CHAPTER I
PRELIMINARY CONSIDERATIONS
I. BASIC CONCEPTS
Concept of criminal procedure
1.
C r i m i n a l procedure treats of the series of processes
by which the criminal l a w s are enforced and by which the
State prosecutes persons w h o v i o l a t e the penal laws. In the
clear language of the Court, criminal procedure "regulates the
steps by which one w h o committed a crime is to be punished"
(People v. Lacson, 400 SCRA 267).
W h i l e criminal l a w s define crimes and prescribe punishment for such crimes, criminal procedure lays down the processes by which an offender is m a d e to answer for the violation
of the criminal l a w s .
2.
C r i m i n a l procedure is "a generic t e r m to describe
the network of l a w s and rules which governs the procedural
administration of justice" (Black's Law Dictionary, Fifth
Edition, 1979). T h e procedure starts w i t h the initial contact of
the alleged l a w b r e a k e r w i t h the justice machinery including
the investigation of the crime and concludes either w i t h a
j u d g m e n t exonerating the accused or the final imposition of a
penalty against him.
3.
T h e enforcement of the criminal l a w s of the state
inevitably leads to governmental intrusions into an individual's zones of privacy and how these intrusions can be reconciled
w i t h 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
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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 l a w and order l a w w h i l e at the same t i m e protecting the constitutional rights of its citizens.
The adversarial or accusatorial system
1.
T h e system of procedure in our jurisdiction is accusatorial or adversarial. It contemplates t w o contending parties
before the court which hears t h e m i m p a r t i a l l y and renders
judgment only after trial (Queto v. Catolico, 31 SCRA 52).
T h e system has a two-sided structure consisting of the
prosecution and the defense w h e r e each side tries to convince
the court that its position is the correct version of the truth.
In this system, the accusation starts w i t h a formal indictment
called in our jurisdiction as a complaint or an information, the
allegations of which must be proven by the g o v e r n m e n t beyond
reasonable doubt. T h e g o v e r n m e n t 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. T h e court in this system therefore, has
a passive role and relies l a r g e l y on the evidence presented by
both sides to the action in order to reach a verdict.
2.
T h e adversarial system should be distinguished
from the inquisitorial system w h e r e the court plays a v e r y
active role and is not limited to the evidence presented before
it. T h e court m a y utilize evidence gathered outside the court
and a j u d g e 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. T h e j u d g e steers the course of the proceedings by directing and supervising the gathering of the evidence and the
questioning of the witnesses to the case. T h e counsels in the
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PRELIMINARY CONSIDERATIONS
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inquisitorial system h a v e a less active role than in the adversarial system.
Liberal interpretation of the rules
1.
T h e rules on criminal procedure being parts of the
Rules of Court shall likewise be "liberally construed in order
to promote their objective of securing a just, speedy and
inexpensive disposition of e v e r y 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 A p p e a l s instead of the
Sandiganbayan. P e t i t i o n e r pleaded that Section 2 of Rule 50
of the Rules of Court which mandated the dismissal of cases
erroneously appealed to the Court of A p p e a l s be relaxed and
the Court of A p p e a l s be directed to forward the records of the
case to the Sandiganbayan. T h e S u p r e m e 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 w a s w a r r a n t e d . T h e rules of procedure must be
v i e w e d 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 a l w a y s 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 m e t without a "law which hears
before it condemns and proceeds upon inquiry and renders
j u d g m e n t only after trial."
Alonte 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
4
( b ) that jurisdiction is lawfully acquired by it over the
person of the accused;
(c)
that the accused is g i v e n opportunity to be heard;
and
( d ) that j u d g m e n t is rendered only upon lawful hearing.
A. Requisites F o r T h e Exercise of Criminal
Jurisdiction
Requisites
A reading of jurisprudence and treatises on the m a t t e r
discloses the following basic requisites before a court can
acquire jurisdiction over criminal cases:
( 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 m a t t e r refers to the
authority of the court to h e a r and d e t e r m i n e a particular
criminal case. O n e case, Antiporda, Jr. v. Garchitorena, 321
SCRA 551, mandates that the offense is one which the court
is by l a w 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. T h i s kind of
jurisdiction requires that "the person charged w i t h 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; Velasco v. Court of Appeals, 245 SCRA 677).
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PRELIMINARY CONSIDERATIONS
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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 (Antiporda, Jr. v. Garchitorena, 321 SCRA 551) or within the geographical limits of the territory over which the court presides
(U.S. v. Gallegos, 37 Phil. 289). T h i s fact is to be determined
by the facts alleged in the complaint or information as regards
the place w h e r e the offense charged w a s 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 w a s committed or w h e r e anyone of the essential
ingredients took place. H e n c e , if any one of these elements is
proven to h a v e occurred, l e t us say, in P a s a y C i t y , the proper
court in that city has jurisdiction (Barrameda v. Court of
Appeals, 313 SCRA 477; Abalos v. People, G.R. No. 136994,
September 17, 2002).
2.
V e n u e in criminal cases is an essential element of
jurisdiction. H e n c e , for jurisdiction to be acquired by a court
in a criminal case, the offense should h a v e been committed or
any one of its essential ingredients should h a v e taken place
within the territorial jurisdiction of the court. It is in that
court w h e r e 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. T h e rule that criminal action
be instituted and tried in the court of the territory w h e r e
the offense w a s committed or w h e r e any of its essential
ingredients occurred is a fundamental principle, the purpose
of which is not to compel the defendant to m o v e to, and appear
in, a different court from that of the province w h e r e the crime
was committed as it would cause him great inconvenience in
looking for his witnesses and other evidence in another place
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
(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).
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 o v e r a person charged w i t h an
offense allegedly committed outside of that limited territory
and if the evidence adduced during the trial show that the
offense was committed s o m e w h e r e else, the court should
dismiss the action for w a n t 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 d e t e r m i n e d by the allegations of
the complaint or the information (Campanano, Jr. v. Datuin,
536 SCRA 471).
5.
T h e 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 h a v e been
committed or any one of its essential ingredients should h a v e
taken place w i t h i n the territorial jurisdiction of the court (Isip
v. People, 525 SCRA 725). T h u s , the R T C of M a n i l a has no
authority to issue a search w a r r a n t 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
T h e rule that the offense must be prosecuted in the place
where the same was committed admits of certain exceptions.
1.
W h e r e the offense w a s committed under the circumstances enumerated in A r t . 2 of the R e v i s e d P e n a l 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 w h e r e the criminal
action is first filed (Sec. 15[d], Rule 110, Rules of Court).
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PRELIMINARY CONSIDERATIONS
7
U n d e r A r t i c l e 2 of the Revised Penal Code, the provisions
of the Revised Penal Code shall be enforced not only within
the Philippine Archipelago but also outside of its jurisdiction
against offenders who:
(a)
Should commit an offense w h i l e on a Philippine ship
or airship;
( b ) Should forge or counterfeit any coin or currency note
of the P h i l i p p i n e Islands or obligations and securities
issued by the G o v e r n m e n t of the Philippine Islands;
(c)
Should be liable for acts connected w i t h the introduction into these Islands of the obligations and securities mentioned above;
( d ) W h i l e being public officers and employees, should
commit an offense in the exercise of their functions;
or
(e)
Should c o m m i t any of the crimes against national
security and the l a w of nations.
Included in crimes against national security are the crimes
of ( i ) treason, ( i i ) conspiracy and proposal to commit treason,
( i i i ) misprision o f treason, ( i v ) espionage, ( v ) inciting t o w a r
and g i v i n g motives for reprisal, ( v i ) violation of neutrality,
(vii) correspondence w i t h hostile country, and ( v i i i ) flight to
enemy's country (Articles 114-121, Revised Penal Code).
C r i m e s against the l a w of nations are piracy and mutiny
on the high seas described under A r t i c l e 122 of the Revised
Penal Code and qualified piracy under A r t i c l e 123 thereof.
2.
W h e r e 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[4], Article VIII, 1987
Constitution of the Philippines).
3.
W h e r e 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 w a s committed. It m a y be instituted and
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
tried in the court of any municipality or territory w h e r e said
train, aircraft, or vehicle passed during its trip. T h e crime
may also be instituted and tried in the place of departure and
arrival (Section 15[b], Rule 110, Rules of Court).
4.
W h e r e an offense is committed on board a vessel in
the course of its v o y a g e , the criminal action shall be instituted
and tried not necessarily in the place of the commission of the
crime. It m a y be brought and tried in the court of the first port
of entry, or in the municipality or territory w h e r e the vessel
passed during the v o y a g e (Section 15[c], Rule 110, Rules of
Court).
5.
W h e r e 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 w h e r e the act w a s committed but w h e r e the
court actually sits in Quezon City.
U n d e r Sec. 2 of R . A . N o . 8249 (An Act Further Defining
the Jurisdiction of the Sandiganbayan), w h e n the greater
convenience of the accused and of the witnesses, or other
compelling considerations so require, a case originating from
one geographical region m a y be heard in another geographical
region. For this purpose, the presiding justice shall authorize
any divisions of the court to hold sessions at any t i m e and place
outside M e t r o M a n i l a and, w h e r e the interest of justice so
requires, outside the territorial boundaries of the Philippines.
6.
W h e r e the offense is w r i t t e n defamation, the criminal
action need not necessarily be filed in the R T C of the province
or city w h e r e the alleged libelous article w a s printed and first
published. It m a y be filed in the province or city w h e r e the
offended party held office at the t i m e of the commission of the
offense if he is a public officer, or in the province or city w h e r e
he actually resides 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; B a r 1995J.
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PRELIMINARY CONSIDERATIONS
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7. T h e case of Agbayani v. Sayo, 89 SCRA 699, restated
Article 360 of the Revised Penal Code ( w r i t t e n defamation) as
follows:
( a ) W h e t h e r the offended party is a public official
or a private person, the criminal action m a y b e filed in
the Court of First Instance ( R T C ) of the province or city
w h e r e the libelous article is printed and first published.
( b ) If the offended party is a private individual, the
criminal action m a y also be filed in the Court of First Instance ( R T C ) of the province w h e r e he actually resided at
the t i m e of the commission of the offense.
( c ) If the offended party is a public officer whose
office is in M a n i l a at the t i m e of the commission of the
offense, the action m a y be filed in the Court of First Instance ( R T C ) o f M a n i l a .
( d ) If the offended party is a public officer holding
office outside of M a n i l a , the action m a y be filed in the
Court of First Instance ( R T C ) of the province or city
w h e r e he held office at the t i m e of the commission of the
offense (Foz, Jr. v. People, G.R. No. 167764, October 9,
2009).
O n e recent case held that if the circumstances as to
w h e r e the libel w a s printed and first published are used by
the offended party as basis for the venue in the criminal
action, the information must a l l e g e w i t h particularity where
the defamatory article w a s 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. T h i s 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 w h e r e the material
was first accessed cannot be equated with "printing and
first publication." T h i s interpretation would, said the Court,
"spawn the v e r y ills that the amendment to A r t . 360 of the R P C
sought to discourage and prevent. It hardly requires much
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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
Philippines that the private complainant m a y h a v e allegedly
accessed the offending website. F o r the Court to hold that the
amended information sufficiently vested jurisdiction in the
courts of M a k a t i simply because the defamatory article w a s
accessed therein would open the floodgates to the libel suit
being filed in all other locations w h e r e 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).
M e r e l y alleging that "the n e w s p a p e r is a daily publication with a considerable circulation in the C i t y of Iloilo and
throughout the region" did not establish that the said publication was first printed and first published in Iloilo C i t y (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 t i m e 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 O v e r T h e 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 l a w (Gomez v. Montalban, 548 SCRA 693). T h e 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 j u d g m e n t (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).
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PRELIMINARY CONSIDERATIONS
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2.
Jurisdiction over the subject matter is the power to
hear and determine cases of the general class to which the
proceedings in question belongs (Reyes v. Diaz, 73 Phil 484).
It is the power to deal w i t h 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, 2002). It is the l a w that confers jurisdiction and not the rules (Padunan v. DARAB, G.R. No. 132163,
January 28, 2003). P h i l i p p i n e courts are without common law
jurisdiction or p o w e r but only those expressly conferred by
the Constitution and statutes (Soller v. Sandiganbayan, G.R.
Nos. 144261-62, May 9, 2001).
W h e n the l a w confers jurisdiction, that conferment must
be clear. It cannot be presumed. It must clearly appear from
the statute or w i l l not be held to exist (De Jesus v. Garcia, 19
SCRA 554).
2.
Jurisdiction cannot be fixed by the w i l l of the parties
nor can it be acquired or diminished by any act of the parties.
In determining w h e t h e r or not a case lies w i t h i n 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; Municipality ofSogod v. Sandiganbayan, 312 SCRA 77; 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
w a i v e r 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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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
How jurisdiction over the subject matter is determined
1.
W h i l e 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 l a w 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.
T h e 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 m a y v a l i d l y 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. T h e elements of that definition must
appear in the complaint or information so as to ascertain
which court has jurisdiction over a case. H e n c e , 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" (Lacson v.
Executive Secretary, 301 SCRA 298). It w a s held however, that
if the evidence adduced during the trial show that the offense
was committed somewhere else, the court should dismiss the
action for w a n t 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 l a w for such act,
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PRELIMINARY CONSIDERATIONS
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 w i t h the court
having jurisdiction to impose the m a x i m u m and most serious
penalty imposable on the offense forming part of the complex
crime (Cuyos v. Garcia, 160 SCRA 302; B a r 2003J.
Statute applicable to a criminal action
1.
It is a hornbook doctrine that jurisdiction to try a
criminal action is d e t e r m i n e d by the l a w 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.
T h e statute in force at the t i m e of the commencement
of the action determines the jurisdiction of the court over the
subject matter and not at the t i m e of its commission e v e n if
the penalty that m a y be imposed at the t i m e of its commission
is less and does not fall under the court's jurisdiction (People
v. Lagon, 185 SCRA 442; People v. Magallanes, 249 SCRA
212). Other decisions h a v e similarly and consistently held
that it is w e l l established that the jurisdiction of a court to try
a criminal case is determined by the l a w 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 t i m e 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.
W h e r e the offense w a s allegedly committed on or
about December 19,1995 and the filing of the information was
on M a y 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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tion of the action, not at the time of the commission of the
offense. T h e applicable law therefore, in the case against the
public officer is Presidential Decree 1606 as amended by R e public A c t N o . 7975 on M a y 16, 1995 and as further amended
by Republic A c t N o . 8249 on February 5, 1997 (People v. Sandiganbayan 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 m a y
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.
T h e 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 l a w 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.
T h e jurisdiction of the court is referred to as "continuing" in v i e w 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). T h e
jurisdiction once vested, cannot be w i t h d r a w n or defeated
by a subsequent valid a m e n d m e n t 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 m e r e fact that that said official
ceased to be in office during the pendency of the case. T h e court
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PRELIMINARY CONSIDERATIONS
15
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 w h e n the statute expressly so provides, or is construed
to the effect that it is intended to operate upon actions pending
before its enactment. H o w e v e r , w h e n 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 e v e n if the prosecution
files a motion to w i t h d r a w t h e information, the court m a y
grant or deny the same in the faithful exercise of judicial
prerogative (Pilapil v. Garchitorena, 299 SCRA 343).
T h e Court has been steadfast in declaring that w h e n
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 n e w 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.
T h e rule is settled that an objection based on the
ground that the court lacks jurisdiction over the subject
matter maybe raised or considered motu propio by the court
16
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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 w a i v e r 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 o v e r the offense charged because
the issue m a y be raised or considered motu propio by the
court at any stage of the proceedings or on appeal. M o r e o v e r ,
jurisdiction over the subject m a t t e r in a criminal case cannot
be conferred upon the court by the accused, by express
w a i v e r or otherwise, since such jurisdiction is conferred by
the sovereign authority w h i c h o r g a n i z e d the court and is
given only by l a w in the m a n n e r and form prescribed by l a w
(Fukuzume v. People, 474 SCRA 570; Foz, Jr. v. People, G.R.
No. 167764, October 9, 2009).
2.
A party cannot i n v o k e the jurisdiction of the court
to secure affirmative r e l i e f 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). A f t e r voluntarily submitting a cause and
encountering an adverse decision on the merits, it is too late
for the loser to question the jurisdiction or p o w e r of the court.
W h i l e the jurisdiction of a tribunal m a y 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).
T h e rule is the same as in civil cases. In Tijam v. Sibonghanoy, 23 SCRA 29, the Court earlier ruled that a party may
be estopped from questioning the jurisdiction of the court
for reasons of public policy as w h e n he initially invokes the
CHAPTER I
PRELIMINARY CONSIDERATIONS
17
jurisdiction of the court and then later on repudiates that
same jurisdiction.
H o w e v e r , 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 l a w and cannot be conferred or
w a i v e d by the parties. H e n c e , even on appeal, and even if the
r e v i e w i n g parties did not raise the issue of jurisdiction, the
r e v i e w i n g court is not precluded from ruling that the lower
court had no jurisdiction o v e r the case (Pangilinan v. Court of
Appeals, 321 SCRA 51).
"Estoppel in questioning the jurisdiction of the court is
only brought to bear w h e n not to do so w i l l 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. W h e n e v e r the question of jurisdiction is put to front,
courts should not l i g h t l y brush aside errors in jurisdiction
especially w h e n 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).
C. C r i m i n a l Jurisdiction O v e r T h e P e r s o n
o f t h e A c c u s e d ( B a r 2008)
1.
Jurisdiction over the person of the accused is
acquired upon his arrest or apprehension, w i t h or without a
warrant, or his voluntary appearance or submission to the
jurisdiction of the court (Valdepenas 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). T h e voluntary submission
of the accused to the jurisdiction of the court may be effected
by filing a motion to quash, appearing for arraignment,
participating in the trial or by g i v i n g bail (Santiago v. Vasquez,
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
217 SCRA 633; Antiporda, Jr. v. Garchitorena, 321 SCRA 551;
Miranda v. Tuliao, 486 SCRA 377).
2.
T h e assertion that the court never acquired jurisdiction over the person of the accused because the w a r r a n t of
arrest issued is null and void because no probable cause w a s
found by the court issuing it, cannot be sustained because he
posted a bail. T h e g i v i n g or posting of a bail by the accused is
tantamount to submission of his person to the jurisdiction of
the court. E v e n if it is conceded that the w a r r a n t issued w a s
void, the defendant w a i v e d all his rights to object by appearing
and g i v i n g a bond (Cojuangco, Jr. v. Sandiganbayan, 300
SCRA 367; Velasco v. Court of Appeals, 245 SCRA 677).
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 d e e m e d to h a v e w a i v e d his constitutional protection against illegal arrest (People v. Rivera, G.R.
No. 177741, August 27, 2009).
3.
H o w e v e r , not all acts seeking affirmative relief
would constitute a v o l u n t a r y appearance or submission to the
jurisdiction of the court. M a k i n g a special appearance in court
to question the jurisdiction of the court over the person of the
accused is not a voluntary appearance as w h e n in a criminal
case a motion to quash is filed precisely on that ground. T h e r e
is likewise no submission to the jurisdiction of the court w h e n
the accused files a motion to quash the w a r r a n t of arrest
because it is the v e r y l e g a l i t y of the court process forcing the
submission of the person of the accused that is the v e r y issue
in a motion to quash a w a r r a n t of arrest (Miranda v. Tuliao,
G.R. No. 158763, March 31, 2006).
4.
B e i n g in the custody of the l a w is not necessarily
being under the jurisdiction of the court. "One can be under
the custody of the l a w but not y e t subject to the jurisdiction
of the court over his person, such as when a person arrested
by virtue of a w a r r a n t files a motion before arraignment to
quash the warrant. On the other hand one can be subject to
CHAPTER I
PRELIMINARY CONSIDERATIONS
19
the jurisdiction of the court over his person, and y e t not be in
the custody of the law, as when an accused escapes custody
after his trial has commenced. B e i n g in the custody of the
l a w signifies restraint on the person, w h o is thereby deprived
of his o w n w i l l and liberty, binding him to become obedient
to the w i l l of the law. Custody of the l a w 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
P r o s e c u t i o n ( B a r 1999)
As a general rule, the Court w i l l not issue writs of prohibition or injunction p r e l i m i n a r y or final, to enjoin or restrain,
criminal prosecution. W i t h m o r e reason w i l l injunction not lie
w h e n the case is still at the stage of p r e l i m i n a r y investigation
or reinvestigation. H o w e v e r , in e x t r e m e cases, the Court laid
the following exceptions:
( 1 ) w h e n 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 ) w h e n there is
a prejudicial question which is subjudice; ( 4 ) w h e n the acts of
the officer are without or in excess of authority; ( 5 ) w h e r e the
prosecution is under an invalid l a w , ordinance or regulation;
( 6 ) when double j e o p a r d y is clearly apparent; ( 7 ) w h e r e the
Court has no jurisdiction over the offense; ( 8 ) w h e r e it is a case
of persecution rather than prosecution; ( 9 ) w h e r e the charges
are manifestly false and motivated by the lust for vengeance;
and ( 1 0 ) w h e n 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, supra, Note 14, at pp. 188-189; Crespo v. Mogul, 151
SCRA 462 [1987]; Mercado v. Court of Appeals, 245 SCRA
594, 598 [1995] cited in Samson v. Guingona, Jr., G.R. No.
123504, December 14, 2000).
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
E . M a n d a m u s T o C o m p e l P r o s e c u t i o n ( B a r 1999)
1.
Mandamus is a remedial measure for parties
aggrieved which shall be issued w h e n "any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the l a w specifically enjoins as a duty
resulting from an office, trust or station." T h e w r i t of mandamus is not available to control discretion. N e i t h e r m a y it be issued to compel the exercise of discretion. T r u l y , it is a matter
of discretion on the part of the prosecutor to determine which
persons appear responsible for the commission of a crime.
H o w e v e r , the moment he finds one to be so liable, it becomes
his inescapable duty to charge h i m t h e r e w i t h 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.
H i s act is tantamount to a deliberate refusal to perform a
duty enjoined by l a w . T h e Secretary of Justice, on the other
hand, would g r a v e l y abuse his discretion w h e n , despite the
existence of sufficient evidence for the crime as acknowledged
by the investigating prosecutor, he completely ignored the
latter's finding and proceeded w i t h 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 r e v i e w unless shown to
have been made with g r a v e 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 w i d e
latitude of discretion in the conduct of a preliminary investigation. By w a y of exception, however, judicial r e v i e w is allowed
where respondent has clearly established that the prosecutor committed g r a v e abuse of discretion, that is, when he has
exercised his discretion in an arbitrary, capricious, whimsical
CHAPTER I
PRELIMINARY CONSIDERATIONS
21
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 . C r i m i n a l Jurisdiction of the M u n i c i p a l
Trial Court, Municipal Circuit Trial Court, and
Metropolitan Trial Court ( M T C )
Except in cases falling w i t h i n the exclusive original jurisdiction of the R e g i o n a l T r i a l Court and of the Sandiganbayan,
the M T C shall exercise the following criminal jurisdiction:
1.
Exclusive original jurisdiction over all violations
of city or municipal ordinances committed w i t h i n their respective territorial jurisdiction (Batas Pambansa Big. 129,
Section 32[1J; Republic Act No. 7691);
2.
Exclusive original jurisdiction over all offenses
punishable w i t h i m p r i s o n m e n t not exceeding six ( 6 ) years irrespective of the amount of fine, and regardless of other imposable or accessory penalties, including the civil liability
arising from such offenses irrespective of kind, nature, value
or amount (B.P. 129, Sec. 32[2J; R.A. 7691);
T h i s rule disregarding the amount of the fine and other
accessory penalties in d e t e r m i n i n g jurisdiction applies w h e r e
the offense is punishable by imprisonment or fine or both but
not when the offense is punishable by fine only.
N o t e that the jurisdiction of the M T C is qualified by the
phrase "Except in cases falling within the exclusive jurisdiction
of the Regional Trial Court and of the Sandiganbayan." This
indicates that the M T C does not at all times have jurisdiction
over offenses punishable with imprisonment not exceeding six
( 6 ) years if jurisdiction is vested by l a w either in the R T C or
Sandiganbayan.
Based on A r t i c l e 27 of the Revised Penal Code, the
M T C has jurisdiction over offenses punishable by up to the
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
22
maximum ofprision correctional which shall not exceed six ( 6 )
years. T h e r e are however, offenses which even if punishable
by the m a x i m u m of prision correctional are not cognizable
by the M T C because of an express provision of l a w like libel
as denned in A r t i c l e 355 of the Revised P e n a l Code. U n d e r
this provision, libel by means of w r i t i n g s or similar means
shall be punishable by prision correctional in its m i n i m u m
and medium periods or a fine ranging from P200 to P600,000
pesos. Nevertheless, under A r t i c l e 360 of the R e v i s e d P e n a l
Code, the criminal action as w e l l as the civil action for such
offense shall be filed simultaneously or separately w i t h the
C F I (now R T C ) .
A l s o , some forms of direct bribery under A r t i c l e 210 of
the Revised P e n a l Code are punishable by either prision correctional in its m e d i u m period or prision correctional in its
maximum period but such felonies are w i t h i n the exclusive jurisdiction of the Sandiganbayan pursuant to Sec. 4 ( A ) of P . D .
1606 as amended. Indirect bribery, a felony punishable by prision correctional in its m e d i u m and m a x i m u m periods under
Article 211 of the R e v i s e d P e n a l Code are l i k e w i s e cognizable
by the Sandiganbayan pursuant to Sec. 4 ( A ) of P . D . 1606 as
amended.
3.
W h e r e the only penalty provided for by l a w is a
fine, the amount thereof shall d e t e r m i n e the jurisdiction of
the court under the original provisions of B . P . 129 (Sec. 32[2])
which provided that the M T C shall h a v e exclusive original
jurisdiction over offenses punishable w i t h 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. 33[2]; R.A. 7691);
5.
Violations of B . P . 22 (Bouncing Checks L a w ) (A.M.
No. 00-11-01-SC, March 25, 2003);
6.
S u m m a r y procedure in the following cases:
a.
Violations of traffic l a w s , rules and regulations,
violations of the rental law; and violations of municipal
or city ordinances;
CHAPTER I
PRELIMINARY CONSIDERATIONS
23
b.
A l l other criminal cases w h e r e the penalty prescribed by law for the offense charged is imprisonment
not exceeding six months, or a fine not exceeding one
thousand pesos (P1,000.00), or both, irrespective of other
imposable penalties, accessory or otherwise, or of the civil liability arising therefrom;
c.
Offenses i n v o l v i n g d a m a g e to property through
criminal negligence w h e r e the imposable fine does not
exceed ten thousand pesos PIO.OOO.OO (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 R T C j u d g e s in a province
or city (B.P. 129 [Sec. 35]).
B. Criminal Jurisdiction of Regional
Trial Court (RTC)
1.
Exclusive original jurisdiction in all
not w i t h i n the exclusive jurisdiction of any
or body, except those n o w falling under the
concurrent jurisdiction of the Sandiganbayan
20]);
criminal cases
court, tribunal
exclusive and
(B.P. 129 [Sec.
2.
Exclusive appellate jurisdiction o v e r all cases decided by the M T C w i t h i n its territorial jurisdiction (B.P. 129
[Sec. 22]);
3.
Special jurisdiction to handle exclusively criminal
cases as designated by the S u p r e m e Court (B.P. 129 [Sec. 23]);
4.
Jurisdiction over criminal cases under specific laws
such as:
(a) Written
Code);
defamation
(Art.
360,
Revised Penal
( b ) Jurisdiction of designated courts over cases in
violation of the Comprehensive Dangerous Drugs A c t of
2002 (R.A. No. 9165) as provided under Sec. 90 thereof;
No.
( c ) Violations of intellectual property rights [A.M.
03-03-03-SC 2003-06-17, Effective July 1, 2003 im-
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
24
plementing the Intellectual
pines [R.A. 8293]).
Property
Code
of the
Philip-
T h e public prosecutor has the authority to file a criminal
information for violation of Presidential Decree ( P . D . ) 957
and the Regional T r i a l 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 T r i a l Court (Victoria P. Cabral v.
Jacinto Uy, et al, G.R. No. 174584, January 22, 2010).
5.
Jurisdiction in Money Laundering Cases. — T h e
Regional T r i a l Courts shall h a v e jurisdiction to try all cases
on money laundering. Those committed by public officers and
private persons w h o are in conspiracy w i t h such public officers
shall be under the jurisdiction of the Sandiganbayan (Sec. 5,
R.A. 9160, Anti-Money Laundering Act of2001).
C.
C r i m i n a l J u r i s d i c t i o n of t h e Sandiganbayan
(PJD. 1606, RA. 7975 and RA. 8249)
1. T h e j u r i s d i c t i o n of t h e Sandiganbayan is set by
P . D . 1606 a s a m e n d e d a n d n o t b y R . A . 3019 o r t h e A n t i G r a f t a n d C o r r u p t P r a c t i c e s A c t a s a m e n d e d (Serana v.
Sandiganbayan, G.R. No. 162059, January 22, 2008).
2.
The applicable l a w provides:
"Section 4. Jurisdiction — T h e Sandiganbayan
exercise original jurisdiction in all cases involving:
shall
a. Violations of Republic A c t N o . 3019, as amended, otherwise known as the A n t i - G r a f t and Corruption
Practices A c t , and Republic A c t N o . 1379, and Chapter
I I , Section 2 , T i t l e V I I o f the R e v i s e d P e n a l Code, w h e r e
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)
(1) Officials of the executive branch occupying
the positions of regional director and higher, other-
CHAPTER I
PRELIMINARY CONSIDERATIONS
25
wise classified as Grade "27"^nd higher of the Compensation and Position Classification A c t of 1989
(Republic A c t N o . 6758), specifically including:
( a ) Provincial governors, vice-governors,
members
of the sangguniang panlalawigan,
and provincial treasurers, assessors, engineers,
and other provincial department heads;
( b ) C i t y mayors, vice-mayors, members
of the sangguniang panlungsod, city treasurer,
assessors, engineers, and other city department
heads;
( c ) Officials of the diplomatic service occupying the position of consul and higher;
( d ) P h i l i p p i n e a r m y and air force colonels,
naval captains, and all officers of higher rank;
( e ) Officers of the P h i l i p p i n e N a t i o n a l P o lice w h i l e occupying the position of provincial
director and those holding the rank of senior
superintendent or higher;
( f ) C i t y and provincial prosecutors and
their assistants, and officials and prosecutors in
the Office of the O m b u d s m a n and special prosecutor;
( g ) Presidents, directors or trustees, or
managers of g o v e r n m e n t - o w n e d or controlled
corporations, state universities or educational
institutions or foundations.
( 2 ) M e m b e r s of Congress and officials thereof
classified as G r a d e "27" and up under the Compensation and Position Classification A c t of 1989;
( 3 ) M e m b e r s of the judiciary without prejudice to the provisions of the Constitution;
( 4 ) Chairmen and members of Constitutional
Commissions, without prejudice to the provisions of
the Constitution; and
26
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
( 5 ) A l l other national and local officials classified as Grade "27" and higher under the Compensation and Position Classification A c t 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 w i t h Executive O r d e r N o s . 1, 2, 14 and 14-A,
issued in 1986. Note: T h e Sandiganbayan also exercises
civil jurisdiction (Antiporda v. Garchitorena, 321 SCRA
551).
"In cases w h e r e none of the accused are occupying
positions corresponding to Salary G r a d e '27' or higher, as
prescribed in the said Republic A c t N o . 6758, or military
and P N P officers mentioned above, exclusive original jurisdiction thereof shall be v e s t e d in the proper regional trial court, metropolitan trial court, municipal trial
court, and municipal circuit trial court, as the case m a y
be, pursuant to their respective jurisdictions as provided
in Batas Pambansa Big. 129, as amended.
"The Sandiganbayan shall exercise exclusive appellate jurisdiction over final j u d g m e n t s , resolutions or
orders of regional trial courts w h e t h e r in the exercise of
their o w n original jurisdiction or of their appellate jurisdiction as herein provided.
"The Sandiganbayan shall h a v e exclusive original
jurisdiction over petitions for the issuance of the writs
of mandamus, prohibition, certiorari, habeas corpus, injunctions, and other ancillary w r i t s and processes in aid
of its appellate jurisdiction and over petitions of similar
nature, including quo warranto, arising or that m a y arise
in cases filed or which m a y be filed under Executive Order N o s . 1, 2 , 1 4 and 14-A, issued in 1986: Provided, T h a t
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
CHAPTER I
PRELIMINARY CONSIDERATIONS
27
Court has promulgated and m a y hereafter promulgate,
relative to appeals/petitions for r e v i e w to the Court of
Appeals, shall apply to appeals and petitions for r e v i e w
filed w i t h 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 P e o p l e of the Philippines except in cases filed pursuant to Executive Order
N o s . 1, 2, 14 and 14-A, issued in 1986.
"In case private individuals are charged as co-principals, accomplices or accessories w i t h the public officers
or employees, including those employed in governmentowned or controlled corporations, they shall be tried
jointly w i t h said public officers and employees in the
proper courts which shall exercise exclusive jurisdiction
over them."
XXX
3.
P r i o r to R . A . 8249, the l a w which governed the
jurisdiction of the Sandiganbayan w a s R . A . 7975 amending P . D . 1 6 0 6 .
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 l a w . A significant a m e n d m e n t introduced by R . A .
8249 was the r e m o v a l of the w o r d principal before the word
accused thus transforming the phrase to read: "where one or
more of the accused"(Sec. 4[a] of P.D. 1606 as amended). Thus,
as the law is now w r i t t e n , one of the accused no longer has to
be a principal accused and m a y simply be an accomplice or an
accessory. A l s o , 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.
Offenses subject to the jurisdiction of the Sandiganbayan
(Bar 1997)
1.
T h e phraseology of the governing l a w discloses that
the jurisdiction of the Sandiganbayan is not confined to vio-
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
lations of the Anti-Graft and Corrupt Practices A c t . 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 A c t (Section 4[a] of Presidential Decree 1606 as
amended).
b.
Violations of Republic Act No. 1379 or otherwise known as the A c t Declaring Forfeiture in F a v o r of
the State A n y P r o p e r t y Found t o H a v e Been U n l a w f u l l y
Acquired by A n y Public Officer or E m p l o y e e (Sec. 4[a] of
P.D. 1606 as amended).
c.
Violations o f Chapter I I , Section 2 , T i t l e V I I ,
Book II of the Revised Penal Code (Sec. 4[a] of P.D. 1606
as amended). T h e s e offenses refer to the l a w 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 a b o v e ) ,
whether simple or complexed w i t h other crimes, committed by public officials mentioned in Sec. "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).
T h e terms "offenses or felonies" in letter "d" are so
broad in m e a n i n g and are not restricted to the l a w s earlier mentioned. T h e s e offenses h o w e v e r , 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. T h e court further held that estafa is one of those
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 their office.
CHAPTER I
PRELIMINARY CONSIDERATIONS
29
In another case, the accused argues that the crime of
falsification as denned under Articles 171 and 172 of the
R P C is not within the jurisdiction of the Sandiganbayan.
He also points out that nowhere under Sec. 4 of Presidential Decree N o . 1606, R . A . 3019, R . A . 1379, or in T i t l e V I I ,
Book II of the R P C is "falsification of official document"
mentioned. T h e Court struck down the argument and
ruled that falsification of public document under the R P C
is within the jurisdiction of the Sandiganbayan (Pactolin
v. Sandiganbayan, G.R. No. 161455, May 20, 2008).
e.
C i v i l and criminal offenses filed pursuant to
and in connection w i t h executive O r d e r N o s . 1, 2, 14 and
14-A issued in 1986 (Sec. 4[c] P.D. 1606 as amended).
T h e s e executive orders refer to orders on sequestration
cases.
Officials and employees with a salary grade of "27" or higher
1. Should one or m o r e of the officials charged h a v e a
salary grade of "27" or higher for the Sandiganbayan to h a v e
jurisdiction over the case? It is submitted that the query be
answered in the n e g a t i v e . T h e l a w 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]);
tion
( b ) M e m b e r s of Congress or officials thereof (Sec4[a][2]); and
( c ) A l l other national and local officials (Section
4[a][5]). T h e s e officials are those w h o are not enumerated
in letters "a" to "g" of Sec. 4 ( a ) ( 1 ) .
T h e salary grade of "27" has no reference for example to
provincial governors, vice governors or members of the sangguniang panlalawigan, sangguniang panlunsod,
directors or
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 ) f r o m letters "a" to "g" of Presidential Decree
1606 as amended.
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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 latter must be committed by officials classified
as Grade 27 and higher, of the Compensation and Position
Classification A c t of 1989.
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 h a v e been no
need for such enumeration (italics supplied).
XXX
"This conclusion is further bolstered by the fact that
some of the officials e n u m e r a t e d in "a" to "g" are not classified as SG 27 or higher under the x x x Position T i t l e s
and Salary Grades of the D e p a r t m e n t of B u d g e t and
M a n a g e m e n t 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 g o v e r n m e n t - o w n e d or
controlled corporations organized and incorporated under the
Corporation Code for purposes of R . A . 3019, the Anti-Graft
and Corrupt Practices A c t . T h e petitioner assumed a n e g a t i v e
v i e w in a petition for certiorari under R u l e 65 filed w i t h the
Supreme Court. T h e Office of the Special Prosecutor argued
otherwise, a v i e w shared by the Sandiganbayan.
T h e records showed that, although Geduspan w a s a
Director of Region VI of the Philhealth, she w a s not occupying
the position of Regional Director but that of Department
M a n a g e r A in accordance w i t h her appointment papers. It is
petitioner's appointment paper, held the Court and the notice
CHAPTER I
PRELIMINARY CONSIDERATIONS
31
of salary adjustment that determine the classification of her
position, that is, Department M a n a g e r A of Philhealth.
T h e petitioner admitted that she holds the position of
Department M a n a g e r A of Philhealth. She, however, contended that the position of D e p a r t m e n t M a n a g e r A is classified
under salary grade 26 and therefore outside the jurisdiction
of respondent court. T h e Court found that the petitioner
held the position of D e p a r t m e n t Director A of Philhealth at
the time of the commission of the offense and that position
is among those enumerated in paragraph K 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 w a s m e r e l y classified as salary grade 26. W h i l e
the first part of the Sec. 4 of P . D . 1606 covers only officials
of the executive branch w i t h the salary g r a d e 27 and higher,
the second part t h e r e o f "specifically includes" other executive
officials whose positions m a y not be of g r a d e 27 and higher
but who are by express provision of l a w placed under the
jurisdiction of the said court.
2.
