by the
Prosecution and Enforcement Department of the SEC, the petition before the
Court of Appeals originated from Criminal Case No. 119830, where the plaintiff
or the party instituting the case was the People of the Philippines. Section 2,
Rule 110 of the Rules of Court leaves no room for doubt and establishes that
criminal cases are prosecuted in the name of the People of the Philippines, the
offended party in criminal cases. Moreover, pursuant to Section 3, paragraph
(2) of the Revised Administrative Code, the DOJ is the. executive arm of the
government mandated to investigate the commission of crimes, prosecute
offenders and administer the probation and correction system. It is the DOJ,
through its prosecutors, which is authorized to prosecute criminal cases on
behalf of the People of the Philippines. Prosecutors control and direct the
prosecution of criminal offenses, including the conduct of preliminary
investigation, subject to
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review by the Secretary of Justice. Since it is the DOJ which is the government
agency tasked to prosecute criminal cases before the trial court, the DOJ is best
suited to attest whether a similar or related case has been filed or is pending in
another court or tribunal. Acting DOJ Secretary Merceditas N. Gutierrez, being
the head of the DOJ, therefore, had the authority to sign the certificate of
non-forum shopping for the criminal case which was filed on behalf of the
People of the Philippines (Tan v. People, G.R. No. 173637, April 21, 2009).
6. In a case, the accused argues that he can no longer be charged
because he was left alone after either the death or acquittal or the failure to
charge his co-conspirators. The accused likewise argues that his prosecution, to
the exclusion of others, constitutes unfair discrimination and violates his
constitutional right to equal protection of the law. He says that the dismissal of
the case against his co-accused was not appealed by the prosecution and
some who should be accused were not charged.
The Court considered the argument erroneous. A conspiracy is in its
nature a joint offense. One person cannot conspire alone. The crime depends
upon the joint act or intent of two or more persons. Yet, it does not follow that
one person cannot be convicted of conspiracy. As long as the acquittal or death
of a co-conspirator does not remove the basis of a charge of conspiracy, one
defendant may be found guilty of the offense.
The Court also held that the accused was not unfairly discriminated
against and his constitutional right to equal protection violated. The Court
explained that the manner in which the prosecution of the case is handled is
within the sound discretion of the prosecutor, and the non-inclusion of other
guilty persons is irrelevant to the case against the accused. A discriminatory
purpose is never presumed. The facts show that it was not solely the
respondent who was charged, but also five others. Further, the fact that the
dismissal of the dase against his co-accused was not appealed is not sufficient
to cry discrimination. This is likewise true for the non-
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inclusion of the two persons. Mere speculation, unsupported by convincing
evidence, cannot establish discrimination on the part of the prosecution and
the denial to respondent of the equal protection of the laws (People v.
Dumlao, G.R. No. 168918, March 2, 2009).
7. Another case lucidly illustrates the consequences of the rule that the
prosecution of a crime is under the direction and control of the public
prosecutor.
Thus, in the case of Pinote v. Ayco, A.M. No-RTJ-05-1944, December
13, 2005, the trial judge allowed the defense to present evidence consisting of
the testimony of two witnesses, even in the absence of the prosecutor charged
with prosecuting the case. The prosecutor at the time was undergoing medical
treatment at the Philippine Heart Center in Quezon City.
Maintaining that the proceedings conducted in his absence were void,
the prosecutor, on the subsequent hearings of the case, refused to
cross-examine the two defense witnesses, despite being ordered by the judge.
After manifesting to the court the reason for his absence, a reason earlier
relayed to the court on the day of the hearing in question, he reiterated his
position that the act of the judge of allowing the defense to present evidence in
his absence was erroneous and highly irregular. He thus prayed that he should
not be "coerced" to cross-examine those two defense witnesses and that their
testimonies be stricken off the record. The judge, nevertheless considered the
prosecution to have waived its right to cross- examine the two defense
witnesses. An administrative complaint was then lodged by the prosecutor
against the judge for "gross ignorance of the law, grave abuse of authority and
serious misconduct."
On evaluation of the case, the Office of the Court Administrator (OCA),
citing Section 5, Rule 110 of the Revised Rule on Criminal Procedure, found
respondent judge to have breached said rule and accordingly recommended
that he be reprimanded, with a warning that a repetition of the same 05 similar
act shall be dealt with more severely.
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Adopting the findings of the Office of the Court Administrator, the Court
ruled that a violation of criminal laws is an affront to the People of the
Philippines as a whole and not merely to the person directly prejudiced, he
being merely the complaining witness. It is on this account, held the Court, that
the presence of a public prosecutor in the trial of criminal cases is necessary to
protect vital state interests, foremost of which is its interest to vindicate the
rule of law, the bedrock of peace of the people. The act of allowing the
presentation of the defense witnesses in the absence of complainant public
prosecutor or a private prosecutor designated for the purpose is a clear
transgression of the Rules which could not be rectified by subsequently giving
the prosecution a chance to cross-examine the witnesses.
Added the Court:
"Respondent's intention to uphold the right of the accused to a speedy
disposition of the case, no matter how noble it may be, cannot justify a breach of
the Rules. If the accused is entitled to due process, so is the State."
Prosecution of a criminal action in the Municipal Trial Court or Municipal
Circuit Trial Court
A criminal action in a Municipal Trial Court or in a Municipal Circuit Trial
Court shall also be prosecuted under the direction and control of the
prosecutor (Sec. 5, Rule 110, Rules of Court). However, when the prosecutor
assigned is not available, the action may be prosecuted by (a) the offended
party, (b) any peace officer, (c) or public officer charged with the enforcement
of the law violated (OCA Circular No. 39- 2002, August 21,2002).
Prosecution for violation of special laws
Where the offense is a violation of a special law, the same shall be
prosecuted pursuant to the provisions of said law (Sec. 5, Rule 110, Rules of
Court).
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III. INTERVENTION OF THE OFFENDED PARTY IN THE PROSECUTION
OF THE CRIMINAL ACTION
Intervention of the offended party
1. A fundamental principle in criminal law is the rule that "Every
person criminally liable for a felony is also civilly liable" (Article 100, Revised
Penal Code). Thus, generally, a person convicted of a crime is both criminally
and civilly liable.
2. The civil liability for a crime includes restitution, reparation of the
damage caused and indemnification for consequential damages (Article 104,
Revised Penal Code). Except when the civil liability is extinguished, the
offender shall be obliged to satisfy the civil liability resulting from the crime
committed by him, even if he has already served his sentence consisting of
deprivation of liberty or other rights, or has not been required to serve the
same by reason of amnesty, pardon, commutation of sentence or any other
reasons (Article 113, Revised Penal Code).
3. It is because of the existence of a civil liability involved in a crime,
that the offended party is allowed to intervene in the prosecution of the
offense. Thus, Sec. 16 of Rule 110 provides that "xxx 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."
4. By virtue of Sec. 16 of Rule 110 in relation to Sec. 1 of Rule 111, for
the offended party to acquire the right to intervene in the prosecution of the
offense, it is necessary that the civil action for the recovery of the civil liability be
instituted with the criminal action. If the civil liability has been waived, or the
civil action to recover the civil liability has been reserved or has been instituted
prior to the criminal action, there is no civil liability which would supply a basis
for the intervention of the offended party through his counsel or private
prosecutor. The presence of a private prosecutor in thp criminal action may be
objected to by the prosecution.
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5. There are however, cases where the criminal action also gives rise
to an independent civil action as in crimes involving physical injuries, fraud or
defamation or when the act constituting a crime also constitutes a quasi-delict.
These situations give rise to distinct civil liabilities to wit: The one arising from
the offense charged under Article 100 of the Revised Penal Code and the civil
liabilities arising from quasi-delicts or independent civil actions. Worthy of note
is the principle that the latter sources of civil liabilities do not arise from the
offense charged.
By virtue of its independent character as a distinct source of civil liability,
the filing of a suit based on a quasi- delict theory during the pendency of the
criminal proceeding, should not prevent the intervention by the offended party
in the prosecution of the offense because there still exists a civil liability under
the Revised Penal Code, i.e., the civil liability arising from the offense charged
which would be the basis for the intervention. This is because the civil liability
arising from a quasi-delict "is entirely separate and distinct from the civil liability
arising from negligence under the Penal Code" (Article 2177, Civil Code of the
Philippines). Also, in the case of independent civil actions, they "may proceed
independently of the criminal action" (Sec. 3, Rule 111, Rules of Court).
6. It needs to be emphasized that the civil liabilities arising from
independent civil actions and a quasi-delict do not arise from the felony or
crime, and have distinct sources from the law or the Civil Code. They are not
hence, covered by the provision of the Revised Penal Code declaring that
persons liable for a felony are also civilly liable. Such civil actions "may proceed
independently of the criminal proceedings and regardless of the result of the
latter" (Article 31, Civil Code of the Philippines).
When a private prosecutor may prosecute a case even in the absence of
the public prosecutor
1. A private prosecutor may prosecute the criminal action up to the end
of the trial even in the absence of the
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public prosecutor if he is authorized to do so in writing. This
written authorization shall be given by either the Chief of
the Prosecution Office or the Regional State Prosecutor. The
written authorization in order to be given effect must however,
be approved by the court (Sec. 5, Rule 110, Rules of Court;
A.M. No. 02-2-07-SC, April 10,2002 effective May 1,2002).
2. The written authorization to the private prosecutor
shall be given because of either of the following reasons: (a)
the public prosecutor has a heavy work schedule or, (b) there
is a lack of public prosecutors (Sec. 5, Rule 110, Rules of Court;
A.M. No. 02-2-07-SC, Effective May 1,2002).
Extent of the authority given to the private prosecutor when
duly authorized to prosecute the action
Once so authorized to prosecute the criminal action, the
private prosecutor shall continue to prosecute the case up to
the end of the trial even in the absence of a public prosecutor,
unless the authority is revoked or otherwise withdrawn (Sec.
5, Rule 110, Rules of Court; A.M. No. 02-2-07-SC, April 10,
2002 effective May 1,2002).
IV. PROSECUTION OF "PRIVATE CRIMES"
Prosecution of adultery and concubinage
1. The crimes of adultery and concubinage shall not
be prosecuted except upon a complaint filed by the offended
spouse (Sec. 5, Rule 110, Rules of Court). The rule is clear: The
prosecutor cannot prosecute the case where no complaint is
filed by the offended spouse.
The same rule also provides that the action cannot be instituted against one party alone. It must be instituted against
both guilty parties, unless one of them is no longer alive (Sec.
5, Rule 110, Rules of Court).
2. The offense of adultery and concubinage may not be
instituted if it is shown that the offended party has consented
to the offense or has pardoned the offenders (Sec. 5, Rule
77
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110, Rules of Court). Since the rule does not distinguish, the consent or pardon
may be either expressed or implied.
Prosecution of seduction, abduction and acts of lascivious- ness
1. The offenses of seduction, abduction and acts of lasci- viousness
shall not be prosecuted except upon a complaint filed by the offended party or
her parents, grandparents or guardian, nor, in any case, if the offender has
been expressly pardoned by any of them (Sec. 5, Rule 110, Rules of Court).
Note that the pardon must be expressly made. It is clear that an implied
pardon is not contemplated under this provision.
However, 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 (Sec. 5, Rule
110, Rules of Court). In the order of those who may file the complaint, the
State is the last and may only do so in the absence of the persons mentioned in
Sec. 5 of Rule 110.
2. Also, under Sec. 5 of Rule 110, the offended party, even if a minor,
has the right to initiate the prosecution of the offense, independently of her
parents, grandparents or guardian except if she is incompetent or incapable of
doing so (Sec. 5, Rule 110, Rules of Court).
Where the minor fails to initiate the prosecution of the offense, the
complaint may be filed by the minor's parents, grandparents or guardian. (Sec.
5, Rule 110, Rules of Court).
Effect of R.A. 7610 (Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act)
Under Sec. 27 of R. A. 7610, complaints on cases of unlawful acts
mentioned in the law committed against children, may be filed by the
following:
(a) offended party;
(b)
parents or guardians;
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(c)
(d)
(e)
(f)
(g)
79
ascendant or collateral relative within the third degree of
consanguinity;
officer, social worker or representative of a licensed child-caring
institution;
officer or social worker of the Department of Social Welfare and
Development;
barangay chairman; or
at least three (3) concerned, responsible citizens where the
violation occurred.
Prosecution of defamation
1. The defamation under this rule (Sec. 5, Rule 110) consists in the
imputation of the offenses of adultery, concubinage, seduction, abduction and
acts of lasciviousness (Sec. 5, Rule 110, Rules of Court).
2. The criminal action for defamation under the rule shall be brought
at the instance of and upon the complaint filed by the offended party (Sec. 5,
Rule 110, Rules of Court). This rule clearly provides that only the offended
party can initiate the criminal action.
V. THE COMPLAINT AND INFORMATION
Meaning of 'complaint'
1. A complaint is a sworn written statement charging a person with
an offense, subscribed by the offended party, any peace officer, or other public
officer, charged with the enforcement of the law violated (Sec. 3, Rule 110,
Rules of Court).
2. A complaint is not a mere statement. It is a statement charging a
person with an offense. As a statement it must be "sworn" and "written." Be it
noted too that the complaint is subscribed only by any of the persons specified
in the rule, namely, the offended party, any peace officer, or other public
officer charged with the enforcement of the law violated.
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In whose name and against whom filed
1. The complaint is not filed in the name of a private person, natural
or juridical. It is filed in the name of the People of the Philippines and is filed
against all persons who appear to be responsible for the offense involved (Sec.
2, Rule 110, Rules of Court).
2. Private offended parties have limited roles in criminal cases. They
are only witnesses for the prosecution. Thus, a private offended party may not
appeal the dismissal of a criminal case or the acquittal of an accused because
the aggrieved party is the People of the Philippines. However, the offended
party may appeal the civil aspect of the case and may, thus, file a special civil
action for certiorari questioning the decision/action of the court on
jurisdictional grounds. In so doing, the private offended party cannot bring the
action in the name of the People of the Philippines, but must prosecute the
same in his own personal capacity.
The dismissal made by the RTC of the criminal case can only be appealed
by the OSG. The private offended party has no legal personality to do so. Here,
the Supreme Court applied the general rule under Sec. 35(1), Chapter 12, Title
III, Book IV of the Administrative Code of 1987 which provided that only the
OSG can bring and/or defend actions on behalf of the Republic or represent
the people or the State in criminal proceedings pending in the Supreme Court
and the CA (Elvira O. Ong v. Jose Casim Genio, G.R. No. 182336, December
23, 2009). Note: Any appeal is subject to the rule against double jeopardy
(Sec. 1, Rule 122).
Meaning of 'information' (Bar 1994,1995,1996)
An information is an accusation in writing charging a person with
an offense subscribed by the prosecutor and filed with the court (Sec. 4, Rule
110, Rules of Court; People v. Cinco, G.R. No.186460, December 4,2009).
2.
While an information is an accusation in writing, it is not required
to be "sworn" unlike a complaint. Only a public officer described by the Rules
of Court as a "prosecutor" is
1.
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authorized to subscribe to the information (Sec. 4, Rule, 110, Rules of Court).
3. Like a complaint, an information is filed in the name of the People of
the Philippines against all persons who appear to be responsible for the offense
involved (Sec. 2, Rule 110, Rules of Court).
Distinctions between a complaint and an information (Bar 1999)
1. A complaint must be "sworn" hence, under oath. By the clear
terms of Sec. 3 of Rule 110, it is a "sworn written statement."
An information requires no oath. Sec. 4 of Rule 110 merely requires that
it be an accusation "in writing." This is because the prosecutor filing the
information is acting under the oath of his office (Estudillo v. Baloma, 426
SCRA 83).
2. A complaint or information is subscribed by (a) the offended party,
(b) any peace officer, (c) or other public officer charged with the enforcement
of the law violated (Sec. 3, Rule 110, Rules of Court). On the other hand, an
information is subscribed by the prosecutor (Sec. 4, Rule 110, Rules of Court).
Infirmity of signature in the information
It is a valid information signed by a competent officer which, among
other requisites, confers jurisdiction on the court over the person of the
accused and the subject matter of the accusation. In consonance with this
view, an infirmity in the information, such as lack of authority of the officer
signing it, cannot be cured by silence, acquiescence, or even by express consent
(Cudia v. Court of Appeals, 284 SCRA 173).
Sufficiency of the complaint or information (Bar 1994; 2001)
1. A complaint or an information is deemed sufficient if it contains the
following:
(a) The name of the accused; if the offense is committed by more
than one person, all of them shall be included in the complaint or
information;
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82
The designation of the offense given by statute;
The acts or omissions complained of as constituting the
offense;
The name of the offended party;
The approximate date of the commission of the offense;
and
The place where the offense was committed (Sec. 6, Rule
110, Rules of Court; People v. Canares, G.R. No. 174065, February
18,2009).
2. A complaint or information is sufficient if it states the name of the
accused, the designation of the offense by the statute, the acts or omissions
complained of as constituting the offense, the name of the offended party, the
approximate date of the commission of the offense and the place where the
offense was committed (Malto v. People, G.R. No. 164733, September 21,
2007; People v. Canares, G.R. No. 174065, February 18, 2009; People v.
Teodoro, G.R. No. 172372, December 4, 2009; People v. Garcia, G.R. No.
159450, March 30, 2011).
Test for sufficiency of the complaint or information
1. The test is whether the crime is described in intelligible terms with
such particularity as to apprise the accused, with reasonable certainty, of the
offense charged (Lazarte, Jr. v. Sandiganbayan, G.R. No. 180122, March
13,2009) because the purpose of the requirement for the information's
validity and sufficiency is to enable the accused to suitably prepare for his
defense, since he is presumed to have no independent knowledge of the facts
that constitute the offense (People v. Cinco, G.R. No. 186460, December
4,2009).
Questioning the insufficiency of the complaint or information
The sufficiency of an information may be assailed but the right to
question the sufficiency of the same is not absolute. "An accused is deemed to
have waived this right if he fails to object Upon his arraignment or during trial.
In either case, evidence
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presented during trial can cure the defect in the information."
An accused is deemed to have waived his right to assail the
sufficiency of the information when he voluntarily entered a
plea when arraigned and participated in the trial (Frias v.
People, G.R. No. 171437, October 4,2007).
Objections as to form
Objections relating to the form of the complaint or information cannot be made for the first time on appeal. The
accused-appellant should have moved before arraignment
either for a bill of particulars or for the quashal of the information. Having failed to pursue either remedy, he is deemed
to have waived his objections to any formal defect in the
information (The People of the Philippines v. Romar Teodoro y
Vallejo, G.R. No. 172372, December 4,2009).
Date of the commission of the offense
1. Sec. 11 of the same Rule also provides that it is not
necessary to state in the complaint or information the precise
date the offense was committed except when the date of
commission is a material element of the offense. The offense
may thus be alleged to have been committed on a date as near as
possible to the actual date of its commission. At the minimum,
an indictment must contain all the essential elements of the
offense charged to enable the accused to properly meet the
charge and duly prepare for his defense (Sec. 11, Rule 110,
Rules of Court; People v. Canares, G.R. No. 174065, February
18,2009; People v. Cinco, G.R. No. 186460, December 4,2009;
People v. Teodoro, G.R. No. 172372, December 4,2009).
In rape cases for instance, the failure to specify the exact
dates or times when the rape occurred does not ipso facto make
the information defective on its face. The reason is obvious.
The date or time of the commission of rape is not a material
ingredient of the said crime because the gravamen of rape is
carnal knowledge of a woman through force and intimidation.
The precise time when the rape took place has no substantial
bearing on its commission. As such, the date or time need noli
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be stated with absolute accuracy (People v. Cinco, G.R. No. 186460,
December 4,2009).
Determination of the nature and character of the crime
1. The character of the crime is determined neither by the caption or
preamble of the information nor by the specification of the provision of law
alleged to have been violated, they being conclusions of law, but by the recital
of the ultimate facts and circumstances in the information. Consequently, even
if the designation of the crime in the information was defective, what is
controlling is the allegation of the facts in the information that comprises a
crime and adequately describes the nature and cause of the accusation against
the accused (People v. Anguac, G.R. No. 176744, June 5,2009).
2. It is axiomatic that the nature and character of the crime charged
are determined not by the designation of the specific crime, but by the facts
alleged in the information. Controlling in an information should not be the title
of the complaint or the designation of the offense charged or the particular
law or part thereof allegedly violated, these being, by and large, mere
conclusions of law made by the prosecutor, but the description of the crime
charged and the particular facts therein recited (People v. Quemeggen, G.R.
No. 178205, July 27,2009).
How to state the name of the accused
1. Sec. 7 of Rule 110 establishes the following rules in designating the
name of the accused:
(a) The complaint or information must state the name and
surname of the accused or any appellation or nickname by which he has
been or is known.
(b) If his name cannot be ascertained, he must be described
under a fictitious name. A description of the accused under a fictitious
name must be accompanied by a statement that his true name is
unknown.
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(c) If later his true name is disclosed by him or becomes known in
some other manner, his true name shall be inserted in the complaint or
information and in the records of the case.
2. A mistake in the name of the accused is not equivalent, and does not
necessarily amount to, a mistake in the identity of the accused especially when
sufficient evidence is adduced to show that the accused is pointed to as one of
the perpetrators of the crime (People v. Amodia, G.R. No. 173791, April 7,
2009). However, the identity of the accused must be proven (People v.
Tumambing, G.R. No. 191261, March 2, 2011).
How to state the name of the offended party who is a natural person
The complaint or information must state the name and surname of the
offended party or any appellation or nickname by which such person has been
or is known. However, if there is no better way of identifying him, he must be
described under a fictitious name. If later on, the true name of the offended
party is disclosed or ascertained, the court must cause such true name to be
inserted (Sec. 12, Rule 110, Rules of Court).
How to state the name of the offended party which is a juridical person
If the offended party is a juridical person, it is sufficient to state its name
or any name or designation by which it is known or by which it may be
identified, without need of averring that it is a juridical person or that it is
organized in accordance with law (Sec. 12[c], Rule 110, Rules of Court).
Rule if the name of the offended party is unknown in offenses against
property
In offenses against property, if the name of the offended party is
unknown, the property must be described with such particularity as to properly
identify the offense charged (Sec. 12[a], Rule 110, Rules of Court). In Sayson
v. People, G.R. No.
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L-51745, October 28, 1988, 166 SCRA 680, the Court ruled that in case of
offenses against property, the designation of the name of the offended party is
not absolutely indispensable for as long as the criminal act charged in the
complaint or information can be properly identified (Cited in Ricarze v. Court
of Appeals, G.R. No. 160451, February 9,2007).
Designation of the offense
1. It is settled that it is the allegations in the information that
determine the nature of the offense, not the technical name given by the
public prosecutor in the preamble of the Information. From a legal point of
view, and in a very real sense, it is of no concern to the accused what is the
technical name of the crime of which he stands charged. It in no way aids him
in a defense on the merits. That to which his attention should be directed, and
in which he, above all things else, should be most interested, are the facts
alleged. The real question is not did he commit a crime given in the law some
technical and specific name, but did he perform the acts alleged in the body of
the information in the manner therein set forth (Matrido v. People, G.R. No.
179061, July 13,2009).
The specific acts of the accused do not have to be described in detail in
the information as it is enough that the offense be described with sufficient
particularity to make sure the accused fully understands what he is being
charged with. The particularity must be such that a person of ordinary
intelligence immediately knows what the charge is. Moreover, reasonable
certainty in the statement of the crime suffices (Guy v. People, G.R. Nos.
166794-96, March 20,2009).
2. In designating the offense, the following rules must be observed:
(a) The designation of the offense requires, as a rule, that the
name given to the offense by statute must be stated in the complaint or
information.
If the statute gives no designation to the offense, then reference must
instead be made to the section or 1 subsection punishing it (Sec. 8, Rule
110, Rules of Court).
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(b) To be included in the complete designation of the offense is
an averment of the acts or omissions constituting the offense (Sec. 8,
Rule 110, Rules of Court).
(c) The complaint or information must specify the qualifying
and aggravating circumstances of the offense (Sec. 8, Rule 110, Rules of
Court; See People v. Ogarte, G.R. No. 182690, May 30,2011 for
suggested reading).
Effect of failure to designate the offense by the statute or failure to
mention the provision violated
1. The failure to designate the offense by the statute or to mention
the specific provision penalizing the act or an erroneous specification of the law
violated does not vitiate the information if the facts alleged clearly recite the
facts constituting the crime charged (Malto v. People, G.R. No. 164733,
September 21, 2007). There is no law which requires that in order that an
accused may be convicted, the specific provision which penalizes the act
charged be mentioned in the information (Licyayo v. People, G.R. No.
169425, March 4,2008).
2. In Licyayo v. People, G.R. No. 169425, March 4,2008, the
information accuses the accused of the crime of homicide but does not
categorically state that he is being charged with homicide as defined and
penalized under Article 249 of the Revised Penal Code. The accused argues that
the specification in the information of the law violated is necessary to enable
him to adequately prepare for his defense, and to convict him under such
defective information would allegedly violate his constitutional and statutory
right to be informed of the nature and cause of accusation against him.
The Court ruled that the fact that the information does not specifically
mention Article 249 of the Revised Penal Code as the law which defines and
penalizes homicide, does not make the information defective. There is nothing
in the Rules of Court which specifically requires that the information must state
the particular law under which the accused is charged in order for it to be
considered sufficient and valid. Although the information does not specifically
mention Article 249 of the
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Revised Penal Code, it nonetheless narrates that the accused stabbed the
victim with a bladed weapon during the incident which caused the latter's
death. The allegations, according to the Court, unmistakably refer to homicide
which is the unlawful killing of any person other than murder, homicide or
infanticide.
The Court likewise held in the same case that the sufficiency of an
information is not negated by an incomplete or defective designation of the
crime in the caption or other parts of the information but by the narration of
facts and circumstances which adequately depicts a crime and sufficiently apprises the accused of the nature and cause of the accusation against him.
The Court in the case asserted that the character of the crime is
determined neither by the caption or preamble of the information nor by the
specification of the provision of law alleged to have been violated, they being
conclusions of law, but by the recital of the ultimate facts and circumstances in
the information
Effect of failure to specify the correct crime
The failure to specify the correct crime committed will not bar conviction
of an accused. The character of the crime is not determined by the caption or
preamble of the information or by the specification of the provision of law
alleged to have been violated. The crime committed is determined by the
recital of the ultimate facts and circumstances in the complaint or information
(Briones v. People, G.R. No. 156009, June 5, 2009).
Statement of the qualifying and aggravating circumstances (Bar 2001)
1. Every information must state the qualifying and the aggravating
circumstances attending the commission of the crime for them to be
considered in the imposition of the penalty (People v. Tampus, et al, G.R. No.
181084, June 16,2009; %p. 8, Sec. 9, Rule 110, Rules of Court).
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The rationale for the requirement was elucidated in a much earlier case.
In People v. Mendoza, G.R. Nos. 132923-24, June 6, 2002, the accused was
found guilty by the trial court of two counts of rape, each qualified by the use of
a deadly weapon. The informations however, did not allege that the rapes
were committed with the use of a deadly weapon. The Court was emphatic
when it declared that the accused cannot be convicted of rape qualified by the
use of a deadly weapon and be made to suffer a higher penalty since that
circumstance was not alleged in the information. Not having been alleged and
having been charged with simple rape only, the accused cannot be convicted of
qualified rape. He cannot be held liable for an offense graver than that for
which he was indicted. It would be a denial of the right of the accused to be
informed of the charges against him, and consequently, a denial of due
process, if he is charged with simple rape, on which he was arraigned, and be
convicted of qualified rape punishable by death.
2. In one information for arson, there was no allegation that the house
intentionally burned by petitioners and their cohorts was inhabited. Rather, the
information merely recited that "accused, conspiring, confederating and
helping one another, with intent to cause damage, did then and there willfully,
unlawfully, feloniously and maliciously set on fire the nipa roof of the house of
the [offended party] to the latter's damage and prejudice." Under the 2000
Rules of Criminal Procedure, the information or complaint must state the
designation of the offense given by the statute and specify its qualifying and
generic aggravating circumstances, otherwise stated, the accused will not be
convicted of the offense proved during the trial if it was not properly alleged in
the information Hence, he can only be liable for simple arson and not arson of
an inhabited dwelling which carries a higher penalty (Buebos v. People, G.R.
No. 163938, March 28,2008).
Prior to the effectivity of the Revised Rules of Criminal Procedure, courts
generally awarded exemplary damages in criminal cases when an aggravating
circumstance, whether ordinary or qualifying, had been proven to have
attended the
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commission of the crime, even if the same was not alleged in the information.
However, with the promulgation of the Revised Rules, courts could no longer
consider the aggravating circumstances not alleged and proven in the
determination of the penalty and in the award of damages. Thus, even if an
aggravating circumstance had been proven, but was not alleged, courts will
not award exemplary damages. Also, even if the guilt of the accused was
proven beyond reasonable doubt, the accused cannot be convicted of
qualified rape but only with simple rape because the special qualifying
circumstances of minority and relationship were not sufficiently alleged in the
information (People v. Dalisay, G.R. No. 188106, November 25, 2009;
People v. Alfredo, G.R. No. 188560, December 15, 2010).
3. The qualifying circumstances need not be preceded by descriptive
words such as "qualifying" or "qualified by7' to properly qualify an offense. It is
not the use of the words "qualifying" or "qualified by" that raises a crime to a
higher category, but the specific allegation of an attendant circumstance which
adds the essential element raising the crime to a higher category (People v.
Rosas, G.R. No. 177825, October 24, 2008).
4. In one case brought to the Supreme Court, both the accused
contend that the information did not contain any allegation of conspiracy,
either by the use of the words conspire or its derivatives and synonyms, or by
allegations of basic facts constituting conspiracy that will make them liable for
the acts of their co-accused.
The Court considered the contention untenable. It is true as it is settled,
declared the Court, that conspiracy must be alleged, not merely inferred in the
information. The Court however, found that while a perusal of the information
readily shows that the words "conspiracy," "conspired" or "in conspiracy with"
do not appear in the information, this however, does not necessarily mean
that the absence of these words would signify that conspiracy was not alleged
in the information. After carefully reading the information, the Court
concluded that indeed conspiracy was properly
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alleged in the information. The accusatory portion reads in part: "all the
above-named accused, with evident intent to defraud the government of
legitimate taxes accruing to it from imported articles, did then and there,
willfully, unlawfully and knowingly participate in and facilitate the
transportation, concealment, and possession of dutiable electronic
equipment and accessories with a domestic market value of P20,000,000.00
contained in container van No. TTNU9201241, but which were declared in
Formal Entry and Revenue Declaration No. 118302 as assorted men's and
ladies' accessories x x x." The Court ruled that "We find the phrase "participate
in and facilitate" to be a clear and definite allegation of conspiracy sufficient for
those being accused to competently enter a plea and to make a proper
defense." Both accused were charged because they assisted in and facilitated
the release of the subject cargo without the payment of the proper duties and
taxes due the government by omitting certain acts in the light of glaring
discrepancies and suspicious entries present in the documents involved in the
subject importation (Francisco v. People, G.R. No. 177430, July 14, 2009;
Ojeda v. People, G.R. No. 178935, July 14, 2009).
5. A similar pronouncement was made by the Court in a fairly recent
case. In People v. Ubifia, G.R. No. 176349, July 10, 2007, the Court declared
that the twin circumstances of minority and relationship under Article 335 of
the Revised Penal Code, as amended by R.A. No. 7659, are in the nature of
qualifying circumstances because they alter the nature of the crime of rape and
increase the penalty. As special qualifying circumstances they must be
specifically pleaded or alleged with certainty in the information. "If the offender
is merely a relation — not a parent, ascendant, step-parent, guardian, or
common law spouse of the mother of the victim — the specific relationship
must be alleged in the information, i.e., that he is "a relative by consanguinity
or affinity [as the case may be] within the third civil degree."
The Court found that the information in Ubifia only mentioned
accused/appellant as the victim's uncle, without specifically stating that he is a
relative within the third civil
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degree, either by affinity or consanguinity. Even granting that during trial it was
proved that the relationship was within the third civil degree either of
consanguinity or affinity, still such proof cannot be appreciated because
appellant would thereby be denied of his right to be informed of the nature
and cause of the accusation against him. Appellant cannot be charged with
committing the crime of rape in its simple form and then be tried and
convicted of rape in its qualified form. Thus, the Court of Appeals correctly
disregarded the qualifying circumstance of relationship.
Cause of accusation
1. The allegations of facts constituting the offense charged are
substantial matters and an accused's right to question his conviction based on
facts not alleged in the information cannot be waived. No matter how
conclusive and convincing the evidence of guilt may be, an accused cannot be
convicted of any offense unless it is charged in the information on which he is
tried or is necessarily included therein. To convict him of a ground not alleged
while he is concentrating his defense against the ground alleged would plainly
be unfair and underhanded. The rule is that a variance between the allegation
in the information and proof adduced during trial shall be fatal to the criminal
case if it is material and prejudicial to the accused so much so that it affects his
substantial rights (Matrido v. People, G.R. No. 179061, July 13,2009).
2. In informing the accused of the cause of accusation against him, it
is not necessary to employ the words used in the statute alleged to have been
violated. It is sufficient for the complaint or information to use ordinary and
concise language sufficient to enable a person of common understanding to
know the following (Sec. 9, Rule 110, Rules of Court):
(a)
the offense being charged;
(b) the acts or omissions complained of as constituting the
offense; and
di (c) the qualifying and aggravating circumstances.
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What determines the real nature and cause of the accusation against the
accused is the actual recital of facts stated in the information or complaint, and
not the caption or preamble of the information or complaint, nor the
specification of the provision of law alleged to have been violated they being
conclusions of law (Nombrefia v. People, G.R. No. 157919, January 30,
2007).
3. 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 know the proper
judgment. The information must allege clearly and accurately the elements of
the crime charged. What facts and circumstances are necessary to be included
therein must be determined by reference to the definition and elements of the
specific crimes. The purpose of the requirement of alleging all the elements of
the crime in the information is to inform an accused of the nature of the
accusation against him so as to enable him to suitably prepare for his defense.
Another purpose is to enable the accused, if found guilty, to plead his
conviction in a subsequent prosecution for the same offense (Serapio v.
Sandiganbayan, G.R. No. 148468, January 29,2003).
4. The accused will not be convicted of the offense proved during the
trial if it was not properly alleged in the information. If the information charges
a violation of a law (Sec. 3, Par. 2 ofP.D. No. 1613) that requires an intentional
burning of a house or dwelling but the same information does not allege that
there was an intentional burning of such dwelling, there cannot be a conviction
under the said law because of an insufficiency in the allegations of the
information. The failure to make the required allegations is fatal to a charge of
arson under the applicable law (Buebos v. People, G.R. No. 163938, March
28,2008).
5. In another case, the victim was raped by the accused while she
was under the custody of law enforcement authorities who were members of
the PNP-CIDG at the time of the rape. Under Article 266-B of the Revised Penal
Code, the
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penalty for rape committed through force and intimidation is reclusion
perpetua. The same provision also states that the death penalty shall be
imposed if the victim was raped while under the custody of the police
authorities, or when the rape is committed by any member of the Philippine
National Police (PNP) or any law enforcement agency. This circumstance was
not however, specifically alleged in the information. The Court held that it
cannot therefore, be appreciated even if subsequently proved during the trial.
The RTC, ruled the Court, was correct in imposing only reclusion perpetua
(People v. Aure, G.R. No. 180451, October 17,2008).
6. Both the circumstances of the minority and the relationship of the
offender to the victim, either as the victim's parent, ascendant, step-parent,
guardian, relative by consanguinity or affinity within the third civil degree, or
the common-law spouse of the parent of the victim, must be alleged in the
information and proved during the trial in order for them to serve as qualifying
circumstances under Article 266-B of the Revised Penal Code.
In the case at bar, although the victim's minority was alleged and
established, her relationship with the accused as the latter's daughter was not
properly alleged in the information, and even though this was proven during
trial and not refuted by the accused, it cannot be considered as a special
qualifying circumstance that would serve to increase the penalty of the
offender. Under the 2000 Rules of Criminal Procedure, which should be given
retroactive effect following the rule that statutes governing court proceedings
will be construed as applicable to actions pending and undetermined at the
time of their passage, every information must state the qualifying and the
aggravating circumstances attending the commission of the crime for them to
be considered in the imposition of the penalty. Since in the case at bar, the
information did not state that the accused is the mother of the victim, this
circumstance could not be appreciated as a special qualifying circumstance.
She may only be convicted as an accomplice in the crime of simple rape, which
is punishable by reclusion perpetua (People v. Tampus, G.R. No. 181084,
June 16,2009).
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Similarly, in People v. Mejia, G.R. No. 185723, August 4,
2009, the qualifying circumstance of minority which was not
alleged in the information was appreciated by the trial court
in convicting the accused of rape. Sustaining the Court of
Appeals which disregarded the qualifying circumstance, the
Court ruled that the said circumstance cannot be considered
in fixing the penalty because minority, though proved, was
not alleged in the information. As regards relationship, the
same was alleged and proved. Pursuant, however, to Article
266-B of the Revised Penal Code, in order to fall within subparagraph 1 of said provision, both circumstances of minority
and relationship must be alleged in the information. The twin
circumstances of minority of the victim and her relationship
to the offender must concur to qualify the crime of rape. In the
instant case, only relationship was duly alleged and proved.
The Court clearly explained:
"Jurisprudence dictates that when the law specifies
certain circumstances that will qualify an offense and
thus attach to it a greater degree of penalty, such circumstances must be both alleged and proven in order to justify the imposition of the graver penalty. Recent rulings
of the Court relative to the rape of minors invariably state
that in order to justify the imposition of death, there must
be independent evidence proving the age of the victim,
other than the testimonies of prosecution witnesses and
the absence of denial by the accused. A duly certified certificate of live birth accurately showing the complainant's
age, or some other official document or record such as a
school record, has been recognized as competent evidence.
"In the instant case, we find insufficient the bare
testimony of private complainants and their mother as
to their ages as well as their kinship to the appellant,
x x x [ W e ] cannot agree with the solicitor general that
appellant's admission of his relationship with his victims
would suffice. Elementary is the doctrine that the
prosecution bears the burden of proving all the elements
of a crime, including the qualifying circumstances. In sum,
the death penalty cannot be imposed upon appellant."
(citation omitted)
1 >r
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7. In People v. Begino, G.R. No. 181246, March 20, 2009, where
the qualifying circumstances of relationship was not properly pleaded, the
accused was not convicted of rape in the qualified form. The failure to so allege
such relationship means that the accused was not properly informed of the
nature and cause of the accusation against him. The main purpose of this
requirement is to enable the accused to properly prepare for his defense and
he is presumed to have no independent knowledge of the facts that constitute
the offense.
8. In another case, the information charging the petitioners with
violation of R.A. No. 6539, as amended, did not allege that the carnapping was
committed by means of violence against, or intimidation of, any person, or
force upon things. The Court emphasized that while these circumstances were
proven at the trial, they cannot be appreciated because they were not alleged
in the information. Thus, the lower courts erred when they took these
circumstances into account in imposing the penalty which they pegged at
seventeen (17) years and four (4) months to thirty (30) years imprisonment. In
the absence of these circumstances, the charge against the petitioners is
confined to simple carnapping whose imposable penalty should have been
imprisonment for not less than fourteen (14) years and eight (8) months, and
not more than seventeen (17) years and four (4) months (Andres v. People,
G.R. No. 185860, June 5,2009).
How to state the date of the commission of the offense
1. Sec. 11 of Rule 110 establishes the general rule that it is not
necessary to state the precise date the offense was committed because the
offense may be alleged to have been committed on a date as near as possible
to the actual date of its commission.
2. The same rule provides by way of exception that it is necessary to
state the precise date the offense was committed when it is a material
ingredient of the offense (Sec. 11, Rule HO, Rules of Court; People v. Cinco,
G.R. No. 186460, December 4,2009; People v. Dion, G.R. No. 181035, July 4,
2011).
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3. Sec. 6 of Rule 110 of the Revised Rules of Court provides that an
allegation of the approximate date of the commission of the offense will
suffice, while Sec. 11 of the same Rule provides that it is not necessary to state
in the complaint or information the precise date the offense was committed
except when it is a material ingredient of the crime (People v. Estrada, G.R.
Nos. 164368-69, April 2,2009; People v. Fragante, G.R. No. 182521,
February 9, 2011; Suggested readings: People v. Mercado, G.R. No. 189847,
May 30, 2011).
Duplicity of the offense (Bar 2005)
1. The general rule is that a complaint or an information must charge
only one offense. More than one offense may however, be charged when the
law prescribes a single punishment for various offenses (Sec. 13, Rule 110,
Rules of Court).
2. An objection must be timely interposed whenever a complaint or
information charges more than one offense.
Failure of the accused to interpose an objection on the ground of
duplicity of the offenses charged in the information constitutes waiver (People
v. Tabio, G.R. No. 179477, February 6,2008).
When two or more offenses are charged in a single complaint or
information, the accused must object to such fact before trial. If he does not so
object, the court may convict him of as many offenses as are charged and
proved, and impose on him the penalty for each offense (Sec. 3, Rule 120,
Rules of Court; People v. Chingh, G.R. No. 178323, March 16,2011).
3. There should also be no problem in convicting an accused of two
or more crimes erroneously charged in one information or complaint, but later
proven to be independent crimes, as if they were made the subject of separate
complaints or informations. As worded, the information sufficiently alleged all
the elements of both felonies. Needless to state, appellants failed, before their
arraignment, to move for the quashal of the information, which appeared to
charge more than one offense. They have thereby waived any objection
thereto, and may thus be found guilty of as many offenses as
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those charged in the information and proven during the trial (People v.
Quemeggen, G.R. No. 178205, July 27,2009).
VI. VENUE OF CRIMINAL ACTIONS
1. As a rule, the criminal action shall be instituted and tried in the
court of the municipality or territory (a) where the offense was committed, or
(b) where any of its essential ingredients occurred. This rule is however, subject
to existing laws (Sec. 15[a], Rule 110, Rules of Court).
2. In cases of written defamation, whether the offended party is a
public official or a private individual, the criminal action may be filed in the
Court of First Instance (now RTC) of the province or city where the libelous
article is printed and first published. There are however, additional venues. If
the offended party is a private individual, the action may also be filed in the CFI
(now RTC) of the province where he actually resided at the time of the
commission of the offense. If the offended party is a public officer holding
office in Manila at the time of the commission of the offense, the action may
be filed in the CFI (now RTC) of Manila. If the public officer holds office outside
Manila, the action may be filed in the CFI (now RTC) of the province or city
where he held office at the time of the commission of the offense (Agbayani
v. Sayo, 178 Phil. 579; Foz, Jr. v. People, G.R. No. 167764, October 9,2009).
Thus, if the criminal information is filed in the place where the
defamatory article was printed or first published, then the information must so
state that the libelous material was either printed or first published in the place
of the filing of the information. Merely alleging that the paper or magazine is of
general circulation in the place where the action is instituted does not confer
territorial jurisdiction upon the court. A conviction under this kind of
information should be set aside for want of jurisdiction.
3. In one case, an information for written defamation was filed in Iloilo
City but the information merely alleged that the newspaper where the alleged
defamatory article
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appeared had "considerable circulation in the City of Iloilo and
throughout the region." The Court ruled that the allegations
did not establish where the said publication was printed or
first published (Foz, Jr. v. People, G.R. No. 167764, October
9,2009).
Similarly, in another case, the information filed in Manila
merely alleged that the defamatory article was published in
"Smart File," a magazine of general circulation in Manila. A
perusal of the information, explained the Court, show that the
allegations did not establish the printing of the magazine in
Manila where the criminal action was instituted (Chavez v.
Court of Appeals, 514 SCRA 279).
Also, an information which merely alleged that the libelous article "was published in the Philippine Daily Inquirer,"
a newspaper of general circulation in Baguio City, did not
sufficiently show Baguio City to be the proper venue of the
printing and first publication of the newspaper (Agustin v. Pamintuan, 467 SCRA 601).
Rule where offense is committed in a train, aircraft or vehicle
Where an offense is committed in a train, aircraft, or
vehicle, whether public or private, the criminal action shall be
instituted and tried in the court of any municipality or territory
where such train, aircraft, or other vehicle passed during its
trip, including the place of its departure and arrival. Note that
this rule applies when the offense is committed in the course
of the trip of the train, aircraft or vehicle (Sec. 15[b], Rule 110,
Rules of Court).
Rule where offense is committed on board a vessel
Where an offense is committed on board a vessel, the
criminal action shall be instituted and tried in (a) the court
of the first port of entry, or (b) of the municipality or territory
where the vessel passed during its voyage. This rule applies
when the offense is committed during the voyage of the
vessel and is subject to the generally accepted principles of
international law (Sec. 15[c], Rule 110, Rules of Court).
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Rule when the offense is covered by Art. 2 of the Revised Penal Code
Crimes committed outside the Philippines but punishable under Art. 2 of
the Revised Penal Code shall be cognizable by the court where the criminal
action is first filed (Sec. 15[d], Rule 110, Rules of Court).
How to state the place of the commission of the offense
The statement of the place of commission of an offense is sufficient if it
can be understood from the allegations of the complaint or information that
the offense was committed or some of its essential elements occurred at some
place within the jurisdiction of the court (Sec. 10, Rule 110, Rules of Court).
Where the particular place where the offense was committed is however, an
essential element of the offense or is necessary for its identification, it is implied
from the rule that the description of the place of commission of the offense
must be specific.
VII. AMENDMENT OR SUBSTITUTION OF THE COMPLAINT
OR INFORMATION
Amendment of the information or complaint before plea; no need for
leave (Bar 2001; 2002)
If the amendment is made before the accused enters his plea, the
complaint or information may be amended in form or in substance, without
the need for leave of court (Sec. 14, Rule 110, Rules of Court).
When leave of court is required even if the amendment is made before
plea
1. Leave of court is required even if made before plea if:
(a) the amendment downgrades the nature of the offense
charged, or
(b) the amendment excludes any accused from the complaint
or information (Sec. 14, Rule 110, Rules of Court).
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2. Aside from leave of court, the above amendments, require a
motion by the prosecutor, with notice to the offended party (Sec. 14, Rule 110,
Rules of Court).
3. The court is mandated by the rule to state its reasons in resolving
the motion of the prosecutor and to furnish all parties, especially the offended
party, of copies of its order (Sec. 14, Rule 110, Rules of Court).
Rule as to amendment made after the
plea of the accused
1. If the amendment is made after the plea of the accused and
during the trial, any formal amendment may only be made under two
conditions, namely: (a) leave of court must be secured; and (b) the amendment
does not cause prejudice to the rights of the accused (Sec. 14, Rule 110, Rules
of Court).
Since the rule makes reference only to a formal amendment after the
plea, the phraseology of the rule seems to indicate that an amendment in
substance is, as a rule, clearly not allowed at this stage.
2. In a case, however, the Court held that before the accused enters
his plea, a formal or substantial amendment of the complaint or information
may be made without leave of court. After the entry of plea, only a formal
amendment may be made but with leave of court and if it does not prejudice
the rights of the accused. After arraignment, a substantial amendment is
proscribed except if the same is beneficial to the accused (Ricarze v. Court of
Appeals, G.R. No. 160451, February 9,2007 citing Matalam v.
Sandiganbayan, 455 SCRA 736).
When an amendment is formal or substantial (Bar 1997)
1. Thus, it has been held that the test as to whether a defendant is
prejudiced by the amendment is whether a defense under the information as
it originally stood would be available after the amendment is made, and
whether any evidence defendant might have would be equally applicable to
the information in the one form as in the other. An amendment to an
information which does not change the
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nature of the crime alleged therein does not affect the essence of the offense
or cause surprise or deprive the accused of an opportunity to meet the new
averment had each been held to be one of form and not of substance. Thus,
the substitution of the private complainant is not a substantial amendment
where the substitution did not alter the basis of the charge in both
informations, nor did it result in any prejudice to the other party. More so if the
documentary evidences involved in the case remained the same, and all are
available to the other party before trial (Ricarze v. Court of Appeals, G.R. No.
160451, February 9,2007).
2. On the other hand, the following have been held to be mere
formal amendments: (1) new allegations which relate only to the range of the
penalty that the court might impose in the event of conviction; (2) an
amendment which does not charge another offense different or distinct from
that charged in the original one; (3) additional allegations which do not alter
the prosecution's theory of the case so as to cause surprise to the accused and
affect the form of defense he has or will assume; (4) an amendment which
does not adversely affect any substantial right of the accused; and (5) an
amendment that merely adds specifications to eliminate vagueness in the
information and not to introduce new and material facts, and merely states
with additional precision something which is already contained in the original
information and which adds nothing essential for conviction for the crime
charged (Ricarze v. Court of Appeals, G.R. No. 160451, February 9,2007).
3.
One case which illustrates the distinction between a formal and
substantial amendment particularly well is Pacoy v. Judge Afable Cajigal, G.R.
No. 157472, September 28,2007. Here, upon arraignment, the accused, duly
assisted by counsel de parte, pleaded not guilty to the charge of homicide.
However, on the same day and after the arraignment, the respondent judge
issued another order directing the trial prosecutor to correct and amend the
information to murder in view of the aggravating circumstance of disregard of
rank alleged in the information which the judge considered as having qualified
the crime to murder.
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Acting upon such order, the prosecutor entered his amendment by
crossing out the word "Homicide" and instead wrote the word "Murder" in the
caption and in the opening paragraph of the information. The accusatory
portion remained exactly the same as that of the original information for
homicide.
On the date scheduled for the re-arraignment of the accused for the
crime of murder, the counsel for petitioner objected on the ground that the
latter would be placed in double jeopardy, considering that his homicide case
had been terminated without his express consent, resulting in the dismissal of
the case. As the accused refused to enter his plea on the amended information
for murder, the public respondent judge entered for him a plea of not guilty.
One of the issues sought to be resolved in the Supreme Court was
whether or not the amendment from homicide to murder is a substantial one.
In resolving the issue, the Court ruled, that the change of the offense charged
from homicide to murder is merely a formal amendment and not a substantial
amendment or a substitution.
The Court ratiocinated that while the amended information was for
murder, a reading of the information shows that the only change made was in
the caption of the case; and in the opening paragraph or preamble of the
Information, with the crossing out of word "Homicide" and its replacement by
the word "Murder." There was no change in the recital of facts constituting the
offense charged or in the determination of the jurisdiction of the court. The
averments in the amended Information for murder are exactly the same as
those already alleged in the original information for homicide, as there was not
at all any change in the act imputed to the accused. Thus, the Court found the
amendment made in the caption and preamble from "Homicide" to "Murder"
as purely formal.
Sec. 14, Rule 110 explained the Court, also provides that in allowing
formal amendments in cases in which the accused has already pleaded, it is
necessary that the amendments do not prejudice the rights of the accused. The
test of whether
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the rights of an accused are prejudiced by the amendment of a complaint or
information is whether a defense under the complaint or information, as it
originally stood, would no longer be available after the amendment is made;
and when any evidence the accused might have would be inapplicable to the
complaint or information. Since the facts alleged in the accusatory portion of
the amended information are identical with those of the original information
for homicide, there could not be any effect on the prosecution's theory of the
case; neither would there be any possible prejudice to the rights or defense of
petitioner (Pacoy v. Cajigal, G.R. No. 157472, September 28,2007).
Substitution of complaint or information (Bar 2002)
1. A complaint or information may be substituted if it appears at any
time before judgment that a mistake has been made in charging the proper
offense. In such a case, the court shall dismiss the original complaint or
information once the new one charging the proper offense is filed provided
the accused will not be placed in double jeopardy. (Sec. 14, Rule 110, Rules of
Court).
2, The dismissal of the original complaint or information is subject to
the provisions of Sec. 19 of Rule 119. Under this provision, if it becomes
manifest at any time before judgment that the accused cannot be convicted of
the offense charged or of any other offense necessarily included therein, as
when a mistake has been made in charging the proper offense, the court
nevertheless, shall commit the accused to answer for the proper offense by
requiring the filing of the proper information. The accused shall not be
discharged if there appears good cause to detain him. After the proper
information is filed, it shall dismiss the original case.
Distinction between substitution and amendment (Bar 1994)
The pronouncements in Pacoy v. Cajigal, G.R. No. 157472, September
28, 2007 citing Teehankee v. Madayag, G.R. No. 103102, March 6, 1992,
207 SCRA 134, which distinguish
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between amendment and substitution under Sec. 14 of Rule 110, are
illuminating:
"The first paragraph provides the rules for amendment of the information
or complaint, while the second paragraph refers to the substitution of the
information or complaint.
It may accordingly be posited that both amendment and substitution of
the information may be made before or after the defendant pleads, but they
differ in the following respects:
1.
Amendment may involve either formal or substantial changes,
while substitution necessarily involves a substantial change from the original
charge;
2.
Amendment before plea has been entered can be effected
without leave of court, but substitution of information must be with leave of court
as the original information has to be dismissed;
3.
Where the amendment is only as to form, there is no need for
another preliminary investigation and the retaking of the plea of the accused; in
substitution of information, another preliminary investigation is entailed and the
accused has to plead anew to the new information; and
4.
An amended information refers to the same offense charged in the
original information or to an offense which necessarily includes or is necessarily
included in the original charge, hence substantial amendments to the information
after the plea has been taken cannot be made over the objection of the accused,
for if the original information would be withdrawn, the accused could invoke
double jeopardy. On the other hand, substitution requires or presupposes that the
new information involves a different offense which does not include or is not
necessarily included in the original charge, hence the accused cannot claim double
jeopardy.
In determining, therefore, whether there should be an amendment under
the first paragraph of Section 14, Rule 110, or a substitution of information under
the
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second paragraph thereof, the rule is that where the second information involves
the same offense, or an offense which necessarily includes or is necessarily
included in the first information, an amendment of the information is sufficient;
otherwise, where the new information charges an offense which is distinct and
different from that initially charged, a substitution is in order.
There is identity between the two offenses when the evidence to support
a conviction for one offense would be sufficient to warrant a conviction for the
other, or when the second offense is exactly the same as the first, or when the
second offense is an attempt to commit or a frustration of, or when it necessarily
includes or is necessarily included in, the offense charged in the first information.
In this connection, an offense may be said to necessarily include another when
some of the essential elements or ingredients of the former, as this is alleged in
the information, constitute the latter. And, vice-versa, an offense may be said to
be necessarily included in another when the essential ingredients of the former
constitute or form a part of those constituting the latter."
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Chapter III
PROSECUTION OF CIVIL ACTION (Rule 111)
Implied institution of the civil action with the criminal action
1. When a criminal action is instituted, the civil action for the recovery
of the civil liability arising from the offense charged shall be deemed instituted
with the criminal action (Sec. 1 [a], Rule 111, Rules of Court). The reason for
the implied institution of the criminal action is the principle that every person
criminally liable for a felony is also civilly liable (Article 100, Revised Penal
Code).
Generally, a criminal case has two aspects, the civil and the criminal. The
civil aspect is based on the principle that every person criminally liable is also
civilly liable (Article 100, Revised Penal Code).
Under Art. 100 of the Revised Penal Code, every person criminally liable
for a felony is also civilly liable except in the instances when no actual damage
results from an offense, such as espionage, violation of neutrality, flight to an
enemy country, and crime against popular representation (Cruz v. Mina, G.R.
No. 154207, April 27,2007).
2. A separate civil action would only prove to be costly, burdensome
and time-consuming for both parties and further delay the final disposition of
the case. The multiplicity of suits must be avoided. With the implied institution
of the civil action in the criminal action, the two actions are merged into one
composite proceeding, with the criminal action predominating the civil (Ricarze
v. Court of Appeals, G.R. No. 160451, February 9,2007).
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The civil action, in which the offended party is the plaintiff and the
accused is the defendant is deemed instituted with the criminal action unless
the offended party waives the civil action or reserves the right to institute it
separately or institutes the civil action prior to the criminal action. The law
allows the merger of the criminal and the civil actions to avoid multiplicity of
suits. Thus, when the state succeeds in prosecuting the offense, the offended
party benefits from such result and is able to collect the damages awarded to
him (Heirs of Sarah Marie Palma Burgos v. Court of Appeals, G.R. No.
169711, February 8,2010).
3. The rule on implied institution of the civil action does not apply before
the filing of the criminal action or information. Hence, it was ruled in one case
that when there is no criminal case yet against the respondents as when the
Ombudsman is still in the process of finding probable cause to prosecute the
respondent, the rule that a civil action is deemed instituted along with the
criminal action unless the offended party: (a) waives the civil action, (b)
reserves the right to institute it separately, or (c) institutes the civil action prior
to the criminal action, is not applicable (ABS-CBN Broadcasting Corporation v.
Ombudsman, G.R. No. 133347, October 15,2008).
Purposes of the criminal and civil actions
The prime purpose of the criminal action is to punish the offender in
order to deter him and others from committing the same or similar offense, to
isolate him from society, reform and rehabilitate him or, in general, to maintain
social order. On the other hand, the sole purpose of the civil action is for the
resolution, 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. The sole purpose of the civil action is for the resolution, 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 (Ricarze v.
Court of Appeals, G.R. No. 160451, February 9,2007).
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Judgment of conviction includes a judgment on the civil liability
Because of the rule that the civil action is impliedly instituted with the
criminal action, the trial court should, in case of conviction, state the civil liability
or damages caused by the wrongful act or omission to be recovered from the
accused by the offended party, if there is any and if the filing of the civil action
has not been reserved, previously instituted or waived (Hun Hyung Park v. Eun
Wong Choi, G.R. No. 165496, February 12,2007).
Who the real parties in interest are in the civil aspect of the case
The real parties in interest in the civil aspect of a decision are the
offended party and the accused. Hence, either the offended party or the
accused may appeal the civil aspect of the judgment despite the acquittal of the
accused. The public prosecutor generally has no interest in appealing the civil
aspect of a decision acquitting the accused. The acquittal ends his work. The
case is terminated as far as he is concerned (Hun Hyung Park v. Eun Wong
Choi, G.R. No. 165496, February 12, 2007).
Rule applicable
One of the issues in a criminal case being the civil liability of the accused
arising from the crime, the governing law is the Rules of Criminal Procedure,
not the Rules of Civil Procedure which pertains to a civil action arising from the
initiatory pleading that gives rise to the suit (Hun Hyung Park v. Eun Wong
Choi, G.R. No. 165496, February 12,2007).
When a civil action may proceed independently; independent civil actions
and quasi-delicts (Bar 2005)
1. The 2000 Rules of Criminal Procedure has clarified what civil actions
are deemed instituted in a criminal prosecution. Under the Rules, only the civil
liability of the accused arising from the crime charged is deemed included in a
crimi
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nal action. Thus, the civil actions referred to in Articles 32,33,
34 and 2176 of the Civil Code shall remain "separate, distinct
and independent" of any criminal prosecution which may be
based on the same act (Philippine Rabbit Bus Lines, Inc. v.
People, G.R. No. 147703, April 14,2004).
Thus, if the employee/driver of a common carrier, by
his negligent act causes serious injuries to a pedestrian, the
former is not only civilly liable as a result of the felonious act
(reckless imprudence resulting to serious physical injuries)
but is likewise liable under a quasi-delict or culpa aquiliana
pursuant to Article 2176 of the Civil Code. Such civil liability
even if resulting from the same negligent act is separate and
independent of the crime.
2. Another possible legal basis for the institution of a
civil action against the driver separate from the civil action
flowing from the offense is Article 33 of the Civil Code. Because
the act of the driver has caused physical injuries, "a civil action
for damages entirely separate and distinct from the criminal
act, may be brought by the offended party. Such civil action
shall proceed independently of the criminal prosecution, and
shall require only a preponderance of evidence" (Article 33,
Civil Code of the Philippines).
3. By the clear terms of Article 2177 of the Civil Code,
the responsibility arising from a quasi-delict "is entirely
separate and distinct from the civil liability arising from
negligence under the Penal Code "
The same rule in Article 2177 of the Civil Code finds
support from Article 31 of the same Code, thus:
"When the civil action is based on an obligation not
arising from the act or omission complained of as a felony,
such civil action may proceed independently of the criminal proceedings and regardless of the results of the latter."
Article 2176 arises from a source of obligation distinct
from a crime while Articles 32, 33, and 34 of the Civil Code
are sources of obligations arising from direct provisions of
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law. The civil actions arising from these articles do not arise from the acts or
omissions constituting a felony hence, are not impliedly instituted with the
criminal action. Only the civil action to recover the civil liability flowing from or
arising from the offense charged is impliedly instituted with the criminal action.
4.
The civil actions arising from Articles 2176, 32, 33 and 34 of the
Civil Code may be filed independently and separately from the criminal action
because they do not arise from the offense charged. What the law proscribes is
double recovery. Article 2177 of the Civil Code declares that "the plaintiff
cannot recover damages twice for the same act or omission of the defendant
The same prohibition on double recovery is reiterated in the Rules of
Court (Sec. 3, Rule 111), thus:
"x x x In no case however, may the offended party recover damages twice for the
same act or omission charged
in the criminal action."
5. A criminal case based on defamation, fraud or physical injuries
gives rise to an independent civil action arising not from the crime charged but
from Article 33 even if caused by the very same defamatory or fraudulent act.
This civil action is also distinct from the civil action which is the consequence of
the alleged criminal act. The same principle applies to all those actions based on
Articles 32, 34 and 2176 of the Civil Code which may arise from the very same
act that gave rise to the crime.
Consequences of the independent character of actions under Articles 32,
33, 34 and 2176 of the Civil Code
The following are some of the consequences of the separate and distinct
character of civil actions arising not from the offense charged but from Articles
32,33,34 and 2176 of the Civil Code:
1. The right to bring the civil action shall proceed independently of the
criminal action (Sec. 3, Rule 111, Rules
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of Court) and regardless of the results of the latter (Article 31, Civil Code of the
Philippines). (Bar 2005)
2. The quantum of evidence required is preponderance of evidence
(Sec. 3, Rule 111, Rules of Court).
3. (a) The right to bring the foregoing actions based on the Civil Code
need not be reserved in the criminal prosecution, since they are not deemed
included therein.
(b) The institution or the waiver of the right to file a separate
civil action arising from the crime charged does not extinguish the right
to bring an independent civil action.
(c) Even if a civil action is filed separately, the ex delicto civil
liability in the criminal prosecution remains, and the offended party may
— subject to the control of the prosecutor — still intervene in the
criminal action, in order to protect the remaining civil interest therein
(See also Philippine Rabbit Bus Lines, Inc. v. People, G.R. No. 147703,
April 14,2004).
When there is no implied institution of the civil action
1. There is no implied institution of the civil action to recover civil
liability arising from the offense charged in any of the following instances:
(a) When the offended party waives the civil action;
(b) When the offended party reserves the right to institute the
civil action separately; or
(c) When the offended party institutes the civil action prior to
the criminal action (Sec. 1 [a], Rule 111, Rules of Court).
The above rule has no application to independent civil actions under
Articles 32, 33, 34 and 2176 of the Civil Code.
2. When a criminal action is instituted, the civil action for the
recovery of civil liability arising from the offense
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charged shall be deemed instituted with the criminal action.
Hence, it is correct to argue that there being no reservation,
waiver, nor prior institution of the civil aspect of the criminal
case, it follows that the civil case arising from grave threats
is deemed instituted with the criminal action and, hence, the
private prosecutor may rightfully intervene to prosecute the
civil aspect (Cruz v. Mina, G.R. No. 154207, April 27,2007).
Reservation of the civil action
If the offended party desires to reserve the right to
institute the civil action after the criminal action has been
instituted, the reservation shall be made before the prosecution
starts presenting its evidence. The reservation is to be made
under circumstances that would afford the offended party a
reasonable opportunity to make such reservation (Sec. l[a],
Rule 111, Rules of Court).
No reservation of the civil action in Batas Pambansa Big. 22
(Bar 2001; 2002)
1. While the rule allows the offended party to reserve
the right to institute the civil action, such right does not apply
to a prosecution of a criminal action for violation of Batas
Pambansa Big. 22, which is the law on bouncing checks. The
criminal action in this case shall be deemed to include the
corresponding civil action. No reservation to file such civil
action separately shall be allowed. Upon the filing of the joint
and civil actions, the offended party shall pay in full the filing
fees based on the amount of the check involved. This amount
shall also be considered as the actual damages claimed (Sec.
l[b], Rule 111, Rules of Court). It should be observed that
what the rule prohibits is the filing of a reservation to file the
civil action arising from Batas Pambansa Big 22. It does not
prohibit the waiver of the civil action or the institution of the
civil action prior to the criminal action.
2. Even under the amended rules, a separate proceeding for the recovery of civil liability in cases of violation of
Batas Pambansa Big. 22 is allowed when the civil case is filed
ahead of the criminal case (Lo Bun Tiong v. Balboa, G.R. No.
113
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158177, January 28, 2008). Quoting the earlier case of Hyatt Industrial
Manufacturing Corp. v. Asia Dynamic Electrix Corp. (465 SCRA 454) the Court
noted in Lo Bun Tiong:
w
x x x This rule [Rule 111(b) of the 2000 Revised Rules of Criminal
Procedure] was enacted to help declog court dockets which are filled with B.P. 22
cases as creditors actually use the courts as collectors. Because ordinarily no filing
fee is charged in criminal cases for actual damages, the payee uses the
intimidating effect of a criminal charge to collect his credit grab's and sometimes,
upon being paid, the trial court is not even informed thereof. The inclusion of the
civil action in the criminal case is expected to significantly lower the number of
cases filed before the courts for collection based on dishonored checks. It is also
expected to expedite the disposition of these cases. Instead of instituting two
separate cases, one for criminal and another for civil, only a single suit shall be filed
and tried. It should be stressed that the policy laid down by the Rules is to
discourage the separate filing of the civil action. The Rules even prohibit the
reservation of a separate civil action, which means that one can no longer file a
separate civil case after the criminal complaint is filed in court. The only instance
when separate proceedings are allowed is when the civil action is filed ahead of
the criminal case. Even then, the Rules encourage the consolidation of the civil
and criminal cases. We have previously observed that a separate civil action for
the purpose of recovering the amount of the dishonored checks would only prove
to be costly, burdensome and time-consuming for both parties and would further
delay the final disposition of the case. This multiplicity of suits must be avoided.
Where petitioners' rights may be fully adjudicated in the proceedings before the
trial court, resort to a separate action to recover civil liability is clearly
unwarranted." (Emphasis supplied)
When the separate civil action is suspended
1. After the criminal action is commenced, the separate civil action
arising therefrom cannot be instituted until final judgment has been entered in
the criminal action (Sec. 2, Rule
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111, Rules of Court). The rule indicates that preference is given to the
resolution of the criminal action.
2. It is submitted that even if the right to institute the civil action
separately has been reserved, the separate civil action cannot however, be
instituted until final judgment has been entered in the criminal action
previously instituted.
Also, if the civil action was commenced before the institution of the
criminal action, the civil action shall be suspended in whatever stage it may be
found before judgment on the merits, once the criminal action is filed. The
suspension shall last until final judgment is rendered in the criminal action (Sec.
2, Rule 111, Rules of Court). This rule however, does not apply to independent
civil actions discussed earlier and covers only civil actions arising from the
offense charged.
Consolidation of the civil action with the criminal action
1. It is clear that the above rule, as it stands, gives precedence to the
resolution of the criminal action and will necessarily result in a delay in the
disposition of the civil action which may have been already filed or of the action
the right to the filing of which has been reserved. However, the rule also affords
a remedy to avoid such a delay. The offended party may move for the
consolidation of the civil action with the criminal action in the court trying the
criminal action. The motion for consolidation by the offended party is to be filed
before judgment on the merits is rendered in the civil action. The consolidated
criminal and civil actions shall be tried and decided jointly (Sec. 2, Rule 111,
Rules of Court).
2. If the civil action was commenced ahead of the criminal action and
evidence had already been adduced in the civil action even before the
institution of the criminal action, the evidence so adduced shall be deemed
automatically reproduced in the criminal action without prejudice to the right
to cross- examine the witnesses presented by the offended party in the
criminal case. The consolidation shall not likewise prejudice the right of the
parties to present additional evidence (Sec. 2, Rule 111, Rules of Court).
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Suspension of the period of prescription
Where there is no consolidation of the civil action with
the criminal action and the civil action is suspended or the
civil action cannot be instituted separately until after final
judgment is rendered in the criminal action, the prescriptive
period of the civil action shall be tolled during the pendency of
the criminal action (Sec. 2, Rule 111, Rules of Court).
When no reservation is required; when civil action is not
suspended
1. When the act constituting a crime is at the same time
a violation of Articles 32, 33, 34, and 2176 of the Civil Code,
there is no need to reserve the filing of a separate civil action.
The civil actions under the said articles do not arise from the
offense but from violations of specific provisions of the Civil
Code. Specific attention need be given to the tenor of Sec. 1 of
Rule 111. Under said rule, only the civil action arising from the
offense charged shall be deemed instituted with the criminal
action. Actions based on Articles 32,33, and 34 arise from the
law and are commonly called 'independent civil actions' while
those based on Article 2176 arise from quasi-delicts. They do
not arise from the offense or crime charged and hence, are
not deemed instituted with the filing of the criminal action.
Article 1156 of the Civil Code considers law' and 'quasidelicts' as sources of obligations separate and distinct from a
crime (acts or omissions punished by law). Under Article 31 of
the Civil Code, "when the civil action is based on an obligation
not arising from the act or omission complained of as a felony,
such civil action may proceed independently of the criminal
proceedings and regardless of the result of the latter."
2. Article 31 of the Civil Code is reinforced by the Rules
of Court, thus:
"In the cases provided in Articles 32,33,34 and 2176
of the Civil Code of the Philippines, the independent civil
action may be brought by the offended party. It shall proceed independently of the criminal action... In no case,
however, may the offended party recover damages twice
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for the same act or omission charged in the criminal action" (Sec. 3, Rule 111,
Rules of Court).
To reiterate: Under Sec. 1 of Rule 111, what is "deemed instituted" with
the criminal action is only the action to recover civil liability "arising from the
offense charged." Actions under Articles 32, 33, 34 and 2176 of the Civil Code
may be filed separately and prosecuted independently even without any
reservation in the criminal action. The failure to make a reservation in the
criminal action is not a waiver of the right to file a separate and independent
civil action based on these articles of the Civil Code (Casupanan v. Laroya, 388
SCRA 28). In a subsequent case, the Supreme Court further held that what is
deemed instituted in every criminal prosecution is the civil liability arising from
the crime or delict per se (civil liability ex delicto), but not those liabilities arising
from quasi- delicts, contracts or quasi-contracts (Philippine Rabbit Bus Lines v.
People, 427 SCRA 456).
3. Article 31 of the Civil Code as well as Sec. 3 of Rule 111 of the Rules of
Court both support the conclusion that the civil actions based on Articles 32,
33, 34 and 2176 of the Civil Code of the Philippines are not suspended by the
commencement of the criminal action because they may proceed
independently of the criminal proceedings.
Counterclaim, cross-claim, third-party claim in a criminal action
1. A court cannot entertain counterclaims, cross-claims and third
party complaints in the criminal action. A criminal case is not the proper
proceedings to determine the private complainant's civil liability. A court trying
a criminal case is limited to determining the guilt of the accused, and if proper,
to determine his civil liability. It cannot award damages in favor of the accused
(Maccay v. Nobela, 454 SCRA 504).
2. The rule is explicit:
No counterclaim, cross-claim or third-party complaint may be filed by the
accused in the criminal case, but any cause of action which could have been the
subject
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thereof may be litigated in a separate civil action (Sec.
l[a], Rule 111, Rules of Court).
Rules on filing fees
Filing fees apply when damages are being claimed by the offended party.
The following summarizes the rule on filing fees:
(a) There are no filing fees required for actual damages claimed (Sec.
l[a], Rule 111) unless required by the Rules. Examples: In Batas Pambansa Big.
22 cases, the filing fees shall be paid based on the amount of the check and
shall be paid in full ("Sec. l[b], Rule 111, Rules of Court); In estafa cases, the
filing fees shall be paid based on the amount involved (Sec. 21[a], AM. No.
04-2-04, August 16,2004).
(b) Filing fees shall be paid by the offended party upon the filing of the
criminal action in court where he seeks for the enforcement of the civil liability
of the accused by way of moral, nominal, temperate or exemplary damages
but other than actual damages, and where the amount of such damages is
specified in the complaint or information. If the amount is not specified in the
complaint or information but, any of the damages is subsequently awarded,
the filing fees assessed in accordance with the Rules, shall constitute a first lien
on the judgment awarding such damages (Sec. l[a], Rule 111, Rules of Court).
Effect of death of the accused on the civil action
1. If the accused dies after arraignment and during the pendency of the
criminal action, the civil liability of the accused arising from the crime is
extinguished but the independent civil actions mentioned in Sec. 3 of Rule 111
and civil liabilities arising from other sources of obligation may be continued
against the estate or legal representative of the accused after proper
substitution or against the estate as the case may be. The heirs of the accused
may be substituted for the deceased without requiring the appointment of an
executor or administrator and the court may appoint a guardian ad litem for
the minor heirs (Sec. 4, Rule 111, Rules of Court).
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The court shall forthwith order the legal representative or
representatives to appear and be substituted within a period of thirty (30) days
from notice (Sec. 4, Rule 111, Rules of Court).
2. If the accused dies before arraignment, the case shall be dismissed
but the offended party may file the proper civil action against the estate of the
deceased (Sec. 4, Rule 111, Rules of Court).
3.
The Court in ABS-CBN Broadcasting Corporation v. Ombudsman
(G.R. No. 133347, October 15, 2008), on the basis of existing jurisprudence like
People v. Bayotas (G.R. No. 102007, September 2,1994), reiterated some
rules which may be summarized as follows:
(a) The death of the accused prior to final judgment terminates
his criminal liability and only the civil liability directly arising from and
based solely on the offense committed, i.e., civil liability "ex delicto in
senso strictio- re." But the claim for civil liability predicated on a source of
obligation other than a delict survives notwithstanding the death of the
accused. This source of obligation may be from law, contract,
quasi-contract or quasi-delict. In other words, the civil liability based
solely on the criminal action is the one that is extinguished.
(b) Where the civil liability survives, an action for recovery
therefore may be pursued but only by way of filing a separate civil
action.The separate civil action may be enforced either against the
executor/administrator or the estate of the accused, depending on the
source of obligation upon which the same is based (ABS-CBN Broadcasting Corporation v. Ombudsman, G.R. No. 133347, October
15,2008).
4. The death of the accused during the pendency of his appeal with
the Supreme Court totally extinguished his criminal liability. Such extinction is
based on Article 89 of the Revised Penal Code. The death of the accused
likewise extinguished the civil liability that was based exclusively on the crime
for which the accused was convicted {i.e., ex delicto),
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because no final judgment of conviction was yet rendered by the time of his
death. Only civil liability predicated on a source of obligation other than the
delict survived the death of the accused, which the offended party can recover
by means of a separate civil action CPeople of the Philippines v. Bringas Bunay
y Dam-at, G.R. No. 171268,, September 14,2010). Thus, the death of the
accused pending appeal of his conviction extinguishes his criminal liability and
the civil liability based solely thereon {People v. Jaime Ayochok y Tauli, G.R.
No. 175784, August 25,2010).
Novation: extinguishment of criminal liability
It is best to emphasize that "novation is not one of the grounds
prescribed by the Revised Penal Code for the extinguishment of criminal
liability." In la catena of cases, it was ruled that criminal liability for estafa is not
affected by a compromise or novation of contract. The crime of estafa,
reimbursement or belated payment to the offended party of the money
swindled by the accused does not extinguish the criminal liability of the latter.
Also, "criminal liability for estafa is not affected by compromise or novation of
contract, for it is a public offense which must be prosecuted and punished by
the Government on its own motion even though complete reparation should
have been made of the damage suffered by the offended party." In estafa,
reimbursement of or compromise as to the amount misappropriated after the
commission of the crime affects only the civil liability of the offender, and not
his criminal liability (Metropolitan Bank and Trust Company v. Rogelio
Reynaldo and Jose C. Adrandea, G.R. No. 164538, August 9,2010; Citations
omitted).
Effect of acquittal or the extinction of the penal action on the civil action or
civil liability
1. The extinction of the penal action does not carry with it the extinction
of the civil action. However, the civil action based on delict may be deemed
extinguished if there is a finding in a final judgment in the criminal action that
the act or omission from which the civil liability may arise did not
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exist (Sec. 2, Rule 111, Rules of Court). The civil action based on delict may,
however, 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
arise did not exist (Hun Hyung Park v. Eung Wong Choi, G.R. No. 165496,
February 12, 2007).
2. In case of acquittal, the accused may still be adjudged civilly liable.
The extinction of the penal action does not carry with it the extinction of the
civil action where (a) the acquittal is based on reasonable doubt as only
preponderance of evidence is required; (b) the court declares that the liability
of the accused is only civil; and (c) the civil liability of the accused does not arise
from or is not based upon the crime of which the accused was acquitted. The
civil liability is not extinguished by acquittal where such acquitted is based on
lack of proof beyond reasonable doubt, since only preponderance of evidence
is required in civil cases (Ching v. Nicdao, 522 SCRA 316, April 27, 2007; Box v.
People, 532 SCRA 284, September 5, 2007).
3. Similarly, it was again held that when the trial court acquits the
accused or dismisses the case on the ground of lack of evidence to prove the
guilt of the accused beyond reasonable doubt, the civil action is not
automatically extinguished since liability under such an action can be
determined based on mere preponderance of evidence. The offended party
may peel off from the terminated criminal action and appeal from the implied
dismissal of his claim for civil liability (Heirs of Sarah Marie Palma Burgos, G.R.
No 169711, February 8,2010).
4. Thus, under Section 2 of Rule 120, of the Rules of Court, a trial
court, in case of acquittal of an accused, is to state whether the prosecution
absolutely failed to prove his (accused) guilt or merely failed to prove his guilt
beyond reasonable doubt, and in either case, it shall determine if the act or
omission from which the civil liability might arise did not exist. If after a perusal
of the decision of the trial court it shows that it found that the acts or omissions
from which the civil liability of respondents might arise did not exist,
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there is no basis to award any civil liability to the private complainants (Ramon
Garces v. Simplicio Hernandez, et al., G.R. No. 180761, August 18,2010).
5. A more recent case is illustrative of the principle subject of this topic.
Here, the petitioner was charged with the crime of reckless imprudence
resulting in multiple homicide and multiple serious physical injuries with
damage to property in the Municipal Trial Court.
After trial on the merits, the MTC acquitted petitioner of the crime
charged. Petitioner was, however, held civilly liable and was ordered to pay the
heirs of the victims actual damages, civil indemnity for death, moral damages,
temperate damages and loss of earning capacity.
Petitioner appealed to the Regional Trial Court contending that the
Municipal Trial Court erred in holding him civilly liable in view of his acquittal
but the Regional Trial Court affirmed the judgment appealed from in toto.
Refusing to give up, petitioner appealed to the Court of Appeals which
rendered a decision affirming the judgment of the Regional Trial Court.
Left with no other recourse, petitioner now argued in the Supreme Court
that his acquittal should have freed him from payment of civil liability.
Emphatically, the Court declared: "We disagree.
"The rule is that every person criminally liable is also civilly liable. Criminal
liability will give rise to civil liability only if the felonious act or omission results in
damage or injury to another and is the direct and proximate cause thereof.
Every crime gives rise to (1) a criminal action for the punishment of the guilty
party and (2) a civil action for the restitution of the thing, repair of the damage,
and indemnification for the losses.
However, the reverse is not always true. In this connection, the relevant
portions of Section 2, Rule 111 and Section 2, Rule 120 of the Rules of Court
provide:
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Sec. 2. When separate civil action is suspended. —
xxx
The extinction of the penal action does not carry with it extinction of the
civil action. However, the civil action based on delict shall be deemed extinguished
if there is a finding in a final judgment in the criminal action that the act or
omission from which the civil liability may arise did not exist, (emphasis supplied)
"Sec. 2. Contents of the judgment. — xxx
In case the judgment is of acquittal, it shall state whether the evidence of
the prosecution absolutely failed to prove the guilt of the accused or merely failed
to prove his guilt beyond reasonable doubt. In either case, the judgment shall
determine if the act or omission from which the civil liability might arise did not
exist, (emphasis supplied)
Thus, the rule is that the acquittal of an accused of the crime charged will
not necessarily extinguish his civil liability, unless the court declares in a final
judgment that the fact from which the civil liability might arise did not exist.
Courts can acquit an accused on reasonable doubt but still order payment of
civil damages in the same case. It is not even necessary that a separate civil
action be instituted.
In this case, the MTC held that it could not ascertain with moral certainty
the wanton and reckless manner by which petitioner drove the bus in view of
the condition of the highway where the accident occurred and the short
distance between the bus and the taxi before the collision. However, it
categorically stated that while petitioner may be acquitted based on
reasonable doubt, he may nonetheless be held civilly liable.
The RTC added that there was no finding by the MTC that the act from
which petitioner's civil liability may arise did not exist. Therefore, the MTC was
correct in holding petitioner civilly liable to the heirs of the victims of the
collision for the tragedy, mental anguish and trauma they suffered plus
expenses they incurred during the wake and interment.
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In view of the pronouncements of the MTC and the RTC, we agree with
the conclusion of the CA that petitioner was acquitted not because he did not
commit the crime charged but because the RTC and the MTC could not
ascertain with moral conviction the wanton and reckless manner by which
petitioner drove the bus at the time of the accident. Put differently, petitioner
was acquitted because the prosecution failed to prove his guilt beyond
reasonable doubt. However, his civil liability for the death, injuries and
damages arising from the collision is another matter.
While petitioner was absolved from criminal liability because his
negligence was not proven beyond reasonable doubt, he can still be held civilly
liable if his negligence was established by preponderance of evidence. In other
words, the failure of the evidence to prove negligence with moral certainty
does not negate (and is in fact compatible with) a ruling that there was
preponderant evidence of such negligence. And that is sufficient to hold him
civilly liable.
Thus, the MTC (as affirmed by the RTC and the CA) correctly imposed
civil liability on petitioner despite his acquittal. Simple logic also dictates that
petitioner would not have been held civilly liable if his act from which the civil
liability had arisen did not in fact exist" (Romero v. People, G.R. No.
167546July 17,2009).
Effect of payment of the civil liability
Payment of civil liability does not extinguish criminal liability (Cabieo v.
Dimaculangan-Querijero, 522 SCRA 300, April 27, 2007). While there may be
a compromise upon the civil liability arising from the offense, such compromise
shall not extinguish the public action for the imposition of the legal penalty
(Art. 2034, Civil Code of the Philippines).
Effect of judgment in the civil case absolving the defendant
A final judgment rendered in a civil action absolving a defendant from
civil liability is not a bar to a criminal action against the defendant for the same
act or omission subject of the civil action (Sec. 5, Rule 111, Rules of Court).
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Subsidiary liability of employer
The provisions of the Revised Penal Code on subsidiary liability are
deemed written into the judgments in cases to which they apply. Thus, in the
dispositive portion of its decision, the trial court need not expressly pronounce
the subsidiary liability of the employer. Nonetheless, before the employers'
subsidiary liability is enforced, adequate evidence must exist establishing that
(1) they are indeed the employers of the convicted employees; (2) they are
engaged in some kind of industry; (3) the crime was committed by the
employees in the discharge of their duties; and (4) the execution against the latter has not been satisfied due to insolvency. These conditions may be
determined in the same criminal action in which the employee's liability,
criminal and civil, has been pronounced, in a hearing set for that precise
purpose, with due notice to the employer, as part of the proceedings for the
execution of the judgment (Rolito Calang and Philtranco Service Enterprises
Inc. v. People, G.R. No. 190696, August 3,2010).
Concept of a prejudicial question (Bar 1999)
1. A prejudicial question is an issue involved in a civil case which is
similar or intimately related to the issue raised in the criminal action, the
resolution of which determines whether or not the criminal action may
proceed. To constitute a prejudicial question, the rule also requires, aside from
the related issues, that the civil action be instituted previously or ahead of the
criminal action (Sec. 7, Rule 111, Rules of Court).
2. A prejudicial question is that which arises in a case, the resolution
of which is a logical antecedent of the issue involved in that case. Because the
jurisdiction to try and resolve the prejudicial question has been lodged in
another tribunal, the applicable rule is that the proceedings in the second case
may be suspended to await the resolution of the prejudicial question in the first
case (Suggested readings: Omictin v. Court of Appeals, 512 SCRA 70; People
v. Sandiganbayan, 485 SCRA 473; Reyes v. Pearlbank Securities, Inc., 560
SCRA 518; Coca-cola Bottlers [Phils.], Inc. v. Social Security Commission, 560
SCRA 719).
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Reason for the principle
The reason behind the principle of a prejudicial question is to avoid two
conflicting decisions in the civil case and in the criminal case (Jose v. Suarez,
556 SCRA 773; Sy Thiong Siou v. Sy Chim, G.R. No. 174168, March 30,2009).
Requisites for a prejudicial question (Bar 1999)
1. Sec. 7 of Rule 111 of the Rules of Court provides:
"Sec. 7. Elements of a prejudicial question. — The elements of a
prejudicial question are: (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 of such issue determines whether or not the criminal action
may proceed" (Jose v. Suarez, 556 SCRA 773).
Thus, for a civil action to be considered prejudicial to a criminal case, the
following requisites must be present: (1) the civil case involves facts intimately
related to those upon which the criminal prosecution would be based; (2) in
the resolution of the issue or issues raised in the civil action, the guilt or innocence of the accused would necessarily be determined; and (3) jurisdiction
to try said question must be lodged in another tribunal (Magestrado v. People,
G.R. No. 148072, July 10, 2009).
2. The phraseology of Sec. 7 presupposes the existence of two
actions — one civil and the other criminal. Hence, strictly speaking, a prejudicial
question under Sec. 7 of Rule 111 may not be invoked in any of the following
situations: (a) both cases are criminal, (b) both civil, (c) both cases are administrative, (d) one case is administrative and the other civil, or (e) one case is
administrative and the other criminal. To employ the word "prejudicial" in any
of these situations is to use the same not as a strict legal term but as a mere
journalistic device.
3. The same phraseology of Sec. 7 also discloses that even if one case
is civil and the other criminal, the principle of a prejudicial question will not
arise if the criminal case was
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instituted prior to the civil case. It does not arise because the rule does not
merely refer to an instituted civil action but specifically to a "previously
instituted* civil action. Neither does it refer to a previously instituted criminal
action. That the civil action must have been instituted ahead of the criminal
action is confirmed by the same rule which makes reference to a "subsequent
criminal action "
4. It was affirmed that under the amendment to the Rules of Court, a
prejudicial question is understood in law as that which must precede the
criminal action and which requires a decision before a final judgment can be
rendered in the criminal action with which said question is closely connected.
The civil action must be instituted prior to the institution of the criminal action.
If the criminal information was filed ahead of the complaint in the civil case, no
prejudicial question exists (Torres v. Garchitorena, G.R. No. 153666,
December 27,2002).
5. The tenor of Sec. 7 likewise presupposes that the issue that leads
to a prejudicial question is one that arises in the civil case and not in the criminal
case. It is the issue in the civil case which needs to be resolved first before it is
determined whether or not the criminal case should proceed or whether or
not there should be, in the criminal case, a judgment of acquittal or conviction.
6.
In unmistakable terms, it was stressed that a prejudicial question
comes into play generally in a situation where a civil action and a criminal
action are both pending and there exists in the former an issue which must be
preemptively resolved before the criminal action may proceed. The issue raised
in the civil action would be determinative juris et de jure of the guilt or
innocence of the accused in the criminal case (Sy Thiong Siou v. Sy Chim, G.R.
No. 174168, March 30, 2009).
7. Another vital element of a prejudicial question is one which has
something to do with the issues involved. It is worth remarking that not every
issue raised in the civil action will result in a prejudicial question. The rule clearly
implies that
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it is not enough that both cases involve the same facts or even the same or
similar issues to make the civil case prejudicial to the criminal case. The mere
claim that the issues in both cases are intimately related will not necessarily
make the issue in the civil case prejudicial to the resolution of the issue in the
criminal case. It is critical to show that the issue in the civil case is
'determinative' of the issue in the criminal case. In the words of the rule: "x x x
the resolution of such issue determines whether or not the criminal action
may proceed" (Sec. 7, Rule 111, Rules of Court).
It is apparent that the exact parameters of what is 'determinative* has
not been defined by the rule thus, leaving to the court the task of adjudicating
upon the existence or non-existence of that vital factor in the application of the
principle. Nevertheless, one consequence appears quite clear: If the resolution
of the issue in the civil action will not determine the criminal responsibility of
the accused in the criminal action based on the same facts, the civil case does
not involve a prejudicial question. Neither is there a prejudicial question if the
civil and the criminal action can, according to law, proceed independently of
each other, that is, the criminal action can proceed without waiting for the
resolution of the issues in the civil case.
Effect of the existence of a prejudicial question; suspension of the criminal
action (Bar 1995; 1999; 2010)
1. A petition for the suspension of the criminal action based upon the
pendency of a prejudicial question in a civil action may be filed (Sec. 6, Rule
111, Rules of Court). Under the clear terms of Sec. 6, it is worth remembering
that the rule requires the filing of a petition before the suspension of the
criminal action. The rule therefore, as it appears, precludes a motu proprio
suspension of the criminal action.
2. The need for the filing of a petition finds support in jurisprudence
which declares that since suspension of the proceedings in the criminal action
may be made only upon petition and not at the instance of the judge or the
investigating prosecutor, the latter cannot take cognizance of a claim of a
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prejudicial question without a petition to suspend being filed. Since a petition to
suspend can be filed only in the criminal action, the determination of the
pendency of a prejudicial question should be made at the first instance in the
criminal action, and not before the Supreme Court in an appeal from the civil
action (Integrated Bar of the Philippines v. Atienza, G.R. No. 175241,
February 24,2010).
3. It also needs to be stressed that when there is a prejudicial question,
the action to be suspended is the criminal and not the previously instituted civil
action. When there is a prejudicial question, the criminal case may be
suspended pending the final determination of the issues in the civil case. A
prejudicial question accords a civil case a preferential treatment and constitutes
an exception to the general rule that the civil action shall be suspended when
the criminal action is instituted.
The general rule provides that if the civil action was commenced before
the institution of the criminal action, the civil action shall be suspended in
whatever stage it may be found before judgment on the merits, once the
criminal action is commenced. "The suspension shall last until final judgment is
rendered in the criminal action." A prejudicial question is an exception to this
rule. The principle of prejudicial question is not within the ambit of this general
rule under Sec. 2 of Rule 111.
Suspension does not include dismissal
The rule authorizing the suspension of the criminal case does not
prescribe the dismissal of the criminal action. It only authorizes its suspension.
The suspension shall be made upon the filing of a petition for suspension.
A case was emphatic in reiterating this principle. The case of Yap v.
Paras, 205 SCRA 625, stressed that the rule says "suspension, and not
dismissal."
Where to file the petition for suspension
1. The filing for a petition for suspension does not require that the
criminal case be already filed in court.
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It is sufficient that the case be in the stage of preliminary investigation as long
as there has already been a previously instituted civil case. Also, the petition for
suspension is not to be filed in the civil case but in the criminal case.
2. The rule provides therefore, that a petition for the suspension of the
criminal action may be filed in the office of the prosecutor conducting the
preliminary investigation. When the criminal action has been filed in court for
trial, the petition to suspend shall be filed in the same criminal action at any
time before the prosecution rests (Sec. 6, Rule 111, Rules of Court).
Case illustrations
1. The case oiPimentel v. Pimentel, G.R. No. 172060, September 13,
2010, lucidly illustrates when the principle of prejudicial question does not
apply. Here, the private respondent filed an action for frustrated parricide
against the petitioner. Several months after, the private respondent filed an
action for the declaration of the nullity of their marriage. The petitioner filed an
urgent motion to suspend the proceedings in the court where the criminal
case was pending on the ground of the existence of a prejudicial question. The
petitioner asserted that since the relationship between the offender and the
victim is a key element in parricide, the outcome of the civil case would have a
bearing in the criminal case filed against him.
When the case reached the Court of Appeals, the court concluded
against the existence of a prejudicial question. The Court of Appeals ruled that
in the criminal case for frustrated parricide, the issue is whether the offender
commenced the commission of the crime of parricide directly by overt acts
and did not perform all the acts of execution by reason of some cause or
accident other than his own spontaneous desistance. On the other hand, the
issue in the civil action for annulment of marriage is whether petitioner is
psychologically incapacitated to comply with the essential marital obligations.
The Court of Appeals continued that even if the marriage
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between petitioner and respondent would be declared void, it would be
immaterial to the criminal case because prior to the declaration of nullity, the
alleged acts constituting the crime of frustrated parricide had already been
committed and all that is required for the charge of frustrated parricide is that
at the time of the commission of the crime, the marriage is still subsisting.
The Supreme Court sustained the conclusion of the Court of Appeals
with an added reason — that the facts show that the criminal case was filed
ahead of the case for declaration of nullity. The rule is clear, wrote the Court,
that for a prejudicial question to exist, the civil action must be instituted first
before the filing of the criminal action. As such, the requirement of Section 7,
Rule 111 of the 2000 Rules on Criminal Procedure was not met since the civil
action was filed subsequent to the filing of the criminal action.
The Court added that the resolution of the civil action is not a prejudicial
question that would warrant the suspension of the criminal action. While the
relationship between the offender and the victim is a key element in the crime
of parricide, the issue in the annulment of marriage is not similar or intimately
related to the issue in the criminal case for parricide. The issue in the civil case
for annulment of marriage under Article 36 of the Family Code is whether
petitioner is psychologically incapacitated to comply with the essential marital
obligations. The issue in parricide is whether the accused killed the victim. In
this case, since petitioner was charged with frustrated parricide, the issue is
whether he performed all the acts of execution which would have killed
respondent as a consequence but which, nevertheless, did not produce it by
reason of causes independent of petitioner's will. At the time of the
commission of the alleged crime, petitioner and respondent were married. The
subsequent dissolution of their marriage, in case the petition in the civil case is
granted will have no effect on the alleged crime that was committed at the
time of the subsistence of the marriage. In short, even if the marriage between
petitioner and respondent is annulled, petitioner could still be held criminally
liable since at the time
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of the commission of the alleged crime, he was still married to respondent.
2. The case of Magestrado v. People G.R. No. 148072, July 10,2009, is
likewise illuminating.
Here, the private respondent filed a criminal complaint for perjury
against the petitioner for executing an affidavit of loss of a certificate of title of
a parcel of land despite allegedly knowing that no loss of the certificate
occurred because the petitioner had actually delivered the same to the private
respondent as security for a loan which the petitioner contracted from the
private respondent. After an information for perjury against the petitioner was
instituted, he filed a motion for suspension of the proceedings based on a
prejudicial question. He alleged that a case filed against him by the private
respondent for recovery of a sum of money is pending before another court.
He further alleged that another civil case is also pending before another branch
of the same court when he filed against private respondent a complaint for
cancellation of mortgage, delivery of title and damages. The issues in the said
civil cases according to petitioner are similar or intimately related to the issues
raised in the criminal action.
As to whether it was proper to suspend the criminal case in view of the
pending civil cases, the Supreme Court observed that the pending civil cases
are principally for the determination of whether a loan was obtained by the
petitioner from the private respondent and whether petitioner executed a real
estate mortgage in favor of the private respondent. On the other hand, the
criminal case involves the determination of whether petitioner committed
perjury in executing an affidavit of loss to support his request for issuance of a
new owner's duplicate copy of the certificate of title.
The Court went on to hold that it is evident that the civil cases and the
criminal case can proceed independently of each other. Regardless of the
outcome of the two civil cases, it will not establish the innocence or guilt of the
petitioner in the criminal case for perjury. The purchase by petitioner of the
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land or his execution of a real estate mortgage will have no bearing whatsoever
on whether petitioner knowingly and fraudulently executed a false affidavit of
loss.
3. Another case on the other hand, demonstrates the application of the
concept of "determinativeness" as a critical element under the principle of
prejudicial question.
In Omictin v. Court of Appeals, G.R. No. 148004, January 22, 2009, the
petitioner, operations manager of a corporation filed a complaint for two
counts of estafa against the private respondent. He alleged that the private
respondent, despite repeated demands, refused to return the two company
vehicles entrusted to him when he was still the president of the corporation.
The private respondent avers that the demands are not valid demands, the
petitioner not having the authority to act for the corporation in view of the
invalidity of his appointment. The investigating prosecutor however,
recommended the indictment of the private respondent and was charged with
the crime of estafa.
The private respondent then filed a motion to suspend proceedings on
the basis of a prejudicial question because of the then pending case with the
Securities and Exchange Commission (later transferred to the RTC), a case
involving the same parties. It appears that earlier, the private respondent filed a
case for the declaration of nullity of the respective appointments of the
petitioner and other individuals as corporate officers. The case likewise
involved the recovery of share in the profits, involuntary dissolution and the
appointment of a receiver, recovery of damages and an application for a temporary restraining order and injunction against the corporation and some of its
officials.
The case filed by the private respondent also alleged that the
appointment of certain officers were invalid because it was in derogation of the
corporate by-laws requiring that the president must be chosen from among
the directors, and elected by the affirmative vote of a majority of all the
members of the board of directors. Since the appointment of the officer
responsible for appointing the petitioner was
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invalid, the petitioner's appointment as operations manager was likewise
allegedly invalid. Thus, private respondent claims, the petitioner neither has
the power nor the authority to represent or act for the corporation in any
transaction or action before any court of justice. Citing as a reason the absence
of a board resolution authorizing the continued operations of the corporation
as a corporate entity, the private respondent allegedly retained possession of
the office equipment of the company in a fiduciary capacity as director of the
corporation pending its dissolution and/or the resolution of the intracorporate
dispute.
On the issue of whether or not a prejudicial question exists to warrant
the suspension of the criminal proceedings pending the resolution of the
intra-corporate controversy in the RTC, the Court sustained the theory of the
private respondent that the resolution of the issues raised in the intracorporate
dispute will determine the guilt or innocence of private respondent in the
crime of estafa filed against him by the petitioner. One of the elements of the
crime of estafa with abuse of confidence under Article 315, par. 1(b) of the
Revised Penal Code is "a demand made by the offended party to the offender x
x x." Under the circumstances, since the alleged offended party is the
corporation, the validity of the demand for the delivery of the subject vehicles
rests upon the authority of the person making such a demand on the
company's behalf. In the civil cases, the private respondent was challenging the
petitioner's authority to act for the corporation in the corporate case pending
before the RTC. Taken in this light, added the Court, if the supposed authority
of petitioner is found to be defective, it is as if no demand was ever made,
hence, the prosecution for estafa cannot prosper.
4. Batas Pambansa Big. 22 controversies present a special class of cases
with remarkably consistent rulings against the appreciation of a prejudicial
question. One case worthy of note and which demonstrates an absence of a
prejudicial question is Yap v. Cabales, G.R. No. 159186, June 5,2009.
Here, the petitioner issued bouncing checks to the payee which were
later rediscoiinted in favor of private respondents.
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When the checks were dishonored, the private respondents then filed civil
actions to collect sums of money with damages against the petitioner in the
RTC. Subsequently informations were also filed against the petitioner for
violation of Batas Pambansa Big. 22.
In the criminal cases, petitioner filed separate motions to suspend
proceedings on account of the existence of a prejudicial question. Petitioner
prayed that the proceedings in the criminal cases be suspended until the civil
cases pending before the RTC were finally resolved. The main contention of the
petitioner is that a prejudicial question, as defined by law and jurisprudence,
exists because the civil cases for collection earlier filed against him for collection
of sum of money and damages were filed ahead of the criminal cases for
violation of Batas Pambansa Big. 22. He further argued that, in the pending civil
cases, the issue as to whether private respondents are entitled to collect from
the petitioner despite the lack of consideration, is an issue that is a logical
antecedent to the criminal cases for violation of Batas Pambansa Big. 22. For if
the court rules that there is no valid consideration for the check's issuance, as
petitioner contends, then it necessarily follows that he could not also be held
liable for violation of Batas Pambansa Big. 22. The court denied the motions for
lack of merit. The subsequent motions for reconsideration were likewise
denied.
Ruling on the issue on appeal to it, the Court explained t h a t " x x x The
issue in the criminal cases is whether the petitioner is guilty of violating Batas
Pambansa Big. 22, while in the civil case, it is whether the private respondents
are entitled to collect from the petitioner the sum or the value of the checks
that they have rediscounted from the payee." For the Court, the resolution of
the issue raised in the civil action is not determinative of the guilt or innocence
of the accused in the criminal cases against him, and there is no necessity that
the civil case be determined first before taking up the criminal cases. Citing the
earlier case of Lozano v. Martinez (146 SCRA 323), the Court added that in a
criminal action for violation of Batas Pambansa Big. 22, it is the mere issuance
of worthless
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checks with knowledge of the insufficiency of funds to support the checks
which constitutes the offense. As a consequence, even if the accused is
declared not liable for the payment of the value of the checks and damages, he
cannot be adjudged free from criminal liability for violation of Batas Pambansa
Big. 22.
5. Another case similarly decided is that of Sps. Jose v. Sps. Suctrez, G.R.
No. 176795, June 30,2008.
The respondents who are spouses, are the debtors of the petitioners,
also spouses under an agreement which required the respondents to pay a
daily interest on their debts but which interest was later on increased. It was
the practice for petitioners to give the loaned money to the respondents and
the latter would deposit the same in the petitioners' account to cover the
maturing postdated checks they had previously issued in payment of their
other loans. The respondents would then issue checks in favor of petitioners in
payment of the amount borrowed from them with the agreed daily interest.
Respondents later filed a complaint against petitioners seeking the
declaration of "nullity of interest of 5% per day, fixing of interest, recovery of
interest payments" and the issuance of a writ of preliminary injunction, alleging
that the interest rate of 5% a day is iniquitous, contrary to morals, done under
vitiated consent and imposed using undue influence by taking improper
advantage of their financial distress. They claimed that due to serious liquidity
problems, they were forced to rely on borrowings from banks and individual
lenders, including petitioners, and that they had to scramble for funds to cover
the maturing postdated checks they issued to cover their other borrowings.
Thereafter, several cases for violation of Batas Pambansa Big. 22 were
filed against one of the respondents who in turn filed motions to suspend the
criminal proceedings on the ground of prejudicial question, on the theory that
the checks subject of the Batas Pambansa Big. 22 cases are void for being
contra bonos mores or for having been issued in payment of the iniquitous
and unconscionable interest imposed by
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petitioners. The suspension order issued by the lower court was later on
upheld by the Court of Appeals which concluded that if the checks subject of
the criminal cases were later on declared null and void, then said checks could
not be made the bases of criminal prosecutions under Batas Pambansa Big. 22.
In other words, ruled the Court of Appeals, the outcome of the determination
of the validity of the said checks is determinative of guilt or innocence of the
accused in the criminal case.
The Supreme Court reversed, holding that the prejudicial question
theory of the respondents must fail. For the Court, the prejudicial question
posed by respondents is simply whether the daily interest rate of 5% is void,
such that the checks issued by respondents to cover said interest are likewise
void for being contra bonos mores, and thus the cases for Batas Pambansa Big.
22 will no longer prosper.
The Court stressed that the validity or invalidity of the interest rate is not
determinative of the guilt of respondents in the criminal cases because the
reason for the issuance of a check is inconsequential in determining criminal
culpability under Batas Pambansa Big. 22. What Batas Pambansa Big. 22
punishes is the issuance of a bouncing check and not the purpose for which it
was issued or the terms and conditions relating to its issuance. The mere act of
issuing a worthless check is malum prohibitum provided the other elements of
the offense are properly proved. Thus, whether or not the interest rate
imposed by petitioners is eventually declared void for being contra bonos
mores will not affect the outcome of the Batas Pambansa Big. 22 cases because
what will ultimately be penalized is the mere issuance of bouncing checks. In
fact, the primordial question posed before the court hearing the Batas
Pambansa Big. 22 cases is whether the law has been breached, that is, if a
bouncing check has been issued.
6. A similar result was reached in yet another more recent case, where
the High Court rejected respondent's' contention that the novation of the credit
line agreement was a prejudicial question in the prosecution for violation
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of Batas Pambansa Big. 22. According to the Court, the mere act of issuing a
worthless check, even if merely as an accommodation, is covered by Batas
Pambansa Big. 22. The agreement surrounding the issuance of dishonored
checks is irrelevant to the prosecution for violation of Batas Pambansa Big. 22,
the gravamen of the offense being the act of making and issuing a worthless
check or a check that is dishonored upon its presentment for payment. Thus,
even if it will be subsequently declared that a novation took place between
respondents and petitioner, respondents are still not exempt from prosecution
for violation of Batas Pambansa Big. 22 for the dishonored checks (Land Bank
of the Philippines v. Ramon P. Jacinto, G.R. No. 154622, August 3,2010).
7. The earlier case of Sabandal v. Tongco, G.R. No. 124498, October 5,
2001, involves a petition to suspend the criminal proceedings in the court
where the petitioner is charged with eleven counts of violations of Batas
Pambansa Big. 22 filed in 1992. It appears that three years sifter the institution
of the criminal actions, the petitioner filed with the RTC a complaint against the
private respondent a case for specific performance, recovery of overpayment
and damages.
The issue raised reaching the Supreme Court is whether a prejudicial
question exists to warrant the suspension of the trial of the criminal cases for
violation of Batas Pambansa Big. 22 against petitioner until after the resolution
of the civil action for specific performance, recovery of overpayment, and
damages.
The Court predictably rejected the posturings of the petitioner. There is
no prejudicial question wrote the Court, because the issue in the criminal cases
for violation of Batas Pambansa Big. 22 is whether the accused knowingly
issued worthless checks. The issue in the civil action for specific performance,
overpayment, and damages is whether the petitioner overpaid his obligations
to the private respondent. If, after trial in the civil case, the petitioner is shown
to have overpaid respondent, it does not follow, added the Court, that he
cannot be held liable for the bouncing checks he issued for the mere issuance
of worthless checks with knowledge of the
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insufficiency of funds to support the checks is itself an offense. Note: The
Supreme Court in this case did not deal with the matter of the criminal action
having been filed ahead of the civil action. The rule at the time the cases were
filed did not require a "previously" instituted civil action. The requirement that
the civil case be filed ahead of the criminal case is a result of the amendment of
the rules of criminal procedure which took effect on December 1, 2000.
8. The effect of a prejudicial question presents an interesting study when
the principle is invoked in marriage relationships. One representative case is
that of Marbella- Bobis v. Bobis.
In 1985, the respondent contracted his first marriage. Without said
marriage having been annulled, nullified or terminated, the same respondent
contracted a second marriage with the petitioner. Based on petitioner's
complaint-affidavit, an information for bigamy was filed against the
respondent.
Sometime thereafter, respondent initiated a civil action for the judicial
declaration of absolute nullity of his first marriage on the ground that it was
celebrated without a marriage license. Respondent then filed a motion to
suspend the proceedings in the criminal case for bigamy invoking the pending
civil case for nullity of the first marriage as a prejudicial question to the criminal
case. The trial judge granted the motion to suspend the criminal case.
The issue sought to be resolved later in the Supreme Court was whether
the subsequent filing of a civil action for declaration of nullity of a previous
marriage constitutes a prejudicial question to a criminal case for bigamy. In
holding that the civil action for declaration of the nullity of the marriage was not
determinative of the issue in the bigamy case, the Court placed emphasis on
Art. 40 of the Family Code which requires a prior judicial declaration of nullity of
a previous marriage before a party may remarry. Without a judicial declaration
of its nullity, explained the Court, the first marriage is presumed to be
subsisting. The Court found that the respondent was, for all legal intents and
purposes,
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regarded as a married man at the time he contracted his second marriage with
petitioner. Against this legal backdrop, observed the Court, any decision in the
civil action for nullity would not erase the fact that respondent entered into a
second marriage during the subsistence of a first marriage. The Court then
concluded that a decision in the civil case was not essential to the
determination of the criminal charge. It is, therefore, not a prejudicial question
(Marbella-Bobis v. Bobis, 336 SCRA 747).
A case decided before the Family Code became effective had a
substantially similar holding. Landicho v. Relova, G.R. No. L-22579, February
23,1968, a frequently cited case, held that a party cannot judge by himself the
nullity of his first marriage to justify a second marriage before the dissolution of
the first marriage and only when the nullity of the marriage is so declared by
the courts can it be held as void.
9. An action for a declaration of nullity of marriage is not a prejudicial
question to a concubinage case. This was the gist of the holding of the Court in
one remarkable case.
The facts of the case began when the petitioner married his wife in 1973.
In 1997, the petitioner filed a petition for nullity of marriage on the ground of
psychological incapacity under Article 36 of the Family Code. Alleging that it
was petitioner who abandoned the conjugal home and lived with another
woman, the wife of the petitioner subsequently filed a criminal complaint for
concubinage against petitioner and his paramour. Petitioner then filed a
motion to defer the proceedings in the criminal case arguing that the
pendency of the petition for declaration of nullity of his marriage based on
psychological incapacity is a prejudicial question that should merit the
suspension of the criminal case for concubinage filed against him by his wife.
Petitioner likewise harped on the possibility that two conflicting decisions
might result from the civil case for annulment of marriage and the criminal
case for concubinage.
The Court rejected the contentions of the petitioner when the issue was
presented before it for resolution. Unequivocally,
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(Rule 111)
141
the Court ruled that the pendency of the case for declaration of nullity of
petitioner's marriage is not a prejudicial question to the concubinage case.
For a civil case to be considered prejudicial to a criminal action as to
cause the suspension of the latter pending the final determination of the civil
case, it must appear not only that the said civil case involves the same facts
upon which the criminal prosecution would be based, but also that in the
resolution of the issue or issues raised in the aforesaid civil action, the guilt or
innocence of the accused would necessarily be determined.
"With regard to petitioner's argument that he could be acquitted of the
charge of concubinage should his marriage be declared null and void, suffice it
to state that even a subsequent pronouncement that his marriage is void is not
a defense" (Beltran v. People, G.R. No. 137567 June 20,2000).
10. Another interesting case involved a petitioner and a private
respondent who were married in 1988. In 1990, while the marriage was still
subsisting, the petitioner contracted a second marriage with another woman.
When private respondent learned of the marriage, she filed a complaint for
bigamy and on the basis of her complaint an information charging bigamy was
duly filed. The month before however, the petitioner had already filed an
action to annul his marriage with the private respondent on the ground that he
was merely forced to marry her, that she concealed her pregnancy by another
man at the time of the marriage and that she was incapacitated to perform her
essential marital obligations.
Subsequently, the private respondent also filed with the Professional
Regulation Commission (PRC) for the revocation of engineering licenses of the
petitioner and the second woman. Petitioner then filed with the PRC a motion
to suspend the administrative proceedings in view of the pendency of the civil
action for annulment of his marriage to private respondent and the bigamy
case.
Although the matters raised had become moot and academic when the
Supreme Court finally decided the case
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because of the termination of the civil case, it nevertheless discussed the
matter of prejudicial question and ruled:
(a) That the outcome of the civil case for annulment of
marriage had no bearing upon the determination of the petitioner's
innocence or guilt in the criminal case for bigamy because all that is
required for the charge of bigamy to prosper is that the first marriage be
subsisting at the time of the marriage. The prevailing rule is found in Art.
40 of the Family Code which requires a prior judicial declaration of nullity
before the void character of the first marriage maybe invoked.
(b) The concept of a prejudicial question involves a civil and a
criminal case. Hie filing of a civil case does not necessitate the suspension
of the administrative proceedings. There is no prejudicial question where
one case is administrative and the other civil (Te v. Court of Appeals,
G.R. No. 126746, November 29,2000).
- oOo -
Chapter IV
PRELIMINARY INVESTIGATION
Nature of preliminary investigation; purpose (Bar 1985; 1986; 1991; 1998;
2004)
1. Sec. 1 of Rule 112 provides:
" x x x Preliminary investigation is an inquiry or a proceeding the
purpose of which is 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 x x x"
2. The definition lucidly declares that a preliminary investigation is a
mere inquiry or a proceeding. It is not therefore, a trial and so does not involve
the examination of witnesses by way of direct or cross-examinations. Its
purpose is not to declare the respondent guilty beyond reasonable doubt but
only to determine first, whether or not a crime has been committed and
second, whether or not the respondent is "probably guilty" of the crime. The
question to be answered in a preliminary investigation is not: "Is the
respondent guilty or is he innocent?" More accurately, the question sought to
be answered is: "Is the respondent probably guilty and therefore, should go to
trial?"
As jurisprudence puts it: "Preliminary investigation is not the occasion for
the full and exhaustive display of the parties' evidence. It is for the presentation
of such evidence only as may engender a well-founded belief that an offense
has been committed and that the accused is probably guilty thereof. The
validity and merits of a party's accusation or defense, as well as admissibility of
testimonies and evidence,
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are better ventilated during the trial proper" (Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto, G.R. No. 135703, April 15,2009).
3. In the conduct of preliminary investigation, the prosecutor does
not decide whether there is evidence beyond reasonable doubt of the guilt of
respondent. A prosecutor merely determines the existence of probable cause,
and to file the corresponding information if he finds it to be so (De Chavez v.
Ombudsman, G.R. No. 168830-31, February 6, 2007). Probable cause implies
probability of guilt and requires more than bare suspicion but less than
evidence to justify a conviction (Manebo v. Acosta, G.R. No. 169554, October
28,2009).
4. Stated otherwise, the prosecutor in a preliminary investigation
does not determine the guilt or innocence of the accused. He does not exercise
adjudication nor rule-making functions. Preliminary investigation is merely
inquisitorial, and is often the only means of discovering the persons who may
be reasonably charged with a crime and to enable the fiscal to prepare his
complaint or information. It is not a trial of the case on the merits and has no
purpose except that of determining whether a crime has been committed and
whether there is probable cause to believe that the accused is guilty thereof
(Spouses Balanguan v. Court of Appeals, G.R. No. 174350, August 13, 2008;
The Presidential AD-Hoc Fact- Finding Committee on Behest Loans [FFCBL] v.
Desierto, G.R. No. 136225, April 23,2008).
For instance, whether the facsimile message is admissible in evidence
and whether the element of deceit in the crime of estafa is present are matters
best ventilated in a full-blown trial, not during the preliminary investigation. A
preliminary investigation is not the occasion for the full and exhaustive display
of the prosecution's evidence. The presence or absence of the elements of the
crime is evidentiary in nature and is a matter of defense that may be passed
upon after a fullblown trial on the merits. In fine, the validity and merits of a
party's defense or accusation, as well as the admissibility of testimonies and
evidence, are better ventilated during
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the trial proper than at the preliminary investigation level (Samuel Lee, et al. v.
KBC Bank N.V. [Formerly Kredietbanky N.V.I G.R. NO. 164673, January
15,2010).
5. The purposes of a preliminary investigation is to determine whether
(a) a crime has been committed; and (b) there is probable cause to believe that
the accused is guilty thereof (Manebo v. Acosta, G.R. No. 169554, October
28,2009).
However, the ultimate purpose of a preliminary investigation "is to
secure the innocent against hasty, malicious and oppressive prosecution and to
protect him from an open and public accusation of a crime, from the trouble,
expenses and anxiety of a public trial, and also to protect the State from useless
and expensive prosecutions" (Sales v. Sandiganbayan, G.R. No. 143802,
November 16, 2001; Albay Accredited Constructions Association, Inc. v.
Desierto, G.R. No. 133517, January 30 2006, 480 SCRA 520). It is designed to
free a respondent from the inconvenience, expense, ignominy and stress of
defending himselfTherself in the course of a formal trial, until the reasonable
probability of his or her guilt has been passed upon in a more or less summary
proceeding by a competent officer designated by law for that purpose
(Ledesma v. Court of Appeals, 278 SCRA 656).
Nature of the right to a preliminary investigation
1. The holding of a preliminary investigation is not required by the
Constitution. It is not a fundamental right and is not among those rights
guaranteed in the Bill of Rights. The right thereto is of a statutory character and
may be invoked only when specifically created by statute (Marinas v. Siochi,
104 SCRA 423). But while the right is statutory rather than constitutional, since
it has been established by statute, it becomes a component of due process in
criminal justice (Doromal v. Sandiganbayan, 177 SCRA 354; Duterte v.
Sandiganbayan, 289 SCRA 721; Ong v. Sandiganbayan, 470 SCRA 7).
When so granted by statute, the right is not a mere formal or technical
right. It is a substantive right. To deny
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the claim of the accused to a preliminary investigation would be to deprive him
the full measure of his right to due process (Duterte v. Sandiganbayan, 289
SCRA 721).
2. There exist decisions holding that a preliminary investigation is
essentially a judicial inquiry and that in a preliminary investigation, the
prosecutor or investigating officer acts as a quasi-judicial officer. Although a
preliminary investigation is, according to the Court, not a trial, and is not
intended to usurp the function of a trial court, it is not a casual affair but is, in
effect a realistic judicial appraisal of the merits of the case. These cases also
ruled that the authority of a prosecutor or an investigating officer to conduct a
preliminary investigation is no less than that of a municipal judge or even a
regional trial court judge and that while the investigating officer is not a
"judge," by the nature of his functions, he is and must be considered to be a
quasi-judicial officer. A preliminary investigation has been called a judicial
inquiry. It is a judicial proceeding. An act becomes a judicial proceeding when
there is an opportunity to be heard and for the production of and weighing of
evidence, and a decision is rendered thereon (Cruz v. People, 233 SCRA 439;
Sales v. Sandiganbayan, G.R. No. 143802, November 16,2001).
It is worth remarking that the concept of a preliminary investigation as
essentially a judicial inquiry as declared in the 1994 case of Cruz v. People was
adopted by the Department of Justice. The DOJ Manual for Prosecutors citing
Cruz describes a preliminary investigation as "essentially a judicial inquiry since
there is the opportunity to be heard, the production and weighing of evidence,
and a decision rendered on the basis of such evidence. In this sense, the
investigating prosecutor is a quasi-judicial officer" (See Sec. 1, Part III, Manual
for Prosecutors).
3. Under a different set of facts and issues, a pronouncement was
later made in Bautista v. Court of Appeals, G.R. No. 143375, July 6, 2001,
where it was held that a preliminary investigation is "very different from other"
quasi-judicial proceedings. Accordingly, the prosecutor in a preliminary in
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vestigation does not determine the guilt or innocence of the accused. He does
not exercise adjudication nor rule-making functions. Preliminary investigation is
merely inquisitorial, and is often the only means of discovering the persons who
may be reasonably charged with a crime and to enable the fiscal to prepare his
complaint or information. It is not a trial of the case on the merits and has no
purpose except that of determining whether a crime has been committed and
whether there is probable cause to believe that the accused is guilty thereof.
While the fiscal makes that determination, he cannot be said to be acting as a
quasi-court, for it is the courts, ultimately, that pass judgment on the accused,
not the fiscal. Bautista further holds that the Office of the Prosecutor is not a
quasi-judicial body. Necessarily, its decisions approving the filing of a criminal
complaint are not appealable to the Court of Appeals under Rule 43 as are the
decisions of quasi-judicial bodies enumerated therein.
Bautista however, concedes that there are cases which held that a
prosecutor conducting a preliminary investigation performs a quasi-judicial
function and that the power to conduct preliminary investigation is
quasi-judicial in nature. Bautista clarified that this statement holds true only in
the sense thatr like quasi-judicial bodies, the prosecutor is an office in the
executive department exercising powers akin to those of a court. But here is
where the similarity ends. A closer scrutiny will show that preliminary
investigation is very different from other quasi-judicial proceedings.
4. A similar pronouncement was made a few years later, in Santos v. Go,
G.R. No. 156081, October 19,2005. This case held that a public prosecutor
does not perform acts of a quasi-judicial body. The Court described a
quasi-judicial body as an organ of government other than a court and other
than a legislature which performs adjudicatory functions. Said body affects the
rights of private parties either through adjudication or rule-making. Its awards,
when performing adjudicatory functions, determine the rights of the parties
and their decisions have the same effect as judgments of a
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court. Such is not the case, according to the Court, when a public prosecutor
conducts a preliminary investigation.
The main issue for resolution in Santos v. Go was whether a petition for
review under Rule 43 is a proper mode of appeal from a resolution of the
Secretary of Justice directing the prosecutor to file an information in a criminal
case. In the course of this determination, the Court had to consider whether
the conduct of preliminary investigation by the prosecutor is a quasi-judicial
function. Note that Rule 43 is the mode of appeal from the awards, judgments,
final orders or resolutions of the quasi-judicial agencies enumerated in said
Rule in the exercise of their quasi-judicial functions.
The Court observed that Rule 43 of the 1997 Rules of Civil Procedure
clearly shows that it governs appeals to the Court of Appeals from decisions
and final orders or resolutions of quasi-judicial agencies in the exercise of their
quasi-judicial functions. The Department of Justice is not among the agencies
enumerated in Section 1 of Rule 43. Thus, inclusio unius est exclusio alterius.
Reiterating its ruling in Bautista v. Court of Appeals, the Court
proceeded to declare that it cannot agree with petitioners' submission that a
preliminary investigation is a quasi-judicial proceeding, and that the DOJ is a
quasi-judicial agency exercising a quasi-judicial function when it reviews the
findings of a public prosecutor regarding the presence of probable cause. Since
the DOJ is not a quasi-judicial body and it is not one of those agencies whose
decisions, orders or resolutions are appealable to the Court of Appeals under
Rule 43, the resolution of the Secretary of Justice finding probable cause to
indict petitioners is, therefore, not appealable to the Court of Appeals via a
petition for review under Rule 43.
5. Also, a much later case affirmed previous rulings that a preliminary
investigation is not a quasi-judicial proceeding, and that the DOJ is not a
quasi-judicial agency exercising a quasi-judicial function when it reviews the
findings of a public prosecutor regarding the presence of probable cause
(Spouses Balanguan v. Court of Appeals, G.R. No. 174350, August 13, 2008).
149
One of the issues that was sought to be resolved in Spouses Balanguan
was whether or not the DOJ is covered by the constitutional injunction
embodied in Sec. 14, Article VIII of the Constitution. This provision requires that
"No decision shall be rendered by any court without expressing therein
clearly and distinctly the facts and the law on which it is based."
Also, drawing heavily from the earlier case of Bautista v. Court of
Appeals, G.R. No. 143375, July 6, 2001, the more recent case of Spouses
Balanguan stressed that a preliminary investigation is not a trial of the case on
the merits and has no purpose except that of determining whether a crime has
been committed and whether there is probable cause to believe that the
accused is guilty thereof. While the fiscal makes that determination, he cannot
be said to be acting as a quasi-court, for it is the courts, ultimately, that pass
judgment on the accused, not the fiscal. Though some cases, added the Court,
describe the prosecutor's power to conduct a preliminary investigation as
quasi-judicial in nature, this is true only to the extent that, like quasi-judicial
bodies, the prosecutor is an officer of the executive department exercising
powers akin to those of the court, and the similarity ends at this point. A
quasi-judicial body is an organ of government other than a court and other
than a legislature which affects the rights of private parties, and their decisions
have the same effect as judgments of a court. Such is not the case when a
public prosecutor conducts a preliminary investigation to determine probable
cause to file an information against a person charged with a criminal offense, or
when the Secretary of Justice is reviewing the former's order or resolution. The
Court concluded that since the DOJ is not a quasi-judicial body, Sec. 14, Article
VIII of the Constitution finds no application.
6. An earlier pronouncement was more clear and direct.:
" x x x A preliminary investigation proper — whether or not there
is reasonable ground to believe that the accused is guilty of the offense
and therefore, whether or not he should be subjected to the expense,
rigors and
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embarrassment of trial is the function of the prosecutor.
Preliminary investigation is an executive, not a judicial function. Such
investigation is not part of the trial
x x x " (Metropolitan Bank and Trust Company v. Tonda,
338 SCRA 254).
Right to a preliminary investigation; waivable
The right to a preliminary investigation may be waived for failure to
invoke the right prior to or at the time of the plea (People v. Gomez, 117 SCRA
73; People v. Bulusan, 160 SCRA 492; Go v. Court of Appeals, 206 SCRA 138).
Preliminary investigation vs. preliminary examination (preliminary inquiry)
1. A preliminary investigation is conducted by the prosecutor to
ascertain whether the alleged offender should be held for trial, to be subjected
to the expense, rigors and embarrassment of trial or if the offender is to be
released. A preliminary inquiry or a preliminary examination is conducted by
the judge to determine probable cause for the issuance of a warrant of arrest.
This is a judicial function (People v. Inting, 187 SCRA 788; AAA v. Carbonnel,
524 SCR 496).
2.
Preliminary investigation is executive in nature. It is part of the
prosecutor's job. Preliminary examination is judicial in nature and is lodged
with the judge. Sound policy supports this distinction. Otherwise judges would
be unduly laden with the preliminary investigation and examination of criminal
complaints instead of concentrating on hearing and deciding cases filed before
their courts (Ledesma v. Court of Appeals, 278 SCRA 656; Co v. Republic, 539
SCRA 147).
Probable cause in preliminary investigation
1. Probable cause has been defined as the existence of such facts and
circumstances as would lead a person of ordinary caution and prudence to
entertain an honest and strong suspicion that the person charged is guilty of
the crime subject of the investigation. Being based merely on
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151
opinion and reasonable belief, it does not import absolute certainty. Probable
cause need not be based on clear and convincing evidence of guilt, as the
investigating officer acts upon reasonable belief. Probable cause implies
probability of guilt and requires more than bare suspicion but less than
evidence to justify a conviction (Manebo v. Acosta, G.R. No. 169554, October
28, 2009). Probable cause, for purposes of filing a criminal information, has
been defined as such facts as are sufficient to engender a well-founded belief
that a crime has been committed and that respondents are probably guilty
thereof. The determination of its existence lies within the discretion of the
prosecuting officers after conducting a preliminary investigation upon
complaint of an offended party. Probable cause is meant such set of facts and
circumstances which would lead a reasonably discrete and prudent man to
believe that the offense charged in the information, or any offense included
therein, has been committed by the person sought to be arrested (Manebo v.
Acosta, G.R. No. 169554, October 28, 2009; Roberto B. Kalalo v. Office of the
Ombudsman, G.R. No. 158189, April 23,2010).
2.
Probable cause need not be based on evidence establishing
absolute certainty of guilt. While probable cause demands more than "bare
suspicion," it requires "less than evidence which would justify conviction." A
finding of probable cause merely binds over the suspects to stand trial. It is not
a pronouncement of guilt (De Chavez v. Ombudsman, G.R. Nos. 168830-31,
February 6,2007; Spouses Balangauan v. Court of Appeals, G.R. No. 174350,
August 13,2008; Manebo v. Acosta, G.R. No. 169554, October 28, 2009).
3. Probable cause implies only probability of guilt and requires more
than bare suspicion but less than evidence which would justify a conviction. A
finding of probable cause needs only to rest on evidence showing that more
likely than not, a crime has been committed by the suspect. It does not call for
the application of rules and standards of proof that a judgment of conviction
requires after trial on the merits. The complainant need not present at this
stage proof beyond reasonable doubt. A preliminary investigation does not
require
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a full and exhaustive presentation of the parties' evidence. It is enough that in
the absence of a clear showing of arbitrariness, credence is given to the finding
and determination of probable cause by the Secretary of Justice in a
preliminary investigation (Ricaforte v. Jurado, G.R. No. 154438, September
5,2007).
4. "The term probable cause does not mean 'actual and positive cause'
nor does it import absolute certainty. It is merely based on opinion and
reasonable belief. Thus, a finding of probable cause does not require an inquiry
into whether there is sufficient evidence to procure a conviction. It is enough
that it is believed that the act or commission complained of constitutes the
offense charged.... In order that probable cause to file a criminal case may be
arrived at, or in order to engender the well-founded belief that a crime has
been committed, the elements of the crime charged should be present. This is
based on the principle that every crime is defined by its elements, without
which there should be — at the most — no criminal offense (Sy Thiong Shiou
v. Sy Chim, G.R. No. 174168, March 30, 2009). Probable cause does not also
mean that guilt must be established beyond reasonable doubt and definitely
not on evidence establishing absolute certainty of guilt (Heirs of Jose Sy Bang
v. Sy, G.R. No. 114217, October 13,2009).
For instance, the test in a malicious prosecution case should be whether
sufficient facts exist which show that, in bringing the criminal action,
complainant acted with probable cause, defined as the existence of such facts
and circumstances as would excite the belief in a reasonable mind that the
person charged and prosecuted in a criminal case is probably guilty of the
crime or wrongdoing (Limanch-0 Hotel and Leasing Corporation, et al. v. City
ofOhgapo, et al., G.R. No. 185121, January 18,2010).
Kinds of determination of probable cause
1. The Court held that there are two kinds of determination of probable
cause: executive and judicial.
"The executive determination of probable cause is one made during
preliminary investigation. It is a function that
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153
properly pertains to the public prosecutor who is given a broad discretion to
determine whether probable cause exists and to charge those whom he
believes to have committed the crime as defined by law and thus should be
held for trial. Otherwise stated, such official has the quasi-judicial authority to
determine whether or not a criminal case must be filed in court. Whether or
not that function has been correctly discharged by the public prosecutor, i.e.,
whether or not he has made a correct ascertainment of the existence of
probable cause in a case, is a matter that the trial court itself does not and may
not be compelled to pass upon.
The judicial determination of probable cause, on the other hand, is one
made by the judge to ascertain whether a warrant of arrest should be issued
against the accused. The judge must satisfy himself that based on the evidence
submitted, there is necessity for placing the accused under custody in order not
to frustrate the ends of justice. If the judge finds no probable cause, the judge
cannot be forced to issue the arrest warrant.
Corollary to the principle that a judge cannot be compelled to issue a
warrant of arrest if he or she deems that there is no probable cause for doing
so, the judge in turn should not override the public prosecutor's determination
of probable cause to hold an accused for trial on the ground that the evidence
presented to substantiate the issuance of an arrest warrant was insufficient. It
must be stressed that in our criminal justice system, the public prosecutor
exercises a wide latitude of discretion in determining whether a criminal case
should be filed in court, and that courts must respect the exercise of such
discretion when the information filed against the person charged is valid on its
face, and that no manifest error or grave abuse of discretion can be imputed to
the public prosecutor.
Thus, absent a finding that an information is invalid on its face or that the
prosecutor committed manifest error or grave abuse of discretion, a judge's
determination of probable cause is limited only to the judicial kind or for the
purpose of deciding whether the arrest warrants should be issued against
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the accused" (People v. Castillo, G.R. No. 171188, June 19, 2009).
2. Probable cause to warrant an arrest which is made by the judge refers
to "facts and circumstances that would lead a reasonably discreet and prudent
man to believe that an offense has been committed by the person to be
arrested. Other jurisdictions utilize the term man of reasonable caution or the
term ordinarily prudent and cautious man. The terms are legally synonymous
and their reference is not to a person with training in the law such as a
prosecutor or a judge but the average man on the street. It ought to be
emphasized that in determining probable cause, the average man weighs facts
and circumstances without resorting to the calibrations of our technical rules of
evidence of which his knowledge is nil. Rather, he relies on the calculus of
common sense of which all reasonable men have an abundance" (Webb v. De
Leon, 247 SCRA 652; Domalanta v. COMELEC, G.R. No. 125586, June 29,
2000).
Cases requiring a preliminary investigation; when not required (Bar 2004)
1. A preliminary investigation is required to be conducted before the
filing of a complaint or information for an offense where the law prescribes a
penalty of at least four (4) years, two (2) months and one (1) day without
regard to the fine (Sec. 1, Rule 112, Rules of Court; Tabujara v. People, G.R.
No. 175162, October 29,2008). Sec. 1 of Rule 112 is clear:
" x x x Except as provided in Sec. 7 (now Sec. 6) of this Rule, a preliminary
investigation is required to be conducted before the filing of a complaint or
information for an offense where the penalty prescribed by law is at least four (4)
years, two (2) months and one (1) day without regard to the fine."
2. Before the amendatory provisions of R.A. 7691 took effect,
preliminary investigations were conducted only for offenses cognizable by
Regional Trial Courts. Because the jurisdiction of Municipal Trial Courts has
been expanded by
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155
R.A. 7691, certain offenses formerly within the jurisdiction of Regional Trial
Courts came under the jurisdiction of Municipal Trial Courts. Consequently,
some offenses which before were not covered by the required preliminary
investigation are now subject to preliminary investigation even if such offenses
are cognizable by the Municipal Trial Courts as long as the same are punishable
by at least four (4) years, two (2) months and one (1) day.
Procedure for cases not requiring a preliminary investigation
1. Where a preliminary investigation is not required because the penalty
prescribed by law for the offense involves an imprisonment of less than four (4)
years, two (2) months and one (1) day, there are two ways of initiating a
criminal action.
(a) First, by filing the complaint directly with the prosecutor; or
(b) Second, by filing the complaint or information with the
Municipal Trial Court; (Sec. 8, Rule 112, Rules of Court; Tabujara v.
People, G.R. No. 175162, October 29,2008).
Direct filing with the prosecutor
1. If the complaint is filed with the prosecutor (also as in Manila and other
chartered cities), the procedure prescribed in Sec. 3(a) of Rule 112 shall be
observed. This means that the complaint shall comply with the following:
(a) The address of the respondent shall be indicated in the
complaint;
(b) To establish probable cause, the complaint shall be
accompanied by:
(i) the affidavit of the complainant; and
(ii) the affidavits of the complainant's witnesses.
(iii) other supporting documents;
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(c) The appropriate number of copies of the above as there are
respondents, plus two (2) copies for the official file must be submitted;
and
(d) The affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to administer oaths, or in
their absence or unavailability, before a notary public, each of whom
must certify that he personally examined the affiants and that he is
satisfied that they voluntarily executed and understood their affidavits.
2. 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 (Sec. 8, Rule 112, Rules of Court). Since only Sec. 3(a) of Rule
112 applies, the respondent need not be issued a subpoena or required to
submit counter-affidavits.
Direct filing with the Municipal Trial Court
1. If the complaint or information is filed directly with the Municipal
Trial Court because the complaint involves an offense punishable by
imprisonment of less than four (4) years, two (2) months and one (1) day, the
procedure outlined in Sec. 3(a) of Rule 112 and the requirements therein shall
be observed (Sec. 8[b], Rule 112, Rules of Court) in the same way as when the
complaint is filed directly with the prosecutor.
2. If within ten (10) days from the filing of the complaint or
information, the judge finds no probable cause, he shall dismiss the same.
Before the dismissal, the judge shall personally evaluate the evidence or
personally examine in writing and under oath the complainant and his
witnesses in the form of searching questions and answers (Sec. 8[b], Rule 112,
Rules of Court). The evaluation is to be done personally where the complaint
or information is directly filed with the MTC. The examination shall also be
done personally.
3.
If the judge desires to further determine the existence of probable
cause, he may, require the submission of additional evidence within ten (10)
days from notice (Sec. 8[b], Rule 112, Rules of Court).
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If the judge still finds no probable cause, despite the additional evidence,
the judge shall dismiss the case within ten (10) days from the submission of
additional evidence or expiration of said period (Sec. 8[b], Rule 112, Rules of
Court).
4. If the judge finds probable cause, he shall issue a warrant of arrest. If
the accused has already been arrested, the court shall instead issue a
commitment order. A warrant of arrest may not also be issued if the judge is
satisfied that there is no necessity for placing the accused under custody, in
which case, the court may issue summons instead of a warrant of arrest (Sec.
8[b], Rule 112, Rules of Court).
The issuance of a warrant of arrest is not mandatory and is to be issued if
there is a necessity of placing the accused under immediate custody but a
judge gravely abuses his discretion if he issues a warrant based solely on the
statement of a witness who was not even personally examined in writing and
under oath and in the form of searching questions and answers (Tabujara v.
People, G.R. No. 175162, October 29, 2008).
When preliminary investigation is not required even if the offense is one
which normally requires a preliminary investigation
1 . I f a person is arrested lawfully without a warrant involving an offense
which requires a preliminary investigation, i.e., the penalty is at least four (4)
years, two (2) months and one (1) day, an information or complaint may be
filed against him without need for a preliminary investigation (Formerly Sec. 7,
now Sec. 6, Rule 112, Rules of Court as amended by AM. No. 05-08-26-SC,
August 30, 2005). Inquest proceedings are proper only when the accused has
been lawfully arrested without a warrant (Ladlad v. Velasco, 523 SCRA 218;
Sec. 6 Rule 112, Rules of Court).
Thus, i f a person is arrested by a police officer in flagrante delicto while
robbing the victim through violence or intimidation, the arrest is a lawful one
(Sec. 5[a] of Rule 113, Rules of Court) and a preliminary investigation is not
required even
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if the penalty for robbery is more than four (4) years, two (2) months, and one
(1) day. Under Article 294(5) of the Revised Penal Code, the minimum penalty
for robbery is prision correctional in its maximum period which is six (6) years
under Article 27 of the same code. The offense is one which involves a penalty
higher than four (4) years, two (2) months, and one (1) day and the arrested
person would normally be entitled to a preliminary investigation. In this case
however, a preliminary investigation does not apply because he was validly
arrested.
2. If he has been arrested in a place where an inquest prosecutor is
available, an inquest will be conducted instead of a preliminary investigation. In
the absence or unavailability of an inquest prosecutor, the complaint may be
filed directly with the proper court by the offended party or a peace officer on
the basis of the affidavit of the offended party or arresting officer or person
(Formerly Sec. 7, now Sec. 6, Rule 112, Rules of Court as amended by A.M.
No. 05-08-26-SC, August 30, 2005). Note: The direct filing under this rule
may be deemed an additional situation in which a direct filing in court may
be done.
Person arrested lawfully without a warrant may ask for a preliminary
investigation
1. Under Sec. 6 (formerly Sec. 7) of Rule 112, although an inquest is the
proceeding which shall normally apply when a person is lawfully arrested
without a warrant, such person may nevertheless, ask for a preliminary
investigation in accordance with Rule 112, before the complaint or information
is filed but he must sign a waiver of the provisions of Article 125 of the Revised
Penal Code, as amended, in the presence of his counsel. The preliminary
investigation must be terminated within fifteen (15) days from its inception
(Sec. 6, Rule 112, Rules of Court).
Thus, the fact that a person was lawfully arrested without a warrant does
not bar him from availing of a preliminary investigation. It is worth
remembering however, that before he is granted the preliminary investigation
asked for by him,
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he must sign a waiver of the provisions of Article 125 of the Revised Penal Code
(Sec. 6, Rule 112, Rules of Court). This Revised Penal Code provision imposes a
penalty upon a public officer or an employee who, although having detained a
person for some legal ground, fails to deliver the person arrested to the proper
judicial authorities within the periods of twelve (12), eighteen (18) or thirty six
(36) hours as the case may be.
2. Be it noted that by virtue of R.A. 7438, any waiver by the person
arrested or detained or under custodial investigation shall be in writing, signed
by such person in the presence of his counsel, otherwise such waiver shall be
null and void (Sec. 2, RA. 7438).
3. Observe that the person lawfully arrested may ask for a
preliminary investigation before the filing of the information. This is not
however, to be taken to mean that the filing of the complaint or information
bars him from asking for a preliminary investigation. Under current rules, if an
information or complaint has already been filed, the person arrested who is
now an accused, may still ask for a preliminary investigation within five (5) days
from the time he learns of its filing, with the same right to adduce evidence in
his defense under Rule 112 (Sec. 6, Rule 112, Rules of Court).
It is evident that because the complaint or information has already been
filed, the court has now assumed jurisdiction over the case. Hence, the accused
should address the motion for the holding of a preliminary investigation to the
court. While lawyers traditionally call the motion a "motion for
re-investigation," the term seems to be a misnomer because it presupposes
that a prior investigation had been held. A "motion to conduct a preliminary
investigation" appears to be a more appropriate term, although the title is of
lesser significance when compared to the essence of the motion.
Bail for a person lawfully arrested during the preliminary investigation
1. The waiver by the person lawfully aires ted of the provisions of Article
125 of the Revised Penal Code does not
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preclude him from applying for bail (Sec. 6, Rule 112, Rules of Court).
Note that while a preliminary investigation is undertaken, the person
arrested is still under detention. To effect his release, he may apply for bail
notwithstanding the waiver of the provisions of Article 125 of the Revised Penal
Code (Sec. 6, Rule 112, Rules of Court) and even if no information has yet been
filed against him. His right to bail is supported not only by Sec. 6 of Rule 112 but
also by Sec. 17(c) of Rule 114 which declares:
"Any person in custody who is not yet charged in court may
apply for bail with any court in the province, city, or municipality
where he is held."
2. The bail must however, be applied for and issued by the court in the
province, city, or municipality where the person arrested is held.
In one case, the accused was arrested lawfully without a warrant for
carnapping and detained at Camp Crame in Quezon City. He asked for a
preliminary investigation and signed a waiver of the provisions of Article 125 of
the Revised Penal Code. However, the assisting judge of a Marikina Regional
Trial Court approved the bail bond for the accused who was being held in
Quezon City. The Supreme Court held that while a person lawfully arrested and
detained and not yet formally charged can apply for bail, the application must
be filed in the province, city or municipality where the person arrested is held.
In this case, the bail application should have been filed with a Quezon City court
which has the authority to grant bail and not a Marikina court (Ruiz v. Beldia,
Jr., 451 SCRA 402).
Questioning the absence of a preliminary investigation
1. An accused who wants to question the regularity or absence of a
preliminary investigation must do so before he enters his plea. The court shall
resolve the matter as early as practicable but not later than the start of the trial.
An
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application for or admission of the accused to bail does not bar him from raising
such question (Sec. 26, Rule 114, Rules of Court). Failure to invoke the right
before entering a plea will amount to a waiver (People v. Gomez, 117 SCRA
73).
2.
The rule on waiver is not new. The Court has consistently held long
ago that after a plea of not guilty is made, an accused is deemed to have
forgone the right to raise the absence of a preliminary investigation or any
irregularity that surrounds it (People v. Monteverde, 142 SCRA 668; Zacarias v.
Cruz, 30 SCRA 728, People v. Beltran, 32 SCRA 71; People v. Arbola, L-16936,
Aug 5, 1985; All cases cited in People v. Bulosan, 160 SCRA 492; People v.
Buluran, 325 SCRA 476).
3. A motion to quash is not the proper remedy because the absence
of a preliminary investigation is not one of the grounds for a motion to quash
under Sec. 3 of Rule 117.
It was thus, held that if there is no preliminary investigation and the
accused before entering his plea calls the attention of the court to his
deprivation of the required preliminary investigation, the court should not
dismiss the information. It should remand the case to the prosecutor so that
the investigation may be conducted (Larranaga v. Court of Appeals, 287 SCRA
581).
For instance, in an early graft case, where the accused were deprived of a
full preliminary investigation preparatory to the filing of the informations
against them, the Court emphasized that such fact does not warrant the
quashal of the information, nor should it obliterate the proceedings already
had. Neither is the court's jurisdiction nor validity of an information adversely
affected by deficiencies in the preliminary investigation. Instead, the
Sandiganbayan is to hold in abeyance any further proceedings therein and to
remand the case to the Office of the Ombudsman for the completion of the
preliminary investigation, the outcome of which shall then be indorsed to the
Sandiganbayan for its appropriate action (Vasquez v. Hobilia-Alinio, 271 SCRA
67).
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Absence of preliminary investigation; effect on jurisdiction of the court
The absence of preliminary investigation does not affect the court's
jurisdiction over the case nor does it impair the validity of the information or
otherwise, render it defective (Rodis v. Sandiganbayan, 166 SCRA 618;
People v. Deang, 338 SCRA 657; Socrates v. Sandiganbayan, 253 SCRA 773;
People v. Buluran, 325 SCRA 476; Enriquez v. Sarmiento, Jr., 498 SCRA 6). If
absence of a preliminary investigation does not render the information invalid
nor affect the jurisdiction of the court over the case, then the denial of a
motion for reinvestigation cannot likewise invalidate the information or oust
the court of its jurisdiction over the case (Budiongan, Jr. v. De la Cruz, Jr., 502
SCRA 626).
Absence of preliminary investigation; not a ground for motion to quash
The absence of a preliminary investigation is not a ground for a motion
to quash. Such ground is not provided for in Sec. 3 of Rule 117, the provision
which enumerates the grounds for a motion to quash a complaint or
information (Budiongan, Jr. vs. De la Cruz, Jr., 502 SCRA 626).
Inquest proceedings
1. An inquest proceeding is conducted when a person is lawfully arrested
without a warrant involving even also an offense which requires a preliminary
investigation (Sec. 6, Rule 112, Rules of Court; Crispin Beltran v. People and
Secretary Gonzalez, G.R. No. 175013, June 1, 2007). An inquest is not a
preliminary investigation. It is a summary investigation and which does not
follow the procedures set forth in Sec. 3 of Rule 112 of the Rules of Court.
An inquest is an investigation conducted by a prosecutor in criminal
cases where a person has been lawfully arrested and detained without a
warrant of arrest. It is informal and summary and its purpose is to determine
whether or not the person detained should remain under custody and then
charged in court (Sec. 1, Part II, Manual for Prosecutors).
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2. The inquest is conducted by a public prosecutor who is assigned
inquest duties as an Inquest Officer and is to discharge his duties, unless
otherwise directed, only at the police stations/headquarters of the PNP in
order to expedite and facilitate the disposition of inquest cases (Sec. 2, Part II,
Manual for Prosecutors).
3. The inquest proceedings shall be deemed commenced from the
time the Inquest Officer receives the complaint and referral documents from
the law enforcement authorities. These documents include the (a) affidavit of
arrest, (b) the investigation report, (c) the statements of the complainant and
the witnesses; and (d) other supporting evidence gathered. The affidavit of
arrest and the statements or affidavits of the complainant and the witnesses
shall be subscribed and sworn to before the Inquest Officer by the affiants (Sec.
3, Part II, Manual for Prosecutors).
4. The detained person should be present during the inquest
proceedings unless reasons exist that would dispense with his presence like
confinement in a hospital, detention in a place requiring maximum security or
his presence is not feasible by reason of age, health or similar factors (Sec. 6,
Part II, Manual for Prosecutors).
If necessary, the Inquest Officer shall require the presence of the
complaining witnesses and subject them to an informal and summary
investigation or examination for purpose of determining the existence of
probable cause (Sec. 11, Part II, Manual for Prosecutors).
Possible options of the inquest prosecutor
1. The Inquest Officer has an initial duty. This duty is to determine if
the detained person has been arrested lawfully in accordance with Sec. 5 (a)
and (b), of Rule 113 of the Rules of Court. For this purpose, the Inquest Officer
may summarily examine the arresting officers on the circumstances
surrounding the arrest or apprehension of the detained person (Sec. 8, Part II,
Manual for Prosecutors).
2. Should it be found that the arrest was not made in accordance
with the Rules of Court, the Inquest Prosecutor
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shall not proceed with the inquest proceedings. Instead, he shall recommend
the release of the detainee, note down the disposition on the referral
document, prepare a brief memorandum indicating the reasons for the action
he took and forward the same together with the record of the case, to the Gity
of the Provincial Prosecutor for appropriate action (Sec. 9, Part II, Manual for
Prosecutors).
When the recommendation is approved, the order of release shall be
served on the officer having custody of said detainee so the latter may be
released. The officer shall also serve upoi^the detainee a notice of preliminary
investigation if the evidence on hand warrants the conduct of a regular
preliminary investigation. In such an event, the detainee shall be also released
for further investigation. The detainee shall be furnished copies of the charge
sheet or complaint, affidavits or sworn statements of the complainant and his
witnesses and other supporting evidence (Sec. 9, Part II, Manual for
Prosecutors).
3. Should it be found that the arrest was properly effected, the inquest
shall proceed but the Inquest Officer shall first ask the detained person if he
desires to avail himself of a preliminary investigation and if he does, he shall be
made to execute a waiver of the provisions of Article 125 of the Revised Penal
Code with the assistance of a lawyer. The preliminary investigation may be
conducted by the Inquest Officer himself or by any other Assistant Prosecutor
to whom the case may be assigned (Sec.10, Part II, Manual for Prosecutors).
If the Inquest Prosecutor finds that probable cause exists, he shall
prepare the corresponding information with the recommendation that the
same be filed in court (Sec. 13, Part II, Manual for Prosecutors). If no probable
cause is found, he shall recommend the release of the detained person (Sec.
15, Part II, Manual for Prosecutors).
The inquest must pertain to the offense for which the arrest was made
The inquest conducted must be for the offense for which the detainee
was arrested. This basic rule is exemplified by the case of Beltran v. People
(G.R. No. 175013, June 1,2007).
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The case involved petitioners in the consolidated petitions who were
incumbent congressmen and representatives of party-list groups while the
others were private individuals. The petitions sought the issuance of writs of
prohibition and certiorari to enjoin the prosecution of the petitioners for
rebellion and to set aside the rulings of the Department of Justice (DOJ) and the
Regional Trial Court of Makati City (RTC Makati) on the investigation and
prosecution of petitioners' cases.
One of the petitioners was Crispin Beltran who was arrested without a
warrant following the issuance by President Gloria Macapagal-Arroyo of
Presidential Proclamation No. 1017 on 24 February 2006 declaring a "State of
National Emergency." When he was arrested, Beltran was not informed of the
crime for which he was arrested. On the evening of his arrest, Beltran was
subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition
under Article 142 of the Revised Penal Code based on a speech Beltran
allegedly gave during a rally in Quezon City on 24 February 2006, on the
occasion of the 20th anniversary of the EDSA Revolution. The inquest was
based on the joint affidavit of Beltran's arresting officers who claimed to have
been present at the rally. The joint affidavit of Beltran's arresting officers stated
that the officers arrested Beltran, without a warrant, for Inciting to Sedition.
The inquest prosecutor indicted Beltran and filed the corresponding
Information with the Metropolitan Trial Court of Quezon City (MeTC).
Several days after the first inquest, he was again subjected to a second
inquest but this time for rebellion allegedly committed with a certain 1st Lt.
Lawrence San Juan (San Juan). The inquest was allegedly based on the letters of
CIDG investigators claiming that Beltran and San Juan were allegedly the
leaders and promoters of an alleged foiled plot to overthrow the Arroyo
government. The plot was supposed to be carried out jointly by members of
the Communist Party of tl\e Philippines (CPP) and the Makabayang Kawal ng
Pilipiflas (MKP), which have formed a "tactical alliance."
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The panel of prosecutors from the DOJ which conducted the second
inquest subsequently issued a resolution finding probable cause to indict
Beltran and San Juan as "leaders/ promoters" of the alleged rebellion. The
panel then filed an Information with the RTC Makati.
Beltran moved that the RTC make ajudicial determination of probable
cause against him but the court sustained the finding of probable cause against
Beltran. Beltran sought reconsideration but the Judge like the first judge of the
court in which the case was originally filed, also inhibited herself from the case
without resolving Beltran's motion. The new Judge of the court to which the
case was re-raffled denied the motion for reconsideration of Beltran. Hence,
the petition to set aside the orders finding probable cause and the denial of the
motion for reconsideration and to enjoin the prosecution of Beltran. The
petition likewise raised the validity of the inquest proceedings against Beltran.
The Supreme Court held that the inquest proceedings against Beltran for
rebellion is void. Inquest proceedings, declared the Court are proper only when
the accused has been lawfully arrested without a warrant. This is clear from
Sec. 6 of Rule 112 of the Rules of Court.
The joint affidavit of Beltran's arresting officers states that the officers
arrested Beltran, without a warrant, for Inciting to Sedition, and not for
Rebellion. Thus, the inquest prosecutor could only have conducted — as he did
conduct — an inquest for Inciting to Sedition and no other. Consequently,
when another group of prosecutors subjected Beltran to a second inquest
proceeding for Rebellion, they overstepped their authority rendering the
second inquest void. None of Beltran's arresting officers saw Beltran commit, in
their presence, the crime of Rebellion. Nor did they have personal knowledge
of facts and circumstances that Beltran had just committed Rebellion, sufficient
to form probable cause to believe that he had committed Rebellion. What
these arresting officers alleged in their affidavit is that they saw and^heard
Beltran make an allegedly seditious speech on a certaifi date
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but the affidavits did not make reference to acts constituting rebellion.
The Court pointed out that under DOJ Circular No. 61, dated 21
September 1993, the initial duty of the inquest officer is to determine if the
arrest of the detained person was conducted in accordance with the provisions
of paragraphs (a) and (b) of Sec. 5, Rule 113. If the arrest was not properly
effected, the inquest officer should proceed under Section 9 of Circular No. 61
which provides:
*Where Arrest Not Properly Effected. — Should the Inquest Officer find
that the arrest was not made in accordance with the Rules, he shall:
a)
recommend the release of the person arrested or detained;
b)
note down the disposition on the referral document;
c)
prepare a brief memorandum indicating the reasons for the action
taken; and
d)
forward the same, together with the record of the case, to the City
or Provincial Prosecutor for appropriate action.
"Where the recommendation for the release of the detained person is
approved by the City or Provincial Prosecutor but the evidence on hand warrant
the conduct of a regular preliminary investigation, the order of release shall be
served on the officer having custody of said detainee and shall direct the said
officer to serve upon the detainee the subpoena or notice of preliminary investigation, together with the copies of the charge sheet or complaint, affidavit or sworn
statements of the complainant and his witnesses and other supporting evidence."
For the failure of Beltran's panel of inquest prosecutors to comply with
Sec. 6, Rule 112 in relation to Sec. 5, Rule 113 and DOJ Circular No. 61, Beltran's
inquest was declared void (Crispin. Beltran v. People and Secretary Gonzalez,
G.R. No. 175013; June 1, 2007).
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Who may conduct preliminary investigation and determine existence of
probable cause
1. The following are authorized to conduct a preliminary
investigation:
(a)
(b)
Provincial or City Prosecutors and their assistants;
National and Regional State Prosecutors; and
(c)
Other officers as maybe authorized by law.
The authority of the above to conduct preliminary investigations shall
include all crimes cognizable by the proper court in their respective territorial
jurisdiction (A.M. 05-06-26, SC, August 30,2005, effective October 3,2005).
Before the amendments, judges of the Municipal Trial Courts and
Municipal Circuit Trial Courts were allowed to conduct preliminary
investigations (Mago v. Pefialosa-Fermo, 582 SCRA 1). Judges of first level
courts are no longer allowed to conduct preliminary investigations (Sibulo v.
Toledo- Mupas, A.M. No. MTJ-07-1686, June 12,2008).
2. The following are also authorized to conduct a preliminary
investigation:
(a) Under the amendments to the Omnibus Election Code, the
Commission on Elections, through its duly authorized legal officers, has
the power, concurrent with the other prosecuting arms of the
government, to conduct preliminary investigation of all election offenses
punishable under the Omnibus Election Code and to prosecute the same
(Sec. 265, B.P. 881, Omnibus Election Code, as amended by RA. 9369,
Sec. 43).
It has been held in a relatively recent case that "A public
prosecutor exceeded the authority delegated to him by the Commission
on Elections (COMELEC) to prosecute election-related cases when he
filed amended informations in court against the respondent even after
he had been directed by the Legal Department fcf the COMELEC to
suspend the implementation of hi& joint
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resolution (which found that the respondent should be indicted) but
before his delegated authority had been revoked by the COMELEC en
bane.
"The Constitution, particularly Sec. 20, Article IX, empowers the
COMELEC to investigate and, when appropriate, prosecute election
cases. Furthermore, under Section 265 of the OEC, the COMELEC,
through its duly authorized legal officers, has the exclusive power to conduct the preliminary investigation of all election offenses punishable
under the OEC and to prosecute the same. Under Section 265 of the
OEC, the COMELEC may avail itself of the assistance of other prosecuting
arms of the government. Thus, Section 2, Rule 34 of the COMELEC Rules
of Procedure provides for the continuing delegation of authority to other
prosecuting arms of the government, which authority, however, may be
revoked or withdrawn at anytime by the COMELEC in the proper exercise
of its judgment. Sec. 10 of the same Rule 34 gives the COMELEC the
power to motu proprio revise, modify and reverse the resolution of the
Chief State Prosecutor and/or provincial/city prosecutors.
"Clearly, the Chief State Prosecutor, all Provincial and City Fiscals,
and/or their respective assistants have been given continuing authority,
as deputies of the Commission, to conduct a preliminary investigation of
complaints involving election offenses under the election laws and to
prosecute the same. However, such authority may be revoked or
withdrawn anytime by the COMELEC either expressly or impliedly, when
in its judgment, such revocation or withdrawal is necessary to protect the
integrity of the process to promote the common good or where it
believes that the successful prosecution of the case can be done by the
COMELEC. Moreover, being mere deputies or agents of the COMELEC,
provincial or city prosecutors deputized by it are expected to act in accord
with and not contrary to or in derogation ftf the resolutions, directives or
orders of the COMELEC in relation to election cases where it had been
deputized
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to investigate and prosecute by the COMELEC. As mere deputies,
provincial and city prosecutors acting on behalf of the COMELEC must
proceed within the lawful scope of their delegated authority (Bievenido
Difvo and Renato Comparativo v. Pablo Olivarez, G.R. No. 170447,
December 4,2009).
Note: This case had been filed in 2004 before the amendment
introduced by R.A. 9369 in January 23, 2007 and should now be
interpreted in accordance with the amendment. Under Sec. 43 thereof,
the power of the COMELEC to investigate and prosecute election offenses is now concurrent with the other prosecuting arms of the
government. The other prosecuting arms of the government, it is
humbly submitted no longer need to be deputized by the COMELEC. The
original provision of Art. 265 of the Omnibus Election Code provided that
the COMELEC, through its legal officers, "have the exclusive power to
conduct preliminary investigation of all election offenses...The
Commission may avail of the assistance of other prosecuting arms of the
government..." The difference between the original Art. 265 and its
amended version warrants a modification of existing case law on the
matter.
(b) The Office of the Ombudsman has the authority to investigate
and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such
act or omission appears to be illegal, unjust, improper or inefficient. It
has primary jurisdiction over cases cognizable by the Sandiganbayan
and, in the exercise of this primary jurisdiction, it may take over, at any
stage, from any investigatory agency of the government, the
investigation of such cases (Sec. 15[1], R.A. 6770).
In appropriate cases, the Office of the Ombudsman has full
authority to issue subpoenas, including subpoena duces tecum, for
compulsory attendance of witnesses and the production of documents
and informatiori relat
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ing to matters under its investigation. The grant of this authority, however, is
not unlimited, as the Ombudsman must necessarily observe and abide by the
terms of the Constitution and our laws, the Rules of Court and the applicable
jurisprudence on the issuance, service, validity and efficacy of subpoenas.
Under the Rules of Court, the issuance of subpoenas, including a subpoena
duces tecum, operates under the requirements of reasonableness and
relevance. For the production of documents to be reasonable and for the
documents themselves to be relevant, the matter under inquiry should, in the
first place, be one that the Ombudsman can legitimately entertain, investigate
and rule upon (Re: Subpoena Duces Tecum dated January 11,2010 of Acting
Director Aleu A. Amante, PIAB-C Office of the Ombudsman, AM. No. 101-13-SC, March 2,2010).
(c) The Presidential Commission on Good Government with the
assistance of the Office of the Solicitor General and other government
agencies is empowered to investigate, file and prosecute cases
investigated by it (Executive Order No. 14, May 7,1986).
The procedure for preliminary investigation must be strictly followed
One case is illustrative.
A preliminary investigation of the rebellion charges against Ladlad and
Maza was held before a panel of DOJ prosecutors on the basis of the
unsubscribed letters of CIDG investigators alleging that the petitioners have
committed acts constituting rebellion. During the preliminary investigation, the
counsel for the CIDG presented a masked man, who claimed to be an
eyewitness against petitioners in a complaint for rebellion. The man subscribed
to his affidavit before one of the respondent prosecutors who then gave copies
of the affidavit to media members present during the proceedings. The-panel
of prosecutors gave petitioners 10 days within which to file their
counter-affidavits but the petitioners were
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furnished the complete copies of documents supporting the CIDG's letters
much later.
Petitioners moved for the inhibition of the members of the prosecution
panel for lack of impartiality and independence, considering the political milieu
under which petitioners were investigated, the statements that the President
and the Secretary of Justice made to the media regarding petitioners' case, and
the manner in which the prosecution panel conducted the preliminary
investigation. The DOJ panel of prosecutors denied petitioners' motion as well
as the subsequent motion for reconsideration.
Petitioners sought the nullification of the orders of the DOJ panel and for
the issuance of an injunctive writ. Acting on petitioners' prayer for the issuance
of an injunctive writ, the Court issued a status quo order. Prior to this, however,
the panel of prosecutors, issued a resolution finding probable cause to charge
petitioners and 46 others with rebellion. The prosecutors filed the
corresponding Information with RTC Makati, Consequently, the petitioners
Ladlad and Maza filed a supplemental petition to enjoin the prosecution of the
criminal case because of irregularities in the preliminary investigation.
In deciding the petition, the Court started by outlining the procedure for
the preliminary investigation of offenses punishable by at least four years, two
months and one day as embodied in Sec. 3, Rule 112 of the Revised Rules of
Criminal Procedure.
The Court found that instead of following this procedure scrupulously, so
that the constitutional right to liberty of a potential accused can be protected
from any material damage, respondent prosecutors nonchalantly disregarded
it. Respondent prosecutors failed to comply with Sec. 3(a) of Rule 112 which
provides that the complaint (which, with its attachment, must be of such
number as there are respondents) be accompanied by the affidavits of the
complainant and his witnesses, subscribed and sworn to before any prosecutor
or government official authorized to administer oath, or, in their
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absence or unavailability, before a notary public. Respondent prosecutors
treated the unsubscribed letters of the officers of CIDG-PNP as complaints and
accepted the affidavits attached to the letters even though some of them were
notarized by a notary public without any showing that a prosecutor or qualified
government official was unavailable as required by Sec. 3(a) of Rule 112.