In a r e l a t i v e l y recent case, a m e m b e r of the Sangguniang Panlungsod of a city w a s charged for allegedly criminally failing to liquidate certain cash advances he m a d e in
violation of the A u d i t i n g Code of the Philippines.
T h e core issue raised in this case of People of the Philippines v. Sandiganbayan and Rolando Plaza, G.R. No. 169004,
September 15, 2010, w a s w h e t h e r or not the Sandiganbayan
has jurisdiction over a m e m b e r of the Sangguniang Panlungsod whose salary grade is below 27 and charged with violation
of T h e A u d i t i n g Code of the Philippines. T h e Court held in the
affirmative, citing the provisions of R . A . 8249 and those that
are classified as Grade 26 and below m a y still fall within the
jurisdiction of the Sandiganbayan provided that they hold the
positions thus enumerated by the same law.
32
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
In resolving the issue in favor of the People, the Court
explained:
"Particularly and exclusively enumerated are provincial governors, vice-governors, members of the sangguniang 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; P N P chief superintendent and
P N P 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.
T h e earlier case of People v. Sandiganbayan and
Victoria Amante G.R. No. 167304, August 25, 2009, w a s
decided under facts substantially similar to those in People v.
Sandiganbayan and Rolando Plaza cited in the i m m e d i a t e l y
preceding number.
T h e issue presented to the Court for resolution in the
case involving A m a n t e w a s w h e t h e r or not a m e m b e r of the
Sangguniang Panlungsod under salary grade 26 who w a s
charged w i t h violation of the A u d i t i n g Code of the Philippines
for failure to liquidate cash advances falls w i t h i n the
jurisdiction of the Sandiganbayan. E a r l i e r the Sandiganbayan
dismissed the case against Amante for lack of jurisdiction
without prejudice to the filing of the case in the proper court.
T h e People sought to h a v e the dismissal reversed and set
aside by the Supreme Court.
CHAPTER I
PRELIMINARY CONSIDERATIONS
33
Those that are not 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 case of Plaza, 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.
"By simple analogy, applying the provisions of the
pertinent law, Amante, being a member of the Sangguniang Panlungsod at the time of the alleged commission of
the crime in relation to her office, falls within the original
jurisdiction of the Sandiganbayan." Thus, public officials
enumerated in Sec. 4(a) of PD 1606 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 VI 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 xxx the accused is held to have been indicted in relation to his office" (People v. Sandiganbayan and Victoria
Amante, G.R. No. 167304, August 25, 2009).
Salary grade alone does not determine jurisdiction of the
Sandiganbayan
It is not only the salary g r a d e that determines the jurisdiction of the Sandiganbayan. T h e Sandiganbayan also has
jurisdiction over other officers enumerated in P . D . 1606 as
amended. W h i l e 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
said court (Geduspan v. People, G.R. No. 158187, February 11,
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
2005; Serana v. Sandiganbayan, G.R. No. 162059, January
22, 2008; People v. Sandiganbayan and Rolando Plaza, G.R.
No. 169004, September 15, 2010).
A student regent of a state university is a public officer
T h e petitioner in one case contended that the Sandiganbayan has no jurisdiction over her person. As a student
regent she claimed she w a s not a public officer since she merely represented the students of the institution, in contrast to
the other regents w h o held their positions in an ex officio capacity. She added that she w a s just a simple student and did
not receive any salary as a student r e g e n t and thus could not
fall under any salary grade.
T h e argument that she w a s not a public officer w a s struck
down by the Court. T h e petitioner is a public officer whose position is covered by the l a w v e s t i n g jurisdiction over the Sandiganbayan. T h e provisions of Sec. 4 ( A ) ( 1 ) ( g ) of P . D . 1606 as
amended, explicitly vested the Sandiganbayan w i t h jurisdiction over Presidents, directors or trustees, or m a n a g e r s of government-owned or controlled corporations, state universities
or educational institutions or foundations. T h e petitioner, as a
student regent falls under this category. T h e board of Regents
of the U n i v e r s i t y of the Philippines performs functions similar
to those of a board of trustees of a non-stock corporation. By
express mandate of the l a w , the petitioner declared the Court,
is a public officer as contemplated by P . D . 1606. T h e Court
added that compensation is not an essential element of a public office and is m e r e l y 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 m a k e 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
and punished in Chapter T w o to Six, T i t l e Seven of the R e -
CHAPTER I
PRELIMINARY CONSIDERATIONS
35
vised 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 244 of the Revised Penal
Code.
2.
Public office is not an element of the crime of murder, since murder m a y 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. T h e taking of human life is either murder or homicide whether done
by a private citizen or public servant (Montilla v. Hilario, 90
Phil. 49).
T h e r e is also no direct relation b e t w e e n the commission
of the crime of rape w i t h homicide and the office as municipal
mayor because public office is not an essential element of the
crime charged. T h e offense can stand independently of the
office (Sanchez v. Demetriou, 227 SCRA 627).
3.
H o w e v e r , e v e n if the position is not an essential ingredient of the offense charged, if the information avers the
intimate connection b e t w e e n the office and the offense, this
would bring the offense w i t h i n the definition of an offense
"committed in relation to the public office" (Sanchez v. Demetriou, 227 SCRA 627).
4.
An offense m a y b e said to h a v e been committed in
relation to the office if the offense is "intimately connected"
w i t h the office of the offender and perpetrated w h i l e he was
in the performance of his official functions e v e n 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
Sandiganbayan is without jurisdiction over the case (Esteban
36
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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 t w o informations filed
against him for acts of lasciviousness allegedly perpetrated
by him against a female casual employee assigned to his
office. T h e accused argued that the Sandiganbayan has no
jurisdiction over the offense charged since the alleged acts
imputed to him w e r e not committed in relation to his office
as a judge. W h e n the motion to quash and the subsequent
motion for reconsideration w e r e denied, he brought the issue
of jurisdiction before the Supreme Court on certiorari under
Rule 65. T h e Supreme Court sustained the Sandiganbayan
because the information alleged w i t h clarity that the accused
used his official position to commit the acts charged. As alleged
in the information, the victim w a s constrained to approach
the accused because it w a s 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. W h i l e 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 w e r e it not for his being
the j u d g e of the court w h e r e the v i c t i m w a s working. T a k e n
together w i t h the fact that the accused had the authority to
recommend the appointment of the v i c t i m as an employee, the
crimes committed w e r e therefore, i n t i m a t e l y connected w i t h
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. E x a m i n i n g 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. T h e information clearly alleged
that the murder was a consequence of his act as a mayor
that he organized armed patrols and civilian commandos and
CHAPTER I
PRELIMINARY CONSIDERATIONS
37
provided them w i t h arms. A l s o acting as the city mayor and
leader of the patrols, he ordered the arrest and maltreatment
of the victim who died as a consequence. W h i l e public office
is not an element of murder, the offense as alleged shows its
commission w h i l e the accused w a s in the performance of his
official functions and that the offense could not h a v e been
committed had he not held his office.
Public office is not, of course, an element of the crime of
murder, since murder m a y be committed by any person. H o w ever, the averments of the information could bring the offense
within the m e a n i n g 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.
T h e previously cited cases require that the information must contain the specific factual allegations that would
indicate the close intimacy b e t w e e n the discharge of the official duties of the accused and the commission of the offense
charged, in order to qualify the crime as h a v i n g been committed in relation to public office.
T h i s r e q u i r e m e n t h o w e v e r , w a s not m e t in Lacson v.
Executive Secretary, 301 SCRA 298. W h i l e the amended
information for murder against the several accused w a s
alleged to h a v e been committed "in relation to their official
duties as police officers," it contained no specific allegations of
facts that the shooting of the victim w a s i n t i m a t e l y related to
the discharge of the official functions of the accused.
Lacson held that the said phrase is not w h a t determines
the jurisdiction of the court. W h a t 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 satisfied. We believe that the mere allegation in the
38
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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 discharged 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.
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 A r t i c l e 217 of the R e v i s e d P e n a l 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 e l e m e n t in both felonies (Barriga
v. Sandiganbayan, G.R. Nos. 161784-86, April 26, 2005).
2.
In those cases w h e r e 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. T h e 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 l a w (Barriga v. Sandiganbayan, G.R.
Nos. 161784-86, April 26, 2005; Escobal v. Garchitorena, 422
SCRA 45).
CHAPTER I
PRELIMINARY CONSIDERATIONS
Barriga
39
further elucidates:
"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 w i t h the discharge of
the official functions of the accused.
E v e n if the position is not an essential ingredient of the
offense charged, if the information avers the intimate connec-
40
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
tion 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).
W h e r e 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 w i t h 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 w h o are in conspiracy w i t h such
public officers shall be under the jurisdiction of the Sandiganbayan (Sec. 5, R.A. 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, w h a t is sought to be established is the commission of the criminal acts in furtherance of
the acquisition of ill-gotten w e a l t h . 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 l e g i t i m a t e income, it being unnecessary to prove
how he acquired such properties (Garcia v. Sandiganbayan,
G.R. No. 1711381, October 12, 2009).
Summary procedure in criminal cases
1.
T h e Metropolitan T r i a l Courts, the Municipal T r i a l
Courts in Cities, the Municipal T r i a l Courts and the Municipal
Circuit T r i a l Courts shall h a v e jurisdiction over cases falling
under summary procedure committed within their jurisdiction
(Sec. 1, The 1991 Rule on Summary Procedure).
CHAPTER I
PRELIMINARY CONSIDERATIONS
2.
dure:
41
T h e following cases are subject to summary proce( a ) Violations of traffic laws, rules and regulations;
( b ) Violations of the rental law;
(c)
Violations of municipal or city ordinances;
( d ) A l l other criminal cases w h e r e the penalty prescribed by l a w for the offense charged is imprisonment
not exceeding six ( 6 ) months, or a fine not exceeding one
thousand pesos ( P I , 0 0 0 . 0 0 ) , or both, irrespective of other
imposable penalties, accessory or otherwise, or of the civil liability arising therefrom.
( e ) Offenses i n v o l v i n g d a m a g e to property through
criminal negligence w h e r e the imposable fine does not
exceed ten thousand pesos (P10,000.00) (Sec. 1[B], The
1991 Rule on Summary Procedure).
3. T h e filing of criminal cases under summary procedure
m a y be either by complaint or information. In M e t r o M a n i l a
and other chartered cities, the filing shall be by information
except w h e n the offense is one which cannot be prosecuted ex
officio (Sec. 11, The 1991 Rule on Summary Procedure).
T h e 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 t w o ( 2 ) copies for
the court's files. T h i s r e q u i r e m e n t has to be complied with
within five ( 5 ) days from the filing of the case, otherwise the
same m a y 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, he court shall set
the case for arraignment (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;
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
( b ) considering the propriety of allowing the accused to enter a plea of guilty to a lesser offense; or
( 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. A l s o ,
any admission of the accused m a d e during the preliminary
conference must be reduced in w r i t i n g and signed by the
accused and his counsel. If this requirement is not met, such
admission shall not be used against him (Sec. 14, Sec. 11, 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. T h e witnesses
however, m a y be subjected to a cross-examination, re-direct
examination or re-cross examination.
Should the witnesses fail to testify, his affidavit shall not
be considered as competent evidence for the party presenting
the affidavit. H o w e v e r , the adverse party m a y utilize the
same for any admissible purpose (Sec. 15, The 1991 Rule on
Summary
Procedure).
8.
T h e court is mandated not to order the arrest of the
accused except w h e r e the ground is his failure to appear w h e n
required by the court. If he is arrested, he m a y be released on
bail or on recognizance by a responsible citizen acceptable to
the court (Sec. 16, The 1991 Rule on Summary Procedure).
9.
W h e r e a trial has been conducted, the court shall
promulgate the j u d g m e n t not later than thirty ( 3 0 ) 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)
1.
Motion to quash the complaint or information except
if the ground is lack of jurisdiction over the subject
CHAPTER I
PRELIMINARY CONSIDERATIONS
43
matter or failure to comply w i t h the barangay conciliation proceedings;
2. M o t i o n for bill of particulars;
3. M o t i o n for n e w trial, or of consideration of a judgment, or for reopening of trial;
4. Petition for r e l i e f from judgment;
5. M o t i o n for extension of t i m e 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;
( B a r 2004)
8. Dilatory motions for postponement;
9.
Reply;
10. Third-party complaints;
11.
Interventions
III. SYNOPSIS OF THE CRIMINAL LITIGATION
PROCESS
Initial contact with the criminal justice system
1.
T h e criminal litigation process presupposes the prior
commission of a crime or at least the perception that a crime
has been committed. T h e r e can be no criminal action unless a
crime is believed to h a v e been committed.
W h e n a crime is committed, there is an offender and generally, there is a victim. T h e victim m a y be a private person
who may be either a natural or a juridical person. T h e crimes
of homicide, murder 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 w h e n the offender commits theft
44
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
or robbery against the property of such juridical persons.
Sometimes the offense is not committed against a private
person as when the offense is committed against public
interest like counterfeiting the great seal of the G o v e r n m e n t
of the Philippine Islands or committed against public order
like rebellion, sedition or disloyalty of public officers and
employees. Crimes m a y be committed against national security like treason and other related offenses. A crime may
also be committed by the m e r e possession of goods or things
prohibited by law.
2.
No matter h o w or against w h o m the offense is committed, the mere commission of a crime does not automatically trigger the application of the rules of criminal procedure.
T h e rules come into operation only w h e n acts are initiated
that would put the offender in contact w i t h the law. T h i s contact with the l a w is normally effected w h e n the criminal act is
brought to the attention of duly constituted authorities.
For instance, the offended party m a y file a w r i t t e n complaint before the barangay or in proper cases a sworn complaint before the prosecuting a r m of the g o v e r n m e n t . In certain cases, the a g g r i e v e d party m a y initiate the filing of a
complaint directly w i t h the Municipal T r i a l Court. Contact
with the l a w m a y also occur w h e n l a w enforcement officers
search a place under the control of the alleged offender and
seize goods, articles or things found therein. T h i s initial contact m a y likewise happen w h e n an offender is arrested in flagrante delicto or by virtue of a "hot pursuit."
3.
T h e r e are violations of l a w s or ordinances which
require compliance w i t h the barangay conciliation proceedings
originally provided for under Presidential Decree 1508 and
now under R . A . 7160 (Local G o v e r n m e n t C o d e ) . Compliance
with the procedure set by these proceedings will set in motion
the initial contact of the parties w i t h 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. T h e invocation of
CHAPTER I
PRELIMINARY CONSIDERATIONS
45
judicial authority shall be allowed only if a certification is issued
by the proper barangay official that judicial intervention m a y
now be availed of because the desired conciliation or settlement
was not reached or w h e n after a settlement previously forged
w a s repudiated by a party. W i t h the certification to file action
the case is now said to be ripe for filing in court.
4.
N o t all cases h o w e v e r , require barangay conciliation.
In those cases beyond the ambit of the barangay conciliation
process and w h e r e for instance, the penalty prescribed by
l a w for the allege offense is at least four ( 4 ) years, t w o ( 2 )
months and one ( 1 ) day, the rules on criminal procedure begin
to grind w h e n a complaint in affidavit form is filed before an
authorized officer for the purpose of conducting a preliminary
investigation, an inquiry a i m e d 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.
U n d e r current rules, the filing of a complaint for the purpose
of conducting the requisite p r e l i m i n a r y investigation is a w a y
of instituting a criminal action.
A f t e r the required p r e l i m i n a r y investigation has been
completed, the i n v e s t i g a t i n g prosecutor m a y either recommend the dismissal of the complaint or the filing of an information in court w i t h 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 w r i t t e n authority or approval no complaint
or information m a y be filed or dismissed by an investigating
prosecutor. Such action m a y be further r e v i e w e d by the Secretary of Justice in accordance w i t h the Rules of Court and
existing D O J rules on appeal. T h e Secretary m a y reverse or
modify the resolution of the provincial or city prosecutor or of
the chief state prosecutor.
5.
T h e r e 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 or because they are covered
by the Rule on S u m m a r y Procedure. In these cases, the complaint or information m a y be filed directly with the Municipal
T r i a l Court and such filing, pursuant to the Rules, is one of
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
the recognized w a y s of instituting a criminal action. T h e M u nicipal Court m a y dismiss the same for lack of probable cause
after an evaluation of the evidence consisting of the affidavits and other supporting documents of the complainant and
his witnesses and after following the required examination of
the complainant and his witnesses. If the court finds probable
cause, the court shall issue a w a r r a n t of arrest or a commitment order if the accused has already been previously taken
into custody although the j u d g e m a y issue summons instead
of a w a r r a n t of arrest if the j u d g e is satisfied that there is no
necessity for placing the accused in custody.
In places like M a n i l a and other chartered cities w h i c h require that the complaint be filed directly w i t h 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. T h e prosecutor m a y
either dismiss the complaint or file the complaint or information in court.
6.
T h e initial contact w i t h the l a w m a y also occur
when a person is lawfully arrested w i t h o u t a w a r r a n t either
by a peace officer or by a p r i v a t e person. T h e arrest is deemed
lawful w h e n , for instance, the person arrested has committed,
was actually committing or w a s a t t e m p t i n g to c o m m i t a crime
in the presence of the person effecting the arrest at the t i m e
the arrest w a s made. T h e arrest is l i k e w i s e lawful w h e n the
arrest was m a d e after a crime has just been committed and
the person m a k i n g the arrest has personal k n o w l e d g e of facts
and circumstances which engenders in h i m 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 j a i l .
W h e n the accused is lawfully arrested without a warrant,
he shall not, as a rule, undergo a p r e l i m i n a r y investigation
even if under the Rules, the offense involves a penalty which
normally would require such investigation. T h e complaint
or information may nevertheless be filed by the prosecutor
after an inquest has been conducted. W h e r e an inquest
CHAPTER I
PRELIMINARY CONSIDERATIONS
47
prosecutor is not available, the complaint m a y be filed by the
offended party or a peace officer directly w i t h the court on
the basis of the affidavit of the party or arresting officer or
person. U n d e r existing rules of the D e p a r t m e n t of Justice,
the inquest prosecutor may, instead of filing the criminal
action, release the person for further proceedings. T h i s occurs
when for instance, the prosecutor finds that the arrest made
does not comply w i t h the rules on a valid arrest. T h e person
arrested is then released to be notified later on of a subsequent
preliminary investigation.
T h e rule that a complaint or information m a y 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 m a y
ask for a preliminary investigation after signing a w a i v e r
of the provisions of A r t . 125 of the R e v i s e d P e n a l Code.
N o t w i t h s t a n d i n g the w a i v e r , he m a y apply for bail even before
he is charged in court.
E v e n after the filing of the complaint or information,
the rule allows the person arrested to ask for a preliminary
investigation w i t h i n five ( 5 ) days from the time he learns of
the complaint or information being filed and w i t h the same
right to adduce evidence in his defense.
7.
T h e wheels of the criminal justice system could
also start grinding w h e n l a w information authorities are in
possession of information on possible criminal activities. T h e
authorities m a y initiate a search and a seizure by virtue of
a search w a r r a n t duly issued. T h e search and seizure m a y
also be conducted without a w a r r a n t under well-recognized
exceptions to the rule requiring a warrant. W h e n 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
48
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
under the control and direction of the public prosecutor
although in special cases, a private prosecutor m a y be
authorized in writing by the chief of the prosecution office or
the regional state prosecution to prosecute the case subject to
the approval of the court
2.
T h e complaint or information is required by the
Rules to be in writing. T h e caption of a criminal case contains
at least two names. T h e first n a m e refers to the party that
brought the action and this party is denominated as the
"People of the Philippines." T h i s is because a crime is deemed
to have been committed against the "People" and under whose
name a crime must be prosecuted. T h e second name refers to
the person named as offender. He is the party w h o against
whom the action is brought.
T h e complaint or information must state the n a m e of
the accused or under a fictitious n a m e w h e n his true n a m e
is alleged to be unknown, the n a m e of the offended party, the
designation of the offense, a v e r the acts or omissions constituting the offense, and specify the qualifying and a g g r a v a t i n g
circumstances.
T h e complaint or information must also state the cause of
the accusation against the accused so he m a y k n o w the offense
for which he is charged and also to enable the court to pronounce
judgment. T h e cause of the accusation necessarily includes
the attendant qualifying and a g g r a v a t i n g circumstances. T h e
date of the commission of the offense which need not be the
precise date unless the same is a m a t e r i a l ingredient of the
offense, shall be stated in the complaint or information.
Implied institution of the civil action
1.
W h e n 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 w i t h the criminal
action. H o w e v e r , when the offended party has w a i v e d 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 w i t h the criminal action.
CHAPTER I
PRELIMINARY CONSIDERATIONS
49
2.
A l s o not deemed instituted are those civil actions
which although m a y 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.
A f t e r the criminal action has been commenced, the
separate civil action arising from the offense, cannot be instituted until final j u d g m e n t has been entered in the criminal
action. A l s o , if the criminal action is filed after the civil action
has already been instituted, the civil action shall be suspended
in w h a t e v e r stage it m a y be found. Independent civil actions
however, are not suspended and shall proceed independently
of the criminal action.
4.
T h e suspension of the civil action w h e n the criminal
action is commenced does not also apply to a situation which
poses a prejudicial question. Instead, it is the criminal action
which m a y be suspended upon a proper petition on the ground
of the existence of a prejudicial question. T h i s question.
exists w h e n the previously instituted civil action involves an
issue similar or i n t i m a t e l y related to the issue raised in the
subsequent criminal action and the resolution of such issue
determines whether or not the criminal action m a y proceed.
Availment of provisional remedies
W h e n the complaint or information is filed and the civil
action arising from the offense charged is properly instituted in
accordance w i t h the Rules, the offended party m a y avail of the
provisional remedies available in civil actions. F o r instance,
the offended party m a y h a v e the property of the accused
attached as security for the satisfaction of any j u d g m e n t that
may be recovered from the accused w h e n circumstances arise
justifying the attachment as w h e n 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
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
right to bail which m a y be g i v e n in the form of corporate
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 w h e r e his
case is pending but no bail shall be allowed after a j u d g m e n t
of conviction has become final. If before such finality, the
accused applies for probation, he m a y be allowed temporary
liberty under his bail.
2.
It is not h o w e v e r , correct to assume that bail m a y be
availed of only after the filing of the complaint or information.
A person in custody w h o is not y e t charged in court m a y apply
for bail w i t h 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 v a l i d i t y of his arrest.
4.
Bail m a y be a m a t t e r of right or a m a t t e r of judicial
discretion. E v e n a person charged w i t h a capital offense m a y
be allowed bail w h e n evidence of his guilt is not strong, an
evidence which the prosecution has the burden of proving.
Arraignment; bill of particulars; suspension of arraignment
1. W h e t h e r or not the accused is under detention or out
on bail, the court shall thereafter set the case for arraignment.
A r r a i g n m e n t is the formal mode and m a n n e r of i m p l e m e n t i n g
the constitutional right of an accused to be informed of the
nature and cause of the accusation against him. W i t h o u t arraignment, the accused is not d e e m e d to h a v e been informed
of such accusation. If before his arraignment, the accused escapes, the court has no authority to try h i m in absentia.
2.
T h e accused is to be arraigned before the court
where the complaint or information w a s filed or assigned
for trial. It is made in open court by the j u d g e or clerk and
consists of furnishing the accused w i t h a copy of the complaint
or information and the reading of the same in a language he
understands. He then is asked whether he pleads guilty or not
guilty.
CHAPTER I
PRELIMINARY CONSIDERATIONS
51
3.
During the date set for arraignment, the accused
need not enter his plea outrightly because before the arraignment and plea the accused has several options. T h e accused
may m o v e for a bill of particulars if there are defects in the
information or complaint which prevent him from properly
pleading to the charge and preparing for trial. H e m a y also m o v e
for the suspension of the arraignment w h e n justifiable reasons
do exist for its suspension as w h e n 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. T h e
accused m a y l i k e w i s e , at any t i m e before entering his plea,
move to quash, i.e., to dismiss the complaint or information.
Quashal of complaint or information
An accused m a y m o v e to quash the complaint or
information on any of the grounds provided for by the Rules.
F o r instance, he m a y m o v e to quash on the ground that the
facts charged do not constitute an offense or that the court
t r y i n g 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. T h e
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.
A f t e r the a r r a i g n m e n t of the accused and within
thirty ( 3 0 ) 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 m a r k i n g of the evidence,
the w a i v e r 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.
52
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
2.
After the pre-trial conference, the court shall issue
an order reciting the actions taken, the facts stipulated and
the evidence marked. T h e 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. A l l agreements or admissions
made or entered during the pre-trial conference shall be
reduced in w r i t i n g and signed by the accused and counsel,
otherwise, they cannot be used against the accused.
Trial; demurrer
1. W i t h i n thirty ( 3 0 ) days from the receipt of the pretrial order, trial shall commence. T h e rule is that once the
trial is commenced it shall continue from day to day as far
as practicable until t e r m i n a t e d but it m a y be postponed for a
reasonable period of t i m e for good cause.
2.
N o r m a l l y , the trial begins w i t h the prosecution
presenting its evidence but w h e n the accused admits the act
or omission charged but interposes a lawful defense, the order
of trial may be modified.
3.
W h e n the prosecution rests its case, the accused
may now present his evidence to prove his defense and the
damages he m a y h a v e sustained arising from any provisional
remedy issued in the case. H o w e v e r , the accused may,
instead of presenting his evidence, opt to m o v e to dismiss the
case by presenting a demurrer to evidence on the ground of
insufficiency of evidence. T h i s demurrer m a y be presented
with or without l e a v e of court. T h e court m a y , for the same
reason, dismiss the case on its o w n initiative after g i v i n g the
prosecution the opportunity to be heard.
If the demurrer filed w i t h l e a v e of court is denied, the
accused shall be allowed to adduce evidence in his behalf but
shall w a i v e the right to present evidence if the demurrer to
evidence filed without leave of court is denied.
T h e prosecution and the defense may, in the same order
present rebuttal and sur-rebuttal evidence. U p o n admission of
the evidence of the parties, the case shall be deemed submitted
CHAPTER I
PRELIMINARY CONSIDERATIONS
53
for decision unless the court directs t h e m to argue orally or to
submit written memoranda.
Judgment
1. A f t e r trial, the j u d g m e n t of the court shall follow.
A j u d g m e n t is the adjudication by the court on the guilt or
innocence of the accused and the imposition on h i m 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 j u d g e and signed by him and shall contain
clearly and distinctly a statement of the facts and the l a w
upon which it is based.
2.
T h e j u d g m e n t is promulgated by reading it in the
presence of the accused and by any j u d g e of the court in which
it was rendered unless it is for a light offense in which case the
j u d g m e n t m a y be pronounced in the presence of his counsel or
representative.
Post-judgment remedies
1.
Before the j u d g m e n t of conviction becomes final or
before an appeal is perfected, the accused m a y file a motion
for the modification of the j u d g m e n t or for the setting aside of
the same.
2.
A l s o , at any t i m e before the j u d g m e n t of conviction
becomes final, the accused m a y m o v e for a new trial or a
reconsideration. A motion for n e w trial shall be predicated
upon errors of l a w or irregularities during the trial and the
discovery of new or material evidence. W i t h i n the same period,
a motion for reconsideration m a y also be filed on the grounds
of errors of l a w or fact in the j u d g m e n t . T h e court also may, on
its own motion w i t h the consent of the accused, grant a new
trial or reconsideration.
3.
Before the finality of the judgment, the accused m a y
also appeal from a j u d g m e n t of conviction in accordance with
the procedure set forth in the Rules. Notwithstanding the
perfection of the appeal, the court m a y allow the appellant,
54
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
upon proper motion to w i t h d r a w the appeal already perfected
before the record has been forwarded by the clerk of court to
the proper appellate court. An appeal m a y e v e n be w i t h d r a w n
upon proper motion of the appellant before the rendition of the
judgment of the case on appeal in which case the j u d g m e n t 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 M e t r o p o l i t a n T r i a l Court,
Municipal T r i a l Court in Cities, Municipal T r i a l Court or
the Municipal Circuit T r i a l Court shall be appealed to the
Regional T r i a l Court. Cases decided by the R e g i o n a l T r i a l
Court shall be appealable either to the Court of A p p e a l s or to
the Supreme Court in the proper cases provided for by law.
Cases decided by the Court of A p p e a l s or the Sandigabayan
shall be appealable to the S u p r e m e Court.
5.
T h e appeal to the R e g i o n a l T r i a l Court, or to the
Court of A p p e a l s in cases decided by the R e g i o n a l T r i a l Court
in the exercise of its original jurisdiction, shall be by notice of
appeal filed w i t h the court which rendered the j u d g m e n t or
final order appealed from.
6.
T h e appeal to the Court of A p p e a l s in cases decided
by the Regional T r i a l Court in the exercise of its appellate
jurisdiction shall be by petition for r e v i e w under R u l e 42.
7.
T h e appeal in cases w h e r e the penalty imposed is
reclusion perpetua or life imprisonment is imposed shall be
by notice of appeal to the Court of A p p e a l s . T h e previous rule
that no notice of appeal to the S u p r e m e Court w h e r e the death
penalty is imposed has been modified. A r e v i e w of the case by
the Court of A p p e a l s is necessary before the same is elevated
to the Supreme Court. T h e rule w a s further modified by the
abolition of the death penalty on June 24, 2006 by R . A . 9346.
8.
Decisions and final orders of the Sandiganbayan
shall be appealable to the Supreme Court by petition for
review on certiorari by the Supreme Court in accordance with
Rule 45 of the Rules of Court.
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PRELIMINARY CONSIDERATIONS
55
Entry of judgment
W h e n all remedies h a v e been exhausted and the j u d g m e n t
has become final, the same shall be entered in accordance with
existing rules.
— 0O0 —
Chapter II
PROSECUTION OF OFFENSES
(Rule 110)
I. INSTITUTION OF CRIMINAL ACTIONS
Purpose of a criminal action
T h e purpose of a criminal action, in its purest sense,
is to determine the penal liability of the accused for h a v i n g
outraged the state w i t h 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. T h e offended
party is regarded m e r e l y as a witness for the state (Carino v.
De Castro, G.R. No. 176084, April 30, 2008, 553 SCRA 688,
696; People v. Puig, G.R. Nos. 173654-765, August 28, 2008,
563 SCRA 564, 575; Heirs of Sarah Marie Palma Burgos v.
Court of Appeals, 169711, February 8, 2010).
How criminal actions are instituted (Bar 1999)
1. T h e institution of a criminal action g e n e r a l l y
depends upon whether or not the offense is one which requires
a preliminary investigation (Sec. 1, Rule 110, Rules of Court).
W h e r e a preliminary investigation is required, a criminal
action is instituted by filing the complaint w i t h the proper
officer for the purpose of conducting the requisite preliminary
investigation (Sec. 1, Rule 110, Rules of Court).
2.
W h e r e a preliminary investigation is not required, a
criminal action is instituted in either of two w a y s :
( a ) by filing the complaint or information directly
with the Municipal T r i a l Court or Municipal Circuit T r i al Court; or
56
CHAPTER II
PROSECUTION OF OFFENSES
(Rule 110)
57
( b ) by filing the complaint w i t h the office of the
prosecutor (Sec. 1, Rule 110, Rules of Court).
Institution of criminal actions in Metro Manila and other
chartered cities
In M e t r o M a n i l a and other chartered cities a special
rule prevails. In these places, the rule is that "the complaint
shall be filed w i t h 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.
T h e r e is no direct filing of an information or complaint
w i t h the R e g i o n a l T r i a l Court because its jurisdiction covers
offenses which require p r e l i m i n a r y investigation.
A preliminary investigation is to be conducted for offenses
w h e r e the penalty prescribed by l a w is at least four ( 4 ) years,
two ( 2 ) months and one ( 1 ) day (Sec. 1, Rule 112, Rules of
Court). T h e R e g i o n a l T r i a l Court has jurisdiction over an
offense punishable w i t h imprisonment of m o r e than six ( 6 )
years, a period w a y above the m i n i m u m penalty for an offense
that requires a preliminary investigation. On the other hand
the Municipal T r i a l Court has exclusive jurisdiction over
offenses punishable w i t h imprisonment not exceeding six ( 6 )
years (Sec. 32[2], Judiciary Reorganization Act of 1980 [B.P.
129]).
2.
T h e r e is l i k e w i s e no direct filing with the M e t r o politan T r i a l Court of M a n i l a because in M a n i l a , including
other chartered cities, the complaint, as a rule, shall be filed
w i t h 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.
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
Effect of the institution of the criminal action on the prescriptive period (Bar 1993)
1. T h e 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 laws" (Sec. 1, Rule 110, Rules of Court; italics
supplied).
Since one w a y of instituting a criminal action is by filing a
complaint w i t h the proper officer for the purpose of conducting
the requisite preliminary investigation for offenses w h e r e
a preliminary investigation is required (Sec. l[a], Rule 110,
Rules of Court), the filing of the complaint w i t h the proper
officer for such purpose, would, under the Rules of Court,
interrupt the period of prescription. T h e exception is w h e n a
different rule is provided for in special laws.
2.
F o r offenses w h e r e a p r e l i m i n a r y investigation is not
required, the filing of the information or complaint directly
with the Municipal T r i a l Courts and M u n i c i p a l Circuit T r i a l
Courts, or w i t h the office of the prosecutor, shall l i k e w i s e
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 M a n i l a and other chartered cities, the filing of the
complaint w i t h the office of the prosecutor shall also operate
to interrupt the period of prescription of the offense charged,
unless also provided otherwise in special l a w s .
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.
H e r e , the Supreme Court did not agree w i t h the v i e w of the
Court of Appeals and of the respondent that upon approval of
the investigating prosecutor's recommendation for the filing of
an information against respondent, the period of prescription
CHAPTER II
PROSECUTION OF OFFENSES
(Rule 110)
59
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. T h e
proceedings against respondent w e r e not terminated upon the
City Prosecutor's approval of the investigating prosecutor's
recommendation that an information be filed with the court.
T h e prescriptive period remains tolled from the time the
complaint w a s filed w i t h the Office of the Prosecutor until
such time that respondent is either convicted or acquitted by
the proper court.
2.
T h e present rule on the effect of the institution of
the criminal action on the period of prescription finally set at
rest conflicting rulings on some critical issues on prescription.
T h e issue as to w h e n the prescriptive period of an offense is
interrupted has been the subject of various contending v i e w s
interpreting some l a w s r e l a t i n g to prescription particularly
Articles 90 and 91 of the R e v i s e d P e n a l Code and A c t N o . 3326
as amended.
3.
T h e diversity of opinions started w i t h the interpretation of A r t i c l e 91 of the R e v i s e d P e n a l 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 ..."
T h e early case of People v. Tayco, 73 Phil. 509, ruled that
the 'complaint' or 'information' referred to in A r t . 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, I960; People
v. Coquia, L-15456, June 29, 1963 and cited in Francisco v.
Court of Appeals, 122 SCRA 538).
A r r a y e d against the ruling in Tayco are the opposite
v i e w s 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
60
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
the peace (municipal j u d g e ) for preliminary investigation as
sufficient to interrupt the prescriptive period for the offense.
Tayco was eventually rejected in the subsequent case
of People v. Olarte, L-13027, June 30 1960, w h e r e the Court
ruled that the filing of the complaint w i t h the justice of the
peace for preliminary investigation interrupted the running
of the statute of limitations.
T h e Court in Olarte g a v e 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 m e r e l y 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; T h i r d ,
it is unjust to deprive the injured party of the right to obtain
vindication on account of delays that are not under his control.
T h e pronouncements in Olarte w e r e subsequently
confirmed in Francisco v. Court of Appeals, 122 SCRA 538,
to be the "true doctrine." T h u s , the filing of a denuncia or
complaint for intriguing against honor, changed later to
grave oral defamation, e v e n in the fiscal's office interrupts the
period of prescription. Quoting Olarte, the Court in Francisco
held that after r e e x a m i n i n g the question and after mature
consideration, the Court has a r r i v e d 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.
A c t N o . 3326 as amended, is the l a w which governs
the period for prescription for violations penalized by special
acts and municipal ordinances.
CHAPTER II
PROSECUTION OF OFFENSES
(Rule 110)
61
Zaldivia v. Reyes, 211 SCRA 277, a case involving an
offense punishable by a municipal ordinance, held that when
A c t N o . 3326 says that the period of prescription shall be
suspended "when proceedings are instituted against the guilty
party," the proceedings referred to are "judicial proceedings"
and not administrative proceedings.
Accordingly, the prescriptive period in these cases is governed by A c t N o . 3326 and is interrupted only by the institution
of judicial proceedings because Sec. 2 of the l a w 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 A c t N o .
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
r i g h t s " under the Constitution and that " . . . Prescription i n
criminal cases is a substantive right."
2.
Recent cases h o w e v e r , appear not to strictly adhere
to the line toed by Zaldivia in cases i n v o l v i n g violations of
special laws.
For instance, Sanrio Company Limited v. Lim, G.R. No.
168662, February 19, 2008, a case i n v o l v i n g a violation of the
Intellectual Property Code, a special law, ruled differently
from Zaldivia.
T h e case involves as the petitioner, Sanrio Company
L i m i t e d , a Japanese corporation which owns the copyright of
various animated characters such as "Hello K i t t y , " "Little T w i n
Stars," " M y M e l o d y , " "Tuxedo Sam" and "Zashikibuta" among
others. W h i l e it is not engaged in business in the Philippines,
its products are sold locally by its exclusive distributor, Gift
Gate Incorporated ( G G I ) .
Sometime in 2001, due to the deluge of counterfeit Sanrio
products, G G I asked IP M a n i l a Associates ( I P M A ) to conduct a
market research. T h e research's objective w a s to identify those
factories, department stores and retail outlets manufacturing
62
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
and/or selling fake Sanrio items. A f t e r conducting several
test-buys in various commercial areas, I P M A confirmed
that Respondent's Orignamura T r a d i n g in Tutuban Center,
M a n i l a was selling imitations of petitioner's products. U p o n
application by the petitioner, a search w a r r a n t w a s duly
issued. On the same day the w a r r a n t w a s issued, agents of
the N B I searched the premises of O r i g n a m u r a T r a d i n g and
seized various Sanrio products.
T h e petitioner Sanrio filed a complaint-affidavit w i t h
the Task-Force on Anti-Intellectual P r o p e r t y Piracy ( T A P P )
of the Department of Justice ( D O J ) against Respondent for
violation of Section 217 ( i n relation to Sections 177 and 178)
o f the Intellectual Property Code ( I P C ) . T h e T A P P dismissed
the complaint due to insufficiency of evidence.
T h e petitioner's subsequent motion for reconsideration
was denied. Hence, it filed a petition for r e v i e w in the Office
of the Chief State Prosecutor of the D O J . T h e Office of the
Chief State Prosecutor affirmed the T A P P ' s resolution and
the petition w a s dismissed for lack of reversible error.