Further, Sec. 3(b) of Rule 112 mandates that the prosecutor, after
receiving the complaint, must determine if there are grounds to continue with
the investigation. If there is none, he shall dismiss the case, otherwise he shall
"issue a subpoena to the respondents." Here, after receiving the CIDG letters,
respondent prosecutors peremptorily issued subpoenas to petitioners
requiring them to appear at the DOJ office on a certain date "to secure copies
of the complaints and its attachments." During the investigation, respondent
prosecutors allowed the CIDG to present a masked man who subscribed to an
affidavit before the respondent prosecutors. Copies of the affidavit of the man
were distributed, not to petitioners or their counsels, but to members of the
media who covered the proceedings. Respondent panel of prosecutors then
required petitioners to submit their counter-affidavits in 10 days. It was only
four days later, that petitioners received the complete copy of the attachments
to the CIDG letters.
"These uncontroverted facts belie respondent prosecutors' statement
that the preliminary investigation "was done in accordance with the Revised
Rules o[f] Criminal Procedure." Indeed, by peremptorily issuing the subpoenas
to petitioners, tolerating the complainant's antics during the investigation, and
distributing copies of a witness' affidavit to members of the media knowing
that petitioners have not had the opportunity to examine the charges against
them, respondent prosecutors not only trivialized the investigation but also
lent credence to petitioners' claim that the entire proceeding was a sham."
The Court stressed:
A preliminary investigation is the crucial sieve in
the criminal justice system which spells for an individual
' rr
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the difference between months if not years of agonizing trial and possibly jail
term, on the one hand, and peace of mind and liberty, on the other hand. Thus,
we have characterized the right to a preliminary investigation as not "a mere
formal or technical right" but a "substantive" one, forming part of due process in
criminal justice. This especially holds true here where the offense charged is punishable by reclusion perpetua and may be non-bailable for those accused as
principals (Ladlad v. Velasco, G.R. Nos. 172070-72, June 1, 2007; Maza v.
Gonzalez, G.R. Nos. 172074-76, June 1,2007).
Initial steps in preliminary investigation; filing of the complaint for
preliminary investigation
1. It is the filing of the complaint with the investigating prosecutor
that starts the preliminary investigation process. In actual application, the
complaint is normally initiated through an affidavit of complaint.
This complaint is required to state the address of the respondent and
shall be accompanied by (a) the affidavits of the complainant, (b) the affidavits
of his witnesses and, (c) other supporting documents. These affidavits and
supporting documents are required in order to establish probable cause. The
number of copies to be filed shall be in such number as there are respondents
plus two (2) copies for the official file (Sec. 3[a], Rule 112, Rules of Court).
Notethatthecomplaintfiledforthepurposeofpreliminary
investigation
differs from the complaint filed for the purpose of instituting a criminal
prosecution. The latter refers to the complaint defined in Sec. 3 of Rule 110
and which is in the name of the People of the Philippines. It has also been held
that the complaint referred to in a preliminary investigation is not just the
affidavit of the complainant because his affidavit is treated as a component of
the complaint (See Santos-Concio v. Department of Justice, 543 SCRA 70).
2. The rule establishes a hierarchy with respect to the persons before
whom the affidavits may be subscribed and sworn to.
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The affidavits that shall accompany the complaint shall be subscribed
and sworn to before any prosecutor and not necessarily before the
investigating prosecutor. It may also be subscribed before any government
official authorized to administer oaths. In their absence or in case they are
unavailable, the affidavits may be subscribed and sworn to before a notary
public (Sec. 3[a], Rule 112, Rules of Court).
3. The prosecutor, official or notary public before whom the affidavits
were subscribed and sworn to does not perform a mere perfunctory or
mechanical duty. He is obligated to conduct a personal examination of the
affiants and corollarily, to certify that he personally examined the affiants and
that he is satisfied that they voluntarily executed and understood their
affidavits. (Sec. 3[a], Rule 112, Rules of Court).
Dismissal of the complaint or issuance of a subpoena
1. From the filing of the complaint, the investigating officer has ten
(10) days within which to decide which of the following options to take:
(a) To dismiss the complaint if he finds no ground to conduct
the investigation; or
(b) To issue a subpoena to the respondent in case he finds the
need to continue with the investigation, in which case the subpoena shall
be accompanied with a copy of the complaint and its supporting
affidavits and documents (Sec. 3[b], Rule 112, Rules of Court).
2. The respondent to whom the subpoena was issued shall have the
right to examine the evidence submitted by the complainant which he may not
have been furnished and to copy them at his expense. If the evidence is
voluminous, the complainant may be required to specify those which he
intends to present against the respondent, and these shall be made available
for examination or copying by the respondent at his expense. Objects as
evidence need not be furnished to a party but shall be made available for
examination, copying, or photographing at the expense of the requesting party
(Sec. 3[b], Rule 112, Rules of Court).
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Filing of counter-affidavit by the respondent; no motion to dismiss
1. The respondent who receives the subpoena, the complaint,
affidavits and other supporting documents, is not allowed to file a motion to
dismiss in lieu of a counter-affidavit. Instead, within ten (10) days from receipt
of the subpoena, he is required to submit his counter-affidavit, the affidavits of
his witnesses and the supporting documents relied upon for his defense (Sec. 3
[c], Rule 112, Rules of Court).
2. The counter-affidavits shall be subscribed and sworn to before any
prosecutor or before any government official authorized to administer oaths.
In their absence or in case they are unavailable, the affidavits may be
subscribed and sworn to before a notary public. The officer or notary public
before whom the affidavits were subscribed and sworn to must certify that he
personally examined the affiants and that he is satisfied that they voluntarily
executed and understood their affidavits (Sec. 3[c], Rule 112, in relation to
Sec. 3[a], Rule 112, Rules of Court).
Note: While the rule does not specifically mention other affidavits, it is a
common practice to allow the filing of a reply to the counter-affidavit usually
denominated as a reply-affidavit. The respondent may likewise rebut the
reply-affidavit through a rejoinder-affidavit.
Action to be taken if the respondent does not submit his counter-affidavit
If despite the subpoena, the respondent does not submit his
counter-affidavit within the ten-day period granted him, the investigating
officer shall resolve the complaint based on the evidence presented by the
complainant. The same rule shall apply in case the respondent cannot be
subpoenaed (Sec. 3[d], Rule 112, Rules of Court). This situation would have
the effect of an ex parte investigation because the respondent cannot or does
not participate in the proceedings.
Note: Since the Rules of Court are to be liberally construed, the
respondent should be allowed, through a proper motion, to have the
proceedings reopened to allow him to submit his
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counter-affidavit and the affidavits of his witnesses and other evidence he may
present. The motion however, should be done before the prosecutor has
issued a resolution in the case. Further, such motion should contain an
explanation for the failure to timely file the counter-affidavit
Clarificatory hearing if necessary; no right of cross-exami- nation
1. Within ten (10) days from the submission of the counter-affidavit,
other affidavits and documents filed by the respondent, or within ten (10) days
from the expiration of the period for their submission, a hearing may be set by
the investigating officer, if there are facts and issues to be clarified either from a
party or a witness. The parties can be present at the hearing but do not have
the right to examine or cross- examine each other or the witnesses. If they have
questions to ask, they shall submit the questions to the investigating officer
who shall ask the questions to the party or witness concerned. The hearing shall
be terminated within five (5) days (Sec. 3 [e], Rule 112, Rules of Court).
2. A clarificatory hearing is not indispensable during preliminary
investigation. Under Sec. 3(e) of Rule 112, it is within the discretion of the
investigation officer whether to set the case for further hearings to clarify some
matters (De Ocampo v. Secretary of Justice, 480 SCRA 71; Racho v. Miro, 567
SCRA 213; Sierra v. Lopez, Administrative Case No. 7549, August 29,2008).
Determination by the investigating officer
Within ten (10) days from the termination of the investigation, the
investigating prosecutor shall determine whether or not there is sufficient
ground to hold the respondent for trial (Sec. 3 [fl, Rule 112, Rules of Court).
Discretion of prosecutor in filing of a criminal complaint or information (Bar
1999)
1. The determination of probable cause during a pre- liminary
investigation or reinvestigation is recognized as an
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executive function exclusively of the prosecutor. An investigating prosecutor is
under no obligation to file a criminal action where he is not convinced that he
has the quantum of evidence at hand to support the averments. Prosecuting
officers have equally the duty not to prosecute when after investigation or
reinvestigation they are convinced that the evidence adduced was not
sufficient to establish a prima facie case. Thus, the determination of the
persons to be prosecuted rests primarily with the prosecutor who is vested
with discretion in the discharge of this function (Dupasquier v. Court of
Appeals, G.R. No. 112089, January 24,2001 citing Ledesma v. Court of
Appeals, 344 Phil. 207, People v. Navarro 337 Phil. 122, Pono v. NLRC, 341
Phil. 615). Since discretion is involved in the determination of probable cause,
mandamus as described in Rule 65, will not, as a rule, lie to compel the filing of
a complaint or information.
2. A prosecutor is under no compulsion to file a particular criminal
information where he is convinced that there is not enough evidence to
support its averments, or that the evidence at hand, to his mind, necessarily
leads to a different conclusion (Ilusorio v. Ilusorio, 540 SCRA 182).
Resolution of investigating prosecutor; certification of preliminary
investigation
1.
If the investigating prosecutor finds cause to hold the respondent
for trial, he shall prepare both the resolution and information. If he does not
find probable cause, he shall recommend the dismissal of the complaint (Sec.
4, Rule 112, Rules of Court).
2. The information shall contain a certification by the investigating
officer under oath in which he shall certify to the following: (a) that he, or as
shown by the record, an authorized officer, has personally examined the
complainant and his witnesses, (b) that there is a reasonable ground to believe
that a crime has been committed, (c) that the accused is probably guilty
thereof, (d) that the accused was informed of the complaint and of the
evidence submitted against him, and
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(e) that he was given an opportunity to submit controverting evidence (Sec. 4,
Rule 112, Rules of Court).
Effect of the absence of the required certification (Bar 1998)
Definitely settled is the rule that notwithstanding the absence in the
information of a certification as to the holding of a preliminary investigation,
the information is nonetheless considered valid for the reason that such
certification is not an essential part of the information itself and its absence
cannot vitiate it as such (People v. Marquez 27 SCRA 808; Estrella v. Ruiz, 58
SCRA 779; People v. Arbois, 138 SCRA 24; all cases cited in Alvizo v.
Sandiganbayan, 220 SCRA 55). What is not allowed is the filing of the
information without a preliminary investigation having been previously
conducted (People v. Lapura, 255 SCRA 85).
Forwarding of the records of the case for action; need for approval before
filing or dismissal
1. Within five (5) days from his resolution, he shall forward the record
of the case to the provincial or city prosecutor or chief state prosecutor, or to
the Ombudsman or his deputy in cases of offenses cognizable by the
Sandiganbayan in the exercise of its original jurisdiction. They shall act on the
resolution within ten (10) days from their receipt thereof and shall immediately
inform the parties of such action (Sec. 4, Rule 112, Rules of Court).
2. The reason for the immediately preceding paragraph is the rule
that no complaint or information may be filed or dismissed by an investigating
prosecutor without the prior written authority or approval of the provincial or
city prosecutor or chief state prosecutor or the Ombudsman or his deputy (Sec.
4, Rule 112, Rules of Court). Thus, the resolution of the investigating
prosecutor may be reversed or affirmed by the provincial or city prosecutor or
chief state prosecutor, or the Ombudsman.
Rule when recommendation for dismissal is disapproved
Where the investigating prosecutor, recommends the dismissal of the
complaint but his recommendation is disap
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proved by the provincial or city prosecutor or chief state prosecutor or the
Ombudsman or his deputy on the ground that a probable cause exists, the
latter, may by himself, file the information against the respondent, or direct
another assistant prosecutor or state prosecutor to do so without conducting
another preliminary investigation (Sec. 4, Rule 112, Rules of Court).
Motion for reconsideration
The aggrieved party under current practice is not precluded from filing a
motion for reconsideration within 15 days from receipt of the assailed
resolution. If the motion is denied, the aggrieved party may appeal within
fifteen (15) days from the denial of the motion for reconsideration (Sec. 3,
2000 NPS Rule on Appeal, DO J Department Circular No. 70).
Appeals to the Secretary of Justice; filing a petition for review
1. In cases subject of preliminary investigation or reinvestigation, an
appeal may be brought to the Secretary of Justice from the resolutions of the
Chief State Prosecutor, Regional State Prosecutors and Provincial/City
Prosecutor (Sec. 1, Department Circular No. 70, NPS Rule On Appeal, Department of Justice, July 3,2000). The Secretary of Justice has the ultimate
authority to decide which of the conflicting theories of the complainants and
the respondents should be believed (Community Rural Bank of Guimba
[N.E.], Inc. v. Talavera, 455 SCRA 34).
2. The appeal shall be taken within fifteen (15) days from receipt of
the assailed resolution. If a motion for recon- sideration/reinvestigation has
been filed within fifteen (15) days from receipt of the assailed resolution, the
appeal shall be taken within fifteen (15) days from receipt of the denial of the
motion for reconsideration/reinvestigation (Sec. 3, Department Circular No.
70). Note: Under the same provision, only one motion for reconsideration is
allowed.
3. The appeal is made by filing a petition for review with the Office of
the Secretary, Department of Justice. This
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petition must be verified and copies of the same must be furnished the adverse
party and the Prosecution Office issuing the appealed resolution (Sec. 4,
Department Circular No. 70). The petition must contain the matters
mandated under Sec. 5 of Department Circular No. 70 and failure to comply
with the same shall constitute sufficient ground for the dismissal of the petition
(Sec. 6, Department Circular No. 70).
Within a non-extendible period of fifteen (15) days from receipt of the
copy of the petition, the adverse party may file a verified comment. The
investigating/reviewing/approving prosecutor need not submit any comment
except when directed by the Secretary of Justice (Sec. 8, Department Circular
No. 70).
If no comment is filed within the prescribed period, the appeal shall be
resolved on the basis of the petition (Sec. 8, Department Circular No. 70).
Note: The appeal does not hold or prevent the filing of the corresponding
information in court based on the finding of probable cause in the appealed
resolution, unless the Secretary of Justice directs otherwise, but the appellant
and prosecutor shall see to it that, pending resolution of the appeal, the
proceedings in court are held in abeyance (Sec. 9, Department Circular No.
70).
Note also that the party filing a petition for review is allowed to file a
motion for the suspension of the arraignment. Under Sec. 11(c) of Rule 116,
upon motion by the proper party, the arraignment shall be suspended, among
others, if a petition for review of the resolution of the prosecutor is pending.
4. If the Secretary of Justice finds the same to be patently without merit
or manifestly intended for delay, or when the issues raised therein are too
unsubstantial to require consideration, he may dismiss the petition outright
(Sec. 7, Department Circular No. 70).
If pursuant to the appealed resolution, an information has already been
filed and the accused has already been arraigned prior to the filing of the
petition, the petition shall
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not be given due course (Sec. 7, Department Circular No. 70). If
the accused has been arraigned after the filing of the petition,
any arraignment shall not bar the Secretary of Justice from
exercising his power of review (Sec. 7, Department Circular
No. 70).
5. The Secretary of Justice may reverse, affirm or modify the appealed resolution. He may also dismiss the petition
for review motu proprio or upon motion on any of the following
grounds:
(a) That the petition for review was filed beyond
the period prescribed;
(b) That the prescribed procedure and requirements provided in Department Circular No. 70 were not
complied with;
(c) That there is no showing of any reversible error
or that the accused was already arraigned when the appeal was taken;
(d) That the appealed resolution is interlocutory in
nature, except when it suspends the proceedings based
on the alleged existence of a prejudicial question;
(e) That the offense has already prescribed; and
(f) That there are other legal and factual grounds
that exist to warrant a dismissal (Sec. 12, Department
Circular No. 70). The Secretary however, has another option. He may order the reinvestigation of the case. If the
Secretary of Justice finds it necessary to investigate the
case, the reinvestigation shall be made by the investigating prosecutor, unless for compelling reasons, another
prosecutor is designated to conduct the same (Sec. 11,
Department Circular No. 70).
6. The party aggrieved by the decision of the Secretary
of Justice may file a motion for reconsideration within a
non-extendible period of ten (10) days from receipt of the
resolution on appeal. Copies of such motion and proof of
service thereof shall be served upon the adverse party, and
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183
the Prosecution Office concerned. No further or second motion for
reconsideration shall be entertained (Sec. 13, Department Circular No. 70).
Rules of Court provisions when resolution is reversed or modified by the
Secretary of Justice
The action of the provincial or city prosecutor of chief state prosecutor is
not the final say on the case. If upon petition by a proper party or motu
proprio, the Secretary of Justice reverses or modifies the resolution of the
provincial or city prosecutor of chief state prosecutor, he shall direct the
prosecutor concerned either to file the corresponding information without
conducting another preliminary investigation, or to dismiss or move for
dismissal of the complaint or information with notice to the parties (Sec. 4,
Rule 112, Rules of Court).
Power of the Secretary of Justice to reverse resolutions of prosecutors
1. It has been held that the Secretary of Justice, upon petition by a proper
party, can reverse his subordinates' resolutions finding probable cause against
suspects of crimes. He has the power to alter, modify, nullify or set aside what a
subordinate officer had done in the performance of his duties and to substitute
the judgment of the former for that of the latter. While it is the duty of the
fiscal to prosecute persons who, according to evidence received from the
complainant, are shown to be guilty of a crime, the Secretary of Justice is
likewise bound by his oath of office to protect innocent persons from
groundless, false or serious prosecutions. He would be committing a serious
dereliction of duty if he orders or sanctions the filing of charge sheets based on
complaints where he is not convinced that the evidence would warrant the
filing of an action in court. He has the ultimate power to decide which between
the conflicting theories of the parties should be believed.
Thus, in Joaquin, Jr. v. Drilon, G.R. No. 108946, January 28,1999, (302
SCRA 225) the Court affirmed the DOJ Secretary's power of control over the
authority of a state prosecu
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tor to conduct preliminary investigations on criminal actions. Thus, it held:
"In reviewing resolutions of prosecutors, the Secretary of Justice is not
precluded from considering errors, although unassigned, for the purpose of
determining whether there is probable cause for filing cases in court. He must
make his own finding of probable cause and is not confined to the issues raised by
the parties during preliminary investigation. Moreover, his findings are not subject
to review unless shown to have been made with grave abuse."
2. It is only where the decision of the Justice Secretary is tainted with
grave abuse of discretion amounting to lack or excess of jurisdiction that the
Court of Appeals may take cognizance of the case in a petition for certiorari
under Rule 65 of the Revised Rules of Civil Procedure. The Court of Appeals
decision may then be appealed to the Supreme Court by way of a petition for
review on certiorari (Asetre v. Asetre, G.R. No. 171536, April 7, 2009).
Assailing the resolution of the Secretary of Justice; petition for review
under Rule 43 not allowed; Petition for certiorari under Rule 65
1. The rule is that the DOJ is not a quasi-judicial agency exercising a
quasi-judicial function when it reviews the findings of a public prosecutor
regarding the presence of probable cause and that its findings are not
reviewable by the Court of Appeals in a petition for review under Rule 43 of
the Rules of Court (Bautista v. Court of Appeals, G.R. No. 143375, July
6,2001; Santos v. Go, G.R. No. 156081, October 19,2005). Rule 43 is an
improper remedy. The remedy of the aggrieved party is to file a petition for
certiorari under Rule 65 (Levi Strauss [Phil.], Inc. v. Lim, 573 SCRA 25).
2.
In Alcaraz v. Gonzalez, G.R. No. 164715, September 20, 2006,
the threshold issue that confronted the Court was whether or not the petition
for review under Rule 43 of the Rules of Court was the proper remedy of
respondent against the resolution of the Secretary of Justice.
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In Alcaraz, the Court agreed with petitioner's contention that
respondent resorted to an improper remedy when he filed a petition for
review under Rule 43 of the Rules of Court, instead of filing a petition for
certiorari under Rule 65.
It was stressed that in the determination of probable cause during the
preliminary investigation, the executive branch of government has full
discretionary authority. Thus, the decision whether or not to dismiss the
criminal complaint against the private respondent is necessarily dependent on
the sound discretion of the Investigating Prosecutor and ultimately, that of the
Secretary of Justice. Courts are not empowered to substitute their own
judgment for that of the executive branch.
Alcaraz further explained that the resolution of the Investigating
Prosecutor is subject to appeal to the Justice Secretary who, under the Revised
Administrative Code, exercises the power of control and supervision over said
Investigating Prosecutor; and who may affirm, nullify, reverse, or modify the
ruling of such prosecutor. Thus, while the CA may review the resolution of the
Justice Secretary, it may do so only in a petition for certiorari under Rule 65 of
the Rules of Court, solely on the ground that the Secretary of Justice committed
grave abuse of his discretion amounting to excess or lack of jurisdiction.
It bears stressing, declared the Court, that the Resolution of the Justice
Secretary affirming, modifying or reversing the resolution of the Investigating
Prosecutor is final. Under the 1993 Revised Rules on Appeals (now the 2000
National Prosecution Service Rules on Appeals), resolutions in preliminary
investigations or reinvestigations from the Justice Secretary's resolution, the
aggrieved party has no more remedy of appeal except to file a motion for
reconsideration of the said resolution. The remedy of the aggrieved party is to
file a petition for certiorari under Rule 65 of the Rules of Court since there is no
more appeal or other remedy available in the ordinary course of law.
In Alcaraz, the respondent filed a petition for review under Rule 43 of the
Rules of Court, assailing the resolutions
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UPDATED EDITION
of the Justice Secretary. Instead of dismissing the petition, however, the CA
gave due course to it and thereafter granted the petition on its finding that the
Justice Secretary erred in reversing the resolution of the Investigating
Prosecutor which found probable cause against petitioner for attempted
homicide. Patently, ruled the Court, the ruling of the CA is incorrect.
3. A corollary rule is the adoption by the Court of a policy of
non-interference in the conduct of preliminary investigations and leaves to the
investigating prosecutor sufficient latitude of discretion in the determination of
what constitutes sufficient evidence as will establish probable cause for the
filing of information against the supposed offender. But as in every rule, there
are settled exceptions. The principle does not apply when there is a grave
abuse of discretion which would authorize the aggrieved person to file a
petition for certiorari and prohibition under Rule 65, 1997 Rules of Civil
Procedure (Sy Thiong Shiou v. Sy Chim, G.R. No. 174168, March 30, 2009).
4.
In a case, the Respondents argue that the findings of the DOJ in
affirming, modifying or reversing the recommendations of the public
prosecutor dismissing certain criminal complaints cannot be the subject of
certiorari or review of the Court of Appeals because the DOJ is not a quasijudicial body within the purview of Section 1, Rule 65 of the Rules of Court.
In the same case, the Court conceded that a preliminary proceeding is
not a quasi-judicial function and that the DOJ is not a quasi-judicial agency
exercising a quasi-judicial function when it reviews the findings of a public
prosecutor regarding the presence of probable cause but whether there is
reasonable ground to believe that the accused is guilty of the offense charged
and should be subjected to the expense, rigors and embarrassment of trial, is
the function of the prosecution. The Court further declared that it has adopted
a policy of noninterference in the conduct of preliminary investigations and
leaves to the investigating prosecutor sufficient latitude of discretion in the
determination of what constitutes sufficient
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evidence as will establish probable cause for the filing of
information against the supposed offender.
However, the Court also held:
"As in every rule, however, there are settled exceptions. Hence, the principle of non-interference does not
apply when there is grave abuse of discretion which
would authorize the aggrieved person to file a petition for
certiorari and prohibition under Rule 65, 1997 Rules of
Civil Procedure, x x x As correctly found by the Court of
Appeals, the DOJ gravely abused its discretion x x x "
(Sy Tiong Shiou v. Sy Chim, G.R. No. 174168, March 30,
2009).
5. In another case it was similarly ruled that while it
is generally the Secretary of Justice who has the authority to
review the decisions of the prosecutors, the same precedential
principles apply in full force and effect to the authority of the
Court of Appeals to correct the acts tainted with grave abuse
of discretion by the prosecutorial officers notwithstanding the
filing of the informations (Filemon A. Verzano, Jr. v. Francis
Victor D. Paro, G.R. No. 171643, August 8,2010).
Appeal to the Office of the President
1. While judicial pronouncements do not allow an appeal to the Court of Appeals under Rule 43 from the resolution of the Secretary of Justice, the appeal referred to in such
pronouncements evidently pertains only to a judicial appeal.
2. An administrative appeal is not proscribed by the
previously cited jurisprudence. Likewise, Memorandum
Circular No. 58 dated June 30, 1993 provides that appeals
from or petition for review of "decisions/orders/resolutions
of the Secretary of Justice on preliminary investigations of
criminal cases are entertained by the Office of the President"
under the following conditions which have to be established as
jurisdictional facts:
(a) The offense involved is punishable by reclusion
perpetua to death (Angeles v. Gaite, G.R. No. 176596,
March 23, 2011);
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(b) New and material issues are raised which were not
previously presented before the Department of Justice and were not
hence, ruled upon;
(c) The prescription of the offense is not due to lapse within six
(6) months from notice of the questioned resolution; and
(d) The appeal or petition for review is filed within thirty (30)
days from notice.
If the appeal does not clearly fall within the jurisdiction of the Office of
the President, the appeal shall be dismissed outright. If the lack of jurisdiction is
not readily apparent, the appellant/petitioner shall be ordered to prove the
necessary jurisdictional facts.
3. In the event of an adverse decision against the appellant, a verified
petition for review may be taken to the Court of Appeals within fifteen (15)
days from notice of the final order of the Office of the President and following
the procedure set forth under Rule 43 of the Rules of Court.
In De Ocampo v. Secretary of Justice, G.R. No. 147932, January 25,
2006, the OSG contends that instead of filing a Rule 65 petition with the
Supreme Court, the petitioner should have availed of Rule 43 in the case under
consideration. Thus, the OSG argues that the petition should be dismissed
outright for being a wrong mode of appeal. On the other hand, assuming Rule
65 applies, the OSG points out that the petition for certiorari should be filed
with the Court of Appeals.
De Ocampo held that based on Memorandum Circular No. 58 the
resolution of the DOJ Secretary is appealable administratively to the Office of
the President since the offenses charged in this case are punishable by
reclusion perpetua. The Court further explained that even assuming that the
DOJ Secretary committed a grave abuse of discretion amounting to lack or
excess of jurisdiction in rendering the assailed resolutions, the petitioner
should have filed the instant petition for certiorari with the Court of Appeals.
Hence, on the issue alone of the propriety of the remedy sought by petitioner,
the petition for certiorari must fail.
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Appeals under Rule 43 and Rule 45
1. From the Office of the President, the aggrieved party may file an
appeal with the Court of Appeals pursuant to Rule 43. Under Sec. 1 of Rule 43,
the final orders or resolutions of the Office of the President is appealable to the
Court of Appeals by filing a verified petition for review following the procedure
set by Sec. 5 and 6 of Rule 43.
2. The party aggrieved by the judgment, final order or resolution of
the Court of Appeals may avail of an appeal by certiorari (petition for review on
certiorari) to the Supreme Court under Rule 45.
Records supporting the information or complaint filed in court
1. It is not only the complaint or the information that is filed in court.
The rule requires in the clearest of terms that an information or complaint filed
in court shall be supported by the affidavits and counter-affidavits of the parties
and their witnesses, together with the other supporting evidence and the
resolution on the case (Sec. 7[a], Rule 112, Rules of Court).
2. The record of the preliminary investigation shall not form part of
the record of the case. This rule applies not only to the preliminary
investigation conducted by the prosecutor but also to a preliminary
investigation made by other officers as may be authorized by law. Although not
part of the record of the case, the court, on its own initiative or on motion of
any party, may order the production of the record or any of its part when the
court considers it necessary in the resolution of the case or any incident
therein, or when it is introduced as an evidence in the case by the requesting
party (Sec. 7[b], Rule 112, Rules of Court).
Action of the judge upon the filing of the complaint or information
1. Within ten (10) days from the filing of the complaint or information,
the judge shall personally evaluate the reso
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lution of the prosecutor. In conducting the evaluation of the resolution, the
judge shall look into its supporting evidence (Sec. 5, Rule 112, Rules of Court).
2. The judge may make some findings after personally evaluating the
resolution of the prosecutor. The judge may find that the evidence (a) fails to
establish probable cause; (b) establishes probable cause; or (c) engenders a
doubt as to the existence of probable cause.
If the evidence on record clearly fails to establish probable cause, the
judge may immediately dismiss the case.
If he finds probable cause, he shall issue a warrant of arrest. If a
complaint or information was already filed pursuant to a lawful warrantless
arrest under Sec. 6 of Rule 112, the court shall issue a commitment order
instead of a warrant of arrest. The same rule applies if the accused has already
been arrested pursuant to a warrant previously issued.
In case the judge doubts the existence of probable cause, the judge
may order the prosecution to submit additional evidence within five (5) days
from notice. The issue must be resolved by the court within thirty (30) days
from the filing of the complaint or information (Sec. 5, Rule 112, Rules of Court
as amended by AM. 05-08-26-SC, August 30,2005).
3. Jurisprudence reiterates the rule thus: The options available to the
RTC upon the filing of an information before it by the public prosecutor or any
prosecutor of the Secretary of Justice, are the following: (1) dismiss the case if
the evidence on record clearly failed to establish probable cause; (2) if the RTC
finds probable cause, issue a warrant of arrest; and (3) in case of doubt as to
the existence of probable cause, order the prosecutor to present additional
evidence within 5 days from notice, the issue to be resolved by the court
within thirty (30) days from the filing of the information. The Supreme Court
held that dismissal of the case by the RTC judge in a case did not amount to
grave abuse of discretion. Rather, it clearly showed his compliance with his
duty to personally evaluate the resolution of the prosecutor and its supporting
evidence
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(Elvira O. Ongv. Jose Casim Genio, G.R. No. 182336, December 23, 2009).
When warrant of arrest is not necessary
1.
A warrant of arrest is not required in the following instances:
(a) When a complaint or information has already been filed
pursuant to a lawful warrantless arrest, i.e., if the accused is already
under detention and was lawfully arrested without a warrant and a
complaint or information has been filed pursuant to Sec. 6, Rule 112 (Sec.
5[c], Rule 112, Rules of Court); also when a warrant has already been
issued by the MTC judge pursuant to Sec. 5[b] of Rule 112 and the
accused is already detained (Sec. 5(c), Rule 112).
(b) When the accused is charged for an offense punishable only
by fine (Sec. 5[c], Rule 112); or
(c) When the case is subject to the Rules on Summary
Procedure (Sec. 16, 1991 Rule on Summary Procedure).
2.
It is within the discretion of the judge to issue a warrant for the
arrest of an accused in a criminal case. A judge is required to personally
evaluate the resolution of the prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on record clearly fails to establish
probable cause. However, if he finds probable cause, then he is mandated by
law to issue such warrant. 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 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." The arrest of the accused
can be ordered only in the event that the prosecutor files the case and the
judge of the RTC finds probable cause for the issuance of the warrant of arrest
(Pangan v. Ganay, 445 SCRA 574 citing Concerned Citizens of Maddela v. De
la Torre-Yadao, 39&SCRA 217).
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Withdrawal of the information already filed in court (Bar 1990; 2003)
1. In Crespo v. Mogul, 151 SCRA 462, the issue raised is whether the
trial court acting on a motion to dismiss a criminal case filed by the Provincial
Fiscal upon instructions of the Secretary of Justice to whom the case was
elevated for review, may refuse to grant the motion and insist on the
arraignment and trial on the merits.
Grappling with the issue, the Court unequivocally held that the rule in
this jurisdiction is that once a criminal complaint or information is filed in court,
any disposition of the case or dismissal or acquittal or conviction of the accused
rests within the exclusive jurisdiction, competence, and discretion of the trial
court. Although the fiscal retains the direction and control of the prosecution of
criminal cases even while the case is already in court, he cannot impose his
opinion on the trial court. The trial court is the best and sole judge on what to
do with the case before it. The determination of the case is within its exclusive
control and competence. A motion to dismiss the case filed by the public
prosecutor should be addressed to the court which has the option to grant or
deny the same. Crespo likewise ruled that it does not matter if this is done
before or after arraignment of the accused or that the motion was filed after a
reinvestigation or upon instructions of the Secretary of Justice who reviewed
the records of the investigation. The court, in the exercise of its discretion may
deny the motion and require that the trial on the merits proceed for the
proper determination of the case.
2. It is vital to bear in mind that in resolving a motion to dismiss the
case or to withdraw the information filed by the public prosecutor on his own
initiative or pursuant to the directive of the Secretary of Justice, either for
insufficiency of the evidence or for lack of probable cause, the trial court should
not rely solely on the findings of the public prosecutor or the Secretary of
Justice that no crime was committed or that the evidence is insufficient to
support a conviction. The triaLeourt must make an independent evaluation or
assessment tff the
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merits of the case and the evidence on record of the prosecution (Santos v.
Orda, Jr., 437 SCRA 504). The dismissal cannot be merely based on the findings
of the Secretary of Justice that no crime was committed. Reliance cannot be
placed solely on the conclusion of the prosecution that there is no sufficient
evidence against the accused. The grant of the motion to dismiss cannot be
based upon considerations other than the judge's own and personal conviction
that there was no case against the accused. In other words, the judge himself
must be convinced that there was, indeed, no sufficient evidence against the
accused, and this conclusion can be arrived at only after an assessment of the
evidence in the possession of the prosecution (Martinez v. Court of Appeals,
237 SCRA 575; Gandarosa v. Flores, G.R. No. 167910,17July 2007,527 SCRA
776; Co v. Lim, G.R. Nos. 164669-70, October 30,2009; Harold V. Tamargo v.
Romulo Awingan, Lloyd Antiporda and Licerio Antiporda, Jr., G.R. No.
177727, January 19, 2010; Leonardo U. Flores v. Hon. Raul S. Gonzales, G.R.
No. 188197, August 3,2010).
3. The trial court should not rely solely and merely on the findings of
the public prosecutor or the Secretary of Justice that no crime was committed
(Santos v. Orda, Jr., 437 SCRA 504). The trial court has the option to grant or
deny the motion to dismiss filed by the fiscal (Ledesma v. Court of Appeals,
278 SCRA 656).
It may either agree or disagree with the recommendation of the
Secretary. Reliance alone on the resolution of the Secretary would be an
abdication of the trial court's duty and jurisdiction to determine a prima facie
case (Summerville General Merchandising & Co., Inc. v. Eugenio, Jr., G.R. No.
163741, August 7, 2007, 529 SCRA 274).
4. Once a criminal action has been instituted by the filing of the
Information with the court, the latter acquires jurisdiction and has the authority
to determine whether to dismiss the case or convict or acquit the accused.
Where the prosecution is convinced that the evidence is insufficient to establish
the guilt of an accused, it cannot be faulted for
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moving for the withdrawal of the Information. However, in granting or denying
the motion to withdraw, the court must judiciously evaluate the evidence in
the hands of the prosecution. The court must itself be convinced that there is
indeed no satisfactory evidence against the accused and this conclusion can
only be reached after an assessment of the evidence in the possession of the
prosecution (Ramos v. People, G.R. No. 171565, July 13,2010).
5.
The court must itself be convinced that there is indeed no
sufficient evidence against the accused. The judge must not also ignore
relevant pieces of evidence necessary to resolve the motion and must look at
everything made available to the judge such as affidavits and
counter-affidavits, documents or evidence appended to the information, the
records of the public prosecutor or any evidence already adduced before the
court at the time the motion is filed (Tamargo v. Awingan, G.R. No. 177727,
January 19, 2010).
6. It bears emphasizing that when the trial court grants a motion of
the public prosecutor to withdraw the Information in compliance with the
directive of the Secretary of Justice, or to deny the said motion, it does so not
out of compliance to or defiance of the directive of the Secretary of Justice, but
in sound and faithful exercise of its judicial prerogative. The trial court is the
best and sole judge on what to do with the case before it. The rule applies to a
motion to withdraw the Information or to dismiss the case even before or after
the arraignment of the accused. The prior determination of probable cause by
the trial court does not in any way bar a contrary finding upon reassessment of
the evidence presented before it (Ramos v. People, G.R. No. 171565, July
13,2010).
7. In a fairly recent case, a motion to withdraw an information filed
by the city prosecutor was denied by the trial court. Without moving for a
reconsideration of the order denying the motion, the accused filed a petition
for mandamus with the Supreme Court to seek a reversal of the order of the
trial court. The Court also ruled, as it had done in past cases, that the trial court,
when confronted with a motion to withdraw an information on the ground of
lack of probable
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cause, is not bound by the resolution of the prosecuting arm of the
government, but is required to make an independent assessment of the merits
of such motion (Hipos, Sr. v. Bay, G.R. No. 174813-15, March 17, 2009;
Baltazar v. Chua, G.R. No. 177583, February 27, 2009).
8. In Lee v. KC Bank, N.V., G.R. No. 164673, January 15, 2010, the
trial court was confronted with a motion to withdraw an information for estafa
filed against the respondents. The court granted the motion in an order stating
that it had made "an in-depth scrutiny of the arguments raised by the
prosecution and private complainant" and that it "finds the contentions of the
prosecution to be sufficient and meritorious." An order of this tenor was ruled
to be insufficient. The Supreme Court declared the judge must in his order,
positively state that the evidence presented against the respondents was
insufficient for a prima facie case. It must include a discussion of the merits of
the case based on an evaluation or assessment of the evidence on record, look
at the basis of the recommendation of the prosecution, and state the reasons
for granting the motion to withdraw the information and must embody the
assessment in the order.
If these requirements are not complied with, Lee v. KC Bank, N.V.,
concludes that a dismissal of the case would then be based upon
considerations other than the judge's own personal individual conviction that
there was no case against the respondents and showed that the trial judge
improperly relinquished the discretion that he was bound to exercise.
9. In another case, the petitioner laments the trial court's denial of the
Motion to Withdraw Information filed by the investigating prosecutor due to
the latter's finding of lack of probable cause to indict him. He argues that such
denial effectively deprived him of his substantive rights.
Still, petitioner's argument fails to persuade. There is nothing
procedurally improper on the part of the trial court in disregarding the result of
the preliminary investigation it itse]|jordered. Judicial action on the motion
rests in the sound exercise of judicial discretion. In denying the motion, the
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trial court just followed the jurisprudential rule laid down in
Crespo v. Judge Mogul, 235Phil. 465, that once a complaint or
information is filed in court, any disposition of the case as to
its dismissal or the conviction or acquittal of the accused rests
on the sound discretion of the court (Evangelista v. People,
G.R. No. 163267, May 5,2010).
10. The basic rule is simple: While the Secretary of
Justice has the power to alter or modify the resolution of his
subordinate and thereafter direct the withdrawal of the case,
he cannot, however, impose his will on the court (Dumlao v.
Ponferrada, 508 SCRA 426).
11. In a case on appeal, petitioner argues that the filing
of the informations in the MTCC had already removed the
cases from the power and authority of the prosecution to
dismiss the same in accordance with the doctrine laid down in
Crespo v. Mogul (Crespo). In denying the petition, the Supreme
Court ruled that Crespo does not foreclose an appeal made of
the resolution of a prosecutor in the determination of probable
cause notwithstanding that informations had already been
filed in court. The Supreme Court clarified that Crespo did
not foreclose the power or authority of the Secretary of Justice
to review resolutions of his subordinates in criminal cases.
The Supreme Court recognized that in Crespo, the action
of the investigating fiscal or prosecutor in the preliminary
investigation is subject to the approval of the provincial or
city fiscal or chief state prosecutor. Thereafter, it may be
appealed to the Secretary of Justice. The justice secretary's
power of review may still be availed of despite the filing of an
information in court (FilemonA. Verzano, Jr. v. Francis Victor
D. Paro, G.R. No. 171643, August 8, 2010).
Some judicial pronouncements on preliminary investigation
1. One case (Sierra v. Lopez, A.C. 7549, August 29,
2008) makes important judicial pronouncements on preliminary investigation.
In Sierra the complainant in an administrative case^filed
a complaint with the Supreme Court for dereliction of duty and
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gross ignorance of the law against certain prosecutors. The complainant raised
the following questions of law: (1) whether the parties must appear together
before the investigating prosecutor during preliminary investigation; (2)
whether the counter-affidavits of the respondents should be sworn to only
before the investigating prosecutor; and (3) whether the investigating
prosecutor erred in denying the request of the complainant for clarificatory
questioning.
Ruled the Court:
"We find no merit in the complaint. Rule 112, particularly
Section 3 of the Rules of Court, lays down the basic procedure in
preliminary investigation x x x
"This provision of the Rules does not require a confrontation
between the parties. Preliminary investigation is ordinarily
conducted through submission of affidavits and supporting
documents, through the exchange of pleadings.
xxx
"Since confrontation between the parties is not imperative, it
follows that it is not necessary that the counter-affidavit of
respondent be sworn to before the investigating prosecutor
himself. It can be sworn to before another prosecutor. In fact, this
is specifically provided in paragraph (c) of Sec. 3, which states that
the "counter- affidavit shall be subscribed and sworn to and
certified as provided in paragraph (a) of this section x x x;" and
paragraph (a), provides: the affidavits shall be subscribed and
sworn to before any prosecutor or government official or in their
absence or unavailability, before a notary public
xxx.
"Lastly, we hold that the investigating prosecutors did not
abuse their discretion when they denied the request of the
complainant for the conduct of clarificatory questioning. Under
paragraph (e) of Section 3 above, the conduct of clarificatory
questioning is discretionary upon the prosecutor. Indeed, we
already held in Webb v. De Leon (G.R. Nos. 121245 & 121297, August
23,1995), that the decision to call witnesses for clarificatory
questions
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is addressed to the sound discretion of the investigator,
and the investigator alone" (Sierra v. Lopez, A.C. 7549,
August 29,2008).
2. The principle of estoppel was once applied in a preliminary
investigation in the Ombudsman in a much earlier case (Bautista v.
Sandiganbayan, G.R. No. 136082 May 12, 2000).
In Bautista, an anonymous, unverified and unsigned let- ter-complaint
purportedly emanating from certain named associations, was filed with the
Office of the Ombudsman against the petitioner for violation of Sec. 3, par. (e),
of R.A. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act for among others, causing the hiring of one hundred and
ninety-two (192) casual employees in the municipal government for political
considerations and that the payment of their honoraria and salaries was
charged to the peace and order fund despite meager savings of the
municipality.
The petitioner was directed to submit his counter-affidavit to the
letter-complaint which petitioner did. Thereafter, an information for violation
of Sec. 3, par. (e), of R.A. 3019, as amended, was filed against petitioner before
the Sandiganbayan. The petitioner assailed the Ombudsman for failing to
direct the complainants to reduce their evidence into affidavits before
requiring him to submit his counter-affidavit. Petitioner invoked Sec. 4, Rule II,
of the Rules of Procedure of the Ombudsman which requires that for
purposes of conducting a preliminary investigation, the complainant must
submit his affidavit and those of his witnesses before respondent can be
required to submit his counter-affidavit and other supporting documents.
Conformably with such rule, the petitioner argued that the Ombudsman
should have first required the associations to submit their respective affidavits
before requiring him as respondent to submit his counter-affidavit, especially
since the letter-complaint was unsigned and unverified; hence, there was no
valid cause of action against petitioner.
The arguments ofthe petitioner failed to impress the Court. While it was
true that he was directed to submit his counter-
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affidavit thereto without requiring the complainants to verify their
letter-complaint, however, despite the Ombudsman's noncompliance with the
affidavit requirement, the petitioner filed his counter-affidavit and answered
the charges against him. Hence, according to the Court, having submitted
himself to the jurisdiction of the Ombudsman and having allowed the
proceedings to go on until the preliminary investigation was terminated and the
information filed at the Sandiganbayan, the petitioner was deemed to have
waived whatever right he may otherwise have to assail the manner in which
the preliminary investigation was conducted. Consequently, petitioner was
likewise estopped from questioning the validity of the information filed before
the Sandiganbayan (Bautista v. Sandiganbayan, G.R. No. 136082, May 12,
2000).
3. May a complaint affidavit notarized in a foreign jurisdiction be the
basis for a preliminary investigation? This question was answered by the Court
in Sasot v. People, G.R. No. 143193, June 29,2005.
The case involved a criminal prosecution against petitioners for unfair
competition under Article 189 of the Revised Penal Code, filed before the
Regional Trial Court. Petitioners were alleged to be engaged in the
manufacture, printing, sale, and distribution of counterfeit "NBA" garment
products.
In a Special Power of Attorney the President of NBA Properties, Inc.,
constituted a local law firm, as the company's attorney-in-fact, to act for and its
behalf in the filing of criminal, civil and administrative complaints, among
others. The Special Power of Attorney was notarized by a notary public of New
York County and certified by the County Clerk and Clerk of the Supreme Court
of the State of New York. A Philippine Consul of the Consulate General of the
Philippines in New York, authenticated the certification. The company
president also executed a Complaint-Affidavit before the same notary public of
the State of New York.
Before they entered their pleas, the petitioners moved to quash the
information arguing among others, that the fiscal should have dismissed the
complaint filed during the
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UPDATED EDITION
preliminary investigation because under the rules, the complaint must be
sworn to before the prosecutor. The trial court sustained the prosecution and
denied petitioners' motion to quash.
The special civil action for certiorari with the Court of Appeals was
dismissed. Petitioners sought reconsideration of the dismissal of the petition
but the same was likewise denied.
The petition for review on certiorari under Rule 45 of the Rules of Court
filed before the Supreme Court now reiterates the argument that the
complaint filed is defective and should have been dismissed by the fiscal
because it should have been personally sworn to by the complainant before
the investigating prosecutor.
The petition was denied by the Supreme Court, which declared
emphatically that a complaint is substantially sufficient if it states the known
address of the respondent, it is accompanied by complainant's 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. All these have been duly
satisfied in the complaint filed before the prosecutor. The Court added that the
absence of an oath in the complaint does not necessarily render it invalid.
Want of oath is a mere defect of form, which does not affect the substantial
rights of the defendant on the merits. Note: The case was decided under Sec. 3
of Rule 112 of the 1985 Rules of Criminal Procedure which has substantially the
same provisions as Sec. 3 of Rule 112 of the 2000 Rules of Criminal Procedure.
- oOo -
Chapter V
ARREST, SEARCH AND SEIZURE
I. ARREST (RULE 113)
Arrest; how arrest made
Law enforcement officers are entrusted with the power to
conduct investigations, make arrests, perform searches and
seizures of persons and their belongings, and occasionally use
lethal force in the line of duty. This authority must be exercised
within the boundaries of the law because when officers exceed
those boundaries, they jeopardize the admissibility of any
evidence collected for prosecution.
1. An arrest is the taking of a person into custody in
order that he may be bound to answer for the commission of an
offense (Sec. 1, Rule 113, Rules of Court). Under this definition,
a person is arrested for a specific and definite purpose — to
make him answer for the commission of an offense.
2. To make an arrest, a person need not be actually
restrained by the person making the arrest. Under the Rules
of Court, a submission to the custody of the person making the
arrest already constitutes an arrest (Sec. 2, Rule 113, Rules of
Court). Whichever means is used to make an arrest, the term
necessarily implies control over the person under custody and
as a consequence, a restraint on his liberty to the extent that
he is not free to leave on his own volition.
3. Knowing whether or not an arrest has been made
is oftentimes crucial to the analysis of the legality of the acts
of the arresting officer. For instance, if an arrest has actually
201
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been made and at the time of the apprehension a crime has
already been committed, the arrest may be deemed infirm
unless it be based on a probable cause that the person arrested
committed the offense. Sec. 5(b) of Rule 113 further requires
that the probable cause must be based on the personal knowledge by the arresting officer of facts and circumstances that
the arrestee is indeed the perpetrator of the criminal act.
If the act of the officer does not amount to an arrest, the
requirements of probable cause and personal knowledge of
facts and circumstances will certainly not be prerequisites to
the legality of the said act and said act would be reviewed on
the basis of some other standards.
As will be seen later, the legality of an arrest is of vital
importance when subsequent to the arrest a seizure of evidence
follows because the admissibility of the evidence would hinge
on the legality of the prior arrest. It is not surprising that most
criminal cases reaching the Supreme Court involve prayers
for the suppression of evidence obtained after alleged illegal
arrests.
Requisites for the issuance of a warrant of arrest
Sec. 2 of Article III (Bill of Rights) of the Constitution of
the Philippines in part declares:
"Sec. 2 . . . . 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."
1. It is constitutionally mandated that a warrant
of arrest shall issue only upon finding of probable cause
personally determined by the judge after examination under
oath or affirmation of the complainant and the witnesses he/
she may produce, and particularly describing the person to be
seized (Tabujara III v. People, G.R. No. 175162, October 29,
2008).
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203
An arrest without a probable cause is an unreasonable seizure of a
person, and violates the privacy of persons which ought not to be intruded by
the State (Borlongan v. Peha, G.R. No. 143591, May 5, 2010).
Probable cause in connection with the issuance of a warrant of arrest,
assumes the existence of facts that would lead a reasonably discreet and
prudent man to believe that a crime has been committed and that it was likely
committed by the person sought to be arrested. The test for issuing a warrant
of arrest is less stringent than that used for establishing the guilt of the accused
(People v. Tan, G.R. No. 182310, December 9, 2009). It is such set of facts and
circumstances as would lead a reasonably discreet and prudent man to believe
that the offense charged in the Information, or any offense included therein,
has been committed by the person sought to be arrested. In determining
probable cause, the average man weighs the facts and circumstances without
resorting to the calibrations of the rules of evidence of which he has no
technical knowledge. He relies on common sense. A finding of probable cause
needs only to rest on evidence showing that, more likely than not, a crime has
been committed and that it was committed by the accused. Probable cause
demands more than suspicion; it requires less than evidence that would justify
conviction (People v. Gabo, G.R. No. 161083, August 3, 2010).
2. While it seems to appear that the constitution requires the judge to
personally examine the complainant and his witnesses under oath by asking
searching questions, the case of AAA v. Carbonell, G.R. No. 171465, June 8,
2007, is enlightening.
In AAA v. Carbonell, the petitioner, the alleged victim, assailed the orders
of the trial court dismissing the rape case filed against the private respondent
for lack of probable cause and another order denying the petitioner's motion
for reconsideration. The facts show that after an information for rape was filed
with the trial court, the accused filed a motion for the determination of
probable cause. The court granted the motion and directed the petitioner and
her witnesses to
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UPDATED EDITION
take the witness stand. But instead of taking the witness stand, the petitioner
filed a motion for reconsideration claiming that the documentary evidence
already sufficiently established the existence of probable cause. The petitioner
contends that the judge is not required to personally examine the complainant
and her witnesses in satisfying himself of the existence of probable cause for
the issuance of a warrant of arrest. She argues that the respondent should
have taken into consideration the documentary evidence as well as the
transcript of stenographic notes which sufficiently established the existence of
probable cause.
The respondent judge in his comment submitted to the Highest Court,
argued that the finding of probable cause by the investigating prosecutor is not
binding or obligatory upon him. He claimed that he was justified in requiring
the petitioner and her witnesses to take the witness stand in order to
determine probable cause since under Section 2, Article HI of the 1987
Constitution, no 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 " He
contended that the refusal of the petitioner to sit on the stand and be
examined negated the existence of probable cause.
The records, as discovered by the Court, disclosed that the respondent
judge dismissed the case without evaluating the evidence in support of the
resolution of the Assistant Provincial Prosecutor, the convened Panel of
Prosecutors, and the Department of Justice which all sustained a finding of
probable cause against the accused. The respondent judge's finding of lack of
probable cause was premised only on the complainant's and her witnesses'
absence during the hearing scheduled by the respondent judge for the judicial
determination of probable cause.
The Supreme Court found the respondent to have committed a grave
abuse of discretion for dismissing the criminal case on the ground that
petitioner and her witnesses failed to comply with his orders to take the
witness stand.
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Citing the leading case of Soliven v. Makasiar, G.R. Nos. L-82585,
L-82827, November 14, 1988, the Court explained that this constitutional
provision does not mandatorily require the judge to personally examine the
complainant and her witnesses. Instead, he may opt to personally evaluate the
report and supporting documents submitted by the prosecutor or he may
disregard the prosecutor's report and require the submission of supporting
affidavits of witnesses. The argument that the Constitution now requires the
judge to personally examine the complainant and his witnesses in his
determination of probable cause for the issuance of warrants of arrest is not an
accurate interpretation.
The Court adds:
"What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence of probable
cause. In satisfying himself of the existence of probable cause for the issuance of a
warrant of arrest, the judge is not required to personally examine the complainant
and his witnesses. Fol- lowing established doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting documents submitted by the
fiscal regarding the existence of probable cause and, on the basis thereof, issue a
warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may
disregard the fiscal's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of probable
cause.
"Sound policy dictates this procedure, otherwise judges would be unduly
laden with the preliminary examination and investigation of criminal complaints
instead of concentrating on hearing and deciding cases filed before their
courts.'Tunderscoring supplied)
We reiterated the above ruling in the case of Webb v. De Leon, 247
SCRA 653, where we held that before issuing warrants of arrest, judges merely
determine the probability, not the certainty, of guilt of an accused. In doing so,
judges do not conduct a de novo hearing to determine the existence
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of probable cause. They just personally review the initial determination of the
prosecutor finding a probable cause to see if it is supported by substantial
evidence.
X X X
True, there are cases where the circumstances may call for the judge's
personal examination of the complainant and his witnesses. But it must be
emphasized that such personal examination is not mandatory and
indispensable in the determination of probable cause for the issuance of a
warrant of arrest. The necessity arises only when there is an utter failure of the
evidence to show the existence of probable cause. Otherwise, the judge may
rely on the report of the investigating prosecutor, provided that he likewise
evaluates the documentary evidence in support thereof." (underscoring
supplied)
Indeed, what the law requires as personal determination on the part of
the judge is that he should not rely solely on the report of the investigating
prosecutor. In Okabe v. Gutierrez, G.R. No. 150185, May 27, 2004, we
stressed that the judge should consider not only the report of the investigating
prosecutor but also the affidavit and the documentary evidence of the parties,
the counter-affidavit of the accused and his witnesses, as well as the transcript
of stenographic notes taken during the preliminary investigation, if any,
submitted to the court by the investigating prosecutor upon the filing of the
Information. If the report, taken together with the supporting evidence, is
sufficient to sustain a finding of probable cause, it is not compulsory that a
personal examination of the complainant and his witnesses be conducted, x x
x."
3. Talingdan v. Eduarte, 366 SCRA 559 declares in categorical terms:
"Interpreting the words personal determination ... it does not thereby
mean that judges are obliged to conduct the personal examination of the
complainant and his witnesses themselves, x x x. Rather what is emphasized
merely is the exclusive and personal responsibility of the issuing judge to
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satisfy himself as to the existence of probable cause, x x x. What he is never
allowed to do is follow blindly the prosecutor's bare certification as to the
existence of probable cause .. (See also Lim, Sr. v. Felix, 194 SCRA 292).
4. In Borlongan v. Pefia, G.R. No. 143591, May 5,2010, reiterating
the case of Soliven v. Makasiar, 167 SCRA 293, it was ruled that the words
"personal determination," in the Constitution, does not thereby mean that
judges are obliged to conduct the personal examination of the complainant
and his witnesses themselves. To require thus would be to unduly laden them
with preliminary examinations and investigations of criminal complaints
instead of concentrating on hearing and deciding cases filed before them.
Rather, what is emphasized merely is the exclusive and personal responsibility
of the issuing judge to satisfy himself as to the existence of probable cause. To
this end, he may: (a) personally evaluate the report and the supporting
documents submitted by the prosecutor regarding the existence of probable
cause and, on the basis thereof, issue a warrant of arrest; or (b) if on the basis
thereof he finds no probable cause, disregard the prosecutor's report and
require the submission of supporting affidavits of witnesses to aid him in
determining its existence. What he is never allowed said the Court, is to follow
blindly the prosecutor's bare certification as to the existence of probable cause.
Much more is required by the constitutional provision. Judges have to go over
the report, the affidavits, the transcript of stenographic notes if any, and other
documents supporting the prosecutor's certification. Although the extent of
the judge's personal examination depends on the circumstances of each case,
to be sure, he cannot just rely on the bare certification alone but must go
beyond it. This is because the warrant of arrest issues not on the strength of
the certification standing alone but because of the records which sustain it. He
should even call for the complainant and the witnesses to answer the court's
probing questions when the circumstances warrant.
5. In yet another recent case, respondents questioned the alleged
lack of personal determination of probable cause by the judge in issuing the
warrants for their arrest. The
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Court explained that the duty of the judge to determine probable cause to
issue a warrant of arrest as mandated by Sec. 2, Article HI of the
1987Philippine Constitution does not mandatorily require the judge to
personally examine the complainant and her witnesses. Instead, he may opt to
personally evaluate the report and supporting documents submitted by the
prosecutor or he may disregard the prosecutor's report and require the
submission of supporting affidavits of witnesses. What the law requires as
personal determination on the part of a judge is that he should not rely solely
on the report of the investigating prosecutor. This means that the judge should
consider not only the report of the investigating prosecutor but also the
affidavit and the documentary evidence of the parties, the counter-affidavit of
the accused and his witnesses, as well as the transcript of stenographic notes
taken during the preliminary investigation, if any, submitted to the court by the
investigating prosecutor upon the filing of the information (People of the
Philippines v. Gray, G.R. No. 180109, July 26,2010).
6. If the complaint or information is directly filed with the MTC under
Sec. 8(b) of Rule 112 in relation to Sec. 1(b) of Rule 110, the judge shall
personally evaluate the evidence or personally examine in writing and under
oath the complainant and his witnesses in the form of searching questions and
answers.
Preliminary inquiry (examination) versus preliminary investigation
1. There is a distinction between the preliminary inquiry which
determines probable cause for the issuance of a warrant of arrest and the
preliminary investigation proper which ascertains whether the offender should
be held for trial or be released. The determination of probable cause for
purposes of issuing the warrant of arrest is made by the judge. The preliminary
investigation proper — whether or not there is reasonable ground to believe
that the accused is guilty of the offense charged — is the function of the
investigating prosecutor (AAA v. Carbonell, G.R. No. 171465, June 8,2007).
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2. A more recent case supports the declarations in AAA v. Carbonell and
holds that "it is well to remember that there is a distinction between the
preliminary inquiry, which determines probable cause for the issuance of a
warrant of arrest, and the preliminary investigation proper, which ascertains
whether the offender should be held for trial or be released. The determination
of probable cause for purposes of issuing a warrant of arrest is made by the
judge. The preliminary investigation proper — whether or not there is
reasonable ground to believe that the accused is guilty of the offense charged
— is the function of the investigating prosecutor.
"The task of the presiding judge when the information is filed with the
court is first and foremost to determine the existence or non-existence of
probable cause for the arrest of the accused. The purpose of the mandate of
the judge to first determine probable cause for the arrest of the accused is to
insulate from the very start those falsely charged with crimes from the
tribulations, expenses and anxiety of a public trial" (People v. Gabo, G.R. No.
161083, August 3,2010).
Method of arrest with a warrant; warrant need not be in possession of the
officer
1. When a warrant of arrest is issued by a judge, the warrant is
delivered to the proper law enforcement agency for execution.
The head of the office to whom the warrant of arrest was delivered shall
cause the warrant to be executed within ten (10) days from its receipt. Within
ten (10) days after the expiration of the period, the officer to whom it was
assigned for execution shall make a report to the judge who issued the
warrant. In case of his failure to execute the warrant, he shall state the reasons
for its non-execution (Sec. 4, Rule 113, Rules of Court).
2. When making an arrest by virtue of a warrant, the officer shall (a)
inform the person to be arrested of the cause of his arrest, and (b) inform him
of the fact that a warrant has been issued for his arrest. The information need
not be made when the person to be arrested (a) flees, (b) forcibly resists, or
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(c) the giving of the information will imperil the arrest (Sec. 7, Rule 113, Rules
of Court).
3. The officer need not have the warrant in his possession at the time
of the arrest. However, after the arrest, the warrant shall be shown to him as
soon as practicable, if the person arrested so requires (Sec. 7, Rule 113, Rules
of Court).
4. The officer assigned to execute the warrant of arrest has the duty
to deliver the person arrested to the nearest police station or jail without
unnecessary delay (Sec. 3, Rule 113, Rules of Court).
No unnecessary violence
An underlying rule whenever an arrest is made is that 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 (Sec. 2,
Rule 113, Rules of Court).
Authority to summon assistance
It sometimes happens that an officer cannot on his own effectively make
the arrest. Hence, the authority to effect an arrest carries with it an authority to
orally summon as many persons as he deems necessary to assist him in
effecting the arrest. Every person summoned by an officer is required to give
the assistance requested provided he can do so without detriment to himself
(Sec. 10, Rule 113, Rules of Court). The duty of the person summoned does
not arise when rendering assistance would cause harm to himself. (Sec. 10,
Rule 113, Rules of Court).
When person to be arrested is inside a building
If the person to be arrested is or is reasonably believed to be within any
building or enclosure, the Rules authorize the officer, in order to make an
arrest, to break into any building or enclosure in case he is refused admittance
after announcing his authority and purpose (Sec. 11, Rule 113, Rules of Court).
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After entering the building or enclosure, he may break out from said place if
necessary to liberate himself from the same place (Sec. 12, Rule 113, Rules of
Court).
When a warrantless arrest is lawful (Bar 1988; 1989; 1996; 1997; 2000;
2004; 2010)
1. The general rule as regards arrests, searches and seizures is that a
warrant is needed in order to validly effect the same. The Constitutional
prohibition against unreasonable arrests, searches and seizures refers to those
effected without a validly issued warrant (Malacat v. Court of Appeals, 283
SCRA 159). Hence, the doctrine is that a warrant of arrest is required before an
arrest is made. A warrantless arrest is the exception.
2. The pertinent provisions of Rule 113 of the Rules on Criminal
Procedure provide for the instances when a warrantless arrest may be made:
"Sec. 5. Arrest without warrant; when lawful. — A peace
officer or a private person may, 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 (in flagrante exception);
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
{hot pursuit exception); 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" (escapee exception).
A peace officer or a private person may, without a warrant, arrest a
person when, in his presence, the person to be arrested has committed, is
actually committing, or is attempt
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ing to commit an offense (People v. Garcia, 529 SCRA 519, August 8,2007).
3.
Section 5 of Rule 113 provides three (3) instances when
warrantless arrest may be lawfully effected: (a) arrest of a suspect in flagrante
delicto; (b) arrest of a suspect where, based on personal knowledge of the
arresting officer, there is probable cause that said suspect was the author of a
crime which had just been committed (called hot pursuit.); (c) arrest of a
prisoner who has escaped from custody serving final judgment or temporarily
confined while his case is pending.
There is another ground for a warrantless arrest other than those
provided for under Sec. 5 of Rule 113 of the Rules of Court. That ground is
when a person previously lawftdly arrested escapes or is rescued. Under the
Rules, any person may immediately pursue or retake him without a warrant at
any time and in any place within the Philippines (Sec. 13, Rule 113, Rules of
Court).
4. A bondsman may arrest an accused for the purpose of
surrendering him to the court. Also, an accused released on bail may be
re-arrested without a warrant if he attempts to depart from the Philippines
without permission of the court where the case is pending (Sec. 23, Rule 114,
Rules of Court).
Who may make the warrantless arrest; duty of officer; citizen's arrest
1. The warrantless arrest may be made not only by a peace officer
but also by a private person. When the latter makes the arrest under the
circumstances provided for under the Rules, the arrest is called "citizen's
arrest"
A peace officer or a private person may, without a warrant, arrest a
person when, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense (People v. Garcia,
529 SCRA 519, August 8,2007).
2. When an accused is caught in flagrante delicto, the police officers
are not only authorized but are duty-bound to arrest him even without a
warrant.
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The basis of the in flagrante delicto exception; requisites
1. Under Sec. 5(a), Rule 113, mere "suspicion" and "reliable
information" are not justifications for a warrantless arrest. The rule requires
that the accused perform some overt act that would indicate that he has
committed, is actually committing, or is attempting to commit an offense.
2. The basis of this rule is the exception provided for in Sec. 5(a), Rule
113, thus:
" * * * When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense * * * "
3.
For a warrantless arrest of a person caught in flagrante delicto
under paragraph (a) of Section 5 to be valid, two requisites must concur:
(a) 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
(b) such overt act is done in the presence or within the view of
the arresting officer (People v. Racko, G.R. No. 186529, August 3, 2010;
People v. Laguio, G.R. No. 128587, March 16, 2007; Zalameda v.
People, G.R. No. 183656, September 4,2009).
4.
Section 5(a) provides that a peace officer or a private person may,
without a warrant, arrest a person when, in his presence, the person to be
arrested has committed, is actually committing, or is attempting to commit, an
offense. Section 5(a) refers to arrest in flagrante delicto. In flagrante delicto
means caught in the act of committing a crime. This rule, which warrants the
arrest of a person without warrant, requires that the person arrested has just
committed a crime, or is committing it, or is attempting to commit an offense,
in the presence within view of the arresting officer (People v. Alunday, G.R. No.
181546, September 3, 2008). For instance, the rule is settled that an arrest
made after an entrapment
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does not require a warrant inasmuch as it is considered a valid warrantless
arrest pursuant to Rule 113, Section 5(a) of the Rules of Court (People v.
Cabugatan, 515 SCRA 537, February 12,2007).
Existence of an overt act of a crime in the presence of the person making
the arrest
1. Consider an experienced officer who upon noticing the characteristic
outlines of the handle of a pistol bulging from the waistline of a pedestrian,
stops him in the street, introduces himself as a policeman and without asking
any questions immediately arrests him, cuffs him and forces him inside a
waiting patrol car. Inside the car, the officer fishes out the firearm from the
arrestee's waist, asks him whether or not he has a license to possess and a
permit to carry the firearm, and after an admission from the person arrested
that his gun has neither a license nor any other permit, books him for illegal
possession of firearms. Whether or not the acts of the officer are permissible
under the law and the Rules will necessarily be determined by the requisites
provided for by Sec. 5(a) of Rule 113. The crucial issue to be laid before the
court would be whether or not having the butt of a pistol bulge from one's
waist plainly within the view of the officer conclusively constitutes an overt act
of the crime of illegal possession of firearm which would justify an immediate
arrest. The defense counsel would certainly argue that mere carrying of a pistol
does not in itself indicate a violation of the law since illegal possession of a gun
cannot be inferred from its mere possession. When the apprehension was
made, the officer had no awareness that a crime is being committed in his
presence since he had no prior knowledge that the person carrying the same
had no license for the firearm, a knowledge that came to him only after the
arrest. In short, it may be argued that there was absolutely nothing under the
facts that would show an overt act of a crime other than the mere suspicion
that the gun was unlicensed at the time of the arrest. The gun, under the
circumstances may become a "fruit of the poisonous tree" and would possibly
be held inadmissible in evidence.
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On the other hand, the prosecutor may insist on the application of the
"plain view" doctrine to convince the Court to render a verdict of guilty. A
hypothetical situation like the above indicates that sometimes a thin line exists
between a legal and an illegal arrest and search.
2.
Thus, it was ruled that a flagrante delicto arrest is not justified
when no one among the accused was committing a crime in the presence of
the police officers, more so if the police officers did not have personal
knowledge of the facts indicating that the persons to be arrested had
committed an offense. The searches conducted cannot be said to be merely
incidental to a lawful arrest. Reliable information alone is not sufficient to justify
a warrantless arrest under Section 5(a), Rule 113. The rule requires, in addition,
that the accused perform some overt act that would indicate that he has
committed, is actually committing, or is attempting to commit an offense
(People v. Nuevas, G.R. No. 170233, February 22, 2007).
3. A 1988 case, People v. Aminnudin, 163 SCRA 402, demonstrates
the legal infirmity of an arrest for noncompliance with the requisites of the
flagrante delicto exception. Here, more than two days before the arrest,
constabulary officers received a tip from an informer that the accused was on
board an identified vessel on a particular date and time and was carrying
marijuana. Acting on the information, they waited for the accused and
approached him as he descended the gangplank of the ship and arrested him.
A subsequent inspection of his bag disclosed the presence of three kilos of
marijuana leaves. The Court declared as inadmissible in evidence the marijuana
found in the possession of the accused as a product of an illegal search since it
was not an incident to a lawful arrest. Emphatically, the Supreme Court
declared that the accused was not, at the moment of his arrest, committing a
crime nor was it shown that he was about to do so or that he had just done so.
He was merely descending the gangplank of the ship and there was no
outward indication that called for his arrest. To all appearances, he was like any
of the other
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passengers innocently disembarking from the vessel. It was only when the
informer pointed to him as the carrier of the marijuana that he suddenly
became a suspect and so subject to apprehension. The court added that from
the information received by the officers, they could have obtained a warrant
since they had at least two days to apply for the same but the officers made no
efforts to comply with the bill of rights. They chose to ignore the law.
Then too, in People v. Molina, 352 SCRA 174, the conviction by the trial
court was reversed and set aside when the Supreme Court declared as invalid
an arrest made merely on the basis of reliable information that the persons
arrested were carrying marijuana. The accused were arrested while inside a
pedicab despite the absence of any outward indications of a crime being
committed.
Similarly, in Malacat v. Court of Appeals, 283 SCRA 159, the Supreme
Court declared that a warrantless arrest cannot be justified where no crime is
being committed at the time of the arrest because no crime may be inferred
from the fact that the eyes of the person arrested were "moving fast" and
"looking at every person" passing by.
4. A classic case that illustrates an invalid arrest and a subsequent illegal
search and seizure is People v. Mengote, 210 SCRA 174. The issue on the
legality of the arrest, search and seizure stemmed from a telephone call to the
police from an alleged informer that suspicious looking men were at a street
corner in Tondo shortly before noon. The police operatives dispatched to the
place saw three men one of whom who turned out to be Mengote, was
"looking from side" to side clutching his abdomen. The operatives approached
the three men and introduced themselves as policemen. Two of them
accordingly tried to run away but the attempt was foiled. The search yielded a
revolver in the possession of Mengote and a fan knife in the pocket of another.
Mengote contends that the revolver should not have been admitted in
evidence because its seizure was a product of an illegal search and made not
as an incident to a lawful arrest.
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Speaking through Justice Isagani A. Cruz, the Court ruled that the
requirements of a warrantless arrest were not complied with. There was no
offense which could have been suggested by the acts of Mengote of looking
from side to side while holding his abdomen. Observed the Court: "These are
certainly not sinister acts. * * * He was not skulking in the shadows but walking
in the clear light of day. There was nothing clandestine about his being on that
street at that busy hour in the blaze of the noonday sun. * * * By no stretch of
the imagination could it have been inferred from these acts that an offense had
just been committed, or was at least being attempted in their presence."
5. A much later case People v. Laguio, Jr., G.R. No. 128587, March 16,
2007, and which drew much from the ruling in Aminnudin likewise aptly
illustrates the application of the doctrine. In this case, two men were arrested
while they were about to hand over a bag of shabu to a policer officer.
Questioned, the arrested men told the officers that they knew of a scheduled
delivery of shabu by their employer, WW early the following morning and that
he could be found at a certain apartment building in Malate, Manila. The police
operatives decided to look for WW to shed light on the illegal drug activities of
his alleged employees and proceeded to the location of the apartment and
placed the same under surveillance.
When WW came out of the apartment towards a parked car, two other
police officers approached him, introduced themselves to him as police
officers, asked his name and, upon hearing that he was WW, immediately
frisked him and asked him to open the back compartment of the car. When
frisked, there was found inside the front right pocket of WW an unlicensed
pistol with live ammunitions. At the same time, the other members of the
operatives searched the car and found inside it were the following items: (a)
transparent plastic bags with shabu; (b) cash in the amount of P650,000.00; (c)
electronic and mechanical scales; and (d) another unlicensed pistol with
magazine. Then and there, WW resisted the warrantless arrest and search.
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The Supreme Court, in very lucid terms, declared that the facts and
circumstances surrounding the case did not manifest any suspicious behavior
on the part of WW that would reasonably invite the attention of the police. He
was merely walking from the apartment and was about to enter a parked car
when the police operatives arrested him, frisked and searched his person and
commanded him to open the compartment of the car. He was not committing
any visible offense then. Therefore, there can be no valid warrantless arrest in
flagrante delicto under paragraph (a) of Section 5. It is settled, said the Court
that reliable information alone, absent any overt act indicative of a felonious
enterprise in the presence and within the view of the arresting officers, is not
sufficient to constitute probable cause that would justify an in flagrante
delicto arrest (Citing People v. Binad Sy Chua, 444 Phil 757 and People v.
Molina, 352 SCRA 174).
What is clearly established from the testimonies of the arresting officers
said the Court, is that WW was arrested mainly on the information that he was
the employer of the two men who were previously arrested and charged for
illegal transport of shabu. They did not in fact identify WW to be their source of
the shabu when they were caught with it in flagrante delicto. Upon the duo's
declaration that there will be a delivery of shabu on the early morning of the
following day and that WW may be found in an apartment building in Malate,
the arresting officers conducted what they termed was a "surveillance"
operation in front of said apartment, hoping to find a person who will match
the description of WW, the employer of the arrested men.
The conclusion of the trial court that the warrantless arrest was illegal
and that ipso jure, the warrantless search incidental to the illegal arrest is
likewise unlawful, was sustained by the Supreme Court.
6. Warrantless arrests were upheld in some cases. The much earlier case
of People v. Anita Claudio, 160 SCRA 646, is an example of a warrantless
arrest made under the in flagrante delicto exception. Here the accused who
was carrying a woven
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buri-like plastic bag which appeared to contain camote tops, boarded a bus
bound for the province. Instead of placing the bag by her side, which is the
usual practice of a traveler, she placed the same on the back seat where a
trained anti- narcotics agent was seated. Since the act of the accused was
unusual for a traveler, the suspicion of the agent was aroused. Feeling that
something was unusual, the agent inserted his finger inside the bag where he
felt another plastic bag in the bottom from which emanated the smell of
marijuana. Right after she got off the bus, the agent arrested the accused.
7. Not all cases were however, decided in the mold of Amminudin.
People v. Tangliben, 184 SCRA 220, is a case with facts which do not fall
squarely with the standards set by Amminudin, because of the differences in
circumstances. In this case, two police officers together with a barangay tanod
were conducting surveillance operations in a bus station allegedly to check on
persons who may be "engaging in the traffic of dangerous drugs based on
information supplied by informers." They noticed a person carrying a red
travelling bag who "was acting suspiciously." When asked to open the bag, the
accused did so only after the officers identified themselves. Found in the bag
were marijuana leaves wrapped in plastic and weighing about one kilogram.
Upon these facts, it was ruled that there was a valid warrantless arrest and a
valid warrantless search. The Court pronounced Tangliben to be different from
Aminnudin. In the latter, the "urgency" presented by Tangliben were not
present. In Tangliben, the Court found that the officers were faced by an
"on-the-spot" information which required them to act swiftly.
In People v. Maspil, G.R. No. 85177, August 20, 1990, because of
confidential reports from informers that two persons would be transporting a
large quantity of marijuana, officers set up a checkpoint in Benguet to monitor,
inspect and scrutinize vehicles bound for Baguio City. A couple of hours after
midnight, a jeepney was flagged down in the checkpoint. On board were the
persons identified by the informers who were also with the policemen manning
the checkpoint. When the sacks and tin cans inside the jeepney were opened,
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they contained what appeared to be marijuana leaves. The policemen then
placed the two accused under arrest. Again, the court distinguished Maspil
from Aminnudin. In the latter, the officers were aware of the identity of the
accused, his planned criminal enterprise and the vessel he would be taking.
Further, in Aminnudin, the Court found that the officers had sufficient time to
obtain a search warrant. In Maspil, the officers had no exact description of the
vehicle of the accused, and no idea of the definite time of its arrival. The Court
explained that a jeepney on the road is not the same as a passenger boat the
route and time of arrival of which are more or less certain and which ordinarily
cannot deviate or alter its course or select another destination.
The hot pursuit exception (Bar 1997; 2004)
1. This exception found in Sec. 5(b) of Rule 113 which authorizes a
warrantless arrest provides:
"* * * When an offense has just been committed and he has probable
cause to believe based on personal knowledge of facts and circumstances that the
person to be arrested has committed it * * *."
2. The second instance of lawful warrantless arrest covered by
paragraph (b) cited above necessitates two stringent requirements before a
warrantless arrest can be effected: (1) an offense has just been committed;
and (2) the person making the arrest has personal knowledge of facts
indicating that the person to be arrested has committed it (People v. Agojo,
G.R. No. 181318, April 16,2009). Under this exception a warrantless arrest
made, one year after the offense was allegedly committed is an illegal arrest.
(Bar 1997; 2004)
3. This exception does not require the arresting officers to personally
witness the commission of the offense with their own eyes. Personal
knowledge of facts must be based on probable cause, which means an actual
belief or reasonable grounds of suspicion. The grounds are reasonable when
the suspicion that the person to be arrested is probably guilty of committing
the offense is based on actual facts, i.e., supported
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by circumstances sufficiently strong in themselves to create the probable cause
of guilt of the person to be arrested. A reasonable suspicion, therefore, must be
founded on probable cause, coupled with good faith on the part of the peace
officers making the arrest (Abelita v. Doria, G.R. No. 170672, August 14,
2009).
In Abelita III v. Doria, the petitioner alleged that he was arrested based
merely on information relayed to the police officers about a shooting incident
and that they had, at the time of the arrest, no personal knowledge of the facts.
The Court found that as soon as the police received a phone call about a
shooting incident, a team was dispatched to investigate. The investigation
disclosed that a victim was wounded and that the witnesses tagged the
petitioner as the one involved and that he had just left the scene of the crime.
After tracking down the petitioner, he was invited to the police headquarters
but the petitioner who initially agreed sped off prompting the authorities to
give chase. The Court ruled that the petitioner's act of trying to get away,
coupled with the incident report which they investigated, is enough to raise a
reasonable suspicion on the part of the police authorities to the existence of a
probable cause.
4.
A case decided long before Abelita III vividly illustrates the
application of the exception. In People v. Acol, 232 SCRA 406, two robbers
divested the passengers of a jeepney of their belongings including the jacket of
one passenger. The passengers immediately sought the help of police officers
which formed a team to track down the suspects. One of the passengers who
went with the responding police officers, saw one of the robbers casually
walking in the same vicinity and wearing his jacket. The warrantless arrest of
the accused was sustained by the Court as well within the hot pursuit
exception.
5. In People v. Gerente, 219 SCRA 756, the Valenzuela police station
received a report of a mauling incident which resulted in the death of the victim
who received a massive skull fracture caused by a hard and heavy object. Right
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away the officers went to the crime scene and found a piece of wood with
blood stains, a hollow block and two pouches of marijuana. A witness told the
police that the accused was one of those who killed the victim. They proceeded
to the house of the accused and arrested him. The Court ruled that based on
their knowledge of the circumstances of the death of the victim and the report
of an eyewitness, in arresting the accused, the officers had personal knowledge
of facts leading them to believe that it was the accused who was one of the
perpetrators of the crime.
Method of arrest without a warrant
1. Arrest by an officer — When making an arrest without a warrant,
the officer shall inform the person to be arrested of his (a) authority, and (b)
the cause of his arrest.
This information need not be given (a) if the person to be arrested is
engaged in the commission of an offense, (b) is in the process of being pursued
immediately after its commission, (c) escapes or flees, or (d) forcibly resists
before the officer has the opportunity to so inform him, or (e) when the giving
of such information will imperil the arrest (Sec. 8, Rule 113, Rules of Court).
The rules applicable to an arrest with a warrant also apply to an arrest without
a warrant. Hence, the officer may summon assistance to effect the arrest,
break into a building or an enclosure or break out from the same (Sees. 11-12,
Rule 113).
2. Arrest by a private person — When a private person makes an
arrest, he shall inform the person to be arrested not of his authority to arrest,
but of his intention to surest him and the cause of his arrest. This information
need not be given under the same conditions as when it is an officer who
makes the arrest (Sec. 9, Rule 113, Rules of Court). The right to break into a
building or an enclosure specifically refers to an 'officer' and not to a private
person (Sec. 11, Rule 113, Rules of Court).
3. Where a warrantless arrest is made under the in flagrante and
hot pursuit exceptions, the person arrested without a warrant shall be
forthwith delivered to the nearest
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police station or jail (Sec. 5, last paragraph, Rule 113). (Bar 2007)
Time of making an arrest
An arrest may be made on any day and at any time of the day or night
(Sec. 6, Rule 113, Rules of Court).
Rights of a person arrested (R.A. 7438)
1. The rights of a person arrested, detained or under custodial
investigation are spelled out by Republic Act No.7438. These rights are:
(a) The right to be assisted by counsel at all times (Sec. 2[a], RA.
7438);
(b) The right to remain silent (Sec. 2[b], RA. 7438);
(c) The right to be informed of the above rights (Sec. 2[b], RA.
7438); and
(d) The right to be visited by the immediate members of his
family, by his counsel, or by any non-governmental organization, national
or international (Sec. 2[f}, RA. 7438).
2. The counsel must be one who is independent and competent. He
shall be allowed to confer at all times with the person arrested, detained or
under custodial investigation. If such person cannot afford the services of his
own counsel, he must be provided by the investigating officer with a
competent and independent counsel (Sec. 2[b], R.A. 7438).
3.
In the absence of a lawyer, no custodial investigation shall be
conducted and the suspected person can only be detained by the investigating
officer in accordance with the provisions of Article 125 of the Revised Penal
Code (Sec. 3, RA. 7438). Also, any waiver of the provisions of Article 125 of the
Revised Penal Code, shall be in writing, and signed by the person arrested,
detained or under custodial investigation in the presence of his counsel,
otherwise the waiver shall be null and void and of no effect (Sec. 2[e], RA.
7348). (Bar 2004; 2006)
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4. Any extrajudicial confession made shall also be in writing and signed
by the person, detained or under custodial investigation in the presence of his
counsel, or in the latter's absence, upon a valid waiver, and in the presence of
any of the parents, older brothers and sisters, his spouse, the municipal mayor,
the municipal judge, district school supervisor, or priest or minister of the
gospel as chosen by him; otherwise such extrajudicial confession shall be
inadmissible as evidence in any proceeding (Sec. 2[d], RA. 7438). (Bar 1996)
Custodial investigation; expanded concept
R.A. 7438 expanded the meaning of custodial investigation. Under Sec.
2(f) of the Act, custodial investigation shall include the practice of issuing an
"invitation" to a person who is investigated in connection with an offense he is
suspected to have committed, without prejudice to the liability of the "inviting"
officer for any violation of law.
Penalties under R.A. 7438
R.A. 7438 provides penalties for its violations. For instance, any arresting
officer or investigating officer who fails to inform any person, arrested,
detained or under custodial investigation of his rights to remain silent and to
counsel, shall suffer a penalty consisting of a fine of six thousand pesos
(P6,000.00) or a penalty of imprisonment of not less than eight (8) years but
not more than ten (10) years, or both.
Any person who obstructs, prevents or prohibits any lawyer or any
member of the immediately family of a person arrested, detained or under
custodial investigation or those who under the law are entitled to visit such
person, shall suffer the penalty of imprisonment of not less than four (4) years
nor more than six (6) years, and a fine of four thousand pesos (P4,000.00) (Sec.
4, RA. 7438).
Effect of an illegal arrest on jurisdiction of the court
The legality of the arrest affects only the jurisdiction of the court over the
person of the accused. A waiver of an
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225
illegal warrantless arrest does not also mean a waiver of the inadmissibility of
evidence seized during an illegal warrantless arrest (People v. Martinez, G.R.
No. 191366, December 13, 2010).
Effect of admission to bail on objections to an illegal arrest
An application for or admission to bail shall not bar the accused from
challenging the validity of his arrest or the legality of the warrant issued,
provided that he raises the objection before he enters his plea. The objection
shall be resolved by the court as early as practicable but not later than the start
of the trial of the case (Sec. 26, Rule 114, Rules of Court).
Waiver of the illegality of the arrest; effect of illegal arrest (Bar 2000; 2001)
1. A warrantless arrest is not a jurisdictional defect and any objection to it
is waived when the person arrested submits to arraignment without any
objection. If the appellants are questioning their arrest for the first time on
appeal, they are, therefore, deemed to have waived their right to the
constitutional protection against illegal arrests and searches (People v.
Aminola, G.R. No. 178062, September 8,2010).
The established rule is that an accused may be estopped from assailing
the legality of his arrest if he failed to move for the quashing of the information
against him before his arraignment. Any objection involving the arrest or the
procedure in the court's acquisition of jurisdiction over the person of an
accused must be made before he enters his plea; otherwise the objection is
deemed waived (Zalameda v. People, G.R. No. 183656, September 4, 2009;
Sec. 26, Rule 114, Rules of Court). 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. Any objection involving the procedure
by which the court acquired jurisdiction over the person of the accused must be
made before he enters his plea; otherwise, the
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objection is deemed waived (People v. Tan, G.R. No. 191069, November
15,2010).
2.
Since the legality of an arrest affects only the jurisdiction of the
court over the person of the accused, any defect in the arrest of the accused
may be deemed cured when he voluntarily submits to the jurisdiction of the
trial court. It was also held in a number of cases that the illegal arrest of an
accused is not a sufficient cause for setting aside a valid judgment rendered
upon a sufficient complaint after a trial free from error; such arrest does not
negate the validity of the conviction of the accused (People v. Alunday, G.R.
No. 181546, September 3,2008; Dolera v. People, G.R. No. 180693, September 4,2009).
Any irregularity attending the arrest of an accused, depriving the trial
court of jurisdiction over his or her person, should be raised in a motion to
quash at any time before entering her plea, and failure to timely raise this
objection amounts to a waiver of such irregularity, resulting in concomitant
submission to the trial court's jurisdiction over his or her person (Eugenio v.
People, 549 SCRA 433, March 26,2008).
3. An accused is estopped from assailing the legality 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. In a case, the appellant was already
arraigned, entered a plea of not guilty and actively participated in his trial. He
raised the issue of the irregularity of his arrest only during his appeal to the
Court of Appeals. He is therefore, deemed to have waived such alleged defect
by submitting himself to the jurisdiction of the court through his
counsel-assisted plea during the arraignment, by actively participating in the
trial, and by not raising the objection before his arraignment (People of the
Philippines v. Nelson PalmayHangad, G.R. No. 189279, March 9, 2010;
Diamante v. People, G.R. No. 180992, September 4,2009; Zalameda v.
People, GH. No. 183656, September 4,2009; People v. Amper, G.R.
No.172708, May 5,2010).
4. The principle that the accused is precluded after arraignment from
questioning the illegal arrest or the lack of or irregular preliminary investigation
applies only if the
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227
accused voluntarily enters his plea and participates during trial, without
previously invoking his objections thereto. There must be clear and convincing
proof that the accused had an actual intention to relinquish his right to
question the existence of probable cause (Jose Antonio C. Leviste v. Hon. Elmo
M. Alameda, et al., G.R. No. 182677, August 3, 2010; Borlongan v. Pena, G.R.
No. 143591, May 25,2010).
5. In one case, the petitioner claimed that his warrantless arrest is illegal.
However, nowhere in the records can it be found in which the petitioner
interposed objections to the irregularity of his arrest prior to his arraignment. It
has been consistently ruled 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. Any objection
involving a warrant of arrest or the procedure by which the court acquired
jurisdiction over the person of the accused must be made before he enters his
plea; otherwise, the objection is deemed waived (Salvador Valdez Rebellion v.
People of the Philippines, G.R. No. 175700, July 5,2010).
In the above case, the records disclosed that the petitioner was duly
arraigned, entered a negative plea and actively participated during the trial.
Thus, he is deemed to have waived any perceived defect in his arrest and
effectively submitted himself to the jurisdiction of the court trying his case. At
any rate, the illegal arrest of an accused is not a sufficient cause for setting aside
a valid judgment rendered upon a sufficient complaint after a trial free from
error. It will not even negate the validity of the conviction of the accused
(Salvador Valdez Rebellion v. People of the Philippines, G.R. No. 175700, July
5,2010).
Persons not subject to arrest
1. Sec. 11, Article VI of the 1987 Constitution provides:
"A senator or member of the House of representatives shall, in all offenses
punishable by not more than six
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years imprisonment, be privileged from arrest while the
Congress is in session * * *."
The privilege of a senator or a congressman will not apply when the
offense is punishable by imprisonment of more than six (6) years even if
Congress is in session (People v. Jalosjos, G.R. No. 132875-76, February 3,
2000). Also, the privilege does not apply if Congress is not in session (Sec. 11,
Art. VI, Philippine Constitution).
2. Under generally accepted principles of international law,
sovereigns and other chiefs of state, ambassadors, ministers plenipotentiary,
ministers resident, and charge d'affaires are immune from the criminal
jurisdiction of the country of their assignment and are therefore immune from
arrest (II Hyde, International Law, 2nd Ed).
3. RA. 75 prohibits the arrest of duly accredited ambassadors, public
ministers of a foreign country, their duly registered domestics (Sec. 4, RA. 75),
subject to the principle of reciprocity (Sec. 7, RA. 75).
II. SEARCHES AND SEIZURES (RULE 126)
Nature of a search warrant (Bar 1994)
1. A search warrant is 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 (Sec. 1, Rule 126, Rules of Court).
2. A search warrant is not a criminal action nor does it represent a
commencement of a criminal prosecution even if it is entitled like a criminal
action. It is not a proceeding against a person but is solely for the discovery and
to get possession of personal property. It is a special and peculiar remedy,
drastic in nature, and made necessary because of public necessity. It resembles
in some respects with what is commonly known as
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John Doe proceedings (United Laboratories, Inc. v. Isip, 461 SCRA 574 citing
Bevington v. United States, 35 F2d 5841929; State v. Keiffer, 187 NW164
1922).
A search warrant is a legal process which has been likened to a writ of
discovery employed by the state to procure relevant evidence of a crime. It is in
the nature of a criminal process restricted to cases of public prosecutions. A
search warrant is a police weapon, issued under the police power (United
Laboratories, Inc. v. Isip, 461 SCRA 574 citing Lodyga v. State, 179
NE1641931; C.J.S. Searches and Seizures § 63).
It has no relation to a civil process. It is not a process for adjudicating civil
rights or maintaining mere private rights. It concerns the public at large as
distinguished from ordinary civil action involving the rights of private persons
and may only be applied for the furtherance of public prosecutions (Ibid.; citing
State v. Derry, 56 NE 482 1908; Lodyga v. State, 179 NE 164 1931)
3. The power to issue search warrants is exclusively vested with the trial
judges in the exercise of their judicial functions (Skechers, USA v. Inter Pacific
Industrial Trading Corporation, 509 SCRA 395).
The Constitutional provision
1. Like an arrest, the laws and rules governing a search warrant is based
upon constitutional guarantees. The pertinent constitutional provision
provides:
"Sec. 2: The right of the people to be secure in their persons,
houses, papers 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" (Sec. 2, Article III, 1987 Constitution of the Philippines).
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2. The following provision solidifies the constitutional prohibition against
unreasonable searches and seizures by providing for an exclusionary rule, thus:
"Any evidence obtained in violation of this or the preceding section shall
be inadmissible for any purpose in any proceeding (Sec. 3, par. 2, Article III, 1987
Constitution of the Philippines).
Arrest distinguished from search and seizure
1. The rules on arrest are concerned with the seizure of a person. It
involves the taking of a person in custody. A search may follow an arrest but
the search must be incident to a lawful arrest.
The rules on searches and seizures cover a wider spectrum of matters on
the search of both persons and places and the seizure of things found therein.
2. A probable cause to arrest does not necessarily involve a probable
cause to search and vice versa. Probable cause to arrest involves a different
determination from probable cause to search. In order to determine probable
cause to arrest, the judge (not the prosecutor) must have sufficient facts in his
hands that would tend to show that a crime has been committed and that a
particular person committed it. Probable cause to search requires facts to
show that particular things connected with a crime are found in a specific location.
3.
The judge is not necessarily required to make a personal
examination before issuing a warrant of arrest (Borlon- gan v. Pena, G.R. No.
143591, May 5, 2010, citing Soliven v. Makasiar, 167 SCRA 293). The judge
must, before issuing the search warrant, personally examine the complainant
and the witnesses he may produce in determining probable cause (Sec. 5, Rule
126, Rules of Court; Santos v. Pryce Gases, G.R. No. 165122, November
23,2007).
4. An arrest may be made on any day and at any time of the day or
night (Sec. 6, Rule 113, Rules of Court). A search
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warrant is generally served in the day time, unless there be a
direction in the warrant that it may be served at any time of
the day or night (Sec. 9, Rule 126, Rules of Court).
Definition of a search warrant under the Rules
A search warrant is 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 (Sec. 1, Rule 126, Rules of Court).
Application for a search warrant," where to file
1. As a rule, an application for a search warrant shall
be filed before any court within whose territorial jurisdiction
a crime was committed (Sec. 2[a], Rule 126, Rules of Court).
2. There are exceptions to the above general rule.
These are:
(a) The application may be made before any court
within the judicial region where the crime was committed if the place of the commission of the crime is known
(Sec. 2[b], Rule 126, Rules of Court).
(b) The application may also be filed before any
court within the judicial region where the warrant shall
be enforced (Sec. 2[b], Rule 126, Rules of Court).
Note: In both exceptions, filing in such courts requires compelling reasons stated in the application.
(c) The application shall be made only in the court
where the criminal action is pending, if the criminal action has already been filed (Sec. 2, last paragraph, Rule
126, Rules of Court).
Search warrants involving heinous crimes and others
1. The above rules in Sec. 2 of Rule 126 of the Rules of
Court have been deemed modified by A.M. No. 99-20-09-SC
dated January 25, 2000, in cases involving heinous crimes,
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illegal gambling, dangerous drugs and illegal possession of firearms.
Under the aforementioned issuance by the Supreme Court, the
following are authorized to act on all applications for search warrants involving
any of the above crimes:
The Executive Judge and Vice Executive Judges of Regional Trial Courts of
Manila and Quezon City filed by the Philippine National Police (PNP), the
National Bureau of Investigation (NBI), the Presidential Anti-Organized Crime
Task Force (PAOC-TF) and the Reaction Against Crime Task Force (REACT-TF)
with the Regional Trial Courts of Manila and Quezon City.
The applications shall be personally endorsed by the Heads of said
agencies, for the search of places to be particularly described therein, and the
seizure of property or things as prescribed in the Rules of Court, and to issue
the warrants of arrest, if justified, which may be served in places outside the
territorial jurisdiction of said courts.
The authorized judges shall keep a special docket book listing the details
of the applications and the results of the searches and seizures made pursuant
to the warrants issued.
2. In Spouses Marimla v. People, G.R. No. 158467, October 16, 2009,
the petitioners filed a motion to quash the search warrant and to suppress the
evidence illegally seized. It was contended among others, that the application
for search warrant was filed and the warrant was issued by the RTC of Manila
which is a court outside the territorial jurisdiction and judicial region of the
courts of Angeles City and Porac, Pampanga where the alleged crime was
committed. It was also argued that the application for search warrant was not
personally endorsed by the head of the NBI as required by "AM. No.
99-10-09-80."
The Supreme Court observed that the cases against petitioners involved
a violation of the Dangerous Drugs Law of 1972 (R.A. 6425). As such, the
application for search warrant may be filed by the NBI in the City of Manila and
the warrant
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233
issued may be served outside of Manila pursuant to "A.M. No. 99-10-09-SC."
The Court likewise held that as to the claim that the application for the warrant
was defective for not having been personally endorsed by the head of the NBI,
the Court held that "nothing in A.M. No. 99-10-09-SC prohibits" the head of the
NBI and of the other law enforcement agencies mentioned from delegating
their ministerial duty of endorsing the application to their assistant heads.
Besides, under Section 31, Chapter 6, Book IV of the Administrative Code of
1987, an assistant head or other subordinate in every bureau may perform
such duties as may be specified by their superior or head, as long as it is not
inconsistent with law.
Ex parte application for a search warrant
An application for a search warrant is heard ex parte. It is neither a trial
nor a part of the trial. Action on these applications must be expedited for time
is of the essence. Great reliance has to be accorded by the judge to the
testimonies under oath of the complainant and the witnesses. (Chemise
Lacoste, S.A. v. Fernandez, 214 Phil. 332; Santos v. Pryce Gases, Inc., G.R. No.
165122, November 23,2007).
Property subject of a search warrant
1. The property subject of a search warrant is personal property, not
real property. A search warrant may be issued not only for the search but also
for the seizure of the following:
(a) Personal property subject of the offense;
(b) Personal property stolen or embezzled and other proceeds,
or fruits of the offense; or
(c) Personal property used or intended to be used as a means
of committing an offense (Sec. 3, Rule 126, Rules of Court).
2. The rule is, only the personal properties described in the search
warrant may be seized by the authorities. In People v. Nunez, (G.R. No.
177148, June 30, 2009), Search Warrant No. 42 specifically authorized the
taking of methamphetamine
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hydrochloride (shabu) and paraphernalia(s) only. By the principle of ejusdem
generis, the Court explained, where a statute describes things of a particular
class or kind accompanied by words of a generic character, the generic word
will usually be limited to things of a similar nature with those particularly
enumerated, unless there be something in the context of the statement which
would repel such inference. Certainly, the lady's wallet, cash, grinder, camera,
component, speakers, electric planer, jigsaw, electric tester, saws, hammer,
drill, and bolo were not encompassed by the word paraphernalia as they bear
no relation to the use or manufacture of drugs. In seizing the said items then,
the police officers exercised their own discretion and determined for
themselves which items in appellant's residence they believed were "proceeds
of the crime" or "means of committing the offense." This, said the Court, is
absolutely impermissible.
In the same case, the Court declared:
"The purpose of the constitutional requirement that the articles to
be seized be particularly described in the warrant is to limit the things to
be taken to those, and only those particularly described in the search
warrant — to leave the officers of the law with no discretion regarding
what articles they should seize. A search warrant is not a sweeping
authority empowering a raiding party to undertake a fishing expedition
to confiscate any and all kinds of evidence or articles relating to a crime.
Accordingly, the objects taken which were not specified in the search
warrant should be restored to appellant.
Requisites for the issuance of a search warrant
1. The following are the requisites for a search warrant under the Rules
of Court:
(a) There must be probable cause in connection with one
specific offense;
(b) The presence of probable cause is to be determined by the
judge personally;
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(c) The determination by the judge must be made after an
examination under oath or affirmation of the complainant and the
witnesses he may produce;
(d) The warrant must specifically describe the place to be
searched and the things to be seized which may be anywhere in the
Philippines (Sec. 4, Rule 126, Rules of Court; Santos v. Pryce Gases, G.R.
No. 165122, November 23,2007; People v. Tuan, G.R. No. 176066, August 11,2010).
2. The absence of the following requisites for a search warrant's
validity, will cause its downright nullification: (1) it must be issued upon
probable cause; (2) the probable cause must be determined by the judge
himself and not by the applicant or any other person; (3) in the determination
of probable cause, the judge must examine, under oath or affirmation, the
complainant and such witnesses as the latter may produce; and (4) the warrant
issued must particularly describe the place to be searched and persons or
things to be seized (Santos v. Pryce Gases, Inc., G.R. No. 165122, November
23,2007).
3. Inherent in the court's power to issue search warrants is the power
to quash warrants already issued. After a judge has issued a warrant, he is not
precluded to subsequently quash the same, if he finds upon re-evaluation of
the evidence that no probable cause exists (Manly Sportwear Manufacturing,
Inc. v. Dadodette Enterprises, 470 SCRA 384; Skechers, USA, Inc. v. Inter
Pacific Industrial Trading Corporation, 509 SCRA 395).
Probable cause in search warrants
A search warrant can be issued only upon a finding of probable
cause. Probable cause for search warrant means 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 to be searched (Kho v. Lanzanas, 489 SCRA 445;
Roan v. Gonzales, 145 SCRA 687).
The facts and circumstances being referred thereto pertain to
facts, data or information personally known to the
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applicant and the witnesses he may present. The applicant or his witnesses
must have personal knowledge of the circumstances surrounding the
commission of the offense being complained of. "Reliable information'' is
insufficient. Mere affidavits are not enough, and the judge must depose in
writing the complainant and his witnesses (Yao, Sr. v. People, 525 SCRA 108)
because in the determination of probable cause, the court must resolve
whether or not an offense exists to justify the issuance of the search warrant
(Skechers, USA, Inc. v. Inter Pacific Industrial Trading Corporation, 509 SCRA
395).
Probable cause does not mean actual and positive cause, nor does it
import absolute certainty. The determination of the existence of probable
cause is not concerned with the question of whether the offense charged has
been or is being committed in fact, or whether the accused is guilty or
innocent, but only whether the affiant has reasonable grounds for his belief.
The requirement is less than certainty of proof, but more than suspicion or
possibility (Kho v. Lanzanas, 489 SCRA 445).
3. There is no general formula or fixed rule for the determination of
probable cause since the same must be decided in light of the conditions
obtaining in given situations and its existence depends to a large degree upon
the findings or opinion of the judge conducting the examination (Skechers,
USA, Inc. v. Inter Pacific Industrial Trading Corporation, 509 SCRA 395). It is
presumed that a judicial function has been regularly performed, absent a
showing to the contrary. A magistrate's determination of a probable cause for
the issuance of a search warrant is. paid with great deference by a reviewing
court, as long as there was substantial basis for that determination (People v.
Mamaril, G.R. No. 171980, October 6,2010).
Although the term "probable cause" has been said to have a
well-defined meaning under the law, the term is exceedingly difficult to define
with any degree of precision and one which would cover every state of facts
which may arise. As to what acts constitute probable cause, there is no exact
test (Kho v. Lanzanas, 489 SCRA 445). The question whether or not probable
cause exists is one which must be decided in the light
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237
of the conditions obtaining in given situations (Central Bank v. Morfe, 20 SCRA
507).
4. One case gives a reminder by declaring that 'probable cause' is a
flexible, common sense standard. It merely requires that the facts available to
the officer would warrant a man of reasonable caution and belief that certain
items may be contraband or stolen property or useful as evidence of a crime. It
does not require proof that such belief be correct or more likely than true. A
practical, non-traditional probability that incriminating evidence is involved is all
that is required (United Laboratories, Inc. v. Isip, 461 SCRA 574, citing Texas v.
Brown, 460 U.S. 730,103 S. Ct. 15351983).
5. Since probable cause is dependent largely on the opinion and
findings of the judge who conducted the examination and who had the
opportunity to question the applicant and his witnesses, the findings of the
judge deserves great weight. The reviewing court can overturn such findings
only upon proof that the judge disregarded the facts before him or ignored the
clear dictates of reason (Yao, Sr. v. People, G.R. No. 168306, June 19, 2007).
However, the probable cause must also be shown to be within the personal
knowledge of the complainant or the witnesses he may produce and not based
on mere hearsay. In determining its existence, the examining magistrate must
make a probing and not merely routine or pro forma examination of the
complainant and the witnesses (Nola v. Barroso, Jr., 408 SCRA 529; Betoy, Sr.
v. Coliflores, 483 SCRA 435).
In determining probable cause, the oath required must refer to the truth
of the facts within the personal knowledge of the applicant or his witnesses,
because the purpose thereof is to convince the magistrate, not the individual
making the affidavit and seeking the issuance of the warrant of the existence of
probable cause (Kho v. Lanzanas, 489 SCRA 445).
6. In a case, the trial court retracted its earlier finding of probable
cause because the seized items were accordingly incomplete or insufficient to
charge petitioner with a criminal offense, thus, negating its previous
determination of probable
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cause. The Court disagreed because in quashing the search warrant, it would
appear that the trial court had raised the standard of probable cause to
whether there was sufficient cause to hold petitioner for trial. In so doing, the
trial court committed grave abuse of discretion.
Probable cause for a search warrant is defined as such facts and
circumstances which would lead a reasonably discrete 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. A finding
of probable cause needs only to rest on evidence showing that, more likely
than not, a crime has been committed and that it was committed by the
accused. Probable cause demands more than bare suspicion; it requires less
than evidence which would justify conviction. The existence depends to a large
degree upon the finding or opinion of the judge conducting the examination.
However, the findings of the judge should not disregard the facts before him
nor run counter to the clear dictates of reason (Santos v. Pryce Gases, Inc.,
G.R. No. 165122, November 23,2007).
Probable cause to arrest and probable cause to search
A probable cause to arrest does not necessarily involve a probable
cause to search and vice versa. Probable cause to arrest involves a different
determination from probable cause to search. In order to determine probable
cause to arrest, the judge (not the prosecutor) must have sufficient facts in his
hands that would tend to show that a crime has been committed and that a
particular person committed it. Probable cause to search requires facts to
show that particular things connected with a crime are found in a specific
location.
Webb v. De Leon, 247 SCRA 653 expounds:
. .each requires a showing of probabilities as to somewhat different
facts and circumstances, and thus one can exist without the other. In search cases,
two conclusions must be supported by substantial evidence; that the items
sought are in fact sizeable by virtue of being
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connected to criminal activity, and that the items will be
found in the place to be searched. It is not also necessary
that a particular person be implicated. By comparison, in
arrest cases there must be probable cause that a crime
was committed and that the person to be arrested has
committed it, which of course can exist without any showing that evidence of the crime will be found at the premises under a person's control. Worthy of note, our Rules
of Court do not provide for a similar procedure to be followed in the issuance of a warrant of arrest and search
warrants..."
How the examination shall be conducted by the judge
1. Aside from the requirements mandated by Sec.
4 of Rule 126, the rule requires the judge to comply with a
specific procedure in the conduct of the examination of the
complainant and the witnesses he may produce. The required
procedure involves the following:
(a) The examination must be personally conducted
by the judge;
(b) The examination must be in the form of searching questions and answers;
(c) The complainant and the witnesses shall be examined on those facts personally known to them;
(d) The statements must be in writing and under
oath; and
(e) The sworn statements of the complainant and
the witnesses, together with the affidavits submitted,
shall be attached to the record (Sec. 5, Rule 126, Rules of
Court).
2. The facts and circumstances to be testified to by the
complainant and the witnesses he may produce, being referred
thereto pertain to facts, data or information personally known
to the applicant and the witnesses he may present. The
applicant or his witnesses must have personal knowledge of
the circumstances surrounding the commission of the offense
being complained of. "Reliable information" is insufficient.
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Mere affidavits are not enough, and the judge must depose in writing the
complainant and his witnesses (Yao, Sr. v. People, G.R. No. 168306, June 19,
2007). An application for a search warrant if based on hearsay cannot,
standing alone, justify issuance of a search warrant. It is necessary for the
witnesses themselves, by their own personal information, to establish the
applicant's claims (Roan v. Gonzales, 145 SCRA 687).
3. Section 5 of Rule 126 of the Revised Rules on Criminal Procedure,
prescribes the rules in the examination of the complainant and his witnesses
when applying for search warrant, to wit:
"SEC. 5. Examination of complainant; record. — The judge
must, before issuing the warrant, personally examine in the form of
searching questions and answers, in writing under oath, the complainant and the
witnesses he may produce on facts personally known to them and attach to the
record their sworn statements, together with the affidavits submitted."
The foregoing provisions require that the judge must, before issuing the
warrant make a personal examination under oath of the complainant and the
witnesses he may produce in accordance with Sec. 5 of Rule 126.
"Mere affidavits of the complainant and his witnesses are thus, not
sufficient. Aside from the examination under oath, "...The examining judge has
to make searching questions and elicit answers of the complainant and the
witnesses he may produce in writing and to attach them to the record." Thus,
in Balayon v. Dinopol, 490 SCRA 547, the Court found an RTC judge guilty of
gross ignorance of the law for failure to observe the mandate of the rules
because the Court found that there was no record of searching questions and
answers attached to the records of the case.
4. The searching questions propounded to the applicant and the
witnesses depend largely on the discretion of the judge. Although there is no
hard-and-fast rule governing how a judge should conduct his investigation, it is
axiomatic that the examination must be probing and exhaustive, not merely
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241
routinary, general, peripheral, perfunctory or pro forma. The judge must not
simply rehash the contents of the affidavit but must make his own inquiry on
the intent and justification of the application (Yao, Sr. v. People, G.R. No.
168306, June 19, 2007; Betoy, Sr. v. Coliflores, 483 SCRA 435).
5. In the determination of probable cause, the Constitution and the Rules
of Court require an examination of the witnesses under oath. The examination
must be probing and exhaustive, not merely routine or pro forma. The
examining magistrate must not simply rehash the contents of the affidavit but
must make his own inquiry on the intent and justification of the application.
Asking of leading questions to the deponent in an application for search
warrant, and conducting of examination in a general manner, would not satisfy
the requirements for issuance of a valid search warrant (Uy v. Bureau of
Internal Revenue, 344 SCRA 36).
Particular description of place or person
1. The long standing rule is that a description of the place to be searched
is sufficient if the officer with the warrant can, with reasonable effort, ascertain
and identify the place intended and distinguish it from other places in the
community. Any designation or description that points out the place to the
exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies
the constitutional requirement.
Moreover, in the determination of whether a search warrant describes
the premises to be searched with sufficient particularity, it has been held that
the executing officer's prior knowledge as to the place intended in the warrant
is relevant. This would seem to be especially true where the executing officer is
the affiant on whose affidavit the warrant had been issued, and when he
knows that the judge who issued the warrant intended the compound
described in the affidavit (Yao, Sr. v. People, G.R. No. 168306, June 19,2007).
The standard for determining the legality of a warrant directed against a
person is whether the person has been
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sufficiently described with particularity sufficient to identify him with
reasonable certainty. Even if his name is unknown or erroneously written, the
description of the person with certainty to identify him and set him apart from
others is enough to lend validity to the warrant (United States v. Ferrone, 438
F.2d 381, 3d Cir. 1971). Nowhere in Section 4, Rule 126 or any other provision
of the Revised Rules of Criminal Procedure is it required that the search
warrant must name the person who occupies the described premises
(Quelnan v. People, 526 SCRA 653, July 6, 2007).
2. The determining factor as to whether a search warrant describes
the premises to be searched with sufficient particularity is not whether the
description is technically accurate in every detail but rather whether the
description is sufficient to enable the officer to locate and identify the premises
with reasonable effort, and whether there is any reasonable probability that
another premises may be mistakenly searched and not the one intended to be
searched under the warrant (United States v. Darensbourg, 520 F.2d
985,987; 5th Cir. 1975; Steele v. United States, 267 U.S. 498, 503, 45 S. Ct.
414, 416, 69 L.Ed. 757, 760). The prevailing doctrine is that the warrant "must
sufficiently describe the premises to be searched so that the officer executing
the warrant may, with reasonable effort, ascertain and identify the place
intended" (People v. Peck, 1974, 38 CA 3d 993,1000,113 CR 806).
3. In United States v. Darensbourg (520 F.2d 985, 987 5th Cir.
1975), the warrant as well as the affidavit supporting it gave an erroneous
street address but with the right apartment number in a four-building
apartment complex. Since there was no other apartment in the entire complex
that had the same apartment number as that described in the warrant, the
description was upheld.
The court, in a California case, applying the same principle, sustained the
validity of a warrant which gave the wrong lot number or address but referred
to the house to be searched as that one occupied by the accused (People v.
Superior Court [Fish], 1980,101 Cal. App. 3d 216,161 Cal. Rptr. 547).
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243
4. In another American case, the place to be searched was described
as u313 West 27th Street, a dwelling. The apartment of Melvin Lloyd
Manley." The place was actually a multi-occupancy dwelling with sub-units or
individual apartments. The defendant assailed the validity of the warrant on
the ground that his apartment or unit was not sufficiently described. Here the
court ruled that a search warrant directed against a multiple occupancy
structure, although does not specify the sub-unit to be searched would not be
considered invalid where it adequately specifies the name of the occupant of
the sub-unit against which the warrant is directed and thus provides the
searching officers sufficient information to identify the place intended by the
warrant.
The warrant, said the Court, must make reasonably clear what place is to
be searched. Where the particular place to be searched is described by the
affidavit of the officer as a single living unit in an entire building, a warrant
describing an entire building and thus authorizing the search of the building is
too broad (People v. Govea, 1965, 235 CA2d 285, 300; 45 CR 253; People v.
Estrada, 1965 234 CA2d 136,146 CR 165).
5.
In People v. Estrada, 1965, 234 CA2d 136, 146, 44 CR 165, a
building had four apartments, and one of them located in the second floor was
occupied by the accused. The warrant referred to:"The apartment house
occupied by Manuel Estrada at 18 S. 19th Street, San Jose, the second story
of a white house ..." The court ruled that by referring to Estrada, the warrant,
identified the particular unit to be searched and the warrant was not overly
broad. Estrada further held that if the description in the warrant limits the
search to a particular part of the premises either by a designation of the area or
other physical characteristics of such part or by a designation of its occupants,
the business conducted there, the warrant will meet constitutional standards in
respect to the description of the place to searched.
6. In Uy v. Bureau of Internal Revenue, 344 SCRA 36, the caption of
Search Warrant A-l indicates the address of the petitioner as "Hernan Cortes
St., Cebu City9 while the body of the same warrant states the address as
"Hernan Cortes St.,
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Mandaue City" The Court did not consider the discrepancy as sufficient to
consider the warrant constitutionally infirm. It was not shown that there was a
street with the same name in Cebu City nor was it established that the officers
enforcing the warrant had difficulty locating the premises of the petitioner. Uy
explained that a description of the place to be searched is sufficient if the
officer with the warrant can, with reasonable effort, ascertain and identify the
place intended and distinguish it from other places in the community. Any
designation or description known to the locality that points out the place to the
exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies
the constitutional requirement.
7. A John Doe warrant which does not name the person subject of
the same, is the exception rather than the rule. Hence, in one case, a warrant
was voided to the extent that it was issued against fifty (50) John Does none of
which could be identified by the witnesses (Pangandaman v. Casar, 159 SCRA
599).
8. The police on the other hand, should not be hindered in the
performance of their duties by superficial adherence to technicality or
farfetched judicial interference. While the rule requires it necessary to express
the name or give some description of a party subject of a warrant, the principle
does not prevent the issue and service of a warrant against a party whose
name is unknown. In such a case, the best possible description of the person is
to be given in the warrant; but it must be sufficient to indicate clearly on whom
it is to be served, by stating his occupation, his personal appearance and
peculiarities, the place of his residence or other circumstances by which he can
be identified. The description must be sufficient to indicate clearly the proper
person upon whom the warrant is to be served.
Thus, in the early case of People v. Veloso, 48 Phil. 169, the search
warrant stated that John Doe had gambling apparatus in his possession in the
building occupied by him at No. 124 Calle Arzobispo, City of Manila, and as this
John Doe was Jose Ma. Veloso, the manager of the Club, the police
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245
could identify John Doe. Further, the affidavit for the search warrant and the
search warrant itself described the building to be searched and the description
was a sufficient designation of the premises.
9. The person to be searched must be described with reasonable
particularity (Lohman v. Superior Court, 69 Cat. App. 3d 894). He can even be
identified by a name which others use in calling him, even if it is not his real
name (People v. Mclean, 56 Cal. 2d 660) because the standard for
determining the legality of a warrant directed against a person is whether the
person has been sufficiently described with particularity sufficient to identify
him with reasonable certainty. Even if his name is unknown or erroneously
written, the description of the person with certainty to identify him and set him
apart from others is enough to lend validity to the warrant (United States v.
Ferrone, 438 F.2d 381, 3rd Cir. 1971). Nowhere in Section 4, Rule 126 or any
other provision of the Revised Rules of Criminal Procedure is it required that
the search warrant must name the person who occupies the described
premises (Quelnan v. People, 526 SCRA 653, July 6,2007).
10. There is also compliance with the law when the person although
not particularly named, is described as the one occupying and having control of
a specific address (People v. Veloso, 48 Phil. 169).
Particular description of the items to be seized; general warrants (Bar
2005)
1. The provision requiring a particular description of the items or things
to be seized is designed to prevent general searches and avoid the seizure of a
thing not described in the warrant and also so nothing is to be left to the
discretion of the officer executing the warrant (United States v. Marron, 275 U
S. 192, 196, 48 S. Ct. 74, 76, 72 L.Ed. 231, 237). The requirement of
particularity is designed to prevent general exploratory searches which
reasonably interfere with a person's right to privacy (People v. Schilling, 188
Cal. App. 3d 1021). Warrants which do not describe the things to be seized
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/
/
/
with the required particularity have been traditionally called general warrants.
2. The requirement of particularity is said to be satisfied if the
warrant imposes a "meaningful restriction" upon the objects to be seized
(Burrows v. Superior Court, 13 Cal. 3d 238; People v. Tockgo, 145 Cal. App.
3d 635). A "meaningful restriction" is one that leaves nothing to the discretion
of the officer who conducts the search (Marron v. United States, 275 US,
192,196, 48 S. Ct. 74, 72 Ed 231). Corollarily, "a warrant may not authorize a
search broader than the facts supporting its issuance." Hence, a warrant
authorizing the search and seizure of "papers showing or tending to show the
trafficking of cocaine9 is invalid because the affidavit supporting the issuance
made no reference to the existence of such papers (People v. Holmsen, 173
Cal. App. 3d 1045).
3. The Philippine Supreme Court declares that the purpose of this
requirement is to limit the things to be seized to those described in the search
warrant and to leave the officers of the law no discretion regarding what
articles they shall seize so abuses may not be committed (Uy Kheytin v.
Villareal, 42 Phil. 886).
4. The common denominator among decisions on "particularity"
regard descriptions of a generic nature as failing to impose a meaningful
restriction on the officer conducting the search.
Descriptions of the things to be searched and seized as "stolen goods,"
"obscene materials," or "other articles of merchandise too numerous to
mention," have been held inadequate (Marcus v. Search Warrants, 367 U.S.
717, 81 S.Ct. 1708, L.Ed. 2d 1127). The phrase, "any and all other stolen
items" was impermissibly vague (United States v. Townsend, 394 F. Supp. 736
E.D. Mich, 1975). In People v. Tockgo, 145 Cal. App. 3d 635, the officers had
information about certain unique markings of stolen cigarettes, but the
description did not include the markings to permit the officers to differentiate
the object of the search from those which were not stolen. The words:
*cigarettes... and any and all goods..." were deemed inadequate.
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5.
247
In a leading Philippine case, a warrant was deemed illegal, thus:
"Books of accounts, financial records, vouchers, journals,
correspondence, receipts, ledgers, portfolios, credit journals, typewriters,, and
other documents and papers showing all business transactions, including
disbursement receipts, balance sheets and related profits and loss statements*
is too broad and general because it authorizes the search and
seizure of records "pertaining to all business transactions of
petitioner herein, regardless, of whether the transactions were
legal or illegal" (Stonehill v. Diokno, G.R. No. 19550, June 19,1967).
6. Also held inadequate for constitutional compliance is the following
description of the things to be searched and seized:
"...Television sets, video cassette recorders, rewind- ers, tape head
cleaners, accessories, equipment and other machines used or intended to be
used in the unlawful reproduction, sale, rental I lease, distribution of the
above- mentioned video tapes which she is keeping and concealing in the
premises above-described" (20th Century Fox Film Corporation v. Court of
Appeals, 164 SCRA 655).
The above articles and appliances, said the Court, are generally
connected with or related to a legitimate business not necessarily involving
piracy of intellectual property or infringement of copyright laws. Including
them without particularity makes the search warrant too general which could
result in the confiscation of all items found in any video store.
7. A high degree of particularity is required for items such as books,
films, recordings, or other materials that have not yet been adjudged obscene.
Since these materials are at this stage, still deemed to be constitutionally
protected, the requirement of particular description "must be accorded the
most scrupulous exactitude" and when the bases for their seizure are the ideas
which they contain (Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325, 99S.Ct.
2319, 2324, 60 L. Ed.2d
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920, 9271979; Stanford v. Texas, 379 U.S. 476, 485, 85 S. Ct. 506, 511-12,13
L.Ed.2d 431, 4361965).
8. Some decisions (State v. Brown, 470 P.2d 815, 819- 20 Kan.
1970), in the United States have sometimes allowed a general description
when specificity is difficult and where a technical description would have
required the experience of a trained surgeon. For instance, the following
description for purposes of a warrant was upheld: "Various instruments and
tools in performing abortion, which were instrumentalities of such offense "
In People v. Schmidt, (473 P. 2d 698, 700, Co. 1970), the court allowed
a description reading: "marijuana...dangerous drugs, stimulant drugs and
hallocinogenics...together with such vessels, implements, furniture in which
drugs are found and the vessels, implements and furniture used in
connection with the manufacture, production and dispensing of such
drugs..."
In United States v. Appoloney, 761 F. 2d 520 (9th Cir. 1985), the validity
of the following description of gambling paraphernalia was allowed:
"wagering paraphernalia such as betting slips, bottom sheets and owe
sheets, and journals and schedules of sporting events"
A warrant describing the property to be seized as "deer or elk meat
illegally possessed" was considered adequate because a more particular
description was not possible. The meat to be seized had no brand names or
serial numbers (Dunn v. Municipal Court, 220 Cal. App. 2d 858).
9. In the Philippines, general descriptions have likewise been allowed
in some cases when dictated by the nature of the things to be seized on the
theory that the description must be specific insofar as the circumstances will
ordinarily allow (People v. Rubio, 57 Phil. 384). The law does not require that
the things to be seized must be described in precise and minute details as to
leave no room for doubt on the part of the searching authorities (Too, Sr. v.
People, G.R. No. 168306, June 19,2007).
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249
But the use of a generic term or a general description in a warrant is allowed only when a
more specific description of the things to be seized is not available. Thus, the mere use of terms
like "multiple set books of accounts, ledgers, journals, columnar books, cash
register books, sales books or records" and similar general descriptions, is unacceptable
considering the circumstances where the petitioner is alleged to have committed tax fraud and
smuggling. The issuing judge could have formed a more specific description of the documents
because he was furnished copies of the documents sought to be seized. As regards the terms
"unregistered delivery receipts" and "unregistered purchase and sales invoices," these need not
be identified specifically. It is not possible to do so considering these are unregistered. Taking into
consideration the nature of the articles described, no other more adequate and detailed
description could have been given because of the difficulty in describing the contents of the same
(Uy v. Bureau of Internal Revenue, 344 SCRA 36).
10. In Kho v. Makalintal, 306 SCRA 70, the petitioners claim that the search
warrants issued were general warrants prohibited by the constitution because the things to be
seized were not described and specified. One warrant for instance, directing the search and
seizure of firearms, did not list the firearms to be seized and were not classified as to size, make,
caliber. The subject warrant merely stated:
Unlicensed firearms of various calibers and ammunitions for the
said firearms..."
In brushing aside the contention of the petitioner, the Court observed that the law
enforcement officers could not have been in the position to know beforehand the exact caliber or
make of the firearms to be seized. In the process of surveillance conducted at a distance, they had
no way of knowing the caliber and make of the firearms unless they get a close view of the
weapons and thus, could not be expected to know the detailed particulars of the objects to be
seized including the communications equipment. The court likewise considered the use of the
words, "and the like" of no moment and did not make the warrants in question, general
warrants.
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11. In Yao v. People, the petitioners argued that the search warrants did not indicate
with particularity the items to be seized since the search warrants merely described the items to
be seized as LPG cylinders bearing the trademarks GASUL and SHELLANE without specifying their
sizes.
The contention found no merit with the Court holding that a search warrant may be said
to particularly describe the things to be seized when the description therein is as specific as the
circumstances will ordinarily allow; or when the description expresses a conclusion of fact not of
law by which the warrant officer may be guided in making the search and seizure; or when the
things described are limited to those which bear direct relation to the offense for which the
warrant is being issued.
"While it is true that the property to be seized under a warrant must be
particularly described therein and no other property can be taken thereunder, yet
the description is required to be specific only in so far as the circumstances will
ordinarily allow. The law does not require that the things to be seized must be
described in precise and minute details as to leave no room for doubt on the part
of the searching authorities; otherwise it would be virtually impossible for the
applicants to obtain a search warrant as they would not know exactly what kind
of things they are looking for. Once described, however, the articles subject of the
search and seizure need not be so invariant as to require absolute concordance, in
our view, between those seized and those described in the warrant. Substantial
similarity of those articles described as a class or specie would suffice.
"Measured against this standard, we find that the items to be seized
under the search warrants in question were sufficiently described with
particularity. The articles to be confiscated were restricted to the following: (1)
LPG cylinders bearing the trademarks GASUL and SHELLANE; (2) Machines and
equipments used or intended to be used in the illegal refilling of GASUL and
SHELLANE cylinders. These machines were also specifically enumerated and listed
in the search warrants; (3) Documents
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251
which pertain only to the production, sale and distribution of the GASUL and
SHELLANE LPG cylinders; and (4) Delivery trucks bearing Plate Nos. WTE-527, XAM970 and WFC-603, hauling trucks, and/or other delivery trucks or vehicles or
conveyances being used or intended to be used for the purpose of selling and/or
distributing GASUL and SHELLANE LPG cylinders. Additionally, since the described
items are clearly limited only to those which bear direct relation to the offense, i.e.,
violation of Section 155 of Republic Act No. 8293, for which the warrant was issued,
the requirement of particularity of description is satisfied.
"Given the foregoing, the indication of the accurate sizes of the GASUL and
SHELLANE LPG cylinders or tanks would be unnecessary" (Yao v. People, G.R. No.
168306, June 19,2007).
12. The description "an undetermined amount of marijuana or Indian
hemp" satisfies the requirement of particularity in a search warrant. By reason of its character
and the circumstances under which it would be found, said article is illegal. A further description
would be unnecessary and impossible except as to such character, the place and the circumstances. The description therein is (1) as specific as the circumstances will ordinarily allow; (2)
expresses a conclusion of fact — not of law — by which the peace officers may be guided in
making the search and seizure; and (3) limits the things to be seized which bear direct relation to
the offense for which the warrant is being issued. Such warrant imposes a meaningful restriction
upon the objects to be seized by the officers serving the warrant. Thus, it prevents exploratory
searches, which might be violative of the Bill of Rights (People v. Tee, 395 SCRA 419).
Ownership of property seized not required
The law does not require that the property to be seized should be owned by the person
against whom the search warrant is directed. It is sufficient that the person against whom the
warrant is directed has control and possession of the property sought to be seized (Yao v.
People, G.R. No. 168306,
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June 19, 2007). In an American decision involving a search of newspaper offices, the U.S.
Supreme Court ruled that a search warrant is directed to the seizure of things and not the seizure
of persons and hence, the critical element is not ownership but whether there is a reasonable
cause to believe that the things to be seized are located in the place to be searched (Zurcher v.
The Stanford Daily, 436 U.S. 547,556,98 S.Ct. 1970,1977,56 L.Ed.2d 525,
535).
Extent of the search
1. A fair reading of jurisprudence discloses that the reasonableness of both the
seizure and the search does not exclusively refer to the manner by which the warrant was
procured. It refers also to the reasonableness of the manner the warrant was executed including
the time and place of its execution.
Also, for the search to be reasonable, the object of the search must be the one properly
described in the warrant. Marron v. United States, 275 U.S. 192, 48 S.Ct., 1927, in
holding that officers cannot seize property not specified in the warrant, found that a search
warrant describing only intoxicating liquors should not include ledgers and bills of account within
the searched premises.
Where the warrant is unambiguous and limited only to a particular place like a store
described in the warrant the search does not extend to the apartment units located at the back
of the store even if the sketch submitted to the judge include the apartments. It is neither fair nor
licit to allow officers to search a place not described in the warrant because the place not
described is what the officers had in mind (People v. Court of Appeals, 291 SCRA 400).
2. A warrant which authorizes the search of weapons includes the authority to open
closets, drawers, chests and containers in which the weapons might be found. These containers
must give way to the interest in the prompt and efficient completion of the task when a
legitimate search is underway and when its purpose and limits have been precisely
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defined. If the warrant is to search a vehicle, every part of that vehicle which may contain the
object to be seized may be searched. In other words, the lawful search of the premises
particularly described extends to the areas in which the object may be found (United States
v. Ross, 456 U.S. 798).
3. It has been held that when a search warrant authorizes the search of a place
particularly described, a justified search would include all the things attached to or annexed to the
land if the place described be land (United States v. Meyer, 417 F. 2d 1020, 8th Cir.
1969). Courts have also generally allowed a search of vehicles owned or controlled by the
owner of the premises and at the same time found in the premises (United States v.
Percival, 756F.2d 600 7th Cir. 1985).
Search of third persons not named in the warrant
1.
Assume that a search warrant for a described place of a named owner is being
executed, may a person who just happens to be in the premises be also searched? The prevailing
American general rule is that a warrant to search a place does not extend to the authority to
search all persons in the place because the police have no probable cause to search and detain a
person not particularized in the warrant. Thus, in Ybarra v. Illinois (444 U.S. 85, 100
S.Ct, 338 62 L.Ed.2d 238 1979), the U.S. Supreme Court, struck down as invalid a search
of a mere patron in a bar.
2.
There have been cases where the Court upheld the search of things belonging to
third persons while in the place validly searched as when the officers had no knowledge that the
same belongs to a third person (Carman v. State, 602 P.2d 1255, Alaska 1979).
Issuance and form of the search warrant
The warrant shall be issued when the judge is satisfied of the existence of facts upon
which the application is based or that there is a probable cause to believe that they exist. The
form of the search warrant must be substantially in the form prescribed by the Rules (Sec. 6,
Rule 126, Rules of Court).
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Duration of the validity of a search warrant
A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void
(Sec. 10, Rule 126, Rules of Court).
Time of making the search
The warrant shall be served in the daytime and such fact must be so directed by the
warrant. However, if the affidavit asserts that the property is on the person or in the place ordered to be searched, the warrant may insert a direction that it may be served at any time of the
day or night (Sec. 9, Rule 126, Rules of Court). Hie rule on issuance of search warrants
allows for the exercise of judicial discretion in fixing the time within which the warrant may be
served, subject to the statutory requirement fixing the maximum time for the execution of a
warrant (People v. Court of Appeals, 347 SCRA 453).
Manner of making the search
1.
The search shall be made in the presence of the lawful occupant of the house,
room or any other premises, or any member of the lawful occupant's family. In the absence of
the latter, the search shall be made in the presence of two witnesses of sufficient age and
discretion residing in the same locality. The rule in this regard is emphatic. No search shall be
made except in the presence of the persons mentioned in the Rules (Sec. 8, Rule 126, Rules
of Court).
2.
In Panuncio v. People, G.R. No. 165678, July 17, 2009, the petitioner
assailed the validity of the search which was allegedly conducted while she was not in the house.
The petitioner alleges that since the search warrant was defective, the items seized during the
search could not be used in evidence against her.
The Court categorically ruled that even assuming that the petitioner or any lawful
occupant of the house was not present when the search was conducted, the search was done in
the presence of at least two witnesses of sufficient age and discretion residing in the same
locality. Clearly, the require
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255
ments of Sec. 8, Rule 126 of the Rules of Court were complied with by the police authorities who
conducted the search.
Section 8, Rule 126 of the Rules of Court provides:
SEC. 8. Search of house, room, or premises, to be made in presence of
two witnesses — No search of a house, room, or any other premise shall be
made except in the presence of the lawful occupant thereof or any member of his
family or in the absence of the latter, two witnesses of sufficient age and
discretion residing in the same locality.
3. The officer seizing the property must give a detailed receipt for the same to the lawful
occupant of the premises in whose presence the search and seizure were made, or in the
absence of such occupant, must, in the presence of at least two witnesses of sufficient age and
discretion residing in the same locality, leave a receipt in the place in which he found the seized
property (Sec. 11, Rule 126, Rules of Court).
Rule if the officer is refused admittance; "knock and announce rule"
1.
Being armed with a warrant does not justify outright entry or barging into the
place to be searched. An officer should knock, introduce himself and announce his purpose and
only in exceptional cases may he forego the same like when his safety is in danger of being
jeopardized or when evidence is about to be destroyed (Wilson v. Arkansas, 514 U.S.
927).
2.
The officer may break open any outer or inner door or window of a house or any
part of a house or anything therein provided the following requisites are complied with:
(a)
The officer gives notice of his purpose and authority;
(b)
He is refused admittance to the place of directed search despite the notice;
and
(c)
The purpose of breaking is to execute the warrant or to liberate himself or
any person lawfully aiding him when unlawfully detained therein (Sec. 7, Rule 126,
Rules of Court).
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256
Duties of the officer after the search and seizure; delivery and inventory
(a) The officer must forthwith deliver the property seized to the judge who
issued the warrant;
(b) The officer must, together with the delivery of the property also deliver a
true inventory of the property seized. Such inventory must be duly verified under oath
(Sec. 12, Rule 126, Rules of Court).
(c)
Note: A violation of the above rules shall constitute contempt of court
(Sec.12, Rule 126, Rules of Court).
Duty of the judge; return and other proceedings
1.
Under Sec. 12(b) of Rule 126, the judge issuing the search warrant has the
following duties:
(a) The judge who issued the warrant shall ascertain if the return has been
made. He shall do so ten (10) days after issuance of the search warrant.
(b) If no return has been made, the judge shall summon the person to whom
the warrant was issued and require him to explain why no return was made.
(c)
If the return has been made, the judge shall ascertain whether Sec. 11 of
Rule 126 (giving of a receipt for the property seized) was complied with and shall require
that the property seized be delivered to him. The judge shall also see to it that subsection
"a" of Sec. 12 of Rule 126 (delivery of the property seized and true inventory) has been
complied with.
2.
A judge should know that his duty as a magistrate does not end when the warrant
is issued. When the evidence shows that the judge who issued the search warrant did not
require the officers executing the warrant to make an accurate and complete inventory of the
things seized and submit the same to him, he is guilty of gross ignorance of the law (Betoy v.
Coliflores, 483 SCRA 435).
3.
In Santos v. Pryce Gases, Inc., G.R. No. 165122,
November23,2007, the Court found that the Court of Appeals,
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257
in reversing the order of the trial court granting the motion to quash, erred in ordering the return
of the seized items to respondent.
The Court held that Section 12, Rule 126 of the Revised Rules of Criminal Procedure
expressly mandates the delivery of the seized items to the judge who issued the search warrant
to be kept in custodia legis in anticipation of the criminal proceedings against petitioner. The
delivery of the items seized to the court which issued the warrant together with a true and
accurate inventory thereof, duly verified under oath, is mandatory in order to preclude the
substitution of said items by interested parties. The judge who issued the search warrant is
mandated to ensure compliance with the requirements for
(1) the issuance of a detailed receipt for the property received,
(2) delivery of the seized property to the court, together with
(3) a verified true inventory of the items seized. Any violation of the foregoing constitutes
contempt of court.
Duty of the custodian of the log book
1. The return on the search warrant shall be filed and kept by the custodian of the log
book on search warrants who shall enter therein the date of the return, the result, and other
actions of the judge (Sec. 12, Rule 126, Rules of Court)
A violation of the above rules shall constitute contempt of court
(Sec.12, Rule 126,
Rules of Court).
Objection to issuance or service of a warrant
1. Any objection concerning the issuance or service of a warrant or a procedure in the
acquisition by the court of jurisdiction over the person of the accused must be made before he
enters his plea, otherwise, the objection is deemed waived (Buenaventura v. People, 529
SCRA 500, August 7, 2007).
2. The constitutional right of appellant against warrantless arrest and search was not
violated when the appellant failed to assail the legality of the arrest and the seizure of the sachet
of shabu prior to arraignment or at any stage in the proceedings of the trial court. The arrest was
pursuant
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to a buy-bust operation which is a valid form of entrapment of felons in the execution of their
criminal plan; and that the search conducted on appellant was incidental to a lawful arrest
(People v. Maeatingag, G.R. No. 181037, January 19, 2009).
Where to file a motion to quash a search warrant or to suppress evidence
1.
A motion to quash a search warrant and/or to suppress evidence obtained by
virtue of the warrant may be filed and acted upon only by the court where the action has been
instituted.
2.
If no criminal action has been instituted, the motion may be filed in and resolved
by the court that issued the search warrant. However, if such court failed to resolve the motion
and a criminal case is subsequently filed in another court, the motion shall be resolved by the
latter court (Sec. 14, Rule 126, Rules of Court).
Who may assail the issuance of a search warrant
1. Well-settled is the rule that the legality of a seizure can be contested only by the
party whose rights have been impaired thereby, and the objection to an unlawful search and
seizure is purely personal and cannot be availed of by third parties (Santos v. Pryce Gases,
Inc., G.R. No. 165122, November 23,2007).
2. The manager of an establishment is a real party-in- interest to seek the quashal of
the search warrant for the obvious reason that the search warrant, in which the manager was
solely named as respondent, was directed against the premises and articles over which he had
control and supervision. The manager, who is at the same time the petitioner was directly
prejudiced or injured by the seizure of the gas tanks because petitioner was directly accountable
as manager to the purported owner of the seized items. When the application for a search
warrant averred that petitioner had in his possession and control the items subject of the alleged
criminal offense, the interest of the manager/petitioner becomes obvious.
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The corporation does not have the exclusive right to question the seizure of items
belonging to the corporation on the ground that the latter has a personality distinct from the
officers and shareholders of the corporation. Assuming arguendo that the corporation was the
owner of the seized items, petitioner, as its manager had the authority to question the seizure of
the items belonging to the corporation. Unlike natural persons, corporations may perform
physical actions only through properly delegated individuals; namely, their officers and/or agents
(Santos v. Pryce Gases, Inc., G.R. No. 165122, November 23,2007).
Petition for certiorari for unwarranted quashal of a search warrant
In one case, after issuing a search warrant, the RTC of Iloilo made a turnaround and
granted the motion to quash filed by the petitioner. The RTC likewise issued an order for the
return of the items seized to the petitioner. After a denial of its motion for reconsideration, the
respondent elevated the matter to the Court of Appeals via a special civil action for certiorari,
arguing that the trial court committed grave abuse of discretion in quashing the search warrant.
The petition essentially questioned the quashal of the search warrant despite a prior finding of
probable cause. The Court of Appeals rendered a decision setting aside the orders of the lower
court. The petitioner sought reconsideration but was denied.
One of the issues raised in the subsequent petition for review on certiorari before the
Supreme Court was whether or not the petition for certiorari filed with the Court of Appeals by
respondent was the proper remedy to assail the orders of the trial court.
The Court held that the special civil action for certiorari was the proper recourse availed
by respondent in assailing the quashal of the search warrant. An unwarranted reversal of an
earlier finding of probable cause constituted grave abuse of discretion. In any case, the Court had
allowed even direct recourse to the Court or to the Court of Appeals via a special
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civil action for certiorari from a trial court's quashal of a search warrant
(Santos v. Pryce
Gases, Inc., G.R. No. 165122, November 23,2007).
Exceptions to the search warrant requirement (Bar 1988; 1995; 1996;
1997; 2008)
1.
As a general rule, the procurement of a warrant is required before a law enforcer
can validly search or seize the person, house, papers, or effects of any individual. To underscore
the significance the law attaches to the fundamental right of an individual against unreasonable
searches and seizures, the Constitution clearly declares in Section 3(2), Article III, that "any
evidence obtained in violation of this or the preceding section shall be inadmissible in evidence
for any purpose in any proceeding." (Bar 1998)
Thus, the 1987 Constitution states that a search and consequent seizure must be carried
out with a judicial warrant; otherwise, it becomes unreasonable and any evidence obtained
therefrom shall be inadmissible for any purpose in any proceeding (People v. Racho, G.R.
No. 186529, August 3, 2010).
2.
There are however, instances when securing a warrant before effecting a search
and a seizure would not serve the ends of an orderly society. The time and effort required to
secure a warrant may sometimes actually frustrate the effective enforcement of the laws and
encourage criminal activities. On the other hand, the rule requiring a warrant protects citizens
from the overzealousness of law enforcement officers who hold as personal dogma that the
means justify the end. To harmonize these conflicting perspective, Courts have developed certain
exceptions to the warrant requirement in order to authorize warrantless searches and seizures
with the end of striking out a balance between the need to safeguard the rights of citizens and
the need to avoid emasculating the powers of the state to maintain a well-ordered society.
Although embedded within the rule on search warrants is the general rule that searches
and seizures shall be valid
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only when carried out by virtue of a search warrant, this rule
however, is subject to certain judicially formulated exceptions.
3. It has always been recognized that the rule requiring a warrant is not however, absolute. There are wellrecognized instances where searches and seizures are allowed
even without a valid warrant under any of the following
circumstances (Dimacuha v. People, 516 SCRA 513; People
v. Nuevas, 516 SCRA 463; People v. Tuazon, 532 SRA 152;
Epie, Jr. v. Ulat-Marredo, 518 SCRA 641; Valeroso v. Court of
Appeals, G.R. No. 164815, September 3, 2009):
(a)
Warrantless search incidental to a lawful ar-
(b)
Seizure of evidence in "plain view." (Bar 2008)
rest;
The elements of the plain view exception are: a) a
prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit
of their official duties; b) the evidence was inadvertently
discovered by the police who have the right to be where
they are; c) the evidence must be immediately apparent;
and d) "plain view" justified mere seizure of evidence
without further search;
(c)
Search of a moving vehicle — Highly regulated
by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit
in public thoroughfares furnishes a highly reasonable
suspicion amounting to probable cause that the occupant
committed a criminal activity;
(d)
Consented warrantless search;
(e)
Customs search;
(f)
Stop and frisk or Terry searches (People v. Mo-
lina, 352 SCRA 174; Esquillo v. People, G.R. No. 182010,
August 25,2010). (Bar 1995)
(g) Exigent and emergency circumstances (People
v. Bohol, 560 SCRA 232, July 28, 2008; People v. Racho,
G.R. No. 186529, August 3,2010).
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(h)
Search of vessels and aircraft; [and]
(i)
Inspection of buildings and other premises for the enforcement of fire,
sanitary and building regulations. (Valeroso v. Court of Appeals, G.R. No.
164815, September 3,2009).
4. In the exceptional instances where a warrant is not necessary to effect a valid search or
seizure, what constitutes a reasonable or unreasonable search or seizure is purely a judicial
question, determinable from the uniqueness of the circumstances involved, including the
purpose of the search or seizure, the presence or absence of probable cause, the manner in
which the search and seizure was made, the place or thing searched, and the character of the
articles procured (Valeroso v. Court of Appeals, G.R. No. 164815, September 3,
2009; People v. Racho, G.R. No. 186529, August 3, 2010; Esquillo v. People,
G.R. No. 182010, August 25, 2010).
Search incident to a lawful arrest (Bar 2003)
1.
The "search-incident-to-a-lawful-arrest" exception is authorized by Sec. 13, Rule
126 of the Rules of Court which provides:
"Sec. 13. A person lawfully arrested may be searched for dangerous
weapons or anything which may have been used or constitute proof in the
commission of an offense without a search warrant."
2.
The application of the above rule presupposes that the person searched was
previously arrested lawfully. Hence, a person illegally arrested cannot be validly searched without
a warrant under this provision. For an arrest to be lawful, the arrest may either be by virtue of a
warrant lawfully procured or by virtue of a warrantless arrest authorized under Sec. 5 of Rule 113
of the Rules of Court and other applicable provisions such as Sec. 13 of the same rule.
3.
Recent Court pronouncements hold that in searches incident to a lawful arrest,
the arrest must precede the search; generally, the process cannot be reversed. Nevertheless, a
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search substantially contemporaneous with an arrest can precede the arrest if the police have
probable cause to make the arrest at the outset of the search. Thus, we have to determine first
whether the police officers had probable cause to arrest appellant. If what prompted the police
to apprehend the accused, even without a warrant, was the tip given by the informant that
appellant would arrive carrying shabu, this circumstance gives rise to another question of
whether that information, by itself, is sufficient probable cause to effect a valid warrantless arrest.
The long standing rule in this jurisdiction is that "reliable information" alone is not sufficient to
justify a warrantless arrest. The rule requires, in addition, that the accused perform some overt
act that would indicate that he has committed, is actually committing, or is attempting to commit
an offense. There is no cogent reason to depart from this well-established doctrine (People v.
Racho, G.R. No. 186529, August 3,2010).
Parameters of a search incident to a lawful arrest; immediate possession
and control rule
1.
Sec. 13 of Rule 126 specifically enumerates the allowable scope of a search
incident to a lawful arrest. The provision limits the search to the following:
(a)
For dangerous weapons;
(b)
For anything which may have been used in the commission of an offense;
(c)
For anything which constitute proof in the commission of an offense.
or
2.
Is the search confined to the search of the person lawfully arrested? How about
the search of the premises where he was arrested? The phraseology of Sec. 13 of Rule 126, at first
glance, suggests that it is only the person lawfully arrested who is to be searched. The provision
partly reads: "... A person lawfully arrested may be searched .
3.
The Court has however, ruled on several occasions that: " x x x When an arrest is
made, it is reasonable for the
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arresting officer to search the person arrested in order to remove any weapon that the latter
might use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be
endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting
officer to search for and seize any evidence on the arrestee's person in order to prevent its
concealment or destruction. Moreover, in lawful arrests, it becomes both the duty and the right
of the arresting officer to conduct a warrantless search not only on the person of the suspect but
also within the permissible area within the latter'8 reach, x x x a valid arrest allows the
seizure of evidence or dangerous weapons either on the person of the one arrested or within
the area of his immediate control. The phrase "within the area of his immediate control"
means the area from within which he might gain possession of a weapon or destructible
evidence. A gun on a table or in the drawer in front of the person arrested can be as dangerous to
the arresting officer as one concealed in the clothing of the person arrested x x x " (People v.
Leangsiri, 252 SCRA 213; People v. Cubcubin, Jr., 360 SCRA 690; People v.
Estella, 395 SCRA 553; Valeroso v. Court of Appeals, G.R. No. 164815,
September 3,2009; emphasis supplied).
Thus, when the person arrested was brought out of the room with his hands tied, a
cabinet which is locked could no longer be considered as part of "an area within his immediate
control" because there was no way for him to take any weapon or to destroy any evidence that
could be used against him (Valeroso v. Court of Appeals, G.R. No. 164815,
September 3, 2009).
4. A search and a seizure incident to a lawful arrest is not limited to things related to the
reason for the arrest. If for instance, a person is legally arrested for illegal possession of drugs, the
search is not confined to things used in the commission of the crime. To protect the arresting
officer, the search extends to weapons like a gun or a knife with no actual connection to the
crime of illegal possession of the drugs. If in the course of the search, evidence is found
constituting proof of another offense, like an illegally possessed weapon, *it is
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submitted that the phraseology of the rule does not prevent the seizure of the evidence.
The provisions of Sec. 13 of Rule 126 are consistent with the ruling in Adams v.
Williams, 47 U.S. 143, that a person arrested may be searched for weapons and all unlawful
articles in his person and within his immediate control may be seized.
American decisions categorically declare that an arresting officer may seize evidence of
crimes other than the crime which was the reason for the arrest. In one case, the accused was
arrested pursuant to a warrant for possession and transportation of explosives but during the
search there was discovered an item the possession of which is illegal. The discovery of objects
unrelated to the arrest does not render the seizure invalid (United States v. Simpson, 453
F.2d 102810th Cir. 1972).
5. Sec. 13 of Rule 126 allows the warrantless search of the "person lawfully arrested" as an
incident to a lawful arrest in a manner similar to American rulings allowing a full search of the
body of the person. The cases of United States v. Robinson (414 U.S. 218, 94 S. Ct.
467, 38 L.Ed.2d 427 1973) and Gustafson v. Florida, (414 U.S. 260, 94
S.Ct.488,38 L.Ed.2d 456 1973), allowed the search of the cigarette case of a person
arrested for a traffic violation. Illegal drugs were discovered in both instances. A full search means
searching any property associated with the arrestee's body like clothing, jewelry, watches and
others attached to the person in a permanent or semi-permanent capacity. The search includes
inspecting the clothing of the person arrested for bloodstains, fingerprints or even serial numbers.
Others cases have similarly held that the right without a search warrant to
contemporaneously search persons lawfully arrested and to search the place where the arrest is
made to find and seize things connected with the crime as its fruits or by the means it was
committed, as well as weapons and other things to escape from custody is not to be doubted
(Agnello v. United States, 269 U.S. 20 making reference to Carroll v. United
States, 267 U.S. 132 and Weeks v. United States,
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232 U.S. 383, 392). But while the U.S. Supreme Court had broadened the search from the
"person" to the "place," such place should be one where the arrest was made. The house for
instance, where the arrest was made may be searched when such searches and seizures
naturally appertain to and attend such arrests. Thus, in Marron v. United States, 275
U.S. 192, the Court ruled that because the officers had made a valid search and arrest in the
premises, they had a right without a warrant to contemporaneously search the place for
evidence of the criminal enterprise. In Marron, the Court suggested that the search should be
confined to the offender's immediate possession and control, a concept made clearer in
Chimel v. California, 395 U.S. 752.
But the right does not extend to other places such as a house several blocks away from
the place where an arrest was made. In this case, the search would no longer be incident to a
lawful arrest (Agnello v. United States, 269 U.S. 20, 30 citing Silverthome
Lumber Co. v. United States, 251 U.S. 385, 391; People v. Conway, 225 Mic.
151 and Gamble v. Keyes, 35 S.D. 645, 650).
6. In Chimel v. California, 395 U.S. 752, the U.S. Supreme Court discussed the
extent of a search incident to a lawful arrest. In this case, the police officers, armed with an arrest
warrant but not a search warrant, were admitted to petitioner's home by his wife, where they
awaited petitioner's arrival. When he entered, he was served with the warrant. Although he
denied the officers' request to "look around," they conducted a search of the entire house "on
the basis of the lawful arrest." The officers looked through the entire house including the attic,
the garage and a small workshop. At petitioner's trial on burglary charges, items taken from his
home were admitted over the objection that they had been unconstitutionally seized. His
conviction was affirmed by the California appellate courts, which held, despite their acceptance
of petitioner's contention that the arrest warrant was invalid, that, since the arresting officers had
procured the warrant "in good faith," and since, in any event, they had sufficient information to
constitute probable cause for the
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arrest, the arrest was lawful. The courts also held that the search was justified as incident to a
valid arrest.
The U.S. Supreme Court found the search of the entire house unreasonable. It
categorically ruled in Chimel that assuming the arrest was valid, the warrantless search of
petitioner's house cannot be constitutionally justified as an incident to that arrest. An arresting
officer may search the arrestee's person to discover and remove weapons and to seize evidence
to prevent its concealment or destruction, and may search the area within the immediate
control of the person arrested, meaning the area from which he might gain possession of a
weapon or destructible evidence. For the routine search of rooms other than that in which an
arrest occurs, or for searching desk drawers or other closed or concealed areas in that room itself,
absent well recognized exceptions, a search warrant is required. A reasonable distinction is to be
made between a search of the person arrested and the area within his reach and immediate
control on one hand and more extensive searches in other areas on the other.
The ruling in Chimel clarified previous cases (like United States v. Rabinowitz,
339 US. 56) which made vague references to the search of areas considered to be in the
"possession" and "control" of the person arrested allowing searches of places not necessarily
within the actual physical control of a person but within his constructive control and giving free
reign to law enforcers in determining what to be searched. Chimel limited the search to the
arrestee's person and "within his immediate control."
Thus, following
Chimel, the arresting officers validly seized two revolvers within the
reach of the person arrested for being involved in an armed robbery (People v. Spencer, 99
Cal.Rptr 681 Col. App. 1972).
7. The Chimel tradition found expression for instance, in the Philippine case of People v.
Leangsiri (252 SCRA 213). Here Leangsiri was arrested at the NAIA for bringing heroin into
the country. Later, the persons involved in the smuggling of heroin were arrested in the hotel
room of Leangsiri in an
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entrapment operation. Questioning of the persons arrested disclosed that one of them was
occupying a room in the same hotel where Leangsiri was billeted. Without a search warrant, the
other room was searched and incriminating evidence was seized. Clearly said the Court, citing
Chimel, the search of the latter room was illegal and the evidence obtained therein is
inadmissible, the place searched being not within the immediate control of the person arrested.
8. In a leading Philippine case, Nolasco v. Patio, 139 SCRA 152, the accused who
were at large for rebellion and subversion, were arrested by constabulary officers at the
intersection of two streets in Quezon City at 11:30 A.M. On the same day at 12:00 noon, another
team of officers searched the house of one of the accused under a warrant procured earlier in the
day.
After charges were filed against one of the accused for illegal possession of subversive
documents, a motion to suppress the evidence obtained from the search of the house was filed.
The motion was anchored on the alleged void character of the search warrant for its failure to
particularly describe the things to be seized and for lack of searching questions propounded to
the applicant's witnesses. The Supreme Court held the warrant void in a later proceeding but did
not order the return of the items confiscated because the search of the house could have
accordingly been validly effected even without a warrant. Accordingly, considering that the
accused has been charged with rebellion, which is a crime against public order, the warrant for
her arrest not having been served for a considerable period of time, and the search having been
made just within half an hour after her arrest, "we are of the opinion" said the Court, that the
search . . . did not need a search warrant: this, for possible effective results in the interest of public
order." What must be considered according to the Court is the balancing of the individual's right
to privacy and the public's interest in the prevention of crime and the apprehension of criminals.
To the majority pronouncement which justified a warrantless search as an incident to a
lawful arrest, a dissenting
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opinion was interposed by Justice Teehankee, calling the majority decision "patently against the
constitutional proscription and settled law and jurisprudence." While the Rules of Court allows a
warrantless search of a person who is lawfully arrested, the rule, in the opinion of Justice
Teehankee, is limited to his person at the time of and incident to his arrest and to dangerous
weapons or anything which may be used as proof of the commission of the offense. "Such
warrantless search obviously cannot be made in a place other than the place of arrest...To hold
that her dwelling could be searched without a warrant is to sanction an untenable violation, if not
nullification, of the cited basic constitutional rights against unreasonable searches and seizures."
Justice Cuevas and Justice Abad Santos likewise lodged strong dissents. Justice Cuevas,
with whom Justice Teehankee concurred, on his part opined that the lawful arrest justifying the
validity of the warrantless search must be limited to and circumscribed by the subject, time
and place of the arrest. "As to subject, the warrantless search is sanctioned only with respect
to the person of the suspect, and things that may be seized from him are limited to "dangerous
weapons" or "anything which may be used as proof for the commission of the offense. . .With
respect to the time and place of the warrantless search.. .it must be contemporaneous with
the lawful arrest. ...to be valid it must have been conducted at about the time of the arrest or
immediately thereafter and only at the place where the suspect was arrested." Justice Cuevas
added: " . . . in addition to a lawful arrest, the search must be incident to the arrest
and the search must be made at the place of the arrest, otherwise it is not incident to the arrest"
(citations omitted).
Acting on a partial motion for reconsideration of the Court's decision, the Court
reconsidered and ordered the return of the items seized to the petitioner. In doing so, the Court
adopted the rationale in the dissent of Justice Teehankee CNolasco v. Pano, 147 SCRA
509).
9. Espano v. Court of Appeals, 288 SCRA 558, is one of the cases which drives
home the point on the concept of a
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search incident to a lawful arrest. Here, police officers arrested the accused in flagrante
delicto selling marijuana in a street corner. The search of his person yielded two cellophane
bags of marijuana. When asked if he had more, he admitted he had marijuana in his house. The
policemen then proceeded to the house of the accused and made a search which yielded ten
more cellophane tea bags of marijuana. The Court held that the articles seized from the accused
during his arrest were valid under the doctrine of a search made incidental to a lawful arrest. The
search may extend beyond the person of the person arrested to include the premises or
surroundings under his immediate control. The warrantless search however, of the house of the
accused which yielded marijuana became unlawful since the police officers were not armed with
a search warrant at the time. Moreover, the house of the accused was beyond his reach and
control.
10. Earlier in People v. Lua, 256 SCRA 539, a similar pronouncement was made by
the Court. The accused in Lua was arrested outside his house in flagrante delicto in a buybust operation. The Court found nothing objectionable in the body search of the person arrested
and the confiscation of the bags of marijuana and a paltik revolver in his person. However, the
subsequent search of the house of the arrestee was found invalid and the marijuana found
therein considered inadmissible. The search of the house according to the Court is not within the
contemplation of a "search incident to a lawful arrest." The house, at the time of his arrest was
not within the reach and control of the arrestee.
Searches of moving vehicles
1.
A warrantless search of a moving vehicle is justified on the ground that "it is not
practicable to secure a warrant because the vehicle can be quickly moved out of the locality or
jurisdiction in which the warrant must be sought" (People v. Tuazon, 532 SCRA 152,
September 3,2007).
2.
When a vehicle is flagged down and subjected to an extensive search, such a
warrantless search has been held
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to be valid as long as the officers conducting the search have reasonable or probable cause to
believe prior to the search that they would find the instrumentality or evidence pertaining to a
crime, in the vehicle to be searched (People v. Tuazon, 532 SCRA 152, September 3,
2007; See Carrol v. U.S., 267 U.S. 132).
3. "Nevertheless, the exception from securing a search warrant when it comes to moving
vehicles does not give the police authorities unbridled discretion to conduct a warrantless search
of an automobile. To do so would render the aforementioned constitutional stipulations inutile
and expose the citizenry to indiscriminate police distrust which could amount to outright
harassment. Surely, the policy consideration behind the exemption of search of moving vehicles
does not encompass such arbitrariness on the part of the police authorities. In recognition of the
possible abuse, jurisprudence dictates that at all times, it is required that probable cause exist in
order to justify the warantless search of a vehicle (Caballes v. Court of Appeals, 424
Phil. 224 as cited in People v. Tuazon, G.R. No. 175783, September 3,2007).
Check points
1. In the famous case of Valmonte v. De Villa, G.R. No. 83988, May 24,
1990, the Court declared that nowhere in its decision did the Court legalize all checkpoints, i.e.
at all times and under all circumstances and what it declared was that the checkpoints are not
illegal per se. The Court went on to hold that "under exceptional circumstances, as where the
survival of organized government is on the balance, or where the lives and safety of the people
are in grave peril, checkpoints may be allowed and installed by the government. Implicit in this
proposition is, that when the situation clears and such grave perils are removed, checkpoints will
have absolutely no reason to remain, x x x For as long as the vehicle is neither searched nor its
occupants subjected to a body search, and the inspection of the vehicle is limited to a visual
search, said routine checks cannot be regarded as violative of an individual's right against
unreasonable search."
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Citing American jurisprudence, the court added that routine checks,
when conducted in a fixed area, are even less intrusive and are permissible.
Routine checkpoint stops do not intrude similarly on the motoring public.
Also, automobiles, because of their mobility, may be searched without a
warrant upon facts not justifying a warrantless search of a residence or office
(Brinegar v. United States, 338 US 160, 93 L Ed 1879, 69 S Ct 1302 [1949];
Carroll v. United States, 267 US 132, 69 L Ed 543,45 S Ct 280,39 ALR 790
[1925]). The cases so holding have, however, always insisted that the officers
conducting the search have reasonable or probable cause to believe that they
will find the instrumentality of a crime or evidence pertaining to a crime before
they begin their warrantless search (Valmonte v. De Villa, G.R. No. 83988,
May 24,1990).
2. Searches conducted in checkpoints are valid for as long as they are
warranted by exigencies of public order and are conducted in a way least
intrusive to motorists. For as long as the vehicle is neither searched nor its
occupants subjected to a body search, and the inspection of a vehicle is limited
to a visual search, said routine checks cannot be regarded as violative of an
individual's right against unreasonable searches (People v. Vinecario, G.R. No.
141137, January 20, 2004,420SCRA280).
3. A more recent case affirming De Villa and Vinecario holds that not
all checkpoints are illegal. Those which are warranted by the exigencies of
public order and are conducted in a way least intrusive to motorists are
allowed. For, admittedly, routine checkpoints do intrude, to a certain extent,
on motorists' right to "free passage without interruption," but it cannot be
denied that, as a rule, it involves only a brief detention of travelers during which
the vehicle's occupants are required to answer a brief question or two. For as
long as the vehicle is neither searched nor its occupants subjected to a body
search, and the inspection of the vehicle is limited to a visual search, said
routine checks cannot be regarded as violative of an individual's right against
unreasonable search. In fact, these routine checks, when conducted in a fixed
area,
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are even less intrusive (Abenes v. Court of Appeals, G.R. No. 156320, February
14, 2007).
Buy bust operations; warrant not needed (Bar 2003)
1. A buy-bust operation is a form of entrapment legally employed by
peace officers as an effective way of apprehending drug dealers in the act of
committing an offense. This police operation has judicial sanction as long as it is
carried out with due respect to constitutional and legal safeguards (People v.
Ramos, G.R. No. 180508, September 4, 2009; People v. Tion, G.R. No.
172092, December 16, 2009; People v. Sembrano, G.R. No. 185848, August
16,2010) although there are no rigid or textbook methods on the right or
proper way of conducting such operations (People of the Philippines v. Joey
Tion y Cabadu, G.R. No. 172092, December 16,2009).
2. A search warrant or warrant of arrest is not needed in a buy-bust
operation because here the accused is caught in flagrante delicto (People v.
Araneta, G.R. No. 191064, October 20, 2010; People v. Feliciano, G.R. No.