A g g r i e v e d , the petitioner filed a petition for certiorari in
the Court of A p p e a l s w h i c h l i k e w i s e dismissed the petition
among others, on the ground of prescription. It based its action
on Sees. 1 and 2 of A c t 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.
CHAPTER II
PROSECUTION OF OFFENSES
iRule 110)
63
Violations penalized by municipal ordinances shall prescribe after two months.
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 pmrppHings 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 emphasis supplied).
T h e Court of A p p e a l s ruled that because no complaint
was filed in court w i t h i n t w o years after the commission of the
alleged violation, the offense had already prescribed.
T h e petitioner disagreed, and in the Supreme Court,
petitioner averred that the Court of A p p e a l s erred in concluding
that the alleged violations of the Intellectual P r o p e r t y Code
( I P C ) had prescribed because it had actually filed a complaint
with the corresponding T a s k Force of the D O J . It contended
that said filing tolled the running of the prescriptive period for
the offense.
T h e Supreme Court found the contention meritorious.
It likewise confirmed that under Section 2 of A c t 3326, the
prescriptive period for violation of special l a w s starts on
the day such offense w a s committed and is interrupted by
the institution of proceedings against respondent (i.e., the
accused). It also found that Petitioner in this instance filed
its complaint-affidavit with the T A P P of the D O J before the
alleged violation had prescribed. T h e Court categorically ruled
that the prescriptive period for the prosecution of the alleged
violation of the I P C was tolled by petitioner's timely filing of
the complaint-affidavit before the T A P P .
3.
In Panaguiton, Jr. v. DOJ, G.R. No. 167571, November 25, 2008, the issue raised w a s 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
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
period for the offense. H e r e , the Assistant C i t y Prosecutor dismissed the complaint against the respondent because the case
had already prescribed pursuant to A c t N o . 3326, as amended,
which provides that violations of l a w s 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 w e r e
dishonored and the filing of the complaint before the Quezon
City Prosecutor did not interrupt the running of the prescriptive period, as the l a w 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 y e t been filed against the respondent, the alleged violation of B . P . Big. 22 imputed to him had
already prescribed.
T h e D O J , through U n d e r s e c r e t a r y M a n u e l A . J . Teehankee affirmed the resolution of the Assistant C i t y Prosecutor
and held in favor of the respondent. Subsequently, the D O J ,
this time through then U n d e r s e c r e t a r y M a . M e r c e d i t a s N .
Gutierrez, ruled in favor of the petitioner/complainant declaring that the offense had not prescribed and that the filing of the complaint w i t h the prosecutor's office interrupted
the running of the prescriptive period. Thus, the Office of the
C i t y Prosecutor of Quezon C i t y w a s directed to file three ( 3 )
separate informations against the respondent for violation of
B.P. Big. 22. T h e informations w e r e filed. L a t e r , in another
change of heart, the D O J , presumably acting on a motion for
reconsideration filed by the respondent, ruled that the subject
offense had already prescribed and ordered the w i t h d r a w a l of
the three ( 3 ) informations for violation of B . P . Big. 22. In justifying its sudden turnabout, the D O J explained that A c t N o .
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, A c t N o . 3326 applies
to it, and not A r t . 90 of the R e v i s e d P e n a l Code which governs the prescription of offenses penalized thereunder. T h e
D O J also cited the case of Zaldivia v. Reyes, Jr., 211 SCRA
277, wherein the Supreme Court ruled that the proceedings
CHAPTER II
PROSECUTION OF OFFENSES
(Rule 110)
65
referred to in A c t N o . 3326, as amended, are judicial proceedings, and not the one before the prosecutor's office.
A g g r i e v e d , the petitioner then filed a petition for certiorari
before the Court of A p p e a l s assailing the latest resolution
of the D O J but the petition was dismissed by the Court of
Appeals. In the Supreme Court, the D O J reiterated its earlier
argument that the filing of a complaint w i t h the Office of the
City Prosecutor of Quezon C i t y 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 l a w which does not provide
for its o w n prescriptive period, offenses prescribe in four ( 4 )
years in accordance w i t h A c t N o . 3326. T h e respondent also
claimed that the offense of violation of B . P . Big. 22 has already
prescribed per A c t N o . 3326.
On the other hand the petitioner assailed the DOJ's
reliance on Zaldivia v. Reyes, a case i n v o l v i n g 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, w h a t is applicable in this case is Ingco
v. Sandiganbayan, 338 Phil. 1061, w h e r e i n 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. P e t i t i o n e r also noted that the Ingco
case similarly i n v o l v e d the violation of a special law, Republic
A c t ( R . A . ) N o . 3019, otherwise known as the Anti-Graft and
Corrupt Practices A c t .
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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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
X XX
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
B.P. Big. 22 (underscoring for emphasis supplied).
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, w a s m a d e by the Court in the case of SEC v.
Interport Resources Corporation, G.R. No. 135808, October 6,
2008.
This case relates to a P e t i t i o n for R e v i e w on Certiorari
under Rule 45 of the Rules of Court, assailing the Decision of
the Court of A p p e a l s enjoining the Securities and Exchange
Commission ( S E C ) from t a k i n g cognizance of or initiating any
action against the respondent corporation, Interport Resources
Corporation ( I R C ) and m e m b e r s of its board of directors w i t h
respect to Sections 8, 30 and 36 of the R e v i s e d Securities A c t .
Respondents h a v e t a k e n the position that this case is
moot and academic, since any criminal complaint that m a y
be filed against t h e m resulting from the S E C ' s investigation
of this case has already prescribed. T h e y point out that the
prescription period applicable to offenses punished under
special laws, such as violations of the R e v i s e d Securities A c t ,
is t w e l v e years under Section 1 of A c t N o . 3326, as amended by
A c t N o . 3585 and A c t N o . 3763, entitled " A n A c t to Establish
Periods of Prescription for Violations P e n a l i z e d by Special A c t s
and Municipal Ordinances and to P r o v i d e W h e n Prescription
Shall Begin to A c t . " Since the offense w a s committed in 1994,
they reasoned that prescription set in as early as 2006 and
rendered this case moot.
Ruling against the respondent, the Court held it to be
an established doctrine that a preliminary investigation
interrupts the prescription period. A preliminary investigation
CHAPTER II
PROSECUTION OF OFFENSES
(Rule 110)
67
is essentially a determination whether an offense has been
committed, and whether there is probable cause for the
accused to h a v e committed an offense. U n d e r Section 45 of
the Revised Securities A c t , which is entitled Investigations,
Injunctions
and Prosecution of Offenses,
the
Securities
Exchange Commission ( S E C ) 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. A f t e r a finding that a person has violated the Revised
Securities A c t , the S E C m a y refer the case to the D O J for
preliminary investigation and prosecution."
T h e Court added that w h i l e the S E C investigation serves
the same purpose and entails substantially similar duties
as the preliminary investigation conducted by the D O J , this
process cannot simply be disregarded. T h e 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 S E C . U n d e r the doctrine of p r i m a r y jurisdiction,
courts w i l l not d e t e r m i n e a controversy i n v o l v i n g a question
within the jurisdiction of the a d m i n i s t r a t i v e tribunal, w h e r e
the question demands the exercise of sound administrative
discretion requiring the specialized k n o w l e d g e and expertise
of said administrative tribunal to determine technical
and intricate matters of fact. T h e Court observed that the
Securities Regulation Code is a special law. Its enforcement
is particularly vested in the S E C . Hence, all complaints for
any violation of the Code and its i m p l e m e n t i n g rules and
regulations should be filed w i t h the S E C . W h e r e the complaint
is criminal in nature, the S E C shall indorse the complaint
to the D O J for preliminary investigation and prosecution as
provided in Section 53.1 earlier quoted.
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
is accomplished by initiating the preliminary investigation.
T h e prosecution of offenses punishable under the Revised
Securities A c t and the Securities Regulations Code is initi-
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
ated by the filing of a complaint w i t h the S E C or by an investigation conducted by the S E C motu proprio. Only after
a finding of probable cause is made by the S E C can the D O J
instigate a preliminary investigation. Thus, the investigation
that was commenced by the S E C , soon after it discovered the
questionable acts of the respondents, effectively interrupted
the prescription period. G i v e n the nature and purpose of the
investigation conducted by the S E C , which is equivalent to the
preliminary investigation conducted by the DOJ in criminal
cases, such investigation would surely interrupt the prescription period.
N o t e that the cases of Sanrio, Panaguiton and SEC, cited
above all involved violations of special l a w s . U n i f o r m l y 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 prosecutor. T h i s 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).
A l l 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). E v e n if there is a private prosecutor, the
criminal action is still prosecuted under the direction and
control of the public prosecutor.
2.
T h e rationale for the rule that all criminal actions
shall be prosecuted under the direction and control of a public
prosecutor is that since a criminal offense is an outrage to the
sovereignty of the State, it necessarily follows that a representative of the State shall direct and control the prosecution
CHAPTER II
PROSECUTION OF OFFENSES
(Rule 110)
69
thereof (Chua v. Padillo, G.R. No. 163797, April 24, 2007).
T h e 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 v e r y sovereignty of the
State (Baviera v. Paglinawan, G.R. No. 168380, February 8,
2007).
3. " A state prosecutor lacks authority to file an information charging violation of the Special Security A c t of 1997
( R . A . 8282) w h e r e there is neither a directive from the Secretary of Justice designating h i m as special prosecutor for SSS
cases nor the w r i t t e n approval of the Information by the city
prosecutor" (Turingan v. Garfin, G.R. No. 153284, April 17,
2007).
Appearance of a private prosecutor
1.
T h e appointment of a p r i v a t e prosecutor is done
by the offended party and is the mode by which the latter
intervenes in the prosecution of the offense. T h i s intervention
is h o w e v e r , only a l l o w e d w h e r e the civil action for the recovery
of the civil liability is instituted w i t h the criminal action
pursuant to R u l e 111 (Sec. 16, Rule 110, Rules of Court).
2.
H e n c e , the offended party m a y not intervene in the
prosecution of the offense through a private prosecutor if the
offended party ( a ) w a i v e s 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.
T h e 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.
U n d e r Sec. 1 of Rule 111 of the 2000 Rules of Criminal
Procedure, "When a criminal action is instituted, the civil
70
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
action for the recovery of civil liability arising from the offense
charged shall be deemed instituted w i t h the criminal action
unless the offended party w a i v e s the civil action, reserves the
right to institute it separately or institutes the civil action
prior to the criminal action . . ."
3.
N o t e 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 w a i v e s 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 A r t s . 32, 33,
34 and 2176 of the C i v i l Code are not d e e m e d instituted w i t h
the criminal action. T h e s e actions, according to Sec. 3 of R u l e
111 of the Rules of Court shall proceed independently of the
criminal action. Thus, the 2000 Rules of C r i m i n a l Procedure
deleted the requirement of r e s e r v i n g independent civil actions
and allowed these to proceed separately from criminal actions
because they are separate, distinct and independent of any
criminal prosecution e v e n if based on the same act which also
gave rise to the criminal action.
4.
Thus, it w a s ruled that as one of the direct consequences of the independent character of actions brought under
A r t s . 32,33, 34 and 2176 of the C i v i l Code, even if a civil action
is filed separately, "the ex delicto civil liability in the criminal
prosecution remains, and the offended party m a y — subject to
the control of the prosecutor — still intervene in the criminal
action, in order to protect the r e m a i n i n g 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. T h e 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
CHAPTER II
PROSECUTION OF OFFENSES
(Rule 110)
71
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). T h e public prosecutor m a y turn over the actual
prosecution of the criminal case to the private prosecutor, in
the exercise of his discretion, but he m a y at any time, take
over the actual conduct of the trial (People v. Tan, G.R. No.
177566, March 26, 2008).
T h e executive department of the g o v e r n m e n t is accountable for the prosecution of crimes. T h e right to prosecute vests
the prosecutor w i t h a w i d e range of discretion, the discretion
of whether, w h a t and w h o m 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.
T h e p o w e r to prosecute necessarily involves the
power to determine w h o shall be prosecuted, and the corollary
right to decide w h o m not to prosecute — evidently must
this power to prosecute also include the right to determine
under which l a w s prosecution w i l l be pursued (Romualdez v.
Commission on Elections, G.R. No. 167001, April 30, 2008).
T h e p o w e r to prosecute includes the initial discretion to
determine w h o should be utilized by the g o v e r n m e n t as a state
witness (People v. Fajardo, 512 SCRA 360, January 23, 2007).
A prosecutor has the discretion, the p r e r o g a t i v e to determine
the witnesses he is going to present (People v. Jalbuena, G.R.
No. 171163, July 4, 2007).
3.
T h e prosecution is also entitled to conduct its own
case and to decide w h a t witnesses to call to support its charges.
T h e non-presentation of a witness by the prosecution cannot
be construed as suppression of evidence w h e r e the testimony
is merely corroborative (Ritualo v. People, G.R. No. 178337,
June 25, 2009).
4.
N o t even the Supreme Court can order the prosecution of a person against w h o m the prosecutor does not find
sufficient evidence to support at least a prima facie case — the
only possible exception to the rule is w h e r e there is an unmis-
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takable showing of g r a v e 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 w e r e filed against
the petitioner before the Regional T r i a l Court ( R T C ) of P a s i g
City.
One information pertains to allegations that petitioner
employed manipulative devises in the purchase of Best W o r l d
Resources Corporation ( B W ) shares. T h e other informations
involve the alleged failure of petitioner to file w i t h the Securities
and Exchange Commission ( S E C ) a sworn statement of his
beneficial ownership o f B W shares.
Petitioner w a s arraigned and pleaded not guilty to the
charges.
Subsequently, the trial court ruled that the delays which
attended the proceedings of one of the petitioner's cases w e r e
vexatious, capricious and oppressive, resulting in violation of
the petitioner's right to speedy trial and hence, ordered its
dismissal. T h e dismissal w a s later on reversed by the Court of
Appeals and reinstated the case previously dismissed.
Petitioner m o v e d for a reconsideration of the decision of
the Court of A p p e a l s and filed a motion for inhibition of the
Justices w h o decided the case but both motions w e r e denied.
T h e petitioner hence, filed a petition for r e v i e w on certiorari, raising among others that the certificate of non-forum
shopping attached to the People's petition for certiorari before
the Court of A p p e a l s should h a v e been signed by the Chairman of the S E C as complainant in the cases instead of A c t i n g
D O J Secretary Merceditas N . Gutierrez.
T h e Court found the petitioner's argument futile holding that the Court of A p p e a l s w a s correct in sustaining the
authority of A c t i n g D O J Secretary Merceditas Gutierrez to
sign the certification. T h e Court w e n t on to say that it must
be stressed that the certification against forum shopping is
required to be executed by the plaintiff. A l t h o u g h the complaint-affidavit w a s signed by the Prosecution and Enforcement Department of the S E C , the petition before the Court
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of Appeals originated from Criminal Case N o . 119830, where
the plaintiff or the party instituting the case w a s 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. M o r e o v e r , pursuant to
Section 3, paragraph ( 2 ) of the Revised A d m i n i s t r a t i v e Code,
the D O J is the executive a r m of the g o v e r n m e n t mandated
to investigate the commission of crimes, prosecute offenders
and administer the probation and correction system. It is the
D O J , through its prosecutors, which is authorized to prosecute
criminal cases on behalf of the P e o p l e of the Philippines. Prosecutors control and direct the prosecution of criminal offenses,
including the conduct of preliminary investigation, subject to
r e v i e w by the Secretary of Justice. Since it is the D O J which is
the g o v e r n m e n t agency tasked to prosecute criminal cases before the trial court, the D O J is best suited to attest whether a
similar or related case has been filed or is pending in another
court o f tribunal. A c t i n g D O J Secretary Merceditas N . Gutierrez, being the head of the D O J , therefore, had the authority
to sign the certificate of non-forum shopping for the criminal
case which w a s filed on behalf of the P e o p l e 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 w a s left alone after either the death
or acquittal or the failure to charge his co-conspirators. T h e
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 w h o should be accused
w e r e not charged.
T h e Court considered the argument erroneous. A conspiracy is in its nature a j o i n t offense. One person cannot
conspire alone. T h e crime depends upon the joint act or intent
of two or more person. Y e t , 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 r e m o v e the basis of a
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charge of conspiracy, one defendant m a y be found guilty of
the offense.
T h e Court also held that the accused w a s not unfairly
discriminated against and his constitutional right to equal
protection violated. T h e 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 i r r e l e v a n t to the case against the
accused. A discriminatory purpose is n e v e r presumed. It
must be remembered that it w a s not solely respondent w h o
was charged, but also five others. Further, the fact that the
dismissal of the case against his co-accused w a s not appealed
is not sufficient to cry discrimination. T h i s is likewise true
for the non-inclusion of the t w o persons. M e r e 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 l a w s (People v.
Dumlao, G.R. No. 168918, March 2, 2009).
7. A n o t h e r 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 State Prosecutor Pinote v. Judge
Ayco, A.M. No-RTJ-05-1944, December 13, 2005, the trial
judge allowed the defense to present evidence consisting of
the testimony of t w o witnesses, e v e n in the absence of the
prosecutor charged w i t h prosecuting the case. T h e prosecutor
at the time w a s undergoing medical treatment at the
Philippine H e a r t Center in Quezon C i t y .
Maintaining that the proceedings conducted in his absence w e r e void, the prosecutor, on the subsequent hearings of
the case, refused to cross-examine the t w o defense witnesses,
despite being ordered by the j u d g e . A f t e r 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 j u d g e 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
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75
cross-examine those t w o defense witnesses and that their testimonies be stricken off the record. T h e judge, nevertheless
considered the prosecution to h a v e w a i v e d its right to crossexamine the t w o defense witnesses. An administrative complaint was then lodged by the prosecutor against the j u d g e
for "gross ignorance of the l a w , g r a v e abuse of authority and
serious misconduct."
On evaluation of the case, the Office of the Court A d m i nistrator ( O C A ) , citing Section 5, Rule 110 of the Revised
Rule on Criminal Procedure, found respondent j u d g e to have
breached said rule and accordingly recommended that he be
reprimanded, w i t h a w a r n i n g that a repetition of the same or
similar act shall be dealt w i t h more severely.
A d o p t i n g the findings of the Office of the Court A d m i nistrator, the Court ruled that a violation of criminal l a w s
is an affront to the P e o p l e of the Philippines as a whole and
not m e r e l y to the person directly prejudiced, he being m e r e l y
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 v i t a l state interests, foremost of
which is its interest to vindicate the rule of l a w , the bedrock
of peace of the people. T h e act of a l l o w i n g the presentation of
the defense witnesses in the absence of complainant public
prosecutor or a p r i v a t e prosecutor designated for the purpose
is a clear transgression of the Rules which could not be
rectified by subsequently g i v i n g the prosecution a chance to
cross-examine the witnesses.
A d d e d 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 T r i a l Court or in a
Municipal Circuit T r i a l Court shall also be prosecuted under
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the direction and control of the prosecutor (Sec. 5, Rule 110,
Rules of Court). H o w e v e r , 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 l a w violated (OCA Circular No. 392002, August 21, 2002).
Prosecution for violation of special laws
W h e r e the offense is a violation of a special law, the same
shall be prosecuted pursuant to the provisions of said l a w
(Sec. 5, Rule 110, Rules of Court).
III. INTERVENTION OF THE OFFENDED PARTY IN THE
PROSECUTION OF THE CRIMINAL ACTION
Intervention of the offended party
1.
A fundamental principle in criminal l a w is the rule
that "Every person criminally liable for a felony is also criminally liable" (Article 100, Revised Penal Code). T h u s , generally, a person convicted of a crime is both criminally and civilly
liable.
2.
T h e civil liability for a crime includes restitution,
reparation of the d a m a g e 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 t h a t " x x x W h e r e the civil action for recovery of
civil liability is instituted in the criminal action pursuant to
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77
Rule 111, the offended party m a y intervene by counsel in the
prosecution of the offense."
4.
By virtue of Sec. 16 of R u l e 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 w i t h the criminal action. If the civil liability has
been w a i v e d , 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. T h e presence of a p r i v a t e prosecutor in the
criminal action m a y be objected to by the prosecution.
5.
T h e r e are h o w e v e r , cases w h e r e the criminal action
also g i v e s rise to an independent civil action as in crimes inv o l v i n g physical injuries, fraud or defamation or w h e n the act
constituting a crime also constitutes a quasi-delict. T h e s e situations g i v e rise to distinct civil liabilities to wit: T h e one arising from the offense charged under A r t i c l e 100 of the R e v i s e d
Penal Code and the civil liability constituting a quasi-delict
or an independent civil action. W o r t h y of note is the principle
that these 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 quasidelict 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 R e v i s e d P e n a l Code, i.e., the civil liability
arising from the offense charged which would be the basis
for the intervention. T h i s 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). A l s o , 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
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not arise from the felony or crime, and have distinct sources
from the law or the Civil Code. T h e y 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 m a y prosecute the criminal
action up to the end of the trial e v e n in the absence of the
public prosecutor if he is authorized to do so in w r i t i n g . T h i s
written authorization shall be g i v e n by either the C h i e f of
the Prosecution Office or the R e g i o n a l State Prosecutor. T h e
written authorization in order to be g i v e n effect must h o w e v e r ,
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.
T h e w r i t t e n authorization to the p r i v a t e prosecutor
shall be g i v e n because of either of the following reasons: ( a )
the public prosecutor has a h e a v y w o r k load or, ( b ) there is
a lack of public prosecutors (Sec. 5, Rule 110, Rules of Court;
A.M. No. 02-2-07-SC, April 10, 2002 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 e v e n in the absence of a public prosecutor,
unless the authority is revoked or otherwise w i t h d r a w n (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" OR THOSE
WHICH CANNOT BE PROSECUTED "DE OFFICIO"
Prosecution of adultery and concubinage
1.
T h e crimes of adultery and concubinage shall not
be prosecuted except upon a complaint filed by the offended
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79
spouse (Sec. 5, Rule 110, Rules of Court). T h e rule is clear: T h e
prosecutor cannot prosecute the case w h e r e no complaint is
filed by the offended spouse.
T h e 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 t h e m is no longer alive (Sec.
5, Rule 110, Rules of Court).
2.
T h e offense of adultery and concubinage m a y not be
instituted if it is shown that the offended party has consented
to the offense or has pardoned the offenders (Sec. 5, Rule
110, Rules of Court). Since the rule does not distinguish, the
consent or pardon m a y be either expressed or implied.
Prosecution of seduction, abduction and acts of lasciviousness
1.
T h e offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted except upon a complaint
filed by the offended p a r t y or h e r parents, grandparents or
guardian, nor, in any case, if the offender has been expressly
pardoned by t h e m (Sec. 5, Rule 110, Rules of Court). N o t e that
the pardon must be expressly m a d e . It is clear that an implied
pardon is not contemplated under this provision.
2.
T h e right to file the action g r a n t e d to parents, grandparents, or guardians shall be exclusive of all other persons
and shall be successively in the order mentioned (Sec. 5, Rule
110, Rules of Court).
H o w e v e r , 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 w h o m a y file the complaint, the State
is the last and can only do so in the absence of the persons
mentioned in Sec. 5 of Rule 110.
3.
A l s o , 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
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80
guardian except if she is incompetent or incapable of doing so
(Sec. 5, Rule 110, Rules of Court).
W h e r e the minor fails to initiate the prosecution of the
offense, the complaint m a y be filed by the minor's parents,
grandparents or guardian in the successive order mentioned
(Sec. 5, Rule 110, Rules of Court).
Effect of R.A. 7610 (Special Protection of Children Against
Child Abuse, Exploitation and Discrimination Act)
U n d e r Sec. 27 of R . A . 7610, complaints on cases of unlawful
acts mentioned in the l a w committed against children, m a y be
filed by the following:
( a ) offended party;
( b ) parents or guardians;
(c)
ascendant or collateral r e l a t i v e w i t h i n the third
degree of consanguinity;
( d ) officer, social w o r k e r or representative of a licensed
child-caring institution;
( e ) officer or social w o r k e r of the D e p a r t m e n t of Social
W e l f a r e and Development;
(f)
barangay chairman; or
( g ) at least three ( 3 ) concerned, responsible citizens
w h e r e the violation occurred.
Prosecution of defamation
1.
T h e 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.
T h e criminal action for defamation under the rule
shall be at the instance of and upon the complaint of the
offended party (Sec. 5, Rule 110, Rules of Court). This rule
clearly provides that only the offended party can initiate the
criminal action.
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81
V. THE COMPLAINT AND INFORMATION
Meaning of 'complaint'
1.
A complaint is a sworn w r i t t e n statement charging a
person with an offense, subscribed by the offended party, any
peace officer, or other public officer, charged w i t h the enforcement of the l a w violated (Sec. 3, Rule 110, Rules of Court).
2.
A complaint is not a m e r e statement. It is a statement
charging a person w i t h 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 w i t h the enforcement of the l a w violated.
In whose name and against whom filed
1.
T h e 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 i n v o l v e d (Sec. 2, Rule 110,
Rules of Court).
2.
P r i v a t e offended parties h a v e limited roles in criminal cases. T h e y are only witnesses for the prosecution.
Thus, a private offended party m a y not appeal the dismissal
of a criminal case or the acquittal of an accused because the
aggrieved party is the P e o p l e of the Philippines. H o w e v e r ,
the offended party m a y 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 o w n personal capacity.
T h e dismissal made by the R T C of the criminal case can
only be appealed by the O S G . T h e private offended party has
no legal personality to do so. H e r e , the Supreme Court applied
the general rule under Sec. 35(1), Chapter 12, T i t l e I I I , Book
rV of the A d m i n i s t r a t i v e Code of 1987 which provided that
only the O S G can bring and/or defend actions on behalf of
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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).
Meaning of 'information' (Bar 1994,1995,1996)
1. An information is an accusation in w r i t i n g charging
a person w i t h 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.
W h i l e an information is an accusation in writing, it
is not required to be "sworn" unlike a complaint. O n l y a public
officer described by the Rules of Court as a "prosecutor" is
authorized to subscribe to the information (Sec. 4, Rule, 110,
Rules of Court).
3.
L i k e a complaint, an information is filed in the n a m e
of the People of the Philippines against all persons w h o appear
to be responsible for the offense i n v o l v e d (Sec. 2, Rule 110,
Rules of Court).
Distinctions between a complaint and an information (Bar
1999)
1. A complaint must be under oath. By the clear terms
of Sec. 3 of Rule 110, it is a "sworn w r i t t e n statement."
An information requires no oath. Sec. 4 of R u l e 110 m e r e l y
requires that it be an accusation "in writing." T h i s 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 l a w 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 in signature in the information
It is a valid information signed by a competent officer
which, among other requisites, confers jurisdiction on the
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83
court over the person of the accused and the subject matter of
the accusation. In consonance w i t h this v i e w , an infirmity in
the information, such as lack of authority of the officer signing
it, cannot be cured by silence, acquiescence, or e v e n by express
consent (Cudia v. Court of Appeals, 284 SCRA 173).
Sufficiency of the complaint information (Bar 1994; 2001)
1.
A complaint or an information is deemed sufficient if
it contains the following:
( a ) T h e name of the accused; if the offense is committed by m o r e than one person, all of t h e m shall be included in the complaint or information;
( b ) T h e designation of the offense g i v e n by statute;
( c ) T h e acts or omissions complained of as constituting the offense;
( d ) T h e n a m e o f the offended party;
( e ) T h e approximate date of the commission of the
offense; and
(f)
T h e place w h e r e the offense w a s 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 w h e r e 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. 17237, December 4, 2009).
Test for sufficiency of the complaint or information
1.
T h e test is whether the crime is described in intelligible terms w i t h such particularity as to apprise the accused,
w i t h reasonable certainty, of the offense charged (Lazarte, Jr.
v. Sandiganbayan, G.R. No. 180122, March 13, 2009) because
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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
T h e sufficiency of an information m a y be assailed but the
right to question the sufficiency of the same is not absolute. An
accused is deemed to h a v e w a i v e d this r i g h t if he fails to object
upon his arraignment or during trial. In either case, evidence
presented during trial can cure the defect in the information.
An accused is deemed to have w a i v e d his right to assail the
sufficiency of the information w h e n 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 m a d e for the first t i m e on appeal. T h e
accused-appellant should h a v e m o v e d before arraignment
either for a bill of particulars or for the quashal of the information. H a v i n g failed to pursue either remedy, he is deemed
to have w a i v e d 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 w h e n the date of
commission is a material element of the offense. T h e 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
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85
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 w h e n the rape occurred does not ipso facto make
the information defective on its face. T h e reason is obvious.
T h e date or time of the commission of rape is not a material
ingredient of the said crime because the gravamen of rape is
carnal k n o w l e d g e of a w o m a n through force and intimidation.
T h e precise t i m e w h e n the rape took place has no substantial
bearing on its commission. As such, the date or time need not
be stated w i t h absolute accuracy (People v. Cinco, G.R. No.
186460, December 4, 2009).
Determination of the nature and character of the crime
1.
T h e character of the crime is determined neither
by the caption or p r e a m b l e of the information nor by the
specification of the provision of l a w alleged to h a v e been
violated, they being conclusions of l a w , but by the recital
of the ultimate facts and circumstances in the information.
Consequently, e v e n if the designation of the crime in the
information w a s defective, w h a t 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 l a w or part thereof allegedly violated, these being,
by and large, mere conclusions of l a w m a d e 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).
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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 ) T h e 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 n a m e must be accompanied by a
statement that his true n a m e is unknown.
( c ) If later his true n a m e is disclosed by h i m or becomes known in some other manner, his true n a m e shall
be inserted in the complaint or information and in the
records of the case.
2.
A mistake in the n a m e of the accused is not equivalent, and does not necessarily amount to, a mistake in the
identity of the accused especially w h e n 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).
How to state the name of the offended party who is a natural
person
T h e complaint or information must state the n a m e and
surname of the offended party or any appellation or nickname
by which such person has been or is known. H o w e v e r , if there
is no better w a y of identifying him, he must be described under
a fictitious name. If later on, the true n a m e 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
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averring that it is a juridical person or that it is organized in
accordance w i t h l a w (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 n a m e of the offended
party is unknown, the property must be described w i t h such
particularity as to properly identify the offense charged (Sec.
12[a], Rule 110, Rules of Court). In Sayson v. People, G.R. No.
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 d e t e r m i n e the nature of the offense, not the
technical n a m e g i v e n by the public prosecutor in the preamble
of the Information. F r o m a legal point of v i e w , and in a v e r y
real sense, it is of no concern to the accused w h a t is the
technical n a m e of the crime of which he stands charged. It in
no w a y aids him in a defense on the merits. T h a t to which his
attention should be directed, and in which he, above all things
else, should be most interested, are the facts alleged. T h e
real question is not did he commit a crime g i v e n in the law
some technical and specific n a m e , 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).
T h e specific acts of the accused do not h a v e to be described in detail in the information as it is enough that the
offense be described w i t h sufficient particularity to make
sure the accused fully understands w h a t he is being charged
with. T h e particularity must be such that a person of ordinary
intelligence i m m e d i a t e l y knows w h a t the charge is. Moreover,
reasonable certainty in the statement of the crime suffices
(Guy v. People, G.R. Nos. 167088-90, March 20, 2009).
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
2.
In designating the offense, the following rules must
be observed:
( a ) T h e designation of the offense requires, as a
rule, that the name g i v e n 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
subsection punishing it (Sec. 8, Rule 110, Rules of Court).
( b ) To be included in the complete designation of
the offense is an a v e r m e n t of the acts or omissions constituting the offense (Sec. 8, Rule 110, Rules of Court).
( c ) T h e complaint or information must specify the
qualifying and a g g r a v a t i n g circumstances of the offense
(Sec. 8, Rule 110, Rules of Court).
Effect of failure to designate the offense by the statute or
failure to mention the provision violated
1. T h e failure to designate the offense by the statute
or to mention the specific provision penalizing the act or an
erroneous specification of the l a w 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). T h e r e is no l a w which requires that in
order that an accused m a y 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 w i t h
homicide as defined and penalized under A r t i c l e 249 of the
Revised P e n a l Code. T h e accused argues that the specification
in the information of the l a w violated is necessary to enable
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.
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T h e Court ruled that the fact that the information does
not specifically mention A r t i c l e 249 of the Revised Penal Code
as the law which defines and penalizes homicide, does not
make the information defective. T h e r e is nothing in the Rules
of Court which specifically requires that the information must
state the particular l a w under which the accused is charged in
order for it to be considered sufficient and valid. Although the
information does not specifically mention A r t i c l e 249 of the
Revised P e n a l Code, it nonetheless narrates that the accused
stabbed the victim w i t h a bladed weapon during the incident
which caused the latter's death. T h e allegations, according
to the Court, unmistakably refer to homicide which is the
unlawful killing of any person other than murder, homicide
or infanticide.
T h e Court l i k e w i s e 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.
T h e 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 l a w
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
T h e failure to specify the correct crime committed will
not bar conviction of an accused. T h e 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. T h e 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).
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
Statement of the qualifying and aggravating circumstances
(Bar 2001)
1.
E v e r y 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;
Sec. 8, Sec. 9, Rule 110, Rules of Court).
T h e rationale for the requirement w a s elucidated in a
much earlier case. In People v. Mendoza, G.R. Nos. 132923-24,
June 6, 2002, the accused w a s found guilty by the trial court
of two counts of rape, each qualified by the use of a deadly
weapon. T h e informations h o w e v e r , did not allege that the
rapes w e r e committed w i t h the use of a deadly weapon. T h e
Court was emphatic w h e n 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. N o t h a v i n g been alleged
and having been charged w i t h simple rape only, the accused
cannot be convicted of qualified rape. He cannot be held liable
for an offense g r a v e r than that for which he w a s indicted. It
would be a denial of the r i g h t of the accused to be informed
of the charges against him, and consequently, a denial of due
process, if he is charged w i t h simple rape, on which he w a s
arraigned, and be convicted of qualified rape punishable by
death.
2.
U n d e r the n e w rules, the information or complaint
must state the designation of the offense g i v e n by the statute and
specify its qualifying and generic a g g r a v a t i n g circumstances.
Otherwise stated, the accused w i l l not be convicted of the
offense proved during the trial if it was not properly alleged
in the information. In one information for arson, there was no
allegation that the house intentionally burned by petitioners
and their cohorts w a s inhabited. Rather, the information
merely recited that "accused, conspiring, confederating and
helping one another, w i t h 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." U n d e r the 2000 Rules
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of Criminal Procedure, the information or complaint must
state the designation of the offense g i v e n by the statute and
specify its qualifying and generic aggravating circumstances,
otherwise stated, the accused w i l l not be convicted of the
offense proved during the trial if it w a s not properly alleged in
the information Hence, he can only be liable for simple arson
and not arson of an inhabited d w e l l i n g which carries a higher
penalty (Buebos v. People, G.R. No. 163938, March 28, 2008).
Prior to the effectivity of the R e v i s e d Rules of Criminal
Procedure, courts generally a w a r d e d e x e m p l a r y damages in
criminal cases w h e n an a g g r a v a t i n g circumstance, whether
ordinary or qualifying, had been proven to have attended the
commission of the crime, even if the same w a s not alleged
in the information. H o w e v e r w i t h 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 a w a r d of damages. Thus, even if
an a g g r a v a t i n g circumstance had been proven, but was not
alleged, courts w i l l not a w a r d e x e m p l a r y damages. A l s o , even
if the guilt of the accused w a s proven beyond reasonable doubt,
the accused cannot be convicted of qualified rape but only w i t h
simple rape because the special qualifying circumstances of
minority and relationship w e r e not sufficiently alleged in the
information (People v. Dalisay, G.R. No. 18806, November 25,
2009; People v. Alfredo, G.R. No. 188560, December 15, 2010).
3.
T h e qualifying circumstances need not be preceded
by descriptive words such as "qualifying" or "qualified by"
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
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
constituting conspiracy that will make them liable for the acts
of their co-accused.
T h e 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. T h e
Court however found that w h i l e a perusal of the information
readily shows that the words "conspiracy," "conspired" or
"in conspiracy w i t h " does not appear in the information,
this however, does not necessarily mean that the absence of
these words would signify that conspiracy w a s not alleged
in the information. A f t e r carefully reading the information,
the Court concluded that indeed conspiracy w a s properly
alleged in the information. T h e accusatory portion reads in
part: "all the above-named accused, w i t h evident intent to
defraud the g o v e r n m e n t of l e g i t i m a t e 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 w i t h a domestic m a r k e t value of P20,000,000.00
contained in container v a n N o . T T N U 9 2 0 1 2 4 1 , but which
w e r e declared in F o r m a l E n t r y and R e v e n u e Declaration
N o . 118302 as assorted men's and ladies' accessories x x x."
T h e Court ruled that " W e 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 w e r e charged
because they assisted in and facilitated the release of the
subject cargo without the p a y m e n t of the proper duties and
taxes due the g o v e r n m e n t by omitting certain acts in 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 w a s made by the Court in
a more recent case. In People v. Ubina, G.R. No. 176349, July
10, 2007, the Court declared that the t w i n circumstances of
minority and relationship under A r t i c l e 335 of the Revised
Penal Code, as amended by R . A . N o . 7659, are in the nature of
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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. " I f the offender is merely a
relation — not a parent, ascendant, step-parent, guardian, or
common l a w spouse of the mother of the v i c t i m — the specific
relationship must be alleged in the information, i.e., that he
is "a relative by consanguinity or affinity [as the case m a y b e ]
within the third civil degree."
T h e Court found that the information in Ubina only
mentioned accused/appellant as the victim's uncle, without
specifically stating that he is a r e l a t i v e w i t h i n the third civil
degree, either by affinity or consanguinity. E v e n granting that
during trial it w a s proved that the relationship w a s w i t h i n the
third civil d e g r e e either of consanguinity or affinity, still such
proof cannot be appreciated because appellant w o u l d thereby
be denied of his right to be informed of the nature and cause
of the accusation against h i m . A p p e l l a n t cannot be charged
w i t h committing the c r i m e of rape in its simple form and then
be tried and convicted of rape in its qualified form. Thus,
the Court of A p p e a l s correctly disregarded the qualifying
circumstance of relationship.
Cause of accusation
1.
T h e 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 w a i v e d . No matter how conclusive and
convincing the evidence of guilt m a y 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 w h i l e he is concentrating
his defense against the ground alleged would plainly be unfair
and underhanded. T h e 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).
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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 h a v e 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
(c)
the qualifying and a g g r a v a t i n g circumstances.
W h a t 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 l a w alleged to h a v e been violated they being
conclusions of l a w (Nombrefia v. People, G.R. No. 157919,
January 30, 2007).