190179, October 20, 2010). It catches the violator in flagrante delicto and the
police officers conducting the operation are not only authorized but
duty-bound to apprehend the violator and to search him for anything that may
have been part of or used in the commission of the crime (People v. Naquita,
G.R. No. 180511, July 28, 2008; People v. Agulay, G.R. No. 181747,
September 26, 2008; People v. Guiara, 600 SCRA 310; People v. Macatingag,
G.R. No. 181037, January 19,2009).
Similar pronouncements have been made in other cases. Hence, it was
ruled that an arrest made after an entrapment operation does not require a
warrant. Such warrantless arrest is considered reasonable and valid under Sec.
5(a), Rule 113 of the Rules of Court (People v. Bohol, G.R. No. 171729, July 28,
2008, 560 SCRA 232). When an arrest is made during an entrapment
operation, it is not required that a warrant be secured in line with the
provisions of Sec. 5(a), Rule 113 of the Revised Rules of Court allowing
warrantless arrests. Under the said rule, a peace officer or a private person
may, without
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a warrant, arrest a person when, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an offense
(People v. Michael Sembrano y Castro, G.R. No. 185848, August 16,2010;
People v. Araneta, G.R. No. 191064, October 20, 2010). The accused is caught
in the act and must be apprehended on the spot. (People of the Philippines v.
Elizabeth Marcelino y Reyes, G.R. No. 189278, July 26,2010).
3. In one case where the accused assailed the validity of a buy-bust
operations, it was ruled that from the very nature of a buy-bust operation, the
absence of a warrant does not make the arrest illegal. The illegal drug seized is
not the "fruit of the poisonous tree" as the defense alleges. The seizure made
by the buy-bust team falls under a search incidental to a lawful arrest under
Sec. 13, Rule 126 of the Rules of Court. Since the buy-bust operation was
established as legitimate, it follows that the search was also valid, and a
warrant was likewise not needed to conduct it (People of the Philippines v.
Elizabeth Marcelino y Reyes, G.R. No. 189278, July 26,2010).
Entrapment and instigation
1.
Entrapment is the employment of such ways and means for the
purpose of trapping or capturing a lawbreaker. On the other hand, instigation
is the means by which the accused is lured into the commission of the offense
charged in order to prosecute him. One form of entrapment is the buy-bust
operation. It is legal and has been proved to be an effective method of
apprehending drug peddlers, provided due regard to constitutional and legal
safeguards is undertaken (People of the Philippines v. Victorio Pagkalinawan,
G.R. No. 184805, March 3, 2010; People v. Dansico, G.R. No. 178060,
February 23,2011).
2.
Instigation means luring the accused into a crime that he,
otherwise, had no intention to commit, in order to prosecute him. On the
other hand, entrapment is the employment of ways and means in order to
trap or capture a lawbreaker. Instigation presupposes that the criminal intent
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to commit an offense originated from the inducer and not the accused who
had no intention to commit the crime and would not have committed it were it
not for the initiatives by the inducer. In entrapment, the criminal intent or
design to commit the offense charged originates in the mind of the accused;
the law enforcement officials merely facilitate the apprehension of the criminal
by employing ruses and schemes. In instigation, the law enforcers act as active
co-principals. Instigation leads to the acquittal of the accused, while
entrapment does not bar prosecution and conviction (People v. Dansico, G.R.
No. 178060, February 23, 2009; Suggested related readings: People v.
Naelga, G.R. No. 171018, September 11, 2009; People v. Lazaro, G.R. No.
186418, October 16, 2009). In the Philippines, entrapment is not a defense
available to the accused. It is instigation that is available as a defense and is an
absolutory cause (People v. Doria, 301 SCRA 668, 694).
Applicable tests in a buy-bust operation; adoption of the 'objective test'
1. There is no rigid or textbook method in conducting a buy-bust
operation (People v. Tion, G.R. No. 172092, December 16, 2009). However, in
determining the occurrence of entrapment, two tests have been developed:
the subjective test and the objective test (22 C.J.S. CRIMLAW § 77).
2. Under the "subjective" view of entrapment, the focus is on the
intent or predisposition of the accused to commit a crime. Under the
"objective" view, on the other hand, the primary focus is on the particular
conduct of law enforcement officials or their agents and the accused's
predisposition becomes irrelevant (See People v. Smith, 31 Cal. 4th 1207, 7
Cal. Rptr. 3d 559, 80 P.3d 662 [2003]; State v. Vallejos, 1997- NMSC-040, 123
N.M. 739, 945 P.2d 957 [1997]; Elders v. State, 321 Ark. 60, 900 S.W.2d 170
[1995]; State v. Babers, 514 N.W.2d 79 [Iowa 1994]; State v. Nehring, 509
N.W.2d 42 [N.D. 1993]; State v. Nakamura, 65 Haw. 74, 648 P.2d 183 [1982];
State v. Little, 121 N.H. 765, 435 A.2d 517 [1981]; State v. Berger, 285
N.W.2d 533 [N.D. 1979]; People v. Barraza, 23 Cal. 3d 675, 153 Cal. Rptr.
459, 591 P.2d 947
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[1979]). The government agent's act is evaluated in the light of the standard of
conduct exercised by reasonable persons generally and whether such conduct
falls below the acceptable standard for the fair and honorable administration
of justice (Keaton v. State, 253 Ga. 70, 316 S.E.2d 452 [1984]; Bruce v. State,
612 P.2d 1012 [Alaska 1980]).
3.
It appears that Philippine courts have leaned towards the
adoption of the "objective" test in upholding the validity of a buy-bust
operation. In People v. Doria, 301 SCRA 668, the Court stressed that, in
applying the "objective" test, the details of the purported transaction during
the buy-bust operation must be clearly and adequately shown, i.e., the initial
contact between the poseur-buyer and the pusher, the offer to purchase, and
the promise or payment of the consideration until the consummation of the
sale by the delivery of the illegal drug subject of the sale. It is further
emphasized that the "manner by which the initial contact was made, whether
or not through an informant, the offer to purchase the drug, the payment of
the 'buy-bust' money, and the delivery of the illegal drug, whether to the
informant alone or the police officer, must be subject of strict scrutiny by courts
to insure that law-abiding citizens are not unlawfully induced to commit an
offense" (People v. Lim, G.R. No. 187503, September 11, 2009; People v.
Cortez, G.R. No. 183819, July 23,2009).
4.
The "objective" test in buy-bust operations demands that the
details of the purported transaction must be clearly and adequately shown.
This must start from the initial contact between the poseur-buyer and the
pusher, the offer to purchase, the promise or payment of the consideration
until the consummation of the sale by the delivery of the illegal drug subject of
the sale. The manner by which the initial contact was made, whether or not
through an informant, the offer to purchase the drug, the payment of the
"buy-bust" money, and the delivery of the illegal drug, whether to the
informant alone or the police officer, must be the subject of strict scrutiny by
courts to insure that law-abiding citizens are not unlawfully induced to commit
an offense. Criminals must be caught but not at all cost. At the same time,
however, examining the
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conduct of the police should not disable courts into ignoring the accused's
predisposition to commit the crime. If there is overwhelming evidence of
habitual delinquency, recidivism or plain criminal proclivity, then this must also
be considered. Courts should look at all factors to determine the predisposition
of an accused to commit an offense in so far as they are relevant to determine
the validity of the defense of inducement (People v. Araneta, G.R. No. 191064,
October 20, 2010; People of the Philippines v. Victorio Pagkalinawan, G.R.
No. 184805, March 3,2010).
Effect of absence of prior surveillance before a buy-bust operation
1.
Owing to the special circumstances surrounding the drug trade, a
buy-bust operation can be carried out after a long period of planning (People of
the Philippines v. SP03 Sangki Ara y Mirasol, et al., G.R. No. 185011,
December 23,2009) but no rule requires a prior surveillance of the suspected
offender before conducting a buy-bust operation (People v. Cruz, G.R. No.
185381, December 16,2009).
In People v. Concepcion, G.R. No. 178876, June 27, 2008, the Court
explained that the absence of a prior surveillance or test buy does not affect
the legality of the buy-bust operation. There is no textbook method of
conducting buy-bust operations. The Court has left to the discretion of police
authorities the selection of effective means to apprehend drug dealers. A prior
surveillance, much less a lengthy one, is not necessary especially where the
police operatives are accompanied by their informant during the entrapment.
Flexibility is a trait of good police work. Also, the failure of the operatives to
record the boodle money will not render the buy-bust operation illegal. The
recording of marked money used in a buy-bust operation is not one of the
elements for the prosecution of sale of illegal drugs. The recording or
non-recording thereof in an official record will not necessarily lead to an
acquittal as long as the sale of the prohibited drug is adequately proven.
2.
Quinicot v. People, G.R. No 179700, June 22, 2009, also declares
that a prior surveillance, much less a lengthy
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one, is not necessary, especially where the police operatives are accompanied
by their informant during the entrapment. Flexibility is a trait of good police
work and that when time is of the essence, the police may dispense with the
need for prior surveillance (See also People of the Philippines v. Danilo Cruz y
Culala, G.R. No. 185381, December 16,2009).
Effect of absence of record in police blotter
In relation to prosecution for illicit drugs, the non- recording of the
buy-bust money in the police blotter will not affect the validity of the
operations. Neither law nor jurisprudence requires that the buy-bust money
be entered in the police blotter. The "non-recording of the buy-bust operation
and buy-bust money in the police blotter is not essential, since they are not
elements in the illegal sale of dangerous drugs." The only elements necessary
to consummate the crime is proof that the illicit transaction took place,
coupled with the presentation in court of the dangerous drug seized as
evidence (People v. Hernandez, G.R. No. 184804, June 18,2009).
Plain view doctrine (Bar 2007; 2008)
1. A theoretical example could illustrate the principle particularly well.
For instance, a policeman flags down a car for a traffic violation. When the
officer approaches the car, he sees in the front seat of the car a sub
machinegun and two hand grenades, items not normally issued to civilians.
After a few inquiries and having determined the absence of a license for the
items, the officer now has a reasonable ground to seize the object without a
warrant.
Also, assume that an officer goes to a residence to execute a warrant to
search a house for particularly described stolen antique images. As the officers
look around in the living room of the house, they see on a table, plastic sachets
containing crystalline substances, which based on their training and experience
are illegal drugs. Since the illegal" drugs are "in plain view," seizing them would
not be an invalid warrantless seizure.
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2. Under the plain view doctrine, objects falling in the plain view of an
officer who has a right to be in the position to have that view are subject to
seizure and may be presented as evidence. The plain view doctrine applies
when the following requisites concur: (1) the law enforcement officer in search
of the evidence has a prior justification for an intrusion or is in a position from
which he can view a particular area; (2) the discovery of the evidence in plain
view is inadvertent; and (3) it is immediately apparent to the officer that the
item he observes may be evidence of a crime, contraband or otherwise subject
to seizure (Judge Felimon Abelita, III v. P/Supt. German Doria and SP03 Cesar
Ramirez, G.R. No. 170672, August 14, 2009; Zalameda v. People, G.R. No.
183656, September 4, 2009).
Stated in another way, the plain view doctrine permits an officer, while
lawfully engaged in an activity and lawfully present in a particular place, to seize
an apparently illicit object without first obtaining a warrant authorizing him to
do so. It is founded on a common sense rule that when a police officer has seen
or observed an object in 'plain view,' to require the officer to secure a warrant
would be to engage in a needless exercise because failure to seize the object
once observed might involve danger to the public and to the officer. The rule
allows a law enforcement officer to make a seizure without obtaining a search
warrant if evidence of criminal activity or the product of a crime can be seen
without entry or search. As the U.S. Supreme Court said in Katz v. U.S., 389
U.S. 347 (1967), "whatever a person knowingly exposes to public view, even in
their own home or office, is not private." In the context of searches and
seizures, the principle provides that objects perceptible by an officer who is
rightfully in a position to observe them can be seized without a search warrant
and are admissible as evidence.
3. In one case, the police authorities were in the area because that
was where they caught up with petitioner after the chase. They saw the
firearms inside the vehicle when petitioner opened the door. Since a shooting
incident just took place and it was reported that petitioner was involved in the
incident, it was apparent to the police officers that the fire
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arms may be evidence of a crime. Hence, they were justified in seizing the
firearms (Abelita v. P/Supt. German Doria and SP03 Cesar Ramirez, G.R. No.
170672, August 14,2009).
4. In another case, the police were investigating a reported homicide.
The police looked into the car of the accused and from the window they saw a
pillowcase, backseat and a briefcase, all covered with blood. The police secured
a warrant to search the car. In the course of enforcing the warrant, they saw
inside the car a blood-soaked sock and a floormat. They took the things. The
accused assailed the validity of the taking of the items as have been illegally
taken since they were not mentioned in the affidavit supporting the
application for the warrant. The Court ruled that the seizure was constitutional.
The items seized were in plain view found during a search supported by a
warrant (Cady v. Dombrowski, 413 U.S. 433 S. Ct. 2523, 37 L.Ed.2d 706
1973).
5. Foreign cases have frequently given as an example of the
applicability of the 'plain view* doctrine, a situation in which the police have a
warrant to search a given area for specified objects, and in the course of the
search come across some other article of incriminating character (Cf. Go-Bart
Importing Co. v. United States, 282 U.S. 344, 358 [51 S.Ct. 153,158, 75 L.Ed.
374 (1931)]; United States v. Lefkowitz, 285 U.S. 452, 465 [52 S.Ct. 420, 423,
76 L.Ed. 877 (1932)]; Steele v. United States, 267 U.S. 498 [45 S.Ct. 414, 69
L.Ed. 757 (1925)]; Stanley v. Georgia, 394 U.S. 557, 571 [89 S.Ct. 1243,
1251,22 L.Ed.2d 542 (1969)]).
6. The doctrine has been applied to a situation where the police
officers inadvertently come across evidence while in 'hot pursuit' of a fleeing
suspect (Warden v. Hayden, 387 U.S. 294,87 S.Ct. 1642,18 L.Ed.2d 782
(1967)]; cf. Hester v. United States, 265 U.S. 57 [44 S.Ct. 445, 68 L.Ed. 898
(1924)]).
The doctrine has also been applied when an incriminating object comes
into view during a search incident to a lawful arrest and thus, could be
searched without a warrant (Chimel v. California, 395 U.S. 752, 762-763 [89
S.Ct. 2034,2039-2040 (1969)]).
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7. The 'plain view' doctrine has been applied where a police officer is
not searching for evidence against the accused, but nonetheless inadvertently
comes across an incriminating object (Harris v. United States, 390 US. 234 [88
S.Ct. 992,19 L.Ed.2d 1067 (1968)]; Frazier v. Cupp, 394 U.S. 731 [89 S.Ct.
1420,22 L.Ed.2d 684 (1969)]; Ker v. California, 374 U.S. [23J 43 [83 S.Ct.
1623,1635,10 L.Ed.2d 726 (1963)].
Where the object seized was inside a closed package, the object itself is
not in plain view and therefore cannot be seized without a warrant. If the
package is such that an experienced observer could infer from its appearance
that it contains the prohibited article, then the article is deemed in plain view
(People v. Nuevas, 516 SCRA 463, February 22, 2007).
8. The fact that the evidence is in plain view is not alone sufficient to
justify a warrantless seizure. American courts which have extensively discussed
the principle have held that the seizure be based also on the "immediately
apparent" element. This means that the officer must have probable cause to
believe that the object is evidence of a crime. Probable cause exists when "the
facts and circumstances within the officer's knowledge and of which he had
reasonably trustworthy information are sufficient in themselves to warrant a
man of reasonable caution in the belief that the object is evidence of a crime
CBrinegar v. U.S. 338 U.S. 160,175-176 [U.S. Supreme Court 1949]). Not only
must the item be in plain view. Its incriminating character must also be
"immediately apparent" (Arizona v. Hicks, 480 U.S. 321).
This principle has also been followed in Philippine decisions (Abelita v.
Doria, G.R. No. 170672, August 14,2009).
9.
The principle is well illustrated in Coolidge v. New Hampshire, 403
U.S. 443,91 S.Ct. 2022,29L.Ed.2d 564, where the State endeavored to justify
the seizure of the automobiles in plain view and their subsequent search at the
police station. The cars were obviously in plain view, but whether or not they
were evidence of a crime remained uncertain until after the interiors were
swept and examined microscopically. The incriminating nature of the car was
not therefore immediately
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apparent. The Court hence, held that the police, in seizing two automobiles
parked in plain view on the defendant's driveway in the course of arresting the
defendant, violated the constitutional right of the accused and accordingly,
particles of gunpowder that had been subsequently found in vacuum
sweepings from one of the cars could not be introduced in evidence against
the defendant.
10. Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347, is
equally illustrative. Hicks fired a bullet into the floor of his apartment. The bullet
struck a person in the room apartment directly below. Responding police
officers entered the apartment of Hicks and though they did not find him, they
found three weapons and a stocking-cap mask.
An officer noticed two sets of expensive stereo equipment, which
seemed out of place inside the squalid, rundown and ill- appointed four-room
apartment and suspected that the stereo components were stolen. He
recorded their serial numbers. In the process,he had to move a turntable
which was in the way. That they were stolen and taken during an armed
robbery were later confirmed. Hicks was subsequently arrested.
The state trial court and the Arizona Court of Appeals granted the
motion to suppress all the evidence seized on the ground that the seizure was
unconstitutional. When the Arizona Supreme Court denied review, the United
States Supreme Court accepted the prosecutors' request for a hearing.
In Arizona v. Hicks, the Supreme Court first ruled that the warrantless
entry by the officers, under the exigent circumstances exception to the
warrant requirement, was valid. Next, the Court held that the mere recording
of serial numbers of appliances and equipment did not constitute a seizure
under the constitution, since it did not meaningfully interfere with
respondent's possessory interest in either the numbers recorded or the stereo
equipment. However, the moving of the equipment was a "search" separate
from the search that was the lawful objective of entering the apartment. That
the items were stolen were not immediately apparent and that there exists no
separate justification for moving the equipment.
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The 'inadvertence' requirement under the plain view doctrine
1. Horton v. California, 496 U.S. 128, one of the leading American
decisions on the plain view doctrine is enlightening. In this case, a California
police officer executed a search warrant only for the proceeds of the crime of
robbery. He did not find stolen property in the premises but in the course of his
search, he did find weapons in plain view which he seized. During the trial, the
accused moved to suppress the evidence as to the weapons on the ground
that the weapons were not discovered inadvertently but on purpose and their
search and seizure were not included in the warrant. The trial court refused and
the accused was convicted of robbery. The California Court of Appeals affirmed.
The U.S. Supreme Court held in the case that the constitution does not
require that the discovery of the evidence be inadvertent because this element
is not a necessary condition of a warrantless seizure of things in plain view even
if inadvertence have been mentioned as a characteristics in other legitimate
plain view seizures. Accordingly, Justice Stewart's analysis of the "plain-view"
doctrine in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29
L.Ed.2d 564, where he declared that there must be an element of inadvertence, did not command a majority, and a plurality of the Court has since
made clear that the discussion is "not a binding precedent" (Texas v. Brown,
460 U.S. 730, 737, 103 S.Ct. 1535,1541, 75 L.Ed.2d 502 [1983] [opinion
ofRehnquist, J.]). The suggestion that the inadvertence requirement is necessary to prevent the police from conducting general searches, or from
converting specific warrants into general warrants, is not persuasive because
that interest is already served by the requirements that no warrant issue unless
it "particularly describ[es] the place to be searched and the persons or things to
be seized" (Maryland v. Garrison, 480 U.S. 79,84,107 S.Ct. 1013,1016, 94
L.Ed.2d 72 [1987]; Steele v. United States No. 1, 267 U.S. 498, 503, 45 S.Ct.
414, 416, 69 L.Ed. 757).
2. The "inadvertence" requirement, like in Coolidge, appears
however, to be the consistent norm in Philippine juris
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prudence (United Laboratories v. Isip, 461 SCRA 574; Abenes v. Court of
Appeals, G.R. No. 156320, February 14,2007). The requirement of
inadvertence means that the officer must not have known in advance of the
location of the evidence and discovery is not anticipated (United Laboratories
v. Isip, 461 SCRA 574; Judge Felimon Abelita, III v. P/Supt. German Doria and
SP03 Cesar Ramirez, G.R. No. 170672, August 14, 2009).
Emphatically, it was ruled that the plain view doctrine does not apply
where the police officers did not just accidentally discover the evidence but
actually searched for it (Valeroso v. Court of Appeals, G.R. No. 164815,
September 3,2009).
Other cases
1. Abenes v. Court of Appeals, G.R. No. 156320, February 14, 2007,
illustrates the doctrine within the context of Philippine jurisprudence. Here, the
RTC found the accused guilty beyond reasonable doubt of illegal possession of
high powered firearms and ammunition under Presidential Decree No. 1866
(P.D. No. 1866) and under another information for violation of the election gun
ban. Accordingly, the prosecution convincingly established that the unlicensed
.45 caliber pistol, tucked into the right waist of the petitioner, was readily
visible, and, therefore, could be seized without a search warrant under the
"plain view" doctrine. The Court of Appeals affirmed the decision of the
Regional Trial Court because notwithstanding the absence of a search warrant,
the policemen may validly seize the firearm and the same is admissible in
evidence against the accused pursuant to the "plain view doctrine."
The petitioner raised before the Supreme Court the issue of violation of
his constitutional right against an unlawful search and seizure. The Court, in
finding against the petitioner declared that under the plain view doctrine,
objects falling in the "plain view" of an officer who has a right to be in the
position to have that view are subject to seizure and may be presented as
evidence.
The "plain view" doctrine, stressed the Court, applies when the following
requisites concur: (a) the law enforcement
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officer in search of the evidence has a prior justification for an intrusion or is in a
position from which he can view a particular area; (b) the discovery of the
evidence in plain view is inadvertent; and (c) it is immediately apparent to the
officer that the item he observes may be evidence of a crime, contraband or
otherwise subject to seizure. All the foregoing requirements have been
determined to be present in the instant case. The law enforcement officers
lawfully made an initial intrusion because of the enforcement of the gun ban
and were properly in a position from which they particularly viewed the area. In
the course of such lawful intrusion, the policemen came inadvertently across a
piece of evidence incriminating the petitioner where they saw the gun tucked
into his waist. The gun was in plain view and discovered inadvertently when the
petitioner alighted from the vehicle.
2. In a case, the police who had just tracked down the petitioner and
who were informed of the involvement of the petitioner in a shooting incident
which just happened, saw the firearms inside the said vehicle as he opened the
door of his car and got off the same. The court observed that the police
authorities were in the place because it was where they caught up with the
petitioner who sped up in his vehicle after initially giving his agreement to go to
the police headquarters to shed light on the shooting incident. They saw the
firearms when the petitioner opened the door of the car. Since a shooting just
took place, and it was reported that the petitioner was involved, it was
apparent to the authorities that the firearms may be evidence of the crime.
Hence, they were justified in seizing the firearms under the plain view doctrine
(Abelita, III v. Doria, G.R. No. 170762, August 14, 2009).
3. When a police officer sees a person placing a plastic sachet
containing white crystalline substance into her cigarette case, it was in his plain
view (Esquillo v. People, G.R. No. 182010, August 25,2010).
4. In another case, the arrest was legally made in flagrante delicto. In
the course of the arrest, the police, aside from seeing the arrestee throw away
a tooter, also
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saw various drug paraphernalia scattered on top of his bed. These
circumstances, according to the Court, were sufficient to justify the warrantless
search and seizure because objects falling in the 'plain view* of an officer who
has a right to be in the position to have that view are subject to seizure
(Zalameda v. People, G.R. No. 183656, September 4,2009).
5. In cases where the search is made pursuant to a duly issued
warrant, the Court allows the seizure of objects, articles or papers not even
described in the warrant when they are in the plain view of the officer. But
when not described in the warrant, such objects seized are not presumed to
be in plain view. "The State is required to adduce evidence, testimonial or
documentary, to prove the confluence of the essential requirements for the
doctrine to apply among which is that the officer must discover incriminating
evidence inadvertently9 (United Laboratories v. Isip, 461 SCRA 574).
6. That it must be immediately apparent to the officer that the items
observed may be an evidence of a crime is another important element of the
doctrine. This requirement means that the incriminating nature of the
evidence becomes apparent if the officer, at the moment of seizure had
probable cause to connect it to a crime without the benefit of an unlawful
search or seizure. To be immediately apparent, the rule does not require an
unduly high degree of certainty as to the incriminating character of the
evidence. "It requires merely that the seizure be presumptively reasonable
assuming that there is probable cause to associate the property with criminal
activity; that a nexus exists between a viewed object and criminal activity"
(United Laboratories v. Isip, 461 SCRA 574).
United Laboratories explains in unequivocal language that the plain
view doctrine is not an exception to the warrant requirement but merely
serves to supplement the prior justification — whether it be a warrant for
another object, hot pursuit, search as an incident to a lawful arrest or some
other legitimate reason for being present, unconnected with a search directed
against the accused. The Court significantly stressed that the plain view
doctrine cannot be made to extend to a
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general exploratory search from one object to another until something
incriminating at last emerges. The doctrine is a recognition however, of the fact
that when executing police officers come across immediately upon
incriminating evidence not covered by the warrant, they should not be
required to close their eyes to it, regardless whether it is evidence of the crime
they are investigating or evidence of some other crime because it would be
needless to require the police to obtain another warrant. Under the plain view
doctrine, there is no legitimate expectation of privacy and there is no search
within the meaning of the Constitution.
7. In one case, the Court gave no credence to the claim that the plain
view doctrine applies.
In 1996 the accused, Valeroso was charged with violation of Presidential
Decree No. 1866 for illegal possession of firearms and later was convicted by
the trial court. On appeal, the Court of Appeals affirmed the conviction. On
petition for review, the Supreme Court affirmed the decision of the Court of
Appeals. The subsequent motion for reconsideration was denied by the Court
with finality.
Undaunted, the accused implored the Court through a Letter-Appeal to
once more take a contemplative reflection and deliberation on the case,
focusing on his breached constitutional rights against unreasonable search and
seizure.
The Office of the Solicitor General (OSG) filed a Manifestation in which it
changed it previous position on the case and instead recommended the
acquittal of the accused. The OSG claimed that after a second look at the
evidence presented, the OSG considers the testimonies of the witnesses for the
defense more credible and concluded that the subject was obtained by the
police officers in violation of his constitutional right against illegal search and
seizure, and should thus be excluded from the evidence for the prosecution.
After considering anew arguments through the Letter- Appeal, together
with the OSG's position recommending his acquittal, and that substantial rights
must ultimately
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reign supreme over technicalities, the Court was swayed to reconsider.
The Court found that the accused was arrested by virtue of a warrant of
arrest allegedly for kidnapping with ransom. At that time, he was sleeping
inside the boarding house of his children. He was awakened by the arresting
officers who were heavily armed. They pulled him out of the room, placed him
beside the faucet outside the room and tied his hands and then put him under
the care of a police officer. The other police officers remained inside the room
and ransacked the locked cabinet where they found the subject firearm and
ammunition. With such discovery, the accused was charged with illegal
possession of firearm and ammunition.
From the foregoing narration of facts, the Court concluded that the
arresting officers served the warrant of arrest without any resistance from the
accused. They placed him immediately under their control by pulling him out
of the bed, and bringing him out of the room with his hands tied. To be sure,
the cabinet which was locked and forcibly opened could no longer be
considered as an "area within his immediate control" because there was no
way for him to take any weapon or to destroy any evidence that could be used
against him.
The arresting officers would have been justified in searching the person
of the accused as well as the tables or drawers in front of him, for any
concealed weapon that might be used against the former. But under the
circumstances obtaining, there was no comparable justification to search
through all the desk drawers and cabinets or the other closed or concealed
areas in that room itself.
The Court amplified:
"It is worthy to note that the purpose of the exception (warrantless search
as an incident to a lawful arrest) is to protect the arresting officer from being
harmed by the person arrested, who might be armed with a concealed weapon,
and to prevent the latter from destroying evidence within reach. The exception,
therefore, should not be strained beyond what is needed to serve its purpose. In >
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the case before us, search was made in the locked cabinet which cannot be said to
have been within Valeroso's immediate control. Thus, the search exceeded the
bounds of what may be considered as an incident to a lawful arrest.
Nor can the warrantless search in this case be justified under the "plain
view doctrine."
The "plain view doctrine" may not be used to launch unbridled searches
and indiscriminate seizures or to extend a general exploratory search made solely
to find evidence of defendant's guilt. The doctrine is usually applied where a police
officer is not searching for evidence against the accused, but nonetheless
inadvertently comes across an incriminating object.
x x x What the "plain view" cases have in common is that the police
officer in each of them had a prior justification for an intrusion in the course of
which he came inadvertently across a piece of evidence incriminating the accused.
The doctrine serves to supplement the prior justification — whether it be a
warrant for another object, hot pursuit, search incident to lawful arrest, or some
other legitimate reason for being present unconnected with a search directed
against the accused — and permits the warrantless seizure. Of course, the
extension of the original justification is legitimate only where it is immediately
apparent to the police that they have evidence before them; the "plain view"
doctrine may not be used to extend a general exploratory search from one object
to another until something incriminating at last emerges.
Indeed, the police officers were inside the boarding house of Valeroso's
children, because they were supposed to serve a warrant of arrest issued against
Valeroso. In other words, the police officers had a prior justification for the
intrusion. Consequently, any evidence that they would inadvertently discover may
be used against Valeroso. However, in this case, the police officers did not just
accidentally discover the subject firearm and ammunition; they actually searched
for evidence against Valeroso.
Clearly, the search made was illegal, a violation of Valeroso's right against
unreasonable search and seizure. Consequently, the evidence obtained in
violation of said
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/
right is inadmissible in evidence against him" (Valeroso
v. Court of Appeals, G.R. No. 164815, September 3, 2009).
Terry searches or stop and frisk; history of the doctrine (Bar 1995; 2003)
1. Suppose a police officer is on a routine patrol duty and he
observes two people outside a variety store. Both his experience and training
tell him that their acts are consistent with acts of people with criminal designs
although he has no concrete facts showing probable cause that a crime has
been committed or that it is actually being committed. He knows that mere
suspicion is not sufficient to make a valid arrest but his instincts honed by years
of experience in the streets tell him something untoward is imminent. May he
briefly stop the persons, ask them questions and engage in a protective search
for a concealed weapon short of a full scale arrest? The Supreme Court of the
United States addressed a similar situation in 1968 in the landmark case of
Terry v. Ohio, 392 U.S. 1.
2. In the middle of the afternoon of October 31, 1963, veteran Police
Officer Martin McFadden was in his usual beat in downtown Cleveland, a place
he had covered for 30 years as member of the Cleveland police force.
McFadden saw two unknown men who later were identified as Terry and
Chilton, and who by their acts appeared to him to be engaged in an elaborate
yet casual reconnaissance of a store. At one point, a third man, later on
identified as Katz, came to confer with the first two, then disappeared and
then rejoined the other two. Suspecting them to be armed, and fearing that
the three were preparing to rob the store, McFadden approached the men,
identified himself as a police officer and asked them to identify themselves.
When they simply mumbled an answer and did not get a clear and audible
response, he patted down the outer garment of Terry and felt a gun in his
pocket and removed the same. A gun was also recovered from Chilton. Terry
was subsequently convicted for carrying a concealed weapon. The Ohio Court
of Appeals affirmed the conviction, and the Ohio Supreme Court declined to
hear the case, claiming that no
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"substantial constitutional question" was involved. The U.S. Supreme Court
then took cognizance of the case. In the Supreme Court, Terry contended that
there existed no probable cause for his arrest, that since the "stop" was an
arrest and that the "frisk" was a search under America's Fourth Amendment
(Freedom from unreasonable searches and seizures), probable cause is
required. The argument was rejected by the Supreme Court.
Speaking for the Court, Chief Justice Warren declared:
"The crux of this case, however, is not the propriety of Officer
McFadden's taking steps to investigate petitioner's suspicious
behavior, but rather, whether there was justification for
McFadden's invasion of Terry's personal security by searching him
for weapons in the course of that investigation. We are now
concerned with more than the governmental interest in
investigating crime; in addition, there is the more immediate
interest of the police officer in taking steps to assure himself that
the person with whom he is dealing is not armed with a weapon
that could unexpectedly and fatally be used against him. Certainly
it would be unreasonable to require that police officers take
unnecessary risks in the performance of their duties * * *."
The Court held that the acts of Officer McFadden were acts which a
reasonably prudent man would have done in believing that Terry was armed
and that he presented a threat to the officer's safety while he was investigating
his suspicious behavior. The actions of Terry and Chilton were consistent with
McFadden's hypothesis that these men were contemplating a daylight robbery
which reasonably would have been carried out with a deadly weapon. Nothing
in their conduct from the time he first noticed them until the time he
confronted them and identified himself as a police officer gave him sufficient
reason to negate that hypothesis. Mumbling an unclear response to the
officer's distinct question did nothing to clear up the suspicion. The record,
observed the Court, evidences the tempered act of a policeman who in the
course
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of an investigation had to make a quick decision as to how to protect himself
and others from possible danger, and he took limited steps to do so.
The Court likewise noted that Officer McFadden's actions were not
invasive and overly intrusive. He patted down the outer clothing of Terry and
his two companions. He did not place his hands in their pockets or under the
outer surface of their garments until he had felt weapons, and then he merely
reached for and removed the guns. He never did invade Katz' person beyond
the outer surfaces of his clothes, since he discovered nothing in his pat down
which might have been a weapon. Officer McFadden confined his search
strictly to what was minimally necessary to learn whether the men were
armed and to disarm them once he discovered the weapons. He did not
conduct a general exploratory search for whatever evidence of criminal activity
he might find.
The Court concluded that the revolver seized from Terry was properly
admitted in evidence against him. At the time he seized petitioner and
searched him for weapons, Officer McFadden had reasonable grounds to
believe that petitioner was armed and dangerous, and it was necessary for the
protection of himself and others to take swift measures to discover the true
facts and neutralize the threat of harm if it materialized. The policeman
carefully restricted his search to what was appropriate to the discovery of the
particular items which he sought. The Court held that where a police officer
observes unusual conduct which leads him reasonably to conclude in the light
of his experience that criminal activity may be afoot and that the persons with
whom he is dealing may be armed and presently dangerous, where in the
course of investigating this behavior he identifies himself as a policeman and
makes reasonable inquiries, and where nothing in the initial stages of the
encounter serves to dispel his reasonable fear for his own or others' safety, he
is entitled for the protection of himself and others in the area to conduct a
carefully limited search of the outer clothing of such persons in an attempt to
discover weapons which might be used to assault him. Such a search is a
reasonable search and any
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weapons seized may properly be introduced in evidence against the person
from whom they were taken.
Justice Harlan who wrote a concurring opinion explained:
The facts of this case are illustrative of a proper stop and an incident frisk.
Officer McFadden had no probable cause to arrest Terry for anything, but he had
observed circumstances that would reasonably lead an experienced, prudent
policeman to suspect that Terry was about to engage in burglary or robbery. His
justifiable suspicion afforded a proper constitutional basis for accosting Terry,
restraining his liberty of movement briefly, and addressing questions to him, and
Officer McFadden did so * * *"
"I would affirm this conviction for what I believe to be the same reasons
the Court relies on. I would, however, make explicit what I think is implicit in
affirmance on the present facts. Officer McFadden's right to interrupt Terry's
freedom of movement and invade his privacy arose only because circumstances
warranted forcing an encounter with Terry in an effort to prevent or investigate a
crime. Once that forced encounter was justified, however, the officer's right to
take suitable measures for his own safely followed automatically."
Summary of the Terry doctrine
1. The Terry doctrine is of two parts: the "stop" and the "frisk." A valid
"stop" by an officer requires that he has a reasonable and articulable belief that
criminal activity has happened or is about to happen. The "frisk" made after the
"stop" must be done because of a reasonable belief that the person stopped is
in possession of a weapon that will pose a danger to the officer and others. The
"frisk" must be a mere pat down outside the person's outer garment and not
unreasonably intrusive.
2. The gist of the ruling in Terry considered as constitutionally
permissible a stop and frisk despite the lack of a probable cause to make a fUll
scale arrest. While conceding that the search was a search as defined by the
constitution, it did not agree with the accused that the constitutional pro
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/
hibition on unreasonable searches and seizures was violated when he was
stopped and frisked without a probable cause.
The test of the conduct of an officer under similar circumstances, was
not the existence of probable cause because no full arrest is made. The test
instead was reasonable belief (called a genuine reason in a Philippine decision)
Because of the important interest in protecting the safety of police officers, the
Court held that a law enforcement officer has the authority to stop someone
and do a quick surface search of their outer clothing for weapons. This is
allowed if the officer has a reasonable belief based on a genuine reason and in
the light of the officer's experience and the surrounding circumstances, that a
crime has either taken place or is about to take place and the person to be
stopped is armed and dangerous. This reasonable suspicion must be based on
"specific and articulable facts" and not merely upon the officer's bare suspicion
or hunch.Terry emphasized that a reasonable belief for making a stop may also
be followed by a frisk which is equally reasonable which means it should not
be broader than is necessary to find weapons in the person briefly stopped.
The ruling that probable cause is not required in a stop and frisk situation is
Terry's significant contribution to jurisprudence.
3. Terry v. Ohio, did not justify every "stop." Before an officer stops a
private citizen in the street, the act must be justified by concrete facts pointing
at the least towards a possible criminal activity, where no crime is still apparent
to the officer. Terry calls these concrete facts as the "specific and articulable
facts which, taken together with rational inferences from those facts,
reasonably warrant that intrusion." A mere deep suspicion by an experienced
officer that criminal activity could take place is not sufficient for the application
of the Terry doctrine. He must support his conclusion by particularizing the acts
that led to his conclusion.
4. In Esquillo v. People, G.R. No. 182010, August 25, 2010, the
police officers were on a surveillance operation as part of their law
enforcement efforts when POl Cruz saw petitioner placing a plastic sachet
containing white crystalline substance into her cigarette case. Given his training
as a law
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enforcement officer, it was instinctive on his part to be drawn to curiosity and
to approach her. That petitioner reacted by attempting to flee after he
introduced himself as a police officer and inquired about the contents of the
plastic sachet all the more pricked his curiosity
Citing previous jurisprudence, the Court in Esquillo elucidated on what
includes "stop-and-frisk" operation and how it is to be carried out. The court
declared that the operation is the act of a police officer to stop a citizen on the
street, interrogate him, and pat him for weapon(s) or contraband. The police
officer should properly introduce himself and make initial inquiries, approach
and restrain a person who manifests unusual and suspicious conduct, in order
to check the latter's outer clothing for possibly concealed weapons. The
apprehending police officer must have a genuine reason, in accordance with the
police officer's experience and the surrounding conditions, to warrant the belief
that the person to be held has weapons (or contraband) concealed about him
(Citing People v. Chua, G.R. No. 136066-67, February 4,2003).
5. A reading of numerous jurisprudence discloses that "the
"stop-and-frisk" principle serves a dual purpose: (1) the general interest of
effective crime prevention and detection; and (2) the safety of the police officer
to take steps to assure himself that the person with whom he deals is not
armed with a deadly weapon that could be used against him.
This principle of "stop-and-frisk" search was invoked by the Court in a
case where policemen chanced upon the accused who had reddish eyes,
walking in a swaying manner, and who appeared to be high on drugs. Thus, the
validity of the search as akin to a "stop-and-frisk" was upheld. The Court also
found justifiable reason to "stop-and-frisk" the accused after considering the
following circumstances: the drunken actuations of the accused and his
companions, the fact that his companions fled when they saw the policemen,
and the fact that the peace officers were precisely on an intelligence mission to
verify reports that armed persons w[h]ere roaming the vicinity.
"What is, therefore, essential is that a genuine reason must exist, in light
of the police officer's experience and
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/
surrounding conditions, to warrant the belief that the person who manifests
unusual suspicious conduct has weapons or contraband concealed about him.
Such a "stop-and-frisk" practice serves a dual purpose: (1) the general interest
of effective crime prevention and detection, which underlies the recognition
that a police officer may, under appropriate circumstances and in an
appropriate manner, approach a person for purposes of investigating possible
criminal behavior even without probable cause; and (2) the more pressing
interest of safety and self-preservation which permit the police officer to take
steps to assure himself that the person with whom he deals is not armed with
a deadly weapon that could unexpectedly and fatally be used against the
police officer" (Esquillo v. People, G.R. No. 182010, August 25, 2010) To
repeat: A stop- and-frisk situation is limited to the person's outer clothing, and
should be grounded upon a genuine reason, in light of the police officer's
experience and surrounding conditions, to warrant the belief that the person
detained has weapons concealed about him.
Terry search and a search incident to a lawful arrest
1. A Terry search or a "stop' and "frisk" is not to be confused with a
search incident to a lawful arrest. Although they result in a warrantless search,
they differ in terms of the requisite quantum of proof before they may be
validly effected and in their allowable scope (Malacat v. Court of Appeals, 283
SCRA 159; People v. Chua, 396 SCRA 657).
2. A Terry stop is not a full arrest. A Terry doctrine as originally
formulated, does not require a probable cause and the person is not under a
full scale arrest but under a mere brief, investigative "stop" followed by a
surface, non-intrusive pat down of one's outer garments to determine the
presence of weapons. A search incident to a lawful arrest presupposes the
existence of a probable cause for the arrest, where the person is taken under
the custody of the arresting officer. The search is of the person and the area
within his control. It is thus, more intrusive and is conducted not only for the
purpose of finding weapons but also for the purpose of searching for
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evidence, any fruit of a crime or of things which may provide the person
arrested with the means of escape.
3. A Terry stop and frisk has a limited scope compared to a full scale
arrest and search. The Terry doctrine therefore, is not judged by the more
stringent requirement of probable cause which concededly applies only to an
arrest and a search. What applies in a Terry stop and frisk is the reasonableness
of the act of the officer. This "reasonable standard" while not sufficient to
validate an arrest or a search, justifies a "terry stop and frisk."
As a general rule, a search and seizure must be carried through with
judicial warrant, otherwise, such search and seizure constitutes derogation of a
constitutional right (Epie, Jr. v. XJlat-Marredo, 518 SCRA 641, March
22,2007).
The Constitution does not provide a blanket prohibition against all
searches and seizures — rather, the fundamental protection accorded by the
search and seizure clause is that, between persons and the police, there must
stand the protective authority of a magistrate clothed with the power to issue
or refuse such search warrant. The responsibilities of the magistrate do not end
with the granting of the warrant, but extends to the custody of the articles
seized (Summerville General Merchandising Co. v. Court of Appeals, G.R. No
158767, June 26,2007).
Where the articles seized have already been found not to be the "subject
of the offense" and the purpose of presenting them as evidence is no longer
served, there is no justification for severely curtailing the rights of a person to
his property (Summerville General Merchandising Co. v. Court of Appeals,
G.R. No. 158767, June 26,2007).
Bond to ensure the return of the seized items
An order requiring the owner of seized property to file a bond to ensure
the return of the seized items should the Department of Justice find probable
cause against it has no
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basis in law (Sony Computer Entertainment, Inc. v. Bright Future
Technologies, Inc., 516 SCRA 62, February 15,2007).
Consented Searches
1. The consent to a warrantless search must be voluntary, that is, it
must be unequivocal, specific, and intelligently given, uncontaminated by any
duress or coercion. Consent to a search is not to be lightly inferred, but must be
shown by clear and convincing evidence. It is the State which has the burden of
proving, by clear and positive testimony, that the necessary consent was
obtained and that it was freely and voluntarily given (Valdez v. People, 538
SCRA 611, November 23,2007).
2. Jurisprudence requires that in case of consented searches or
waiver of the constitutional guarantee against obstrusive searches, it is
fundamental that to constitute a waiver, it must first appear that (1) the right
exists; (2) the person involved had knowledge, either actual or constructive, of
the existence of such right; and (3) the said person had an actual intention to
relinquish the right (People v. Nuevas, 516 SCRA 463, February 22,2007).
A peaceful submission to a search or seizure is not a consent or an
invitation thereto, but is merely a demonstration of regard for the supremacy
of the law (People v. Nuevas, 516 SCRA 463, February 22,2007).
Effect of an illegal search and seizure; fruit of the poisonous tree doctrine
(Bar 2005)
1. The effect of an illegal search and seizure is expressed in the
following constitutional provision:
"Sec. 3 (2). Any evidence obtained in violation of this
or the preceding section shall be inadmissible for any purpose in any proceeding."
2. A search warrant illegally obtained or secured or which is issued in
violation of the constitution or the rules may be quashed through the proper
motion as in a motion
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to quash the search warrant. Also, when evidence is illegally obtained, a motion
to suppress the evidence is in order.
3. The general rule is that all searches and seizures made without a
warrant are invalid. The illegality of a search and a seizure occurs not only from
the failure to obtain a warrant when required but also from the failure to
comply with the procedures for obtaining a warrant and in the execution of the
same. Such failure will result in the application of the exclusionary rule.
The exclusionary rule prevents, upon proper motion or objection, the
admission of evidence illegally obtained. Thus, the most important effect of an
illegal search and seizure is the exclusion of the evidence obtained from being
used against the person whose rights were violated by the search, the evidence
being the proverbial and jurisprudential "fruit of the poisonous tree " The
violation of an individual's rights also inevitably result into civil, criminal and
administrative charges against the officer responsible for the violation. (Bar
2005)
4. The prior rule embodied in Moncado v. People's Court, 80 Phil. 2,
held that the unconstitutionality of the searches and seizures does not affect
the admissibility of the evidence obtained because "the criminal should not be
allowed to go free because the constable has blundered." The
non-exclusionary rule in Moncado was anchored on the theory that the citizen
is protected by other provisions of the laws and has means of redress other
than the exclusion of evidence unlawfully obtained such as actions for damages
against the erring officers and the person who procured the warrant. This
theory however, was subsequently rejected in Stonehill v. Diokno (20 SCRA
383).
As Stonehill declared:
" . . . the non-inclusionary rule is contrary, not only to the letter, but
also, to the spirit of the constitutional injunction against unreasonable searches
and seizures.
X X X
"We hold, therefore, that the doctrine adopted in the Moncado case must
be, as it is hereby, abandoned..."
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Civil damages; criminal liability
1. The proceedings under Rule 126 of the Rules of Court do not
provide for the filing of counterclaims for damages against those who may
have improperly sought the issuance of the search warrant. However, these
aggrieved have the right to seek damages, if the circumstances warranted, by
separate civil action for the wrong inflicted on them by an improperly obtained
or enforced search warrant (Arthur Del Rosario, et al. v. Hellenor D. Doanto,
Jr., et al., G.R. No. 180595, March 5,2010).
2. There is civil liability based on the concept of an independent civil
action for violation of a person's right to be secure in his persons, house,
papers, and effects against unreasonable searches and seizures (Article 32[9],
Civil Code of the Philippines). This liability is separate and distinct from any
criminal liability that may arise from the Revised Penal Code like (a) violation of
domicile (Article 128, Revised Penal Code), (b) search warrant maliciously
obtained and abuse in the service of those legally obtained (Article 129,
Revised Penal Code), or possibly (c) searching domicile without witnesses
(Article 130, Revised Penal Code).
Authority of the Executive Judge and Vice Executive Judge re search
warrants in Manila and Quezon City
1. A.M. No. 99-20-09-SC dated January 25, 2000 authorizes the Executive
Judges of the RTC's of Manila and Quezon City to act on all applications for
search warrants involving heinous crimes, illegal gambling, dangerous drugs
and illegal possession of firearms on application filed by the Philippine National
Police (PNP), National Bureau of Investigation (NBI), Presidential
Anti-Organized Crime Task Force (PAOC-TF), and Reaction Against Crime Task
Force (REACT- TF) (Marimla v. People, G.R. No. 158467, October 16,2009).
The applications shall be personally endorsed by the Heads of said
agencies, for the search of places to be particularly described therein and the
seizure of properly or things as prescribed in the Rules of Court. The warrants
issued may
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be served in places outside the territorial jurisdiction of said courts (A.M. No.
99-20-09 SC, January 25,2000).
2. Although A.M. No. 99-20-09 SC provides a personal endorsement of
the application by the "Heads" of the agencies mentioned, it was held that
nothing in the rule prohibits such heads from delegating the ministerial duty of
endorsing the application for search warrants to their assistant heads (Marimla
v. People, G.R. No. 158467, October 16,2009).
-oOo-
CHAPTER VI
BAIL
(Rule 114)
Meaning, nature and purpose of bail (Bar 1998)
1.
Under the Rules of Court, bail is the security given
for the release of a person in custody of the law, furnished by
him or a bondsman, to guarantee his appearance before any
court as required under certain specified conditions (Sec. 1,
Rule 114, Rules of Court).
2.
The term bail under the Rules of Court distinguishes
it from the bondsman who furnishes the security given for the
provisional release of the person in custody of the law.
3.
The rule clearly specifies that the purpose of bail is
to guarantee the appearance of a person before any court when
so required (Sec. 1, Rule 114, Rules of Court). That the accused
shall appear before the proper court whenever required by the
court or by the Rules is also one of the conditions in all kinds
of bail (Sec. 2[b], Rule 114, Rules of Court).
A bail application does not only involve the right of the
accused to temporary liberty, but likewise the right of the
State to protect the people and the peace of the community
from dangerous elements (People v. Manallo, 400 SCRA 129).
4.
The right to bail is a constitutional right (Sec. 13,
Article III, 1987 Constitution of the Philippines). It is personal
in nature and is therefore, waivable (Paderanga v. Court of
Appeals, 247 SCRA 741; Go v. Bongolan, 311 SCRA 99).
5.
The right to bail springs from the presumption of
innocence accorded every accused upon whom should not be
inflicted incarceration at the outset since after the trial he
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maintained that the granting of bail would, among others, be consistent with Section 4 of Rule
114 of the Rules of Court which provides when bail is a matter of right.
On the other hand, the petitioner claims that there is no provision in the Philippine
Constitution granting the right to bail to a person who is the subject of an extradition request and
arrest warrant.
The Court agreed with the petitioner and advanced the following reasons:
(a)
The use of the word "conviction," in the constitutional provision on bail in
Section 13 of Art. Ill of the Constitution, as well as Section 4 of Rule 114 of the Rules of
Court, suggests that bail applies only when a person has been arrested and detained for
violation of Philippine criminal laws. It does not apply to extradition proceedings, because
extradition courts do not render judgments of conviction or acquittal.
(b)
The constitutional right to bail "flows from the presumption of innocence
in favor of every accused who should not be subjected to the loss of freedom as thereafter
he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt." It
follows, ruled the Court, "that the constitutional provision on bail will not apply to a case
like extradition, where the presumption of innocence is not at issue."
(c)
Extradition proceedings are not criminal in nature but sui generis, a class
in itself. Since it is not a criminal proceeding, it will not call into operation all the rights of an
accused under the Bill of Rights and does not involve a determination of guilt or
innocence.
The Court however, did not hold that bail never applies in extradition cases. It instead
explained that" x x x bail is not a matter of right in extradition cases. However, the judiciary has
the constitutional duty to curb grave abuse of discretion and tyranny, as well as the power to
promulgate rules to pro
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tect and enforce constitutional rights. Furthermore, we believe that the right to due process is
broad enough to include the grant of basic fairness to extraditees. Indeed, the right to due process
extends to the "life, liberty or property" of every person. It is "dynamic and resilient, adaptable
to every situation calling for its application."
Exception to the "no bail rule" in extradition proceedings
In establishing an exception to the "no bail rule," the Court in Government of the
United States of America v. Purganan, 389 SCRA 623, ratiocinated:
"Accordingly and to best serve the ends of justice, we believe and so hold that, after a
potential extraditee has been arrested or placed under the custody of the law, bail may be
applied for and granted as an exception, only upon a clear and convincing showing (1) that,
once granted bail, the applicant will not be a flight risk or a danger to the
community:; and (2) that there exist special, humanitarian and compelling
circumstances including, as a matter of reciprocity, those cited by the highest court in the
requesting state when it grants provisional liberty in extradition cases therein.
"Since this exception has no express or specific statutory basis, and since it is derived
essentially from general principles of justice and fairness, the applicant bears the burden of
proving the above two-tiered requirement with clarity, precision and emphatic forcefulness. The
Court realizes that extradition is basically an executive, not a judicial, responsibility arising from
the presidential power to conduct foreign relations. In its barest concept, it partakes of the nature
of police assistance amongst states, which is not normally a judicial prerogative. Hence, any
intrusion by the courts into the exercise of this power should be characterized by caution, so that
the vital international and bilateral interests of our country will not be unreasonably impeded or
compromised. In short, while the Court is ever protective of "the sporting idea of fair play," it also
recognizes the limits of its own prerogatives and the need to fulfill international obligations."
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would be entitled to acquittal, unless his guilt be established beyond reasonable doubt
(Paderanga v. Court of Appeals, 247 SCRA 741).
6.
Since bail is the security for the release of a person under custody of the law (Sec.
1, Rule 114, Rules of Court), it is evident that it is not intended to cover the civil liability of
the accused in the same criminal case.
The money deposited as bail may however, be considered not only as bail. It may also be
applied to the payment of fines and costs while the excess if any shall be returned to the accused
or to whoever made the deposit (Sec. 14, Rule 114, Rules of Court).
7.
The question of granting bail to the accused is but an aspect of the criminal action,
preventing him or her from eluding punishment in the event of conviction. The grant of bail or its
denial has no impact on the civil liability of the accused that depends on conviction by final
judgment (Heirs of Sarah Marie Palma Burgos v. Court of Appeals and Johnny
Co y Yu, G.R. No. 169711, February 8,2010).
8.
When a person indicted for an offense is arrested, he is deemed placed under the
custody of the law. He is placed in actual restraint of liberty in jail so that he may be bound to
answer for the commission of the offense. He must be detained in jail during the pendency of the
case against him, unless he is authorized by the court to be released on bail or on recognizance.
All prisoners whether under preventive detention or serving final sentence cannot practice their
profession nor engage in any business or occupation, or hold office, elective or appointive, while
in detention (People v. Honorable Maceda, 323 SCRA 45 cited in Trillanes IV v.
Pimentel, Sr., 556 SCRA 471).
9.
The presumption of innocence is not a reason for the detained accused to be
allowed to hold office or practice his profession. Such presumption of innocence does not carry
with it the full enjoyment of civil and political rights (Trillanes IV v. Pimentel, Sr., 556
SCRA 471, G.R. No. 179817, June 27, 2008).
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Constitutional basis of the right to bail
1.
"All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong,
shall, before conviction, be bailable by sufficient sureties, or
be released on recognizance as may be provided by law. The
right to bail shall not be impaired even when the privilege of
the writ of habeas corpus is suspended. Excessive bail shall
not be required" (Sec. 13, Article III, 1987 Constitution of the
Philippines).
2.
The Constitution lays down the following principles
on bail:
(a) All persons shall, before conviction, be bailable.
This is the general rule which makes the right to bail a
constitutional right. Excepted from this general rule are
those who are charged with offenses punishable by reclusion perpetua when evidence of guilt is strong. The person accused of such offense however, shall be entitled to
bail when evidence of guilt is not strong.
(b)
The suspension of the privilege of the writ of
habeas corpus does not impair the right to bail.
(c)
Excessive bail is not to be required.
3.
The Constitutional provision denying bail to those
charged with reclusion perpetua when evidence of guilt is
strong finds reiteration in the Rules of Court.
"No person charged with a capital offense, or an offense punishable by reclusion perpetua, or life imprisonment, shall be admitted to bail when evidence of guilt is
strong, regardless of the stage of the criminal prosecution" (Sec. 7, Rule 114, Rules of Court). The provision of
the Rules apply, for instance, to rape or even coup d'etat
cases since both are punishable by reclusion perpetua. No
distinction is made as to the political complexion of or the
moral turpitude involved in the crime charged (Trillanes
IV v. Pimentel, Sr., G.R. No. 179817, June 27,2008).
4.
The grant or denial of bail to a person charged with
an offense punishable by at least reclusion perpetua is made
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BAIL
(Rule 114)
332
dependent on whether or not the evidence of guilt is strong. (Bar 2002)
The Court has described this quantum of evidence by employing the terms "Proof
evident," "Evident proof and "Presumption great." The first two terms were held to mean clear,
strong evidence which leads a well-guarded dispassionate judgment to the conclusion that the
offense has been committed as charged, that the accused is the guilty agent, and that he will
probably be punished capitally if the law is administered. "Presumption great" exists when the
circumstances testified to are such that the inference of guilt naturally to be drawn therefrom is
strong, clear, and convincing to an unbiased judgment and excludes all reasonable probability of
any other conclusion. Even though there is a reasonable doubt as to the guilt of the accused, if on
an examination of the entire record the presumption is great that the accused is guilty of a capital
offense, bail should be refused.
The test is not whether the evidence establishes guilt beyond reasonable doubt but
rather whether it shows evident guilt or a great presumption of guilt. As such, the court is
ministerially bound to decide which circumstances and factors are present which would show
evident guilt or presumption of guilt (People v. Cabral, G.R. No. 131909, February
18, 1999). The word "strong" does not mean "proof beyond reasonable doubt" (Pareja v.
Gomez, 5 SCRA 830).
5.
The rule is very explicit as to when admission to bail is discretionary on the part of
the respondent Judge. In offenses punishable by reclusion perpetua or death, the accused
has no right to bail when the evidence of guilt is strong. Thus, if the accused had been sentenced
to reclusion perpetua, the bail should have been cancelled, instead of increasing it as
respondent Judge did. The act of the Judge in increasing the bail bond of the accused instead of
canceling it is not a mere deficiency in prudence, discretion and judgment on the part of the judge
but a patent disregard of well-known rules (Dip- atuan v. Mangotara, AM. No.
RTJ-09-2190, April 23,2010).
6.
Where the right to bail exists, it should not be rendered nugatory by requiring a
sum that is excessive, otherwise
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/
the right to bail becomes meaningless. Thus, in an old case where the amount required as bail
could not possibly exceed P50,000.00 for the information for murder and P25,000.00 for the
other information for frustrated murder and that the Department of Justice itself did
recommend the total sum of P40,000.00 for the two offenses, nothing can be clearer, therefore,
that fixing the amount of PI,195,200.00 as the bail that should be posted is clearly violative of the
constitutional provision (De la Camara v. Enage, 41 SCRA 1).
Bail in the military
The right to bail invoked has traditionally not been recognized and is not available in the
military, as an exception to the general rule embodied in the Bill of Rights. The right to a speedy
trial is given more emphasis in the military where the right to bail does not exist. The unique
structure of the military should be enough reason to exempt military men from the
constitutional coverage on the right to bail. The argument that denial from the military of the
right to bail would violate the equal protection clause is not acceptable. This guaranty requires
equal treatment only of persons or things similarly situated and does not apply where the subject
of the treatment is substantially different from others. The accused officers can complain if they
are denied bail and other members of the military are not. But they cannot say they have been
discriminated against because they are not allowed the same right that is extended to civilians
(Comendador v. Villa, G.R. No. 93177, August 2,1991).
Bail in extradition proceedings
1. In Government of the United States of America v. Purganan, 389
SCRA 623, one of the issues presented for resolution was whether or not a person facing
extradition is entitled to bail. The respondent maintained that this constitutional provision
secures the right to bail of all persons, including those sought to be extradited, the only
exception being a person who is charged with an offense punishable with reclusion
perpetua, when evidence of guilt is strong. He also
CHAPTER VI
BAIL
(Rule 114)
309
Purganan case re-examined
Five (5) years after, on April 19, 2007, in Government of Hongkong Special
Administrative Region v. Olalia, Jr., 521 SCRA 470, the Court ruled anew on the
issue of whether or not bail applies to extradition cases in a petition which assailed the order of
the RTC of Manila, Branch 8, granting bail to a person subject of extradition proceedings. The
Court in Hongkong v. Olalia, Jr., reexamined its own ruling earlier made in Purganan.
While admitting that the ruling in the previous case of U.S. Gov't, v. Purganan falls
squarely to the private respondent's case, the Court in Hongkong v. Olalia, Jr., viewed the
issue in the light of the modern trend in international law placing primacy on the worth of the
individual person and the sanctity of human rights.
Specifically, the court pointed out such trends, which it claims it "cannot ignore." x x x "(1)
the growing importance of the individual person in public international law who, in the 20th
century, has gradually attained global recognition; (2) the higher value now being given to human
rights in the international sphere; (3) the corresponding duty of countries to observe these
universal human rights in fulfilling their treaty obligations; and (4) the duty of th[e] Court to
balance the rights of the individual under our fundamental law, on one hand, and the law on
extradition, on the other."
The Philippines, added the Court, along with the other members of the family of nations,
is committed to uphold fundamental human rights as well as value the worth and dignity of every
person. The country has the responsibility of protecting and promoting the right of every person
to liberty and due process, ensuring that those detained or arrested can participate in the
proceedings before a court and to make available to every person under detention such remedies
which safeguard their fundamental right to liberty. These remedies include the right to be
admitted to bail.
In reexamining Purganan, the Court made the following observations:
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"First, that the exercise of the State's power to deprive an individual of his liberty
is not necessarily limited to criminal proceedings. Respondents in administrative
proceedings, such as deportation and quarantine, have likewise been detained. Second,
to limit bail to criminal proceedings would be to close our eyes to our jurisprudential
history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal
proceedings only. This Court has admitted to bail persons who are not involved in criminal
proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention
during the pendency of administrative proceedings, taking into cognizance the obligation
of the Philippines under international conventions to uphold human rights."
Noting that bail had in the past been granted in deportation proceedings, the Court
reasoned that if bail can be granted in deportation cases, it sees no justification why it should not
also be allowed in extradition cases. Likewise, considering that the Universal Declaration of
Human Rights applies to deportation cases, there is no reason why it cannot be invoked in
extradition cases. After all, both are administrative proceedings where the innocence or guilt of
the person detained is not in issue.
Clearly, explained the High Court, "the right of a prospective extraditee to apply for bail in
this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines
concerning respect for the promotion, and protection of human rights. Under these treaties, the
presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to
liberty of every individual is not impaired."
Bail in deportation proceedings
1. "Aliens in deportation proceedings, as a rule, have no inherent right to bail" (Prentis
v. Manoogian, 16 F. 2d. 422; U.S. ex rel. Papis v. Tomlinson, 45 F. Supp. 447;
U.S. ex rel. Iaonnis v. Garfinkle 44 F. Supp. 518); and it has been held that a person
arrested or detained cannot be released on
CHAPTER VI
BAIL
(Rule 114)
311
bail, unless that right is granted expressly by law (Bengzon v. Ocampo, et al, 84 Phil
611). Section 37(9) (e) of the Philippine Immigration Act of 1940 (Com. Act No. 613, as
amended) provides that:
"Any alien under arrest in a deportation proceeding may be released
under bond or under such other conditions as may be imposed by the
Commissioner of Immigration."
"Note that this provision confers upon the Commissioner of Immigration the power and
discretion to grant bail in deportation proceedings, but does not grant to aliens the right to be
released on bail. The use of the word 'may* in said provision indicates that the grant of bail is
merely permissive and not mandatory or obligatory on the part of the Commissioner. The
exercise of the power is wholly discretionary (U.S. ex rel Zapp et al. v. District Director
of Immigration and Naturalization, 120 F. 2d. 762; Ex parte Perkov, 45 F.
Supp 864; Colyer v. Skeffington, 265 F. 17). The determination as to the propriety of
allowing an alien, subject to deportation under the Immigration Act, to be released temporarily
on bail, as well as the conditions thereof, falls within the exclusive jurisdiction of the
Commissioner, and not in the courts of justice. The reason for this is that the courts do not
administer immigration laws" (Go Tian Chai v. Commissioner of Immigration,
L-20645, September 22,1966).
2. In the case of In The Matter of the Petition for Habeas Corpus of
Harvey, et al. v. Defensor-Santiago, 162 SCRA 840, the denial by the respondent
Commissioner of Immigration of the petitioners' release on bail, was challenged by them. The
denial was found to be in order by the Court because in deportation proceedings, the right to bail
is not a matter of right but a matter of discretion on the part of the Commissioner of Immigration
and Deportation.
"Thus, Section 37(e) of the Philippine Immigration Act of 1940 provides that "any alien
under arrest in a deportation proceeding may be released under bond or under such other
conditions as may be imposed by the Commissioner of
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/
Immigration." The use of the word "may" in said provision
indicates that the grant of bail is merely permissive and not
mandatory on the part of the Commissioner. The exercise of the
power is wholly discretionary (Ong Hee Sang v. Commissioner
of Immigration, L-9700, February 28, 1962, 4 SCRA 442).
^Neither the Constitution nor Section 69 of the Revised
Administrative Code guarantees the right of aliens facing
deportation to provisional liberty on baiT (Tiu Chun Hai, et
al. v. Deportation Board, 104 Phil. 949 [1958]). As deportation
proceedings do not partake of the nature of a criminal action,
the constitutional guarantee to bail may not be invoked by
aliens in said proceedings (Ong Hee Sang v. Commissioner
of Immigration, supra; cited in Harvey v. Defensor-Santiago,
supra).
3. Since deportation proceedings do not constitute
criminal actions, and an order of deportation is not a punishment for a crime, the right to bail guaranteed by the Constitution may not be invoked by an alien in said proceedings (Ong
See Hang v. Commissioner of Immigration, No. L-9700, February 28,1962, 4 SCRA 442; citations omitted).
Who furnishes the bail
The bail may be furnished by the bail applicant himself
or by a bondsman (Sec. 1, Rule 114, Rules of Court).
Obligation and right of the bondsman; arrest without a warrant
1.
The bondsman shall surrender the accused to the
court for execution of the final judgment (Sec. 2[d], Rule 114).
For the purpose of surrendering the accused, the bondsman
may arrest him or, upon written authority endorsed on a
certified copy of the undertaking, cause him to be arrested by a
police officer or any other person of suitable age and discretion
(Sec. 23, Rule 114, Rules of Court).
2.
An accused released on bail may be re-arrested
without the necessity of a warrant if he attempts to depart
CHAPTER VI
BAIL
(Rule 114)
from the Philippines without permission of the court where
the case is pending (Sec. 23, Rule 114, Rules of Court).
3. The authority of the bondsman to arrest or cause
the arrest of the accused springs from the old principle that
once the obligation of bail is assumed, the bondsman or surety
becomes the jailer of the accused and is subrogated to all the
rights and means which the government possesses to make
his control over him effective (U.S. v. Addison and Gomez, 27
Phil. 562; People v. Gonzales, G.R. No. L-12056, January 24,
1959).
The applicant for bail must be in custody
1. If bail is the security for the release of a person
under custody, bail cannot be availed of by someone outside
the custody of the law. A freeman therefore, is not entitled to
bail.
2. The rule considers bail as applicable only to a person
in "custody of the law" and does not cover a person who is
in the enjoyment of his physical liberty. A fugitive therefore,
may not apply for bail unless he gives himself up first so he
may be placed under the custody of the law.
Thus, it would be incongruous, to file a petition for bail for
someone whose freedom has yet to be curtailed (Docena-Caspe
v. Bagtas, 400 SCRA 37; Maguddatu v. Court of Appeals, 326
SCRA 362).
3. Custody of the law is required before the court
can act on an application for bail, but is not required for the
adjudication of other reliefs sought by the defendant (Miranda
v. Tuliao, 486 SCRA 377). Hence, an application for admission
to bail by one who is at large is premature (Guillermo v. Reyes,
240 SCRA 154).
A person applying for admission to bail must be in the
custody of the law or otherwise deprived of his liberty. A person
who has not submitted himself to the jurisdiction of the court
has no right to invoke the processes of that court. The judge
therefore, should diligently ascertain the whereabouts of the
applicant and that he indeed has jurisdiction over the body of
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/
the accused before considering the application for bail (Pico v. Judge Combong, Jr., 215
SCRA 421; Miranda v. Tuliao, 486 SCRA 377).
As bail is intended to obtain or secure one's provisional liberty, the same cannot be
posted before custody over him is acquired by the judicial authorities, either by his lawful arrest
or voluntary surrender. It would be incongruous to grant bail to one who is free (Paderanga
v. Court of Appeals, 247 SCRA 241). The rationale behind this rule is to discourage and
prevent the practice where the accused could just send another in his stead to post his bail,
without recognizing the jurisdiction of the court by his personal appearance (Miranda v.
Tuliao, 486 SCRA 377).
4. A person is said to be in custody if he is arrested by virtue of a warrant or even
without a warrant pursuant to the Rules of Court or if he voluntarily submits himself to the
jurisdiction of the court as when he surrenders to the proper authorities (People v. Gako, Jr.,
348 SCRA 334).
A person is deemed to be under the custody of the law either when he has been arrested
or has surrendered himself to the jurisdiction of the court. The accused who is confined in a
hospital may be deemed to be in the custody of the law if he clearly communicates his
submission to the court while confined in a hospital (Paderanga v. Court of Appeals,
G.R. No. 115407, August 28, 1995; Defensor-Santiago v. Vazquez, 217 SCRA
633).
5. In Defensor-Santiago v. Vasquez, 217 SCRA 633, the petitioner who
was charged before the Sandiganbayan for violation of the Anti-Graft and Corrupt Practices Act,
filed through counsel what purported to be an "Urgent Ex-parte Motion for Acceptance of
Cash Bail Bond." Said petitioner was at the time confined in a hospital recuperating from serious
physical injuries which she sustained in a major vehicular mishap. Consequently, she expressly
sought leave "that she be considered as having placed herself under the jurisdiction of (the
Sandiganbayan) for purposes of the required trial and other proceedings." On the basis of said
ex-parte motion
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and the peculiar circumstances obtaining in that incident, the Sandiganbayan authorized
petitioner to post a cash bail bond for her provisional liberty without need of her personal
appearance in view of her physical incapacity and as a matter of humane consideration.
Bail to guarantee appearance of witnesses (Bar 1999)
1.
While the rule is that bail does not apply to a person who is not in custody of the
law, the bail required to secure the appearance of a material witness constitutes an exception to
the rule because he may he ordered to post bail even if he is not under detention. Bail
may thus be required to guarantee the appearance of a material witness other than that of the
accused (Sec. 14, Rule 119, Rules of Court).
"When the court is satisfied, upon proof or oath, that a material witness will not testify
when required, the court, may, upon motion of either party, order the witness to post bail in such
sum as may be deemed proper." If he refuses to post bail, the court shall commit him to prison
until he complies or is legally discharged after his testimony has been taken.
2.
Also, "If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court shall dismiss the original complaint or information upon
the filing of a new one charging the proper offense" as long as the accused is not placed in double
jeopardy. The court may require the witnesses to give bail for their
appearance at the trial (Sec. 14, Rule 110, Rules of Court).
Bail for those not yet charged
1. What entitles a person to bail is his being under the custody of the law. Hence, "any
person in custody who is not yet charged in court may apply for bail with any court in the
province, city, or municipality where he is held" (Sec. 17[c], Rule 114, Rules of Court).
A person deprived of his liberty by virtue of his arrest or voluntary surrender may apply
for bail as soon as he is deprived of his liberty, even before a complaint or information
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/
is filed against him
(Serapio v. Sandiganbayan, G.R. No. 148468, January
28,2003).
2.
The application for bail shall be made with any court in the province, city or
municipality where the person arrested is held.
In Ruiz v. Beldia, Jr., A.M. No. RTJ-02-1731, February 16, 2005, the
person arrested was detained in Camp Crame, Quezon City, pending the filing of formal charges
in court. Upon inquest, the arrestee executed a waiver of the provisions of Article 125 of the
Revised Penal Code in relation to Section 7, Rule 112 of the then applicable 1985 Rules of
Criminal Procedure. The Inquest Prosecutor thus set the hearing of the preliminary investigation.
However, a day before the preliminary investigation, the arrestee obtained an Order of Release
signed by the respondent judge who was then detailed as assisting judge of Branch 272, Regional
Trial Court of Marikina City.
The Certificate of Detention issued by the PNP-TMG- SOD shows that the arrestee was
detained at Camp Crame in Quezon City. The Court ruled that as correctly pointed out by the
Office of the Court Administrator, the application for bail should have been filed before the
proper Quezon City court and not in Marikina City.
3.
It is elementary that a municipal trial court judge has no authority to grant bail to
an accused arrested outside of his territorial jurisdiction (Barbero v. Dumlao, A.M. No.
MTJ-07-1682, June 19,2008).
Effects of failure to appear at the trial
1. The failure of the accused to appear at the trial without justification despite due
notice shall be deemed a waiver of his right to be present and the trial may proceed in
absentia (Sec. 2[c], Rule 114, Rules of Court).
2. The bondsman may arrest the accused for the purpose of surrendering the
accused. The bondsman may also cause the accused to be arrested by a police officer or any
other
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person of suitable age and discretion upon written authority endorsed on a certified copy of the
undertaking (Sec. 23, Rule 114, Rules of Court).
Court cannot require arraignment before the grant of bail
1. In Lavides v. Court of Appeals, the Court ruled on the issue of whether an
accused must first be arraigned before he may be granted bail. Lavides involved an accused
charged with violation of Section 5(b) Republic Act No. 7610 (The Special Protection of Children
Against Abuse, Exploitation and Discrimination Act), an offense punishable by reclusion
temporal in its medium period to reclusion perpetua. The accused therein assailed the
trial court's imposition of the condition that he should first be arraigned before he is allowed to
post bail.
It was held in Lavides that the grant of bail should not be conditioned upon the prior
arraignment of the accused. In cases where bail is authorized, bail should be granted before
arraignment, otherwise the accused will be precluded from filing a motion to quash which is to
be done before arraignment. If the information is quashed and the case is dismissed, there would
be no need for the arraignment of the accused.
To condition the grant of bail on his arraignment would be to place him in a position
where he has to choose between (1) filing a motion to quash and thus delay his release until his
motion can be resolved because prior to its resolution, he cannot be arraigned, and (2) foregoing
the filing of a motion to quash so that he can be arraigned at once and thereafter be released on
bail. These scenarios undermine the accused's constitutional right not to be put on trial except
upon a valid complaint or information sufficient to charge him with a crime and his right to bail
(Lavides v. Court of Appeals, G.R. No. 129670, February 1,2000).
2. In Serapio v. Sandiganbayan, G.R. No. 148468, January 28,
2003, the prosecution argued that arraignment is necessary before bail hearings may be
commenced, because it is only upon arraignment that the issues are joined. Accord
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/
ingly, it is only when an accused pleads not guilty may he file a petition for bail and if he pleads
guilty to the charge, there would be no more need for him to file said petition. The prosecution
further argued that "since it is during arraignment that the accused is first informed of the precise
charge against him, he must be arraigned prior to the bail hearings to prevent him from later
assailing the validity of the bail hearings on the ground that he was not properly informed of the
charge against him, especially considering that, under Section 8, Rule 114 of the Revised Rules of
Court, evidence presented during such proceedings are considered automatically reproduced at
the trial. Likewise, the arraignment of an accused prior to bail hearings diminishes the possibility
of an accused's flight from the jurisdiction of the Sandiganbayan because trial in absentia may
be had only if an accused escapes after he has been arraigned." It was likewise argued that "the
conduct of bail hearings prior to arraignment would extend to an accused the undeserved
privilege of being appraised of the prosecution's evidence before he pleads guilty for purposes of
penalty reduction."
The contention of the accused petitioner that the arraignment of an accused is not a
prerequisite to the conduct of hearings on his petition for bail was sustained. It was ruled that a
person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest
or voluntary surrender. An accused need not wait for his arraignment before filing a petition for
bail.
It is not necessary that an accused be first arraigned before the conduct of hearings on his
application for bail. For when bail is a matter of right, an accused may apply for and be granted
bail even prior to arraignment. The Court stressed that its ruling in Lavides also implies that an
application for bail in a case involving an offense punishable by reclusion perpetua to death
may also be heard even before an accused is arraigned. Further, if the court finds in such case that
the accused is entitled to bail because the evidence against him is not strong, he may be granted
provisional liberty even prior to arraignment; for in such a situation, bail would be "authorized"
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under the circumstances. In fine, the Sandiganbayan committed a grave abuse of its discretion
amounting to excess of jurisdiction in ordering the arraignment of petitioner before proceeding
with the hearing of his petition for bail
The Court in Serapio however, clarified that its pronouncements in Lavides should not
be taken to mean that the hearing on a petition for bail should at all times precede arraignment,
because the rule is that a person deprived of his liberty by virtue of his arrest or voluntary
surrender may apply for bail as soon as he is deprived of his liberty, even before a complaint or
information is filed against him. The Court cautioned that its pronouncements in Lavides should
be understood in the light of the fact that the accused in said case filed a petition for bail as well as
a motion to quash the informations filed against him. Hence, the ruling that to condition the grant
of bail to an accused on his arraignment would be to place him in a position where he has to
choose between filing a motion to quash and foregoing the filing of a motion to quash so that he
can be arraigned at once and thereafter be released on bail would undermine his constitutional
right not to be put on trial except upon a valid complaint or information sufficient to charge him
with a crime and his right to bail.
Another related issue decided in Serapio was whether or not a motion to quash may be
filed during the pendency of a petition for bail, that whether or not the motion and the petition
are not inconsistent and may proceed independently of each other. Ruling on the issue, the Court
finds that no such inconsistency exists between an application of an accused for bail and the filing
of a motion to quash.
" x x x Bail is the security given for the release of a person in the custody of the law,
furnished by him or a bondsman, to guarantee his appearance before any court as required
under the conditions set forth under the Rules of Court. Its purpose is to obtain the provisional
liberty of a person charged with an offense until his conviction while at the same time securing his
appearance at the trial. As stated earlier, a person may apply
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for bail from the moment that he is deprived of his liberty by virtue of his arrest or voluntary
surrender.
On the other hand, a motion to quash an Information is the mode by which an accused
assails the validity of a criminal complaint or Information filed against him for insufficiency on its
face in point of law, or for defects which are apparent in the face of the Information. An accused
may file a motion to quash the Information, as a general rule, before arraignment.
These two reliefs have objectives which are not necessarily antithetical to each other.
Certainly, the right of an accused to seek provisional liberty when charged with an offense not
punishable by death, reclusion perpetua or life imprisonment, or when charged with an
offense punishable by such penalties but after due hearing, evidence of his guilt is found not to
be strong, does not preclude his right to assail the validity of the Information charging him with
such offense. It must be conceded, however, that if a motion to quash a criminal complaint or
Information on the ground that the same does not charge any offense is granted and the case is
dismissed and the accused is ordered released, the petition for bail of an accused may become
moot and academic."
Forms of bail (Bar 1999)
1.
Bail may be given in the following forms:
(a)
corporate surety,
(b)
property bond,
(c)
cash deposit, or
(d)
recognizance (Sec. 1, Rule 114, Rules of Court).
2.
Corporate surety — This is bail furnished by a corporation. Under the Rules
of Court, any domestic or foreign corporation which is licensed as a surety and authorized to act
as such, may provide bail by a bond subscribed jointly by the accused and an officer of the
corporation duly authorized by the board of directors (Sec. 10, Rule 114, Rules of
Court). Act No. 536 enacted on November 25, 1902 prescribes the
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conditions before corporations could be allowed to act as sureties for bonds and undertakings.
3. Property bond — A property bond is an undertaking constituted as lien on the real
property given as security for the amount of the bail. Within ten (10) days from the approval of
the bond, the accused shall cause the annotation on the certificate of title on file with the Registry
of Deeds. If the land is unregistered, it is annotated in the Registration Book on the space
provided therefore in the Register of Deeds of the province or city where the land lies. The
registration is likewise made on the corresponding tax declaration in the office of the provincial,
city and municipal assessor concerned. Within ten (10) days from the performance of the above
acts, the accused shall submit his compliance to the court. His failure to do so shall be sufficient
cause for the cancellation of the property bond, his re-arrest and detention (Sec. 11, Rule
114, Rules of Court).
The sureties in a property bond must have the following qualifications:
(a)
Each must be a resident owner of real estate within the Philippines;
(b)
Where there is only one surety, his real estate must be worth at least the
amount of the undertaking;
(c)
If there are two or more sureties, each may justify in an amount less than
that expressed in the undertaking but the aggregate of the justified sums must be
equivalent to the whole amount of the bail demanded.
In all cases, every surety must be worth the amount specified in his own undertaking over
and above all just debts, obligations and properties exempt from execution (Sec. 12, Rule
114, Rules of Court). Every surety is also required to justify by affidavit taken before the
judge that he possesses the qualifications of a surety also describing the property and all relevant
matters required to be so stated by the Rules of Court. No bail shall be approved unless the surety
is qualified (Sec. 13, Rule 114, Rules of Court).
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4.
Cash deposit — Bail may also be in the form of a cash deposit. The accused or
any person acting in his behalf may deposit in cash with the nearest collector of internal revenue
or provincial, city, or municipal treasurer or the clerk of court where the case is pending, the
amount of bail fixed by the court or recommended by the prosecutor who investigated or filed
the case. The accused shall be discharged from custody upon submission of the certificate of
deposit and a written undertaking showing compliance with the requirements of the Rules of
Court. The money deposited shall be considered as bail and applied to the payment of fine and
costs while the excess, if any, shall be returned to the accused or to whoever made the deposit
(Sec. 14, Rule 114, Rules of Court)
The deposit must be made with the persons enumerated in the rule. Irrefragably, only the
collector of internal revenue, city or provincial, city or municipal treasurer is authorized to receive
bail in cash. A judge is not one of those authorized to receive a deposit of cash bail; nor should
(Agulan v.
Fernandez, 356 SCRA 162; Naui v. Mauricio, 414 SCRA 11; Lachica v. Tormis,
470 SCRA 206).
5.
Recognizance — This is an obligation of record entered into before some court
such cash be kept in the judge's office, much less in his own residence
or 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.
A person in custody may be released on recognizance whenever allowed by law or by the
Rules of Court (Sec. 15, Rule 114, Rules of Court). The release may be either on the
recognizance of the accused himself or that of a responsible person (Sec. 15, Rule 114,
Rules of Court).
6.
Release on recognizance may be ordered by the court in the following cases:
(a) When the offense charged is for violation of an ordinance, a light felony, or a
criminal offense, the impos- able penalty of which does not exceed six (6) months im
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prisonment and/or P2,000 fine, under the circumstances
provided in R.A. 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 or any modifying circumstance, in
which case, the court may allow his release on his own
recognizance, or on a reduced bail, at the discretion of the
court (Sec. 16, Rule 114, Rules of Court);
(c)
Where the accused has applied for probation,
pending finality of the judgment but no bail was filed or
the accused is incapable of filing one (P.D. 968, Sec. 7;
Sec. 24, Rule 114); and
(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 the circumstances envisaged in
P.D. 603, as amended (Espiritu v. Jovellanos, 280 SCRA
579).
(e)
In summary procedure, when the accused has
been arrested for failure to appear when required. His
release shall be either on bail or on recognizance by a
responsible citizen acceptable to the court (Sec. 16,1991
Revised Rule on Summary Procedure).
Guidelines in fixing the amount of bail (Bar 1999)
1. The basic rule in fixing the amount of bail is that
excessive bail shall not be required (Sec. 13, Art. Ill, Bill of
Rights, 1987 Constitution of the Philippines; Sec. 9, Rule 114,
Rules of Court).
In fixing bail, the amount should be high enough to assure
the presence of the accused when such presence is required but
no higher than is reasonably calculated to fulfill this purpose.
Another principle to consider is the good of the public as well
as the rights of the accused. The inability of the accused to
secure bail in a certain amount is not solely to be considered
and this fact does not by itself make bail excessive. When an
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/
accused has no means to bail himself out, any amount fixed, no matter how small would fall into
the category of excessive bail (Villasenor v. Abano, 21 SCRA 312).
2.
The judge who issued the warrant or who granted the application for bail shall fix
a reasonable amount of bail considering primarily, but not limited to, the following factors:
(a)
Financial ability of the accused to give bail;
(b)
Nature and circumstances of the offense;
(c)
Penalty for the offense charged;
(d)
Character and reputation of the accused;
(e)
Age and health of the accused;
(f)
Weight of the evidence against the accused;
(g)
Probability of the accused appearing at the trial;
(h)
(i)
Forfeiture of other bail;
The fact that the accused was a fugitive from justice when arrested; and
(j) Pendency of other cases where the accused is on bail (Sec. 9, Rule 114,
Rules of Court).
3.
The existence of a high degree of probability that the defendant will abscond
confers upon the court no greater discretion than to increase the bond to such an amount as
would reasonably tend to assure the presence of the defendant when it is wanted, such amount
to be subject, of course, to the provision that excessive bail shall not be required (San Miguel
v. Maceda, 520 SCRA 205).
Duration of the bail
1. The undertaking under the bail shall be effective upon approval, and unless cancelled,
shall remain in force at all stages of the case until promulgation of judgment of the Regional Trial
Court, irrespective of whether the case was originally filed in or appealed to it (Sec. 2[a], Rule
114, Rules of Court).
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good standing in the community a sworn statement binding himself, pending final decision of his
case, to report to the Clerk of the Court hearing his case periodically every two weeks. The Court
may, in its discretion and with the consent of the person charged, require further that he be
placed under the custody and subject to the authority of a responsible citizen in the community
who may be willing to accept the responsibility. In such a case, the affidavit herein mentioned
shall include a statement of the person charged that he binds himself to accept the authority of
the citizen so appointed by the Court. The Clerk of Court shall immediately report the presence of
the accused person to the Court. Except when his failure to report is for justifiable reasons
including circumstances beyond his control to be determined by the Court, any violation of this
sworn statement shall justify the Court to order his immediate arrest unless he files bail in the
amount forthwith fixed by the Court."
When bail is not allowed
Bail is not allowed in the following cases:
1.
A person charged with a capital offense, or an offense punishable by reclusion
perpetua or life imprisonment, shall be not admitted to bail when evidence of guilt is strong
regardless of the stage of the criminal prosecution (Sec. 7, Rule 114, Rules of Court).
2.
Bail shall not be allowed after a judgment of conviction has become final (Sec.
24, Rule 114, Rules of Court).
The rule is that no bail shall be allowed after a judgment of conviction has become final. If
before finality of the judgment, the accused applies for probation, he may be allowed temporary
liberty under his bail. When no bail was filed or the accused is incapable of filing one, the court
may allow his release on recognizance to the custody of a responsible member of the community
(Sec. 24, Rule 114, Rules of Court).
3.
Bail shall not be allowed after the accused has commenced to serve sentence
(Sec. 24, Rule 114, Rules of Court).
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When bail is a matter of right (Bar 1999; 2006; 2008)
1.
The general rule is that all persons in custody shall be admitted to bail as a matter
of right. This rule applies to the following situations:
(a) before conviction by the Metropolitan Trial Court, Municipal Trial Court,
Municipal Trial Court in Cities, or Municipal Circuit Trial Court;
(b)
after conviction by the courts mentioned in letter "a;" and
(c) before conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua, or life imprisonment (Sec. 4, Rule 114,
Rules of Court).
2.
When the records show that the accused was charged with violation of Section 15,
Article III of R.A. No. 6425 which is punishable by prision correctional, following the
provisions of the Constitution and the Revised Rules of Criminal Procedure, complainant is
entitled to bail as a matter of right (San Miguel v. Maceda, A.M. No. RTJ-03-1749,
April 4,2007).
Where bail is a matter of right and prior absconding and forfeiture is not excepted from
such right, bail must be allowed irrespective of such circumstance. The existence of a high degree
of probability that the defendant will abscond confers upon the court no greater discretion than
to increase the bond to such an amount as would reasonably tend to assure the presence of the
defendant when it is wanted, such amount to be subject, of course, to the other provision that
excessive bail shall not be required. The recourse of the judge is to fix a higher amount of bail and
not to cancel the same (San Miguel v. Maceda, A.M. No. RTJ-03-1749, April
4,2007).
3.
Bail is not a matter of right to a person charged with a capital offense, or an
offense punishable by reclusion perpetua or life imprisonment. He shall not be admitted to
bail when evidence of guilt is strong regardless of the stage of the criminal prosecution (Sec. 7,
Rule 114, Rules of Court). Thus, before conviction of the accused by the Regional Trial
Court for an offense punishable by death, reclusion perpetua
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or life imprisonment, bail may or may not be given depending upon the strength of the evidence
of guilt.
Whether or not the evidence of guilt is strong is a matter to be determined by the court
after a hearing to be conducted (Sec. 8, Rule 114, Rules of Court) with notice of the
hearing to the prosecutor or a requirement for him to submit his recommendation (Sec. 18,
Rule 114, Rules of Court).
The prosecution has the burden of showing that evidence of guilt is strong (Sec. 8, Rule
114, Rules of Court).
4.
The exercise by the trial court of its discretionary power to grant bail to an accused
charged with a capital offense thus depends on whether the evidence of guilt is strong. The court
should first conduct a hearing, whether summary or otherwise in the discretion of the court to
determine the existence of strong evidence or the lack of it. This hearing is to enable the judge to
make an intelligent assessment of the evidence presented and merely to determine the weight of
evidence for purposes of bail. In a bail hearing, the court does not sit to try the merits of the case
(People v. Plaza, G.R. No. 176933, October 2, 2009).
5.
Bail is not a matter of right in cases where the person is charged with a capital
offense or an offense punishable by reclusion perpetua or life imprisonment (Valerio v.
Court of Appeals, 535 SCRA 453).
Remedy when bail is denied
The remedy of the petitioner from the order of the trial court denying a petition for bail is
to file a petition for certiorari if the trial court committed a grave abuse of its discretion
amounting to excess or lack of jurisdiction in issuing the said order (People v. Gomez, 325
SCRA 61).
When bail is a matter of discretion (Bar 1999; 2006; 2008)
1. In Sec. 4(b) of Rule 114, recall that bail is a matter of right before conviction by the
Regional Trial Court of an offense not punishable by death, reclusion perpetua or life
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/
imprisonment. But when the accused has been convicted in
the Regional Trial Court of an offense not punishable by death,
reclusion perpetua or life imprisonment, the admission to bail
becomes discretionary (Sec. 5, Rule 114, Rules of Court).
Since the grant of bail is a matter of discretion, a hearing
must be conducted whether or not the prosecution refuses
to present evidence and the prosecutor must be notified to
require him to submit his recommendation. This notice of
hearing applies in all cases whether bail is a matter of right or
a matter of discretion (Zuno v. Cabebe, 444 SCRA 382 citing
Cortes v. Catral, 279 SCRA 1).
2. If the grant of bail becomes discretionary when
the accused has been convicted in the Regional Trial Court
of an offense not punishable by death, reclusion perpetua or
life imprisonment (Sec. 5, Rule 114, Rules of Court), it follows
that if the penalty imposed is death, reclusion perpetua or
life imprisonment, bail should be denied because this means
that the reason for the conviction is that the evidence of guilt
against him is strong.
Thus, in the early case of People v. Nitcha, 240 SCRA
283, the Court clearly declared that if an accused is sentenced
to suffer reclusion perpetua, his conviction clearly imports
that the evidence of guilt is strong.
People v. Nitcha clearly declares:
"x x x The clear implication therefore, is that if an
accused who is charged with a crime punishable by reclusion perpetua is convicted by the trial court and sentenced to suffer such a penalty, bail is neither a matter
of right on the part of the accused nor of discretion on the
part of the court. In such a situation, the court would not
have only determined that the evidence of guilt is strong
— which would have been sufficient to deny bail even
before conviction — it would have likewise ruled that the
accused's guilt has been proven beyond reasonable doubt.
Bail must not then be granted to the accused during the
pendency of his appeal from the judgment of conviction."
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3. It is a misconception that when an accused is charged with the crime of murder, he is
not entitled to bail at all or that the crime of murder is non-bailable. The grant of bail to an
accused charged with an offense that carries with it the penalty of reclusion perpetua is
discretionary on the part of the trial court. In other words, the accused is still entitled to bail but no
longer "as a matter of right." Instead, it is discretionary and calls for a judicial determination that
the evidence of guilt is not strong in order to grant bail. The prosecution is accorded ample
opportunity to present evidence because by the very nature of deciding applications for bail, it is
on the basis of such evidence that judicial discretion is weighed in determining whether the guilt
of the accused is strong (Eduardo San Miguel v. Maceda, AM. No. RTJ-03- 1749,
April 4, 2007, citing Andres v. Beltran, 415 Phil 598).
Where application for bail is to be filed when bail is a matter of discretion
and after conviction by the Regional Trial Court
1.
The application for bail may be filed and acted upon by the trial court even if a
notice of appeal has already been filed provided that the trial court has not yet transmitted the
original record to the appellate court (Sec. 5, Rule 114, Rules of Court). Corollarily, if the
original record has already been transmitted to the appellate court, then the application shall be
filed with the said appellate court.
2.
The rule allowing the filing of the application for bail in the trial court prior to the
transmission of the original record is consistent with Sec. 6 of Rule 120. The second sentence of
the second paragraph of said Section provides that: " x x x The court promulgating the
judgment shall have authority to accept the notice of appeal and to approve
the bail bond pending appeal x x x . "
3.
If the decision of the RTC 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 (Sec. 5, Rule 114, Rules of Court).
Sec. 6 of Rule 120 has a similar provision thus:
trial court convicting the accused changed
" x x x i f the decision of the
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the nature of the offense from non-bailable to bailable, the application for
bail can only be filed and resolved by the appellate court"
4. If the application for bail is granted, the accused may be allowed to continue on
provisional liberty during the pendency of the appeal under the same bail. This rule is however,
subject to the consent of the bondsman 6Sec. 5, Rule 114, Rules of Court). The consent of
the bondsman shall be required to have provisional liberty under the same bail because of the
rule in Sec. 2(a) of Rule 114, that the "undertaking shall be effective x x x until promulgation of
judgment of the Regional Trial Court x x x."
When application for bail after conviction by the RTC shall be denied
1. If the penalty imposed is death, reclusion perpetua or life imprisonment, bail
should be denied since the conviction indicates strong evidence of guilt based on proof beyond
reasonable doubt (People v. Nitcha, 240 SCRA 283).
2. Even if the penalty imposed by the trial court is not any of the above but merely
imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail already
allowed shall be cancelled, if the prosecution shows the following or other similar circumstances:
(a) That the accused is a recidivist or a quasi-recid- ivist, a habitual delinquent
or has committed the crime aggravated by the circumstance of reiteration;
(b) That the accused has previously escaped from legal confinement, evaded
sentence, or violated the conditions of his bail without valid justification;
(c) That the accused 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 (Sec. 5, Rule 114, Rules of Court).
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333
The court is not authorized to deny or cancel the bail ex parte. The rule requires "notice
to the accused" (Sec. 5, Rule 114, Rules of Court).
The resolution of the Regional Trial Court denying or cancelling the bail may be reviewed
by the appellate court motu proprio or on motion of any party after notice to the adverse
party in either case (Sec. 5, Rule 114, Rules of Court).
Bail pending appeal where penalty imposed exceeds six years
1. In an application for bail pending appeal by an appellant sentenced by the trial
court to a penalty of imprisonment for more than six years, the discretionary nature of the grant
of bail pending appeal does not mean that bail should automatically be granted absent any of the
circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court
(Jose Antonio Leviste v. Court of Appeals, et al., G.R. No. 189122, March 17,
2010).
2. The third paragraph of Section 5, Rule 114 applies to two scenarios where the
penalty imposed on the appellant applying for bail is imprisonment exceeding six years. The first
scenario deals with circumstances enumerated in the said paragraph not beingpresent. The
second scenario contemplates the existence of at least one of the said circumstances. In the first
situation, bail is a matter of sound judicial discretion. This means that, if none of the
circumstances mentioned in the third paragraph of Section 5, Rule 114 is present, the appellate
court has the discretion to grant or deny bail. An application for bail pending appeal may be
denied even if the bail-negating circumstances in the third paragraph of Section 5, Rule 114 are
absent. On the other hand, in the second situation, the appellate court exercises a more stringent
discretion, that is, to carefully ascertain whether any of the enumerated circumstances in fact
exists. If it so determines, it has no other option except to deny or revoke bail pending appeal.
Thus, a finding that none of the said circumstances is present will not automatically result in the
grant of bail.
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Such finding will simply authorize the court to use the less stringent sound discretion approach
(Jose Antonio Leviste v. Court of Appeals, et al, G.R. No. 189122, March
17,2010).
3. The appellant has no right to be freed on bail pending his appeal from the tried court's
judgment where his conviction carries a penalty of imprisonment exceeding 6 years and there is a
justification for the cancellation of his bail pursuant to the third paragraph of Section 5 (b), (d) and
(e) of Rule 114. The inexcusable non-appearance in court of the appellant not only violated the
condition of his bail that he "shall appear" before the court "whenever required" by the court or
the Rules. It also showed the probability that he might flee or commit another crime while
released on bail (Chua v. Court of Appeals, G.R. No. 140842, April 12,2007).
Hearing of application for bail in offenses punishable by death, reclusion
perpetua, or life imprisonment; burden of proof in bail application
1.
A hearing of the application for bail is to be conducted when a person is in custody
for the commission of an offense punishable by death, reclusion perpetua, or life
imprisonment. In the hearing, the prosecution has the burden of showing that the evidence of
guilt is strong (Sec. 8, Rule 114, Rules of Court). Bail in this type of offense is not a matter
of right.
When the granting of bail is not a matter of right or is merely discretionary, as when the
offense is punishable by reclusion perpetua, a hearing, whether summary or otherwise in
the discretion of the court, should first be conducted to determine the existence of strong
evidence or lack of it, against the accused to enable the judge to make an intelligent assessment
of the evidence presented by the parties.
2.
A summary hearing is defined as "such brief and speedy method of receiving and
considering the evidence of guilt as is practicable and consistent with the purpose of hearing
which is merely to determine the weight of evidence for the purposes of bail. On such hearing,
the court does not sit to try the merits or to enter into any nice inquiry as to
CHAPTER VI
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the weight that ought to be allowed to the evidence for or against the accused, nor will it
speculate on the outcome of the trial or on what further evidence may be therein offered and
admitted. The course of inquiry may be left to the discretion of the court which may confine itself
to receiving such evidence as has reference to substantial matters, avoiding unnecessary
examination and cross examination."
Reliance by the judge on the alleged "voluminous records" of the case does not suffice
because the judge is mandated to conduct a hearing on the petition for bail of the accused since
he knew that the crime charged is one that carries a penalty of
reclusion perpetua, and in
that hearing, the prosecution is entitled to present its evidence. It is worth stressing that the
prosecution is equally entitled to due process.
Another compelling reason why a hearing of a petition for bail is necessary is to determine
the amount of bail based on the guidelines set forth in Sec. 6 (now Sec. 9), Rule 114 of the Rules of
Court. Without the required hearing, the bail which may be granted to the accused would be
(People v. Gako, Jr., 348 SCRA 334; See also for
suggested reading, People v. Cabral, 303 SCRA 361; People v. Dacudao, 170
SCRA 489; Basco v. Rapatalo, 269 SCRA 220).
arbitrary and without basis
3. A hearing is plainly indispensable before a judge can determine whether the evidence
for the prosecution is strong.
Jurisprudence is replete with decisions compelling judges to conduct the required hearings
in bail applications, in which the accused stands charged with a capital offense. The absence of
objection from the prosecution is never a basis for the grant of bail in such cases. The judge has no
right to presume that the prosecutor knows what he is doing on account of familiarity with the
case because it has the effect of ceding to the prosecutor the duty of exercising judicial discretion
to determine whether the guilt of the accused is strong. The duty to exercise discretion on the
matter is not reposed upon the prosecutor because judicial discretion is the domain of the judge
(Narciso v. Santa Romana-Cruz, 328 SCRA 505).
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4.
The bail hearing is mandatory in order to give the prosecution reasonable
opportunity to oppose the application by proving that the evidence of guilt is strong
(Tolentino v. Camano, Jr., 322 SCRA 559; Enriquez v. Sarmiento, A.M. No.
RTJ-06-2011, August 7,2006).
5.
In Narciso v. Santa Romana-Cruz, 328 SCRA 505, the petitioner was
charged with parricide, an offense which is punishable with reclusion perpetua. He argued
before the Court of Appeals that he was entitled to bail because the evidence of his guilt was not
strong as indicated by the prosecutor's conformity to his motion for bail. This conformity, argued
the petitioner, was tantamount to a finding that the prosecution evidence against him was not
strong.
The Court of Appeals disagreed because the records show that no hearing had been
conducted on the application for bail. The appellate court found that only ten minutes had
elapsed between the filing of the motion by the accused and the order granting bail. This period,
according to the appellate court was not sufficient for the trial court to receive and evaluate any
evidence.
The Supreme Court agreed with the Court of Appeals and stressed the duty of a judge to
determine whether the evidence of guilt was strong.
The Supreme Court held:
"When the grant of bail is discretionary, the prosecution has the burden of
showing that the evidence of guilt against the accused is strong. However, the
determination of whether or not the evidence of guilt is strong, being a matter of
judicial discretion, remains with the judge. This discretion by the veiy nature of
things, may rightly be exercised only after the evidence is submitted to the court at
the hearing. Since the discretion is directed to the weight of the evidence and since
evidence cannot properly be weighed if not duly exhibited or produced before the
court, it is obvious that a proper exercise of judicial discretion requires that the
evidence of guilt be submitted to the court, the petitioner having the right of cross
examination and to introduce his own evidence in rebuttal x x x.
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"Consequently, in the application for bail of a person charged with a capital
offense punishable by death, reclusion perpetua or life imprisonment, a hearing,
whether summary or otherwise in the discretion of the court, must actually be
conducted to determine whether or not the evidence of guilt against the
accused is strong. A summary hearing means such brief and speedy method of
receiving and considering the evidence of guilt as is practicable and consistent with
the purpose of hearing which is merely to determine the weight of evidence for
the purposes of bail. On such hearing, the court does not sit to try the merits or to
enter into any nice inquiry as to the weight that ought to be allowed to the
evidence for or against the accused, nor will it speculate on the outcome of the
trial or on what further evidence may be therein offered and admitted. The course
of inquiry may be left to the discretion of the court which may confine itself to
receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross examination. If a party is denied
the opportunity to be heard, there would be a violation of procedural due
process."
6. It is a mandatory duty to conduct a hearing despite the prosecution's refusal to adduce
evidence in opposition to the application to grant and fix bail or when the prosecution chooses to
just file a comment (Goodman v. De la Victoria, 325 SCRA 658; Cortes v. Catral,
279 SCRA 1). The fact that the prosecutor interposed no objection to the application for bail
by the accused does not relieve the judge of the duty to set the motion for bail for hearing
(Managuelod v. Paclibon, Jr., 426 SCRA 377).
Duties of the trial judge in a petition for bail in offenses punishable by
reclusion perpetua, life imprisonment or death
1. Summarizing earlier jurisprudence, Narciso v. Santa Romana-Cruz enumerated
the following duties of the trial judge in a petition for bail in offenses punishable by death,
reclusion perpetua or life imprisonment:
(a) Notify the prosecutor of the hearing of the application for bail or require him to
submit his recommendation;
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(b)
Conduct a hearing of the application for bail regardless of whether or not
the prosecution refuses to present evidence to show that the guilt of the accused is strong
for the purpose of enabling the court to exercise its sound discretion;
(c)
Decide whether the evidence of guilt of the accused is strong based on the
summary of evidence of the prosecution;
(d)
If the guilt of the accused is not strong, discharge the accused upon the
approval of the bail bond. Otherwise, the petition should be denied.
"x x x The above-enumerated procedure should now leave no room for doubt as to the
duties of the trial judge in cases of bail applications. So basic and fundamental is it to conduct a
hearing in connection with the grant of bail in the proper cases that it would amount to judicial
apostasy for any member of the judiciary to disclaim knowledge or awareness thereof.
Additionally, the court's grant or refusal of bail must contain a summary of the evidence
for the prosecution, on the basis of which should be formulated the judge's own conclusion on
whether such evidence is strong enough to indicate the guilt of the accused. The summary
thereof is considered an aspect of procedural due process for both the prosecution and the
defense; its absence will invalidate the grant or the denial of the application for bail" (Narciso
v. Santa Romana-Cruz, 328 SCRA 505; People v. Cabral, 303 SCRA 361;
People v. Gako, Jr., 348 SCRA 334).
2.
Even if the capital offense charged is bailable owing to the weakness of the
evidence of guilt, the right to bail may justifiably still be denied if the probability of escape is great
(People v. Sandiganbayan, 529 SCRA 764).
3.
A grant of bail does not prevent the trier of facts from making a final assessment
of the evidence after full trial on the merits (People v. Sandiganbayan, 529 SCRA 764,
August 10, 2007).
CHAPTER VI
BAIL
(Rule 114)
Evidence in bail hearing are automatically reproduced at the
trial
The evidence presented during the bail hearing shall be
considered automatically reproduced at the trial. However,
any witness during the bail hearing may, upon motion of either
party, be recalled by the court for additional examination
except if such witness is dead, outside the Philippines, or
otherwise unable to testify (Sec. 8, Rule 114, Rules of Court).
Capital offenses
1.
A capital offense is an offense which, under the law
existing at the time of its commission and of the application
for admission to bail, may be punished with death (Sec. 6,
Rule 114, Rules of Court).
2.
It is clear from the Rules of Court that the capital
nature of an offense is determined by the penalty prescribed
by law and not the penalty to be actually imposed (Bravo v. De
Borja, 134 SCRA 466).
3.
The imposition of the death penalty is now prohibited
by R.A. 9346 enacted into law on June 24, 2006. Sec. 2 of R.A.
9346 provides that "in lieu of the death penalty, the following
shall be imposed:
"(a) the penalty of reclusion perpetua, when the law
violated makes use of the nomenclature of the penalties
of the Revised Penal Code; or
"(b) the penalty of life imprisonment, when the law
violated does not make use of the nomenclature of the
penalties of the Revised Penal Code."
Effect of Republic Act No. 9346 on the graduation of penalties
In People v. Bon, G.R. No. 166401, October 30, 2006,
the Court was confronted by the question of whether or not
the enactment of R.A. No. 9346 resulted in the statutory
interdiction of the death penalty. Giving rise to the issue was
the sentence of reclusion temporal imposed on the accusedappellant by the Court of Appeals for the two counts of
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/
attempted qualified rape committed against a minor by a relative mentioned in the law. The
sentence was prescribed by the appellate court prior to the enactment of R.A. No. 9346 which
ended the imposition of the death penalty in the Philippines.
The concern of the accused-appellant is whether his penalty for attempted qualified rape,
which under the penal law should be two degrees lower than that of consummated qualified
rape, should be computed from death or reclusion perpetua. This is because Sec. 2 of R.A.
No. 9346 provides that instead of the death penalty, the penalty of reclusion perpetua or
life imprisonment when appropriate shall be imposed.
The Court found no doubt as to the validity this sentence at the time it was meted prior to
the enactment of R.A. No. 9346. The prescribed penalty for the consummated rape of a victim
duly proven to have been under eighteen years of age and to have been raped by her uncle, is
death under Article 266-B of the Revised Penal Code. The determination of the penalty two
degrees lower than the death penalty entails the application of Articles 61 and 71 of the Revised
Penal Code.
Following the scale prescribed in Article 71, the penalty two degrees lower than death is
reclusion temporal, which was the maximum penalty imposed by the Court of Appeals on
appellant for attempted rape. Reclusion temporal is a penalty comprised of three divisible
periods, a minimum, a medium and a maximum.
The critical question according to the Court is whether R.A. No. 9346 intended to delete
the word "death" as expressly provided for in the graduated scale of penalties under Article 71.
The Court ruled in the affirmative and found R.A. No. 9346 to unequivocally bar the
application of the death penalty, as well as to expressly repeal all such statutory provisions
requiring the application of the death penalty. Such effect explained the Court, necessarily
extends to its relevance to the graduated scale of penalties under Article 71. Hence, the
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(Rule 114)
341
Court added, that it cannot find basis to conclude that R.A. No. 9346 intended to retain the
operative effects of the death penalty in the graduation of the other penalties in our penal laws.
People v. Bon, however, stressed that the debarring of the death penalty through R.A.
No. 9346 did not correspondingly declassify those crimes previously catalogued as "heinous." The
amendatory effects of R.A. No. 9346 extend only to the application of the death penalty but not
to the definition or classification of crimes. True, the penalties for heinous crimes have been
downgraded under the aegis of the new law. Still, what remains extant is the recognition by law
that such crimes, by their abhorrent nature, constitute a special category by themselves.
Accordingly, R.A. No. 9346 does not serve as basis for the reduction of civil indemnity and other
damages that adhere to heinous crimes.
Having pronounced and determined the statutory disallowance of the death penalty
through R.A. No. 9346 and the corresponding modification of penalties other than death through
that statute, the penalty of "death," as utilized in Article 71 of the Revised Penal Code, shall no
longer form part of the equation in the graduation of penalties. Hence, in the case of
accused-appellant, the determination of his penalty for attempted rape shall be reckoned not
from two degrees lower than death, but two degrees lower than reclusion perpetua.
Hence, the maximum term of his penalty shall no longer be reclusion temporal, as ruled by
the Court of Appeals, but instead, prision mayor.
Where application or petition for bail may be filed (Bar 2002)
1. As a general rule, the application for bail may be filed with the court where the case is
pending. If the judge thereof is absent or unavailable, then the application may be filed with any
Regional Trial Court judge, Metropolitan Trial Court judge, Municipal Trial Court judge, or
Municipal Circuit Trial Court judge in the province, city, or municipality (Sec. 17[a], Rule 114,
Rules of Court).
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Where there is no showing that the judge of the court where the criminal case is pending
is unavailable, another judge who entertains a bail application despite knowledge of the
pendency of the case in another court is clearly in error (Savella v. Ines, 521 SCRA 417).
Judges who approve applications for bail of accused whose cases are pending in other
courts are guilty of gross ignorance of the law (Re: Report on the Judicial Audit in RTC
Branch 4, Dolores, Eastern Samar, 536 SCRA 313).
2.
Where the accused is arrested in a province, city, or municipality other than
where the case is pending, the application for bail may also be filed with any Regional Trial Court
of said place. If no judge thereof is available, then with any Metropolitan Trial Court judge,
Municipal Trial Court judge or Municipal Circuit Trial Court judge in the said place (Sec. 17[a],
Rule 114, Rules of Court).
When bail is filed with the court other than where the case is pending, the judge who
accepted the bail shall forward it, together with the order of release and other supporting papers,
to the court where the case is pending, which may, for good reasons, require a different one to be
filed (Sec. 19, Rule 114, Rules of Court).
The failure of a judge who granted the bail to transmit the order of release and other
supporting papers to the court where the case is pending constitutes violation of the rules
(Savella v. Ines, 521 SCRA 417).
3.
Where the grant of bail is a matter of discretion, or the accused seeks to be
released on recognizance, the application may only be filed in the court where the case is
pending, on trial, or appeal (Sec. 17[b], Rule 114, Rules of Court).
4.
When a person is in custody but not yet charged, he may apply for bail with any
court in the province, city or municipality where he is held (Sec. 17[c], Rule 114, Rules of
Court).
In Ruiz v. Beldia, Jr., A.M. No. RTJ-02-1731, February 16, 2005, the
Certificate of Detention of the person lawfully arrested without a warrant issued by the
PNP-TMG-SOD
CHAPTER VI
BAIL
(Rule 114)
343
shows that he was detained at Camp Crame in Quezon City. The application for bail should have
been filed before the proper Quezon City court and not in Marikina City.
Increase or reduction of bail
1. Even after the accused is admitted to bail, the amount of bail may either be
increased or reduced by the court upon good cause (Sec. 20, Rule 114, Rules of Court).
2. The increased amount must be given within a reasonable period if the accused
wants to avoid being taken into custody. The rule is c l e a r : " x x x When increased, the accused
may be committed to custody if he does not give bail in the increased amount within a
reasonable period" (Sec. 20, Rule 114, Rules of Court).
Bail for accused originally released without bail
If upon the filing of the complaint or information the accused is released without bail, he
may later be required to give bail in the amount fixed by the court whenever at any subsequent
stage of the proceedings a strong showing of guilt appears to the court. If he does not give bail he
may be committed into custody (Sec. 20, Rule 114, Rules of Court).
Forfeiture of bail
1. One of the conditions of the bail is for the accused to appear before the proper
court whenever required (Sec. 2[b], Rule 114, Rules of Court). When his presence is
required, his bondsmen shall be notified to produce him before the court on a given date and
time (Sec. 21, Rule 114, Rules of Court).
2. If he fails to appear in person as required, his bail shall be declared forfeited. The
bondsmen shall be given thirty (30) days within which to produce their principal and to show
cause why no judgment should be rendered against them for the amount of the bail.
The bondsmen must, within the period:
(a) produce the body of their principal or give the
reasons for his non-production; and
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/
(b) explain why the accused did not appear before the court when first required to
do so. Failing in these two requirements, a judgment shall be rendered against the
bondsmen, jointly and severally, for the amount of the bail (Sec. 21, Rule 114,
Rules of Court).
If the bondsmen move for the mitigation of their liability, the court is required not to
reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been
surrendered or is acquitted (Sec. 21, Rule 114, Rules of Court).
3. Judgment against the bondsmen cannot be entered unless such judgment is preceded
by an order of forfeiture and an opportunity given to the bondsmen to produce the accused or to
adduce satisfactory reason for their inability to do so. An order of forfeiture is interlocutory and
merely requires the bondsmen "to show cause why judgment should not be rendered against
them for the amount of the bond." The order is different from the judgment on the bond which
is issued if the accused was not produced within the 30-day period (Mendoza v. Alarma,
G.R. No. 151970, May 7,2008).
Cancellation of the bail; remedy
1.
Cancellation by application of the bondsmen — Bail may be cancelled
upon application of the bondsmen with due notice to the prosecutor (a) upon surrender of the
accused, or (b) proof of his death.
2.
Automatic cancellation — The bail may also be deemed automatically
cancelled upon (a) acquittal of the accused, (b) dismissal of the case, or (c) execution of the
judgment of conviction (Sec. 22, Rule 114, Rules of Court).
3.
Sec. 5 of Rule 114 allows the cancellation of bail where the penalty imposed by
the trial court is imprisonment exceeding six (6) years if any of the grounds in the said section is
present as when the circumstances indicate the probability of flight. The same section authorizes
the appellate court to motu proprio or on motion of any party review the resolution of the
Regional Trial Court after notice to the adverse party in either case.
CHAPTER VI
BAIL
(Rule 114)
345
4. It was held in Chua v. Court of Appeals, 520 SCRA 729, that from the last
paragraph of the above provision, the appropriate remedy against the trial court's order canceling
the bail is by filing with the Court of Appeals a motion to review the said order in the same regular
appeal proceedings which the appellant himself initiated, such motion being an incident to his
appeal. The filing of a separate petition via a special civil action for certiorari before the
appellate court is proscribed and contravenes the rule against multiplicity of suits and constitutes
forum shopping (Chua v. Court of Appeals, G.R. No. 140842, April 12, 2007).
Application for or admission to bail not a bar to objections on illegal arrest,
lack of or irregular preliminary investigation
1.
The application or admission of the accused to bail shall not bar him from
challenging both the validity of his arrest or the legality of the warrant issued therefore, provided
that he raises them before entering his plea. It shall not likewise bar the accused from assailing the
regularity or questioning the absence of a preliminary investigation of the charge against him
provided the same is raised before he enters his plea (Sec. 26, Rule 114, Rules of Court).
The court shall resolve the matter as early as practicable but not later than the start of the
trial of the case (Sec. 26, Rule 114, Rules of Court).
2.
Sec. 26 of Rule 114 is a new rule intended to modify previous rulings that an
application for bail or the admission to bail by the accused shall be considered as a waiver of his
right to assail the warrant issued for his arrest on the legalities or irregularities thereon. The new
rule is curative in nature because precisely it was designed to curb evils in procedural rules.
Procedural rules as a general rule operate retroactively, even without express provisions to
actions yet undetermined at the time of their effectivity (Okabe v. Gutierrez, 429 SCRA
685; Borlongan v. Pefia, G.R. No. 143591, May 5,2010).
3.
The former ruling that the posting of bail constitutes a waiver of any irregularity in
the issuance of a warrant of
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/
arrest, has already been superseded by Section 26, Rule 114 of the Revised Rules of Criminal
Procedure. The principle that the accused is precluded from questioning the legality of the arrest
after arraignment is true only if he voluntarily enters his plea and participates during trial,
without previously invoking his objections thereto (Borlongan v. Pena, G.R. No.
143591, May 5,2010).
— oOo —
Chapter VII
RIGHTS OF THE ACCUSED (Rule 115)
Rights of the accused at the trial (Bar 1992; 1996; 1998; 2004)
1.
The rights of the accused are normally treated in Constitutional Law specifically
under the topic on the Bill of Rights. The discussion in this treatise shall be confined to selected
rights of an accused.
2.
Sec. 1 of Rule 115 enumerates the rights of the accused "at the trial."
It provides that "In all criminal prosecutions, the accused shall be entitled to the following
rights:"
(a)
To be presumed innocent until the contrary is proved beyond reasonable
(b)
To be informed of the nature and cause of accusation against him.
(c)
To be present and defend in person and by counsel at every stage of the
doubt.
proceedings, from arraignment to promulgation of the judgment. The accused however,
may waive his presence at the trial pursuant to the stipulations set forth in his bail, unless
his presence is specifically ordered by the court for purposes of identification. The absence
of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes,
he shall be deemed to have waived his right to be present on all subsequent trial dates
until custody over him is regained. Upon motion,
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348
the accused may be allowed to defend himself in person
when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel.
(d) To testify as a witness in his own behalf but
subject to cross-examination on matters covered by direct
examination. His silence shall not in any manner prejudice him.
(e) To be exempt from being compelled to be a witness against himself.
(f)
To confront and cross-examine the witnesses
against him at the trial. Either party may utilize as part
of its evidence the testimony of a witness who is deceased,
out of or cannot with due diligence be found in the Philippines, unavailable, or otherwise unable to testify, given
in another case or proceeding, judicial or administrative,
involving the same parties and subject matter, the adverse party having the opportunity to cross-examine him.
(g) To have compulsory process issued to secure
the attendance of witnesses and production of other evidence in his behalf.
(h)
To have speedy, impartial and public trial.
(i)
To appeal in all cases allowed and in the manner prescribed by law.
Presumption of innocence (Bar 2005)
1.
The presumption of innocence under the Rules is of
a constitutional origin and a mere substantial reiteration of
Sec. 14(2) of Art. Ill of the 1987 Constitution of the Philippines
which provides:
"Sec. 14 (2) x x x In all criminal prosecutions, the
accused shall be presumed innocent until the contrary is
proved x x x."
2.
An accused in criminal prosecutions is to be
presumed innocent until his guilt is proven beyond reasonable
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doubt. This constitutional guarantee cannot be overthrown unless the prosecution has
established by such quantum of evidence sufficient to overcome this presumption of innocence
and prove that a crime was committed and that the accused is guilty thereof. Under our
Constitution, an accused enjoys the presumption of innocence. And this presumption prevails
over the presumption of regularity in the performance of official duty (People v. Sy, G.R. No.
185284, June 22, 2009; People v. Frondozo, G.R. No. 177164, June 30, 2009;
See People v. Alivio, G.R. No. 177771, May 30,2011 for related reading).
3. Presumption of regularity in the performance of official duty should not by itself prevail
over the presumption of innocence (People v. Ong, 432 SCRA 470; People v.
Paloma, G.R. No. 178544, February 23, 2011). Sec. 3(m) of Rule 131, establishes the
disputable presumption that"official duty has been regularly performed"
Hence, as a general rule, the testimony of the police officers who apprehended the
accused is usually accorded full faith and credit because of the presumption that they have
performed their duties regularly. However, when the performance of their duties is tainted with
irregularities, such presumption is effectively destroyed. While the law enforcers enjoy the
presumption of regularity in the performance of their duties, this presumption cannot prevail
over the constitutional right of the accused to be presumed innocent and it cannot by itself
constitute proof of guilt beyond reasonable doubt. The presumption of regularity is merely just
that—a mere presumption disputable by contrary proof and which when challenged by evidence
cannot be regarded as binding truth (People v. Cantalejo, G.R. No. 182790, April 24,
2009; See People v. Alejandro, G.R. No. 176350, August 10,2011).
Prima facie presumptions of guilt
May the Rules or the law provide for a presumption of guilt?
An example of this presumption is found in Sec. 3(j) of Rule 131 of the Rules of Court.
Under this provision, "a person
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found in possession of a thing taken in the doing of a recent wrongful act is the taker and the
doer of the whole act x x x."
An answer to the question may be gleaned from a case decided several years ago. In
that case, the petitioners were convicted of the offense of illegal fishing with the use of obnoxious or poisonous substance penalized under Presidential Decree (P.D.) No. 704, the Fisheries
Decree of 1975. They challenge the provision of P.D. No. 704 which provides:
The discovery of dynamite, other explosives and chemical compounds
containing combustible elements, or obnoxious or poisonous substance, or
equipment or device for electric fishing in any fishing boat or in the possession of
a fisherman shall constitute a presumption that the same were used for fishing
in violation of this Decree, and the discovery in any fishing boat of fish caught or
killed by the use of explosives, obnoxious or poisonous substance or by
electricity shall constitute a presumption that the owner, operator or fisherman
were fishing with the use of explosives, obnoxious or poisonous substance or
electricity."
Petitioners contend that this presumption of guilt under the Fisheries Decree violates
the presumption of innocence guaranteed by the Constitution.
Citing previous pronouncements, the Court held that the validity of laws establishing
presumptions in criminal cases is a settled matter. It is generally conceded that the legislature
has the power to provide that proof of certain facts can constitute prima facie evidence of the
guilt of the accused and then shift the burden of proof to the accused provided there is a
rational connection between the facts proved and the ultimate fact presumed. To avoid any
constitutional infirmity, the inference of one from proof of the other must not be arbitrary and
unreasonable. In fine, the presumption must be based on facts and these facts must be part of
the crime when committed.
The challenged provision of P.D. No. 704 creates a presumption of guilt based on facts proved
and hence, is not con
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stitutionally impermissible. It makes the discovery of obnoxious or poisonous substances,
explosives, or devices for electric fishing, or of fish caught or killed with the use of obnoxious and
poisonous substances, explosives or electricity in any fishing boat or in the possession of a
fisherman evidence that the owner and operator of the fishing boat or the fisherman had used
such substances in catching fish. The ultimate fact presumed is that the owner and operator of
the boat or the fisherman were engaged in illegal fishing and this presumption was made to
arise from the discovery of the substances and the contaminated fish in the possession of the
fisherman in the fishing boat. The fact presumed is a natural inference from the fact proved.
The Court however, stressed that the statutory presumption is merely prima facie. It
cannot, under the guise of regulating the presentation of evidence, operate to preclude the
accused from presenting his defense to rebut the main fact presumed. At no instance can the
accused be denied the right to rebut the presumption (Hizon v. Court of Appeals, 265
SCRA 517).
Proof beyond reasonable doubt
1.
The presumption of innocence is not meant to be forever. It ends when it is
overcome in a final conviction. There is only one type of quantum of evidence which overcomes
the presumption — proof beyond reasonable doubt. Without such quantum of evidence, the
accused is entitled to an acquittal (Sec. 2, Rule 133, Rules of Court). Proof beyond
reasonable doubt is indispensable to overcome the constitutional presumption of innocence
(People v. Montenegro, 436 SCRA 33; People v. Labagala, G.R. No. 184603,
August 2,2010; See People v. Campos, G.R. No. 176061, July 4,2011 for
related reading).
2.
"xxx Proof beyond reasonable doubt does not mean such a degree of proof as,
excluding possibility of error, produces absolute certainty. Moral certainty only is required, or
that degree of proof which produces conviction in an unprejudiced mind" (Sec. 2, Rule 133,
Rules of Court).
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3.
The Court in Mupas v. People, G.R. No. 172834, February 6, 2008,
describes reasonable doubt as "that doubt engendered by an investigation of the whole proof
and an inability after such investigation to let the mind rest each upon the certainty of guilt."
4.
The presumption of innocence requires that before the accused is convicted, his
guilt must be proven beyond reasonable doubt. Sec. 2, Rule 133 of the Rules of Court does not
provide that for proof to be deemed beyond reasonable doubt, absolute certainty of his guilt is
required. The rule merely requires moral certainty. In criminal cases, the prosecution is not
required to show the guilt of the accused with absolute certainty. Only moral certainty is
demanded, or that degree of proof which, to an unprejudiced mind, produces conviction. With
that, the prosecution has discharged its burden of proving the guilt of the accused with moral
certainty (People v. Malate, G.R. No. 185724, June 5,2009).
The burden lies on the prosecution to overcome such presumption of innocence by
presenting the quantum of evidence required. In so doing, the prosecution must rest on the
strength of its own evidence and must not rely on the weakness of the defense. And if the
prosecution fails to meet its burden of proof, the defense may logically not even present
evidence on its own behalf. In such cases the presumption prevails and the accused should
necessarily be acquitted (People v. Angus, G.R. No. 178778, August 3,2010).
5.
The constitutional presumption of innocence can be accorded to the accused
only in the absence of evidence to prove his guilt beyond reasonable doubt. That constitutional
presumption cannot be upheld in the face of the overwhelming and incontrovertible evidence
for the prosecution irresistibly pointing to the conclusive culpability of the accused (People v.
Cabacaba, G.R. No. 171310, July 9,2008).
6.
In prosecution of cases involving illegal possession of prohibited drugs, the
prosecution must establish with moral certainty the elemental act of possession of a prohibited
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substance coupled with the fact that such possession is not authorized by law. Essential,
however, in a drug-related case is that the identity of the dangerous drug be established beyond
reasonable doubt. Since the dangerous drug constitutes the corpus delicti of the offense and
the fact of its existence is vital to a judgment of conviction, it behooves upon the prosecution to
establish and prove with certainty that the dangerous drug presented in court as evidence
against the accused is the same item recovered from his possession (Julius Cacao y Prieto
v. People of the Philippines, G.R. No. 180870, January 22,2010).
7. Does the presumption of innocence end upon conviction by the trial court even if the
conviction is appealed?
This was answered by the Court in the negative in one case. Here, the RTC of Quezon
City rendered a decision convicting a judge, the respondent in this case, for two counts of child
abuse or violations of Republic Act (R.A.) No. 7610. The convictions were however, appealed to
the CA.
A Senior State Prosecutor of the DOJ wrote a letter to the then Chief Justice inquiring
whether it is possible for the Supreme Court, in the public interest, to motu proprio order
the immediate suspension of the judge in view of the aforementioned RTC decision. The letter
argued that "Although the conviction is not yet final, the presumption of innocence x x x
enjoyed during the pendency of the trial has already been overcome by its result. The
presumption today is that she is guilty and must clear her name of the charges."
The matter was referred by the Court for comment and recommendation to the Office
of the Court Administrator (OCA), before which an administrative complaint against the same
judge was pending.
The OCA recommended that the administrative case be given due course and that the
respondent judge be indefinitely suspended pending the outcome of the case. The Second
Division of the Supreme Court through a Resolution, approved the recommendations, thus,
suspending the respondent judge from performing judicial functions while awaiting the final
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resolution of the criminal convictions appealed from or until further orders from the Court.
The respondent judge filed an Urgent Motion for Reconsideration of the
aforementioned Resolution. The motion claimed that the suspension order was issued without
affording respondent judge the opportunity to be heard and that the suspension is essentially
unjust because the two criminal cases are still on appeal before the CA and have, therefore, not
yet attained finality. As such, respondent still enjoys the constitutional presumption of
innocence and the suspension clashes with this presumption and is tantamount to a prejudgment of her guilt.
The Court ruled that it cannot fully agree with the recommendations of the OCA. The
fact of respondent's conviction by the RTC does not necessarily warrant the suspension. Since
the convictions are currently on appeal before the CA, the same have not yet attained finality.
As such, the respondent still enjoys the constitutional presumption of innocence. It must be
remembered, explained the Court, that the existence of a presumption indicating the guilt of
the accused does not in itself destroy the constitutional presumption of innocence unless the
inculpating presumption, together with all the evidence, or the lack of any evidence or
explanation, proves the accused's guilt beyond a reasonable doubt. Until the accused's guilt is
shown in this manner, the presumption of innocence continues and until a promulgation
of final conviction is made, this constitutional mandate prevails (Re: Conviction of
Judge AAA, AM. No. 06-9-545-RTC, January 31, 2008).
Prosecution must rest on its own merits
1. In establishing the guilt of the accused, jurisprudence requires that the prosecution
must rest on its own merits and must not rely on the weakness of the defense. In fact, if the
prosecution fails to meet the required quantum of evidence, the defense may logically not even
present evidence on its own behalf. In which case, the presumption of innocence shall prevail
and hence, the accused shall be acquitted. However,
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once the presumption of innocence is overcome, the defense bears the burden of evidence to
show reasonable doubt as to the guilt of the accused (Mupas v. People, G.R. No.
172834, February 6,2008).
2. For example, in reviewing rape cases, the Supreme Court has constantly been guided
by certain principles among which is that the evidence for the prosecution must stand or fall on
its own merits and cannot draw strength from the weakness of the evidence for the defense
(People v. Lagarde, G.R. No. 182549, January 20, 2009; People v. An, G.R.
No. 169870, August 4, 2009).
Effect of failure to identify the perpetrator
What is the effect of the failure to identify the accused as perpetrator of the offense
charged?
In one case of robbery with homicide, the accused- appellants argued that in criminal
prosecutions, the State has the burden of proving the guilt of the accused beyond reasonable
doubt. It has to prove the identity of the accused as the malefactor, as well as the fact of the
commission of the crime for which he is allegedly responsible. They argued that it can be
gleaned from the records of the case that the prosecution relied mainly on the testimony of the
alleged eyewitness who did not even point to them as the malefactors and she only did so upon
the instructions given her in a police camp. They pointed out that they were invited allegedly for
violation of the anti-drugs law and were appalled to learn that they were charged with a
different crime and the alleged witness was coached to identify them. Evidently, they stressed,
their guilt has not been proved with the required quantum of evidence. They asserted that
where the people's evidence fails to meet the quantum required to overcome the
constitutional presumption of innocence, the accused is entitled to acquittal regardless of the
weakness of his defense of denial and uncorroborated alibi, for it is better to acquit a guilty man
than to unjustly keep in prison one whose guilt has not been proven beyond the required
quantum of evidence.
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On the other hand, the prosecution, through the Office of the Solicitor General, argued
that findings of fact of the trial court are generally upheld on appeal and the accused- appellants
are assailing the correctness of the findings of fact of the trial court by impugning the credibility
of the prosecution witness. The prosecution claimed that contrary to the accused-appellants'
claim that the police officers taught the witness to point to them as the perpetrators, her
testimony is straightforward and direct.
After review, The Court found that the accused-appellants should be acquitted.
Declared the Court:
"It is settled that when the issue is the evaluation of the testimony of a
witness or his credibility, this Court accords the highest respect and even finality
to the findings of the trial court, absent any showing that it committed palpable
mistake, misappreciation of facts or grave abuse of discretion. It is the trial court
which has the unique advantage of observing first-hand the facial expressions,
gestures and the tone of voice of a witness while testifying.
"The well-entrenched rule is that findings of the trial court affirmed by the
appellate court are accorded high respect, if not conclusive effect, by this Court,
absent clear and convincing evidence that the tribunals ignored, misconstrued or
misapplied facts and circumstances of substances such that, if considered, the
same will warrant the modification or reversal of the outcome of the case.
"Factual findings of trial courts, when substantiated by the evidence on
record, command great weight and respect on appeal, save only when certain
material facts and circumstances were overlooked and which, if duly considered,
may vary the outcome of the case.
"In this case, the material fact and circumstance that the lone alleged
eyewitness, x x x was not able to identify the accused-appellants as the
perpetrators of the crime, varies the outcome of this case.
"One, they were not arrested for the crime of robbery with homicide but
were arrested during a buy-bust operation.
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"Apparently, the accused-appellants were arrested without a warrant
during a buy-bust operation x x x transferred to Camp Karingal under dubious
circumstances, and made to stand in a police line-up and identified bv an
eyewitness who failed to identify them three times. These circumstances were
ignored by the trial court who gave too much credence on the positive
identification of the accused-appellants by the same eyewitness during direct
examination.
"Trial courts are mandated not only to look at the direct examination of
witnesses but to the totality of evidence before them. In every case, the court
should review, assess and weigh the totality of the evidence presented by the
parties. It should not confine itself to oral testimony during the trial " (People v.
Olivo, G.R. No. 177768, July 27,2009; Underscoring supplied for emphasis).
Failure to comply with post-seizure procedures set by law
What is the effect of the failure of the arresting officers to comply with post-seizure
procedures set by law?
This has been answered in various decisions of the Court. For instance, In People v.
Frondozo, G.R. No. 177164, June 30, 2009, the accused-appellant assailed his
conviction by the Court of Appeals for violation of Sec. 5 of R.A. No. 9165 (Comprehensive
Dangerous Drugs Act of 2002) which among other illegal acts, penalizes the sale and trading of
dangerous drugs. The appeal contended that the evidence showed that the arresting officers
have not complied with the requirements for establishing the chain of custody under Sec. 21 of
the law. To establish the identity of the shabu seized, the procedures laid down in R.A. No.
9165 should be complied with. It was pointed out that Sec. 21 of the Implementing Rules and
Regulations of R.A. No. 9165 clearly outlines the post-seizure procedure in taking custody of
seized drugs. It states:
(1) The apprehending team having initial custody and control of the drugs
shall, immediately after seizure and confiscation, physically inventory and
photograph the same in the presence of the accused or the person/s from whom
such items were confiscated and/or seized, or
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his/her representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public official who shall be required
to sign the copies of the inventory and be given a copy thereof (Underscoring
supplied).
The Court held that what is material in the prosecution for illegal sale of dangerous drugs
is proof that the transaction or sale actually took place, coupled with the presentation in court
of evidence of corpus delicti. Prosecutions for illegal sale of prohibited drugs necessitate that
the elemental act of possession of prohibited substance be established with moral certainty,
together with the fact that the same is not authorized by law. The dangerous drug itself
constitutes the very corpus delicti of the offense and the fact of its existence is vital to a
judgment of conviction. Therefore, it is essential that the identity of the prohibited drug be
shown beyond doubt by complying with the law. In this case, declared the Court, the arresting
officers failed to strictly comply with the procedures for the custody and disposition of
confiscated dangerous drugs as prescribed by R.A. No. 9165. The arresting officers did not mark
the shabu immediately after they arrested the accused. Further, while there was testimony
regarding the marking of the shabu after it was turned over to the police investigator, no
evidence was presented to prove that the marking thereof was done in the presence of the
accused. Also, fatal in the prosecution's case is the failure of the arresting officers to take a
photograph and make an inventory of the confiscated materials in the presence of the accused
or there was no mention that any representative from the media, DOJ or any elected public
official had been present during the inventory or that any of these persons had been required
to sign the copies of the inventory. Clearly, none of the statutory safeguards mandated by R.A.
No. 9165 was observed. Hence, the failure of the buy-bust team to comply with the procedure
in the custody of the seized drugs raises doubt as to its origins.
Nevertheless, while the seized drugs may be admitted in evidence, it does not
necessarily follow that the same should be given evidentiary weight if the procedures provided
by
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R.A. No. 9165 were not complied with. The admissibility of the seized dangerous drugs in
evidence should not be equated with its probative value in proving the corpus delicti. The
admissibility of evidence depends on its relevance and competence while the weight of
evidence pertains to evidence already admitted and its tendency to convince and persuade.
Finally, ruled the Court, the presumption of regularity in the performance of official duty
relied upon by the lower courts cannot by itself overcome the presumption of innocence nor
constitute proof of guilt beyond reasonable doubt. As a rule, the testimony of police officers
who apprehended the accused is accorded full faith and credit because of the presumption that
they have performed their duties regularly. However, when the performance of their duties is
tainted with irregularities, such presumption is effectively destroyed (See also Mallilin v.
People, G.R. No. 172953, April 30,2008; People v. Obmiranis, G.R. No.
181492, December 16, 2008; People v. Garcia, G.R. No. 173480, February
25, 2009; People v. Cervantes, G.R. No. 181494; Catuiran v. People, 175647,
May 8, 2009; People v. Barba; G.R. No. 182420, July 23,2009; People v.
Gatlabayan, G.R. No. 186467, July 13,2011).
The equipoise rule
1. The presumption of innocence has given rise to a jurisprudential rule referred to as
the'equipoise rule' which is well-settled in this jurisdiction and which is a consequence of
such presumption. The application of the rule is triggered by a situation where the court is faced
with conflicting versions of the prosecution and the defense and where the evidence, facts and
circumstances are capable of two or more explanations, one of which is consistent with the
innocence of the accused and the other consistent with his guilt. This situation cannot fulfill the
test of moral certainty and is not sufficient to support a conviction. The court then will have to
resort to the equipoise rule.
"The equipoise rule provides that where the evidence in a criminal case is evenly
balanced, the constitutional presumption of innocence tilts the scales in favor of the
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accused" (People v. Erguiza, G.R. No. 171348, November 26,
2008). If the inculpatory testimony is capable of two or more
explanations, one consistent with the innocence of the accused
persons and the other consistent with their guilt, then the
evidence does not fulfill the test of moral certainty and is not
sufficient to support a conviction (People v. Navarro, G.R.
No. 173790, October 11, 2007; People v. Cervantes, G.R. No.
181494, March 17,2009).
2. There is, therefore, no equipoise if the evidence is
not evenly balanced. Said rule is not applicable where the
evidence presented is not equally weighty. The equipoise rule
cannot be invoked where the evidence of the prosecution is
overwhelming (Malana v. People, G.R. No. 173612, March 26,
2008).
Right to be informed of the nature and cause of accusation
1. In order to inform the accused of the nature and
cause of accusation against him, it is necessary for the complaint or information to contain those matters required by the
statute or by the Rules of Court, to wit:
(a) To state the name and surname of the accused
or any appellation or nickname by which he has been or is
known and if his name cannot be ascertained, to describe
him under a fictitious name (Sec. 7, Rule 110, Rules of
Court).
(b) To state the name and surname of the offended
party or any appellation or nickname by which such person has been or is known and if there is no other way of
identifying him, to describe him under a fictitious name
(Sec. 12, Rule 110, Rules of Court); if the offended party is
a juridical person, it is sufficient to state its name, or any
name or designation by which it is known or by which it
may be identified (Sec. 12[c], Rule 110, Rules of Court).
(c) To state with sufficient clarity and in an ordinary and concise language, the acts or omissions constituting the offense to enable the accused to know the offense he is being charged with (Sec. 9, Rule 110, Rules of
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Court); to state the designation of the offense given by statute unless there is no such
designation in which case it is sufficient to make reference to the section or subsection of
the statute punishing the offense (Sec. 8, Rule 110, Rules of Court).
(d) To state also in ordinary and concise language, the qualifying and
aggravating circumstances attending the acts imputed to the accused (Sees. 8, 9,
Rule 110, Rules of Court);
(e) To sufficiently allege that the crime was committed or its essential
ingredients occurred at some place within the jurisdiction of the court (Sec. 10, Rule
110, Rules of Court);
(f)
To allege the date of the commission of the acts or omissions constituting
the offense, which date may be one as near as possible to the actual date of the commission of the offense, except when the precise date is a material ingredient of the offense
(Sec. 11, Rule 110, Rules of Court);
(g) In offenses against property, if the name of the offended party is
unknown, the property must be described with such particularity to properly identify the
offense charged (Sec. 12[a], Rule 110, Rules of Court).
2.
It is a basic constitutional right of the accused persons to be informed of the
nature and cause of accusation against them. It would be a denial of accused-appellant's basic
right to due process if he is charged with simple rape and consequently convicted with certain
qualifying circumstances which were not alleged in the information (People v. Lagarde,
G.R. No. 182549, January 20,2009).
3.
In Lagarde, the accused-appellant was charged with rape in an information
which reads:
"That on or about the 27th day of December, 2001, in the municipality of
San Miguel, Province of Leyte, Philippines and within the jurisdiction of this
Honorable court, the above-named accused, with deliberate intent with
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lewd designs and by use of force and intimidation, did then and there willfully,
unlawfully and feloniously have carnal knowledge with [AAA], 11 years old,
against her will to her damage and prejudice.
CONTRARY TO LAW."
The RTC found AAA's testimony credible, noting that at her age, it is inconceivable for
her to concoct a tale of having been raped. Thus, the trial court convicted accused-appellant of
rape aggravated by minority of the victim, use of bladed weapon and force, and uninhabited
place in view of the location of the offense.
The appellate court upheld the trial court's findings of fact and judgment of conviction.
With regard to the penalty, however, the CA ruled that the trial court erred when it imposed
the death sentence on the basis of the following aggravating circumstances: minority, use of
bladed weapon, and uninhabited place. Aside from the abolition of the death penalty, the CA
held that:
"It is basic in criminal procedure that the purpose of the information is to
inform the accused of the nature and cause of the accusation against him or the
charge against him so as to enable him to prepare a suitable defense. It would be
a denial of the right of the accused to be informed of the charges against him,
and consequently, a denial of due process, if he is charged with simple rape and
convicted of its qualified form punishable by death although the attendant
circumstances qualifying the offense and resulting in capital punishment were
not set forth in the indictment on which he was arraigned."
Accused-appellant also questioned the death penalty imposed on him, arguing that the
aggravating circumstances of minority, use of a bladed weapon, and uninhabited place were
not specifically alleged in the information.
The Office of the Solicitor General, on the other hand, agreed with the judgment of
conviction but not with the death penalty for the same reasons submitted by
accused-appellant.
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The Court sustained the Court of Appeals. Said the Court:
"We agree with the appellate court that the death
penalty is not warranted by the alleged aggravating circumstances, i.e., victim's minority, use of bladed weapon,
and uninhabited place. First, the death penalty was abolished under Republic Act No. 9346. Second, the use of a
bladed weapon and uninhibited place cannot be appreciated here because these were not specifically alleged in
the information. Section 8, Rule 110 of the Revised Rules
of Criminal Procedure provides:
Sec. 8. Designation of the offense. — The complaint or information shall state the designation of
the offense given by the statute, aver the acts or
omissions constituting the offense, and specify its
qualifying and aggravating circumstances. If there
is no designation of the offense, reference shall be
made to the section or subsection of the statute punishing it.
It is a basic constitutional right of the accused persons to be informed of the nature and cause of accusation
against them. It would be a denial of accused-appellant's
basic right to due process if he is charged with simple
rape and consequently convicted with certain qualifying
circumstances which were not alleged in the information.
The appellate court correctly ruled that the use of
a bladed weapon and uninhabited place are not circumstances that would call for the imposition of the death
penalty.
The victim's minority does not also qualify the offense to merit the death penalty. To warrant a death sentence, the victim must be under seven (7) years of age.
The applicable provisions, therefore, are the following:
Art. 266-A. Rape; when and how committed. —
X X X
Art. 266-B Penalties x x x
The death penalty shall be imposed x x x
5) When the victim is a child below seven (7)
r r years old."
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4.
May the accused be convicted of violation of Batas Pambansa Big. 22 if the check
described in the information is not the check allegedly issued and admitted in evidence?
In Dico v. Court of Appeals, 452 SCRA 441, the accused was charged with
three (3) counts of violation of Batas Pambansa Big. 22 (B.P. Big. 22) involving among other
checks, FEBTC Check No. 364903 for P100,000 as described in the information. Dining his appeal
to the Supreme Court following his conviction by the lower courts, the Court discovered a
discrepancy between the checked marked as exhibit and the check described in the
information.
The information filed by the public prosecutor described the check as FEBTC Check No.
364903 dated 12 May 1993 in the amount of P100,000 payable to Equitable Banking Corporation. However, the parties, including the lower courts, overlooked the fact that the check
being identified in court was different from that described in the information. The prosecution
marked as its Exhibit "B" FEBTC Check No. 369403 (not FEBTC Check No. 364903), dated 12 May
1993 in the amount of P100,000 payable to Equitable Banking Corporation.
The issue as to the identity of the check, though not raised as an error, should according
to the Court, be considered in favor of the accused. The variance in the identity of the check
nullifies the conviction of the accused. The identity of the check enters into the first element of
the offense under Section 1 of B.P. Big. 22 — that a person draws or issues a check on account
or for value. There being a discrepancy in the identity of the checks described in the information
and that presented in court, petitioner's constitutional right to be informed of the nature of the
offense charged will be violated if his conviction is upheld.
5.
Where the date of the check and the amount thereof as stated in the
information vary with the exhibits submitted by the prosecution, the inconsistencies violate the
constitutional right of the accused to be informed. Without a sufficient identification of the
dishonored check in the information, the
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conviction of the accused should be set aside (Olivarez v. Court of Appeals, 465 SCRA
465).
6.
A violation of the right under discussion is exemplified by Gutierrez v.
Hernandez, 524 SCRA 1, June 8, 2007, where the judge set a criminal case for
arraignment and hearing knowing fully well that no preliminary investigation had been
conducted and no information had yet been filed before his court. He justified his actions as
"pursuant to his judicial functions as presiding judge..." Calling the act as "a clear display of x x
x," the Court declared said act as having clearly violated the right of the accused to due process,
to be informed of the accusation against him, and to have a copy of the Information before
arraignment (Gutierrez v. Hernandez, A.M. No. MTJ-06-1628, June 8, 2007).
7.
In yet another case, the petitioners were charged with violation of Republic Act
(R.A.) No. 6539 (Anti-Carnapping Act of 1992) before the RTC of Malolos City, Bulacan. The
information did not allege that the alleged felonious act of the petitioners was committed by
means of violence against or intimidation of any person, or force upon things. In other words,
the information was only for simple carnapping the penalty for which under Sec. 14 of the law
shall not exceed seventeen years and four months.
After trial, petitioners were sentenced to suffer the penalty of seventeen (17) years and
four (4) months to thirty (30) years imprisonment, a penalty in excess of that provided for
simple carnapping. The penalty meted is actually equivalent to the imprisonment imposable
when the carnapping is committed by means of violence against or intimidation of any person,
or force upon things;
The petitioners appealed to the CA which affirmed the RTC decision with modification,
as follows: x x x "MODIFICATION that the accused-appellants shall suffer the indeterminate
prison term of SEVENTEEN YEARS AND FOUR MONTHS, as minimum, to THIRTY YEARS, as
maximum."
The petitioners moved to reconsider this decision, but the CA denied their motion. In
the Supreme Court, the petitioners
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raised as error, among others, the imposition upon them of the penalty of seventeen (17) years
and four (4) months to thirty (30) years. The petitioners also contended that assuming they
were guilty of the crime charged, the penalty imposed by the lower courts was erroneous. They
argue that the information failed to allege any circumstance that would warrant the imposition
of a higher penalty.
The Court agreed with the petitioners with respect to the erroneous penalty imposed.
The Court noted that the information charging the petitioners with violation of R.A. No. 6539, as
amended, did not allege that the carnapping was committed by means of violence against, or
intimidation of, any person, or force upon things. While these circumstances were proven at the
trial, they cannot be appreciated because they were not alleged in the information. Thus, the
lower courts erred when they took these circumstances into account in imposing the penalty
which they pegged at seventeen (17) years and four (4) months to thirty (30) years
imprisonment. In the absence of these circumstances, the charge against the petitioners is
confined to simple carnapping whose imposable penalty should have been imprisonment for
not less than fourteen (14) years and eight (8) months, and not more than seventeen (17) years
and four (4) months (Andres v. People, G.R. No. 185860, June 5,2009).
8. In implementing the right of the accused to be informed of the nature and cause of
accusation against him, the Rules of Court specifically require that the acts or omissions
complained of as constituting the offense, including the qualifying and aggravating
circumstances must be stated in ordinary and concise language, not necessarily the language
used in the statute, but in terms sufficient to enable a person of common understanding to
know what offense is being charged and the attendant qualifying and aggravating
circumstances present, so that the accused can properly defend himself and the court can
pronounce judgment. To broaden the scope of the right, the Rules authorize the quashal, upon
motion of the accused, of an information that fails to allege the acts constituting the offense
(Go v. Bangko Sentral ng Pilipinas, G.R. No. 178429, October 23,2009).
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9. Does conviction for the sale and possession of methamphetamine hydrochloride
(shabu) violate the accused's constitutional right to be informed of the nature and causes of
the accusations against him if the fact that was established and proven during trial was the sale
and possession of ephedrine, a regulated drug?
The Supreme Court answered in the negative, ruling that the chemical formula of
ephedrine is CIO H15 NO, whereas that of methamphetamine is CIO H15 N. The only difference
between ephedrine and methamphetamine is the presence of a single atom of oxygen in the
former. The removal of the oxygen in ephedrine will produce methamphetamine. With
ephedrine containing fifty percent (50%) of methamphetamine hydrochloride if the oxygen
content in the former is removed, the nearly 680 grams of ephedrine seized from the appellant
contains about 340 grams of methamphetamine hydrochloride. The offenses designated in the
Informations are for violations of Sections 15 and 16 of R.A. 6425, which define and penalize the
crimes of illegal sale and possession of regulated drugs. The allegations in the Informations for
the unauthorized sale and possession of "shabu" or methamphetamine hydrochloride are
immediately followed by the qualifying phrase "which is a regulated drug." Thus, it is clear that
the designations and allegations in the Informations are for the crimes of illegal sale and illegal
possession of regulated drugs. Ephedrine has been classified as a regulated drug by the
Dangerous Drugs Board in Board Resolution No. 2, Series of 1988. Sections 4 and 5, Rule 120 of
the Rules of Court, can be applied by analogy in convicting the appellant of the offenses
charged, which are included in the crimes proved. Under these provisions, 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. At any rate, a minor variance between
the information and the evidence does not alter the nature of the offense, nor does it
determine or qualify the crime or penalty, so that even if a discrepancy exists, this cannot be
pleaded as a ground for acquittal. In other words, his right to be informed of the charges against
him has not
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been violated because where an accused is charged with a specific crime, he is duly informed
not only of such specific crime, but also of lesser crimes or offenses included therein. (People
of the Philippines v. Joselito Noque y Gomez, G.R. No. 175319, January
15,2010).
10. When the counsel of the accused actively participated in the proceedings this
indicates that the accused was fully aware of the charges against him, otherwise, his counsel
would have objected and informed the court of the blunder (People v. Pangilinan, 518
SCRA 358). But the failure to file a motion to quash the information cannot amount to a
waiver of the constitutional right to be informed (Burgos v. Sandiganbayan, 413 SCRA
385).
Right to counsel of the accused and of persons arrested, detained or under
custodial investigation; Republic Act No. 7438 (Bar 1990; 1991; 1998;
2002)
1. The Bill of Rights guarantees the right of counsel to an accused (Sec. 14[2]),
Article III, 1987 Constitution of the Philippines). Under Sec. 1(c) of Rule 115, the accused has the
right to "x x x defend in person and by counsel at every stage of the proceedings, from
arraignment to promulgation of judgment" (Italics supplied).
"In criminal cases, the right of an accused person to be assisted by a member of the bar
is immutable. Otherwise, there would be a grave denial of due process. Thus, even if the
judgment had become final and executory, it may still be recalled, and the accused afforded the
opportunity to be heard by himself and counsel" (Hilario v. People, G.R. No. 161070,
April 14,2008).
2. One need not however, be an accused to avail of the right to counsel and the
right to counsel does not commence only during the trial. Every person under custody of the
law enjoys the right.
Republic Act No. 7438 (Sec. 2) provides that "Any person arrested,
under custodial investigation shall at all times be assisted by counsel."
detained or
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Meaning of custodial investigation; extended meaning
1.
Custodial investigation is the stage "where the police investigation is no longer a
general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into
custody by the police who carry out a process of interrogation that lends itself to elicit
incriminating statements" (People v. Sunga, 399 SCRA 624). (Bar 2006)
Custodial investigation involves any questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of his freedom of action in any
significant way. It is only after the investigation ceases to be a general inquiry into an unsolved
crime and begins to focus on a particular suspect, the suspect is taken into custody, and the
police carries out a process of interrogations that lend itself to eliciting incriminating statements,
that the rule begins to operate (Aquino v. Paiste, G.R. No. 147782, June 25,2008).
2.
Republic Act No. (R.A.) 7438 has however, redefined the concept of 'custodial
investigation' and has extended this constitutional guarantee to situations in which an individual
has not been formally arrested but has merely been "invited" for questioning. Specifically, Sec. 2
of R.A. 7438 provides that "custodial investigation shall include the practice of issuing an
invitation to a person who is investigated in connection with an offense he is suspected to
have committed, without prejudice to the liability of the 'inviting' officer for any violation of law
(Sec. 2[ff, R.A. 7438).
Rights of persons under custodial investigation; custodial investigation
report
1. Republic Act No. 7438 provides for the following requisites for a valid custodial
investigation report:
(a)
The report shall be reduced to writing by the investigating officer;
(b) If the person arrested or detained does not know how to read and write,
it shall be read and adequately explained to him by his counsel or by the assisting
counsel in the language or dialect known to such arrested
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or detained person. This is to be done before the report
is signed. If this procedure is not done, the investigation
report shall be null and void and of no effect whatsoever
(Sec. 2[c], RA. 7438).
2.
The importance of the right to counsel is so vital that under existing law, "In the
absence of any lawyer, no custodial investigation shall be conducted and the suspected person
can only be detained by the investigating officer in accordance with the provisions of Art. 125 of
the Revised Penal Code" (Sec. 3[c]), RA. 7438).
Republic Act No. 7438 also clearly mandates that a counsel "shall at
all times be
allowed to confer privately with the person arrested, detained or under custodial investigation x
x x" (Sec. 2[b], RA. 7438).
The purpose of providing counsel to a person under custodial investigation is to curb the
uncivilized practice of extracting a confession (People v. Duefias, Jr., 426 SCRA 666).
3.
Even a person under investigation for an offense has the right to have a
"competent and independent counsel preferably of his own choice." Included in this right is the
(Sec. 12[1], Art. Ill, 1987 Constitution of
the Philippines; Sec. 2[b], RA. 7438).
right to be informed of his right to counsel
The purpose of providing counsel to a person under custodial investigation is to curb the
police-state practice of extracting a confession that leads suspects to make self- incriminating
statements. In order to comply with the constitutional mandate, there should likewise be
meaningful communication to and understanding of his rights by the suspect, as opposed to a
routine, peremptory and meaningless recital thereof (People v. Rapeza, 520 SCRA 596,
April 4, 2007).
The right of a person under interrogation "to be informed" implies a correlative
obligation on the part of the police investigator to explain and contemplates an effective
communication that results in an understanding of what is conveyed (People v. Guillermo,
420 SCRA 326).
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Failure to inform the suspect of her right to counsel during custodial investigation attains
significance only if the person under investigation makes a confession in writing without aid of
counsel and which is then sought to be admitted against the accused during the trial. In such
case, the tainted confession obtained in violation is inadmissible in evidence against the accused
(Eugenio v. People 549 SCRA 433).
4.
The suspect must also be advised that he has the option to reject the counsel
provided for him by the police authorities, which fact must similarly appear in the extrajudicial
confession. Where the participation of a lawyer in the proceedings was confined to the
notarization of the suspect's confession, the same is not considered, in legal contemplation, the
kind of legal assistance that should be accorded to the suspect (People v. Rapeza, 520
SCRA 596).
5.
Aside from the rule that the counsel must be competent and independent and
preferably the choice of the person arrested, detained or under custodial investigation, the
assisting counsel provided by the investigating officer is "any lawyer, except those directly
affected by the case, those charged with conducting preliminary investigation or those charged
with the prosecution of crimes" (Sec. 3, RA. 7438).
6.
Jurisprudence supports the view that a mere inquiry on the commission of a
crime by law enforcement authorities does not automatically trigger the application of the right
to counsel.
"x x x It is only after the investigation ceased to be a general inquiry into an unsolved
crime and begins to focus on a particular suspect, the suspect is taken into custody, and the
police carries out a process of interrogations that lend itself to eliciting incriminating statements,
that the Miranda Rule begins to operate, though R.A. No. 7438 has extended this constitutional
guarantee to situations in which an individual has not been formally arrested but has merely
been "invited" for questioning" (Aquino v. Paiste, 555 SCRA 255, June 25, 2008).
The moment a police officer tries to elicit admissions or confessions or even plain information
from a suspect, the
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latter should, at this juncture, be assisted by counsel, unless he waives this right in writing and in
the presence of counsel (People v. Rapeza, 520 SCRA 596).
7.
A police line-up is not part of the custodial inquest since the accused at that stage
is not yet being investigated. In the line-up, the right to counsel does not yet attach (People v.
Tolentino, 423 SCRA 448).
8.
It has also been held that a barangay chairman is not deemed a law
enforcement officer for purposes of applying Section 12(1) and (3) of Art. Ill of the Philippine
Constitution. Thus, a suspect's uncounselled statement before the barangay chairman is
admissible (People v. Ulit, 423 SCRA 374).
9.
The right to counsel applies in certain pre-trial proceedings that can be deemed
"critical stages" in the criminal process like in a preliminary investigation. This investigation can
be no different from the in-custody interrogations by the police, for a suspect who takes part in
a preliminary investigation will be subjected to no less than the State's processes, oftentimes
intimidating and relentless, of pursuing those who might be liable for criminal prosecution
(People v. Sunga, 399 SCRA 624).
Right to choose a counsel is not plenary; right may be waived
1. There is no denial of the right to counsel where a counsel de oficio is appointed
during the absence of the accused's counsel de parte, or in this case the regular counsel de
oficio, pursuant to the court's desire to finish the case as early as practicable under the
continuous trial system. The choice of counsel by the accused in a criminal prosecution is not a
plenary one. If the chosen counsel deliberately makes himself scarce, the court is not precluded
from appointing a de oficio counsel, which it considers competent and independent, to
enable the trial to proceed until the counsel of choice enters his appearance. Otherwise, the
pace of a criminal prosecution will be entirely dictated by the accused, to the detriment of the
eventual resolution of the case (People v. Siongco, G.R. No. 186472, July 5,2010).
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2. The right to counsel may be waived but to insure that the waiver is voluntary and
intelligent, the waiver must be in writing and in the presence of the counsel of the accused
(People v. Del Castillo, 439 SCRA 601). The right to a competent and independent
counsel is one of the rights of the accused guaranteed under Sec. 12(1) of Art. Ill of the Philippine
Constitution. As the proviso declares: " xx x These rights cannot be waived except
in writing and in the presence of counsel."
Competent and independent counsel
1. The meaning of "competent counsel" and its standards were explained in People v.
Deniega, 251 SCRA 626 as follows:
"The lawyer called to be present during such investigations should be as far as
reasonably possible, the choice of the individual undergoing questioning. If the lawyer
were one furnished in the accused's behalf, it is important that he should be competent
and independent, i.e., that he is willing to fully safeguard the constitutional rights of the
accused, as distinguished from one who would be merely giving a routine, peremptory
and meaningless recital of the individual's constitutional rights. In People v. Basay,
th[e] Court stressed that an accused's right to be informed of the right to remain silent
and to counsel "contemplates the transmission of meaningful information rather than
just the ceremonial and perfunctory recitation of an abstract constitutional principle."
Ideally therefore, a lawyer engaged for an individual facing custodial
investigation (if the latter could not afford one) should be engaged by the accused
(himself), or by the latter's relative or person authorized by him to engage an attorney or
by the court, upon proper petition of the accused or person authorized by the accused to
file such petition." Lawyers engaged by the police, whatever testimonials are given as
proof of their probity and supposed independence, are generally suspect, as in many
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areas, the relationship between lawyers and law enforcement authorities can be
symbiotic.
x x x The competent or independent lawyer so engaged should be present
from the beginning to end, i.e., at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in
a while either to give advice to the accused that he may either continue, choose to
remain silent or terminate the interview CPeople v. Rapeza, G.R. No. 169431,
April 3,2007).
2. Lumanog, et al. v. People, G.R. No. 182555, September 7, 2010
states: "The modifier competent and independent in the 1987 Constitution is not an
empty rhetoric. It stresses the need to accord the accused, under the uniquely stressful
conditions of a custodial investigation, an informed judgment on the choices explained to him
by a diligent and capable lawyer (People v. Suela, 373 SCRA 163; People v.
Deniega, 251 SCRA 626, People v. Santos, 283 SCRA 443). An effective and
vigilant counsel necessarily and logically requires that the lawyer be present and able to advise
and assist his client from the time the confessant answers the first question asked by the
investigating officer until the signing of the extrajudicial confession. Moreover, the lawyer
should ascertain that the confession is made voluntarily and that the person under investigation fully understands the nature and the consequence of his extrajudicial confession in
relation to his constitutional rights. A contrary rule would undoubtedly be antagonistic to the
constitutional rights to remain silent, to counsel and to be presumed innocent" (People v.
Labatan, 320 SCRA 140).
Citing previous decisions, Lumanog further declares: "The right to counsel has been
written into our Constitution in order to prevent the use of duress and other undue influence in
extracting confessions from a suspect in a crime. The lawyer's role cannot be reduced to being
that of a mere witness to the signing of a pre-prepared confession, even if it indicated
compliance with the constitutional rights of the accused. The accused is entitled to effective,
vigilant and independent
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375
counsel. Where the prosecution failed to discharge the State's burden of proving with clear and
convincing evidence that the accused had enjoyed effective and vigilant counsel before he
extrajudicially admitted his guilt, the extrajudicial confession cannot be given any probative
value (People v. Peralta, 426 SCRA 472, citing People v. Binamird, 277 SCRA
232; People v. Ordono, 334 SCRA 673; People v. Rodriguez, 341 SCRA 645,
653; People v. Rayos, 351 SCRA 336, 344; and People v. Patungan, 354 SCRA
413; Lumanog, et al. v. People, G.R. No. 182555, September 7,2010).