3.
T h e acts or omissions complained of must be alleged
in such form as is sufficient to enable a person of common
understanding to k n o w w h a t offense is intended to be
charged and enable the court to k n o w the proper j u d g m e n t .
T h e information must allege clearly and accurately the
elements of the crime charged. W h a t facts and circumstances
are necessary to be included therein must be determined by
reference to the definition and elements of the specific crimes.
T h e 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 h i m so as to enable him to
suitably prepare for his defense. A n o t h e r purpose is to enable
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.
T h e accused w i l l not be convicted of the offense
proved during the trial if it w a s not properly alleged in the
information. If the information charges a violation of a l a w (Sec.
3, Par. 2 of P.D. No. 1613) that requires an intentional burning
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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 l a w because of an
insufficiency in the allegations of the information. T h e failure
to m a k e the required allegations is fatal to a charge of arson
under the applicable l a w (Buebos v. People, G.R. No. 163938,
March 28, 2008).
5.
In another case, the victim w a s raped by the accused
while she w a s under the custody of l a w enforcement authorities who w e r e m e m b e r s of the P N P - C I D G at the t i m e of the
rape. U n d e r A r t i c l e 266-B of the R e v i s e d P e n a l Code, the
penalty for rape committed through force and intimidation is
reclusion perpetua. T h e same provision also states that the
death penalty shall be imposed if the v i c t i m w a s raped w h i l e
under the custody of the police authorities, or w h e n the rape
is committed by any m e m b e r of the Philippine N a t i o n a l P o lice ( P N P ) o r any l a w enforcement agency. T h i s circumstance
w a s not however, specifically alleged in the information. T h e
Court held that it cannot therefore, be appreciated e v e n if
subsequently proved during the trial. T h e R T C , ruled the
Court, w a s correct in imposing only reclusion perpetua (People
v. Aure, G.R. No. 180451, October 17, 2008).
6.
B o t h 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 w i t h i n 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 A r t i c l e 266-B of
the Revised Penal Code.
In the case at bar, although the victim's minority was
alleged and established, her relationship w i t h the accused
as the latter's daughter was not properly alleged in the
information, and even though this w a s 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. U n d e r the 2000 Rules of Criminal
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Procedure, which should be given retroactive effect following
the rule that statutes g o v e r n i n g court proceedings w i l l be
construed as applicable to actions pending and undetermined
at the t i m e of their passage, e v e r y information must state
the qualifying and the a g g r a v a t i n g circumstances attending
the commission of the crime for t h e m 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 m a y 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).
Similarly, in People v. Mejia, G.R. No. 185723, August 4,
2009, the qualifying circumstance of m i n o r i t y which w a s not
alleged in the information w a s 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, w a s
not alleged in the information. As regards relationship, the
same was alleged and proved. Pursuant, h o w e v e r , to A r t i c l e
266-B of the R e v i s e d P e n a l Code, in order to fall within
subparagraph 1 of said provision, both circumstances of
minority and relationship must be alleged in the information.
T h e t w i n circumstances of m i n o r i t y of the v i c t i m and her
relationship to the offender must concur to qualify the crime
of rape. In the instant case, only relationship w a s duly alleged
and proved.
T h e 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,
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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."
7.
In People v. Begino, G.R. No. 181246, March 20,
2009, w h e r e the qualifying circumstances of relationship w a s
not properly pleaded, the accused w a s not convicted of rape in
the qualified form. T h e failure to so a l l e g e such relationship
means that the accused w a s not properly informed of the nature
and cause of the accusation against h i m . T h e main purpose of
this requirement is to enable the accused to properly prepare
for his defense and he is presumed to h a v e no independent
k n o w l e d g e of the facts that constitute the offense.
8.
In another case, the information charging the
petitioners w i t h violation of R . A . N o . 6539, as amended, did
not allege that the carnapping w a s committed by means of
violence against, or intimidation of, any person, or force upon
things. T h e Court emphasized that w h i l e these circumstances
w e r e proven at the trial, they cannot be appreciated because
they w e r e not alleged in the information. Thus, the lower
courts erred w h e n they took these circumstances into account
in imposing the penalty which they pegged at seventeen ( 1 7 )
years and four ( 4 ) months to thirty ( 3 0 ) 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 ( 1 7 ) years and four ( 4 ) months (Andres v. People,
185860, June 5, 2009).
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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 m a y be alleged to have been
committed on a date as near as possible to the actual date of
its commission.
2.
T h e same rule provides by w a y 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. 5, Rule
110, Rules of Court; People v. Nazareno, G.R. No. 167756,
April 9, 2008; People v. Cinco, G.R. No. 186460, December 4,
2009).
3.
Sec. 6 of R u l e 110 of the R e v i s e d Rules of Court
provides that an allegation of the approximate date of the
commission of the offense w i l l suffice, w h i l e Sec. 11 of the same
Rule provides that it is not necessary to state in the complaint
or information the precise date the offense w a s committed
except when it is a material ingredient of the crime (People v.
Estrada, G.R. Nos. 164368-69, April 2, 2009).
Duplicity of the offense (Bar 2005)
1.
T h e general rule is that a complaint or an information must charge only one offense. M o r e than one offense m a y
however, be charged w h e n the l a w prescribes a single punishment for various offenses (Sec. 13, Rule 110, Rules of Court).
2.
An objection must be t i m e l y interposed w h e n e v e r a
complaint or information charges m o r e than one offense.
Failure of the accused to interpose an objection on the
ground of duplicity of the offenses charged in ten formation
constitutes w a i v e r (People v. Tabio, G.R. No. 179477, February
6, 2008).
W h e n 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).
CHAPTERn
PROSECUTION OF OFFENSES
(Rule 110)
99
3.
T h e r e should also be no problem in convicting an
accused of t w o or more crimes erroneously charged in one
information or complaint, but later proven to be independent
crimes, as if they w e r e 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 m o v e for the
quashal of the information, which appeared to charge more
than one offense. T h e y have thereby w a i v e d any objection
thereto, and m a y thus be found guilty of as m a n y offenses as
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 ) w h e r e
the offense w a s committed, or ( b ) w h e r e any of its essential
ingredients occurred. T h i s rule is h o w e v e r , subject to existing
laws (Sec. 15[a], Rule 110, Rules of Court).
2.
In cases of w r i t t e n defamation, w h e t h e r the offended
party is a public official or a p r i v a t e individual, the criminal
action m a y be filed in the Court of First Instance ( n o w R T C )
of the province or city w h e r e the libelous article is printed and
first published. T h e r e are h o w e v e r , additional venues. If the
offended party is a p r i v a t e individual, the action m a y also be
f i l e d i n the C F I ( n o w R T C ) o f the province w h e r e h e actually
resided at the t i m e of the commission of the offense. If the
offended party is a public officer holding office in M a n i l a at
the time of the commission of the offense, the action may be
filed in the C F I ( n o w R T C ) of M a n i l a . If the public officer holds
office outside M a n i l a , the action m a y be filed in the C F I (now
R T C ) of the province or city w h e r e 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 w a s printed or first published,
then the information must so state that the libelous material
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was either printed or first published in the place of the filing of
the information. M e r e l y alleging that the paper or magazine
is of general circulation in the place w h e r e the action is
instituted does not confer territorial jurisdiction upon the
court. A conviction under this kind of information should be
set aside for w a n t of jurisdiction.
3. In one case, an information for w r i t t e n defamation
was filed in Iloilo City but the information merely alleged
that the newspaper w h e r e the alleged defamatory article
appeared had "considerable circulation in the C i t y of Iloilo and
throughout the region." T h e Court ruled that the allegations
did not establish that the said publication w a s printed or
first published (Foz, Jr. v. People, G.R. No. 167764, October
9, 2009).
Similarly, in another case, the information filed in M a n i l a
merely alleged that the defamatory article w a s published in
"Smart File," a m a g a z i n e of g e n e r a l circulation in M a n i l a . A
perusal of the information, explained the Court, show that the
allegations did not establish the printing of the m a g a z i n e in
Manila w h e r e the criminal action w a s instituted (Chavez v.
Court of Appeals, 514 SCRA 279).
A l s o , an information w h i c h m e r e l y alleged that the libelous article "was published in the P h i l i p p i n e D a i l y Inquirer,"
a newspaper of general circulation in B a g u i o City, did not
sufficiently show Baguio C i t y 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
W h e r e 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. N o t e 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).
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PROSECUTION OF OFFENSES
(Rule 110)
101
Rule where offense is committed on board a vessel
W h e r e 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 ) the municipality or territory where
the vessel passed during its v o y a g e . T h i s rule applies when
the offense is committed during the v o y a g e of the vessel and
is subject to the generally accepted principles of international
law (Sec. 15[c], Rule 110, Rules of Court).
Rule when the offense is covered by Art. 2 of the Revised
Penal Code
Crimes committed outside the Philippines but punishable
under A r t . 2 of the R e v i s e d P e n a l Code shall be cognizable by
the court w h e r e 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
T h e 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 w a s committed
or some of its essential ingredients occurred at some place
within the jurisdiction of the court (Sec. 10, Rule 110, Rules
of Court). W h e r e the particular place w h e r e the offense w a s
committed is h o w e v e r , an essential ingredient of the offense
or is necessary for its identification, the description of the
place of commission of the offense must be specific (Sec. 10,
Rule 110, Rules of Court).
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 m a d e before the accused enters his
plea, the complaint or information m a y be amended in form or
in substance, without the need for leave of court (Sec. 14, Rule
110, Rules of Court).
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When leave of court is required even if the amendment is
made before plea
1.
L e a v e of court is required even if m a d e before plea if:
( a ) the amendment downgrades the nature of the
offense charged, or
( b ) the a m e n d m e n t excludes any accused from the
complaint or information (Sec. 14, Rule 110, Rules of
Court).
2.
A s i d e from l e a v e of court, the above amendments,
require a motion by the prosecutor, w i t h notice to the offended
party (Sec. 14, Rule 110, Rules of Court).
3.
T h e 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 a m e n d m e n t is m a d e after the plea of the
accused and during the trial, any formal a m e n d m e n t m a y only
be made under t w o conditions, namely: ( a ) l e a v e of court must
be secured; and ( b ) the a m e n d m e n t 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 a m e n d m e n t in substance is, as a rule, clearly not
allowed at this stage. It is submitted h o w e v e r , that for reasons
of public policy and in the light of the constitutional policy of
interpreting rules in favor of the accused, it is submitted that
the rule prohibiting substantial amendments after the plea
should not apply w h e n the a m e n d m e n t is advantageous to the
accused. Judicial discretion in this respect should come into
play.
2.
Confirming the above v i e w , the Court held that
before the accused enters his plea, a formal or substantial
CHAPTER II
PROSECUTION OF OFFENSES
(Rule 110)
103
amendment of the complaint or information m a y be made
without leave of court—after the entry of plea, only a formal
amendment m a y be m a d e but w i t h leave of court and if it does
not prejudice the rights of the accused. A f t e r 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).
When an amendment is formal or substantial (Bar 1997)
1. Jurisprudence suggests that a substantial amendment consists of the recital of facts constituting a change in
the offense charged to the prejudice of a party because another set of evidence is required to suit the n e w charge or because it deprives an accused the opportunity to m e e t the n e w
offense. A l l other matters are m e r e l y of form.
Thus, it has been held that the test as to w h e t h e r a defendant is prejudiced by the a m e n d m e n t is w h e t h e r a defense
under the information as it o r i g i n a l l y stood would be available
after the a m e n d m e n t is m a d e , and w h e t h e r any evidence
defendant m i g h t h a v e 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 nature of the
crime alleged therein does not affect the essence of the offense
or cause surprise or d e p r i v e the accused of an opportunity
to meet the n e w a v e r m e n t had each been held to be one of
form and not of substance. T h u s , 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. M o r e 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 h a v e been held to
be mere formal amendments: ( 1 ) n e w 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
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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 w i l l
assume; ( 4 ) an a m e n d m e n t 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 n e w and material facts, and
merely states w i t h 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.
O n e case which illustrates the distinction b e t w e e n a
formal and substantial a m e n d m e n t particularly w e l l is Pacoy
v. Judge Afable Cajigal, G.R. No. 157472, September 28, 2007.
H e r e , upon arraignment, the accused, duly assisted by counsel
de parte, pleaded not g u i l t y to the charge of homicide. H o w e v e r ,
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 v i e w of the
aggravating circumstance of disregard of rank alleged in the
information which the j u d g e considered as h a v i n g qualified
the crime to murder.
A c t i n g upon such order, the prosecutor entered his
amendment by crossing out the w o r d " H o m i c i d e " and instead
wrote the w o r d "Murder" in the caption and in the opening
paragraph of the information. T h e 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 h i m a plea of not guilty.
CHAPTER II
PROSECUTION OF OFFENSES
(Rule 110)
105
One of the issues sought to be resolved in the Supreme
Court w a s whether or not the amendment from homicide to
murder is a substantial one. In resolving the issue the Court
ruled the change of the offense charged from homicide to
murder is m e r e l y a formal amendment and not a substantial
amendment or a substitution.
T h e Court ratiocinated hat w h i l e the amended information
w a s for murder, a reading of the information shows that the
only change made w a s in the caption of the case; and in the
opening paragraph or preamble of the Information, w i t h the
crossing out of word "Homicide" and its replacement by the
word "Murder." T h e r e w a s no change in the recital of facts
constituting the offense charged or in the determination of
the jurisdiction of the court. T h e a v e r m e n t s 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 a m e n d m e n t m a d e in the caption and
preamble from "Homicide" to "Murder" as purely formal.
Sec. 14, R u l e 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. T h e test of whether
the rights of an accused are prejudiced by the amendment of
a complaint or information is w h e t h e r a defense under the
complaint or information, as it originally stood, would no longer be available after the a m e n d m e n t is made; and w h e n any
evidence the accused m i g h t h a v e 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 t i m e before j u d g m e n t that a mistake has
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been made in charging the proper offense. In such a case, the
court shall dismiss the original complaint or information once
the n e w 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.
T h e dismissal of the original complaint or information is subject to the provisions of Sec. 19 of Rule 119. U n der 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,
because a mistake has been m a d e in charging the proper offense, the court nevertheless, shall c o m m i t the accused to answer for the proper offense by requiring the filing of the proper information. A f t e r the proper information is filed, it shall
dismiss the original case. Despite the dismissal of the case the
accused shall not be discharged if there appears good cause to
detain him.
Distinction between substitution and amendment (Bar 1994)
T h e 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, w h i c h distinguishes
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 in-
CHAPTER II
PROSECUTION OF OFFENSES
(Rule 110)
formation 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
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 infor-
107
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mation, 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.
W h e n a criminal action is instituted, the civil action
for the recovery of the civil liability arising from the offense
charged shall be deemed instituted w i t h the criminal action
(Sec. 1 [a], Rule 111, Rules of Court). T h e reason for the
implied institution of the criminal action is the principle that
e v e r y person criminally liable for a felony is also civilly liable
(Article 100, Revised Penal Code).
Generally, a criminal case has t w o aspects, the civil and
the criminal. T h e civil aspect is based on the principle that
e v e r y person criminally liable is also civilly liable (Article 100,
Revised Penal Code).
U n d e r A r t . 100 of the R e v i s e d P e n a l Code, e v e r y person
criminally liable for a felony is also civilly liable except in the
instances w h e n no actual d a m a g e 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. T h e multiplicity of
suits must be avoided. W i t h the implied institution of the
civil action in the criminal action, the t w o actions are merged
into one composite proceeding, w i t h the criminal action
predominating the civil (Ricarze v. Court of Appeals, G.R. No.
160451, February 9, 2007).
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T h e 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 w a i v e s the
civil action or reserves the right to institute it separately or
institutes the civil action prior to the criminal action. T h e
law allows the m e r g e r of the criminal and the civil actions
to avoid multiplicity of suits. T h u s , w h e n 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. T h e 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 w h e n there is no criminal
case y e t against the respondents as w h e n the O m b u d s m a n is
still in the process of finding probable cause to prosecute the
respondent, the rule that a civil action is d e e m e d instituted
along w i t h the criminal action unless the offended party: ( a )
waives the civil action, ( b ) reserves the r i g h t 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
T h e 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 h i m 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 d a m a g e or injury he sustained by
reason of the delictual or felonious act of the accused. T h e 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).
CHAPTER III
PROSECUTION OF CIVIL ACTION
(Rule 111)
HI
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
w a i v e d (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
T h e real parties in interest in the civil aspect of a decision are the offended party and the accused. H e n c e , either the
offended party or the accused m a y appeal the civil aspect of
the j u d g m e n t despite the acquittal of the accused. T h e public
prosecutor g e n e r a l l y has no interest in appealing the civil aspect of a decision acquitting the accused. T h e acquittal ends
his work. T h e case is t e r m i n a t e d as far as he is concerned
(Hun Hyung Park v. Eun Wong Choi, G.R. No. 165496, February 12, 2007).
Rule applicable
O n e of the issues in a criminal case being the civil liability
of the accused arising from the crime, the g o v e r n i n g l a w is the
Rules of C r i m i n a l Procedure, not the Rules of C i v i l Procedure
which pertains to a civil action arising from the initiatory
pleading that g i v e s 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.
T h e 2000 Rules of C r i m i n a l Procedure has clarified
w h a t civil actions are deemed instituted in a criminal prosecution. U n d e r the Rules, only the civil liability of the accused
arising from the crime charged is deemed impliedly instituted
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
in a criminal action. Thus, the civil actions referred to in A r ticles 32, 33, 34 and 2176 of the C i v i l 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 A r t i c l e 2176 of the C i v i l Code. Such civil liabilities
even if resulting from the same n e g l i g e n t act are separate and
independent of each other.
2.
A n o t h e r legal basis for the institution of a civil action
against the driver separate from t h e civil action flowing from
the offense is A r t i c l e 33 of the C i v i l 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 A r t i c l e 2177 of the C i v i l Code,
the responsibility arising from a quasi-delict "is entirely
separate and distinct from the civil liability arising from
negligence under the Penal Code."
T h e same rule in A r t i c l e 2177 of the C i v i l Code finds
support from A r t i c l e 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 w h i l e Articles 32, 33, and 34 of the Civil Code
are sources of obligations arising from direct provisions of
CHAPTER III
PROSECUTION OF CIVIL ACTION
(Rule 111)
113
law. T h e civil actions arising from these articles do not arise
from the acts or omissions constituting a felony hence, are not
impliedly instituted w i t h the criminal action. Only the civil
action to recover the civil liability flowing from or arising from
the offense charged is impliedly instituted w i t h the criminal
action.
4.
T h e civil actions arising from Articles 2176, 32,
33 and 34 of the Civil Code m a y be filed independently and
separately from the criminal action because they do not arise
from the offense charged. W h a t the l a w proscribes is double
recovery. A r t i c l e 2177 of the C i v i l Code declares that "the
plaintiff cannot recover damages twice for the same act or
omission of the defendant."
T h e 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 g i v e s rise to an independent civil action
arising not from the crime charged but from A r t i c l e 33 e v e n if
caused by the v e r y same defamatory or fraudulent act. This
civil action is also distinct from the civil action which is the
consequence of the alleged criminal act. T h e same principle
applies to all those actions based on Articles 32, 34 and 2176
of the Civil Code which m a y arise from the v e r y same act that
g a v e rise to the crime.
Consequences of the independent character of actions under Articles 32, 33, 34 and 2176 of the Civil Code
T h e 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.
T h e right to bring the civil action shall proceed
independently of the criminal action (Sec. 3, Rule 111, Rules
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
of Court) and regardless of the results of the latter (Article 31,
Civil Code of the Philippines). ( B a r 2005)
2.
T h e quantum of evidence required is preponderance
of evidence (Sec. 3, Rule 111, Rules of Court).
3.
( a ) T h e 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 ) T h e institution or the w a i v e r of the right to file
a separate civil action arising from the crime charged
does not extinguish the right to bring such action.
( c ) E v e n if a civil action is filed separately, the ex
delicto civil liability in the criminal prosecution remains,
and the offended party m a y — subject to the control of
the prosecutor — still intervene in the criminal action, in
order to protect the r e m a i n i n g civil interest therein (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.
T h e r e is no i m p l i e d institution of the civil action to
recover civil liability arising from the offense charged in any
of the following instances:
( a ) W h e n the offended party w a i v e s the civil action;
( b ) W h e n the offended party reserves the right to
institute the civil action separately; or
( c ) W h e n the offended party institutes the civil
action prior to the criminal action (Sec. 1 [a], Rule 110,
Rules of Court).
T h e above rule has no application to independent civil
actions under Articles 32, 33, 34 and 2176 of the C i v i l Code.
2.
W h e n a criminal action is instituted, the civil action
for the recovery of civil liability arising from the offense
charged shall be deemed instituted w i t h the criminal action.
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115
Hence, it is correct to argue that there being no reservation,
w a i v e r , nor prior institution of the civil aspect of the criminal
case, it follows that the civil case arising from g r a v e threats
is deemed instituted w i t h the criminal action and, hence, the
private prosecutor m a y 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 m a d e before the prosecution
starts presenting its evidence. T h e reservation is to be made
under circumstances that w o u l d afford the offended party a
reasonable opportunity to m a k e such reservation (Sec. l[a],
Rule 110, Rules of Court).
No reservation of the civil action in Batas Pambansa Big. 22
(Bar 2001; 2002)
1. W h i l e 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 l a w on bouncing checks. T h e
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. U p o n 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. T h i s amount
shall also be considered as the actual damages claimed (Sec.
l[b], Rule 111, Rules of Court). It should be observed that
w h a t the rule prohibits is the filing of a reservation to file the
civil action arising from Batas Pambansa B i g 22. It does not
prohibit the w a i v e r of the civil action or the institution of the
civil action prior to the criminal action.
2.
T h e rule prohibiting the reservation to file the civil
action separately in Batas Pambansa Big. 22 cases are subject
to an exception. E v e n 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
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filed ahead of the criminal case (Lo Bun Tiong v. Balboa, G.R.
No. 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:
"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 gratis 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.
A f t e r 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
CHAPTER in
PROSECUTION OF CIVIL ACTION
(Rule 111)
117
111, Rules of Court). T h e rule indicates that preference is
g i v e n to the resolution of the criminal action.
2.
E v e n if the right to institute the civil action separately has been reserved, the separate civil action cannot however, be instituted until final j u d g m e n t has been entered in the
criminal action previously instituted. A l s o , if the civil action
was commenced before the institution of the criminal action,
the civil action shall be suspended in w h a t e v e r stage it m a y be
found before j u d g m e n t on the merits, once the criminal action
is commenced. T h e suspension shall last until final j u d g m e n t
is rendered in the criminal action (Sec. 2, Rule 111, Rules of
Court). T h i s rule h o w e v e r , 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 w i l l
necessarily result in a delay in the disposition of the civil
action which m a y h a v e been already filed or of the action the
right to the filing of w h i c h has been reserved. H o w e v e r , the
rule also affords a r e m e d y to avoid such a delay. T h e offended
party m a y m o v e for the consolidation of the civil action w i t h
the criminal action in the court t r y i n g the criminal action. T h e
motion for consolidation by the offended party is to be filed
before j u d g m e n t on the merits is rendered in the civil action.
T h e consolidated criminal and civil actions shall be tried and
decided jointly (Sec. 2, Rule 111, Rules of Court).
2.
If the civil action w a s commenced ahead of the
criminal action and evidence had already been adduced in the
civil action e v e n 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 crossexamine the witnesses presented by the offended party in the
criminal case. T h e 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
W h e r e 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 despite its reservation
until after final j u d g m e n t is rendered in the criminal action,
the running of the 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.
W h e n 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.
T h e civil actions under the said articles do not arise from the
offense but from violations of specific provisions of the C i v i l
Code. Specific attention need be g i v e n to the tenor of Sec. 1 of
Rule 111. U n d e r said rule, only the civil action arising from the
offense charged shall be d e e m e d instituted w i t h the criminal
action. Actions based on A r t i c l e s 32, 33, and 34 arise from the
law and are commonly called 'independent civil actions' w h i l e
those based on A r t i c l e 2176 arise from quasi-delicts. T h e y do
not arise from the offense or crime charged and hence, are
not deemed instituted w i t h the filing of the criminal action.
A r t i c l e 1156 of the C i v i l Code considers 'law' and 'quasidelicts' as sources of obligations separate and distinct from a
crime (acts or omissions punished by l a w ) . U n d e r A r t i c l e 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 m a y 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,
CHAPTER III
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(Rule 111)
119
however, may the offended party recover damages twice
for the same act or omission charged in the criminal action" (Sec. 3, Rule 111, Rules of Court).
To reiterate: U n d e r Sec. 1 of Rule 111, w h a t is "deemed
instituted" w i t h 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 C i v i l Code m a y be
filed separately and prosecuted independently e v e n without
any reservation in the criminal action. T h e failure to m a k e a
reservation in the criminal action is not a w a i v e r of the right
to file a separate and independent civil action based on these
articles of the C i v i l Code (Casupanan v. Laroya, 388 SCRA
28). In a subsequent case, the Supreme Court further held
t h a t w h a t is deemed instituted in e v e r y criminal prosecution
is the civil liability arising from the crime or delict per se (civil
liability ex delicto), but not those liabilities arising from quasidelicts, contracts or quasi-contracts (Philippine Rabbit Bus
Lines v. People, 427 SCRA 456).
3.
A r t i c l e 31 of the C i v i l Code as w e l l as Sec. 3 of Rule
111 of the Rules of Court both support the conclusion that
the civil actions based on A r t i c l e s 32, 33, 34 and 2176 of the
C i v i l Code of the P h i l i p p i n e s are not suspended by the commencement of the criminal action because they m a y 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 (Maccay v. Nobela, 454 SCRA
504).
2.
T h e rule is explicit:
No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case,
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but any cause of action which could have been the subject
thereof may be litigated in a separate civil action (Sec.
l[a], Rule 111, Rules of Court).
Rules on filing fees
F i l i n g fees apply when damages are being claimed by the
offended party. T h e following summarizes the rule on filing
fees:
( a ) T h e r e are no filing fees for actual damages claimed
even if specified 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 i n v o l v e d (A.M. No. 042-04).
( b ) F i l i n g fees shall be paid by the offended party upon
the filing of the criminal action in court w h e r e he seeks for
the enforcement of the civil liability of the accused by w a y of
moral, nominal, t e m p e r a t e or e x e m p l a r y d a m a g e s but other
than actual damages, and w h e r e the amount of such damages
are specified in the complaint or information. If the amounts
are not specified in the complaint or information but, any of
the damages are subsequently a w a r d e d , the filing fees based
on the amount a w a r d e d shall constitute a first lien on the
judgment a w a r d i n g such d a m a g e s (Sec. l[b], Rules of Court).
Effect of death of the accused on the civil action
1.
If the accused dies after a r r a i g n m e n t 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 m a y
be continued against the estate or legal representative of the
accused after proper substitution or against the estate as
the case m a y be. In the latter case, the heirs of the accused
may be substituted for the deceased without requiring the
appointment of an executor or administrator and the court
CHAPTER III
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(Rule 111)
121
m a y appoint a guardian ad litem for the minor heirs (Sec. 4,
Rule 111, Rules of Court).
T h e court shall forthwith order the legal representative
or representatives to appear and be substituted within a
period of thirty ( 3 0 ) 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 m a y file the proper
civil action against the estate of the deceased (Sec. 4, Rule
111, Rules of Court).
3.
T h e 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 the following rules
which m a y be summarized as follows:
( a ) T h e death of the accused necessarily calls for
the dismissal of the criminal case against him, regardless
of the institution of the civil case w i t h it. T h e death of the
accused prior to final j u d g m e n t 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 strictiore." In other words,
civil liability based solely on the criminal action is extinguished, and a different civil action cannot be continued and prosecuted in the same criminal action. But the
claim for civil liability predicated on a source of obligation
other than a delict survives notwithstanding the death of
the accused. T h i s source of obligation m a y be from law,
contract, quasi-contract or quasi-delict. In other words,
the civil liability based solely on the criminal action is
extinguished, and a different civil action cannot be continued and prosecuted in the same criminal action.
( b ) W h e r e the civil liability survives, an action for
recovery therefore may be pursued but only by w a y 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 ob-
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ligation upon which the same is based (ABS-CBN Broadcasting Corporation v. Ombudsman, G.R. No. 133347,
October 15, 2008).
4.
T h e death of the accused during the pendency of
his appeal with the Supreme Court totally extinguished his
criminal liability. Such extinction is based on A r t i c l e 89 of
the Revised Penal Code. T h e death of the accused likewise
extinguished the civil liability that w a s based exclusively on
the crime for which the accused w a s convicted (i.e., ex delicto),
because no final j u d g m e n t of conviction w a s y e t rendered
by the time of his death. O n l y 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 (People of the Philippines v. Bringas
Bunay y Dam-at, G.R. No. 171268, September 14,2010). T h u s ,
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 R e v i s e d P e n a l Code for the
extinguishment of criminal liability." In a catena of cases, it
was ruled that criminal liability for estafa is not affected by
a compromise or novation of contract. T h e crime of estafa,
reimbursement or belated p a y m e n t to the offended party of
the money swindled by the accused does not extinguish the
criminal liability of the latter. A l s o , "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 o w n motion e v e n though complete
reparation should h a v e been m a d e of the d a m a g e 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).
C H A P T E R III
P R O S E C U T I O N OF CrVIL A C T I O N
123
(Rule 111)
Effect of acquittal or the extinction of the penal action on the
civil action or civil liability
1.
T h e extinction of the penal action does not carry with
it the extinction of the civil action. H o w e v e r , the civil action
based on delict m a y be extinguished if there is a finding in a
final j u d g m e n t in the criminal action that the act or omission
from which the civil liability m a y arise did not exist (Sec. 2,
Rule 111, Rules of Court). T h e civil action based on delict may,
however, be deemed extinguished if there is a finding on the
final j u d g m e n t in the criminal action that the act or omission
from which the civil liability m a y 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 m a y still be
adjudged civilly liable. T h e extinction of the penal action does
not carry w i t h it the extinction of the civil action w h e r e ( 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 w a s acquitted. T h e civil liability is not
extinguished by acquittal w h e r e such acquittal 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 w a s again held that w h e n 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. T h e 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
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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 m i g h t arise did not exist,
there is no basis to a w a r d 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. H e r e , the petitioner w a s charged w i t h the
crime of reckless imprudence resulting in multiple homicide
and multiple serious physical injuries w i t h d a m a g e to property
in the Municipal T r i a l Court.
After trial on the merits, the M T C acquitted petitioner of
the crime charged. Petitioner w a s , h o w e v e r , held civilly liable
and was ordered to pay the heirs of the v i c t i m s actual damages,
civil indemnity for death, moral d a m a g e s , t e m p e r a t e damages
and loss of earning capacity.
Petitioner appealed to the R e g i o n a l T r i a l Court contending
that the Municipal T r i a l Court erred in holding him civilly
liable in v i e w of his acquittal but the R e g i o n a l T r i a l Court
affirmed the j u d g m e n t appealed from in toto.
Refusing to g i v e up, petitioner appealed to the Court of
Appeals which rendered a decision affirming the j u d g m e n t of
the Regional T r i a l Court.
Left with no other recourse, petitioner now argued in the
Supreme Court that his acquittal should h a v e freed h i m from
payment of civil liability.
Emphatically, the Court declared: " W e disagree.
"The rule is that e v e r y person criminally liable is also
civilly liable. Criminal liability w i l l g i v e 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. E v e r y
crime gives rise to ( 1 ) a criminal action for the punishment of
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(Rule 111)
125
the guilty party and ( 2 ) a civil action for the restitution of
the thing, repair of the d a m a g e , and indemnification for the
losses.
" H o w e v e r , the reverse is not always true. In this connection, the relevant portions of Section 2, Rule 111 and
Section 2, R u l e 120 of the Rules of Court provide:
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 w i l l not necessarily extinguish his civil liability,
unless the court declares in a final j u d g m e n t that the fact from
which the civil liability m i g h t 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 e v e n necessary that
a separate civil action be instituted.
"In this case, the M T C held that it could not ascertain
w i t h moral certainty the wanton and reckless manner by
which petitioner drove the bus in v i e w of the condition of the
h i g h w a y w h e r e the accident occurred and the short distance
between the bus and the taxi before the collision. H o w e v e r ,
it categorically stated that w h i l e petitioner may be acquitted
based on reasonable doubt, he m a y nonetheless be held civilly
liable.
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"The R T C added that there w a s no finding by the M T C
that the act from which petitioner's civil liability m a y arise did
not exist. Therefore, the M T C w a s 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 w a k e and interment.
"In v i e w o f the pronouncements o f the M T C and the R T C ,
we agree with the conclusion of the CA that petitioner was
acquitted not because he did not c o m m i t the crime charged
but because the R T C and the M T C could not ascertain with
moral conviction the wanton and reckless m a n n e r by which
petitioner drove the bus at the t i m e of the accident. P u t
differently, petitioner w a s acquitted because the prosecution
failed to prove his guilt beyond reasonable doubt. H o w e v e r ,
his civil liability for the death, injuries and d a m a g e s arising
from the collision is another matter.
"While petitioner w a s absolved from criminal liability
because his negligence w a s not p r o v e n 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 p r o v e negligence w i t h moral certainty
does not negate (and is in fact compatible w i t h ) a ruling that
there was preponderant evidence of such negligence. A n d that
is sufficient to hold h i m civilly liable.
"Thus, the M T C (as affirmed b y the R T C and the C A )
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. 167546, July 17, 2009).
Effect of payment of the civil liability
P a y m e n t of civil liability does not extinguish criminal
liability (Cabico v. Dimaculangan-Querijero, 522 SCRA 300,
April 27, 2007). W h i l e there m a y 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).
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(Rule 111)
127
Effect of judgment in the civil case absolving the defendant
A final j u d g m e n t rendered in the civil case absolving the
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).
Subsidiary liability of employer
T h e provisions of the R e v i s e d P e n a l Code on subsidiary
liability are deemed w r i t t e n into the j u d g m e n t s 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 e n g a g e d in some kind of
industry; ( 3 ) the crime w a s committed by the employees in the
discharge of their duties; and ( 4 ) the execution against the latter has not been satisfied due to insolvency. T h e s e conditions
m a y 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, w i t h due notice to
the employer, as part of the proceedings for the execution of
the j u d g m e n t (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 i n v o l v e d in a civil
case which is similar or i n t i m a t e l y related to the issue raised
in the criminal action, the resolution of which determines
whether or not the criminal action m a y 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
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tribunal, however, the rule is that the proceedings in the
first case may be suspended to a w a i t the resolution of the
prejudicial question in the second case (Omictin v. Court of
Appeals, 512 SCRA 70; People v. Sandiganbayan, 485 SCRA
473; Yu v. Philippine Commercial and Industrial Bank, 485
SCRA 56; Reyes v. Pearlbank Security, Inc., 560 SCRA 518;
Coca-cola Bottlers [Phils.], Inc. v. Social Security Commission,
560 SCRA 719; Monreal v. Commission on Elections, G.R. No.
184935, December 21, 2009).
Reason for the principle
T h e reason behind the principle of a prejudicial question
is to avoid t w o 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 R u l e 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.
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 i n t i m a t e l y 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.
T h e 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 )
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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 t e r m but as a mere journalistic device.
3.
T h e 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
instituted prior to the civil case. It does not arise because the
rule does not m e r e l y refer to an instituted civil action but
specifically to a "previously instituted" civil action. N e i t h e r
does it refer to a previously instituted criminal action. T h a t the
civil action must h a v e been instituted ahead of the criminal
action is confirmed by the same rule which makes reference to
a "subsequent criminal action."
4.
It w a s affirmed that under the amendment to the
Rules of Court, a prejudicial question is understood in l a w
as that which must precede the criminal action and which
requires a decision before a final j u d g m e n t can be rendered
in the criminal action w i t h w h i c h said question is closely
connected. T h e 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; Pimentel v. Pimentel, G.R. No. 172060,
September 13, 2010).
5.
T h e tenor of Sec. 7 l i k e w i s e 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
j u d g m e n t 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 preemp-
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tively resolved before the criminal action may proceed. T h e
issue raised in the civil action would be determinative juris et
dejure 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 w i t h the issues involved. It is worth
remarking that not e v e r y issue raised in the civil action will
result in a prejudicial question. T h e rule clearly implies that
it is not enough that both cases i n v o l v e the same facts or even
the same or similar issues to m a k e the civil case prejudicial
to the criminal case. T h e m e r e claim that the issues in both
cases are intimately related w i l l not necessarily m a k e 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 must proceed"
(Sec. 7, Rule 111, Rules of Court).
It is apparent that the exact parameters of w h a t is
'determinative' has not been denned by the rule thus, leaving
to the court the task of adjudicating upon the existence or
non-existence of that v i t a l factor in the application of the
principle. N e v e r t h e l e s s , 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. N e i t h e r 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 w a i t i n g 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
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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. T h e rule therefore, precludes a motu propio
suspension of the criminal action.
T h e need for the filing of a petition finds support in
jurisprudence which declares that since suspension of the
proceedings in the criminal action m a y be made only upon
petition and not at the instance of the j u d g e or the investigating
prosecutor, the latter cannot take cognizance of a claim of a
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 m a d e 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).
2.
It also needs to be stressed that w h e n there is a
prejudicial question the action to be suspended is the criminal
and not the previously instituted civil action. W h e n there is
a prejudicial question, the criminal case m a y 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 w h e n the criminal
action is instituted.
T h e general rule provides: " x x x if the civil action was
commenced before the institution of the criminal action, the
civil action shall be suspended in w h a t e v e r stage it m a y be
found before j u d g m e n t on the merits, once the criminal action
is commenced. T h e suspension shall last until final j u d g m e n t
is rendered in the criminal action." A prejudicial question is
an exception to this rule. T h e principle of prejudicial question
is not within the ambit of this general rule under Sec. 2 of
Rule 111.
Suspension does not include dismissal
T h e rule authorizing the suspension of the criminal case
does not prescribe the dismissal of the criminal action. It only
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authorizes its suspension. T h e suspension shall be made upon
the filing of a petition for suspension.
A case was emphatic in reiterating this principle. T h e
case of Yap v. Paras, 205 SCRA 625, in criticizing the lower
court stated that an "order dismissing the criminal action
without a motion for suspension and even without the accused
indicating his defense in the civil case suggests not only
ignorance of the l a w but also bias on the part of the judge"
(Yap v. Paras, 205 SCRA 625).
Where to file the petition for suspension
1.
T h e filing for a petition for suspension does not
require that the criminal case be already filed in court.
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. A l s o , the petition for suspension is not to
be filed in the civil case but in the criminal case.
2.
T h e rule provides therefore, that a petition for the
suspension of the criminal action m a y be filed in the office
of the prosecutor conducting the p r e l i m i n a r y investigation.
W h e n 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.
T h e case of Pimentel v. Pimentel, G.R. No. 172060,
September 13, 2010, lucidly illustrates w h e n the principle
of prejudicial question does not apply. H e r e , 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.
T h e petitioner filed an urgent motion to suspend the
proceedings in the court w h e r e the criminal case was pending
on the ground of the existence of a prejudicial question. T h e
petitioner asserted that since the relationship between the
offender and the victim is a key element in parricide, the
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outcome of the civil case would h a v e a bearing in the criminal
case filed against him.
W h e n the case reached the Court of A p p e a l s , the court
concluded against the existence of a prejudicial question. T h e
Court of A p p e a l s ruled that in the criminal case for frustrated
parricide, the issue is w h e t h e r 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 o w n spontaneous
desistance. On the other hand, the issue in the civil action for
annulment of m a r r i a g e is w h e t h e r petitioner is psychologically
incapacitated to comply w i t h the essential marital obligations.
T h e Court of A p p e a l s continued that even if the m a r r i a g e
between petitioner and respondent would be declared void, it
would be i m m a t e r i a l 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 t i m e of the commission of the crime, the m a r r i a g e is still
subsisting.
T h e S u p r e m e Court sustained the conclusion of the Court
of A p p e a l s w i t h an added reason — that the facts show that
the criminal case w a s filed ahead of the case for declaration of
nullity. T h e rule is clear, w r o t e 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, R u l e 111 of the 2000 Rules on C r i m i n a l Procedure
was not m e t since the civil action w a s filed subsequent to the
filing of the criminal action.
T h e Court added that the resolution of the civil action is
not a prejudicial question that would w a r r a n t the suspension
of the criminal action. W h i l e the relationship between
the offender and the v i c t i m is a key e l e m e n t 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. T h e issue in the civil case for annulment
of marriage under A r t i c l e 36 of the F a m i l y Code is whether
petitioner is psychologically incapacitated to comply w i t h the
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essential marital obligations. T h e issue in parricide is whether
the accused killed the victim. In this case, since petitioner
was charged w i t h 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 w i l l .
At the time of the commission of the alleged crime, petitioner
and respondent w e r e married. T h e subsequent dissolution of
their marriage, in case the petition in the civil case is granted
will have no effect on the alleged crime that w a s committed at
the time of the subsistence of the m a r r i a g e . In short, e v e n if
the marriage b e t w e e n petitioner and respondent is annulled,
petitioner could still be held criminally liable since at the time
of the commission of the alleged crime, he w a s still married to
respondent.
2.
T h e case of Magestrado v. People G.R. No. 148072,
July 10, 2009, is l i k e w i s e illuminating.
H e r e , 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 k n o w i n g 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 p r i v a t e respondent. A f t e r an
information for perjury against the petitioner w a s 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 w h e n he filed against p r i v a t e respondent a complaint
for cancellation of m o r t g a g e , delivery of title and damages.
T h e 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 v i e w of the pending civil cases, the Supreme Court
observed that the pending civil cases are principally for the
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determination of whether a loan was obtained by the petitioner
from the private respondent and whether petitioner executed
a real estate m o r t g a g e 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 n e w
owner's duplicate copy of the certificate of title.
T h e Court w e n t 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 t w o civil cases, it w i l l
not establish the innocence or guilt of the petitioner in the
criminal case for perjury. T h e purchase by petitioner of the
land or his execution of a real estate m o r t g a g e w i l l h a v e no
bearing w h a t s o e v e r on w h e t h e r petitioner k n o w i n g l y and
fraudulently executed a false affidavit of loss.
3.
A n o t h e r 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 m a n a g e r of a corporation
filed a complaint for t w o counts of estafa against the private
respondent. He alleged that the p r i v a t e respondent, despite
repeated demands, refused to return the t w o company
vehicles entrusted to him w h e n he w a s still the president
of the corporation. T h e private respondent avers that the
demands are not valid demands, the petitioner not h a v i n g the
authority to act for the corporation in v i e w of the invalidity
of his appointment. T h e investigating prosecutor however,
recommended the indictment of the private respondent and
was charged w i t h the crime of estafa.
T h e private respondent then filed a motion to suspend
proceedings on the basis of a prejudicial question because of
the then pending case w i t h the Securities and Exchange Commission (later transferred to the R T C ) , 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 corpo-
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rate officers. T h e 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.
T h e case filed by the private respondent also alleged
that the appointment of certain officers w e r e invalid because
it was in derogation of the corporate by-laws requiring that
the president must be chosen from a m o n g the directors,
and elected by the affirmative v o t e of a majority of all the
members of the board of directors. Since the appointment
of the officer responsible for appointing the petitioner w a s
invalid, the petitioner's appointment as operations m a n a g e r
was likewise a l l e g e d l y invalid. Thus, p r i v a t e respondent
claims, the petitioner neither has the p o w e r nor the authority
to represent or act for the corporation in any transaction or
action before any court of justice. C i t i n g as a reason the absence
of a board resolution authorizing the continued operations of
the corporation as a corporate entity, the p r i v a t e 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 w h e t h e r or not a prejudicial question
exists to w a r r a n t the suspension of the criminal proceedings
pending the resolution of the intra-corporate controversy
in the R T C , the Court sustained the theory of the private
respondent that the resolution of the issues raised in the intracorporate dispute w i l l d e t e r m i n e the guilt or innocence of
private respondent in the crime of estafa filed against h i m by
the petitioner. One of the elements of the crime of estafa w i t h
abuse of confidence under A r t i c l e 315, par. K b ) of the Revised
Penal Code is "a demand m a d e by the offended party to the
offender x x x." U n d e r the circumstances, since the alleged
offended party is the corporation, the v a l i d i t y of the demand
for the delivery of the subject vehicles rests upon the authority
of the person m a k i n g such a demand on the company's behalf.
In the civil cases, the private respondent w a s challenging the
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petitioner's authority to act for the corporation in the corporate
case pending before the R T C . T a k e n in this light, added the
Court, if the supposed authority of petitioner is found to be
defective, it is as if no demand w a s e v e r made, hence, the
prosecution for estafa cannot prosper.
4.
Batas Pambansa Big. 22 controversies present a special class of cases w i t h r e m a r k a b l y 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.
H e r e , the petitioner issued bouncing checks to the payee
which w e r e later rediscounted in favor of private respondents.
W h e n the checks w e r e dishonored, the private respondents
then filed civil actions to collect sums of money w i t h damages
against the petitioner in the R T C . Subsequently informations
w e r e 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. P e t i t i o n e r p r a y e d that the proceedings in
the criminal cases be suspended until the civil cases pending
before the R T C w e r e f i n a l l y resolved. T h e main contention o f
the petitioner is that a prejudicial question, as defined by l a w
and jurisprudence, exists because the civil cases for collection
earlier filed against him for collection of sum of money and
damages w e r e 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 w h e t h e r 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 v a l i d 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. T h e court denied the motions for
lack of merit. T h e subsequent motions for reconsideration
w e r e likewise denied.
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Ruling on the issue on appeal to it, the Court explained
that " x x x T h e issue in the criminal cases is whether the
petitioner is guilty of violating Batas Pambansa Big. 22, w h i l e
in the civil case, it is w h e t h e r 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." F o r
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 ofLozano v. Martinez (146 SCRA
323), the Court added that in a criminal action for violation of
Batas Pambansa Big. 22, it is the m e r e issuance of worthless
checks with k n o w l e d g e 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 p a y m e n t of
the value of the checks and damages, he cannot be adjudged
free from criminal liability for violation of B a t a s P a m b a n s a
Big. 22.
5.
A n o t h e r case similarly decided is that of Sps. Jose v.
Sps. Suarez, G.R. No. 176795, June 30, 2008.
T h e respondents w h o are spouses, are the debtors of the
petitioners, also spouses under an a g r e e m e n t which required
the respondents to pay a daily interest on their debts but
which interest was later on increased. It w a s the practice for
petitioners to g i v e the loaned m o n e y 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. T h e respondents would
then issue checks in favor of petitioners in p a y m e n t of the
amount borrowed from t h e m w i t h 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 w r i t 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.
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T h e y claimed that due to serious liquidity problems, they
w e r e 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 w e r e filed against one of the respondents w h o 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 P a m b a n s a Big. 22 cases are void for being
contra bonos mores or for h a v i n g been issued in payment
of the iniquitous and unconscionable interest imposed by
petitioners. T h e suspension order issued by the l o w e r court
was later on upheld by the Court of A p p e a l s which concluded
that the appellate court concluded that if the checks subject
of the criminal cases w e r e later on declared null and void,
then said checks could not be m a d e the bases of criminal
prosecutions under B a t a s P a m b a n s a Big. 22. In other words,
ruled the Court of A p p e a l s , the outcome of the determination
of the v a l i d i t y of the said checks is d e t e r m i n a t i v e of guilt or
innocence of the accused in the criminal case.
T h e Supreme Court reversed, holding that the prejudicial
question theory of the respondents must fail. F o r the Court, the
prejudicial question posed by respondents is simply whether
the daily interest rate of 5% is v o i d , 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 w i l l no longer prosper.
T h e Court stressed that the v a l i d i t y or invalidity of the
interest rate is not d e t e r m i n a t i v e 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. W h a t 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. T h e mere act of issuing a worthless
check is malum prohibitum provided the other elements of the
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offense are properly proved. Thus, whether or not the interest
rate imposed by petitioners is eventually declared void for
being contra bonos mores w i l l not affect the outcome of the
Batas Pambansa Big. 22 cases because w h a t w i l l ultimately
be penalized is the m e r e issuance of bouncing checks. In fact,
the primordial question posed before the court hearing the
Batas Pambansa Big. 22 cases is w h e t h e r the l a w has been
breached, that is, if a bouncing check has been issued.
6.
A similar result w a s reached in y e t another more
recent case, w h e r e the H i g h Court rejected respondent's'
contention that the novation of the credit line a g r e e m e n t
was a prejudicial question in the prosecution for violation
of Batas Pambansa Big. 22. A c c o r d i n g to the Court, the
mere act of issuing a worthless check, e v e n if m e r e l y as an
accommodation, is covered by Batas P a m b a n s a Big. 22. T h e
agreement surrounding the issuance of dishonored checks is
irrelevant to the prosecution for violation of Batas Pambansa
Big. 22, the g r a v a m e n of the offense being the act of m a k i n g
and issuing a worthless check or a check that is dishonored
upon its presentment for payment. T h u s , e v e n if it w i l l be
subsequently declared that a novation took place b e t w e e n
respondents and petitioner, respondents are still not e x e m p t
from prosecution for violation of Batas P a m b a n s a Big. 22 for
the dishonored checks (Land Bank of the Philippines v. Ramon
P. Jacinto, G.R. No. 154622, August 3, 2010).
7.
T h e earlier case of Sabandal v. Tongco, G.R. No.
124498, October 5, 2001, involves a petition to suspend the
criminal proceedings in the court w h e r e the petitioner is
charged w i t h eleven counts of violations of Batas Pambansa
Big. 22 filed in 1992. It appears that three years after the institution of the criminal actions, the petitioner filed w i t h the
R T C a complaint against the private respondent a case for
specific performance, recovery of o v e r p a y m e n t and damages.
T h e issue raised reaching the Supreme Court is w h e t h e r
a prejudicial question exists to w a r r a n t 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
CHAPTER III
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action for specific performance, recovery of overpayment, and
damages.
T h e Court predictably rejected the posturings of the
petitioner. T h e r e is no prejudicial question w r o t e the Court,
because the issue in the criminal cases for violation of Batas
Pambansa Big. 22 is w h e t h e r the accused k n o w i n g l y issued
worthless checks. T h e issue in the civil action for specific
performance, o v e r p a y m e n t , 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 h a v e
overpaid respondent, it does not follow, added the Court, that
he cannot be held liable for the bouncing checks he issued for
the m e r e issuance of worthless checks w i t h k n o w l e d g e of the
insufficiency of funds to support the checks is itself an offense.
Note: T h e Supreme Court in this case did not deal w i t h the
matter of the criminal action h a v i n g been filed ahead of the
civil action. T h e rule at the t i m e the cases w e r e filed did not
require a "previously" instituted civil action. T h e requirement
that the civil case be filed ahead of the criminal case is a result
of the a m e n d m e n t of the rules of criminal procedure which
took effect on D e c e m b e r 1, 2000.
8.
T h e effect of a prejudicial question presents an
interesting study w h e n the principle is invoked in marriage
relationships. O n e representative case is that of MarbellaBobis v. Bobis.
In 1985, the respondent contracted his first marriage.
W i t h o u t said m a r r i a g e h a v i n g been annulled, nullified or
terminated, the same respondent contracted a second marriage
w i t h the petitioner. Based on petitioner's complaint-affidavit,
an information for b i g a m y w a s 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 ques-
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tion to the criminal case. T h e trial j u d g e granted the motion
to suspend the criminal case.
T h e 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 m a r r i a g e 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 d e t e r m i n a t i v e of the issue in the b i g a m y
case, the Court placed emphasis on A r t . 40 of the C i v i l Code
which requires a prior judicial declaration of nullity of a
previous m a r r i a g e before a party m a y remarry. W i t h o u t a
judicial declaration of its nullity, explained the Court, the
first marriage is presumed to be subsisting. T h e Court found
that the respondent w a s , for all l e g a l intents and purposes,
regarded as a married m a n at the t i m e he contracted his
second m a r r i a g e w i t h petitioner. A g a i n s t 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 m a r r i a g e . T h e
Court then concluded that a decision in the civil case w a s 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 F a m i l y Code became effective
had a substantially a similar holding. Landicho v. Relova, G.R.
No. L-22579, February 23, 1968, a frequently cited case, held
that a party cannot j u d g e by h i m s e l f the nullity of his first
marriage to justify a second m a r r i a g e before the dissolution of
the first m a r r i a g e and only w h e n the nullity of the m a r r i a g e is
so declared by the courts can it be held as void.
9.
An action for a declaration of nullity of m a r r i a g e is
not a prejudicial question to a concubinage case. T h i s was the
gist of the holding of the Court in one remarkable case.
T h e facts of the case began w h e n 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 F a m i l y Code. A l l e g i n g that it was
CHAPTER III
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(Rule 111)
143
petitioner w h o abandoned the conjugal home and lived w i t h
another woman, the wife of the petitioner subsequently filed
a criminal complaint for concubinage against petitioner and
his paramour. An information for concubinage w a s later filed.
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 m a r r i a g e based on psychological
incapacity is a prejudicial question that should merit the
suspension of the criminal case for concubinage filed against
him by his w i f e . P e t i t i o n e r l i k e w i s e harped on the possibility
that t w o conflicting decisions m i g h t result from the civil
case for annulment of m a r r i a g e and the criminal case for
concubinage.
T h e Court rejected the contentions of the petitioner w h e n
the issue w a s presented before it for resolution. Unequivocally,
the Court ruled that the pendency of the case for declaration
of nullity of petitioner's m a r r i a g e is not a prejudicial question to the concubinage case because e v e n a subsequent
pronouncement that his m a r r i a g e is void from the beginning
is not a defense.
F o r 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 i n v o l v e s the same facts upon which
the criminal prosecution w o u l d 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.
T h e Court emphasized w i t h clarity that under the import
of A r t i c l e 40, the only l e g a l l y acceptable basis for purposes
of marriage, for declaring a previous m a r r i a g e an absolute
nullity is a final j u d g m e n t declaring such previous marriage
void, whereas, for purposes other than remarriage, other
evidence is acceptable. T h e Court w e n t on to declare that one
can conceive of other instances w h e r e a party m i g h t well invoke
the absolute nullity of a previous m a r r i a g e for purposes other
than remarriage, such as in case of an action for liquidation,
partition, distribution and separation of property between
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the erstwhile spouses, as w e l l as an action for the custody
and support of their common children and the delivery of
the latters' presumptive legitimes. In such cases, evidence
must be adduced, testimonial or documentary, to prove the
existence of grounds rendering such a previous m a r r i a g e an
absolute nullity. T h e s e need not be limited solely to an earlier
final j u d g m e n t of a court declaring such previous marriage
void. So that in a case for concubinage, the accused, like the
herein petitioner need not present a final j u d g m e n t declaring
their marriage void (Beltran v. People, G.R. No. 137567 June
20, 2000).
10.
Prado v. People, 133 SCRA 602, was resolved differently. H e r e , the Court sustained the contention that there
was a prejudicial question w h i c h m e r i t e d the suspension of
the criminal case.
T h e issue presented for resolution in the Supreme Court
was whether or not a pending civil suit for annulment of
marriage constitutes a prejudicial question in a b i g a m y case.
T h e undisputed facts began w i t h an information charging
the petitioner w i t h b i g a m y . T h e information alleged that
despite being l e g a l l y m a r r i e d to her husband and without
said marriage h a v i n g been l e g a l l y dissolved, the petitioner
contracted a second m a r r i a g e in a foreign country.
Subsequently, contending that her consent thereto w a s
obtained by means of force and intimidation, and that she
never freely cohabited w i t h her second husband, petitioner
filed an action for the annulment of her second m a r r i a g e . Petitioner then filed a motion to suspend the criminal proceedings
invoking a prejudicial question.
T h e Supreme Court found the requisites of a prejudicial
question present in the case which brought into play the
suspensive effect of a prejudicial question. T h e Court rejected
the argument of the Solicitor General that the civil action for
annulment was belatedly filed after petitioner had faced trial
in the bigamy case and only to stave off prosecution. W h i l e the
Court sustained the contention of the Solicitor General that
the mere filing of an annulment case does not automatically
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(Rule 111)
145
g i v e rise to a prejudicial question as to bar trial of a bigamy
case, considering the g r a v i t y of the charge, petitioner cannot
be deprived of her right to prove her grounds for annulment,
which could be determinative of her guilt or innocence. T h e
Court added that the State is not thereby deprived from
proceeding w i t h the criminal case in the event that the Court
decrees against the petitioner in the annulment case. Note:
This case w a s decided before the 2000 Rules became effective,
that is, before the requirement that the civil case should be
"previously" instituted. T h e results could h a v e been probably
different had the case been decided under the present rules
because in this case, the civil case w a s filed after the criminal
case. W h i l e the determinativeness of the issue in the civil case
was sufficiently established, there w a s non-compliance of the
new rule on a "previously" instituted civil action.
In the famous case of Donato v. Luna, 160 SCRA 441,
the action for annulment of m a r r i a g e w a s filed by the second
wife after the criminal case for b i g a m y w a s filed by the first
wife against the husband. T h e Court did not apply the rule on
prejudicial question because the husband did not even assert
or show that his consent to the second m a r r i a g e has been
obtained by the use of threats, force and intimidation and
because of such circumstance, the second m a r r i a g e cannot be
the basis for a conviction for b i g a m y . In Prado, the accused
argued that her consent to the second m a r r i a g e w a s obtained
by means of force and intimidation.
11. A n o t h e r interesting case i n v o l v e d a petitioner and a
private respondent w h o w e r e married in 1988. In 1990, w h i l e
the marriage w a s still subsisting, the petitioner contracted
a second marriage w i t h another woman. W h e n private
respondent learned of the m a r r i a g e , she filed a complaint
for bigamy and on the basis of her complaint an information
charging bigamy was duly filed. T h e 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.
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Subsequently, the private respondent also filed w i t h the
Professional Regulation Commission ( P R C ) for the revocation
of engineering licenses of the petitioner and the second woman.
Petitioner then filed w i t h the P R C a motion to suspend the
administrative proceedings in v i e w of the pendency of the civil
action for annulment of his m a r r i a g e to private respondent
and the bigamy case.
Although the matters raised had become moot and
academic when the Supreme Court finally decided the case
because of the termination of the civil case, it nevertheless
discussed the matter of prejudicial question and ruled:
( a ) T h a t the outcome of the civil case for annulment of m a r r i a g e had no bearing upon the determination
of the petitioner's innocence or guilt in the criminal case
for b i g a m y because all that is required for the charge of
bigamy to prosper is that the first m a r r i a g e be subsisting
at the time of the m a r r i a g e . T h e p r e v a i l i n g rule is found
in A r t . 40 of the C i v i l Code which requires a prior judicial
declaration of nullity before the v o i d character of the first
marriage m a y b e invoked.
( b ) T h e concept of a prejudicial question involves a
civil and a criminal case. T h e filing of a civil case does not
necessitate the suspension of the administrative proceedings. T h e r e is no prejudicial question w h e r e one case is
administrative and the other civil.
— oOo -
Chapter IV
PRELIMINARY INVESTIGATION
Nature of preliminary investigation; purpose (Bar 1985;
1986; 1991; 1998; 2004)
1.
Sec. 1 of R u l e 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
xxx"
2.
T h e definition lucidly declares that a preliminary
investigation is a m e r e inquiry or a proceeding. It is not
therefore, a trial and so does not i n v o l v e the examination of
witnesses by w a y of direct or cross-examinations. Its purpose
is not to declare the respondent guilty beyond reasonable
doubt but only to d e t e r m i n e first, w h e t h e r or not a crime has
been committed and second, w h e t h e r or not the respondent is
"probably guilty" of the crime. T h e question to be answered in
a preliminary investigation is not: "Is the respondent guilty
or is he innocent?" M o r e 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. T h e validity and merits of a party's accusation or
defense, as w e l l as admissibility of testimonies and evidence,
147
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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 w h e t h e r 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. P r e l i m i n a r y investigation is m e r e l y inquisitorial,
and is often the only means of discovering the persons w h o
may be reasonably charged w i t h 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 w h e t h e r 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 FactFinding Committee on Behest Loans [FFCBL] v. Desierto, G.R.
No. 136225, April 23, 2008).
For instance, w h e t h e r the facsimile message is admissible
in evidence and w h e t h e r 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. T h e 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 w e l l as the admissibility of
testimonies and evidence, are better ventilated during trial
proper than at the preliminary investigation level (Samuel
CHAPTER IV
PRELIMINARY INVESTIGATION
149
Lee, et al. v. KBC Bank N.V. [Formerly Kredietbank, N.V.],
G.R. No. 164673, January 15, 2010).
5.
T h e purposes of a preliminary investigation is to
determine w h e t h e r ( a ) a crime has been committed; and ( b )
there is probable cause to b e l i e v e that the accused is guilty
thereof (Manebo v. Acosta, G.R. No. 169554, October 28,2009).
H o w e v e r , the ultimate purpose of a preliminary investigation "is to secure the innocent against hasty, malicious and
oppressive prosecution and to protect h i m 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 Contractions 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, i g n o m i n y and stress of
defending himself/herself 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 s u m m a r y proceeding by a competent
officer designated by l a w for that purpose (Ledesma v. Court
of Appeals, 278 SCRA 656).
Nature of the right to a preliminary investigation
1.
T h e holding of a p r e l i m i n a r y 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.
T h e right thereto is of a statutory character and may be
invoked only w h e n specifically created by statute (Marinas
v. Siochi, 104 SCRA 423). B u t w h i l e 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).
W h e n so granted by statute, the right is not a mere
formal or technical right. It is a substantive right. To deny
the claim of the accused to a preliminary investigation would
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
be to deprive him the full measure of his right to due process
(Duterte v. Sandiganbayan, 289 SCRA 721).
2.
T h e r e 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. A l t h o u g h 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. T h e s e 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 j u d g e and that w h i l e 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 w h e n there is an opportunity to be heard and for
the production of and w e i g h i n g 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 r e m a r k i n g that the concept of a preliminary
investigation as essentially a judicial inquiry as declared in
the 1994 case of Cruz v. People w a s adopted by the Department of Justice. T h e D O J M a n u a l for Prosecutors citing Cruz
describes a preliminary investigation as "essentially a judicial
inquiry since there is the opportunity to be heard, the production and w e i g h i n g 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. A pronouncement w a s later m a d e in Bautistav. Court
of Appeals, G.R. No. 143375, July 6, 2001, w h e r e it was held
that a preliminary investigation is not even a quasi-judicial
proceeding. Accordingly, 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,
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151
and is often the only means of discovering the persons who
m a y be reasonably charged w i t h 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. W h i l e the fiscal makes that determination, he
cannot be said to be acting as a quasi-court, for it is the courts,
ultimately, that pass j u d g m e n t 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 A p p e a l s under R u l e 43 as are the decisions of quasi-judicial
bodies enumerated therein.
Bautista h o w e v e r , 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 p r e l i m i n a r y investigation is quasi-judicial in nature.
Bautista adds that this statement holds true only in the sense
that, like quasi-judicial bodies, the prosecutor is an office in
the executive d e p a r t m e n t exercising powers akin to those of a
court. But here is w h e r e the similarity ends. A closer scrutiny
will show that p r e l i m i n a r y investigation is v e r y different from
other quasi-judicial proceedings.
4.
A similar pronouncement w a s 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. T h e Court described a quasi-judicial
body as an organ of g o v e r n m e n t 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 h a v e the same effect as judgments of a
court. Such is not the case, according to the Court, when a
public prosecutor conducts a preliminary investigation.
T h e main issue for resolution in Santos v. Go was
whether a petition for r e v i e w under Rule 43 is a proper
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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. N o t e 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.
T h e Court observed that R u l e 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. T h e D e p a r t m e n t of Justice is not a m o n g 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 w i t h
petitioners' submission that a p r e l i m i n a r y investigation is a
quasi-judicial proceeding, and that the D O J is a quasi-judicial
agency exercising a quasi-judicial function w h e n it r e v i e w s
the findings of a public prosecutor r e g a r d i n g the presence of
probable cause. Since the D O J 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 A p p e a l s under Rule
43, the resolution of the Secretary of Justice finding probable
cause to indict petitioners is, therefore, not appealable to the
Court of A p p e a l s v i a a petition for r e v i e w under R u l e 43.
5.
A l s o , a much later case affirmed previous rulings that
a preliminary investigation is not a quasi-judicial proceeding,
and that the D O J is not a quasi-judicial agency exercising a
quasi-judicial function w h e n it r e v i e w s 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).
One of the issues that w a s sought to be resolved in
Spouses Balanguan w a s whether or not the D O J is covered
by the constitutional injunction embodied in Sec. 14, A r t i c l e
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PRELIMINARY INVESTIGATION
153
V I I I 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."
A l s o , d r a w i n g h e a v i l y 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 w h e t h e r a crime has been
committed and w h e t h e r there is probable cause to believe
that the accused is guilty thereof. W h i l e the fiscal makes that
determination, he cannot be said to be acting as a quasi-court,
for it is the courts, ultimately, that pass j u d g m e n t on the
accused, not the fiscal. T h o u g h some cases, added the Court,
describe the prosecutor's p o w e r 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 d e p a r t m e n t exercising powers akin
to those of the court, and the similarity ends at this point.
A quasi-judicial body is an organ of g o v e r n m e n t other than
a court and other than a legislature which affects the rights
of private parties, and their decisions h a v e the same effect
as j u d g m e n t s of a court. Such is not the case w h e n a public
prosecutor conducts a p r e l i m i n a r y investigation to determine
probable cause to file an information against a person charged
with a criminal offense, or w h e n the Secretary of Justice
is r e v i e w i n g the former's order or resolution. T h e Court
concluded that since the D O J is not a quasi-judicial body, Sec.
14, Article V I I I of the Constitution finds no application.
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
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,
328 SCRA 254).
C R I M I N A L PROCEDURE: T H E BAR L E C T U R E S SERIES
6.
W h i l e the above decisions do not consider a preliminary investigation as a quasi-judicial proceeding, the Court
curiously had the occasion to describe a prosecutor as a "quasijudicial officer." Said the Court in Racho v. Miro, G.R. Nos.
168578-79, September 30, 2008:
". . . Even if a preliminary investigation resembles a
realistic judicial appraisal of the merits of the case public
prosecutors could not decide whether there is evidence beyond reasonable doubt of the guilt of the person charged.
They are not considered judges, by the nature of their
functions, but merely quasi-judicial officers" (Italics supplied).
Right to a preliminary investigation; waivable
T h e right to a preliminary investigation m a y be w a i v e d
for failure to invoke the right prior to or at the t i m e 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
1. A preliminary investigation is conducted by the
prosecutor to ascertain w h e t h e r 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 p r e l i m i n a r y examination is conducted
by the judge to determine probable cause for the issuance of a
warrant of arrest. T h i s is a judicial function (People v. Inting,
187 SCRA 788; AAA v. Carbonnel, 524 SCR 496).
2.
P r e l i m i n a r y investigation is executive in nature.
It is part of the prosecutor's j o b . P r e l i m i n a r y examination is
judicial in nature and is lodged w i t h the j u d g e . Sound policy
supports this distinction. O t h e r w i s e judges would be unduly
laden w i t h 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).
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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. B e i n g based merely on
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 m o r e 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 denned 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. T h e 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 m e a n t such set of facts and circumstances
which would lead a reasonably discrete and prudent m a n 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. Kalao 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. W h i l e probable cause
demands more than "bare suspicion," it requires "less than
evidence which would justify conviction." A finding of probable
cause m e r e l y 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
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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 j u d g m e n t of conviction requires after trial on the merits.
T h e complainant need not present at this stage proof beyond
reasonable doubt. A preliminary investigation does not require
a full and exhaustive presentation of the parties' evidence. It is
enough that in the absence of a clear showing of arbitrariness,
credence is g i v e n 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 t e r m probable cause does not m e a n '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 o f constitutes the offense charged. . . . I n order
that probable cause to file a criminal case m a y be arrived at,
or in order to engender the well-founded b e l i e f that a crime
has been committed, the elements of the crime charged should
be present. This is based on the principle that e v e r y crime is
defined by its elements, without w h i c h 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 without
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 of Ologapo, et al., G.R.
No. 185121, January 18, 2010).
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Kinds of determination of probable cause
1.
T h e r e are t w o kinds of determination of probable
cause: executive and judicial.
T h e executive determination of probable cause is one
made during preliminary investigation. It is a function that
properly pertains to the public prosecutor w h o is given a
broad discretion to determine w h e t h e r probable cause exists
and to charge those w h o m he believes to h a v e committed
the crime as denned by l a w and thus should be held for
trial. O t h e r w i s e stated, such official has the quasi-judicial
authority to determine w h e t h e r or not a criminal case must be
filed in court. W h e t h e r or not that function has been correctly
discharged by the public prosecutor, i.e., w h e t h e r or not he
has m a d e a correct ascertainment of the existence of probable
cause in a case, is a m a t t e r that the trial court itself does not
and m a y not be compelled to pass upon.
T h e judicial determination of probable cause, on the other
hand, is one m a d e by the j u d g e to ascertain w h e t h e r a w a r r a n t
of arrest should be issued against the accused. T h e j u d g e must
satisfy h i m s e l f 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 j u d g e finds no probable
cause, the j u d g e cannot be forced to issue the arrest warrant.
Corollary to the principle that a j u d g e cannot be compelled to issue a w a r r a n t of arrest if he or she deems that
there is no probable cause for doing so, the j u d g e 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 w a r r a n t w a s insufficient. It must be stressed that in our
criminal justice system, the public prosecutor exercises a wide
latitude of discretion in determining w h e t h e r a criminal case
should be filed in court, and that courts must respect the exercise of such discretion w h e n the information filed against
the person charged is v a l i d on its face, and that no manifest
error or g r a v e abuse of discretion can be imputed to the public
prosecutor.
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Thus, absent a finding that an information is invalid on
its face or that the prosecutor committed manifest error or
g r a v e 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 the accused (People v. Castillo, G.R. No. 171188, June
19, 2009).
2.
Probable cause to w a r r a n t an arrest which is m a d e
by the j u d g e refers to "facts and circumstances that would
lead a reasonably discreet and prudent man to believe than
an offense has been committed by the person to be arrested.
Other jurisdictions utilize the t e r m m a n of reasonable caution
or the term ordinarily prudent and cautious man. T h e terms
are legally synonymous and their reference is not to a person
w i t h training in the l a w such as a prosecutor or a j u d g e but
the average man on the street. It ought to be emphasized that
in determining probable cause, the a v e r a g e m a n w e i g h s facts
and circumstances without resorting to the calibrations of
our technical rules of evidence of which his k n o w l e d g e is nil.
Rather, he relies on the calculus of common sense of which
all reasonable m e n h a v e an abundance (Webb v. De Leon, 247
SCRA 653; People v. Tan, G.R. No. 182310, December 9,2009).
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 w h e r e the l a w prescribes a penalty of at least four ( 4 )
years, t w o ( 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."
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2.
Before the amendatory provisions of R . A . 7691 took
effect, preliminary investigations w e r e conducted only for
offenses cognizable by Regional T r i a l Courts. Because the
jurisdiction of Municipal T r i a l Courts has been expanded by
R . A . 7691, certain offenses formerly w i t h i n the jurisdiction of
Regional T r i a l Courts came under the jurisdiction of Municipal
T r i a l Courts. Consequently, some offenses which before w e r e
not covered by the required preliminary investigation are now
subject to preliminary investigation e v e n if such offenses are
cognizable by the Municipal T r i a l Courts as long as the same
are punishable by at least four ( 4 ) years, t w o ( 2 ) months and
one (1) day.
Procedure for cases not requiring a preliminary investigation
1.
W h e r e a p r e l i m i n a r y investigation is not required
because the penalty prescribed by l a w for the offense involved
an imprisonment of less than four ( 4 ) years, t w o ( 2 ) months
and one ( 1 ) day, there are t w o w a y s of initiating a criminal
action.
( a ) First, by filing the complaint directly w i t h the
prosecutor; or
( b ) Second, by filing the complaint or information
w i t h the Municipal 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 w i t h the prosecutor (as in
M a n i l a and other chartered cities), the procedure prescribed
in Sec. 3 ( a ) of Rule 112 shall be observed. T h i s means that the
complaint shall comply w i t h the following:
( a ) T h e address of the respondent shall be indicated in the complaint;
( b ) To establish probable cause, the complaint shall
be accompanied by:
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(i)
the affidavit of the complainant; and
( i i ) the affidavits of the complainant's witnesses.
( i i i ) other supporting documents;
( c ) T h e appropriate number of copies of the above
as there are respondents, plus t w o ( 2 ) copies for the official file must be submitted; and
( d ) T h e affidavits shall be subscribed and sworn to
before any prosecutor or g o v e r n m e n t official authorized
to administer oaths, or in their absence or unavailability,
before a notary public, each of w h o m must certify that he
personally e x a m i n e d the affiants and that he is satisfied
that they voluntarily executed and understood their affidavits.
2.
T h e prosecutor is m a n d a t e d to act on the complaint
based on the affidavits and other supporting documents
submitted by the complainant w i t h i n ten ( 1 0 ) 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 w i t h
the Municipal T r i a l Court because the complaint involves
an offense punishable by imprisonment of less than four ( 4 )
years, t w o ( 2 ) months and one ( 1 ) day, the procedure outlined
in Sec. 3 ( a ) of R u l e 112 and the requirements therein shall be
observed (Sec. 8, Rule 112, Rules of Court) in the same w a y as
w h e n the complaint is filed directly w i t h the prosecutor.
2.
If within ten (10) days from the filing of the complaint or information, the j u d g e finds no probable cause, he
shall dismiss the same. Before the dismissal, the j u d g e must
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, Rule 112,
Rules of Court).
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3.
If the j u d g e desires to further determine the existence of probable cause, he may, require the submission of
additional evidence w i t h i n ten (10) days from notice (Sec. 8,
Rule 112, Rules of Court).
If the j u d g e still finds no probable cause, despite the additional evidence, the j u d g e shall dismiss the case within ten
(10) days, from the submission of additional evidence or expiration of said period (Sec. 8, Rule 112, Rules of Court).
4.
If the j u d g e finds probable cause, he shall issue a
w a r r a n t of arrest. If the accused has already been arrested,
the court shall instead issue a c o m m i t m e n t order. A warrant
of arrest m a y not also be issued if the j u d g e is satisfied that
there is no necessity for placing the accused under custody, in
which case, the court m a y issue summons instead of a warrant
of arrest (Sec. 8, Rule 112, Rules of Court).
T h e issuance of a w a r r a n t of arrest is not mandatory and
is to be issued if there is a necessity of placing the accused
under i m m e d i a t e custody but a j u d g e g r a v e l y abuses his discretion if he issues a w a r r a n t based solely on the statement
of a witness w h o w a s not e v e n 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 requires a preliminary investigation
1.
If 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, t w o ( 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
A.M. No. 05-08-26-SC, August 30, 2005). Inquest proceedings
are proper only when the accused has been lawfully arrested
without a w a r r a n t (Ladlad v. Velasco, 523 SCRA 218).
Thus, if a person is arrested by a police officer in flagrante delicto while robbing the victim through violence or intimi-
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dation, the arrest is a lawful one (Sec. 5[a] of Rule 113, Rules
of Court) and a preliminary investigation is not required even
if the penalty for robbery is more than four ( 4 ) years, t w o ( 2 )
months, and one ( 1 ) day. U n d e r A r t i c l e 294(5) of the Revised
Penal Code, the minimum penalty for robbery is prision correctional in its m a x i m u m period which is six ( 6 ) years under
Article 27 of the same code. T h e offense is one which involves
a penalty higher than four ( 4 ) years, t w o ( 2 ) months, and one
( 1 ) day and the arrested person would normally be entitled
to a preliminary investigation. In this case h o w e v e r , a preliminary investigation does not apply because he w a s validly
arrested.
2.
If he has been arrested in a place w h e r e an inquest
prosecutor is available, an inquest w i l l be conducted instead of
a preliminary investigation. In the absence or unavailability
of an inquest prosecutor, the complaint m a y be filed directly
w i t h 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).
Person arrested lawfully may ask for a preliminary investigation
1.
U n d e r Sec. 6 (formerly Sec. 7) of R u l e 112, although
an inquest is the proceeding which shall normally apply w h e n
a person is lawfully arrested, such person m a y nevertheless,
ask for a preliminary investigation in accordance w i t h Rule
112, before the complaint or information is filed but he must
sign a w a i v e r of the provisions of A r t i c l e 125 of the R e v i s e d
Penal Code, as amended, in the presence of his counsel. T h e
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 w a s 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,
he must sign a w a i v e r of the provisions of A r t i c l e 125 of the
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163
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 t w e l v e
( 1 2 ) , eighteen (18) or thirty six (36) hours as the case m a y be.
2.
Be it noted that by virtue of R . A . 7438, any w a i v e r
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 w a i v e r shall be null and
void (Sec. 2, RA. 7438).
3.