3.
An extrajudicial confession executed by a suspect assisted by a counsel who
failed to meet the exacting standards of an independent and competent counsel is deemed an
un- counseled confession and, therefore, inadmissible in evidence (People v. Tomaquin,
435 SCRA 23).
4.
In the case of People v. Bermas, 306 SCRA 135 three PAO lawyers were
assigned to an accused who was charged with raping his own daughter. The records show that
the first lawyer without sufficient reason did not cross-examine the private complainant and
thus, effectively waived the right to cross-examination. He subsequently asked to be relieved of
his duties as counsel. The second lawyer who was appointed by the court, missed several dates
and could no longer be located. A third reluctant lawyer was appointed by the court and later
ceased to appear for the accused.
This Court held that:
"The right to counsel must be more than just the presence of a lawyer in the
courtroom or the mere propounding of standard questions and objections. The right to
counsel means that the accused is amply accorded legal assistance extended by a
counsel who commits himself to the cause for the defense and acts accordingly. The
right assumes an active involvement by the lawyer in the proceedings, particularly at the
trial of the case, his bearing constantly in mind of the basic rights of the accused, his being
well-versed on the case and his knowing
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the fundamental procedures, essential laws and existing jurisprudence. The right of an
accused to counsel finds substance in the performance by the lawyer of his sworn duty
of fidelity to his client. Tersely put, it means an efficient and truly decisive legal assistance
and not a simple perfunctory representation" (People v. Nadera 324 SCRA
490).
5.
Where the participation of the lawyer in the proceedings was confined to the
notarization of the suspect's confession, the same is not considered, in legal contemplation, the
kind of legal assistance that should be accorded to the suspect (People v. Rapeza, 520
SCRA 596).
6.
The right to counsel involves more than the mere presence of a lawyer. It means
an efficient and decisive legal assistance and not a simple perfunctory representation (People
v. Sunga, 399 SCRA 624).
Right to counsel in administrative cases
1.
There is no law, jurisprudence or rule which mandates that an employee should
be assisted by counsel in an administrative case. On the contrary, jurisprudence is in unison in
saying that assistance of counsel is not indispensable in administrative proceedings (Perez v.
People, G.R. No. 164763, February 12,2008).
2.
While investigations conducted by an administrative body may at times be akin
to a criminal proceeding, the fact remains that under existing laws, a party in an administrative
inquiry may or may not be assisted by counsel, irrespective of the nature of the
charges and of respondent's capacity to represent himself, and no duty rests on such body to
furnish the person being investigated with counsel. Thus, the right to counsel is not imperative
in administrative investigations because such inquiries are conducted merely to determine
whether there are facts that merit disciplinary measures against erring public officers and
employees, with the purpose of maintaining the dignity of government service (Perez v.
People, G.R. No. 164763, February 12,2008; See also
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377
Lastimoso v. Asayo, 517 SCRA 522 and Ampong v. Civil Service Commission,
CSC-Regional Office No. 11,563 SCRA293).
Extrajudicial confessions; rights of persons under custodial investigation
(Bar 2006)
1.
A confession is admissible in evidence if it is satisfactorily shown to have been
obtained within the limits imposed by the 1987 Constitution (People v. Rapeza, 520
SCRA 596, April 3,2007).
2.
Section 12, Art. Ill thereof states in part, to wit:
"SEC. 12. (1) Any person under investigation for the commission of an
offense shall have the right to be informed of his right to remain silent and to
have competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of counsel.
"(2) No torture, force, violence, threat, intimidation or any other means
which vitiate the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited."
(3) Any confession or admission obtained in violation of this or Section 17
hereof shall be inadmissible in evidence against him."
"(4) The law shall provide for penal and civil sanctions for violation of this
section as well as compensation for the rehabilitation of victims of tortures or
similar practices, and their families."
3.
The extrajudicial confession must also be tested for voluntariness, that is, if it was
given freely by the confessant without any form of coercion or inducement (People v.
Rapeza, 520 SCRA 596, April 3,2007).
The voluntariness of a confession may be inferred from its language such that if, upon its
face, the confession exhibits no suspicious circumstances tending to cast doubt upon its
integrity, it being replete with details — which could only
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be supplied by the accused — reflecting spontaneity and coherence, it may be considered
voluntary. A confession is not voluntary if the alleged confession contains facts and details
which appear to have been supplied by the investigators themselves (People v. Rapeza,
520 SCRA 596, April 4,2007).
4.
The practice of inducing suspects to sign receipts for property allegedly
confiscated from their possession is unusual and violative of the constitutional right to remain
silent as when the accused was made to acknowledge that the six (6) small plastic bags of dried
marijuana leaves were confiscated from him by signing a receipt and to sign a receipt for the
P20.00 bill as purchase price of the dried marijuana leaves he sold to a police officer. Obviously,
in a situation like this, the accused was the victim of a clever ruse to make him sign these
alleged receipts which in effect are extra-judicial confessions of the commission of the offense.
Indeed it is unusual for appellant to be made to sign receipts for what were taken from him. It is
the police officers who confiscated the same who should have signed such receipts. No doubt
this is a violation of the constitutional right of the accused to remain silent whereby he was
made to admit the commission of the offense without informing him of his right. Such a
confession obtained in violation of the Constitution is inadmissible in evidence. The Inventory
Receipt signed by appellant is thus not only inadmissible for being violative of appellant's
custodial right to remain silent; it is also an indicium of the irregularity in the manner by which
the raiding team conducted the search of appellant's residence (People v. Del Castillo,
439 SCRA 601; People vs. Casimiro, G.R. No. 146277, June 20, 2002). (Bar
2009)
5.
Republic Act No. 7438 (Sec. 2[d]) provides for the following requisites for
the validity of an extrajudicial confession made by a person arrested, detained or under
custodial investigation:
(a) It shall be in writing and signed by the person arrested, detained or under
custodial investigation;
(b) It must be signed in the presence of his counsel or in the latter's absence,
upon a valid waiver;
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(c) In the event of a valid waiver, it must be signed in the presence of any of the
parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge,
district school supervisor, or priest or minister of the gospel as chosen by him.
If there is any waiver of the provisions of Art. 125 of the Revised Penal Code, the waiver
must:
(a)
be in writing; and
(b)
signed by the person arrested, detained or under custodial investigation;
(c)
such person must sign the waiver in the presence of his counsel.
and
If the above is not complied with, "the waiver shall be null and void and of no
effect" (Sec. 2[e], RA. 7438).
Thus, even if the police officers claimed that upon arresting the accused, they informed
him of his constitutional rights to remain silent, that any information he would give could be
used against him, and that he had the right to a competent and independent counsel,
preferably, of his own choice, and if he cannot afford the services of counsel he will be provided
with one, any waiver of his rights could not have been valid since these rights can only be
waived in writing and with the assistance of counsel. The constitutional requirement obviously
had not been observed. Settled is the rule that the moment a police officer tries to elicit
admissions or confessions or even plain information from a suspect, the latter should, at that
juncture, be assisted by counsel, unless he waives this right in writing and in the presence of
counsel. The purpose of providing counsel to a person under custodial investigation is to curb
the police-state practice of extracting a confession that leads appellant to make
self-incriminating statements (Lumanog, et al. v. People, G.R. No. 182555,
September 7, 2010).
6. Admissions under custodial investigation made without the assistance of counsel are
barred as evidence. A suspect's confession, whether verbal or non-verbal, when tak
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en without the assistance of counsel without a valid waiver of such assistance regardless of the
absence of such coercion, the fact that it had been voluntarily given, is inadmissible in evidence,
even if such confession were gospel truth (People v. Ador, 432 SCRA 1).
7.
Summarizing jurisprudential and statutory pronouncements, the Court has
consistently held that an extrajudicial confession, to be admissible, must conform to the
following requisites: 1) the confession must be voluntary; 2) the confession must be made with
the assistance of a competent and independent counsel, preferably of the confessant's choice;
3) the confession must be express; and 4) the confession must be in writing (People v.
Bagnate, 428 SCRA 633; People v. Rapeza, G.R. No. 169431, April 3, 2007;
People v. Tuniaco, G.R. No. 185710, January 19,2010).
8.
Assuming that all constitutional and statutory safeguards have been complied
with, "An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti" (Sec. 3, Rule 133, Rules of
Court).
9.
While the Supreme Court has consistently stricken out the extrajudicial
confession extracted in violation of constitutionally enshrined rights and declared it
inadmissible in evidence, the accused will not be entitled to an acquittal if his conviction was
not based on the evidence obtained during such custodial investigation and if even without
the extrajudicial confession of the accused, the testimonial and documentary evidence on
record could establish his guilt beyond reasonable doubt (People v. Lumanog, G.R. No.
182555, September 7, 2010).
10. The accused's confession to a "bantay bayan" is inadmissible in evidence if
the same was done without the assistance of his lawyer and without waiver of his right to
counsel (People v. Lauga, G.R. No. 186228, March 15, 2010). The Supreme Court
held in this case that fcarangay-based volunteer organizations in the nature of watch groups, as
in the case of the "bantay bayan," are recognized by the
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local government unit to perform functions relating to the preservation of peace and order at
the barangay level and any inquiry he makes has the color of a state-related function and
objective insofar as the entitlement of a suspect to his constitutional rights provided for under
Section 12, Article III, of the Constitution, otherwise known as the Miranda Rights, is concerned.
Therefore, the extrajudicial confession of appellant taken without counsel was inadmissible in
evidence (People v. Lauga, G.R. No. 186228, March 15, 2010).
Right to speedy trial; speedy disposition of cases (Bar 1996; 2002; 2007)
1. The right to a speedy trial is explicitly guaranteed by Section 14(2) of Article III of
the Constitution. Thus " x x x In criminal cases, the accused shall x x x enjoy
the right x x x to have a speedy, impartial and public trial x x x" (See People
v. Anonas, G.R. No. 156847, January 21,2007).
The same right is echoed and reinforced in Sec. 1(h) of Rule 115 of the Rules of Court
declaring that one of the rights of an accused at trial is "To have a speedy, impartial and
public trial."
Nowhere is the guarantee of the right to speedy disposition of cases more significant
and meaningful than in criminal cases where not only the fortune, but the life and liberty of the
accused as well, are at stake (Cabarles v. Maceda, 516 SCRA 303).
On the other hand, the right to a speedy disposition of cases is provided for under
Section 16, Article III, of the Constitution which provides that, "all persons shall have the
right to a speedy disposition of their cases before all judicial, quasi-judicial,
or administrative bodies."
2. This right to a speedy trial has consistently been defined by the Court
substantially "as one free from vexatious, capricious and oppressive delays, its purpose being to
assure that an innocent person may be free from the anxiety and expense of a court litigation
or, if otherwise, of having his guilt
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determined within the shortest possible time compatible with the presentation and
consideration of whatsoever legitimate defense he may interpose."
It bears stressing that although the Constitution guarantees the right to the speedy
disposition of cases, it is a flexible concept. Due regard must be given to the facts and
circumstances surrounding each case. The right to a speedy disposition of a case, like the right to
speedy trial, is deemed violated only when the proceedings are attended by vexatious,
capricious, and oppressive delays, or when unjustified postponements of the trial are asked for
and secured, or when without cause or justifiable motive, a long period of time is allowed to
elapse without the party having his case tried. Just like the constitutional guarantee of "speedy
trial," "speedy disposition of cases" is a flexible concept. It is consistent with delays and depends
upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and
(Ombudsman v. Jurado, G.R. No.
154155, August 6,2008; Lumanog, et al. v. People, G.R. No. 182555,
September 7,2010).
oppressive delays which render rights nugatory
The right does not preclude justifiable postponements and delay when warranted by
the situation. In the application of the constitutional guarantee of the right, particular regard
must also be taken of the facts and circumstances peculiar to each case (Domondon v.
Sandiganbayan, 476 SCRA 496).
Although a speedy determination of an action or proceeding implies a speedy trial, it
should be borne in mind that speed is not the chief objective of a trial. Careful and deliberate
consideration for the administration of justice is more important than a race to end the trial. A
genuine respect for the rights of all parties, thoughtful consideration before ruling on important
questions, and a zealous regard for the just administration of law are some of the qualities of a
good trial judge, which are more important than a reputation for hasty disposal of cases
(Jamsani-Rodriguez v. Ong, A.M. No. 08- 19-SB-J, April 12, 2011 citing State
Prosecutors v. Muro, 251 SCRA 111).
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3.
Under the Constitution, the right to a "speedy disposition of cases" is not limited
to the accused in criminal proceedings but extends to all parties in all cases, including civil and
administrative cases, and in all proceedings, including judicial and quasi-judicial hearings. Hence,
under the Constitution, any party to a case may demand expeditious action from all officials
who are tasked with the administration of justice (Ombudsman v. Jurado, G.R. No.
154155, August 6,2008).
4. The essence of the judicial function is that justice shall be impartially
administered without unnecessary delay (Re: Complaint Against Justice Elvi John S.
Asuncion of the Court of Appeals, 518 SCRA 512).
When right to speedy disposition of cases is violated
1.
It has been held that the right to speedy disposition of cases is considered
violated only when the proceedings are attended by vexatious, capricious, and oppressive
(Rodriguez v.
Sandiganbayan, 424 SCRA 236; Dimayacyac v. Court of Appeals, 430 SCRA
121; Mendoza-Ong v. Sandiganbayan, 440 SCRA 423; Cabarles v. Maceda,
516 SCRA 303; Tilendo v. Ombudsman, 533 SCRA 331, September 13, 2007;
Gaas v. Mitmug, G.R. No. 165776, April 30, 2008; Tan v. People, G.R. No.
173637, April 21,2009).
delays. The concept of speedy disposition of cases is relative or flexible
2.
Although courts have reiterated time and time again that in all criminal
prosecutions, the accused shall enjoy his right to a speedy trial, the rule finds itself violated in
some instances.
People v. Anonas, G.R. No. 156847, January 31,2007, for example is one
case which aptly demonstrates a clear disregard of the right.
Here, the respondent, a police officer assigned to the Western Police District, was
apprehended by his colleagues during a raid in Sta. Cruz, Manila. The apprehending police
officers claimed that he and four other persons were sniffing methamphetamine hydrochloride,
more popularly known as
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shabu, a regulated drug, and that he was in possession of an unlicensed .38. caliber revolver.
Two separate informations were filed against the respondent, one for illegal possession
of methamphetamine hydrochloride, and another for illegal possession of firearm. Respondent
filed with the trial court a motion for reinvestigation on grounds that he was apprehended
without a warrant of arrest and that no preliminary investigation was conducted. The trial court
granted the motion and a prosecutor was designated to conduct the reinvestigation who was
later appointed judge of the RTC in Iloilo. Apparently, he did not inform the prosecutor who
took his place about the pending reinvestigation. Meanwhile, respondent has remained in
detention.
Almost five years after, the respondent filed with the trial court a motion to dismiss the
informations, contending that the delay in the reinvestigation violated his right to due process.
The trial court heard the motion to dismiss. It turned out that the prosecutor who took over the
case was not aware of the pending reinvestigation. The trial court then directed him to
terminate the reinvestigation within thirty (30) days. Within the period granted him, the
prosecutor manifested before the trial court that the reinvestigation had been terminated and
that evidence exist to sustain the allegations in the informations against respondent. The trial
court then issued an Order denying respondent's motion to dismiss the informations. His
motion for reconsideration was likewise denied.
Respondent then filed a petition for certiorari with the Court of Appeals, contending
that the trial court committed grave abuse of discretion amounting to lack or excess of
jurisdiction in denying his motion to dismiss both informations. The Court of Appeals granted
the petition and set aside the Order of the trial court and dismissed the criminal charges against
respondent.
The Court of Appeals ruled that having been made to wait for the resolution of his
motion for reinvestigation for almost five years while being detained, the right of respondent to
due process was violated. The Court of Appeals
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then ordered that respondent be released from custody. The Government, represented by the
Solicitor General, moved for reconsideration, but the Court of Appeals denied the same.
Citing previous cases, the Supreme Court reiterated the rule that accused persons are
guaranteed a speedy trial by the Bill of Rights and that such right is denied when an accused
person, through the vacillation and procrastination of prosecuting officers, is forced to wait
many months for trial. It called on all courts to be the last to set an example of delay and
oppression in the administration of justice and it is the moral and legal obligation of the courts
to see to it that the criminal proceedings against the accused come to an end and that they be
immediately discharged from the custody of the law.
"The preliminary investigation of the respondent for the offenses charged took more
than four years. He was apprehended for the offenses charged on November 19, 1996. Having
been arrested without a warrant of arrest and not having been afforded a formal investigation,
he prayed for reinvestigation of the cases. The trial court, in an Order dated January 28,1997
ordered a reinvestigation which was terminated only on February 16, 2001. In fact, even the
Solicitor General admitted it took some time for the City Prosecutor to terminate and resolve
the reinvestigation.
There can be no question that respondent was prejudiced by the delay, having to be
confined for more than four oppressive years for failure of the investigating prosecutors to
comply with the law on preliminary investigation. As aptly held by the Court of Appeals,
respondent's right to due process had been violated."
3.
In Angcangco, Jr. v. Ombudsman, 268 SCRA. 301, the Court found
the delay of six years by the Ombudsman in resolving the criminal complaints to be violative of
the constitutionally guaranteed right to a speedy disposition of cases (Cited in People v.
Anonas, supra).
4.
In Cervantes v. Sandiganbayan, 307 SCRA 149, it was held that the
Sandiganbayan gravely abused its discre
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tion in not quashing the Information filed six years after the initiatory complaint, thereby
depriving petitioner of his right to a speedy disposition of the case (People v. Anonas,
supra).
5. Similarly, in Roque v. Office of the Ombudsman, 307 SCRA 104, the Court
ruled that the delay of almost six years disregarded the Ombudsman's duty to act promptly on
complaints before him. The inordinate delay in terminating the preliminary investigation of an
accused violates his constitutional right to due process. Thus, in Roque v. Sandiganbayan,
307 SCRA 104, the Court, restating the pronouncement in Ta- tad v. Sandiganbayan,
159 SCRA 70, held:
We find the long delay in the termination of the preliminary investigation
by the Tanodbayan in the instant case to be violative of the constitutional right of
the accused to due process. Substantial adherence to the requirements of the
law governing the conduct of preliminary investigation, including substantial
compliance with the time limitation prescribed by the law for the resolution of
the case by the prosecutor, is part of the procedural due process constitutionally
guaranteed by the fundamental law. Not only under the broad umbrella of due
process clause, but under the constitutional guaranty of "speedy disposition" of
cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and 1987
Constitutions), the inordinate delay is violative of the petitioner's constitutional
rights. A delay of close to three (3) years cannot be deemed reasonable or
justifiable in the light of the circumstances obtaining in the case at bar. We are
not impressed by the attempt of the Sandiganbayan to sanitize the long delay by
indulging in the speculative assumption that "delay may be due to a painstaking
and grueling scrutiny by the Tanodbayan as to whether the evidence presented
during the preliminary investigation merited prosecution of a former
high-ranking government official." In the first place, such a statement suggests a
double standard of treatment, which must be emphatically rejected. Secondly,
three out of the five charges against the petitioner were for his alleged failure to
file his sworn statement of assets and liabilities required by Republic Act 3019,
which certainly did not involve complicated legal and fac- '
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tual issues necessitating such "painstaking and grueling scrutiny as would justify a
delay of almost three years in terminating the preliminary investigation. The other
two charges relating to alleged bribery and alleged giving [of] unwarranted
benefits to a relative, while presenting more substantial legal and factual issues,
certainly do not warrant or justify the period of three years, which it took the
Tanodbayan to resolve the case (Emphasis supplied; People v. Anonas, supra).
6.
A judge's illness should not be an excuse for his failure to render the
corresponding decision or resolution within the prescribed period. The demands of public
service cannot abide by his illness. In case of poor health, the judge concerned needs only to ask
the Supreme Court for an extension of time to decide cases, as soon as it becomes clear to him
that there would be delay in his disposition of cases (Balajedeong v. Del Rosario, 524
SCRA 13).
7.
Also, the designation of a judge to preside over another sala is an insufficient
reason to justify delay in deciding a case (Bernaldez v. Avelino, 527 SCRA 11). A heavy
work load due to additional work, as acting presiding judge in other courts, is not sufficient
justification for the delay because judges are allowed, upon motion or letter-request, extensions
of the reglementary period in deciding cases (Re: Report on the Judicial and Financial
Audit Conducted in MTCs of Bayom- bong & Solano & MCTC, Aritao-Sta. Fe,
Nueva Vizcaya, 535 SCRA 224).
8.
The absence of a branch clerk of court should not affect the prompt disposition of
cases. It is the duty of the judge to recommend to the Supreme Court the immediate
appointment of a branch clerk of court (Office of the Court Administrator v. Laron,
527 SCRA 45). Even the non-submission of the transcript of stenographic notes by
stenographers would not relieve judges of their duty to render a decision within the required
period as judges are directed to take down notes of salient portions of the hearing and proceed
in the preparation of decisions without waiting for the transcribed stenographic notes (Office
of the Court Administrator v. Janolo, Jr.
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534 SCRA 262). The incompleteness of the transcript of stenographic notes is not a ground
for delay (Re: Report on the Judicial Audit Conducted in the Regional Trial
Court, Branch 4, Dolores, Eastern Samar, 536 SCRA 313).
9. The defects in a motion are not reasons for a judge not to act on the same. If a judge
believes that the motions pending before him were defective, he could have simply acted on
the said motions and indicated the supposed defects instead of just leaving them unresolved
(Heirs of Simeon Piedad v. Estrera, A.M. No. RTJ-09-2170, December 16,
2009).
Purpose of time limits set by law or the rules; principle of speedy trial is a
relative term
As a general principle, rules prescribing the .time within which certain acts must
be done, or certain proceedings taken, are considered absolutely indispensable to the prevention of needless delays and the orderly and speedy discharge of judicial business
(Balajedeong v. Del Rosario, 524 SCRA 13; Galanza v. Trocino, 529 SCRA
200).
As a rule, failure to resolve cases within the period fixed by law constitutes a serious
violation of the Constitution (Petallar v. Pullos, 419 SCRA 434). It is not excusable and
constitutes gross inefficiency that warrants the imposition of administrative sanctions (Office
of the Court Administrator v. Legaspi, Jr., 512 SCRA 570; Re: Complaint
Against Justice Elvi John S. Asuncion of the Court of Appeals, 518 SCRA 512;
Pacquing v. Gobarde, 521 SCRA 464; Office of the Court Administrator v.
Go, 534 SCRA 156).
An unwarranted slow down in the disposition of cases erodes the faith and confidence
of the people in the judiciary, lowers its standards, and brings it into disrepute
(Biggel v.
Pamintuan, 559 SCRA 344).
Various decisions like Olbes v. Buemio, G.R. No. 173319, December
4, 2009, have held that the principle of "speedy trial" is a relative term and necessarily
involves a degree of flexibility. Thus, in spite of the prescribed time limits,
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jurisprudence continues to adopt the view that the concept of "speedy trial" is a relative term
and must necessarily be a flexible concept and that while justice is administered with dispatch,
the essential ingredient is orderly, expeditious and not mere speed. The Court explained that it
cannot be definitely said how long is too long in a system where justice is supposed to be swift,
but deliberate. It is consistent with delays and depends upon circumstances. It secures rights to
the accused, but it does not preclude the rights of public justice hence, a balancing test of
applying societal interests and the rights of the accused necessarily compels the court to
approach speedy trial cases on an ad hoc basis.
The time limits set by the Speedy Trial Act of 1998 do not preclude
justifiable postponements and delays when so warranted by the situation (Olbes v.
Buemio, G.R. No.173319, December 4, 2009).
The Supreme Court in Jacob v. Sandiganbayan, G.R. No. 162206,
November 17, 2010, emphasized that "the Revised Rules on Criminal Procedure also
include provisions that ensure the protection of such right" like Section 1(h) of Rule 115 which
provides that the accused shall have the right to a "speedy, impartial, and public trial." Also, Sec.
2 of Rule 119 further provides that "x x x Trial, once commenced, shall continue from day to day
as far as practicable until terminated. It may be postponed for a reasonable period of time for
good cause."
Citing previous decisions, the Court however, cautioned that the concept
of speedy trial "is a relative term and necessarily a flexible concept. In
determining whether the right of the accused to a speedy trial was violated, the
delay should be considered, in view of the entirety of the proceedings. Indeed,
mere mathematical reckoning of the time involved would not suffice as the
realities of everyday life must be regarded in judicial proceedings which, after all,
do not exist in a vacuum."
In Tan v. People, G.R. No. 173637, April 21, 2009, no objection was
interposed by his defense counsel when at
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the preliminary hearing the prosecution manifested that the evidence to be presented would
be only for the other two cases against the petitioner and not on the case where he claims a
violation of his right to speedy trial. His failure to object to the prosecution's manifestation that
the cases be tried separately is fatal to his case. In fact, petitioner's acquiescence is evident from
the transcript of stenographic notes during the initial presentation of the People's evidence in
the other cases.
In the cases involving petitioner, the length of delay, complexity of the issues and his
failure to invoke said right to speedy trial at the appropriate time tolled the death knell on his
claim to the constitutional guarantee. More importantly, in failing to interpose a timely
objection to the prosecution's manifestation during the preliminary hearings that the cases be
tried separately, one after the other, petitioner was deemed to have acquiesced and waived his
objection thereto. The Court hence, found that there is clearly insufficient ground to conclude
that the prosecution is guilty of violating petitioner's right to speedy trial
(Tan v. People,
G.R. No. 173637, April 21, 2009).
Remedy for a violation of the right to speedy trial
1.
The trial court may dismiss a criminal case on a motion nolle prosequi if the
accused is not brought to trial within the prescribed time and is deprived of his right to a speedy
trial or disposition of the case on account of unreasonable or capricious delay caused by the
prosecution (Corpuz v. Sandi- ganbayan, 442 SCRA 294).
2.
A dismissal based on a violation of the right to speedy trial is equivalent to an
acquittal and double jeopardy may attach even if the dismissal is with the consent of the
accused. It would bar further prosecution of the accused for the same offense (Condrada v.
People, 398 SCRA 482; Esmena v. Pogoy, G.R. No. 54110, February 20,
1981). To exercise the right to speedy trial, the accused should ask for the
trial of the case first instead of moving for its dismissal outrightly. If the
prosecution cannot produce its witnesses or evidence and its
CHAPTER VII
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motion for postponement is denied, then the accused should move for the dismissal of the case,
such dismissal amounting to an acquittal (People v. Cacdac, L-45650, March
29,1982).
Factors for granting continuance
1.
The factors, among others, which a justice or judge shall consider in determining
whether to grant a continuance are as follows:
(a) Whether the failure to grant such a continuance in the proceeding would
be likely to make a continuation of such proceeding impossible, or result in a miscarriage
of justice.
(b) Whether the case taken as a whole is so novel, so unusual and so
complex, due to the number of accused or the nature of the prosecution or otherwise,
that it is unreasonable to expect adequate preparation within the periods of time
established by this Act (Sec. 11, Speedy Trial Act).
2.
No continuance under letter "f' of Section 10 of the Act shall be granted because
of general congestion of the court's calendar, or lack of diligent preparation or failure to obtain
available witnesses on the part of the public prosecutor (Sec. 11, Speedy Trial Act).
Guidelines to determine violation of the right to speedy trial and speedy
disposition of cases; balancing test
1.
In determining whether or not the right to the speedy disposition of cases has
been violated, the Court has laid down the following guidelines: (1) the length of the delay; (2)
the reasons for such delay; (3) the assertion or failure to assert such right by the accused; and (4)
the prejudice caused by the delay (Ombudsman v. Jurado, G.R. No. 154155, August
6, 2008; Tan v. People, G.R. No. 173637, April 21,2009; Olbes v. Buemio,
G.R. No.173319, December 4, 2009).
2.
The above guidelines are confirmations of the guidelines declared in the famous
American case of Barker< v.
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Wingo, 407 U.S. 514 (1972), a case in which the United States Supreme Court
concededly made the most comprehensive discussion of the right to speedy trial. Here, the
petitioner and his alleged accomplice, were accused and tried with the murder of an elderly
couple in a county in Kentucky. Since the prosecution believed that it had a stronger case
against the petitioner's co-accused, it presented evidence against the latter first who was tried
ahead of the petitioner. It was the hope of the prosecution that after his conviction he would be
utilized as a witness against the petitioner. The co-accused was tried several times because of
hung juries and a series of appeals. When he was convicted and it was time to hold the trial for
the petitioner, the chief investigating officer became ill and could not testify. In all, the petitioner
had waited more than five years for his trial. He then raised the issue of the violation of his right
to a speedy trial.
The U.S. Supreme Court held that determinations of whether or not the right to a
speedy trial has been violated or denied must be made on a case to case basis. Accordingly: "A
defendant's constitutional right to speedy trial can be determined only on an ad hoc basis in
which the conduct of the prosecution and the defendant are weighed and balanced; among
factors which courts should assess in determining whether a particular defendant has been
deprived of his right are length of delay, the reason for the delay, the defendant's assertion of
his right, and prejudice to the defendant." It proceeded to explain that none of the factors
mentioned is by itself determinative. All must be considered and weighed together under what
is now known as the "balancing test."
While it appeared that in
Barker, the delays were due to continuances or
postponements initiated by the prosecution, the petitioner failed to timely assert his right to a
speedy trial. The records show that he raised his right only after a series of sixteen (16)
continuances made by the prosecution. Coupled with the absence of a showing that he was
actually prejudiced, the U.S. Supreme Court held that despite the delays, the petitioner's right to
a speedy trial has not been violated.
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3. In Perez v. People, G.R. No. 164763, February 12, 2008, the accused
claimed a violation of his right to a speedy disposition of his case because the decision of the
Sandiganbayan was handed down after the lapse of more than twelve years. "The years that he
had to wait for the outcome of his case were allegedly spent in limbo, pain and agony."
The Court rejected the contention of the petitioner finding no serious prejudice caused
upon him by the alleged delay. The Court likewise found that the petitioner himself did not want
a speedy disposition of his case. Petitioner was duly represented by counsel de parte in all
stages of the proceedings before the Sandiganbayan until his conviction The records do not
however, show that petitioner has filed any motion or manifestation which could be construed
even remotely as an indication that he wanted his case to be dispatched without delay. For this,
the Court concluded that the petitioner "has clearly slept on his right." The Court further
explained that "the matter could have taken a different dimension if during all those twelve
years, petitioner had shown signs of asserting his right to a speedy disposition of his case or at
least made some overt acts, like filing a motion for early resolution, to show that he was not
waiving that right."
Approaches to speedy trial
Perez v. People heavily relied on Barker v. Wingo in disposing of the issue of
speedy trial declaring that in that case the United States Supreme Court was confronted for the
first time with two "rigid approaches" on speedy trial, namely as "ways of eliminating some of
the uncertainty which courts experience protecting the right." These are:
(a)
The
*fixed-time period" which holds the view that the Constitution
requires a criminal defendant to be offered a trial within a specified time period.
(b)
9
The "demand-waiver rule which provides that a defendant waives
any consideration of his right to speedy trial for any period prior to which he has not
demanded trial. Under this rigid approach, a prior de
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/
mand is a necessary condition to the consideration of the speedy trial right.
"The fixed-time period was rejected because there is no constitutional basis for
holding that the speedy trial can be quantified into a specific number of days or
months." The demand-waiver rule was likewise rejected because aside from the fact
that it is inconsistent with this Court's pronouncements on waiver of constitutional
rights, "it is insensitive to a right which we have deemed fundamental."
xxx
The Court went on to adopt a middle ground: the 'balancing test* in which
the conduct of both the prosecution and defendant are weighed. The test necessarily
compels courts to approach speedy trial cases on an ad hoc basis where courts should
assess and identify certain factors which courts should assess in determining whether a
particular defendant has been deprived of his right such as the length of the delay, the
reason for the delay, the defendant's assertion of his right, and prejudice to the
defendant.
xxx
The length of the delay is to some extent a triggering mechanism. Until there is
some delay which is presumptively prejudicial, there is no necessity for inquiry into the
other factors that go into the balance. Nevertheless, because of the imprecision of the
right to speedy trial, the length of delay that will provoke such an inquiry is necessarily
dependent upon the peculiar circumstances of the case. To take but one example, the
delay that can be tolerated for an ordinary street crime is considerably less than for a
serious, complex conspiracy charge.
Closely related to length of delay is the reason the government assigns to justify
the delay. Here, too, different weights should be assigned to different reasons. A
deliberate attempt to delay the trial in order to hamper
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the defense should be weighted heavily against the government. A more neutral reason
such as negligence or overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the defendant. Finally, a
valid reason, such as a missing witness, should serve to justify appropriate delay. We
have already discussed the third factor, the defendant's responsibility to assert his right.
Whether and how a defendant asserts his right is closely related to the other factors we
have mentioned. The strength of his efforts will be affected by the length of the delay, to
some extent by the reason for the delay, and most particularly by the personal prejudice,
which is not always readily identifiable, that he experiences. The more serious the
deprivation, the more likely a defendant is to complain. The defendant's assertion of his
speedy trial right, then, is entitled to strong evidentiary weight in determining whether
the defendant is being deprived of the right. We emphasize that failure to assert the right
will make it difficult for a defendant to prove that he was denied a speedy trial.
A fourth factor is prejudice to the defendant. Prejudice, of course, should be
assessed in the light of the interests of defendants which the speedy trial right was
designed to protect. This Court has identified three such interests: (i) to prevent
oppressive pretrial incarceration;
(ii) to minimize anxiety and concern of the accused; and
(iii) to limit the possibility that the defense will be impaired. Of these, the most
serious is the last, because the inability of a defendant adequately to prepare his case
skews the fairness of the entire system. If witnesses die or disappear during a delay, the
prejudice is obvious. There is also prejudice if defense witnesses are unable to recall
accurately events of the distant past. Loss of memory, however, is not always reflected
in the record because what has been forgotten can rarely be shown."
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The privilege against self-incrimination (Bar 1996; 1998; 2004; 2005)
1.
The privilege is expressed in the following provisions:
(a)
"No person shall be compelled to be a witness against himself"
(Sec.
17, Art. Ill, Philippine Constitution).
(b)
"In all criminal prosecutions, the accused shall be entitled to the following
rights x x x (e) To be exempt from being compelled to be a witness against himself"
(Sec. l[e], Rule 115, Rules of Court).
2.
The privilege is intended to prevent the State, with all its coercive powers, from
extracting from the suspect testimony that may convict him and to avoid a person subject to
such compulsion to perjure himself for his own protection (People v. Besonia, 422 SCRA
210).
3.
"The privilege rests upon the principle that "forcing a man to be a witness
against himself is at war with 'the fundamentals of a republican government;' that [i]t may suit
the purposes of despotic power but it cannot abide the pure atmosphere of political liberty and
personal freedom, x x x The maxim Nemo tenetur seipsum accusare had its origin in a
protest against the inquisitorial and manifestly unjust methods of interrogating accused
persons, which has long obtained in the continental system, and, until the expulsion of the
Stuarts from the British throne in 1688, and the erection of additional barriers for the protection
of the people against the exercise of arbitrary power, was not uncommon even in England.
While the admissions of confessions of the prisoner, when voluntarily and freely made, have
always ranked high in the scale of incriminating evidence, if an accused person be asked to
explain his apparent connection with a crime under investigation, the ease with which the
questions put to him may assume an inquisitorial character, the temptation to press, the
witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to
entrap him into fatal contradictions, which is so painfully evident in many of the earlier state tri
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als, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the
system so odious as to give rise to a demand for its total abolition. The change in the English
criminal procedure in that particular seems to be founded upon no statute and no judicial
opinion, but upon a general and silent acquiescence of the courts in a popular demand. But,
however adopted, it has become firmly embedded in English, as well as in American
jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the
minds of the American colonists that the states, with one accord, made a denial of the right to
question an accused person a part of their fundamental law, so that a maxim which in England
was a mere rule of evidence, became clothed in this country with the impregnability of a
constitutional enactment CBrown v. Walker, 161 U.S., 591, 597; 40 Law. ed., 819,
821)."
Mr. Justice Malcolm, in expressive language, tells us that this maxim was recognized in
England in the early days "in a revolt against the thumbscrew and the rack."
An old Philippine case [1904] speaks of this constitutional injunction as "older than the
Government of the United States;" as having "its origin in a protest against the inquisitorial
methods of interrogating the accused person;" and as having been adopted in the Philippines
"to wipe out such practices as formerly prevailed in these Islands of requiring accused persons
to submit to judicial examinations, and to give testimony regarding the offenses with which
they were charged."
So it is then that this right is 'not merely a formal technical rule the enforcement of which
is left to the discretion of the court;' it is mandatory; it secures to a defendant a valuable and
substantive right; it is fundamental to our scheme of justice. Just a few months ago, the
Supreme Court of the United States (January 29,1968), speaking thru Mr. Justice Harlan warned
that "[t]he constitutional privilege was intended to shield the guilty and imprudent as well as
the innocent and foresighted."
xxx
Therefore, the court may not extract from a defendant's own lips and against his will an
admission of his guilt. Nor may
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a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against
him as a confession of the crime or the tendency of which is to prove the commission of a
crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the
witness stand — with undiluted, unfettered exercise of his own free, genuine will" (Cited in
Chavez v. Court of Appeals, G.R. No. L-29169, August 19,1968; Citations
omitted; Underscoring supplied).
4.
The right against self-incrimination is not self-executing or automatically
operational. It must be claimed. If not claimed by or in behalf of the witness, the protection
does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a
failure to claim it at the appropriate time (People v. Ayson, G.R. No. 85215, July
7,1989; U.S. v. Monia, 317 U.S. 424).
The assertion of the privilege against self incrimination must be raised in response to
each specific inquiry or it is waived. Each assertion of the privilege rests on its own circumstances. Blanket assertions of the privilege are not permitted (See, United States v.
White, 589 F.2d 1283, 1286-87 (5th Cir. 1979).
5.
The right prescribes an "option of refusal to answer incriminating questions and
not a prohibition of inquiry." It simply secures to a witness, whether he be a party or not, the
right to refuse to answer any particular incriminatory question, i.e., one the answer to which
has a tendency to incriminate him for some crime. However, the right can be claimed only
when the specific question, incriminatory in character, is actually put to the witness. It cannot
be claimed at any other time. It does not give a witness the right to disregard a subpoena, to
decline to appear before the court at the time appointed, or to refuse to testify altogether. The
witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and
answer questions. It is only when a particular question is addressed to him, the answer to which
may incriminate him for some offense, that he may refuse to answer on the strength of the
constitutional guaranty (People v. Ayson, G.R. Nol 85215, July 7,1989).
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The privilege applies only to natural persons
1.
Does the term "person" include juridical persons? In other words, may juridical
persons invoke the right against self-incrimination?
The U.S. Supreme Court in U.S. v. White, 322 U.S. 694 has construed the right in
the following terms: "The constitutional privilege against self-incrimination is essentially a
personal one, applying only to natural individuals." Because it is a personal privilege, the papers
and effects which the privilege protects must be the private property of the person claiming the
privilege, or at least in his possession in a purely personal capacity.
Hence, stated U.S. v. White, a labor union official cannot refuse to produce books and
records of the union in his custody and required by the court to be produced. He cannot invoke
the privilege against self-incrimination by contending that the production of the books and
records would tend to incriminate himself and the organization.
2.
Wilson v. United States, 221 U.S. 361 had a similar interpretation when
it ruled that since corporate existence implies amenability to legal powers, a subpoena duces
tecum may be directed to a corporation which is under a duty to produce records, books, and
papers in its possession when they may be properly required in the administration of justice. An
individual may not invoke the privilege to refuse to produce corporate records when the
subpoena is directed to the corporation.
Wilson adds that a subpoena duces tecum which is suitably specific and properly
limited in its scope does not violate the unreasonable search and seizure provisions of the
constitution; the privilege against self-incrimination cannot be raised by a corporate officer
having possession of corporate documents for his personal benefit.
A case decided after
U.S. v. White sustained the conviction for contempt of the
petitioner who testified that she had been the Treasurer of the Communist Party of Denver and
had
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been in possession of its records, which she later had turned over to another person. When
asked to identify the person to whom she had delivered the records, she refused the order of
the court. When she was charged with contempt, she asserted her privilege against
self-incrimination. Her claim of privilege was overruled and she was convicted of contempt
(Rogers v. United States, 340 US. 367).
Rogers held that since the privilege against self-incrimi- nation is solely for the benefit
of the witness, petitioner's original refusal to answer could not be justified by a desire to protect
another from punishment, much less to protect another from interrogation by a grand jury.
Also, books and records kept in a representative, capacity cannot be the subject of the privilege
against self-incrimination, even though production of them might tend to incriminate their
keeper personally since the books were not held in a personal capacity.
The privilege protects a person from testimonial compulsion or evidence
of a communicative nature
1. The famous case of Schmerber v. California, 384 U.S. 757, held that the
privilege against self-incrimination protects a person only from testimonial compulsion or a
compelled testimony of a communicative nature without however, declaring that the privilege
applies only to cases where a testimonial evidence is extracted from the lips of the witness or
from a strictly oral testimony.
Schmerber originated from an automobile accident involving the petitioner who was
driving a car. A police officer who smelled liquor on his breath and noticed he was drunk, placed
him under arrest and informed him of his Miranda rights. A physician was directed by the
officer to extract a blood sample from petitioner despite the petitioner's refusal. The chemical
analysis of the blood sample indicated an intoxication which subsequently became the basis for
his conviction for driving while intoxicated and the chemist's report was admitted in evidence
despite his objection. He was convicted and said conviction was affirmed on appeal. The
appellate court rejected
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his claim of denial of the privilege against self-incrimination,
among others.
Deciding on whether or not the withdrawal of the blood
sample and the admission in evidence of the analysis involved
in this case violated petitioner's privilege, the Court emphatically held that "the privilege protects an accused only from
being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial of a communicative nature, and that the withdrawal of blood and use of the
analysis in question in this case did not involve compulsion to
these ends."
xxx
"In the present case, however, no such problem of
application is presented. Not even a shadow of testimonial
compulsion upon or enforced communication by the accused
was involved either in the extraction or in the chemical analysis.
Petitioner's testimonial capacities were in no way implicated;
indeed, his participation, except as a donor, was irrelevant
to the results of the test, which depend on chemical analysis
and on that alone. Since the blood test evidence, although an
incriminating product of compulsion, was neither petitioner's
testimony nor evidence relating to some communicative act or
writing by the petitioner, it was not inadmissible on privilege
grounds."
2. In a case decided before Schmerber, the U.S.
Supreme Court in Holt v. United States, 218 U.S. 245 was
confronted with the question whether or not the accused prior
to trial, could be required to wear a particular clothing over
his protest to facilitate his identification by the witness. The
accused contended that to submit to the demand of authorities
is to violate the privilege against self-incrimination. The
Court rejected the claim describing the same as "based upon
an extravagant extension of the Fifth Amendment."
The Court went on to state:
"[T]he prohibition of compelling a man in a criminal
court to be a witness against himself is a prohibition of
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the use of physical or moral compulsion to extort communications from him, not an
exclusion of his body as evidence when it may be material. The objection in principle
would forbid a jury to look at a prisoner and compare his features with a photograph in
proof."
3. In U.S v. Wade, 388 U.S. 218, the accused was placed in a lineup in which each
person was made to wear strips of tape on his face, as the robber allegedly had done, and, on
direction, repeated words like those the robber allegedly had used. Two bank employees
identified the accused as the perpetrator both in the line up and in the trial. Urging that the
conduct of the lineup violated his Fifth Amendment privilege against self-incrimination the
accused sought for his acquittal. The trial court convicted the accused.
The Wade court explained that neither the lineup itself nor anything required therein
violated respondent's Fifth Amendment privilege against self-incrimination, since merely
exhibiting his person for observation by witnesses and using his voice as an identifying physical
characteristic involved no compulsion of the accused to give evidence of a testimonial nature
against himself. "The Fifth Amendment protects an accused only from being compelled to
testify against himself, or otherwise provide the State with evidence of a testimonial or
communicative nature...."
The Court explained further that the prohibition compelling a person to be a witness
against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material and that
"compelling the accused merely to exhibit his person for observation by a prosecution witness
prior to trial involves no compulsion of the accused to give evidence having testimonial
significance. It is compulsion of the accused to exhibit his physical characteristics, not
compulsion to disclose any knowledge he might have. It is no different from compelling
Schmerber to provide a blood sample or Holt to wear the blouse, and, as in those instances,
is not within the cover of the privilege. Similarly, compelling Wade to speak
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within hearing distance of the witnesses, even to utter words
purportedly uttered by the robber, was not compulsion to utter statements of a "testimonial" nature; he was required to
use his voice as an identifying physical characteristic, not to
speak his guilt. We held in Schmerber, that the distinction to
be drawn under the Fifth Amendment privilege against selfincrimination is one between an accused's "communications,"
in whatever form, vocal or physical, and "compulsion which
makes a suspect or accused the source of real or physical evi-
dence."
The Court stressed:
"x x x both federal and state courts have usually
held that. . . [the privilege] offers no protection against
compulsion to submit to fingerprinting, photography, or
measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to
make a particular gesture. None of these activities becomes testimonial within the scope of the privilege x x x"
(Underscoring supplied).
4. The principles explained by the U.S. Supreme Court
in previous cases including that in Wade and Schmerber were
applied to cases like United States v. Dionisio, 410 U.S. 2,
where the petitioner refused to comply with an order from
a special grand jury to furnish it with samples of his voice
recordings. It appeared that the grand jury received in evidence
certain voice recordings that had been previously obtained
through court orders. Dionisio and other witnesses refused
to furnish the voice exemplars invoking, among others, the
Fifth amendment privilege against self-incrimination. The
district Court later adjudged him in civil contempt due to his
persistent refusal.
The U.S. Supreme Court held that the Court of Appeals
correctly rejected the contention that the compelled production of the voice exemplars would violate the Fifth Amendment since it has long been held that the compelled display of
identifiable physical characteristics infringes no interest pro-
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tected by the privilege against compulsory self-incrimination. Citing Holt, the Court
explained that "the prohibition of compelling a man in a criminal court to be witness against
himself is a prohibition of the use of physical or moral compulsion to extort
communications from him, not an exclusion of his body as evidence when it may be
material." Citing Schmerber, the Court once again declared that the privilege
offers "no protection against compulsion to submit to fingerprinting, photographing, or
measurements, to write or speak for identification, to appear in court, to stand, to assume a
stance, to walk, or to make a particular gesture."
5.
The early case of Villaflor v. Summers, 41 Phil. 62, decided by the
Philippine Supreme Court was decided on the theory that "the kernel of the privilege" was the
prohibition against "testimonial compulsion and rejected the arguments of a woman accused
of adultery that to compel her to submit to a physical examination to determine her pregnancy
was a violation of her right against self-incrimination.
6.
In United States v. Ong Siu Hong, (36 Phil. 735), the Court admitted
in evidence morphine that was forced out of the mouth of the accused because it involved no
testimonial compulsion.
7.
In U.S. v. Tan Teng, 23 Phil. 145, the Supreme Court rejected a claim of
the privilege when the accused in a criminal action for acts of lasciviousness was stripped of his
clothing after his arrest and in his body was found a substance consistent with gonorrhea, a
disease from which his alleged seven-year old victim was suffering from.
8.
In People v. Otadora, 86 Phil. 244, it was held that there is no
infringement of the privilege when a person is required to put on clothings or shoes for size or
for measuring or photographing. Neither is it a violation of the privilege to require a person to
place his foot over a footprint found in the crime scene as held in U.S. v. Zara, 42 Phil.
308.
9.
In Herrera v. Alba, 460 SCRA 197, the Court emphasized that obtaining
DNA samples from an accused in a criminal case or from the respondent in a paternity case, will
not
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violate the right against self-incrimination since the privilege applies only to evidence that is
*communicative" in essence.
10. Philippine decisions on the privilege against self- incrimination basically mirror those
of their American counterparts although the former have been found to be more succinct and
less susceptible to misinterpretations.
Forced re-enactments
People v. Olvis, G.R. No. 71092, September 30, 1987, for instance, is an
exemplar of a very lucid summary of the essence of the privilege when it declared that forced
re-enact- ments, like uncounselled and coerced confessions come within the ban against selfincrimination. Thus, all evidence based on such a re-enactment are to be deemed in violation of
the Constitution and hence, incompetent evidence.
Justice Sarmiento in People v. Olvis goes on to declare that the "constitutional
privilege has been defined as a protection against testimonial compulsion, but this has since
been extended to any evidence "communicative in nature" acquired under circumstances of
duress. Essentially, the right is meant to "avoid and prohibit positively the repetition and
recurrence of the certainly inhuman procedure of compelling a person, in a criminal or any other
case, to furnish the missing evidence necessary for his conviction." This was the lesson learned
from the ancient days of the inquisition in which accusation was equivalent to guilt. Thus, an act,
whether testimonial or passive, that would amount to disclosure of incriminatory facts is
covered by the inhibition of the Constitution.
People v. Olvis continues: "This should be distinguished, parenthetically, from
mechanical acts the accused is made to execute not meant to unearth undisclosed facts but to
ascertain physical attributes determinable by simple observation. This includes requiring the
accused to submit to a test to extract virus from his body, or compelling him to expectorate
morphine from his mouth or making her submit to a pregnancy test or a footprinting test, or
requiring him to take part in a police lineup in certain cases. In each case, the accused does not
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speak his guilt. It is not a prerequisite therefore, that he be provided with the guiding hand of
counsel.
But a forced re-enactment is quite another thing. Here, the accused is not merely
required to exhibit some physical characteristics; by and large, he is made to admit criminal
responsibility against his will. It is a police procedure just as condemnable as an uncounselled
confession" (People v. Olvis, G.R. No. 71092, September 30,1987).
Meaning of compulsion
Compulsion as it is understood does not necessarily connote the use of violence; it may
be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment
would be sufficient. So is moral coercion "tending to force testimony from the unwilling lips of
the defendant." (State v. Wolfe, 266 N.W. 116,125 cited in Chavez v. Court of
Appeals, G.R. No. L-29169, August 19, 1968).
Writing exemplars or samples
1.
In Gilbert v. California, 388 U.S. 263, the petitioner was convicted of
armed robbery and the murder of a police officer by a jury which imposed the death penalty.
The petitioner alleges that his conviction was attended by constitutional errors like, among
others, in the admission of handwriting exemplars taken from him after arrest.
The contention was brushed aside by the Court and held that the taking of handwriting
exemplars did not violate petitioner's constitutional rights. The Fifth Amendment privilege
against self-incrimination reaches compulsory communications, but a mere handwriting
exemplar, in contrast with the content of what is written, is an identifying physical characteristic
outside its protection.
2.
Under different set of facts, the Philippine Supreme Court in the 1929 case of
Beltran v. Samson, 53 Phil. 570, ruled against the furnishing of written exemplars.
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Beltran stemmed from an order of the respondent judge requiring the petitioner to
appear before the provincial fiscal to take a dictation in his own handwriting. The purpose of the
order was for the court to have a basis for the purpose of comparing the petitioner's
handwriting and of determining whether or not it was he who wrote certain documents
supposed to be falsified. In a petition for prohibition, the petitioner sought to prevent the
enforcement of the order by seeking refuge in the constitutional privilege against selfincrimination.
The court explained in Beltran that as to its scope, the privilege is not limited precisely
to testimony, but extends to the giving or furnishing of evidence.
It went on to declare:
"The rights intended to be protected by the constitutional provision that no man
accused of crimes shall be compelled to be a witness against himself is so sacred, and the
pressure toward their relaxation so great when the suspicion of guilt is strong and the
evidence obscure, that is the duty of courts liberally to construe the
prohibition in favor of personal rights, and to refuse to permit any
steps tending toward their invasion. Hence, there is the well-established
doctrine that the constitutional inhibition is directed not merely to
giving of oral testimony, but embraces as well the furnishing of
evidence by other means than by word of mouth, the divulging, in short, of
any fact which the accused has a right to hold.
xxx
"Furthermore, in the case before us, writing is something more than moving the
body, or the hands, or the fingers; writing is not a purely mechanical act, because it
requires the application of intelligence and attention: and in the case at bar writing
means that the petitioner herein is to furnish a means to determine whether or not he is
the falsifier, as the petition of the respondent fiscal clearly states. Here the witness is
compelled to write and create, by means of the act of writing, evidence which
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does not exist, and which may identify him as the falsifier (Beltran v. Samson, 53
Phil. 570; Underscoring supplied).
Comparing Beltran with Villaflor, the Court ratiocinated:"
"In the case of Villaflor v. Summers (41 Phil. 62), it was plainly stated
that the court preferred to rest its decision on the reason of the case rather than on
blind adherence to tradition. The said reason of the case there consisted in that it was
the case of the examination of the body by physicians, which could be and doubtless
was interpreted by this court, as being no compulsion of the petitioner therein to
furnish evidence by means of testimonial act. In reality she was not compelled to
execute any positive act, much less a testimonial act; she was only enjoined from
something preventing the examination; all of which is very different from what is
required of the petitioner of the present case, where it is sought to compel him to
perform a positive, testimonial act, to write and give a specimen of his
handwriting for the purpose of comparison. Besides, in the case of Villamor v. Summers, it was sought to exhibit something already in existence, while in the case at bar,
the question deals with something not yet in existence, and it is precisely sought to
compel the petitioner to make, prepare, or produce by this means, evidence not yet in
existence; in short, to create this evidence which may seriously incriminate him."
3. Not every act of affixing one's signature is within the protection of the privilege
against self-incrimination as the Court found in Marcelo v. Sandiganbayan, G.R. No.
109242, January 26,1999.
In a petition for review after his conviction, the petitioner raised, as one of the issues on
appeal the fact that the trial court erred in admitting in evidence the letters signed by him
because he was asked to sign them during custodial investigation without the assistance of
counsel and that his affixing of this signature during custodial investigation violated the
constitutional provision that "no person shall be compelled to be a witness against himself."
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Petitioner's counsel argued that the signing of petitioner's and his co-accused's names
was not a mere mechanical act but one which required the use of intelligence and therefore
constitutes self-incrimination presumably having in mind, said the Court, the ruling in Beltran
v. Samson "to the effect that the prohibition against compelling a man to be a witness against
himself extends to any attempt to compel the accused to furnish a specimen of his handwriting
for the purpose of comparing it with the handwriting in a document in a prosecution for
falsification. Writing is something more than moving the body, or the hand, or the fingers;
writing is not a purely mechanical act because it requires the application of intelligence and
attention."
The Court however, made a distinction between the use of the specimen handwriting in
Beltran. In that case, the purpose was to show that the specimen handwriting matched the
handwriting in the document alleged to have been falsified and thereby show that the accused
was the author of the crime (falsification). In Marcelo v. Sandiganbayan, the purpose for
securing the signature of petitioner on the envelopes was merely to authenticate the envelopes
as the ones seized from him..." Thus, the invocation of the right against self- incrimination was
not upheld.
In Marcelo however, the Court explained that when the signatures of the accused
were affixed, such signatures were actually evidence of admission obtained from petitioner and
his co-accused under circumstances constituting custodial investigation. Under the Constitution,
among the rights of a person under custodial investigation is the right to have competent and
independent counsel preferably of his own choice and if the person cannot afford the services
of counsel, that he must be provided with one. It is on this ground that the letters with the
signature of the accused could be excluded.
"However, the letters are themselves not inadmissible in evidence. The Letters were
validly seized from petitioner x x x as an incident of a valid arrest. A ruling that petitioner's
admission that the letters in question were those seized from
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him and his companion x x x is inadmissible in evidence does not extend to the exclusion from
evidence of the letters themselves. The letters can stand on their own, being the fruits of the
crime validly seized during a lawful arrest. That these letters were the ones found in the
possession of petitioner and his companion and seized from them was shown by the
testimonies x x x." Thus, in effect the Court meant that the signatures affixed were irrelevant to
the admissibility of the letters as the items seized from the accused.
Questions which the witness may refuse to answer
1. Hoffman v. United States, 341 U.S. 479, illustrates the wide ranging scope
of the kinds of questions which a witness may refuse to answer. In this case, the petitioner
refused to answer certain questions asked of him in a federal grand jury investigation
pertaining to his occupation, the names of his contacts and the whereabouts of a person who is
sought by the same grand jury and for whom a bench warrant has been issued. Despite the
order for him to answer the questions, he refused and was subsequently convicted of
contempt.
In reversing the conviction, the U.S. Supreme Court ruled that the
privilege against self-incrimination extends not only to answers that would in themselves
support a conviction but also to those which would furnish "a link in the chain of evidence"
needed to prosecute the claimant of the privilege. To compel the petitioner to answer the
questions as to his contacts and connections and his knowledge of the whereabouts of the
witness being sought might have exposed him to the perils of a prosecution under existing laws
on obstruction and conspiracy. Hoffman obviously accorded a liberal interpretation to the
privilege and allowed a refusal to answer questions which may tend to incriminate the witness.
Citing previously decided cases, Hoffman however, cautioned that this protection
must be confined to instances where the witness has reasonable cause to apprehend danger
from a direct answer. The witness is not exonerated from answiering merely because he
declares that, in so doing he
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would incriminate himself. What he says does not of itself establish the hazard of incrimination.
It is for the court to say whether his silence is justified, and to require him to answer if "it clearly
appears to the court that he is mistaken. However, if the witness, upon interposing his claim, is
to be required to prove the hazards posed by his answers he would actually be compelled to
surrender the very protection which the privilege is designed to guarantee. To sustain the
privilege, it need only be evident from the implications of the question, in the setting in which it
is asked. The privilege should be sustained unless it clearly appears that the claim is mistaken,
i.e., unless it is perfectly clear from careful consideration of all circumstances that the witness is
mistaken and the answer cannot possibly have incriminating effect."
2. Malloy v. Hogan, 378 U.S. 1, is an authority of the rule that it is not necessary
that a witness explain how his answer will tend to incriminate him, since this would compel him
to surrender the protection to which the privilege is designed to guarantee. The test for
determining if the privilege is validly asserted was clearly set out in Malloy. It is: "To sustain the
privilege, it need only be evidenced from the implication of the question, in the setting in which
it is asked, that a responsive answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosures would result. In applying that test,
the judge must be perfectly clear from a careful consideration of all the circumstances in the
case that the witness is mistaken and that the answers cannot possibly have such tendency to
incriminate."
Privilege extends to lawyers advising a witness to invoke the privilege
The issue is whether in a civil proceeding a lawyer may be held in contempt for
counseling a witness in good faith to refuse to produce court-ordered materials on the ground
that the materials may tend to incriminate the witness in another proceeding. It was held that
the lawyer may not be penalized even though his advice caused the witness to disobey the
court's order. To hold otherwise would deny the constitutional
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/
privilege against self-incrimination the means of its own implementation, since, when a witness
is so advised the advice becomes an integral part of the protection accorded the witness by the
Fifth Amendment (Maness v. Meyers, 419 U.S. 449).
Persons who are mere custodians of documents cannot claim the
privilege
1.
In Fischer v. United States, 425 U.S. 391, certain taxpayers who were
under investigation for possible violations of federal income tax laws, obtained from their
respective accountants documents relating to the accountants' preparation of their tax returns.
These were transferred by the taxpayers to their lawyers hired to assist them in the investigations. The lawyers refused to produce the documents when summoned by the Internal
Revenue Service. The government filed suit to compel the production of the documents. Both
the District Court ordered the summons enforced holding that the taxpayers had never
acquired a possessory interest in the documents and that the documents were not immune
from production in the attorney's hands. Fischer upheld the lower court. The compelled
production of the documents in question from the attorneys did not implicate the privilege
against self- incrimination. The Court explained that enforcement of the summons against the
lawyers did not require or compel the taxpayers to perform an act and could not result in
compelling the taxpayers to testify against themselves, the Fifth Amendment on the privilege
against self-incrimination being limited to prohibiting the use of physical or moral compulsion
against one who exercises the privilege. This is true even if the lawyers were agents of the
taxpayers because the lawyers were not the accused.
2.
In Couch v. United States, 409 U.S. 322, the Court did not consider the
subpoena of a taxpayer's records from his accountant directed to the latter as a violation of the
privilege against self-incrimination of the accountant. It is the accountant who is compelled to
do an act and he makes no claim that he may tend to be incriminated by the production.
CHAPTER VII
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413
Neither does the subpoena implicate a violation of the privilege against self-incrimination of the
taxpayer since the subpoena and the demand for the information sought was directed to the
accountant and not the taxpayer. In the present case, no "shadow of testimonial compulsion
upon or enforced communication by the accused" is involved.
Proceedings in which the privilege may be asserted
1.
The privilege can be asserted in any proceeding, civil or criminal, administrative
or judicial, investigatory or adjudicatory (Maness v. Meyers, 419 U.S. 449; Kastigar
v. U.S., 406 U.S. 441). Privilege against self incrimination under the Fifth Amendment
"applies alike to civil and criminal proceedings, wherever the answer might tend to subject to
criminal responsibility him who gives it" (McCarthy v. Amdstein, 266 U.S. 34). The
right is accorded to every person who gives evidence, whether voluntarily or under compulsion
of subpoena, in any civil, criminal, or administrative proceeding (People v. Ayson, G.R. No.
85215, July 7,1989).
The Philippine Supreme Court enunciated the same rule when it ruled that the privilege
against self-incrimination can be asserted in any proceeding, civil or criminal, administrative or
judicial, investigatory or adjudicatory; and it protects against any disclosures that the witness
reasonably believes could be used in a criminal prosecution or could lead to other evidence that
might be so used (Mapa v. Sandiganbayan, G.R. No. 100295, April 26, 1994,
citing Kastigar vs. U.S., 406 US 441).
2.
It is important to reiterate that privilege is a personal privilege: it adheres basically
to the person, not to information that may incriminate him (Couch v. United States, 409
U.S. 322).
3.
The meaning of the constitutional provision is not merely that a person shall not
be compelled to be a witness against himself in a criminal prosecution against himself, but its
object is to insure that a person shall not be compelled, when acting as a witness in any
investigation, to give testimony
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/
which may tend to show that he himself has committed a crime
(Counselman v.
Hitchcock, 142 U.S. 547; Italics supplied).
"xxx The privilege is not ordinarily dependent upon the nature of the proceeding
in which the testimony is sought or is to be used. It applies alike to civil and criminal
proceedings, wherever the answer might tend to subject to criminal responsibility him
who gives it (McCarthy v. Arndstein, 266 U.S. 34; Underscoring
supplied).
Distinctions between the claim of the privilege by an accused and by a
mere witness
1. The leading case of Chavez v. Court of Appeals, G.R. L-29169, August
19, 1968, clearly spelled out the distinction between the scope of the privilege of an accused
and that of an ordinary witness. Chavez stated that an accused, occupies a different tier of
protection from an ordinary witness. Whereas an ordinary witness may be
compelled to take the witness stand and claim the privilege as each
question requiring an incriminating answer is shot at him, an accused may
altogether refuse to take the witness stand and refuse to answer any and
all questions. For, in reality, the purpose of calling an accused as a witness for the People
would be to incriminate him. The rule positively intends to avoid and prohibit the certainly
inhuman procedure of compelling a person "to furnish the missing evidence necessary for his
conviction." This rule may apply even to a co-defendant in a joint trial.
In Chavez, the petitioner was the accused in a criminal case. He was called by the
prosecution as the first witness in that case allegedly to testify for the prosecution. He objected
claiming refuge under the privilege of self-incrimination. The judge did not heed his
protestations and asserted that "there is the right of the prosecution to ask anybody to act as
witness on the witness stand including the accused," and that defense counsel"could
not object to have the accused called on the witness stand." Because of the hard stance of
the judge, petitioner had to take the stand.
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415
The Court in Chavez observed that in compelling the accused to take the stand, the
judge also compelled the petitioner to create evidence against himself. Emphatically, the Court
held that under the circumstances, the petitioner was forced to testify to incriminate himself, in
full breach of his constitutional right to remain silent. Thus, it could not be considered that the
petitioner has waived his right since he did not volunteer to take the stand and even in his own
defense he did not offer himself as a witness. If the petitioner, observed the Court, nevertheless
answered the questions, this was because of the fear of being accused of perjury or being put
under contempt. His testimony therefore, was not of his own choice. In declaring that the
circumstances clearly presented a case of compelled submission the Court described Chavez
as "a cowed participant in the proceedings before a judge who possessed the power to put him
under contempt had he chosen to remain silent" (Underscoring supplied).
2. The right of the defendant in a criminal case "to be exempt from being a witness
against himself signifies that he cannot be compelled to testify or produce evidence in the
criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so
even by subpoena or other process or order of the Court. He cannot be required to be a witness
either for the prosecution, or for a co-accused, or even for himself." In other words — unlike an
ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena,
having only the right to refuse to answer a particular incriminatory question at the time it is put
to him — the defendant in a criminal action can refuse to testify altogether.
He can refuse to take the witness stand, be sworn, answer any question.
And, as the law categorically states, "his neglect or refusal to be a witness shall not in any
manner prejudice or be used against him" (Italics supplied).
xxx
"It must however be made clear that if the defendant in a criminal action be asked a
question which might incriminate him, not for the crime with which he is charged, but for some
other crime, distinct from that of which he is accused, he may
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/
decline to answer that specific question, on the strength of the right against self-incrimination
x x x . Thus, assuming that in a prosecution for murder, the accused should testify in his behalf,
he may not on cross-examination refuse to answer any question on the ground that he might
be implicated in that crime of murder; but he may decline to answer any particular question
which might implicate him for a different and distinct offense, say, estafa" (People v. Ayson,
G.R. No. 85215, July 7, 1989).
Waiver of the privilege
1.
The privilege against self-incrimination may be waived. It is a rule that an
accused may refuse to testify. However, if he testifies in his own behalf, he may be cross-examined on matters covered by the direct examination (Sec. l[d], Rule 115Rules of Court).
2.
"To be effective, a waiver must be certain and unequivocal, and
intelligently, understandably, and willingly made; such waiver following only where
liberty of choice has been fully accorded. After a claim, a witness cannot properly be held to
have waived his privilege on vague and uncertain evidence." A waiver is an intentional
relinquishment or abandonment of a known right. Accordingly, courts do not presume a waiver
of fundamental rights and in fact. The "courts indulge every reasonable presumption against
waiver" of fundamental constitutional rights (Chavez v. Court of Appeals, G.R. No.
L-29169, August 19,1968).
3.
In the case of Rogers v. United States, 340 U.S. 367 the petitioner had
freely answered self-incriminating questions relating to her connection with the Communist
Party. Having done so, the petitioner could not refuse to answer further questions which would
possibly subject her to a danger of further incrimination.
The privilege will not apply when witness is given immunity from
prosecution
1. Under American common law, a witness maybe immunized from prosecution.
Immunity from prosecution occurs
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RIGHTS OF THE ACCUSED
(Rule 115)
417
when the government, under an authorizing law, grants immunity to a witness in exchange for
a testimony favorable to the prosecution. This immunity embodies an understanding that the
prosecutor essentially agrees to refrain from prosecuting the witness.
The government may grant immunity in one of the two following two forms: (a)
Transactional immunity also known as "blanket" or "total" immunity completely protects the
witness from future prosecution for crimes related to his or her testimony; (b) "Use and
derivative use" immunity prevents the prosecution only from using the witness's own
testimony or any evidence derived from the testimony against the witness. However, should
the prosecutor later on acquire evidence of a crime committed by the witness, independently of
the witness's testimony, the witness may then be prosecuted for the crime (See Kastigar v.
United States 406 U.S. 441).
2.
Recognized in this jurisdiction is the American common law concept of statutory
criminal immunity available to a witness. A Philippine Supreme Court decision categorizes the
forms of immunity into:
(a)
transactional immunity; and
(b)
use-and-derivative-use immunity.
Transactional immunity is broader in the scope of its protection. By its grant, a witness
can no longer be prosecuted for any offense whatsoever arising out of the act or transaction to
which the testimony relates. In contrast, by the grant of use-and-derivative-use immunity, a
witness is only assured that his or her particular testimony and evidence derived from it will not
be used against him or her in a subsequent prosecution (Tanchanco v. Sandiganbayan,
G.R. No. 141675- 96, November 25, 2005).
3.
Transactional immunity derives from common-law tradition, which gives greater
deference to the weight of judicial precedents since the codification of laws by the legislature is
atypical in practice. In our jurisdiction though, the definition of crimes and provision of criminal
penalties are in-
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/
eluctably within the sole province of the legislative branch of government. It thus follows that
this prerogative necessarily empowers the legislative to enact conditions under which a class of
persons may be immune from criminal or civil prosecution. Since the legislature possesses sole
discretion to enact statutes to such effect, it is not obliged to conform with judge- made
standards, or even traditional modalities concerning the grant of criminal immunity. The solitary
limitation on legislative grant of immunity, as with all other legislative acts, is adherence to the
Constitution (Tanchanco v. Sandiganbayan, G.R. No. 141675-96, November
25,2005).
Immunity statutes; examples
1.
Immunity statutes seek a rational accommodation between the imperatives of
the privilege and the legitimate demands of government to compel citizens to testify. The
existence of these statutes reflects the importance of testimony, and the fact that many
offenses are of such a character that the only persons capable of giving useful testimony are
those implicated in the crime (Mapa v. Sandiganbayan, G.R. No. 100295, April
26,1994).
2.
(a) The most well-known immunity provision is the one found in Article XVI,
Section 3 which provides that "the State may not be sued without its consent."
(b) Article VI, Section 11 of the Constitution also grants parliamentary immunities.
The provision reads: "A Senator or Member of the House of Representatives shall, in all offenses punishable by not more than six years imprisonment, be privileged from arrest while the
Congress is in session. No member shall be questioned nor be held liable in any other place for
any speech or debate in the Congress or in any committee thereof."
(c)
Sec. 18[8], Art. XIII, of the Philippine Constitution provides that one of the
powers and functions of the Commission on Human Rights is to "Grant immunity from prosecution to any person whose testimony or whose possession of documents or other evidence is
necessary or convenient to
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RIGHTS OF THE ACCUSED
(Rule 115)
419
determine the truth in any investigation conducted by it or under its authority."
(d)
Sec. 17 of the Ombudsman Act of 1989 provides for immunity, thus:
XXX
'Under such terms and conditions as it may determine, taking into account the
pertinent provisions of the Rules of Court, the Ombudsman may grant immunity from
criminal prosecution to any person whose testimony or whose possession and
production of documents or other evidence may be necessary to determine the truth in
any hearing, inquiry or proceeding being conducted by the Ombudsman or under its
authority, in the performance or in the furtherance of its constitutional functions and
statutory objectives. The immunity granted under this and the immediately preceding
paragraph shall not exempt the witness from criminal prosecution for perjury or false
testimony nor shall he be exempt from demotion or removal from office.
"Any refusal to appear or testify pursuant to the foregoing provisions shall be
subject to punishment for contempt and removal of the immunity from criminal
prosecution."
(e)
Sec. 5, Executive Order No. 14 as amended grants the Presidential Commission
on Good Government (PCGG) the authority to grant immunity to informants or witnesses, thus:
"Sec. 5. The Presidential Commission on Good Government is authorized to
grant immunity to any person who provides information or testifies in any investigation
conducted by such Commission, to establish the unlawful manner by which any
respondent, defendant or accused has accumulated the property or properties in
question in any case where such information or testimony is necessary to ascertain or
prove his guilt or civil liability. The
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/
immunity granted thereby shall be continued to protect the witness who repeats the
testimony before the Sandiganbayan when required to do so by the latter or by the
commission."
(f) P.D. 749 provides immunity from prosecution for informants, thus:
Any person who voluntarily gives information about any violation of Articles 210, 211,
212 of the Revised Penal Code, Republic Act No. 3019, as amended; Section 345 of the Internal
Revenue Code and Section 3604 of the Tariff and Customs Code and other provisions of the said
codes penalizing abuse or dishonesty on the part of the public officials concerned; and other
laws, rules and regulations punishing acts of graft, corruption and other forms of official abuse;
and who willingly testified, such violator shall be exempt from prosecution or punishment for
the offense with reference to which his information and testimony were given, and may plead
or prove the giving of such information and testimony in bar of such prosecution: Provided,
That this immunity may be enjoyed even in cases where the information and the testimony are
given against a person who is not a public official but who is a principal or accomplice, or
accessory in the commission of any of the above-mentioned violations: Provided, further,
That this immunity may be enjoyed by such informant or witness notwithstanding that he
offered or gave bribe or gift to the public official or is an accomplice for such gift or bribe-giving;
And, Provided, finally, That the following conditions concur:
i.
The information must refer to consummated violations of any of the
above-mentioned provisions of law, rules and regulations;
ii.
The information and testimony are necessary for the conviction of the
accused public officer;
iii.
Such information and testimony are not yet in the possession of the
iv.
points; and
Such information and testimony can be corroborated on its material
State;
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RIGHTS OF THE ACCUSED
(Rule 115)
421
v. The informant or witness has not been previously convicted of a crime
involving moral turpitude.
(g) Republic Act 6981 also known as the Witness Protection, Security and Benefit Act
provides in Sec. 12 thereof:
"Section 12. Effect of Admission of a State Witness into the
Program. — The certification of admission into the Program by the Department shall
be given full faith and credit by the provincial or city prosecutor who is required not to
include the Witness in the criminal complaint or information and if included therein, to
petition the court for his discharge in order that he can be utilized as a State Witness.
The Court shall order the discharge and exclusion of the said accused from the
information.
"Admission into the Program shall entitle such State Witness to immunity from
criminal prosecution for the offense or offenses in which his testimony will be given or
used and all the rights and benefits provided under Section 8 hereof."
The right to defend himself; right to be heard
1.
An accused is accorded the right to defend himself either in person or by counsel.
As a consequence of such right, he has the right to be present at the trial at every stage of the
proceedings from arraignment to the promulgation of the judgment (Sec. l[c], Rule 115,
Rules of Court).
Upon motion, the accused may be allowed by the court to defend himself in person
when it sufficiently appears to the court that he can properly protect his rights without the
assistance of counsel (Sec. l[c], Rule 115, Rules of Court).
2.
Pursuant to the stipulations set forth in his bail, the accused has the right to
waive his presence at the trial but he shall be required to be at the trial, if his presence is
specifically ordered by the court for purposes of identification (Sec.
l[c], Rule 115, Rules
of Court).
3.
The waiver of the right of the accused to be present at the trial may be inferred
from his absence without justifiable
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UPDATED EDITION
cause provided he had prior notice of the said trial (Sec. l[c], Rule 115, Rules of Court).
4.
In case the accused is under custody and he escapes, his act shall be deemed to
be a waiver to be present on all subsequent trial dates until custody over him is regained (Sec.
lie], Rule 115, Rules of Court).
5.
If the accused is absent during the trial after his arraignment, trial may proceed
despite his absence provided that he has been duly notified of the trial and his failure to appear
is unjustified (Sec. 14[2], Art. Ill, 1987 Constitution of the Philippines).
6.
When the accused filed a motion for leave to file a demurrer to evidence which
was granted by the trial court, and the demurrer was eventually denied the trial court should
give the accused the opportunity to present his evidence. To be denied the opportunity to be
heard is procedurally unfair and a miscarriage of justice (People v. Alcanzado, 428 SCRA
681). Be it noted that under Sec. 23 [2nd par.] of Rule 119, "If the court denies the demurrer to
evidence filed with leave of court, the accused may adduce evidence in his defense."
The right to testify as a witness
1.
The accused has the right to testify as a witness in his own behalf but subject to
cross-examination on matters covered by the direct examination (Sec. l[d], Rule 115,
Rules of Court).
2.
The questions that may be asked of the accused in a cross-examination is limited
to the matters covered by the direct examination. This is in contrast to the much wider scope of
the cross-examination of an ordinary witness (who is not the accused). Under Sec. 6 of Rule 132,
the witness may be cross-examined by the adverse party not only as to any matter stated in the
direct examination or those connected with the matters stated in the direct examination but
the cross examiner is given "sufficient fullness and freedom" to ask questions that would test
the accuracy and truthfulness of
CHAPTER VII
RIGHTS OF THE ACCUSED
(Rule 115)
423
the witness, his freedom from interest or bias, or the reverse. The witness may even be asked
questions for the purpose of eliciting all important facts bearing upon the issue even if they
were not covered by his direct examination as long as the question has relevance to the issues
of the case.
3. If the accused does not want to testify in his behalf and choses to remain silent, his
silence "shall not in any manner prejudice him" (Sec. l[d], Rule 115, Rules of Court).
The right to confront and cross-examine the witnesses against him
1.
The right to confront the witnesses against him and cross-examine them are
basic constitutional rights embodied in Sec. 14 (2) of Art. Ill of the Philippine Constitution.
2.
The cross-examination of a witness is essential to test his or her accuracy, expose
falsehoods or half-truths, uncover the truth which rehearsed direct examination testimonies
may successfully suppress, and demonstrate inconsistencies in substantial matters which create
reasonable doubt as to the guilt of the accused and thus give substance to the constitutional
right of the accused to confront the witnesses against him (People v. Ortillas, 428 SCRA
659).
3.
The right of a party to confront and cross-examine opposing witnesses in a
judicial litigation, be it criminal or civil in nature, or in proceedings before administrative tribunals with quasi-judicial powers, is a fundamental right which is part of due process.
It is, however, equally true that the right is a personal one which may be waived
expressly or impliedly by conduct amounting to a renunciation of the right of
cross-examination. Thus, where a party has had the opportunity to cross-examine a witness but
failed to avail himself of it, he necessarily forfeits the right to cross-examine and the testimony
given on direct examination of the witness will be received or allowed to remain in the record
(Equitable PCI Banking Corporation v. RCBC Capital Corporation, G.R. No.
182248, December 18,
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/
2008; People v. Abatayo, 433 SCRA 562). The waiver to cross- examine may take
various forms but jurisprudence suggests that a waiver may occur when the party fails to
cross-examine the witnesses against him despite opportunity to do so.
Thus, it was held that where a party has had the opportunity to cross examine a witness
but failed to avail himself of it, he necessarily forfeits the right to cross-examine and the
testimony given on direct examination of the witness will be received or allowed to remain in
the record (Vertudes v. Buenaflor, 478 SCRA 210) because the right to crossexamination requires not really an actual cross-examination but merely an opportunity to
exercise the right to cross examine if desired (People v. Escote, Jr., 400 SCRA 603).
4.
Under the present Rules of Criminal Procedure, the right of confrontation does
not apply in a preliminary investigation. The investigating officer during preliminary
investigation may set a hearing if there are facts and issues to be clarified from a party or
witness. However, while the parties are allowed to be present at the hearing, they are "without
the right to examine or cross-examine. They may, however, submit to the investigating officer
questions which may be asked to the party or witness concerned" (Sec. 3[e], Rule 112,
Rules of Court).
5.
Where the adverse party is deprived of the right to cross-examine the persons
who executed the affidavits, said affidavits are generally rejected for being hearsay
(Estrella
v. Robles, Jr., 538 SCRA 60).
In the absence of a cross-examination, the direct examination of the witness should be
expunged from the records. If the witness is the lone witness, the trial court would not have a
basis to deny a demurrer to evidence (People v. Ortillas, 428 SCRA 659).
6.
If one is deprived of the opportunity to cross- examine without fault on his part,
it is generally held that he is entitled to have the direct examination stricken from the record
(People v. Sefieris, 99 SCRA 92).
CHAPTER VII
RIGHTS OF THE ACCUSED
(Rule 115)
425
Right to use testimony of a deceased witness
1.
Either party (the prosecution or the defense), may utilize as part of its evidence
the testimony of a witness who is deceased, out of or cannot with due diligence be found in the
Philippines, unavailable or otherwise unable to testify, given in another case or proceeding,
judicial or administrative, provided they involve the same parties and subject matter and the
adverse party had the opportunity to cross-examine him
(Sec. l[f], Rule 115, Rules of
Court).
2.
A similar provision is found under the Rules of Evidence, as an exception to the
rule which bars hearsay evidence. Thus, "The testimony or deposition of a witness deceased or
unable to testify, given in a former case or proceeding, judicial or administrative, involving the
same parties and subject matter, may be given in evidence against the adverse party who had
the opportunity to cross-examine him" (Sec. 47, Rule 130, Rules of Court).
For the provision in Rule 130 to apply the following requisites must be satisfied:
(a) the witness is dead or unable to testify; (b) his testimony or deposition was
given in a former case or proceeding, judicial or administrative between the same
parties or representing the same interests; (c) the former case involved the same subject
as that in the present case, although on different causes of action; (d) the issue testified
to by the witness in the former trial is the same issue involved in the present case; and
(e) the adverse party had an opportunity to cross-examine the witness in the former
case (Samalio v. Court of Appeals, 454 SCRA 462).
Right to compulsory process
1. This right may be invoked by the accused to secure the attendance of witnesses and
the production of witnesses in his behalf. This is a constitutional right embodied in Sec. 14(2),
Art. Ill of the Bill of Rights.