Observe that the person lawfully arrested m a y
ask for a preliminary investigation before the filing of the
information. T h i s is not h o w e v e r , to be taken to m e a n that the
filing of the complaint or information bars h i m from asking
for a p r e l i m i n a r y investigation. U n d e r current rules, if an
information or complaint has already been filed, the person
arrested w h o is n o w an accused, m a y still ask for a preliminary
investigation w i t h i n five ( 5 ) days from the t i m e he learns of its
filing, w i t h the same right to adduce evidence in his defense
under R u l e 112 (Sec. 6, Rule 112, Rules of Court).
C o m m o n reason suggests that because the complaint or
information has already been filed, the court has now assumed
jurisdiction over the case. H e n c e , the accused should address
the motion for the holding of a preliminary investigation to the
court. W h i l e l a w y e r s traditionally call the motion a "motion for
re-investigation," the t e r m 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 w h e n compared to the essence of the motion.
Bail for a person lawfully arrested during the preliminary investigation
1.
T h e w a i v e r by the person lawfully arrested of the
provisions of A r t i c l e 125 of the Revised Penal Code does not
preclude him from applying for bail (Sec. 6, Rule 112, Rules of
Court).
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N o t e 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 w a i v e r of
the provisions of A r t i c l e 125 of the R e v i s e d Penal Code (Sec.
6, Rule 112, Rules of Court) and e v e n if no information has y e t
been filed against him. H i s 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.
T h e bail must h o w e v e r , be applied for and issued
by the court in the province, city, or municipality w h e r e the
person arrested is held.
In one case, the accused w a s arrested lawfully without a
warrant for carnapping and detained at C a m p C r a m e in Quezon City. He asked for a p r e l i m i n a r y investigation and signed
a w a i v e r of the provisions of A r t i c l e 125 of the R e v i s e d P e n a l
Code. H o w e v e r , the assisting j u d g e of a M a r i k i n a Regional
Trial Court approved the bail bond for the accused w h o w a s
being held in Quezon City. T h e Supreme Court held that w h i l e
a person lawfully arrested and detained and not y e t formally
charged can apply for bail, the application must be filed in
the province, city or municipality w h e r e the person arrested is
held. In this case, the bail application should h a v e been filed
w i t h a Quezon C i t y court which has the authority to grant bail
and not a M a r i k i n a court (Ruiz v. Beldia, Jr., 451 SCRA 402).
Questioning the absence of a preliminary investigation
1.
An accused w h o wants to question the absence of
a preliminary investigation must do so before he enters his
plea. T h e court shall resolve the matter as early as practicable
but not later than the start of the trial. An 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 w a i v e r
(People v. Gomez, 117 SCRA 73).
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2.
T h e rule on w a i v e r is not new. T h e Court has
consistently held long ago that after a plea of not guilty is
made, an accused is deemed to have forgone the right the
absence of a preliminary investigation or any irregularity
that surrounds it (People v. Cierbo, 143 SCRA 689; 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 p r e l i m i n a r y investigation is not one of the
grounds for a motion to quash under Sec. 3 of Rule 117.
It w a s 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 r e m a n d the case to the prosecutor so
that the investigation m a y be conducted (Larrahaga v. Court
of Appeals, 287 SCRA 581; Ong v. Sandiganbayan, G.R. No.
126858, September 26, 2005).
For instance, in an early graft case, w h e r e the accused
w e r e deprived of a full p r e l i m i n a r y investigation preparatory to the filing of the informations against them, the Court
emphasized that such fact does not w a r r a n t the quashal of
the information, nor should it obliterate the proceedings already had. N e i t h e r 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).
Absence of preliminary investigation; effect on jurisdiction
of the court
T h e absence of preliminary investigation does not affect
the court's jurisdiction over the case nor does it impair the
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validity of the information or otherwise, render it defective
(Rodis v. Sandiganbayan, 166 SCRA 618; People v. Deang,
338 SCRA 657; People v. De Asis, 228 SCRA 267; 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
T h e absence of a p r e l i m i n a r y 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 applies w h e n a person is lawfully arrested without a w a r r a n t i n v o l v i n g 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 s u m m a r y 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 w h e r e a person has been lawfully arrested
and detained without a w a r r a n t 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).
2.
T h e inquest is conducted by a public prosecutor
who is assigned inquest duties as an Inquest Officer and is to
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167
discharge his duties only at the police stations/headquarters
of the P N P in order to expedite and facilitate the disposition
of inquest cases (Sec. 2, Part II, Manual for Prosecutors).
3.
T h e inquest proceedings shall be deemed commenced
from the time the Inquest Officer receives the complaint and
referral documents from the l a w 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.
T h e 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.
T h e detained person should be present during the
inquest proceedings unless reasons exist that would dispense
w i t h his presence like confinement in a hospital, detention
in a place requiring m a x i m u m 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 t h e m 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.
T h e Inquest Officer has an initial duty. This duty
is to determine if the detained person has been arrested
lawfully in accordance w i t h Sec. 5 ( a ) and ( b ) , of Rule 113 of
the Rules of Court. F o r 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 w i t h the Rules of Court, the Inquest Prosecutor
shall not proceed w i t h the inquest proceedings. Instead,
he shall recommend the release of the detainee, note down
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the disposition on the referral document, prepare a brief
memorandum indicating the reasons for the action he took
and forward the same together w i t h the record of the case, to
the City of the Provincial Prosecutor for appropriate action
(Sec. 9, Part II, Manual for Prosecutors).
W h e n the recommendation is approved, the order of
release shall be served on the officer h a v i n g custody of said
detainee so the latter m a y be released. T h e officer shall also
serve upon 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. T h e 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 w a s properly
effected, the inquest shall proceed but the Inquest Officer shall
first ask the detained person if he desires to avail h i m s e l f of a
preliminary investigation and if he does, he shall be m a d e to
execute a w a i v e r of the provisions of A r t i c l e 125 of the Revised
Penal Code w i t h the assistance of a l a w y e r . T h e preliminary
investigation m a y be conducted by the Inquest Officer himself
or by any other Assistant Prosecutor to w h o m the case m a y be
assigned (Sec. 10, Part II, Manual for Prosecutors).
If the Inquest Prosecutor finds that probable cause
exists, he shall prepare the corresponding information w i t h
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
T h e inquest conducted must be for the offense for which
the detainee w a s arrested. A violation of this basic rule is
exemplified by the case of Beltran v. People (G.R. No. 175013,
June 1, 2007).
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T h e case involved petitioners in the consolidated petitions
who w e r e incumbent congressmen and representatives of
party-list groups w h i l e the others w e r e private individuals.
T h e 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 ( D O J ) and the R e g i o n a l T r i a l Court of M a k a t i
City ( R T C M a k a t i ) on the investigation and prosecution of
petitioners' cases.
One of the petitioners w a s Crispin Beltran who was
arrested without a w a r r a n t following the issuance by President
Gloria M a c a p a g a l - A r r o y o o f Presidential Proclamation N o .
1017 on 24 February 2006 declaring a "State of N a t i o n a l
Emergency." W h e n he w a s arrested, Beltran w a s not informed
of the crime for which he w a s arrested. On the evening of his
arrest, B e l t r a n w a s subjected to an inquest at the Quezon City
H a l l of Justice for Inciting to Sedition under A r t i c l e 142 of the
R e v i s e d P e n a l Code based on a speech B e l t r a n allegedly g a v e
during a rally in Quezon C i t y on 24 February 2006, on the
occasion of the 20th anniversary of the E D S A Revolution. T h e
inquest w a s based on the j o i n t affidavit of Beltran's arresting
officers w h o claimed to h a v e been present at the rally. T h e
joint affidavit of Beltran's arresting officers stated that the
officers arrested Beltran, without a warrant, for Inciting to
Sedition. T h e inquest prosecutor indicted Beltran and filed
the corresponding Information w i t h the Metropolitan T r i a l
Court o f Quezon C i t y ( M e T C ) .
Several days after the first inquest, he w a s again subjected to a second inquest but this time for rebellion allegedly
committed w i t h a certain 1st L t . L a w r e n c e San Juan (San
Juan). T h e inquest w a s allegedly based on the letters of
C I D G investigators claiming that Beltran and San Juan were
allegedly the leaders and promoters of an alleged foiled plot
to overthrow the A r r o y o government. T h e plot was supposed
to be carried out jointly by members of the Communist P a r t y
of the Philippines ( C P P ) and the M a k a b a y a n g K a w a l ng
Pilipinas ( M K P ) , which have formed a "tactical alliance."
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T h e panel of prosecutors from the D O J 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. T h e panel then filed an
Information with the R T C M a k a t i .
Beltran m o v e d that the R T C m a k e a judicial determination
of probable cause against h i m but the court sustained the
finding of probable cause against Beltran. Beltran sought
reconsideration but the Judge like the first j u d g e of the court
in which the case w a s originally filed, also inhibited herself
from the case without resolving Beltran's motion. T h e n e w
Judge of the court to which the case w a s re-raffled denied the
motion for reconsideration of Beltran. H e n c e , 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. T h e petition l i k e w i s e raised the v a l i d i t y of the
inquest proceedings against Beltran.
T h e Supreme Court held that the inquest proceedings
against Beltran for rebellion is v o i d . Inquest proceedings,
declared the Court are proper only w h e n the accused has been
lawfully arrested without w a r r a n t . T h i s is clear from Sec. 7 of
Rule 112 of the Rules of Court.
T h e joint affidavit of Beltran's arresting officers states
that the officers arrested Beltran, without a warrant, for
Inciting to Sedition, and not for Rebellion. T h u s , the inquest
prosecutor could only h a v e 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. N o n e
of Beltran's arresting officers saw Beltran commit, in their
presence, the crime of Rebellion. N o r did they h a v e personal
knowledge of facts and circumstances that Beltran had just
committed Rebellion, sufficient to form probable cause to
believe that he had committed Rebellion. W h a t these arresting
officers alleged in their affidavit is that they saw and heard
Beltran make an allegedly seditious speech on a certain date
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but the affidavits did not m a k e reference to acts constituting
rebellion.
T h e Court pointed out that under D O J Circular N o .
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 w i t h the provisions of paragraphs
( a ) and ( b ) of Sec. 5, R u l e 113. If the arrest w a s not properly
effected, the inquest officer should proceed under Section 9 of
Circular N o . 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."
F o r the failure of Beltran's panel of inquest prosecutors
to comply w i t h Sec. 7, Rule 112 in relation to Sec. 5, Rule 113
and D O J Circular N o . 6 1 , Beltran's inquest w a s 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.
T h e following are authorized to conduct a preliminary
investigation:
(a)
tants;
Provincial or City Prosecutors and their assis-
( b ) N a t i o n a l and Regional State Prosecutors; and
(c)
Other officers as maybe authorized by law.
T h e 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 but effective October 3, 2005).
Before the amendments, j u d g e s of the Municipal T r i a l
Courts and Municipal Circuit T r i a l Courts w e r e allowed to
conduct preliminary investigations (Mago v. Penalosa-Fermo,
582 SCRA 1). Judges of first level courts are no longer allowed
to conduct preliminary investigations (Sibulo v.
ToledoMupas, A.M. No. MTJ-07-1686, June 12, 2008).
2.
T h e following are also authorized to conduct a
preliminary investigation:
( a ) U n d e r the amendments to the Omnibus Election Code, the Commission on Elections, through its duly
authorized legal officers, has the power, concurrent w i t h
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 R.A. 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 ( C O M E L E C ) to
prosecute election-related cases w h e n he filed amended
informations in court against the respondent even after
he had been directed by the L e g a l Department of the
C O M E L E C to suspend the implementation of his joint
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173
resolution (which found that the respondent should be
indicted) but before his delegated authority had been revoked by the C O M E L E C en banc.
"The Constitution, particularly Sec. 20, Article IX,
empowers the C O M E L E C to investigate and, w h e n appropriate, prosecute election cases. Furthermore, under
Section 265 of the O E C , the C O M E L E C , through its duly
authorized legal officers, has the exclusive power to conduct the preliminary investigation of all election offenses
punishable under the O E C and to prosecute the same.
U n d e r Section 265 o f the O E C , the C O M E L E C m a y avail
itself of the assistance of other prosecuting arms of the
g o v e r n m e n t . T h u s , Section 2, Rule 34 of the C O M E L E C
Rules of Procedure provides for the continuing delegation
of authority to other prosecuting arms of the government,
which authority, h o w e v e r , m a y be revoked or w i t h d r a w n
at anytime by the C O M E L E C in the proper exercise of its
j u d g m e n t . Sec. 10 of the same R u l e 34 g i v e s the C O M E L E C the power to motu proprio revise, modify and reverse the resolution of the C h i e f State Prosecutor and/or
provincial/city prosecutors.
"Clearly, the C h i e f State Prosecutor, all Provincial
and C i t y Fiscals, and/or their respective assistants have
been g i v e n continuing authority, as deputies of the Commission, to conduct a p r e l i m i n a r y investigation of complaints i n v o l v i n g election offenses under the election
l a w s and to prosecute the same. H o w e v e r , such authority m a y be revoked or w i t h d r a w n a n y t i m e by the C O M E L E C either expressly or impliedly, w h e n in its judgment,
such revocation or w i t h d r a w a l is necessary to protect
the integrity of the process to promote the common good
or w h e r e it believes that the successful prosecution of
the case can be done by the C O M E L E C . M o r e o v e r , being mere deputies or agents of the C O M E L E C , provincial or city prosecutors deputized by it are expected to
act in accord w i t h and not contrary to or in derogation
of the resolutions, directives or orders of the C O M E L E C
in relation to election cases w h e r e it had been deputized
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
to investigate and prosecute by the C O M E L E C . As mere
deputies, provincial and city prosecutors acting on behalf
of the C O M E L E C must proceed within the lawful scope
of their delegated authority (Bievenido Dino and Renato
Comparativo v. Pablo Olivarez, G.R. No. 170447, December 4, 2009).
N o t e : T h i s case had been filed in 2004 before the
amendment introduced by R . A . 9369 in January 23,
2007 and should n o w be interpreted in accordance w i t h
the amendment. U n d e r Sec. 43 thereof, the p o w e r of the
C O M E L E C to investigate and prosecute election offenses is now concurrent w i t h the other prosecuting arms of
the government. T h e other prosecuting arms of the government, it is humbly submitted no longer need to be
deputized b y the C O M E L E C . T h e original provision o f
A r t . 265 of the Omnibus Election Code provided that the
C O M E L E C , through its legal officers, "have the exclusive
power to conduct p r e l i m i n a r y investigation of all election
offenses... T h e Commission m a y avail of the assistance of
other prosecuting arms of the g o v e r n m e n t . . . " T h e difference between the original A r t . 265 and its amended version warrants a modification of existing case l a w on the
matter.
(b)
T h e Office of the Ombudsman has the authority
to investigate and prosecute on its o w n or on complaint
by any person, any act or omission of any public officer or
employee, office or agency, w h e n 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 information relat-
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175
ing to matters under its investigation. T h e grant of this
authority, h o w e v e r , is not unlimited, as the Ombudsman
must necessarily observe and abide by the terms of the
Constitution and our l a w s , the Rules of Court and the
applicable jurisprudence on the issuance, service, validity and efficacy of subpoenas. U n d e r the Rules of Court,
the issuance of subpoenas, including a subpoena duces
tecum, operates under the requirements of reasonableness and relevance. F o r the production of documents to
be reasonable and for the documents themselves to be
relevant, the m a t t e r under inquiry should, in the first
place, be one that the O m b u d s m a n can l e g i t i m a t e l y entertain, i n v e s t i g a t e and rule upon (Re: Subpoena Duces
Tecum dated January 11, 2010 of Acting Director Aleu A.
Amante, PIAB-C Office of the Ombudsman, A.M. No. 101-13-SC, March 2, 2010).
(c)
T h e Presidential Commission on Good Government w i t h the assistance of the Office of the Solicitor
General and other g o v e r n m e n t agencies is e m p o w e r e d
to investigate, file and prosecute cases investigated by it
(Sec. 1, Executive Order No. 14, May 7, 1986).
The procedure for preliminary investigation must be strictly
followed
O n e case illustrates a disregard of the proper procedure
in the conduct of p r e l i m i n a r y investigation.
A preliminary investigation of the rebellion charges
against L a d l a d and M a z a w a s held before a panel of D O J
prosecutors on the basis of the unsubscribed letters of C I D G
investigators alleging that the petitioners h a v e committed acts
constituting rebellion. D u r i n g the preliminary investigation,
the counsel for the C I D G presented a masked man, who
claimed to be an eyewitness against petitioners in a complaint
for rebellion. T h e man subscribed to his affidavit before one
of the respondent prosecutors w h o then g a v e copies of the
affidavit to media members present during the proceedings.
T h e panel of prosecutors g a v e petitioners 10 days within
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
which to file their counter-affidavits but the petitioners w e r e
furnished the complete copies of documents supporting the
C I D G ' s letters much later.
Petitioners moved for the inhibition of the members of the
prosecution panel for lack of i m p a r t i a l i t y and independence,
considering the political milieu under which petitioners w e r e
investigated, the statements that the P r e s i d e n t and the Secretary of Justice m a d e to the media r e g a r d i n g petitioners' case,
and the manner in which the prosecution panel conducted
the preliminary investigation. T h e D O J panel of prosecutors
denied petitioners' motion as w e l l as the subsequent motion
for reconsideration.
Petitioners sought the nullification of the orders of the
D O J panel and for the issuance of an injunctive w r i t . A c t i n g
on petitioners' prayer for the issuance of an injunctive w r i t ,
the Court issued a status quo order. P r i o r to this, h o w e v e r ,
the panel of prosecutors, issued a resolution finding probable
cause to charge petitioners and 46 others w i t h rebellion. T h e
prosecutors filed the corresponding Information w i t h R T C
M a k a t i , Consequently, the petitioners L a d l a d and M a z a
filed a supplemental petition to enjoin the prosecution of the
criminal case because of irregularities in the p r e l i m i n a r y
investigation.
In deciding the petition, the Court started by outlining
the procedure for the p r e l i m i n a r y investigation of offenses
punishable by at least four y e a r s , t w o months and one day as
embodied in Sec. 3, R u l e 112 of the R e v i s e d Rules of C r i m i n a l
Procedure.
T h e 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 w i t h Sec. 3 ( a ) of
Rule 112 which provides that the complaint (which, w i t h its
attachment, must be of such number as there are respondents)
be accompanied by the affidavits of the complainant and his
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177
witnesses, subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in their
absence or unavailability, before a notary public. Respondent
prosecutors treated the unsubscribed letters of the officers of
C I D G - P N P as complaints and accepted the affidavits attached
to the letters e v e n though some of them w e r e notarized by
a notary public without any showing that a prosecutor or
qualified g o v e r n m e n t official w a s unavailable as required by
Sec. 3 ( a ) of Rule 112.
Further, Sec. 3 ( b ) of Rule 112 mandates that the prosecutor, after r e c e i v i n g the complaint, must determine if
there are grounds to continue w i t h the investigation. If there
is none, he shall dismiss the case, otherwise he shall "issue
a subpoena to the respondents." H e r e , after receiving the
C I D G letters, respondent prosecutors peremptorily issued
subpoenas to petitioners r e q u i r i n g t h e m to appear at the D O J
office on a certain date "to secure copies of the complaints
and its attachments." D u r i n g the investigation, respondent
prosecutors a l l o w e d the C I D G to present a masked man
who subscribed to an affidavit before respondent prosecutor
Velasco. V e l a s c o proceeded to distribute copies of the affidavit
of the m a n w h o later turned out to a certain Fuentes, not to
petitioners or their counsels but to m e m b e r s of the media
who covered the proceedings. Respondent 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 C I D G letters.
T h e s e uncontroverted facts belie respondent prosecutors'
statement in that the p r e l i m i n a r y investigation "was done in
accordance w i t h the R e v i s e d Rules o[f] C r i m i n a l 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 h a v e 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 w a s a sham.
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T h e Court stressed:
A preliminary investigation is the crucial sieve in
the criminal justice system which spells for an individual
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. Senior State Prosecutor Velasco, G.R. Nos. 172070-72, June 1, 2007; Maza v.
Secretary 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 w i t h 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. T h e s e affidavits and supporting
documents are required in order to establish probable cause.
T h e number of copies to be filed shall be in such number as
there are respondents plus t w o ( 2 ) copies for the official file
(Sec. 3[a], Rule 112, Rules of Court).
N o t e that the complaint filed for the purpose of preliminary
investigation differs from the complaint filed for the purpose
of instituting a criminal prosecution. T h e 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).
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2.
T h e rule establishes a hierarchy w i t h respect to the
persons before w h o m the affidavits m a y be subscribed and
sworn to.
T h e 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 g o v e r n m e n t official authorized
to administer oaths. In their absence or in case they are
unavailable, the affidavits m a y be subscribed and sworn to
before a notary public (Sec. 3[a], Rule 112, Rules of Court).
3.
T h e prosecutor, officer or notary public before w h o m
the affidavits w e r e subscribed and sworn does not perform
a m e r e perfunctory or mechanical duty. He is obligated to
conduct a personal examination of the affiants and corollarily,
to certify that he personally e x a m i n e d 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.
F r o m the filing of the complaint, the investigating
officer has ten ( 1 0 ) days w i t h i n 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 w i t h the investigation, in
which case the subpoena shall be accompanied w i t h the
complaint and its supporting affidavits and documents
(Sec. 3[b], Rule 112, Rules of Court).
2.
T h e respondent to w h o m the subpoena was issued
shall have the right to examine the evidence submitted by
the complainant which he m a y not h a v e been furnished and
to copy them at his expense. If the evidence is voluminous,
the complainant m a y 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
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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).
Filing of counter-affidavit by the respondent; no motion to
dismiss
1. T h e respondent w h o 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.
T h e counter-affidavits shall be subscribed and sworn
to before any prosecutor or before any g o v e r n m e n t official
authorized to administer oaths. In their absence or in case
they are unavailable, the affidavits m a y be subscribed and
sworn to before a notary public. T h e officer or notary public
before w h o m the affidavits w e r e subscribed and sworn to must
certify that he personally e x a m i n e d 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).
N o t e : W h i l e the rule does not specifically mention other
affidavits, it is a common practice to a l l o w the filing of a reply
to the counter-affidavit usually denominated as a reply-affidavit. T h e respondent m a y l i k e w i s e 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 w i t h i n the ten-day period granted him,
the investigating officer shall resolve the complaint based on
the evidence presented by the complainant. T h e same rule
shall apply in case the respondent cannot be subpoenaed (Sec.
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181
3[d], Rule 112, Rules of Court). T h i s situation would have
the effect of an ex parte investigation because the respondent
cannot or does not participate in the proceedings.
N o t e : Since the Rules of Court are to be liberally construed,
the respondent should be allowed, through a proper motion,
to h a v e the proceedings reopened to allow him to submit his
counter-affidavit and the affidavits of his witnesses and other
evidence he m a y present. T h e motion h o w e v e r , should be
done before the prosecutor has issued a resolution in the case.
Further, such motion should contain an explanation for the
failure to t i m e l y file the counter-affidavit
Clarificatory hearing if necessary; no right of cross-examination
1.
W i t h i n ten ( 1 0 ) days from the submission of the
counter-affidavit, other affidavits and documents filed by the
respondent, or w i t h i n ten ( 1 0 ) days from the expiration of
the period for their submission, a h e a r i n g m a y be set by the
investigating officer, if there are facts and issues to be clarified
either from a party or a witness. T h e parties can be present
at the hearing but do not h a v e the right to e x a m i n e or crossexamine each other or the witnesses. If they h a v e questions
to ask, they shall submit the questions to the investigating
officer w h o shall ask the questions to the party or witness
concerned. T h e hearing shall be terminated w i t h i n five ( 5 )
days (Sec. 3 [e], Rule 112, Rules of Court).
2.
A clarificatory h e a r i n g is not indispensable during
preliminary investigation. U n d e r 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
(Paderanga v. Drilon, 196 SCRA 86; 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
W i t h i n ten (10) days from the termination of the investigation, the investigating prosecutor shall determine whether
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or not there is sufficient ground to hold the respondent for
trial (Sec. 3 [f], Rule 112, Rules of Court).
Discretion of prosecutor in filing of a criminal complaint or
information (Bar 1999)
1.
T h e determination of probable cause during a preliminary investigation or reinvestigation is recognized as an
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 a v e r m e n t s . Prosecuting officers
have equally the duty not to prosecute w h e n after investigation or reinvestigation they are convinced that the evidence
adduced w a s not sufficient to establish a prima facie case.
Thus, the determination of the persons to be prosecuted rests
primarily w i t h the prosecutor w h o is vested w i t h discretion in
the discharge of this function (Depasquier 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, Crespo v. Mogul). Since discretion is
involved in the determination of probable cause, mandamus
as described in R u l e 65, w i l l 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 w h e r e 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.
T h e information shall contain a certification by
the investigating officer under oath in which he shall certify
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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
( e ) that he w a s g i v e n 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 v a l i d 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). W h a t is not
allowed is the filing of the information without a preliminary
investigation h a v i n g 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.
W i t h i n 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 O m b u d s m a n or his deputy
in cases of offenses cognizable by the Sandiganbayan in the
exercise of its original jurisdiction. T h e y shall act on the
resolution within ten ( 1 0 ) days from their receipt thereof and
shall i m m e d i a t e l y inform the parties of such action (Sec. 4,
Rule 112, Rules of Court).
2.
T h e reason for the i m m e d i a t e l y 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
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deputy (Sec. 4, Rule 112, Rules of Court). Thus, the resolution
of the investigating prosecutor m a y be reversed or affirmed by
the provincial or city prosecutor or chief state prosecutor, or to
the Ombudsman.
Rule when recommendation for dismissal is disapproved
W h e r e the investigating prosecutor, recommends
the dismissal of the complaint but his recommendation is
disapproved by the provincial or city prosecutor or chief state
prosecutor or the O m b u d s m a n or his deputy on the ground
that a probable cause exists, the latter, m a y by himself, file
the information against the respondent, or direct another
assistant prosecutor or state prosecutor to do so without
conducting another p r e l i m i n a r y investigation (Sec. 4, Rule
112, Rules of Court).
Motion for reconsideration
T h e a g g r i e v e d party under current practice is not
precluded from filing a motion for reconsideration before the
Office of the Prosecutor w i t h i n 15 days from receipt of the
assailed resolution. If the motion is denied, the a g g r i e v e d
party m a y appeal w i t h i n fifteen ( 1 5 ) days from the denial
of the motion for reconsideration (Sec. 3, 2000 NPS Rule on
Appeal, DOJ Department Circular No. 70).
Appeals to the Secretary of Justice; filing a petition for review
1.
In cases subject of p r e l i m i n a r y investigation or reinvestigation, an appeal m a y be brought to the Secretary of
Justice from the resolutions of the C h i e f State Prosecutor, R e gional State Prosecutors and Provincial/City Prosecutor (Sec.
1, Department Circular No. 70, NPS Rule On Appeal, Department of Justice, July 3,2000). T h e 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.J, Inc. v. Talavera,
455 SCRA 34).
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185
2.
T h e appeal shall be taken w i t h i n fifteen (15) days
from receipt of the assailed resolution. If a motion for reconsideration/reinvestigation has been filed within fifteen (15)
days from receipt of the assailed resolution, the appeal shall
be taken within fifteen ( 1 5 ) days from receipt of the denial of
the motion for reconsideration/reinvestigation (Sec. 3, Department Circular No. 70). N o t e : U n d e r the same provision, only
one motion for reconsideration is allowed.
3.
T h e appeal is m a d e by filing a petition for r e v i e w
w i t h the Office of the Secretary, D e p a r t m e n t of Justice. T h i s
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).
T h e petition must contain the matters mandated under Sec. 5
of Department Circular N o . 70 and failure to comply w i t h the
same shall constitute sufficient ground for the dismissal of the
petition (Sec. 7, Department Circular No. 70).
W i t h i n a non-extendible period of fifteen ( 1 5 ) days from
receipt of the copy of the petition, the adverse party m a y file
a verified comment. T h e investigating/reviewing/approving
prosecutor need not submit any comment except w h e n directed
by the Secretary of Justice (Sec. 8, Department Circular No.
70).
If no comment is filed w i t h i n the prescribed period, the
appeal shall be resolved on the basis of the petition (Sec. 8,
Department Circular No. 70).
N o t e : T h e 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).
N o t e also that the party filing a petition for r e v i e w is
allowed to file a motion for the suspension of the arraignment.
Under Sec. 11 of Rule 116, upon motion by the proper party, the
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
186
arraignment shall be suspended, among others, if a petition
for r e v i e w 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 m a y 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
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 p o w e r of r e v i e w (Sec. 7, Department Circular
No. 70).
5.
T h e Secretary of Justice m a y reverse, affirm or modify the appealed resolution. He m a y also dismiss the petition
for r e v i e w motu propio or upon motion on any of the following
grounds:
( a ) T h a t the petition for r e v i e w w a s filed beyond
the period prescribed;
( b ) T h a t the prescribed procedure and requirements provided in D e p a r t m e n t Circular N o . 70 w e r e not
complied with;
(c)
T h a t there is no showing of any reversible er-
ror;
( d ) T h a t the appealed resolution is interlocutory in
nature, except w h e n it suspends the proceedings based
on the alleged existence of a prejudicial question;
( e ) T h a t the offense has already prescribed; and
( f ) T h a t there are other legal and factual grounds
that exist to w a r r a n t a dismissal (Sec. 12, Department
Circular No. 70).
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187
T h e 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.
T h e party a g g r i e v e d by the decision of the Secretary
of Justice m a y file a motion for reconsideration within a
non-extendible period of ten ( 1 0 ) 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
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
T h e 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 propio, 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 p r e l i m i n a r y investigation, or to dismiss or
m o v e for dismissal of the complaint or information w i t h notice
to the parties (Sec. 4, Rule 112, Rules of Court).
Power of the Secretary of Justice to reverse resolutions of
prosecutors
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 j u d g m e n t of the former for that of the latter.
W h i l e it is the duty of the fiscal to prosecute persons who, according to evidence received from the complainant, are shown
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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 w h e r e he is
not convinced that the evidence would w a r r a n t the filing of
an action in court. He has the ultimate power to decide which
as 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 D O J Secretary's power of control over the authority of a state prosecutor 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."
It is only w h e r e the decision of the Justice Secretary
is tainted w i t h g r a v e abuse of discretion amounting to lack
or excess of jurisdiction that the Court of A p p e a l s m a y take
cognizance of the case in a petition for certiorari under R u l e 65
of the Revised Rules of C i v i l Procedure. T h e Court of A p p e a l s
decision may then be appealed to the Supreme Court by w a y
of a petition for r e v i e w 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.
T h e rule is that the D O J is not a quasi-judicial
agency exercising a quasi-judicial function when it reviews
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189
the findings of a public prosecutor regarding the presence of
probable cause and that its findings are not reviewable by the
Court of A p p e a l s in a petition for r e v i e w 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. T h e r e m e d y 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 r e v i e w under Rule 43 of the
Rules of Court w a s the proper r e m e d y of respondent against
the resolution of the Secretary of Justice.
In Alcaraz, the Court agreed w i t h petitioner's contention
that respondent resorted to an improper r e m e d y w h e n he
filed a petition for r e v i e w under R u l e 43 of the Rules of Court,
instead of filing a petition for certiorari under Rule 65.
It w a s stressed that in the determination of probable
cause during the p r e l i m i n a r y investigation, the executive
branch of g o v e r n m e n t has full discretionary authority. Thus,
the decision w h e t h e r or not to dismiss the criminal complaint
against the p r i v a t e respondent is necessarily dependent on
the sound discretion of the I n v e s t i g a t i n g 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 R e v i s e d A d m i n i s t r a t i v e Code, exercises
the power of control and supervision over said Investigating
Prosecutor; and w h o m a y affirm, nullify, reverse, or modify
the ruling of such prosecutor. T h u s , w h i l e the CA may review
the resolution of the Justice Secretary, it m a y 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
g r a v e abuse of his discretion amounting to excess or lack of
jurisdiction.
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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.
U n d e r the 1993 Revised Rules on A p p e a l s ( n o w the 2000
National Prosecution Service Rules on A p p e a l s ) , resolutions
in preliminary investigations or reinvestigations from the
Justice Secretary's resolution, the a g g r i e v e d party has no more
remedy of appeal except to file a motion for reconsideration of
the said resolution. T h e r e m e d y of the a g g r i e v e d party is to
file a petition for certiorari under R u l e 65 of the Rules of Court
since there is no m o r e appeal or other r e m e d y available in the
ordinary course of l a w .
In Alcaraz, the respondent filed a petition for r e v i e w
under Rule 43 of the Rules of Court, assailing the resolutions
of the Justice Secretary. Instead of dismissing the petition,
however, the CA g a v e due course to it and thereafter granted
the petition on its finding that the Justice Secretary erred
in reversing the resolution of the I n v e s t i g a t i n g 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 w h a t
constitutes sufficient evidence as w i l l establish probable cause
for the filing of information against the supposed offender. But
as in e v e r y rule, there are settled exceptions. T h e principle
does not apply w h e n there is a g r a v e abuse of discretion which
would authorize the a g g r i e v e d person to file a petition for
certiorari and prohibition under R u l e 65, 1997 Rules of Civil
Procedure (Sy Thiong Shiou v. Sy Chim, G.R. No. 174168,
March 30, 2009).
4.
In y e t another case, the Respondents argue that the
findings of the D O J in affirming, modifying or reversing the
recommendations of the public prosecutor dismissing certain
criminal complaints cannot be the subject of certiorari or
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191
r e v i e w of the Court of A p p e a l s because the D O J is not a quasijudicial body w i t h i n the p u r v i e w 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 D O J
is not a quasi-judicial agency exercising a quasi-judicial
function w h e n it r e v i e w s 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.
T h e Court further declared that it has adopted a policy of noninterference in the conduct of preliminary investigations and
leaves to the i n v e s t i g a t i n g prosecutor sufficient latitude of
discretion in the determination of w h a t constitutes sufficient
evidence as w i l l establish probable cause for the filing of
information against the supposed offender.
H o w e v e r , 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 w a s similarly ruled that w h i l e it
is generally the Secretary of Justice w h o has the authority to
r e v i e w the decisions of the prosecutors, the same precedential
principles apply in full force and effect to the authority of the
Court of A p p e a l s to correct the acts tainted w i t h g r a v e abuse
of discretion by the prosecutorial officers notwithstanding the
filing of the informations (Filemon A. Verzano, Jr. v. Francis
Vitor D. Paro, G.R. No. 171643, August 8, 2010).
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Appeal to the Office of the President
1. W h i l e judicial pronouncements do not allow an appeal to the Court of A p p e a l s 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. L i k e w i s e , M e m o r a n d u m
Circular N o . 58 dated June 30, 1993 provides that appeals
from or petition for r e v i e w of "decisions/orders/resolutions
of the Secretary of Justice on p r e l i m i n a r y investigations of
criminal cases are entertained by the Office of the President"
under the following conditions w h i c h h a v e to be established as
jurisdictional facts:
( a ) T h e offense i n v o l v e d is punishable by reclusion
perpetua to death;
( b ) N e w and m a t e r i a l issues are raised which w e r e
not previously presented before the D e p a r t m e n t of Justice and w e r e not hence, ruled upon;
( c ) T h e prescription of the offense is not due to
lapse w i t h i n six ( 6 ) months from notice of the questioned
resolution; and
( d ) T h e appeal or petition for r e v i e w is filed w i t h i n
thirty ( 3 0 ) days from notice.
If the appeal does not clearly fall w i t h i n 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 r e v i e w m a y be taken to the Court
of Appeals within fifteen ( 1 5 ) 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 O S G contends that instead of filing
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193
a Rule 65 petition w i t h the Supreme Court, the petitioner
should have availed of Rule 43 in the case under consideration.
Thus, the O S G argues that the petition should be dismissed
outright for being a w r o n g mode of appeal. On the other hand,
assuming Rule 65 applies, the O S G points out that the petition
for certiorari should be filed w i t h the Court of Appeals.
De Ocampo held that based on Memorandum Circular
No. 58 the resolution of the D O J Secretary is appealable
administratively to the Office of the President since the
offenses charged in this case are punishable by reclusion
perpetua. T h e Court further explained that e v e n assuming
that the D O J Secretary committed a g r a v e abuse of discretion
amounting to lack or excess of jurisdiction in rendering the
assailed resolutions, the petitioner should h a v e filed the
instant petition for certiorari w i t h the Court of A p p e a l s . Hence,
on the issue alone of the propriety of the r e m e d y sought by
petitioner, the petition for certiorari must fail.
Appeals under Rule 43 and Rule 45
1.
F r o m the Office of the President, the a g g r i e v e d party
may file an appeal w i t h the Court of A p p e a l s pursuant to Rule
43. U n d e r Sec. 1 of R u l e 43, the final orders or resolutions
of the Office of the P r e s i d e n t is appealable to the Court of
Appeals by filing a verified petition for r e v i e w following the
procedure set by Sec. 5 and 6 of Rule 43.
2.
T h e party a g g r i e v e d by the j u d g m e n t , final order or
resolution of the Court of A p p e a l s m a y avail of an appeal by
certiorari (petition for r e v i e w on certiorari) to the Supreme
Court under Rule 45.
Records supporting the information or complaint filed in
court
1.
I t is not only the complaint or the information that
is filed in court. T h e 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
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
witnesses, together w i t h the other supporting evidence and
the resolution on the case (Sec. 7[aJ, Rule 112, Rules of Court).
2.
T h e record of the preliminary investigation shall not
form part of the record of the case. T h i s rule applies not only
to the preliminary investigation conducted by the prosecutor
but also to a preliminary investigation m a d e by other officers
as m a y be authorized by l a w . A l t h o u g h not part of the record
of the case, the court, on its o w n initiative or on motion of any
party, m a y 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 w h e n 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. W i t h i n ten ( 1 0 ) days from the filing of the complaint
or information, the j u d g e shall personally evaluate the resolution of the prosecutor. In conducting the evaluation of the
resolution, the j u d g e shall look into its supporting evidence
(Sec. 5, Rule 112, Rules of Court).
2.
T h e j u d g e m a y h a v e any of the following findings
after personally evaluating the resolution of the prosecutor.
T h e j u d g e m a y 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 j u d g e m a y i m m e d i a t e l y dismiss the case.
If he finds probable cause, he shall issue a w a r r a n t of arrest. If a complaint or information w a s already filed pursuant
to a lawful warrantless arrest under Sec. 6 of R u l e 112, the
court shall issue a commitment order instead of a warrant of
arrest.
In case the j u d g e doubts the existence of probable cause,
the judge m a y order the prosecution to submit additional
evidence within five ( 5 ) days from notice. T h e issue must be
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195
resolved by the court within thirty ( 3 0 ) days from the filing of
the complaint or information (Sec. 5, Rule 122, Rules of Court
as amended by A.M. 05-08-26-SC, August 30, 2005).
3.
Jurisprudence reiterates the rule thus: T h e options
available to the R T C 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
R T C finds probable cause, issue a w a r r a n t of arrest; and ( 3 ) in
case of doubt as to the existence of probable cause, order the
prosecutor to present additional evidence w i t h i n 5 days from
notice, the issue to be resolved by the court w i t h i n thirty ( 3 )
days from the filing of the information. T h e Supreme Court
held that dismissal of the case by the R T C j u d g e in this case
did not amount to g r a v e abuse of discretion. Rather, it clearly
showed his compliance w i t h his duty to personally evaluate
the resolution of the prosecutor and its supporting evidence
(Elvira O. Ong v. Jose Casim Genio, G.R. No. 182336, December
23, 2009).
When warrant of arrest is not necessary
1.
A w a r r a n t of arrest is not required in the following
instances:
( a ) W h e n a complaint or information has already
been filed pursuant to a lawful warrantless arrest or if
the accused is already under detention and w a s lawfully
arrested without a w a r r a n t and a complaint or information has been filed (Sec. 5[b], Rule 112, Rules of Court);
also when a w a r r a n t has already been issued by the M T C
j u d g e pursuant to Sec. [ b ] of R u l e 112 (Sec. 5[b], Rule 112,
Rules of Court).
( b ) W h e n the accused is charged for an offense
punishable only by fine; or
( c ) W h e n the case is subject to the Rules on Summ a r y Procedure.
2.
It is within the discretion of the j u d g e to issue a
warrant for the arrest of an accused in a criminal case. A
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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. H o w e v e r , if he finds probable cause,
then he is mandated by l a w to issue such warrant. W h i l e
before it was mandatory for the investigating j u d g e 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 l i m i t e d to instances in which
there is a necessity for placing h i m in custody "in order not
to frustrate the ends of justice." T h e arrest of the accused can
be ordered only in the e v e n t that the prosecutor files the case
and the j u d g e of the R T C finds probable cause for the issuance
of the w a r r a n t of arrest (Pangan v. Ganay, 445 SCRA 574
citing Concerned Citizens of Maddela v. De la Toree-Yadao,
393 SCRA 217 and Arcilla v. Palaypayon, 364 SCRA 464).
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 P r o v i n c i a l Fiscal upon instructions
of the Secretary of Justice to w h o m the case was elevated
for r e v i e w , m a y refuse to g r a n t the motion and insist on the
arraignment and trial on the merits.
Grappling w i t h 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. A l t h o u g h the fiscal retains the direction and
control of the prosecution of criminal cases e v e n while the case
is already in court, he cannot impose his opinion on the trial
court. T h e trial court is the best and sole j u d g e on w h a t to do
with the case before it. T h e 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
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likewise ruled that it does not matter if this is done before or
after arraignment of the accused or that the motion w a s filed
after a reinvestigation or upon instructions of the Secretary
of Justice w h o r e v i e w e d the records of the investigation. T h e
court, in the exercise of its discretion m a y 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 w i t h d r a w the information filed by
the public prosecutor on his o w n 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 w a s committed or that the
evidence is insufficient to support a conviction. T h e trial court
must m a k e an independent evaluation or assessment of the
merits of the case and the evidence on record of the prosecution
(Santos v. Orda, Jr., 437 SCRA 504). T h e dismissal cannot be
m e r e l y based on the findings of the Secretary of Justice that
no crime w a s committed. Reliance cannot be placed solely on
the conclusion of the prosecution that there is no sufficient
evidence against the accused. T h e g r a n t of the motion to
dismiss cannot be based upon considerations other than the
judge's o w n and personal conviction that there was no case
against the accused. In other words, the j u d g e himself must
be convinced that there w a s , 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. 167910,17 July 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.
A trial court, commits reversible error or even
g r a v e abuse of discretion if it refuses or neglects to evaluate
such recommendation and simply insists on proceeding with
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the trial on the mere pretext of h a v i n g already acquired
jurisdiction over the criminal action (Ledesma v. Court of
Appeals, 278 SCRA 656; Santos v. Orda, Jr., 437 SCRA 504).
It may either agree or disagree w i t h 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 w i t h the court, the latter acquires
jurisdiction and has the authority to determine w h e t h e r to
dismiss the case or convict or acquit the accused. W h e r e the
prosecution is convinced that the evidence is insufficient to
establish the guilt of an accused, it cannot be faulted for m o v i n g
for the w i t h d r a w a l of the Information. H o w e v e r , in granting
or denying the motion to w i t h d r a w , the court must judiciously
evaluate the evidence in the hands of the prosecution.
T h e 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. In this case, the trial court
had sufficiently explained the reasons for granting the motion
for the w i t h d r a w a l of the Information. T h e Court agrees w i t h
the dispositions m a d e by the trial court. Corollarily, the R T C
did not err in dismissing the petition (under Rule 65) filed
by petitioner challenging the ruling of the M e T C (Ramos v.
People, G.R. No. 171565, July 13, 2010).
5.
T h e court must itself be convinced that there is indeed
no sufficient evidence against the accused. T h e j u d g e must
not also ignore relevant pieces of evidence necessary to resolve
the motion and must look at e v e r y t h i n g m a d e 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).
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6.
It bears emphasizing that w h e n the trial court grants
a motion of the public prosecutor to w i t h d r a w the Information
in compliance w i t h 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.
T h e trial court is the best and sole j u d g e on w h a t to do w i t h
the case before it. T h e rule applies to a motion to w i t h d r a w
the Information or to dismiss the case even before or after
the arraignment of the accused. T h e prior determination of
probable cause by the trial court does not in any w a y 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 w i t h d r a w an
information filed by the city prosecutor w a s denied by the
trial court. W i t h o u t m o v i n g for a reconsideration of the order
denying the motion, the accused filed a petition for mandamus
w i t h the Supreme Court to seek a reversal of the order of
the trial court. T h e Court also ruled, as it had done in past
cases, that the trial court, w h e n confronted w i t h a motion to
w i t h d r a w an information on the ground of lack of probable
cause, is not bound by the resolution of the prosecuting arm
of the g o v e r n m e n t , but is required to m a k e an independent
assessment of the merits of such motion, a requirement
satisfied by the respondent j u d g e in the case at bar (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 w a s confronted w i t h a motion
to w i t h d r a w an information for estafa filed against the
respondents. T h e 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. T h e Supreme Court declared the j u d g e must in
his order, positively state that the evidence presented against
the respondents was insufficient for a prima facie case. It
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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 w i t h d r a w the information
and must embody the assessment in the order.
If these requirements are not complied w i t h , Lee v. KC
Bank, N.V., concludes that a dismissal of the case would then
be based upon considerations other than the judge's o w n
personal individual conviction that there w a s no case against
the respondents and showed that the trial j u d g e improperly
relinquished the discretion that he w a s bound to exercise.
T h e order granting the w i t h d r a w a l of the information is
then void as being v i o l a t i v e of the rights of the other party
to due process and constitutes a g r a v e abuse of discretion
(Summerville General Merchandising and Co., Inc. v. Eugenio,
Jr., G.R. No. 163741, August 7, 2007, 529 SCRA 274, 282).
9.
In a case on appeal, petitioner argues that the filing
of the informations in the M T C C had already r e m o v e d the
cases from the p o w e r and authority of the prosecution to
dismiss the same in accordance w i t h the doctrine laid down
in Crespo v. Mogul (Crespo). In dismissing 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. T h e S u p r e m e Court clarified
that Crespo did not foreclose the p o w e r or authority of the
secretary of justice to r e v i e w resolutions of his subordinates
in criminal cases. T h e 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. T h e justice
secretary's power of r e v i e w m a y still be availed of despite the
filing of an information in court (Filemon A. Verzano, Jr. v.
Francis Vitor D. Paro, G.R. No. 171643, August 8, 2010).
10. In a case, the petitioner laments the trial court's
denial of the Motion to W i t h d r a w Information filed by the
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201
investigating prosecutor due to the tatter's finding of lack of
probable cause to indict him. He argues that such denial effectively deprived him of his substantive right to a preliminary
investigation.
Still, petitioner's argument fails to persuade. T h e r e is
nothing procedurally improper on the part of the trial court
in disregarding the result of the preliminary investigation it
itself ordered. Judicial action on the motion rests in the sound
exercise of judicial discretion. In denying the motion, the
trial court just followed the jurisprudential rule laid down in
Crespo v. Judge Mogul, 235 Phil. 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).
11. T h e basic rule is simple: W h i l e the Secretary of
Justice has the p o w e r to alter or modify the resolution of his
subordinate and thereafter direct the w i t h d r a w a l of the case,
he cannot, h o w e v e r , impose his w i l l on the court (Dumlao v.
Ponferrada, 508 SCRA 426).
Some doctrinal pronouncements on preliminary investigation
1.
One case (Sierra v. Lopez, A.C. 7549, August 29,
2008) makes important doctrinal pronouncements on preliminary investigation.
In Sierra the complainant in an administrative case filed
a complaint w i t h the Supreme Court for dereliction of duty and
gross ignorance of the l a w against certain prosecutors. T h e
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.
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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.
X XX
"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 "counteraffidavit 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
is addressed to the sound discretion of the investigator,
and the investigator alone" (Sierra v. Lopez, A.C. 7549,
August 29, 2008).
2.
T h e principle of estoppel w a s once applied in a preliminary investigation in the Ombudsman in a much earlier
case (Bautista v. Sandiganbayan, G.R. No. 132082 May 12,
2000).
In Bautista, an anonymous, unverified and unsigned letter-complaint purportedly emanating from certain named as-
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203
sociations, w a s filed w i t h the Office of the Ombudsman against
the petitioner for violation of Sec. 3, par. ( e ) , of R . A . 3019,
as amended, otherwise k n o w n as the Anti-Graft and Corrupt
Practices A c t 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 w a s charged to the peace and
order fund despite m e a g e r savings of the municipality.
T h e petitioner w a s directed to submit his counter-affidav i t to the letter-complaint which petitioner did. Thereafter,
an information for violation of Sec. 3, par. ( e ) , of R . A . 3019, as
amended, w a s filed against petitioner before the Sandiganbayan. T h e petitioner assailed the O m b u d s m a n for failing to
direct the complainants to reduce their evidence into affidavits before requiring h i m to submit his counter-affidavit. Petitioner invoked Sec. 4, R u l e I I , 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 w i t h such rule, the petitioner argued
that the O m b u d s m a n should h a v e first required the associations to submit their respective affidavits before requiring him
as respondent to submit his counter-affidavit, especially since
the letter-complaint w a s unsigned and unverified; hence,
there w a s no v a l i d cause of action against petitioner.
T h e arguments of the petitioner failed to impress the Court.
W h i l e it w a s true that he w a s directed to submit his counteraffidavit thereto without requiring the complainants to verify
their letter-complaint, h o w e v e r , despite the Ombudsman's
noncompliance w i t h 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 h a v i n g 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 w a i v e d whatever right
he may otherwise have to assail the manner in which the
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preliminary investigation w a s conducted. Consequently,
petitioner was likewise estopped from questioning the validity
of the information filed before the Sandiganbayan (Bautista v.
Sandiganbayan, G.R. No. 132082, May 12, 2000).
3.
M a y a complaint affidavit notarized in a foreign
jurisdiction be the basis for a preliminary investigation? T h i s
question was answered by the Court in Sasot v. People, G.R.
No. 143193, June 29, 2005.
T h e case involved a criminal prosecution against petitioners for unfair competition under A r t i c l e 189 of the Revised
Penal Code, filed before the R e g i o n a l T r i a l Court. Petitioners
are alleged to be e n g a g e d in the manufacture, printing, sale,
and distribution of counterfeit " N B A " g a r m e n t products.
In a Special P o w e r of A t t o r n e y the President of N B A
Properties, Inc., constituted a local l a w firm, as the company's
attorney-in-fact, to act for and its b e h a l f in the filing of
criminal, civil and administrative complaints, among others.
T h e Special P o w e r of A t t o r n e y w a s notarized by a notary
public of N e w Y o r k County and certified by the County Clerk
and Clerk of the Supreme Court of the State of N e w Y o r k . A
Philippine Consul of the Consulate G e n e r a l of the Philippines
i n N e w Y o r k , authenticated the certification. T h e company
president also executed a Complaint-Affidavit before the same
notary public of the State of N e w Y o r k .
Before they entered their pleas, the petitioners moved
to quash the information arguing among others, that the
fiscal should h a v e dismissed the complaint filed during the
preliminary investigation because under the rules, the complaint must be sworn to before the prosecutor. T h e trial court
sustained the prosecution and denied petitioners' motion to
quash.
T h e petitioners filed a special civil action for certiorari
with the Court of Appeals. Petitioners sought reconsideration
but the same was likewise denied.
T h e petition for r e v i e w on certiorari under Rule 45 of the
Rules of Court filed before the Supreme Court now reiterates
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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.
T h e petition w a s denied by the Supreme Court, which
declared emphatically that a complaint is substantially
sufficient if it states the k n o w n 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 g o v e r n m e n t 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. A l l these h a v e been
duly satisfied in the complaint filed before the prosecutor. T h e
Court added that e v e n the absence of an oath in the complaint
does not necessarily render it invalid. W a n t of oath is a mere
defect of form, w h i c h does not affect the substantial rights of
the defendant on the merits. N o t e : T h e case w a s decided under
Sec. 3 of R u l e 112 of the 1985 Rules of C r i m i n a l Procedure
which has substantially the same provisions as Sec. 3 of Rule
112 of the 2000 Rules of C r i m i n a l Procedure.
- oOo —
Chapter V
ARREST, SEARCH AND SEIZURE
I. ARREST (RULE 113)
Arrest; how arrest made
L a w enforcement officers are entrusted w i t h the power to
conduct investigations, m a k e arrests, perform searches and
seizures of persons and their belongings, and occasionally use
lethal force in the line of duty. T h i s authority must be exercised
within the boundaries of the l a w because w h e n officers exceed
those boundaries, they j e o p a r d i z e the admissibility of any
evidence collected for prosecution.
1.
An arrest is the t a k i n g of a person into custody in
order that he m a y be bound to answer for the commission of an
offense (Sec. 1, Rule 113, Rules of Court). U n d e r this definition,
a person is arrested for a specific and definite purpose — to
make him answer for the commission of an offense.
2.
To m a k e an arrest, a person need not be actually
restrained by the person m a k i n g the arrest. U n d e r the Rules
of Court, a submission to the authority of the person m a k i n g
the arrest already constitutes an arrest (Sec. 2, Rule 113,
Rules of Court). Whichever means is used to m a k e an arrest,
the t e r m 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 l e a v e on his o w n volition.
3.
K n o w i n g 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
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207
been made and at the time of the apprehension a crime has
already been committed, the arrest is constitutionally 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 k n o w l e d g e of
facts and circumstances w i l l certainly not be prerequisites to
the legality of the said act and said act would be r e v i e w e d on
the basis of some other standards.
As w i l l be seen later, the l e g a l i t y of an arrest is of vital
importance w h e n 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 S u p r e m e Court involve
prayers for a declaration of suppression of evidence obtained
after alleged illegal arrests.
Requisites for the issuance of a warrant of arrest
Sec. 2 of A r t i c l e I I I ( B i l l of R i g h t s ) of the Constitution of
the Philippines 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 j u d g e after examination under
oath or affirmation of the complainant and the witnesses he/
she m a y produce, and particularly describing the person to be
seized (Tabujara III v. People, G.R. No. 175162, October 29,
2008).
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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. Pena, G.R.
No. 143591, May 5, 2010).
Probable cause in connection w i t h the issuance of a warrant of arrest, assumes the existence of facts that would lead
a reasonably discreet and prudent m a n to b e l i e v e that a crime
has been committed and that it w a s l i k e l y committed by the
person sought to be arrested. T h e test for issuing a w a r r a n t
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 m a n to believe
that the offense charged in the Information, or any offense
included therein, has been c o m m i t t e d by the person sought
to be arrested. In d e t e r m i n i n g probable cause, the a v e r a g e
man weighs the facts and circumstances without resorting to
the calibrations of the rules of evidence of w h i c h he has no
technical k n o w l e d g e . 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. P r o b a b l e 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.
W h i l e it seems to appear that the constitution
requires the j u d g e to personally e x a m i n e the complainant and
his witnesses under oath by asking searching questions, the
case of A A A v. Carbonell, G.R. No. 171465, June 8, 2007, is
enlightening.
In A A A 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. A f t e r an information for rape was filed with
the trial court, the accused filed a motion for the determination
of probable cause. T h e court granted the motion and directed
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209
petitioner and her witnesses to take the witness stand. But
instead of taking the witness stand, petitioner filed a motion
for reconsideration claiming that the documentary evidence
already sufficiently established the existence of probable
cause. T h e petitioner contends that the j u d g e 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 w a r r a n t of arrest. She argues that the respondent
should h a v e taken into consideration the documentary
evidence as w e l l as the transcript of stenographic notes which
sufficiently established the existence of probable cause.
T h e respondent j u d g e in his comment submitted to the
H i g h e s t Court, argued that the finding of probable cause
by the investigating prosecutor is not binding or obligatory
upon him. He claimed that he w a s justified in requiring the
petitioner and her witnesses to take the witness stand in order
to determine probable cause since under Section 2, A r t i c l e
I I I of the 1987 Constitution, no w a r r a n t 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.
T h e records, as discovered by the Court, disclosed that
the respondent j u d g e dismissed the case without evaluating
the evidence in support of the resolution of the Assistant P r o vincial Prosecutor, the convened P a n e l of Prosecutors, and
the Department of Justice which all sustained a finding of
probable cause against the accused. T h e 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 j u d g e for the judicial determination of probable cause.
T h e Supreme Court found the respondent to have committed a g r a v e 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 ofSoliven v. Makasiar, G.R. Nos.
L-82585, L-82827, November 14, 1988, the Court explained
that this constitutional provision does not mandatorily
require the j u d g e to personally examine the complainant and
her witnesses. Instead, he m a y opt to personally evaluate the
report and supporting documents submitted by the prosecutor
or he m a y disregard the prosecutor's report and require the
submission of supporting affidavits of witnesses and that the
Constitution now requires the j u d g e to personally examine
the complainant and his witnesses in his determination of
probable cause for the issuance of w a r r a n t s of arrest is not an
accurate interpretation.
T h e 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. Following 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, "(underscoring supplied)
" W e reiterated the above ruling in the case of Webb v.
De Leon, 247 SCRA 653, w h e r e we held that before issuing
warrants of arrest, judges m e r e l y 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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211
of probable cause. T h e y just personally r e v i e w the initial
determination of the prosecutor finding a probable cause to
see if it is supported by substantial evidence.
XXX
"True, there are cases w h e r e 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
w a r r a n t of arrest. T h e necessity arises only w h e n there is an
utter failure of the evidence to show the existence of probable
cause. O t h e r w i s e , the j u d g e m a y rely on the report of the
investigating prosecutor, provided that he likewise evaluates
the documentary evidence in support thereof." (underscoring
supplied)
"Indeed, w h a t the l a w requires as personal determination
on the part of the j u d g e is that he should not rely solely on the
report of the i n v e s t i g a t i n g prosecutor. In Okabe v. Gutierrez,
G.R. No. 150185, May 27, 2004, we stressed that the j u d g e
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 w e l l as the transcript of stenographic notes taken
during the p r e l i m i n a r y investigation, if any, submitted to the
court by the investigating prosecutor upon the filing of the
Information. If the report, taken together w i t h 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.
3.
Talingdan v. Eduarte, 366 SCRA 559 declares in
categorical terms:
"Interpreting the words personal determination . . . i t
does not thereby mean that judges are obliged to conduct the
personal examination of the complainant and his witnesses
themselves. . .Rather w h a t is emphasized merely is the exclusive and personal responsibility of the issuing judge to satisfy
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himself as to the existence of probable cause. . .What he is
never allowed to do is follow blindly the prosecutor's bare certification as to the existence of probable cause .. ."(See also him,
Sr. v. Felix, 194 SCRA 292).
4.
Inspite of the pronouncements in AAA v. Carbonnel
and the previous holding in Soliven v. Makasiar, a different
result was reached in Tabujara III v. People, G.R. No. 175162,
October 29, 2008, w h e r e the Court in interpreting the now deleted provisions of Sec. 6 of R u l e 112, struck down as a g r a v e
abuse of discretion the acts of a j u d g e w h o issued arrest warrants without personally e x a m i n i n g a witness of the respondent.
T h e antecedent facts indicate that the respondent filed
two criminal complaints against the petitioners for g r a v e
coercion and trespass to d w e l l i n g before the Municipal T r i a l
Court of M e y c a u a y a n , Bulacan. T h e respondent directly
filed the criminal complaints against petitioners for g r a v e
coercion and trespass to d w e l l i n g before the Municipal T r i a l
Court because the penalty prescribed by l a w for both offenses
is arresto mayor, which ranges from 1 month and 1 day to 6
months, a penalty which under the Rules dispenses w i t h the
need for a preliminary investigation.
T h e j u d g e dismissed the complaints for lack of probable
cause. T h i s order w a s later reversed by the same j u d g e and
this time he accordingly found probable cause to hold the
petitioners for trial and to issue warrants of arrest. T h e
reversal w a s allegedly predicated on his h a v i n g inadvertently
overlooked the sworn statement of one of the respondent's
witnesses which w h e n evaluated would show probable cause.
Petitioners insisted in their motion for reconsideration
that the alleged affidavit of the witness involved on which
the court based its findings of probable cause w a s hearsay
because it was not sworn before the j u d g e and that the witness
did not personally appear before the investigating judge.
T h e petitioners' motion for reconsideration was denied. Said
orders w e r e affirmed by both the Regional T r i a l Court and the
Court of Appeals.
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213
In the Supreme Court, the petitioners averred that
the Court of A p p e a l s erred in not ruling that the trial court
committed a g r a v e abuse of discretion in basing its findings
of probable cause to hold petitioners for trial on the merits
and subject to the issuance of warrants of arrests on the basis
of an allegedly unsworn statement of a witness w h o never
appeared before, nor w a s personally examined by the trial
court. T h e petitioners invoked the constitutional guarantees
that no w a r r a n t of arrest shall issue "except upon probable
cause to be determined personally by the j u d g e . . . "
In sustaining the merits of the petition, the Court relied
upon the constitutional m a n d a t e that a w a r r a n t of arrest
"shall issue only upon finding of probable cause personally
determined by the j u d g e after examination under oath or
affirmation of the complainant and the witnesses he/she m a y
produce, and particularly describing the person to be seized."
T h e Court leaned on the provisions of the then Section 6
of Rule 112 of the Rules of Court w h i c h provides:
S E C . 6. When warrant of arrest may issue. — x x x
(b) By the Municipal Trial Court. — x x x [T]he
judge may issue a warrant of arrest if he finds after an
examination in writing and under oath of the complainant and his witnesses in the form of searching questions
and answers, that a probable cause exists and that there
is a necessity of placing the respondent under immediate
custody in order not to frustrate the ends of justice.
Clearly, according to the Court, the j u d g e g r a v e l y abused
his discretion in issuing the assailed order finding probable
cause to hold petitioners liable for trial and to issue warrants
of arrest because it was based solely on the statement of a
witness w h o m he did not personally examine in writing and
under oath and upon w h o m he did not propound searching
questions. He merely stated in the assailed order that he
overlooked the said statement of the witness and without
conducting a personal examination on said witness or propounding searching questions, the j u d g e still found the
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allegations of the witness sufficient to establish probable
cause.
Tabujara is however, far from being an isolated case. In
Gutierrez v. Hernandez, A.M. No. MTJ-06-1628, June 8, 2007,
a case decided in the same mold as Tabujara, exemplifies an
arrest warrant that w a s accordingly irregularly issued and
demonstrates the need to adhere to the "personal examination"
requirement in determining probable cause for the issuance
of a warrant of arrest. T h e case like Tabujara anchored its
conclusions on Sec. 6, R u l e 112 of the Rules of Court.
5.
Tabujara and Gutierrez are not h o w e v e r , to be
construed to represent the last words of the Court w h e r e
the issue is the correct i m p o r t of Sec. 2 of A r t I I I of the Bill
of Rights. Such cases w e r e m o r e of interpretations of a now
deleted provision of the Rules of Court rather than of a
constitutional provision.
In Borlongan v. Pena, G.R. No. 143951, May 5, 2010,
reiterating the case of Soliven v. Makasiar, 167 SCRA 293,
it w a s ruled that the words "personal determination," in the
Constitution, does not thereby m e a n that j u d g e s are obliged
to conduct the personal examination of the complainant and
his witnesses themselves. To require thus w o u l d be to unduly
laden t h e m w i t h p r e l i m i n a r y examinations and investigations
of criminal complaints instead of concentrating on hearing and
deciding cases filed before them. Rather, w h a t is emphasized
merely is the exclusive and personal responsibility of the
issuing j u d g e to satisfy h i m s e l f 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 w a r r a n t 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. W h a t 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 h a v e to go
over the report, the affidavits, the transcript of stenographic
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215
notes if any, and other documents supporting the prosecutor's
certification. A l t h o u g h 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. T h i s is because the w a r r a n t 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 w h e n the circumstances warrant.
6.
In y e t another recent case, respondents questioned
the alleged lack of personal determination of probable cause
by the j u d g e in issuing the w a r r a n t s for their arrest. T h e
Court explained that the duty of the j u d g e to determine probable cause to issue a w a r r a n t of arrest as mandated by Sec. 2,
Article III of the 1987 Philippine Constitution does not mandatorily require the j u d g e to personally examine the complainant and her witnesses. Instead, he m a y opt to personally evaluate the report and supporting documents submitted by the
prosecutor or he m a y disregard the prosecutor's report and
require the submission of supporting affidavits of witnesses.
W h a t the l a w requires as personal determination on the part
of a j u d g e is that he should not r e l y solely on the report of the
investigating prosecutor. T h i s means that the j u d g e should
consider not only the report of the i n v e s t i g a t i n g prosecutor
but also the affidavit and the documentary evidence of the
parties, the counter-affidavit of the accused and his witnesses,
as w e l l 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).
Preliminary inquiry (examination) versus preliminary investigation
T h e r e is a distinction b e t w e e n 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. T h e determination of probable cause for purposes
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of issuing the warrant of arrest is made by the judge. T h e
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).
2.
A more recent case supports the declarations in A A A
v. Carbonell and holds that "it is w e l l to r e m e m b e r that there
is a distinction b e t w e e n the preliminary inquiry, which determines probable cause for the issuance of a w a r r a n t of arrest,
and the preliminary investigation proper, which ascertains
whether the offender should be held for trial or be released.
T h e determination of probable cause for purposes of issuing a
warrant of arrest is m a d e by the j u d g e . T h e preliminary investigation proper — w h e t h e r or not there is reasonable ground
to believe that the accused is guilty of the offense charged — is
the function of the i n v e s t i g a t i n g prosecutor.
"The task of the presiding j u d g e w h e n the information
is filed w i t h the court is first and foremost to determine the
existence or non-existence of probable cause for the arrest of
the accused. T h e purpose of the m a n d a t e of the j u d g e to first
determine probable cause for the arrest of the accused is to
insulate from the v e r y start those falsely charged w i t h 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.
W h e n a w a r r a n t of arrest is issued by a judge, the
w a r r a n t is delivered to the proper l a w enforcement agency for
execution.
T h e head of the office to w h o m the w a r r a n t of arrest
was delivered shall cause the w a r r a n t to be executed within
ten (10) days from its receipt. W i t h i n ten ( 1 0 ) days after the
expiration of the period, the officer to w h o m it w a s assigned
for execution shall m a k e a report to the j u d g e 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).
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2.
W h e n 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. T h e information need not be made
when ( a ) the person to be arrested flees, ( b ) forcibly resists, or
( c ) when the g i v i n g of the information w i l l imperil the arrest
(Sec. 7, Rule 113, Rules of Court).
3.
T h e officer need not h a v e the w a r r a n t in his possession at the time of the arrest. H o w e v e r , after the arrest, the
w a r r a n t shall be shown to h i m as soon as practicable, if the
person arrested so requires (Sec. 7, Rule 114, Rules of Court).
4.
T h e officer assigned to execute the w a r r a n t of arrest
has the duty to d e l i v e r the person arrested to the nearest
police station or j a i l w i t h o u t unnecessary delay (Sec. 3, Rule
113, Rules of Court).
No unnecessary violence
An underlying rule w h e n e v e r an arrest is m a d e is that
no violence or unnecessary force shall be used in m a k i n g an
arrest. T h e 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 m a k e the arrest. Hence, the authority to effect an
arrest carries w i t h it an authority to orally summon as many
persons as he deems necessary to assist him in effecting the
arrest. E v e r y person summoned by an officer is required to
g i v e the assistance requested provided he can do so without
detriment to himself (Sec. 10, Rule 113, Rules of Court). T h e
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
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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).
After entering the building or enclosure, he m a y 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. T h e general rule as regards arrests, searches and
seizures is that a w a r r a n t is needed in order to v a l i d l y effect
the same. T h e Constitutional prohibition against unreasonable
arrests, searches and seizures refers to those effected without
a validly issued w a r r a n t (Malacat v. Court of Appeals, 283
SCRA 159). Hence, the doctrine is that a w a r r a n t of arrest is
required before an arrest is made. A warrantless arrest is the
exception.
2.
T h e pertinent provisions of R u l e 113 of the Rules
on Criminal Procedure provide for the instances w h e n a
warrantless arrest m a y be m a d e :
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
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219
arrested has committed, is actually committing, or is attempting 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 m a y be lawfully effected: ( a ) arrest
of a suspect in flagrante delicto; ( b ) arrest of a suspect where,
based on personal k n o w l e d g e of the arresting officer, there is
probable cause that said suspect w a s the author of a crime
which had just been committed (called hot pursuit); ( c ) arrest
of a prisoner w h o has escaped from custody serving final
j u d g m e n t or t e m p o r a r i l y confined w h i l e his case is pending.
T h e r e is another ground for a warrantless arrest other
than those provided for under Sec. 5 of Rule 113 of the Rules
of Court. T h a t ground is w h e n a person previously lawfully
arrested escapes or is rescued. U n d e r the Rules, any person
may i m m e d i a t e l y pursue or retake h i m without a w a r r a n t
at any time and in any place w i t h i n the Philippines (Sec. 13,
Rule 113, Rules of Court).
4.
A bondsman m a y arrest an accused for the purpose
of surrendering h i m to the court. A l s o , an accused released on
bail m a y be re-arrested w i t h o u t a w a r r a n t if he attempts to
depart from the P h i l i p p i n e s without permission of the court
w h e r e the case is pending (Sec. 23, Rule 114, Rules of Court).
Who may make the warrantless arrest; duty of officer; citizen's arrest
1.
T h e warrantless arrest m a y be made not only by a
peace officer but also by a private person. W h e n 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.
W h e n 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.
T h e long standing rule in this jurisdiction is that
"reliable information" alone is not sufficient to justify a
warrantless arrest. T h e 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. Racho, G.R. No. 186529, August
3, 2010).
2.
T h e 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,
t w o requisites must concur:
( a ) the person to be arrested must execute an overt
act indicating that he has j u s t committed, is actually
committing, or is a t t e m p t i n g to commit a crime; and
( b ) such o v e r t act is done in the presence or within
the v i e w of the arresting officer (People v. Burgos, 144
SCRA 1; People v. Laguio, G.R. No. 128587, March 16,
2007; Zalameda v. People, G.R. No. 183656, September
4. 2009). Reliable information alone is not sufficient to
justify a warrantless arrest under Section 5 ( a ) , Rule 113.
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 about to commit an offense,
in the presence within v i e w of the arresting officer (People v.
Alunday, G.R. No. 181546, September 3, 2008). For instance,
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221
the rule is settled that an arrest made after an entrapment
does not require a w a r r a n t inasmuch as it is considered a
valid warrantless arrest pursuant to Rule 113, Section 5(a)
of the Rules of Court (People v. Cabugatan, 514 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 h i m s e l f as a policeman and without asking any
questions i m m e d i a t e l y arrests h i m , cuffs him and forces him
inside a w a i t i n g patrol car. Inside the car, the officer fishes out
the firearm from the arrestee's waist, asks h i m whether or not
he has a license to possess and a p e r m i t 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. W h e t h e r or not the acts of the officer
are permissible under the l a w and the Rules w i l l necessarily
be determined by the requisites provided for by Sec. 5 ( a ) of
Rule 113. T h e crucial issue to be laid before the court would
be w h e t h e r or not h a v i n g the butt of a pistol bulge from one's
waist plainly w i t h i n the v i e w of the officer constitutes an
overt act of the crime of illegal possession of firearm which
would justify an i m m e d i a t e arrest. T h e defense counsel would
certainly argue that m e r e carrying of a pistol does not in itself
indicate a violation of the l a w since illegal possession of a
gun cannot be inferred from its m e r e possession. W h e n the
apprehension w a s 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 k n o w l e d g e that came to him only
after the arrest. In short, there w a s absolutely nothing under
the facts that would show an overt act of a crime other than
the mere suspicion that the gun w a s unlicensed at the time of
the arrest. T h e gun, under the circumstances may become a
"fruit of the poisonous tree" and would inevitably be held as
inadmissible in evidence.
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2.
Thus, it was ruled that a flagrante delicto arrest is
not justified when no one among the accused w a s committing
a crime in the presence of the police officers, more so if the
police officers did not h a v e personal k n o w l e d g e of the facts
indicating that the persons to be arrested had committed an
offense. T h e searches conducted on the plastic bag then cannot
be said to be m e r e l y incidental to a lawful arrest. Reliable
information alone is not sufficient to justify a warrantless
arrest under Section 5 ( a ) , R u l e 113. T h e 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. H e r e ,
more than t w o days before the arrest, constabulary officers
received a tip from an informer that the accused w a s on
board an identified vessel on a particular date and t i m e and
was carrying marijuana. A c t i n g on the information, they
w a i t e d for the accused and approached h i m as he descended
the gangplank of the ship and arrested him. A subsequent
inspection of his b a g disclosed the presence of three kilos
of marijuana leaves. T h e Court declared as inadmissible in
evidence the marijuana found in the possession of the accused
as a product of an illegal search since it w a s not an incident to a
lawful arrest. Emphatically, the S u p r e m e Court declared that
the accused w a s not, at the m o m e n t of his arrest, committing
a crime nor was it shown that he w a s about to do so or that he
had just done so. He w a s m e r e l y descending the gangplank of
the ship and there was no outward indication that called for
his arrest. To all appearances, he w a s like any of the other
passengers innocently disembarking from the vessel. It was
only w h e n the informer pointed to him as the carrier of the
marijuana that he suddenly became a suspect and so subject
to apprehension. T h e court added that from the information
received by the officers, they could h a v e obtained a warrant
since they had at least t w o days to apply for the same but the
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223
officers made no efforts to comply with the bill of rights. T h e y
chose to ignore the law.
T h e n too, in People v. Molina, 352 SCRA 174, the conviction by the trial court w a s 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
w e r e carrying marijuana. T h e accused w e r e arrested while
inside a pedicab despite the absence 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 w h e r e no crime is being committed at the time
of the arrest because no crime m a y be inferred from the fact
that the eyes of the person arrested w e r e "moving fast" and
"looking at e v e r y 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. T h e issue on the legality of the arrest, search
and seizure s t e m m e d from a telephone call to the police
from an alleged informer that suspicious looking men w e r e
at a street corner in T o n d o shortly before noon. T h e police
operatives dispatched to the place saw three m e n one of w h o m
w h o turned out to be M e n g o t e , w a s "looking from side" to side
clutching his abdomen. T h e operatives approached the three
men and introduced t h e m s e l v e s as policemen. T w o of them
accordingly tried to run a w a y but the a t t e m p t w a s foiled. T h e
search yielded a r e v o l v e r in the possession of M e n g o t e and a
fan knife in the pocket of another. M e n g o t e contends that the
r e v o l v e r should not h a v e been admitted in evidence because
its seizure w a s a product of an illegal search and made as an
incident to a lawful arrest.
Speaking through Justice Isagani A. Cruz, the Court
ruled that the requirements of a warrantless arrest w e r e not
complied w i t h . T h e r e w a s no offense which could have been
suggested by the acts of M e n g o t e of looking from side to side
w h i l e holding his abdomen. Observed the Court: "These are
certainly not sinister acts. * * * He w a s not skulking in the
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
shadows but w a l k i n g in the clear light of day. T h e r e 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 h a v e been inferred from these acts
that an offense had just been committed, or w a s 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 d r e w much from the
ruling in Aminnudin l i k e w i s e aptly illustrates the application
of the doctrine. In this case, t w o m e n w e r e arrested w h i l e they
w e r e about to hand over a bag of shabu to a policer officer.
Questioned, the arrested men told the officers that they k n e w
of a scheduled d e l i v e r y of shabu by their employer, WW early
the following morning and that he could be found at a certain
apartment building in M a l a t e , M a n i l a . T h e 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.
W h e n W W came out o f the apartment towards a parked
car, two other police officers approached him, introduced
themselves to him as police officers, asked his n a m e and, upon
hearing that h e w a s W W , i m m e d i a t e l y frisked h i m and asked
him to open the back compartment of the car. W h e n frisked,
there w a s found inside the front right pocket of W a n g and
confiscated from h i m an unlicensed pistol w i t h l i v e ammunitions. At the same t i m e , the other m e m b e r s of the operatives searched the car and found inside it w e r e the following
items: ( a ) transparent plastic bags w i t h shabu; ( b ) cash in the
amount of P650,000.00; ( c ) electronic and mechanical scales;
and ( d ) another unlicensed pistol w i t h m a g a z i n e . T h e n and
there, W a n g resisted the warrantless arrest and search.
T h e Supreme Court, in v e r y 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 w a l k i n g from the apartment and w a s about to enter
a parked car w h e n the police operatives arrested him, frisked
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225
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 w i t h i n the v i e w 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).
W h a t is clearly established from the testimonies of the
arresting officers said the Court, is that WW was arrested
mainly on the information that he w a s the employer of the
t w o men w h o w e r e previously arrested and charged for illegal
transport of shabu. T h e y did not in fact identify WW to be
their source of the shabu w h e n they w e r e caught with it in
flagrante delicto. U p o n the duo's declaration that there w i l l
be a delivery of shabu on the early morning of the following
day and that WW m a y be found in an apartment building in
M a l a t e , the arresting officers conducted w h a t they termed was
a "surveillance" operation in front of said apartment, hoping
to find a person w h o w i l l match the description of W W , the
employer of the arrested men.