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/
2. In connection with this right, the accused may move
the court for the issuance of a subpoena ad testificandum or a
subpoena duces tecum pursuant to the provisions of Rule 21 of
the Rules of Court.
In case of the unjustified failure of the witness to comply,
the court or judge issuing the subpoena, upon proof of the
service of such subpoena and proof of his failure to attend,
may issue a warrant for his arrest (Sec. 8, Rule 21, Rules of
Court).
Right to appeal
1.
In all criminal prosecutions, the accused shall have
the right to appeal in the manner prescribed by law (Hilario
v. People, 551 SCRA 191; Sec. l[i], Rule 115, Rules of Court).
2.
An appeal in a criminal case opens the entire case for
review and the appellate court may correct even unassigned
errors (Dico v. Court of Appeals, G.R. No. 141669, February
28, 2005; Guy v. People, G.R. Nos. 166794-96, March 20,
2009; People v. Montinola, 543 SCRA 412; People v. Jabiniax),
Jr., 553 SCRA 769; Lao v. People, 556 SCRA 120; People v.
Tambis, 560 SCRA 343).
The above rule is in contrast to the rule in a civil case.
In a civil case, as a rule, an unassigned error will not be considered by the appellate court unless such error affects the
jurisdiction of the court, affects the validity of the judgment
appealed from, or the error is closely related to or dependent
upon the assigned error properly argued in the brief, or when
the error is simply plain or clerical (Sec. 8, Rule 51, Rules of
Court).
3.
An established rule in appellate review is that the
trial court's findings, its assessment of the credibility of the
witnesses and the probative weight of their testimonies, as
well as the conclusions drawn from the actual findings, are
accorded respect, if not conclusive effect (People v. Casta, 565
SCRA 341) unless there appears in the record some facts
or circumstances of weight and influence which have been
CHAPTER VIII
ARRAIGNMENT AND PLEA
(Rule 116)
427
overlooked and, if considered, would affect the result (People v. Sison, 555 SCRA 156;
People v. Tormis, 574 SCRA 903).
Generally, the findings of the trial court relative to the credibility of the witness are
normally respected and not disturbed on appeal (People v. Coja, 555 SCRA 176).
- oOo -
CHAPTER VIII
ARRAIGNMENT AND PLEA (Rule 116)
A. BASIC CONCEPTS
Meaning and importance of arraignment (Bar 2007)
1.
An arraignment is that stage where, in the mode and manner required by the
Rules, an accused, for the first time, is granted the opportunity to know the precise charge that
confronts him (Brig Gen. [Ret.] Jose Ramiscal, Jr. v. Sandiganbayan and
People of the Philippines, G.R. No. 172476- 99, September 15,2010).
Arraignment is the formal mode and manner of implementing the constitutional right
of an accused to be informed of the nature and cause of the accusation against him (People
v. Pangilinan, 518 SCRA 358, March 14, 2007). Arraignment is not an empty ritual
that should be taken lightly (Gamas v. Oco, 425 SCRA 588).
2.
Arraignment is an indispensable requirement of due process. It consists of the
judge's or the clerk of court's reading of the criminal complaint or information to the defendant.
At this stage, the accused is granted, for the first time, the opportunity to be officially informed
of the nature and the cause of the accusation. Thus, arraignment cannot be regarded lightly or
brushed aside peremptorily (People v. Espinosa, 409 SCRA 256).
3.
Without a prior arraignment, the accused cannot invoke double jeopardy
(Miranda v. Tuliao, 486 SCRA 377). Note too that if the accused has not been
arraigned, he
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cannot be tried in absentia (Sec. 14[2], Art. Ill, Philippine Constitution).
Duty of the court before arraignment
Before arraignment, the court shall (a) inform the accused of his right to counsel;
(b) ask him if he desires to have one; and (c) must assign a counsel de officio to defend him
unless the accused (i) is allowed to defend himself in person; or (ii) has employed a counsel of his
choice (Sec. 6, Rule 116, Rules of Court).
This duty is mandatory and the only instance when the court can arraign without the
benefit of counsel is if the accused waives such right and the court, finding the accused capable,
allows him to represent himself in person. If the accused informs the court that he cannot afford
a lawyer, and the court has not allowed the accused to represent himself or the accused is
incapable of representing himself, the judge has the duty to appoint a counsel de oficio to
give meaning and substance to the constitutional right of the accused to counsel (Gamas v.
Oco, 425 SCRA 588).
The insistence of the accused to be arraigned without representation is no reason for the
judge to accede readily to his wishes (Gamas v. Oco, 425 SCRA 588).
The court shall appoint as counsel de officio members of the bar in good
standing who, by reason of their experience and ability, can competently defend the accused. In
localities where members of the bar are not available, the court may appoint any person,
resident of the province and of good repute for probity and ability, to defend the accused (Sec.
7, Rule 116, Rules of Court).
The counsel de officio shall be given a reasonable time to consult with the
accused as to his plea before proceeding with the arraignment (Sec. 8, Rule 116, Rules of
Court).
Options of the accused before arraignment and plea
1. Before arraignment and plea, the accused may avail of any of the following:
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(a) Bill of particulars — The accused may, before arraignment, move for a bill
of particulars to enable him to properly plead and prepare for trial. The motion shall (a)
specify the alleged defects of the complaint or information, and shall (b) specify the
details desired (Sec. 9, Rule 116, Rules of Court). If the accused for instance,
finds the information defective as it bears only the month and year of the incident
complained of, he should file a motion for bill of particulars, as provided under Rule 116,
before he enters his plea (People v. Jalbuena, 526 SCRA 500, July 4, 2007).
(b) Suspension of arraignment — Upon motion, the proper party may ask for
the suspension of the arraignment in the following cases:
(i)
The accused appears to be suffering from an unsound mental
condition which effectively renders him unable to fully understand the charge
against him and to plead intelligently thereto. In such case, the court shall order
his mental examination and, if necessary, his confinement for such purpose;
Aside from suspension of the arraignment, the trial court is mandated to
order the confinement of an accused who is mentally unsound at the time of the
trial in one of the hospitals or asylums established for persons thus afflicted
(People v. Mala, 411 SCRA 327).
(ii)
There exists a prejudicial question; and
(iii) There is a petition for review of the resolution of the prosecutor
which is pending at either the Department of Justice, or of the Office of the
President. The period of suspension shall not exceed sixty (60) days counted
from the filing of the petition with the reviewing office (Sec. 11, Rule 116,
Rules of Court).
Section 11(c), Rule 116, which directs the trial court to suspend the arraignment
where there is a pending pe
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tition with the Department of Justice (DOJ) or the Office of the President (OP), is qualified by the
proviso stating that the period of suspension shall not exceed 60 days counted from the filing
of the petition with the reviewing office (See Adasa v. Abalos, 516 SCRA 261,
February 19, 2007 for related reading).
Jurisprudence is clear that with the arraignment of the accused, the DOJ
Secretary can no longer entertain the appeal or petition for review because petitioner
had already waived or abandoned the same (Gandarosa v. Flores, 527 SCRA
776, July 17,2007).
(c)
Motion to quash — At any time before entering his plea, the accused
may move to quash the complaint or information on any of the grounds provided for
under Sec. 3 of Rule 117, in relation to Sec. 1 of Rule 117.
(d)
Challenge the validity of arrest or legality of the warrant issued or assail
the regularity or question the absence of a preliminary investigation of the charge (Sec.
26, Rule 114, Rules of Court) — An objection against an arrest or the procedure
in the acquisition by the court of jurisdiction over the person of an accused should be
made at or before the arraignment, otherwise the objection is deemed waived
(People v. Lozada, 406 SCRA 494; People v. Bagsit, 409 SCRA 350). The
principle that the accused is precluded from questioning the legality of his arrest after
arraignment is true only if he voluntarily enters his plea and participates during the trial,
without previously invoking his objections thereto (Borlongan, Jr. v. Pena, G.R.
No. 143591, May 5,2010 cited in Leviste v. Alameda, G.R. No.
182677, August 3,2010).
The arraignment of the accused constitutes a waiver of the right to preliminary
investigation or reinvestigation. Such waiver is tantamount to a finding of probable
cause (Adasa v. Abalos, 516 SCRA 261; Gandarosa v. Flores, 527 SCRA
776).
2. In a case, the Supreme Court rejected petitioner's contention that his second motion
for reconsideration before
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the Ombudsman should have suspended his arraignment. According to the Supreme Court, the
Rules of Procedure of the Ombudsman allows the filing of an information in court pending a
motion for reconsideration of the finding of a probable cause; hence, if the filing of a motion for
reconsideration of the resolution finding probable cause cannot bar the filing of the
corresponding information, then neither can it bar the arraignment of the accused, which in the
normal course of criminal procedure logically follows the filing of the information.
Petitioner failed to show any of the grounds for suspension of arraignment as provided
under Sec. 11, Rule 116 of the Rules of Court, which applies suppletorily in matters not provided
under the Rules of Procedure of the Office of the Ombudsman or the Revised Internal Rules of
the Sandiganbayan. Thus, the Sandiganbayan committed no error when it proceeded
with petitioner's arraignment, as mandated by Sec. 7 of R.A. 8493 (Brig Gen. [Ret.] Jose
Ramiscal, Jr. v. Sandiganbayan and People of the Philippines, G.R. No.
172476-99, September 15,2010).
Plea made before a court with no jurisdiction
A plea made before a court that has no jurisdiction over the criminal action does not
give rise to double jeopardy (Zapatos v. People, 411 SCRA 148).
Arraignment under an amended information; substituted information
1.
Where the accused has been already arraigned and subsequently, the
information was substantially amended, an arraignment on the amended information is
mandatory because the accused has the constitutional right to be informed of the accusation
against him and more so because the accused had repeatedly called the attention of the court
to the absence of arraignment. If he is not arraigned and is convicted under the second
information, the conviction constitutes reversible error (Cabangangan v. Concepcion,
95 Phil. 87).
2.
Where the amendment is only as to form, there is no need for another
preliminary investigation and the retaking
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of the plea of the accused; in substitution of information, another preliminary investigation is
entailed and the accused has to plead anew to the new information (Teehankee, Jr. v.
Madayag, 207 SCRA 134).
B. HOW ARRAIGNMENT AND PLEA ARE MADE
Where arraignment is to be made
The accused must be arraigned before the court where the complaint or information
was filed or assigned for trial (Sec. l[a], Rule 116, Rules of Court).
How arraignment is made
The arraignment is made in open court by the judge or clerk by furnishing the accused
with a copy of the complaint or information, reading the same in the language or dialect known
to him, and asking him whether he pleads guilty or not guilty (Sec. l[a], Rule 116, Rules of
Court).
When arraignment is to be made
1.
Under the Rules of Court, the arraignment shall be held within thirty (30) days
from the date the court acquires jurisdiction over the person of the accused, unless a shorter
period is provided by a special law or a Supreme Court Circular (Sec. l[g], Rule 116, Rules
of Court). In computing the period, the following shall be excluded: (a) the time of the
pendency of a motion to quash; (b) the time for the pendency of a bill of particulars; or (c) other
causes justifying suspension of the arraignment (Sec. l[g], Rule 116, Rules of Court).
2.
The arraignment of an accused shall be held within thirty (30) days from the filing
of the information, or from the date the accused has appeared before the justice, judge or court
in which the charge is pending, whichever date last occurs. Thereafter, where a plea of not guilty
is entered, the accused shall have at least fifteen (15) days to prepare for trial. (Sec. 7 of The
Speedy Trial Act of1998 [.R.A.8493]).
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If the accused pleads not guilty to the crime charged,
he/she shall state whether he/she interposes a negative or
affirmative defense. A negative defense shall require the prosecution to prove the guilt of the accused beyond reasonable
doubt, while an affirmative defense may modify the order of
trial and require the accused to prove such defense by clear
and convincing evidence (Sec. 7 of The Speedy Trial Act of
1998 [RA. 8493]).
3. When the accused is under preventive detention, his
case shall be raffled and its records transmitted to the judge
to whom the case was raffled within three (3) days from the
filing of the information or complaint. The accused shall be
arraigned within ten (10) days from the date of the raffle and
the pre-trial conference shall be held within ten (10) days
after arraignment (Sec. l[e], Rule 116, Rules of Court).
Arraignment after submission of the case for decision
May arraignment be made after a case has been submitted
for decision? The question was answered by the Supreme
Court in the affirmative.
In a case, accused appellant assailed his conviction because he claimed that he was not properly arraigned. Since it
appeared that he was arraigned only after the case was submitted for decision, he contended that this procedural error
was tantamount to a denial of his constitutional right to be
informed of the accusation against him. He further argued
that his subsequent arraignment did not cure the defect in
the trial proceedings because at the time the petition for bail
was heard, the trial court had not yet acquired jurisdiction
over his person.
Brushing aside the contentions, the Court emphatically
stated:
xxx
"Appellant is mistaken. When the hearings for his
petition for bail were conducted, the trial court had already acquired jurisdiction over his person. Settled is the
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rule that jurisdiction over the person of the accused is acquired upon his arrest or
voluntary appearance. In the case at bar, the trial court acquired jurisdiction over the
person of the appellant when he was arrested x x x . His arrest, not his arraignment,
conferred on the trial court jurisdiction over his person.
Arraignment is the formal mode and manner of implementing the constitutional
right of an accused to be informed of the nature and cause of the accusation against
him. The purpose of arraignment is, thus, to apprise the accused of the possible loss of
freedom, even of his life, depending on the nature of the crime imputed to him, or at the
very least to inform him of why the prosecuting arm of the State is mobilized against
him.
Admittedly, appellant was arraigned after the case was submitted for decision.
The question is: Were appellant's rights and interests prejudiced by the fact that he was
arraigned only at this stage of the proceedings?
We do not think so. Appellant's belated arraignment did not prejudice him. This
procedural defect was cured when his counsel participated in the trial without raising
any objection that his client had yet to be arraigned. In fact, his counsel even
cross-examined the prosecution witnesses. His counsel's active participation in the hearings is a clear indication that he was fully aware of the charges against him; otherwise,
his counsel would have objected and informed the court of this blunder. Moreover, no
protest was made when appellant was subsequently arraigned. The parties did not
question the procedure undertaken by the trial court. It is only now, after being
convicted and sentenced to two death sentences, that appellant cries that his
constitutional right has been violated. It is already too late to raise this procedural defect.
This Court will not allow it. x x x Since appellant's rights and interests were not
prejudiced by this lapse in procedure, it only follows that his constitutional right to be
informed of the nature and cause of the accusation against him was not violated"
(People v. Pangilinan, 518
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SCRA 358 citing People v. Cabale, 185 SCRA 140, People v. Atienza,
86 Phil. 576; Underscoring supplied).
Record of arraignment
The arraignment and plea shall be made of record, but failure to do so shall not affect
the validity of the proceedings (Sec. l[b], Rule 116, Rules of Court).
Presence of the accused
The accused must be present at the arraignment and must personally enter his plea
(Sec. l[b], Rule 116, Rules of Court).
Presence of the offended party
1. The private offended party shall be required to appear at the arraignment for
the following purposes: (a) plea bargaining, (b) determination of civil liability, and (c) other
matters requiring his presence (Sec. l[fj, Rule 116, Rules of Court).
2. In case the offended party fails to appear despite due notice, the court may
allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the
offense charged with the conformity of the trial prosecutor alone (Sec. l[f], Rule 116,
Rules of Court).
When a plea of 'not guilty' shall be entered (Bar 1992; 1993; 1996)
1.
Aside from an actual plea of not guilty, a plea of not guilty shall be entered for
the accused if (a) he refuses to plead; (b) he makes a conditional plea (Sec. l[c], Rule 116,
Rules of Court); (c) when he pleads guilty but presents exculpatory evidence in which case
the guilty plea shall be deemed withdrawn and a plea of not guilty shall be entered (Sec. l[d],
Rule 116, Rules of Court).
2.
The accused, by entering a plea of not guilty, submits himself to the jurisdiction
of the trial court, thereby curing any defect in his arrest (People v. Pua, 415 SCRA 540).
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3.
When the accused admits the facts in the information but alleges that he
performed the acts as charged because he feared for his life, it is proper to enter a plea of not
guilty (People v. Baetiong, 2 Phil. 126).
4.
When the accused pleads guilty but it can be inferred from the arguments made
by his counsel and in his appeal brief that the accused is asking that a certain penalty be
imposed upon him in view of some mitigating circumstances, this is a conditional plea and is
equivalent to a plea of not guilty (People v. Madraga, 344 SCRA 628). It appears that
this holding presupposes that the plea of guilty is conditioned upon the imposition of a lesser
penalty due to mitigating factors and not a mere request to be meted a lesser penalty after a
plea of guilty. It is submitted that the latter is not a conditional plea but is to be construed as an
emotional appeal for leniency in the imposition of a penalty.
Thus, in People v. Comendador, G.R. No. L-38000, September 19, 1980,
the accused pleaded guilty to robbery with homicide but asked the court to impose upon him a
lesser penalty other than death. The Court held that while it is true that accused-appellant
requested for a lesser penalty, such does not make his plea of guilty conditional. It remains to be
an admission of the facts alleged in the information charging robbery with homicide. At most,
said plea for a lesser penalty is an appeal to emotion as it does not assail, restrict or qualify the
information.
The Court observed that the accused-appellant intended his plea of guilty to be
unconditional because he did not bother to adduce any evidence in his favor and merely
submitted the case for decision. Although he had an opportunity to do so after the prosecution
rested its case, he did not avail of the same. He remained resolute in his decision to own the
crime. His claim, therefore, that his plea of guilty is conditional is inconsistent with his candor,
spontaneity and insistent admission of guilt in the trial court. Clearly, added the Court, this
change in his stand is merely a belated and unconvincing effort to avoid conviction.
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5.
When the accused pleads guilty and bargains for a lesser penalty, it is not a plea
to a lesser offense. It is a plea that made conditions on the penalty to be imposed. It is the
essence of a plea of guilty that the accused admits absolutely and unconditionally his guilt and
responsibility for the offense imputed to him. Hence, an accused may not foist a conditional
plea of guilty on the court by admitting his guilt provided that a certain penalty will be meted
unto him. Accused-appellant's plea of guilty is undoubtedly a conditional plea. Hence, the trial
court should have vacated such a plea and entered a plea of not guilty for a conditional plea of
guilty, or one subject to the proviso that a certain penalty be imposed upon him, is equivalent
to a plea of not guilty and would, therefore, require a full-blown trial before judgment may be
rendered (People v. Magat, 332 SCRA 517).
6.
An accused may not foist a conditional plea of guilty on the court in the sense
that he admits his guilt provided that a certain penalty will be meted unto him. Likewise, a
formal plea of not guilty should properly be entered if an accused admits the truth of some or
all the allegations of the information, but interposes excuses or additional facts which, if duly
established would exempt or relieve him in whole or in part of criminal responsibility (People
v. Albert, 251 SCRA 136; People v. Bello 316 SCRA 804).
7.
In People v. Stephen Douglas Strong, L-38626, March 14,1975,
the Court observed that although the accused pleaded guilty to the charge, every time he was
asked about the specific allegations of the information, he denied the specific allegations about
the killing of the victim. When interrogated further to explain why he answered in the negative
considering that he had entered a guilty plea, he manifested that he did not do any of those
acts attributed to him. He consistently answered "no" every time to each question on whether
or not he did the acts mentioned in the information. It is well-settled, continued the court, that
when a plea of guilty is not definite or ambiguous, or not absolute, the same amounts to a plea
of not guilty.
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8. In People v. Balisacan, 17 SCRA 1119, the accused had first entered a plea of
guilty. Subsequently, however, he testified, in the course of being allowed to prove mitigating
circumstances, that he acted in complete self-defense. Said testimony, therefore had the effect
of vacating his plea of guilty and the trial court should have required him to plead anew on the
charge, or at least direct that a new plea of not guilty be entered for him. Since this was not
done, it follows that in effect there was no standing plea at the time the court a quo rendered
its judgment of acquittal. There can be no double jeopardy since there was no plea.
Plea of guilty is a judicial confession; effect on aggravating circumstances
1.
As a rule, a plea of guilty is a judicial confession of guilt — an admission of all the
material facts alleged in the information, including the aggravating circumstances alleged
(People v. Comendador, G.R. No. L-38000, September 19,1980; Citing
People u. Corachea, L-30101, July 16,1979).
A plea of guilty admits the truth of all the material facts alleged in the information,
including all the aggravating circumstances mentioned therein (People v. Koloh Pohong,
G.R. No. L-32332, August 15, 1973). A judicial confession of guilt embraces all the
material facts alleged in the information, including all the aggravating circumstances listed
therein (People v. Busa, G.R. No. L- 32047, June 25,1973).
2.
It is submitted that conclusions of law are not admitted by a plea of guilty
because conclusions of law are not facts.
3.
In one case, while the accused pleaded guilty to the information, "such plea, as
pointed out in the return of the Solicitor General, constituted only an admission of the facts
alleged in the information, but was not an admission that the acts charged were unlawful, nor
did it have the effect of curing the defect in the Court's jurisdiction" (Cadimas v. The
Director of Prisons, G.R. No. L-9725, October 19, 1955 citing People v.
Santos Lopez, 45 O.G. [No. 5] 2089).
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Exception to the admission of aggravating circumstances
1.
While the rule is that a judicial confession of guilt admits all the material facts
alleged in the information including the aggravating circumstances listed therein, if such
circumstances are disproved by the evidence, it should be disallowed in the judgment. Thus,
the Court ruled that when an accused, who lacks instruction, pleads guilty to the crime of
parricide described in the information as having been committed with the aggravating
circumstances of treachery and evident premeditation and his testimony given under oath
before the trial court fails to show the existence of such aggravating circumstances, his plea of
guilty shall be understood as being to the admission of having committed the crime of parricide,
not of having done so with treachery and evident premeditation (People v. Comendador,
G.R. No. L-38000, September 19, 1980 citing People v. Gungab, 64 Phil.
779).
2.
A plea of guilty "cannot be held to include treachery and evident premeditation
where the evidence adduced does not adequately disclose the existence of these qualifying
circumstances" (People v. Gravino, G.R. No. L-31327-29, May 16,1983).
3.
The evidence may disprove the existence of aggravating circumstances despite
the plea of guilty because a plea of guilty does not dispense with the presentation of evidence.
When the accused pleads guilty to a non-capital offense, the court may receive evidence to
determine the penalty to be imposed pursuant to Sec. 4 of Rule 116. If the plea is to a capital
offense the prosecution shall be required to prove the guilt of the accused and the precise
degree of his culpability as mandated by Sec. 3 of Rule 116.
Plea of guilty to a lesser offense; plea bargaining (Bar 1995; 2002)
1. Plea bargaining in criminal cases is a process whereby the accused and the
prosecution work a mutually satisfactory disposition of the case subject to court approval. It
usually involves the defendant's pleading guilty to a lesser
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offense or to only one or some of the counts of a multi-count indictment in return for a lighter
sentence than that for the graver charge (Daan v. Sandiganbayan, G.R. Nos.
163972-77, March 28,2008).
Requisites for a plea of guilty to a lesser offense
1. At the arraignment, the accused may plead guilty to a lesser offense. The court
shall allow the plea provided the following requisites concur:
(a)
The lesser offense is necessarily included in the offense charged; and
(b) The plea must be with the consent of both the offended party and the
prosecutor (Sec. 2, Rule 116, Rules of Court). The consent of the offended party
will not be required if said party, despite due notice, fails to appear during the
arraignment (Sec. l[fj, Rule 116, Rules of Court).
2. The acceptance of an offer to plead guilty to a lesser offense is not demandable
by the accused as matter of right but is a matter addressed entirely to the sound discretion of
the trial court (Daan v. Sandiganbayan, G.R. Nos. 163972-77, March 28, 2008
citing People v. Villarama, 210 SCRA 246).
3. Sec. 2 of Rule 116 of the Rules of Court present the basic requisites upon which
plea bargaining may be made, i.e., that it should be with the consent of the offended party and
the prosecutor, and that the plea of guilty should be to a lesser offense which is necessarily
included in the offense charged. The rules however, used the word may in the second
sentence of Sec. 2, denoting an exercise of discretion upon the trial court on whether to allow
the accused to make such plea. Trial courts are exhorted to keep in mind that a plea of guilty for
a lighter offense than that actually charged is not supposed to be allowed as a matter of
bargaining or compromise for the convenience of the accused (Daan v. Sandiganbayan
[Fourth Division], 550 SCRA 233, March 28, 2008).
4. An offense may be said to necessarily include another when some of the
essential elements or ingredients of the
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former as alleged in the complaint or information constitute the latter —
and vice versa, an offense may be said to be necessarily included in
another when the essential ingredients of the former constitute or form
part of those constituting the latter (Daan v. Sandiganbayan [Fourth
Division], 550 SCRA 233, March 28, 2008 citing Pacho v. Sandiganbayan,
238 SCRA 116).
Plea of guilty to a lesser offense after arraignment; plea bargaining
during the trial proper
1.
The rule allows a plea of guilty to a lesser offense, not only "at
arraignment" but also "[AJfter arraignment" and after his prior plea is
withdrawn, but Section 2 of Rule 116 provides that the same be made
"before trial" (Sec. 2, Rule 116, Rules of Court).
2.
Also, the rule on the provisions on Pre-Trial in Rule 118,
indicates that plea bargaining is one of the matters to be considered
during the pre-trial stage, a proceeding conducted before the trial (Sec.
l[a], Rule 118, Rules of Court).
It has been held, however, that it may also be considered during the
trial proper and even after the prosecution has finished presenting its
evidence and rested its case. It is immaterial that plea bargaining was not
made during the pretrial stage or that it was made only after the
prosecution already presented several witnesses (Daan v. Sandiganbayan,
G.R. Nos. 163972-77, March 28, 2008 citing People v. Mamarion, 459 Phil.
51). Note: For suggested reading.
3.
It is incumbent upon a trial judge to ascertain and be fully
convinced that the plea of guilty was voluntarily made and its
consequences fully comprehended by the accused (People v. Ceredon, 542
SCRA 550, January 28, 2008).
No need for amendment of information/complaint
When there is a plea of guilty to a lesser offense and the same was
allowed by the court, there is no need to amend the information or
complaint (Sec. 2, Rule 116, Rules of Court; Sec. 4, Circ. 38-98). A
conviction under this plea shall be
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equivalent to a conviction of the offense charged for purposes of double jeopardy (People v.
Magat, G.R. No. 130026, May 31, 2000).
When plea of guilty to a lesser offense is not mitigating
1.
A plea of guilty made after arraignment and after trial had begun does not entitle
the accused to have such plea considered as mitigating
(People v. Ibanez, 407 SCRA
406).
2. In a case, an information for murder qualified by treachery and evident
premeditation was filed against the accused. When first arraigned, he pleaded not guilty but
during the pre-trial he offered to plead guilty to the lesser offense of homicide but was rejected
by the prosecution, hence, the case proceeded to trial. The accused was found by the trial court
guilty of murder qualified by treachery and sentenced to death.
The accused argues that the trial court erred in imposing the death penalty despite the
attendance of mitigating and alternative circumstances in his favor. He avers that he is entitled
to the mitigating circumstance of plea of guilty because he earlier pleaded guilty to the lesser
offense of homicide.
The Court disagreed. It went on to state that while the accused offered to plead guilty to
the lesser offense of homicide, he was charged with murder for which he had already entered a
plea of not guilty. An offer to enter a plea of guilty to a lesser offense cannot be considered as an
attenuating circumstance under the provisions of Art. 13 of The Revised Penal Code
because to be voluntary, the plea of guilty must be to the offense charged (People v.
Dawaton, G.R. No. 146247, September 17, 2002).
Plea of guilty to a capital offense (Bar 1995)
1. When the accused pleads guilty to a capital offense, it is not proper for the court to
immediately render judgment on the basis of the guilty plea. Instead, the court is mandated to
perform the following acts:
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(a) To conduct a searching inquiry (i) to ascertain the voluntariness of
the plea, and (ii) to ascertain whether or not the accused has full comprehension of the
consequences of his plea;
(b) To require the prosecution to prove the following: (i) the guilt of the
accused, and (ii) the precise degree of his culpability; and
(c) To ask the accused if he wishes to present evidence and allow the
accused to present evidence in his behalf when he so desires (Sec. 3, Rule 116,
Rules of Court; See People v. Bernas, 377 SCRA 391; People v.
Principe, 381 SCRA 642; People v. Murillo, 434 SCRA 342; People v.
Ebio, 439 SCRA 421; People v. Espidol, 442 SCRA 360).
The process is mandatory and absent any showing that that it has been duly observed, a
searching inquiry cannot be said to have been aptly undertaken (People v. Oden, 427
SCRA 634). A mere warning that the accused faces the supreme penalty of death is
insufficient (People v. Principe, 381 SCRA 642).
The tenor of the rule clearly precludes the court from determining the guilt of the
accused from his plea of guilty even if the court has ascertained that the plea was voluntary and
with full comprehension of the consequences of the plea. The court shall still require the
prosecution to prove the guilt of the accused and the precise degree of his culpability.
The essence of a plea of guilty is that the accused admits his guilt freely, voluntarily and
with full knowledge and understanding of the precise nature of the crime charged in the
information as well as the consequences of his plea. It is an unconditional admission of guilt
with respect to the offense charged (People v. Mendoza, 231 SCRA 264).
2. When a plea of guilty to a capital offense is entered, there are three (3) conditions that
the trial court must observe to obviate an improvident plea of guilty by the accused—(1) it must
conduct a searching inquiry into the voluntariness and full comprehension by the accused of the
consequences of his
CHAPTER VIII
ARRAIGNMENT AND PLEA
(Rule 116)
445
plea, (2) it must require the prosecution to present evidence to prove the guilt of the accused
and the precise degree of his culpability, and (3) it must ask the accused whether he desires to
present evidence on his behalf, and allow him to do so if he so desires (People v.
Gumimba, 517 SCRA 25, February 27, 2007; People v. Ernas, 408 SCRA
391).
The court must still require the introduction of evidence for the purpose of establishing
the guilt and the degree of culpability of the defendant because a plea of guilty is only a
supporting evidence or secondary basis for a finding of culpability (People v. Espidol, 442
SCRA 360).
3. As the rule now stands, "even in cases in which the accused pleads guilty to a capital
offense, the prosecution is still required to present evidence to prove his guilt and the precise
degree of his culpability." In other words, notwithstanding the plea of guilty, evidence must be
adduced to determine the precise participation of the accused in the perpetuation of the capital
offense—whether as principal, accomplice, or accessory—as well as the presence or absence of
modifying circumstances. And "the accused may also present evidence in his behalf either to
rebut the prosecution's evidence or to show the presence of mitigating circumstances (People
v. Francisco, G.R. No. 192818, November 17,2010).
An earlier case likewise held that when an accused pleads guilty to a capital offense, the
court shall conduct a searching inquiry into the voluntariness and full comprehension of the
consequences of his plea (People v. Baun, 562 SCRA 584, August 20,2008).
Meaning of "searching inquiry"
1. In the case of People v. Talusan, G.R. No. 179187, July 14, 2009, a case
involving a conviction for kidnapping with rape of a minor where the accused pleaded guilty, the
lone assignment of error of the accused is the alleged failure of the trial court "to judiciously
follow" the guidelines set forth in People v. Pastor, 379 SCRA 181, a. case where the
Court ruled that "there is no definite and concrete rule as to how a trial
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/
judge must conduct a 'searching inquiry,'" but nevertheless came up with the following
guidelines:
(a)
Ascertain from the accused himself (1) how he was brought into the
custody of the law; (2) whether he had the assistance of a competent counsel during the
custodial and preliminary investigations; and (3) under what conditions he was detained
and interrogated during the investigations. This is accordingly intended to rule out the
possibility that the accused has been coerced or placed under a state of duress either by
actual threats of physical harm coming from malevolent quarters or simply because of
the judge's intimidating robes.
(b) Ask the defense counsel a series of questions as to whether he had
conferred with, and completely explained to, the accused the meaning and
consequences of a plea of guilty.
(c)
Elicit information about the personality profile of the accused, such as his
age, socio-economic status, and educational background, which may serve as a trustworthy index of his capacity to give a free and informed plea of guilty.
(d) Inform the accused the exact length of imprisonment or nature of the
penalty under the law and the certainty that he will serve such sentence. For not infrequently, observed the Court, an accused pleads guilty in the hope of a lenient
treatment or upon bad advice or because of promises of the authorities or parties of a
lighter penalty should he admit guilt or express remorse. It is the duty of the judge to
ensure that the accused does not labor under these mistaken impressions because a
plea of guilty carries with it not only the admission of authorship of the crime proper but
also of the aggravating circumstances attending it, that increase punishment.
(e) Inquire if the accused knows the crime with which he is charged and fully
explain to him the elements of the crime which is the basis of his indictment. Failure
CHAPTER VIII
ARRAIGNMENT AND PLEA
(Rule 116)
447
of the court to do so would constitute a violation of his fundamental right to be
informed of the precise nature of the accusation against him and a denial of his right to
due process.
(f)
All questions posed to the accused should be in a language known and
understood by the latter.
(g) The trial judge must satisfy himself that the accused, in pleading guilty, is
truly guilty. The accused must be required to narrate the tragedy or reenact the crime or
furnish its missing details (People v. Pastor, 379 SCRA 181; People v. Mira,
535 SCRA 543).
The Court found in People v. Talusan that the guidelines were complied with in the
case under consideration and that there was no improvident guilty plea under the
circumstances as it reiterated the rule that while there is thus no hard and fast rule as to how a
judge may conduct a "searching inquiry" as long as the voluntary intent of the accused and his
full comprehension of the consequences of his plea are ascertained, the accused's plea of guilt is
to be sustained.
The Court in Talusan continued to state that even assuming arguendo that
appellant entered an improvident plea of guilty when arraigned, there is no compulsion to
remand the case to the trial court for further reception of evidence. While the Court has set
aside convictions based on improvident pleas of guilty in capital offenses, which pleas had been
the sole basis of the judgment, where the trial court receives evidence to determine precisely
whether the accused erred in admitting his guilt, the manner in which the plea is made loses
legal significance if the conviction is, independently of the plea, based on evidence proving the
commission by the accused of the offense charged. In the present case, declared the Court, even
without the plea of guilty of appellant, the evidence presented by the prosecution supports his
guilt beyond reasonable doubt.
2. Thus, while the convictions based on pleas of guilty to capital offenses have been set
aside because of the improvidence of the plea, the same holds true only when such plea is
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/
the sole basis of the judgment (People v. Ceredon, 542 SCRA 550, January
28, 2008).
Plea of guilty to a non-capital offense
1.
When the accused pleads guilty to a non-capital offense, the
court may receive evidence from the parties to determine the penalty to
be imposed (Sec. 4, Rule 116, Rules of Court).
Notice that the duty imposed upon the court under this section is
not as stringent as the duty imposed upon it when the accused pleads
guilty to a capital offense. Thus, in People v. Madraga, 334 SCRA 628, it
was ruled that when the accused did not plead guilty to a capital offense,
he cannot invoke Sec. 3 of Rule 116 requiring the court to conduct a
searching inquiry into the voluntariness and full comprehension of the
consequences of his plea.
2.
There is no rule which provides that simply because the
accused pleaded guilty to the charge that his conviction automatically
follows. Additional evidence independent of the plea may be considered
to convince the judge that it was intelligently made. When the accused
pleads guilty to a noncapital offense, the court may receive evidence from
the parties to determine the penalty to be imposed. This rule is at most
directory. It will certainly be a clear abuse of discretion on the part of the
judge to persist in holding the accused bound to his admission of guilt and
sentencing him accordingly when the totality of the evidence points to his
acquittal. Additional evidence independent of the plea may be considered
to convince the judge that it was intelligently made (People v. Mendoza,
231 SCRA 264).
Improvident plea of guilty
1.
At any time before the judgment of conviction becomes final,
the court may permit an improvident plea of guilty to be withdrawn and
be substituted by a plea of not guilty (Sec. 5, Rule 116, Rules of Court).
2.
Where the trial court failed in its duty to conduct the
prescribed "searching inquiry" into the voluntariness of
CHAPTER VIII
ARRAIGNMENT AND PLEA
(Rule 116)
the accused's plea of guilty and full comprehension thereof,
the plea of guilty is deemed made improvidently and rendered
inefficacious (People v. Gumimba, 517 SCRA 25).
3.
In one case, the appellant was not fully apprised of
the consequences of his guilty plea. In fact, as argued by appellant, "the trial court should have informed him that his
plea of guilty would not affect or reduce the imposable penalty, which is death as he might have erroneously believed,
that under Art. 63, the death penalty, being a single indivisible penalty, shall be applied by the court regardless of any
mitigating circumstances that might have attended the commission of the deed." Moreover, the trial court judge failed to
inform appellant of his right to adduce evidence despite the
guilty plea. With the trial court's failure to comply with the
guidelines, appellant's guilty plea is deemed improvidently
made and thus rendered inefficacious (People of the Philip-
pines v. Oscar Documento, G.R. No. 188706, March 17, 2010).
4.
When there is an improvident plea of guilty, it does
not mean that the case should be remanded to the trial court.
This course of action is appropriate only when the appellant's
guilty plea was the sole basis for his conviction. On the
other hand, if the trial court relied on sufficient and credible
evidence in finding the accused guilty, the judgment must be
sustained (People of the Philippines v. Oscar Documento, G.R.
No. 188706, March 17, 2010).
Convictions based on an improvident plea of guilty are
set aside only if such plea is the sole basis of the judgment
(People v. Salamillo, 404 SCRA 211; People v. Ceredon, 542
SCRA 550). The manner by which the plea of guilty is made,
whether improvidently or not, loses much of great significance
where the conviction can be based on independent evidence
proving the commission by the person accused of the offense
charged (People v. Oden, 427 SCRA 634).
Production or inspection of material evidence
1. Rule 116 allows a mode of discovery aside from those
allowed in other parts of the Rules of Court. Sec. 10 thereof
authorizes the court, to issue an order to the prosecution to
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/
produce and permit the inspection and copying or photographing of any written statement
given by the complainant and other witnesses in any investigation of the offense conducted by
the prosecution or other investigating officers, as well as any designated documents, papers,
books, accounts, letters, photographs, objects, or tangible things not otherwise privileged,
which constitute or contain evidence material to any matter involved in the case and which are
in the possession or under the control of the prosecution, police or other law investigating
agencies (Sec. 10, Rule 116, Rules of Court).
2.
The production or inspection of material evidence in possession of the
prosecution shall be allowed upon motion of the accused with notice to the parties (Sec. 10,
Rule 116, Rules of Court).
3.
The purpose of the rule in allowing the production or inspection of material
evidence in possession of the prosecution is to prevent surprise, suppression, or alteration of
the evidence (Sec. 10, Rule 116, Rules of Court).
- oOo -
CHAPTER IX
MOTION TO QUASH
(Rule 117)
Time for filing the motion to quash
1. The motion to quash may be made at any time before
the accused enters his plea (Sec. 1, Rule 117, Rules of Court).
2.
A motion to quash is generally not allowed in a
summary procedure except on the ground of lack of jurisdiction
over the subject matter or failure to comply with the barangay
conciliation proceedings mentioned in Sec. 18 of the 1991 Rule
on Summary Procedure (Sec. 19, Rule on Summary Procedure).
(Bar 1989)
Form and contents of the motion to quash
The rule does not permit an oral motion to quash. The
motion shall be in writing. The motion must comply with the
following requisites:
(a)
The motion shall be in writing;
(b)
The motion shall be signed by the accused or his
counsel; and
(c)
The motion shall distinctly specify the factual and
legal grounds of the motion (Sec. 2, Rule 117, Rules
of Court).
Motion to quash is not a demurrer to evidence; distinctions
1. A motion to quash a complaint or an information is
filed before the accused enters a plea (Sec. 1, Rule 117, Rules
of Court). A demurrer to evidence in a criminal case is filed
after the prosecution rests its case (Sec. 23, Rule 119, Rules of
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/
Court) and hence, presupposes that the accused has already entered his plea and is in fact
already going through a trial.
Rule 117 does not require a prior leave of court for the filing of a motion to
quash. Under Rule 119, a demurrer to evidence may be filed by the accused either with leave or
without leave of court.
The grounds for a motion to quash are not grounds for a demurrer to evidence.
Under Sec. 23 of Rule 119, the ground for a demurrer to evidence is "insufficiency of evidence."
Such ground is not a basis for filing a motion to quash.
The ground for a motion to quash may be based on the matters found on the
face of the complaint or information as when it is alleged that the facts charged do not
constitute an offense or that the complaint or information does not conform to the prescribed
form. A demurrer to evidence would necessarily be predicated upon matters outside of the
complaint or information such as the evidence or lack of it.
When a motion to quash is granted, a dismissal of the case will not necessarily
follow. The court may even order the filing of a new complaint or information because an order
sustaining the motion is generally not a bar to another prosecution (Sec. 5, Sec. 6, Rule
117). The grant of a demurrer to evidence on the ground of insufficiency of evidence is, by
jurisprudence, deemed an acquittal and would preclude the filing of another information or an
appeal by the prosecution (Condrada v. People, 398 SCRA 482; People v. Laguio,
Jr., 518 SCRA 393).
If the court, in denying the motion to quash acts without or in excess of
jurisdiction or with grave abuse of discretion, then certiorari or prohibition lies (Lazarte v.
Sandiganbayan [First Division], G.R. No. 180122, March 13, 2009; Javier v.
Sandiganbayan, G.R. Nos. 147026-27, September 11, 2009). As expressly
provided under the last paragraph of Sec. 23 of Rule 119, the order denying the motion for
leave to file a demurrer or the demurrer itself "shall not be reviewable by appeal or by
certiorari before judgment." This is however, only a general rule.
CHAPTER IX
MOTION TO QUASH
(Rule 117)
453
Court shall consider only those grounds stated in the motion
Rule 117 expresses the general rule in Sec. 2 thereof that in resolving the motion to
quash filed by the accused, the court shall consider no grounds other than those stated in the
motion. The only ground which the court may consider even if not stated in the motion to
quash is lack of jurisdiction over the offense charged (Sec. 2, Rule 117, Rules
of Court). Hence, even if a reading of the information indicates the presence of averments
which if true would constitute a legal justification for the acts of the accused, such ground shall
not be considered by the court if it was not stated or invoked in the motion to quash.
Motion to quash; grounds for a motion to quash (Bar 1987; 1990; 1991;
1992; 1993; 1994; 1995; 1996; 1998; 1999; 2000; 2002; 2003; 2004; 2005;
2009; 2010)
1. A complaint or information may be subject to a motion to quash on any of the
following grounds (Sec. 3, Rule 117, Rules of Court):
(a)
That the facts charged do not constitute an offense; (Bar 1987)
(b)
charged;
That the court trying the case has no jurisdiction over the offense
(c)
That the court trying the case has no jurisdiction over the person of the
accused;
(d)
That the officer who filed the information had no authority to do so;
(Bar 2000)
(e)
That it does not conform substantially to the prescribed form;
(f)
That more than one offense is charged except when a single punishment
for various offenses is prescribed by law; (Bar 1996; 2005)
(g)
That the criminal action or liability has been extinguished;
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/
(h) That it contains averments which, if true, would constitute a legal excuse
or justification;
(i)
That the accused has been previously convicted or acquitted of the
offense charged, or the case against him was dismissed or otherwise terminated
without his express consent (Sec. 3, Rule 117, Rules of Court). (Bar 2002;
2004; 2010)
Execution of an affidavit of desistance is not a ground for a motion to
quash
1.
The execution by the offended party of an affidavit of desistance is not a ground
for a motion to quash a complaint or an information. It is not one of those enumerated in the
Rules of Court.
2.
An affidavit of desistance or pardon is not a ground for the dismissal of an action,
once it has been instituted in court (People v. Ramirez, G.R. Nos. 150079-80, June
10,2004; People v. Salazar, G.R. No. 181900, October 20, 2010).
3.
In People v. Salazar, the accused-appellant claims that the case should have
been dismissed by the trial court, considering that the alleged victim had executed an affidavit
of desistance exonerating him from the crimes charged.
The Court rejected the argument of the accused-appellant. As a rule, explained the
Court, a recantation or an affidavit of desistance is viewed with suspicion and reservation.
Jurisprudence has invariably regarded such affidavit as exceedingly unreliable, because it can
easily be secured from a poor and ignorant witness, usually through intimidation or for
monetary consideration. Moreover, there is always the probability that it would later on be
repudiated, and criminal prosecution would thus be interminable (People v. Salazar, G.R.
No. 181900, October 20, 2010; People v. Antonio, G.R. No. 174372,
January 20,2009; People of the Philippines v. Roy Alcazar y Miranda, G.R.
No. 186494, September 15,2010). At most the retraction is an afterthought which
should not be given probative value (People of the Philippines v. Roy Alcazar y
Miranda, G.R. No. 186494, September 15,2010).
CHAPTER IX
MOTION TO QUASH
(Rule 117)
Absence of probable cause not a ground to quash an information
1.
The absence of probable cause for the issuance of
a warrant of arrest is not a ground for the quashal of the
information but is a ground for the dismissal of the case
(People v. Sandiganbayan, 439 SCRA 390).
2.
In the same case, the Court defined the term "to
quash" to mean "to annul, vacate or overthrow," implying
that quashing an information does not necessarily mean its
dismissal (People v. Sandiganbayan, 439 SCRA 390). Note
that when a motion to quash is sustained, the court may in
fact, order that another complaint or information be filed
under the conditions set forth in Sees. 5 and 6 of Rule 117.
Matters of defense are not grounds for a motion to quash
1.
As a rule, matters of defense are not grounds for a
motion to quash. Thus, if the accused files a motion to quash
the information for homicide because he only acted in selfdefense, and such fact is not alleged in the information, the
court should proceed with the case and determine the validity
and truth of the defense in a full-blown trial.
Thus, it was held that facts that constitute the defense of
the petitioners against the charge under the information must
be proved by them during trial. Such facts or circumstances
do not constitute proper grounds for a motion to quash the
information on the ground that the material averments do not
constitute the offense (Soriano v. People, G.R. No. 159517-18,
June 30,2009).
2. Observe however, there are defenses allowed by the
rule to be grounds for a motion to quash like double jeopardy
or extinguishment of the criminal liability (Sec. 3, Rule 117,
Rules of Court).
Absence of a preliminary investigation is not a ground to
quash an information
The absence of a preliminary investigation or inability
to participate in the preliminary investigation is not a
455
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/
proper ground for a motion to quash but for a petition for
reinvestigation (Rodis v. Sandiganbayan, G.R. Nos. 7140409, October 26, 1988). Thus, in an early graft case where the
accused were deprived of a full preliminary investigation
preparatory to the filing of the informations against them, the
Court emphasized that such fact does not warrant the quashal
of the information, nor should it obliterate the proceedings
already had. Neither is the court's jurisdiction nor validity
of an information adversely affected by deficiencies in the
preliminary investigation. Instead, the Sandiganbayan is
to hold in abeyance any further proceedings therein and
to remand the case to the Office of the Ombudsman for the
completion of the preliminary investigation, the outcome of
which shall then be indorsed to the Sandiganbayan for its
appropriate action (Vasquez v. Hobilia-Alinio, 271 SCRA
67 citing Torralba v. Sandiganbayan, G.R. Nos. 101421-22,
February 10,1994).
Test in appreciating a motion to quash
1. When the ground relied upon is that the facts
charged do not constitute an offense, the determinative test
in appreciating a motion to quash under Sec. 3(a) of Rule 117
is the sufficiency of the averments in the information, that is,
whether the facts alleged, if hypothetically admitted, would
establish the essential elements of the offense as defined by
law without considering matters aliunde. An information
needs only to state the ultimate facts constituting the offense,
not the finer details of why and how the illegal acts alleged
amounted to undue injury or damage — matters that are
appropriate for trial. The information, in other words, must
allege clearly and accurately the elements of the crime charged
(Lazarte v. Sandiganbayan, G.R. No. 180122, March 13,2009;
Go v. Bangko Sentral ng Pilipinas, G.R. No. 178429, October
23,2009).
For instance, a challenge to the validity of the criminal
proceedings on the ground that the acts for which the accused
is charged do not constitute a violation of the provisions of
CHAPTER IX
MOTION TO QUASH
(Rule 117)
457
R.A. No. 3019, or of the provisions on bribery of the Revised Penal Code, should be treated only
in the same manner as a challenge to the criminal proceeding by way of a motion to quash on
the ground provided in Paragraph (a), Section 3 of Rule 117 of the Rules of Court, i.e., that the
facts charged do not constitute an offense. In other words, a resolution of the challenge to the
should be limited to an inquiry
whether the facts alleged in the information, if hypothetically admitted, constitute
validity of the criminal proceeding, on such ground,
the elements of an offense punishable under R.A. No. 3019 or the provisions on bribery of the
Revised Penal Code (Santiago v. Sandiganbayan, 356 SCRA 636).
2. However, since, Sec. 2 of Rule 117 requires that a motion to quash shall distinctly
specify not only its legal but also factual grounds, it "is clear from this Section that a motion to
quash may be based on factual and legal grounds, and since extinction of criminal liability and
double jeopardy are retained as among the grounds for a motion to quash in Sec. 3 of the new
Rule 117, it necessarily follows that facts outside the information itself may be introduced to
prove such grounds ..." (Garcia v. Court of Appeals, 266 SCRA 678).
Effect of failure to assert any ground of a motion to quash
1.
The failure to assert any ground of a motion to quash before a plea to the
complaint or information shall be deemed a waiver of any objections. This failure to assert a
ground may either be because:
(a)
the accused did not file a motion to quash, or
(b)
the accused filed a motion to quash but failed to allege the ground in said
motion (Sec. 9, Rule 117, Rules of Court).
2.
Failure of the accused to interpose an objection on the ground of duplicity of the
offense charged in the information constitutes waiver (People v. Tabio, 544 SCRA 156,
February 6, 2008; Sec. 3, Rule 120, Rules of Court).
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION
Grounds not waived
Although the rule is that those grounds not asserted in the motion to quash are waived,
the following objections are not waived:
(a)
that the facts charged do not constitute an offense (Sec. 3[a], Rule
(b)
that the court trying the case has no jurisdiction over the offense charged
117);
(Sec. 3[b], Rule 117);
(c)
that the criminal action or liability has been extinguished (Sec. 3[g],
Rule 117); and
(d)
double jeopardy (Sec. 3[i], Rule 117).
Denial of a motion to quash
1.
Well established is the rule that when a motion to quash in a criminal case is
denied, the remedy is not a petition for certiorari, but for petitioners to go to trial, without
(Serana v.
Sandiganbayan, 542 SCRA 225, January 22,2008).
2. The general rule is that a petition for certiorari under Rule 65 is not the proper
prejudice to reiterating the special defenses invoked in their motion to quash
remedy against an order denying a motion to quash. Absent any showing of arbitrariness on
the part of the investigating prosecutor or any other officer authorized by law to conduct
preliminary investigation, the court as a rule must defer to said officer's finding and
determination of probable cause (Boiser v. People, 543 SCRA 436, January 31,
2008). The remedy is for the movant to go to trial without prejudice to reiterating the special
defenses invoked in the motion to quash. This remedy however, is subject to exceptions. If the
court, in denying the motion to quash acts without or in excess of jurisdiction or with grave
certiorari or prohibition lies (Lazarte v. Sandiganbayan
[First Division], G.R. No. 180122, March 13, 2009; Javier v. Sandiganbayan,
G.R. Nos. 147026-27, September 11,2009).
abuse of discretion, then
CHAPTER IX
MOTION TO QUASH
(Rule 117)
459
When court shall order the amendment of the information or complaint
1.
The existence of a valid ground for sustaining a motion to quash will not
necessarily result in the dismissal of the information or complaint. If the motion to quash is
based on the alleged defect of the complaint or information, and the defect can be cured, the
court shall order that an amendment be made (Sec. 4, Rule 117, Rules of Court).
If the motion is based on the ground that the facts charged do not constitute an offense,
the court shall give the prosecution an opportunity to correct the defect by amendment.
However, if despite such opportunity, the prosecution (a) fails to make the amendment, or (b) if
despite the amendment, the complaint or information still suffers from the same defect, the
court shall grant the motion to quash (Sec. 4, Rule 117, Rules of Court).
2.
Even if an information may be defective because the facts charged do not
constitute an offense, the dismissal of the case will not necessarily follow. The prosecution
should be given a chance to correct the defect and the court can order the dismissal only upon
the prosecution's failure to do so. It would constitute an arbitrary exercise of power correctible
by certiorari if the trial court would not provide the prosecution the opportunity to correct
the defect (Go v. Bangko Sentral ng Pilipinas, G.R. No. 178429, October
23,2009).
Order sustaining a motion to quash is not a bar to another prosecution;
exceptions (Bar 1994)
1. When a motion to quash is sustained, the court may order that another complaint or
information be filed unless the ground relied upon is either (a) extinction of the criminal liability,
or (b) on the ground of double jeopardy as provided in Sec. 6, Rule 117 (Sec. 5, Rule 117,
Rules of Court). This is because an order sustaining a motion to quash is not a bar to another
prosecution for the same offense unless based on the ground that the criminal action or liability
has been extinguished or there is double jeopardy (Sec. 6, Rule 117, Rules of Court).
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/
2.
If the order to file another complaint or information
is made, the accused who may be in custody, shall not be
discharged or released, except if he is admitted to bail (Sec. 5,
Rule 117', Rules of Court). If no order to file is made or if such
order is made but no new complaint or information is filed
within the time specified in the order, the accused, if in custody
shall be discharged. He shall however, not be discharged if he
is in custody for another charge (Sec. 5, Rule 117, Rules of
Court).
3.
To emphasize, an order sustaining the motion to
quash is not a bar to another prosecution for the same offense
unless the motion was based on the following grounds:
That the criminal action or liability has been
extinguished (Sec. 3[g], Rule 117); or
That the accused has been previously convicted
or acquitted or the offense charged, or the case against
him was dismissed or otherwise terminated without his
express consent (double jeopardy) (Sec. 3[i], Rule 117).
Double jeopardy
1.
Sec. 21, Art. Ill of the Constitution of the Philippines
emphasizes that:
"No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law
or an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act."
2.
The essence of the constitutional provision is
specifically reiterated in the Rules of Court thus:
" x x x When an accused has been convicted or acquitted, or the case against him dismissed or otherwise
terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information
or other formal charge sufficient in form and substance to
sustain a conviction and after the accused had pleaded to
the charge, the conviction or acquittal of the accused or
the dismissal of the case shall be a bar to another prosecu-
CHAPTER IX
MOTION TO QUASH
(Rule 117)
461
tion for the offense charged, or for any attempt to commit the same or
frustration thereof, or for any offense which necessarily includes or is
necessarily included in the offense charged in the former complaint or
information." (Sec. 7, Rule 117, Rules of Court).
3.
"Jeopardy" in the legal sense, is the "danger of conviction and punishment which
the defendant in a criminal action incurs when a valid indictment has been found..." (Han- ley
v. State, 83 Nevada 461 cited in Black's Law Dictionary, 5th Edition, p. 749).
The constitution does not prohibit placing a person in jeopardy. What it prohibits is putting an
accused in "double jeopardy" in which he is put in danger of punishment for the same offense
more than once.
The constitutional provision against double jeopardy guarantees that the state shall not
be permitted to make repeated attempts to convict an individual for an alleged offense, thereby
subjecting him to embarrassment, expense, and ordeal and compelling him to live in a
continuing state of anxiety and insecurity, as well as enhancing that possibility that even though
innocent he may be found guilty (Co v. Lim, G.R. Nos. 164669-70, October
30,2009).
At the heart of the policy on double jeopardy is the concern that permitting the
sovereign freely to subject the citizen to a second judgment for the same offense would arm the
government with a potent instrument for oppression (Co v. Lim, G.R. Nos. 164669-70,
October 30,2009).
4.
Double jeopardy, as a criminal law concept, refers to jeopardy of punishment for
the same offense, suggesting that double jeopardy presupposes two separate criminal prosecutions (Garcia v. Sandiganbayan, G.R. No. 170122, October 12, 2009). Also
called as "res judicata in prison grey," the right against double jeopardy prohibits the
prosecution for a crime of which he has been previously convicted or acquitted (Caes v.
Intermediate Appellate Court, 179 SCRA 54). (Bar 2010)
Hence, double jeopardy presupposes that a first jeopardy has already attached prior to
the second jeopardy and such
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jeopardy has already been terminated either because the accused has already been convicted,
or acquitted or the case against him has been dismissed or terminated without his express
consent. If despite the termination of the first jeopardy or danger, he is put in danger anew for
the same offense as in the first, then double jeopardy arises. This is the very situation
prohibited by the Constitution. Hence, if the accused has been acquitted of frustrated
homicide, he can no longer be accused of the same offense or of an offense necessarily
included in frustrated homicide like attempted homicide. Similarly, a person convicted of
attempted homicide can no longer be tried, as a rule, under an information for frustrated
homicide against the same victim, because the second offense includes the offense charged in
the first information.
Effects of double jeopardy; on criminal and civil aspects
1.
When double jeopardy exists, "the conviction or acquittal of the accused or the
dismissal of the case shall be a bar to another prosecution for the offense charged, or for any
attempt to commit the same or frustration thereof, or for any offense which necessarily
includes or is necessarily included in the offense charged in the former complaint or information
(Sec. 7, Rule 117, Rules of Court). Hence, as a rule, an acquittal rendered by a court of
competent jurisdiction after trial on the merits is immediately final and cannot be appealed on
the ground of double jeopardy (People of the Philippines v. Hon. Sandiganbayan,
Abelardo P. Panlaqui, et al., G.R. No. 173396, September 22, 2010; See
People v. Sandiganbayan, G.R. No. 174504, March 21,2011 for related
reading).
2.
A judgment of acquittal is final and is no longer reviewable. It is also immediately
executory and the State may not seek its review without placing the accused in double
jeopardy. The Constitution has expressly adopted the double jeopardy policy and thus bars
multiple criminal trials, thereby conclusively presuming that a second trial would be unfair if the
innocence of the accused has been confirmed by a previous final judgment. Further prosecution
via an appeal from a judgment of acquittal is likewise barred because the
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government has already been afforded a complete opportunity to prove the criminal
defendant's culpability; after failing to persuade the court to enter a final judgment of
conviction, the underlying reasons supporting the constitutional ban on multiple trials applies
and becomes compelling. The reason is not only the defendant's already established innocence
at the first trial where he had been placed in peril of conviction, but also the same untoward and
prejudicial consequences of a second trial initiated by a government who has at its disposal all
the powers and resources of the State. Unfairness and prejudice would necessarily result, as the
government would then be allowed another opportunity to persuade a second trier of the
defendant's guilt while strengthening any weaknesses that had attended the first trial, all in a
process where the government's power and resources are once again employed against the
defendant's individual means. That the second opportunity comes via an appeal does not
make the effects any less prejudicial by the standards of reason, justice and conscience.
Thus, the absolute and inflexible rule is that the State is proscribed from appealing the
judgment of acquittal through either a regular appeal under Rule 41 of the Rules of Court, or an
appeal by certiorari on pure questions of law under Rule 45 of the same Rules (People v.
Nazareno, G.R. No. 168982, August 5, 2009).
3. The accused may appeal from a judgment of conviction but when the accused
appeals from the sentence of the trial court, he waives his right to the constitutional safeguard
against double jeopardy and throws the whole case open to review by the appellate court
(People v. Caraang, 418 SCRA 321; Oriente v. People, 513 SCRA 348; G.R.
No. 155094, January 30,2007).
Also, when an accused himself files or consents to the filing of a motion for
reconsideration of the judgment against him, double jeopardy cannot be invoked by him
because by filing the motion, he waived his right not to be placed in double jeopardy (People
v. Astudillo, 401 SCRA 723).
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4.
Thus, an acquittal, whether ordered by the trial or appellate court, is final and
unappealable on the ground of double jeopardy. The only exception is when the trial court
acted with grave abuse of discretion orf when there was mistrial. In such instances, the OSG can
assail the said judgment in a petition for certiorari establishing that the State was deprived of
a fair opportunity to prosecute and prove its case. The rationale behind this exception is that a
judgment rendered by the trial court with grave abuse of discretion was issued without
jurisdiction. It is, for this reason, void. Consequently, there is no double jeopardy (Castro v.
People, G.R. No. 180832, July 23,2008).
5.
A reading of jurisprudence discloses the rule that the acquittal of the accused
does not affect the right of the offended party to appeal the civil aspect of the case. Hence, it
has been said that while a judgment of acquittal cannot be appealed by the prosecution, "either
the offended party or the accused may appeal the civil aspect of the judgment despite the
acquittal of the accused" (Cruz v. Court of Appeals, 388 SCRA 72).
While the prosecution cannot appeal from a judgment of acquittal as it would place the
accused in double jeopardy, the aggrieved party who may be the offended party or the accused
or both may appeal from the judgment on the civil aspect of the case (Salazar v. People,
411 SCRA 598).
6.
The offended party and the accused may appeal the civil aspect of a judgment
because the concept of double jeopardy evidently has reference only to a criminal case and has
no effect on the civil liability of the accused. The employment of the terms, "punishment,"
"offense," "conviction" and acquittal" in the Constitution (Sec. 21, Art. Ill), and the
employment of the words "convicted," "acquitted," "information," "prosecution" and
"attempt to "commit or frustration thereof in Sec. 7 of Rule 117, leave no doubt as to the
concept's non-application to a civil case.
Thus, in the same vein, the extinction of the criminal liability will not necessarily give rise
to the extinction of the
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civil liability. Under Sec. 4 of Rule 111, if the accused dies before his arraignment, while the
criminal case shall be dismissed because of its extinction, such dismissal is without prejudice and
shall not be a bar to any civil action which the offended party may file against the estate of the
deceased. The estate therefore, cannot invoke double jeopardy. Similarly, under the same
provision, even if the civil liability arising from the delict or criminal act is extinguished when the
accused dies after arraignment and during the pendency of the criminal action, the independent
civil action arising from other sources of obligation may be continued against the estate of the
deceased.
Double jeopardy; requisites
1. In the language of the Supreme Court, in order to successfully invoke double
jeopardy, the following requisites must be present:
(a)
a first jeopardy must have attached prior to the second;
(b)
the first jeopardy must have been validly terminated; and
(c)
the second jeopardy must be for the same offense or the second offense
includes or is necessarily included in the offense charged in the first information, or is an
attempt to commit the same or a frustration thereof (Cudia v. Court of Appeals,
284 SCRA 173; People v. Es- pinosa, 409 SCRA 256; Cerezo v. People,
G.R. No. 185230, June 1,2011).
In determining when the first jeopardy may be said to have attached, it is necessary to
prove the following elements:
(a)
The accused has been convicted or acquitted, or the case against him was
dismissed or terminated without his express consent;
(b)
That the conviction, acquittal or dismissal was made by a court of
competent jurisdiction;
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(c) There is a valid complaint or information or other formal charge sufficient
in form and substance' to sustain a conviction;
(d)
The accused has pleaded to the charge; and
(e) The subsequent prosecution is for an offense which is the same as the
former complaint or information or for any attempt of the same or a frustration thereof, or for
any offense which necessarily includes or is necessarily included in the offense charged in the
former complaint or information (Sec. 7, Rule 117, Rules of Court; Cudia v. Court
of Appeals, 284 SCRA 173; People v. De Grano, G.R. No. 167710, June 5,
2009; Javier v. Sandiganbayan, G.R. Nos. 147026-27, September 11, 2009;
Co v. Lim, G.R. Nos. 164669-70, October 30, 2009; People v. Tan, G.R. No.
167526, July 26, 2010; Heirs of Jane Honrales v. Jonathan Honrales /People
of the Philippines and Heirs of Jane Honrales v. Jonathan Honrales, G.R.
No. 182651 /G.R. No. 182657, August 25, 2010; Cerezo v. People, G.R. No.
185230, June 1,2011).
Court must have competent jurisdiction
1.
For double jeopardy to attach, the court which rendered a judgment of
conviction or acquittal or the court which terminated or dismissed the case be one vested with
"competent jurisdiction" (Sec. 7, Rule 117, Rules of Court).
Assume that a criminal action for robbery that occurred in the City of Makati was filed in
a Quezon City court. Because the Quezon City court realized that it had no jurisdiction over the
action, it dismissed the case over the objections of the accused. A subsequent information filed
before the proper Makati court will not successfully give rise to a defense anchored on double
jeopardy because the first court, the Quezon City court, had no jurisdiction over the case.
Hence, no jeopardy attached when the case was filed in Quezon City.
2.
Under English common law, exceptions to the pleas of prior conviction or
acquittal existed where the trial court lacked jurisdiction, the theory being that a defendant
before such a court was not actually placed in jeopardy. Hence, any
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acquittal or conviction before a court having no jurisdiction would not violate the principle of
double jeopardy since it failed to attach in the first place (People v. Joven de Grano, et
al, G.R. No. 167710, June 5, 2009). There can be no double jeopardy where the
accused entered a plea in a court that had no jurisdiction (Zapatos v. People, 411 SCRA
148).
3.
A case decided during the early period of the American occupation of the
country and "which recognized the application of the principle of double jeopardy in the
Philippine Islands," ruled that "A person is not put in second jeopardy unless his prior acquittal
or conviction was by a court having jurisdiction to try him for the offense charged" (Grafton v.
United States, 206 U.S. 333).
For instance, where an information for murder was filed and tried in the Municipal Trial
Court and the case was later on dismissed despite objections from the accused, a subsequent
indictment for the same offense in the Regional Trial Court will not constitute double jeopardy.
The Municipal Trial Court which earlier tried the case is bereft of jurisdiction over the offense of
murder which is punishable by reclusion perpetua to death under Art. 248 of the Revised
Penal Code. The accused therefore, could not claim being "twice put in jeopardy for the same
offense" because there never was a first jeopardy. One could not be validly convicted or
acquitted by a court without jurisdiction over the subject matter.
4.
If a case which pertains to the Sandiganbayan was filed in the Regional Trial
Court, jurisdiction never attached to the latter court. It follows that as a rule the filing of a
complaint or information with one court which has no jurisdiction over it does not prevent the
prosecution from filing the same complaint later with the competent court. There is no estoppel
from doing so simply because it made a mistake before in the choice of the proper forum. In
such a situation, the only authority the first court can exercise is to dismiss the case for lack of
jurisdiction.
The filing of the information in the Sandiganbayan did not put the accused in double
jeopardy even though there was a plea of "not guilty" to the information earlier filed in the
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/
RTC. The first jeopardy never attached in the first place, the RTC not being a court of competent
jurisdiction. There can be no double jeopardy where the accused entered a plea in a court that
had no jurisdiction. The remedy therefore, \yas not to move for the quashal of the information
pending in the Sandiganbayan on the ground of double jeopardy. The remedy was to
move for the quashal of the information pending in the RTC on the ground of lack of
jurisdiction (Binay v. Sandiganbayan, 316 SCRA 65).
5.
It is necessary that there be a court of competent jurisdiction because
jurisdiction to try the case is essential to place an accused in jeopardy. However, the first
jeopardy could not attach if the action was filed in a court of the place which was not the proper
venue for hearing the case. Venue in criminal cases is jurisdictional, being an essential element
of jurisdiction. In all criminal prosecutions, the action shall be instituted and tried in the court of
the municipality or territory wherein the offense was committed or any one of the essential
(Cudia v. Court of Appeals, 284 SCRA 173 citing
People v. Tomio, 202 SCRA 77 and Agbayani v. Sayo, 89 SCRA 699).
ingredients thereof took place
6.
A court initially with jurisdiction may, in the course of the proceedings, be ousted
of that same jurisdiction, an event which would bar any invocation of double jeopardy.
Illustrative is one case where the prosecution informed the court that it had other
witnesses to present. The court, aside from not allowing the other prosecution witnesses to
testify, also prematurely terminated the presentation of further evidence for the prosecution
and dismissed the information for insufficiency of evidence. In sustaining the order of the Court
of Appeals reinstating the criminal case for further hearing by the trial court, the Court ruled
that the reinstatement of the case does not violate the rule on double jeopardy. It went on to
hold that one of the elements of double jeopardy is a competent court but the trial court in this
case was ousted from its jurisdiction when it violated the right of the prosecution to due
process by aborting its right to complete
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the presentation of its evidence. Hence, the first jeopardy had not been terminated.
Explained the Court: "Where the prosecution is deprived of a fair opportunity to
prosecute and prove its case, its right to due process is thereby violated.
"The cardinal precept is that where there is a violation of basic constitutional
rights, courts are ousted of their jurisdiction. Thus, the violation of the State's right to due
process raises a serious jurisdictional issue which cannot be glossed over or disregarded
at will. Where the denial of the fundamental right of due process is apparent, a decision
rendered in disregard of that right is void for lack of jurisdiction.
xxx
"Respondent Judge's dismissal order x x x being null and void for lack of
jurisdiction, the same does not constitute a proper basis for a claim of double jeopardy"
(Saldana v. Court of Appeals, G.R. No. 88889, October 11, 1990 citing
People v. Bocar, 138 SCRA 166; Serino v. Zosa, 40 SCRA 433; People v.
Gomez, 20 SCRA 293; People v. Balisacan, 17 SCRA 1119; Aducayen
v. Flores, 51 SCRA 78).
Curing an erroneous acquittal; grave abuse of discretion amounting to lack
of jurisdiction
1. May an erroneous acquittal be cured without offending the principle against double
jeopardy?
As a rule, an acquittal rendered by a court of competent jurisdiction after trial on the
merits is immediately final and cannot be appealed on the ground of double jeopardy (People
of the Philippines v. Hon. Sandiganbayan, Abelardo P. Panlaqui, et al., G.R.
No. 173396, September 22,2010).
The rule on double jeopardy, however, is not without exceptions. The only instance
when double jeopardy will not attach is when the trial court acted with grave abuse of
discretion amounting to lack or excess of jurisdiction, such as
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/
/
where the prosecution was denied the opportunity to present its case or where the trial was a
sham. However, while certiorari may be availed of to correct an erroneous acquittal, the
petitioner in such an extraordinary proceeding must clearly demonstrate that the trial court
blatantly abused its authority to a point so grave as to deprive it of its very power to dispense
justice (People v. Tan, G.R. No. 167526, July 26, 2010). A judgment rendered with
grave abuse of discretion or without due process of law is void, does not exist in legal
contemplation and thus, cannot be the source of an acquittal (People v. Sandiganbayan
[Fourth Division], 559 SCRA 449).
2.
In our jurisdiction, availment of the remedy of certiorari to correct an
erroneous acquittal may be allowed in cases where petitioner has clearly shown that the public
respondent acted without jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction, but if the petition merely calls for an ordinary review of the findings of the
court a quo, we would run afoul of the constitutional right against double jeopardy (People
v. Terrado, 558 SCRA 84, July 14,2008).
3.
A more recent case unequivocally ruled that a petition for certiorari under
Rule 65, not appeal, is the remedy to question a verdict of acquittal whether at the trial court or
at the appellate level.
In People v. Asis, G.R. No. 173089, August 25, 2010, the accused was
charged with two (2) counts of attempted murder and one (1) count of frustrated murder in the
Regional Trial Court. The trial court found no treachery and evident premeditation. Thus, in its
decision, the RTC held the accused liable only for serious physical injuries for shooting one
victim and less serious physical injuries with regard to the other victim. It also appreciated four
(4) generic mitigating circumstances in favor of the accused. With respect to the complaint of
smother victim, the accused was acquitted.
The OSG filed a petition for certiorari under Rule 65 before the CA assailing as
constituting a grave abuse of discretion the findings of the RTC for holding the accused guilty of
lesser
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crimes than for which he was charged and acquitting him on the other charge as well as in
appreciating four (4) mitigating circumstances in favor of the accused.
The CA, dismissed the petition outright. According to the appellate court, the filing of the
petition for certiorari was the wrong remedy. As the State was questioning the verdict of
acquittal and findings of lesser offenses by the trial court, the remedy, declared the CA should
have been an appeal. Moreover, the petition for
jeopardy.
certiorari placed the accused in double
The Supreme Court found that the appellate court erred in dismissing the petition
outright. Held the Court in no uncertain terms:
"A petition for certiorari under Rule 65, not appeal, is the remedy to question
a verdict of acquittal whether at the trial court or at the appellate level. In our jurisdiction, we adhere to the finality-of-acquittal doctrine, that is, a judgment of acquittal is
final and unappealable. The rule, however, is not without exception. In several cases, the
Court has entertained petitions for certiorari questioning the acquittal of the accused
in, or the dismissals of, criminal cases. Thus, in People v. Louel Uy,471 SCRA 668,
the Court has held:
Like any other rule, however, the above said rule is not absolute.
By way of exception, a judgment of acquittal in a criminal case may be
assailed in a petition for certiorari under Rule 65 of the Rules of Court
upon clear showing by the petitioner that the lower court, in acquitting
the accused, committed not merely reversible errors of judgment but
also grave abuse of discretion amounting to lack or excess of jurisdiction
or a denial of due process, thus rendering the assailed judgment void.
[Underscoring supplied].
In People v. Laguio, Jr., 518
accused was via the grant of his demurrer
SCRA 393, where the acquittal of the
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/
to evidence, the Court pointed out the propriety of resorting to a petition for
certiorari. Thus:
By this time, it is settled that the appellate court may review
dismissal orders of trial courts granting an accused's demurrer to
evidence. This may be done via the special civil action of certiorari
under Rule 65 based on the ground of grave abuse of discretion,
amounting to lack or excess of jurisdiction. Such dismissal order, being
considered void judgment, does not result in jeopardy. Thus, when the
order of dismissal is annulled or set aside by an appellate court in an
original special civil action via certiorari, the right of the accused
against double jeopardy is not violated."
The Court explained further that in the petition, the OSG claimed that the acquittal of
the accused was improper. Since appeal could not be taken without violating the
constitutionally guaranteed right against double jeopardy of the accused, the OSG was correct
in pursuing its cause via a petition for certiorari under Rule 65 before the appellate court. It
was a serious error by the CA, ratiocinated the Court, to have deprived the petitioner of its right
to avail of that remedy. However, while holding that certiorari may be availed of to correct
an erroneous acquittal, the petitioner in such an extraordinary proceeding must clearly
demonstrate that the trial court blatantly abused its authority to a point so
grave as to deprive it of its very power to dispense justice. Citing the significant
case of Galman v. Sandiganbayan, 144 SCRA 43, the Court reiterated that the
rationale behind this exception is that a judgment rendered by the trial court with grave abuse
of discretion was issued without jurisdiction and for this reason, the judgment is void.
Consequently, there is no double jeopardy.
Note: While the Court finally set aside the resolution of the CA dismissing the petition
for certiorari, it denied the petition upon ruling on the same on the merits because the
prosecution failed to show that the prosecution was deprived of its right to due process and
that the petition raised errors of judgment.
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4. In yet another case, from the decision of the RTC acquitting the accused of the charge
of murder after a motion for reconsideration of an earlier judgment of conviction, the
prosecution filed a petition for certiorari under Rule 65 of the Rules of Court before the CA
arguing, among others, that the petitioner had no other plain, adequate, and speedy remedy,
considering that the State could not appeal a judgment of acquittal. Petitioner alleged and
argued that a judgment of acquittal in a criminal case may be assailed in a petition for
certiorari under Rule 65 of the Rules of Court upon a showing by the petitioner that the lower
court, in acquitting the accused, committed not only reversible errors of judgment, but also
grave abuse of discretion amounting to lack or excess of jurisdiction, or a denial of due process,
thus rendering the assailed judgment void. Consequently, the accused cannot be considered at
risk of double jeopardy. The prosecution hinged its arguments, among others, in the fact that
when the earlier decision of conviction was promulgated, only one of the several accused was
present and the other accused were not. Subsequently thereafter, without surrendering and
explaining the reasons for their absence, they joined the present accused in a Joint Motion for
Reconsideration, an act done in clear disregard of the rule in Sec. 6, Rule 120 that in case of a
judgment of conviction and the accused failed to appear without a justifiable cause, he loses the
remedies available under the Rules and the court shall order his arrest. Accordingly, the RTC not
only failed to cause the arrest of the respondents who were at large, it also took cognizance of
the joint motion. They were in fact later acquitted.
The prosecution was sustained by the Supreme Court holding that by way of exception,
a judgment of acquittal in a criminal case may be assailed in a petition for certiorari under
Rule 65 of the Rules of Court, but only upon a clear showing by the petitioner that the lower
court, in acquitting the accused, committed not merely reversible errors of judgment but also
grave abuse of discretion amounting to lack or excess of jurisdiction, or to a denial of due
process, thus rendering the assailed judgment void. In which event, the accused cannot be
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/
considered at risk of double jeopardy
(People v. De Grano, G.R. No. 167710, June
5,2009).
5. When the trial court, in allowing the withdrawal of the information, glaringly failed to
conduct its own determination of a prima facie case, to independently evaluate and assess
the merits of the case against the accused and simply adopted the resolution issued by the
Secretary of Justice, there is a violation of the complainant's right to due process and constitutes
grave abuse of discretion amounting to excess of jurisdiction. The accused was not acquitted
nor was there a valid and legal dismissal or termination of the case. Ergo, the fourth requisite
on the conviction and acquittal of the accused in the dismissal of the case, without the approval
of the accused, was not met. Thus, double jeopardy has not set in (Summerville
General
Merchandising & Co., Inc. v. Eugenio, Jr., G.R. No. 163741, August 7,2007).
Preliminary investigation; double jeopardy not applicable
1.
A preliminary investigation is merely inquisitorial, and it is often the only means
of discovering the persons who may be reasonably charged with a crime, to enable the fiscal to
prepare his complaint or information. It is not a trial of the case on the merits and has no
purpose except that of determining whether a crime has been committed and whether there is
does not place the
person against whom it is taken in jeopardy (Tandoc v. Resultan, 175 SCRA
37; Italics supplied). Preliminary investigation is executive in character. It does not
probable cause to believe that the accused is guilty therefor, and it
contemplate a judicial function. It does not place the person against whom it is taken in
jeopardy (Torres v. Aguinaldo, G.R. No. 164268, June 28, 2005). Hence, a
preliminary investigation is not a trial to which double jeopardy attaches (Icasiano v.
Sandiganbayan, 209 SCRA 377).
2.
It is settled that the dismissal of a case during its preliminary investigation stage
does not constitute double jeopardy since a preliminary investigation is not part of the trial and
is not the occasion for the full and exhaustive display
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475
(Vincoy v. Court of Appeals, 432 SCRA 36;
Trinidad v. Office of the Ombudsman, 539 SCRA 415).
of the parties' evidence
Res judicata and double jeopardy; res judicata in prison grey (Bar 2010)
Res judicata is a doctrine of civil law and thus has no bearing on criminal proceedings
(Trinidad v. Office of the Ombudsman, 539 SCRA 415) even if double jeopardy has
u
been described as res judicata in prison grey" (Caes v. Intermediate Appellate
Court, G.R. No. 74989, November 6,1989; Trinidad v. Office of the
Ombudsman, G.R. No. 166038, December 4, 2007).
Administrative cases; double jeopardy not applicable
1. Icasiano v. Sandiganbayan, 209 SCRA 377, is one of several jurisprudential
authorities which upholds the principle that the rule on double jeopardy does not apply to
administrative cases. Here, the Court sustained the Sandiganbayan when the latter held that
double jeopardy does not apply in a controversy when one case was administrative in character
while the Sandiganbayan case also against the same petitioner was criminal in nature. All the
elements for the application of double jeopardy do not apply vis-d-vis an administrative case.
Hence, the petitioner cannot successfully claim that the dismissal of his administrative case
entitles him to raise the defense of double jeopardy in the criminal case in the Sandiganbayan.
The principle of double jeopardy finds no application in administrative cases. Double
jeopardy attaches only: (1) upon a valid indictment; (2) before a competent court; (3) after
arraignment; (4) when a valid plea has been entered; and (5) when the defendant was
acquitted or convicted, or the case was dismissed or otherwise terminated without the express
consent of the accused. These elements were not present in the proceedings before the Board
of Medicine, as the proceedings involved in the instant case were administrative and not
criminal in nature. The Court has already held that double
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/
(Cayao-Lasam v. Ramolete, G.R. No.
159132, December 18, 2008, citing De Vera v. Layague, 395 Phil. 253, 261
[2000], citing Tecson v. Sandiganbayan, 376 Phil. 191 [1999]).
jeopardy does not lie in administrative cases
2.
A single act may offend against two or more distinct and related provisions of
law, or that the same act may give rise to criminal as well as administrative liability (Paredes
v. Court of Appeals, 528 SCRA 577, July 30,2007). This principle may successfully
prevent any assertion of the principle of double jeopardy in administrative cases.
3.
"It has also been ruled that the dismissal of the criminal case does not result in
the dismissal of the administrative case because there exists a difference between those two
remedies. The Court in various cases