T h e conclusion of the trial court that the warrantless
arrest was illegal and that ipso jure, the warrantless search
incidental to the illegal arrest is l i k e w i s e unlawful, was
sustained by the Supreme Court.
6.
W a r r a n t l e s s arrests w e r e upheld in some cases. T h e
much earlier case of People v. Anita Claudio, 160 SCRA 646, is
an example of a warrantless arrest m a d e under the in flagrante
delicto exception. H e r e the accused w h o was carrying a w o v e n
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 antinarcotics agent was seated. Since the act of the accused was
unusual for a traveler, the suspicion of the agent was aroused.
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
Feeling that
finger inside
bottom from
after she got
something was unusual, the agent inserted his
the bag w h e r e he felt another plastic bag in the
which emanated the smell of marijuana. R i g h t
off the bus, the agent arrested the accused.
7.
N o t all cases w e r e however, decided in the mold
of Amminudin. People v. Tangliben, 184 SCRA 22, is a case
with facts which do not fall squarely w i t h the standards set
by Amminudin but which nevertheless, upheld the validity
of the warrantless arrest. In this case, t w o police officers
together w i t h a barangay tanod w e r e conducting surveillance
operations in a bus station allegedly to check on persons w h o
may be "engaging in the traffic of dangerous drugs based on
information supplied by informers." T h e y noticed a person
carrying a red t r a v e l l i n g b a g w h o "was acting suspiciously."
W h e n asked to open the bag, the accused did so only after
the officers identified themselves. Found in the bag w e r e
marijuana leaves w r a p p e d in plastic and w e i g h i n g about one
kilogram. U p o n these facts, it w a s ruled that there w a s a
valid warrantless arrest and a v a l i d warrantless search. T h e
Court pronounced Tangliben to be different from Aminnudin.
In the latter, the "urgency" presented by Tangliben w e r e not
present. In Tangliben, the Court found that the officers w e r e
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 t w o
persons would be transporting a l a r g e quantity of marijuana,
officers set up a checkpoint in B e n g u e t to monitor, inspect and
scrutinize vehicles bound for B a g u i o City. A couple of hours
after midnight, a j e e p n e y w a s flagged down in the checkpoint.
On board w e r e the persons identified by the informers who
w e r e also w i t h the policemen manning the checkpoint. W h e n
the sacks and tin cans inside the j e e p n e y w e r e opened,
they contained w h a t appeared to be marijuana leaves. T h e
policemen then placed the t w o accused under arrest. Strangely,
the Court upheld the validity of the search as an incident to a
valid arrest even if the search preceded the arrest. A g a i n , the
court distinguished Maspil from Amminudin. In the latter, the
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ARREST, SEARCH AND SEIZURE
227
officers w e r e a w a r e of the identity of the accused, his planned
criminal enterprise and the vessel he would be taking. Further,
in Amminudin, 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 t i m e of the their arrival. T h e Court explained that
a j e e p n e y on the road is not the same as a passenger boat the
route and t i m e 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.
T h i s 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.
T h e second instance of lawful warrantless arrest
covered by paragraph ( b ) cited above necessitates t w o stringent
requirements before a w a r r a n t l e s s arrest can be effected:
( 1 ) an offense has j u s t been committed; and ( 2 ) the person
m a k i n g the arrest has personal k n o w l e d g e of facts indicating
that the person to be arrested has committed it (People v.
Agojo, G.R. No. 181318, April 16, 2009). U n d e r this exception
a warrantless arrest m a d e , one y e a r after the offense w a s
allegedly committed is an illegal arrest. ( B a r 1997; 2004)
3.
T h i s exception does not require the arresting officers
to personally witness the commission of the offense w i t h their
own eyes. Personal k n o w l e d g e of facts must be based on
probable cause, which means an actual belief or reasonable
grounds of suspicion. T h e 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
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
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
cause, coupled with good faith on the part of the peace officers
making the arrest (Abelita III v. Doria, G.R. No. 170762,
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 k n o w l e d g e of the facts. T h e Court
found that as soon as the police received a phone call about a
shooting incident, a team w a s dispatched to investigate. T h e
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. A f t e r tracking
down the petitioner, he w a s invited to the police headquarters
but the petitioner w h o initially agreed sped off prompting the
authorities to g i v e chase. T h e Court ruled that the petitioner's act of trying to g e t a w a y , coupled w i t h 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 v i v i d l y
illustrates the application of the exception. In People v.
Acol, 232 SCRA 406, t w o robbers divested the passengers
of a j e e p n e y of their belongings including the jacket of one
passenger. T h e passengers i m m e d i a t e l y sought the help of
police officers which formed a t e a m to track down the suspects.
One of the passengers w h o w e n t w i t h the responding police
officers, saw one of the robbers casually w a l k i n g in the same
vicinity and w e a r i n g his jacket. T h e warrantless arrest of the
accused w a s sustained by the Court as w e l l 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 w h o received a massive
skull fracture cause by a hard and h e a v y object. Right a w a y
the officers w e n t to the crime scene and found a piece of wood
with blood stains, a hollow block and t w o roaches of marijuana.
A witness told the police that the accused was one of those
who killed the victim. W h e n they proceeded to the house of
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229
the accused and arrested him. T h e 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 k n o w l e d g e of facts leading them to
believe that it w a s the accused was one of the perpetrators of
the crime.
Method of arrest without a warrant
1. Arrest by an officer — W h e n m a k i n g an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of his arrest.
T h i s information need not be g i v e n ( a ) if the person to be
arrested is engaged in the commission of an offense, ( b ) is in the
process of being pursued i m m e d i a t e l y after its commission, ( c )
escapes or flees, or ( d ) forcibly resists before the officer has the
opportunity to so inform him, or ( e ) w h e n the g i v i n g of such
information w i l l imperil the arrest (Sec. 8, Rule 113, Rules of
Court). T h e rules applicable to an arrest w i t h a w a r r a n t also
apply to an arrest without a w a r r a n t . H e n c e , the officer m a y
summon assistance to effect the arrest, break into a building
or an enclosure or break out from the same.
2.
Arrest by a private person — W h e n a private person
makes an arrest, he shall inform the person to be arrested not
of his authority to arrest, but of his intent to arrest him and
the cause of his arrest. T h i s information need not be given
under the same conditions as w h e n it is an officer w h o makes
the arrest (Sec. 9, Rule 113, Rules of Court). T h e 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.
W h e r e a warrantless arrest is made under the in flagrante and hot pursuit exceptions, the person arrested without
a w a r r a n t shall be forthwith arrested delivered to the nearest
police station or j a i l (Sec. 5, last paragraph, Rule 113). ( B a r
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).
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
Rights of a person arrested (R.A. 7438)
1. T h e rights of a person arrested, detained or under
custodial investigation are spelled out by Republic A c t
N o . 7438. These rights are:
( a ) T h e right to be assisted by counsel at all times
(Sec. 2[a], RA. 7438);
( b ) T h e right to remain silent (Sec. 2[b], R.A. 7438);
( c ) T h e right to be informed of the above rights
(Sec. 2[b], RA. 7438); and
( d ) T h e right to be visited by the i m m e d i a t e m e m bers of his family, by his counsel, or by any non-governmental organization, national or international (Sec. 2[f],
Rule 113, Rules of Court).
2.
T h e counsel must be one w h o is independent and
competent. He shall be allowed to confer at all times w i t h the
person arrested, detained or under custodial investigation. If
such person cannot afford the services of his o w n counsel, he
must be provided by the i n v e s t i g a t i n g officer w i t h a competent
and independent counsel (Sec. 2[b], Rule 113, Rules of Court).
3.
In the absence of a l a w y e r , no custodial investigation
shall be conducted and the suspected person can only be
detained by the investigating officer in accordance w i t h the
provisions of A r t i c l e 125 of the R e v i s e d P e n a l Code (Sec. 3,
RA. 7438). A l s o , any w a i v e r of the provisions of A r t i c l e 125 of
the Revised P e n a l Code, shall be in w r i t i n g , and signed by the
person arrested, detained or under custodial investigation in
the presence of his counsel, otherwise the w a i v e r shall be null
and void and of no effect (Sec. 2[e], Rule 113, Rules of Court).
( B a r 2004; 2006)
4.
A n y extrajudicial confession m a d e 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 w a i v e r , and in the presence of any
of the parents, older brothers and sisters, his spouse, the
municipal mayor, the municipal mayor, the municipal j u d g e ,
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ARREST, SEARCH AND SEIZURE
231
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). ( B a r 1996)
5.
R . A . 7438 expanded the m e a n i n g of custodial investigation. U n d e r Sec. 2(f) of the A c t , custodial investigation
shall include the practice of issuing an "invitation" to a person
w h o is investigated in connection w i t h an offense he is suspected to h a v e committed, w i t h o u t prejudice to the liability of
the "inviting" officer for any violation of law.
6.
R . A . 7438 provides penalties for its violations. For
instance, any arresting officer or investigating officer w h o fails
to inform any person, arrested, detained or under custodial
investigation of his rights to r e m a i n silent and to counsel,
shall suffer a penalty consisting of a fine of six thousand pesos
(P6.000.00) or a penalty of i m p r i s o n m e n t of not less than eight
( 8 ) years but not m o r e than ten (10) years, or both.
A n y person w h o obstructs, prevents or prohibits any
l a w y e r , any m e m b e r of the i m m e d i a t e l y family of a person
arrested, detained or under custodial investigation or those
w h o under the l a w are entitled to visit such person, shall
suffer the penalty of i m p r i s o n m e n t of not less than four ( 4 )
years nor more than six ( 6 ) years, and a fine of four thousand
pesos (P4,000.00).
Effect of an illegal arrest on jurisdiction of the court
T h e legality of the arrest affects only the jurisdiction
of the court over the person of the accused. A w a i v e r of an
illegal warrantless arrest does not also mean a w a i v e r of the
inadmissibility of evidence seized during an illegal warrantless
arrest (People v. Nuevas, 516 SCRA 463, February 22, 2007).
Effect of admission to bail on objections to an illegal arrest
An application for or admission to bail shall not bar
accused from challenging the validity of his arrest or
legality of the w a r r a n t issued, provided that he raises
objection before he enters his plea. T h e objection shall
the
the
the
be
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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 w a i v e d w h e n the person arrested
submits to arraignment without any objection, as in this case.
Accused-appellants are questioning their arrest for the first
time on appeal and are, therefore, deemed to h a v e w a i v e d
their right to the constitutional protection against illegal arrests and searches (People v. Aminola, G.R. No. 178062, September 8, 2010).
T h e established rule is that an accused m a y be estopped
from assailing the legality of his arrest if he failed to m o v e
for the quashing of the information against h i m before
his arraignment. A n y objection i n v o l v i n g the arrest or the
procedure in the court's acquisition of jurisdiction over
the person of an accused must be m a d e before he enters his
plea; otherwise the objection is d e e m e d w a i v e d (Zalameda
v. People, G.R. No. 183656, September 4, 2009; Sec. 26, Rule
115, Rules of Court). It has been ruled t i m e and again that
an accused is estopped from assailing any irregularity w i t h
regard to his arrest if he fails to raise this issue or to m o v e
for the quashal of the information against h i m on this ground
before his arraignment. A n y objection i n v o l v i n g 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 w a i v e d (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 m a y be deemed cured w h e n
he voluntarily submits to the jurisdiction of the trial court. It
has also held in a number of cases that the illegal arrest of
an accused is not a sufficient cause for setting aside a valid
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233
j u d g m e n t 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).
A n y 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 t i m e l y raise this objection amounts
to a w a i v e r 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 m o v e for the
quashal of the information against h i m on this ground, before
arraignment. H e r e , the appellant w a s already arraigned,
entered a plea of not g u i l t y and actively participated in his trial.
He raised the issue of the irregularity of his arrest only during
his appeal to the Court of A p p e a l s . He is therefore deemed
to h a v e w a i v e d 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 Palmay Hangad, G.R. No. 189279,
March 9, 2010; Diamante v. People, GJt. No. 180992, September
4, 2009; Zalameda v. People, G.R. No. 183656, September 4, 2009;
People v. Amper, G.R. No.172708, May 5,2010).
4.
T h e 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
accused voluntarily enters his plea and participates during
trial, without previously invoking his objections thereto.
T h e r e 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. 143951, May 25, 2010).
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5.
In one case, the petitioner claimed that his warrantless arrest is illegal. H o w e v e r , 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. A n y objection i n v o l v i n g a
warrant of arrest or the procedure by which the court acquired
jurisdiction over the person of the accused must be m a d e before
he enters his plea; otherwise, the objection is deemed w a i v e d
(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 n e g a t i v e plea and actively participated during the trial. T h u s , he is d e e m e d to h a v e w a i v e d
any perceived defect in his arrest and effectively submitted
himself to the jurisdiction of the court t r y i n g his case. At any
rate, the illegal arrest of an accused is not a sufficient cause
for setting aside a v a l i d j u d g m e n t rendered upon a sufficient
complaint after a trial free from error. It w i l l not e v e n 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, A r t i c l e 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
years imprisonment, be privileged from arrest while the
congress is in session * * *."
T h e privilege of a senator or a congressman w i l l not
apply w h e n the offense is ( 1 ) 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). A l s o , if the
offense is not punishable by imprisonment of not more than
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235
six ( 6 ) years, the privilege does not also apply if Congress is
not in session.
2.
U n d e r 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.
R . A . 75 prohibits the arrest of duly accredited ambassadors, public ministers of a foreign country, their duly
registered domestics (Sec. 4, R.A. 75), subject to the principle
of reciprocity (Sec. 7, R.A. 75).
II.
SEARCHES AND SEIZURES
(RULE 126)
Nature of a search warrant (Bar 1994)
1.
A search w a r r a n t is an order in w r i t i n g issued in
the name of the P e o p l e of the Philippines, signed by a j u d g e
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 w a r r a n t 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 m a d e necessary because of public necessity. It
resembles in some respects w i t h w h a t is commonly known as
John Doe proceedings (United Laboratories, Inc. v. Isip, 461
SCRA 574 citing Bevington v. United States, 35 F2d 584 1929;
State v. Keiffer, 187 NW164 1922).
A search w a r r a n t is a legal process which has been likened to a w r i t 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
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
(United Laboratories, Inc. v. Isip, 461 SCRA 574 citing Lodyga
v. State, 179 NE 164 1931; 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 m e r e private rights.
It concerns the public at large as distinguished from ordinary
civil action i n v o l v i n g the rights of p r i v a t e persons and m a y
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.
T h e p o w e r to issue search w a r r a n t s is exclusively
vested with the trial j u d g e s in the exercise of their judicial
functions (Skechers, USA v. Inter Pacific Industrial Trading
Corporation, 509 SCRA 395).
The Constitutional provision
1. L i k e an arrest, the l a w s and rules g o v e r n i n g a
search w a r r a n t is based upon constitutional guarantees. T h e
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).
2.
T h e 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).
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237
Arrest distinguished from search and seizure
1.
T h e rules on arrest are concerned w i t h the seizure
of a person. It involves the taking of a person in custody. A
search m a y follow an arrest but the search must be incident
to a lawful arrest.
T h e rules on searches and seizures cover a w i d e r 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 i n v o l v e s a different determination from
probable cause to search. In order to determine probable cause
to arrest, the j u d g e (not the prosecutor) must h a v e sufficient
facts in his hands that w o u l d 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 w i t h a c r i m e are found in a specific location.
3.
T h e j u d g e is not required to m a k e a personal
examination before issuing a w a r r a n t of arrest (Borlongan
v. Pena, G.R. No. 143951, May 5, 2010, citing Soliven v.
Makasiar, 167 SCRA 293). T h e j u d g e must, before issuing the
search warrant, personally e x a m i n e the complainant and the
witnesses he m a y produce (Sec. 5, Rule 126, Rules of Court;
Santos v. Pryce Gases, G.R. No. 165122, November 23, 2007).
4.
An arrest m a y be m a d e at any time of the day or
night (Sec. 6, Rule 113, Rules of Court). A search warrant is
generally served in the day time, unless there be a direction
in the w a r r a n t that it m a y be served at any time of the day
or night (Sec. 9, Rule 126, Rules of Court). Sec. 10 of Rule 126
specifies that the search w a r r a n t shall be v a l i d only for ten
( 1 0 ) days.
Definition of a search warrant under the Rules
A search w a r r a n t is an order in w r i t i n g issued in
name of the People of the Philippines, signed by a j u d g e
directed to a peace officer, commanding him to search
personal property described therein and bring it before
court (Sec. 1, Rule 126, Rules of Court).
the
and
for
the
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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.
T h e r e are exceptions to the above general rule.
These are:
( a ) T h e application m a y be made before any court
within the judicial region w h e r e the crime w a s committed if the place of the commission of the crime is known
(Sec. 2[b], Rule 126, Rules of Court).
( b ) T h e application m a y also be filed before any
court within the judicial region w h e r e the w a r r a n t 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 ) T h e application shall be m a d e only in the court
w h e r e 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.
T h e above rules in Sec. 2 of Rule 126 of the Rules of
Court have been deemed modified b y A . M . N o . 99-10-09-SC
dated January 25, 2000, in cases i n v o l v i n g heinous crimes,
illegal gambling, dangerous drugs and illegal possession of
firearms.
U n d e r the aforementioned issuance by the Supreme
Court, the following are authorized to act on all applications
for search warrants i n v o l v i n g any of the above crimes:
T h e Executive Judge and V i c e Executive Judges of
Regional T r i a l Courts of M a n i l a and Quezon City filed by the
Philippine National Police ( P N P ) , the National Bureau o f
Investigation ( N B I ) , the Presidential A n t i - O r g a n i z e d C r i m e
Task Force ( P A O C - T F ) and the Reaction A g a i n s t Crime Task
Force ( R E A C T - T F ) with the Regional T r i a l Courts of M a n i l a
and Quezon City.
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239
T h e 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 m a y be served in places outside
the territorial jurisdiction of said courts.
T h e authorized j u d g e s shall keep a special docket book
listing the details of the applications and the results of the
searches and seizures m a d e 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 w a r r a n t and to suppress the evidence illegally seized.
It w a s contended a m o n g others, that the application for search
w a r r a n t w a s filed and the w a r r a n t w a s issued by the R T C
of M a n i l a which is a court outside the territorial jurisdiction
and judicial region of the courts of A n g e l e s C i t y and Porac,
P a m p a n g a w h e r e the alleged crime w a s committed. I t was
also argued that the application for search w a r r a n t w a s not
personally endorsed by the head of the N B I as required by
A . M . N o . 99-10-09-SC.
T h e S u p r e m e Court observed that the cases against
petitioners i n v o l v e d a violation of the Dangerous Drugs
L a w of 1972 ( R . A . 6425). As such, the application for search
w a r r a n t m a y b e f i l e d b y the N B I i n the C i t y o f M a n i l a and the
w a r r a n t issued m a y be served outside of M a n i l a pursuant to
A . M . N o . 99-10-09-SC. T h e Court l i k e w i s e held that a s t o the
claim that the application for the w a r r a n t w a s defective for
not h a v i n g been personally endorsed by the head of the N B I ,
the Court held that nothing in A . M . N o . 99-10-09-SC prohibits
the head of the N B I and of the other l a w 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 A d m i n i s t r a t i v e Code of
1987, an assistant head or other subordinate in every bureau
may perform such duties as m a y be specified by their superior
or head, as long as it is not inconsistent with law.
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Ex parte application for a search warrant
An application for a search w a r r a n t 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. G r e a t
reliance has to be accorded by the j u d g e 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.
T h e property subject of a search w a r r a n t is personal
property, not real property. A search w a r r a n t m a y 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 e m b e z z l e d and other proceeds, or fruits of the offense; or
( c ) Personal property used or intended to be used
as a means of c o m m i t t i n g an offense (Sec. 3, Rule 126,
Rules of Court).
2.
As a rule, only the personal properties described in
the search w a r r a n t m a y be seized by the authorities. In People
v. Nunez, (G.R. No. 177148, June 30, 2009), Search W a r r a n t
N o . 42 specifically authorized the t a k i n g of m e t h a m p h e t a m i n e
hydrochloride (shabu) and paraphernalia(s) only. By the
principle of ejusdem generis, the Court explained, w h e r e
a statute describes things of a particular class or kind
accompanied by words of a generic character, the generic word
w i l l usually be limited to things of a similar nature w i t h 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, j i g s a w , electric tester, saws, hammer,
drill, and bolo w e r e 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
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241
appellant's residence they believed w e r e "proceeds of the crime"
or "means of committing the offense." T h i s , said the Court, is
absolutely impermissible.
In the same case, the Court declared:
" T h e purpose of the constitutional requirement that
the articles to be seized be particularly described in the
w a r r a n t is to l i m i t 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 w a r r a n t
is not a s w e e p i n g authority e m p o w e r i n g a raiding party
to undertake a fishing expedition to confiscate any and
all kinds of evidence or articles relating to a crime. A c cordingly, the objects taken which w e r e not specified in
the search w a r r a n t should be restored to appellant.
Requisites for the issuance of a search warrant
1.
T h e following are the requisites for a search w a r r a n t
under the Rules of Court:
(a)
T h e r e must be probable cause;
( b ) T h e presence of probable cause is to be determined by the j u d g e personally;
( c ) T h e determination by the j u d g e must be made
only after an examination under oath or affirmation of
the complainant and the witnesses he m a y produce;
( d ) T h e w a r r a n t must specifically describe the
place to be searched and the things to be seized which
m a y be a n y w h e r e in the Philippines (Sec. 4, Rule 126,
Rules of Court; Santos v. Pryce Gases, G.R. No. 165122,
November 23, 2007).
2.
T h e 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 j u d g e 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
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complainant and such witnesses as the latter m a y 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).
Inherent in the court's power to issue search warrants is the
power to quash warrants already issued. A f t e r a j u d g e 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; People v. Estela Tuan, G.R. No. 176066, August 11,2010).
Probable cause in search warrants
1.
A search w a r r a n t can be issued only upon a finding
of probable cause. Probable cause for search w a r r a n t means
such facts and circumstances which w o u l d lead a reasonably
discreet and prudent m a n to b e l i e v e that an offense has been
committed and that the objects sought in connection w i t h the
offense are in the place to be searched (Kho v. Lanzanas, 489
SCRA 445). T h e probable cause must refer only to one specific
offense (Roan v. Gonzales, 145 SCRA 687).
2.
T h e facts and circumstances being referred thereto
pertain to facts, data or information personally k n o w n to the
applicant and the witnesses he m a y present. T h e applicant or
his witnesses must h a v e personal k n o w l e d g e of the circumstances surrounding the commission of the offense being complained of. "Reliable information" is insufficient. M e r e affidavits are not enough, and the j u d g e must depose in w r i t i n g the
complainant and his witnesses (Yao, Sr. v. People, 525 SCRA
108) because in the determination of probable cause, the court
must resolve w h e t h e r or not an offense exists to justify the
issuance of the search w a r r a n t (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. T h e determination of the
existence of probable cause is not concerned w i t h the question
of whether the offense charged has been or is being committed
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243
in fact, or whether the accused is guilty or innocent, but only
whether the affiant has reasonable grounds for his belief. T h e
requirement is less than certainty of proof, but more than
suspicion or possibility (Kho v. Lanzanas, 489 SCRA 445).
3.
T h e r e 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 g i v e n situations and
its existence depends to a large degree upon the findings or
opinion of the j u d g e 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 w a r r a n t is paid w i t h g r e a t deference by a r e v i e w i n g
court, as long as there w a s substantial basis for that determination (People v. Mamaril, G.R. No. 171980, October 6, 2010).
A l t h o u g h the t e r m "probable cause" has been said to have
a well-defined m e a n i n g under the l a w , the term is exceedingly
difficult to define w i t h any d e g r e e of precision and one which
would cover e v e r y state of facts w h i c h m a y arise. As to w h a t
acts constitute probable cause, there is no exact test (Kho
v. Lanzanas, 489 SCRA 445). T h e question w h e t h e r or not
probable cause exists is one which must be decided in the light
of the conditions obtaining in g i v e n situations (Central Bank
v. Morfe, 20 SCRA 507).
4.
One case g i v e s a reminder by declaring that 'probable
cause' is a flexible, common sense standard. It m e r e l y requires
that the facts available to the officer would w a r r a n t a man
of reasonable caution and b e l i e f 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. 1535 1983).
5.
Since probable cause is dependent largely on the
opinion and findings of the j u d g e w h o conducted the examina-
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tion and who had the opportunity to question the applicant
and his witnesses, the findings of the j u d g e deserves great
weight. T h e r e v i e w i n g court can overturn such findings only
upon proof that the j u d g e disregarded the facts before him or
ignored the clear dictates of reason (Yao, Sr. v. People, G.R.
No. 168306, June 19, 2007). H o w e v e r , the probable cause
must also be shown to be w i t h i n the personal knowledge of the
complainant or the witnesses he m a y produce and not based
on mere hearsay. In determining its existence, the examining
magistrate must m a k e a probing and not merely routine or
pro forma examination of the complainant and the witnesses
(Nola v. Barroso, Jr., 408 SCRA 528; Betoy, Sr. v. Coliflores,
483 SCRA 435).
In determining probable cause, the oath required must
refer to the truth of the facts w i t h i n the personal k n o w l e d g e of
the applicant or his witnesses, because the purpose thereof is
to convince the magistrate, not the individual m a k i n g the affidavit and seeking the issuance of the w a r r a n t 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 w e r e accordingly
incomplete or insufficient to charge petitioner w i t h a criminal
offense, thus, negating its previous determination of probable
cause. T h e Court disagreed because in quashing the search
warrant, it would appear that the trial court had raised the
standard of probable cause to w h e t h e r there w a s sufficient
cause to hold petitioner for trial. In so doing, the trial court
committed g r a v e abuse of discretion.
Probable cause for a search w a r r a n t is defined as such
facts and circumstances which w o u l d lead a reasonably
discrete and prudent man to b e l i e v e 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. T h e existence depends to a large
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245
degree upon the finding or opinion of the j u d g e conducting
the examination. H o w e v e r , the findings of the j u d g e 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
1.
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 j u d g e (not the prosecutor) must h a v e sufficient
facts in his hands that w o u l d 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 w i t h a crime are found in a specific location.
2.
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
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 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.
A s i d e from the requirements mandated by Sec.
4 of Rule 126, the rule requires the j u d g e to comply with a
specific procedure in the conduct of the examination of the
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
complainant and the witnesses he may produce. T h e required
procedure involves the following:
( a ) T h e examination must be personally conducted
by the judge;
( b ) T h e examination must be in the form of searching questions and answers;
( c ) T h e complainant and the witnesses shall be examined on those facts personally k n o w n to them;
( d ) T h e statements must be in w r i t i n g and under
oath; and
( e ) T h e sworn statements of the complainant and
the witnesses, together w i t h the affidavits submitted,
shall be attached to the record (Sec. 5, Rule 126, Rules of
Court).
2.
T h e facts and circumstances to be testified to by the
complainant and the witnesses he m a y produce, being referred
thereto pertain to facts, data or information personally k n o w n
to the applicant and the witnesses he m a y present. T h e
applicant or his witnesses must h a v e personal k n o w l e d g e of
the circumstances surrounding the commission of the offense
being complained of. "Reliable information" is insufficient.
M e r e affidavits are not enough, and the j u d g e must depose in
w r i t i n g the complainant and his witnesses (Yao, Sr. v. People,
G.R. No. 168306, June 19, 2007). An application for a search
w a r r a n t if based on hearsay cannot, standing alone, justify
issuance of a search warrant. It is necessary for the witnesses
themselves, by their o w n personal information, to establish
the applicant's claims (Roan v. Gonzales, 145 SCRA 687).
3.
Section 5 of Rule 126 of the R e v i s e d Rules on Criminal Procedure, prescribes the rules in the examination of the
complainant and his witnesses w h e n 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
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247
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."
T h e foregoing provisions require that the j u d g e must,
before issuing the w a r r a n t m a k e a personal examination under
oath of the complainant and the witnesses he m a y produce in
accordance w i t h Sec. 5 of R u l e 126.
" M e r e affidavits of the complainant and his witnesses are
thus, not sufficient. A s i d e from the examination under oath,
" . . . T h e e x a m i n i n g j u d g e has to m a k e searching questions and
elicit answers of the complainant and the witnesses he may
produce in writing and to attach t h e m to the record." Thus, in
Balayon v. Dinopol, 490 SCRA 547, the Court found an R T C
j u d g e guilty of gross ignorance of the l a w for failure to observe
the mandate of the rules because the Court found that there
w a s no record of searching questions and answers attached to
the records of the case.
4.
T h e searching questions propounded to the applicant
and the witnesses depend l a r g e l y on the discretion of the
j u d g e . A l t h o u g h there is no hard-and-fast rule g o v e r n i n g how
a j u d g e should conduct his investigation, it is axiomatic that
the examination must be probing and exhaustive, not merely
routinary, general, peripheral, perfunctory or pro forma. T h e
j u d g e must not simply rehash the contents of the affidavit but
must m a k e his o w n 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. T h e examination must be probing and
exhaustive, not m e r e l y routine or pro forma. T h e examining
magistrate must not simply rehash the contents of the
affidavit but must m a k e his o w n inquiry on the intent and
justification of the application. A s k i n g of leading questions
to the deponent in an application for search warrant, and
conducting of examination in a general manner, would not
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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.
T h e long standing rule is that a description of
the place to be searched is sufficient if the officer w i t h the
warrant can, w i t h reasonable effort, ascertain and identify
the place intended and distinguish it from other places in
the community. A n y 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.
M o r e o v e r , in the determination of w h e t h e r a search
warrant describes the premises to be searched w i t h sufficient
particularity, it has been held that the executing officer's prior
knowledge as to the place intended in the w a r r a n t is relevant.
This would seem to be especially true w h e r e the executing
officer is the affiant on whose affidavit the w a r r a n t had been
issued, and w h e n he k n o w s that the j u d g e who issued the
w a r r a n t intended the compound described in the affidavit
(Uy v. Bureau of Internal Revenue, 344 SCRA 36; Yao, Sr. v.
People, G.R. No. 168306, June 19, 2007).
T h e standard for d e t e r m i n i n g the legality of a w a r r a n t
directed against a person is w h e t h e r the person has been
sufficiently described w i t h particularity sufficient to identify
him w i t h reasonable certainty. E v e n if his name is unknown
or erroneously w r i t t e n , the description of the person w i t h
certainty to identify him and set h i m apart from others is
enough to lend v a l i d i t y to the w a r r a n t (United States v.
Ferrone, 438 F.2d 381, 3d Cir. 1971). N o w h e r e 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 w h o occupies the described premises
(Quelnan v. People, 526 SCRA 653, July 6, 2007).
2.
T h e determining factor as to whether a search warrant describes the premises to be searched w i t h sufficient
particularity is not whether the description is technically ac-
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249
curate in e v e r y detail but rather w h e t h e r the description is
sufficient to enable the officer to locate and identify the premises w i t h reasonable effort, and w h e t h e r there is any reasonable probability that another premises m a y 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). T h e prevailing doctrine is that
the w a r r a n t "must sufficiently describe the premises to be
searched so that the officer executing the w a r r a n t 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 w a r r a n t as w e l l as the affidavit supporting it
g a v e an erroneous street address but w i t h the right apartment
number in a four-building apartment complex. Since there
w a s no other a p a r t m e n t in the entire complex that had the
same apartment number as that described in the warrant, the
description w a s upheld.
T h e court, in a California case, applying the same
principle, sustained the v a l i d i t y of a w a r r a n t which g a v e
the w r o n g 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 CA39 218, 161 CR 547).
4.
In another A m e r i c a n case, the place to be searched
was described as "313 West 27th Street, a dwelling. The
apartment of Melvin Lloyd Manley." T h e place was actually
a multi-occupancy d w e l l i n g w i t h sub-units or individual
apartments. T h e defendant assailed the validity of the warrant
on the ground that his apartment or unit w a s not sufficiently
described. H e r e 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 w h e r e it adequately specifies the name of the occupant
of the sub-unit against which the w a r r a n t is directed and
thus provides the searching officers sufficient information to
identify the place intended by the warrant.
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T h e warrant, said the Court, must m a k e reasonably clear
what place is to be searched. W h e r e the particular place to be
searched is described by the affidavit of the officer as a single
living unit in an entire building, a w a r r a n t 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 t h e m
located in the second floor w a s occupied by the accused. T h e
warrant referred to: "The apartment house occupied by Manuel
Estrada at 18 S. 19th Street, San Jose, the second story of a
white house
T h e court ruled that by referring to Estrada,
the warrant identified the particular unit to be searched and
the warrant w a s not o v e r l y broad. Estrada further held that if
the description in the w a r r a n t 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 w a r r a n t
w i l l 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 W a r r a n t A - l indicates the address of the
petitioner as "Hernan Cortes St., Cebu City" w h i l e the body of
the same w a r r a n t states the address as "Hernan Cortes St.,
Mandaue City." T h e Court did not consider the discrepancy
as sufficient to consider the w a r r a n t constitutionally infirm.
It w a s not shown that there w a s a street w i t h the same name
in Cebu C i t y nor w a s 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 w i t h the w a r r a n t can, w i t h
reasonable effort, ascertain and identify the place intended
and distinguish it from other places in the community. A n y
designation or description k n o w n 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 (See also People v. Tee, 395 SCRA 419).
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7.
A John Doe w a r r a n t which does not name the person
subject of the same, is the exception rather than the rule.
Hence, in one case a w a r r a n t w a s voided to the extent that it
was issued against fifty ( 5 0 ) John Does none of which could
be identified by the witnesses (Pangandaman v. Casar, 159
SCRA 599).
8.
T h e police on the other hand, should not be hindered
in the performance of their duties by superficial adherence
to technicality or farfetched judicial interference. W h i l e the
rule requires it necessary to express the n a m e or g i v e some
description of a party subject of a w a r r a n t , the principle does
not prevent the issue and service of a w a r r a n t against a party whose name is unknown. In such a case, the best possible
description of the person is to be g i v e n in the warrant; but
it must be sufficient to indicate clearly on w h o m 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. T h e description must be
sufficient to indicate clearly the proper person upon w h o m the
w a r r a n t is to be served.
Thus, in the l e a d i n g case of People v. Veloso, 48 Phil.
169, the search w a r r a n t stated that John Doe had gambling
apparatus in his possession in the building occupied by him
at N o . 124 Calle Arzobispo, C i t y of M a n i l a , and as this John
Doe w a s Jose M a . V e l o s o , the m a n a g e r of the Club, the police
could identify John D o e . Further, the affidavit for the search
w a r r a n t and the search w a r r a n t itself described the building
to be searched and the description was a sufficient designation
of the premises.
9.
T h e person to be searched must be described with
reasonable particularity (Lohman v. Superior Court, 69 CA 3d
894, 138 CR 403). He can e v e n be identified by a name which
others use in calling him, e v e n if it is not his real name (People
v. Mclean, 56 C2d 660, 663, 16 CR 347) because the standard
for determining the legality of a w a r r a n t directed against a
person is whether the person has been sufficiently described
with particularity sufficient to identify him w i t h reasonable
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certainty. E v e n if his name is unknown or erroneously written,
the description of the person w i t h 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). N o w h e r e in Section 4, Rule 126 or any other provision
of the Revised Rules of C r i m i n a l 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. T h e r e is also compliance w i t h the l a w w h e n the person although not particularly named, is described as the one
occupying and h a v i n g control of a specific address (People v.
Veloso, 48 Phil. 169).
Particular description of the items to be seized; general warrants (Bar 2005)
1.
T h e provision r e q u i r i n g 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 w a r r a n t (United States v. Marron,
275 U.S. 192, 196, 48 S. Ct. 74, 76, 72 L.Ed. 231, 237). T h e
requirement of particularity is designed to prevent general
exploratory searches which reasonably interfere w i t h a
person's right to privacy (People v. Schilling 1987 188 CA 3d
1021,1030,233 CR 744). W a r r a n t s which do not described the
things to be seized w i t h the required particularity have been
traditionally called general warrants.
2.
T h e 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, 1974 13 C3d
711, 722, 214 CR 801; People v. Tockgo, 1983 145 CA3d 635,
193 CR 503). A "meaningful restriction" is one that leaves
nothing to the discretion of the officer w h o conducts the search
(Marron v. United States, 275 US, 192, 196, 48 S. Ct. 74, 72
Ed 231). Corollarily, "a w a r r a n t may not authorize a search
broader than the facts supporting its issuance." Hence, a
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253
warrant authorizing the search and seizure of "papers showing
or tending to show the trafficking of cocaine" is invalid because
the affidavit supporting the issuance m a d e no reference to the
existence of such papers (People v. Holmsen, 1985, 173 CA3d
1045, 1048, 219 CR 598).
3.
T h e P h i l i p p i n e Supreme Court declares that the
purpose of this requirement is to l i m i t the things to be seized
to those described in the search w a r r a n t and to l e a v e the
officers of the l a w no discretion r e g a r d i n g w h a t articles they
shall seize so abuses m a y not be committed (Uy Kheytin v.
Villareal, 42 Phil. 886).
4.
T h e common denominator among decisions on "particularity" r e g a r d 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," h a v e been held inadequate (Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct.
1708, L.Ed. 2d 1127). T h e phrase, "any and all other stolen
items" w a s impermissibly v a g u e (United States v. Townsend,
394 F. Supp. 736 E.D. Mich, 1975). In People v. Tockgo, 1983,
145 CA3d 635, 642, 193 CR 503, the officers had information
about certain unique m a r k i n g s of stolen cigarettes, but the
description did not include the m a r k i n g s to permit the officers
to differentiate the object of the search from those which w e r e
not stolen. T h e words: "cigarettes...and any and all goods..."
w e r e deemed inadequate.
5.
In a landmark P h i l i p p i n e case,
deemed illegal, thus:
a warrant was
"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
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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.
A l s o held inadequate for constitutional compliance
is the following description of the things to be searched and
seized:
"...Television sets, video cassette recorders, rewinders, 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 abovementioned 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).
T h e above articles and appliances, said the Court, are
generally connected w i t h or related to a l e g i t i m a t e business
not necessarily i n v o l v i n g piracy of intellectual property or
infringement of copyright l a w s . Including them without
particularity makes the search w a r r a n t too general which
could result in the confiscation of all i t e m s found in any video
store.
7.
Curiously h o w e v e r , a different holding w a s m a d e in
the later case of Columbia Pictures Entertainment v. Court
of Appeals, 262 SCRA 219, e v e n if the items w e r e similarly
described as that in 20th Century Fox in letter "c" of the
described items in the search warrant. T h e Court called the
finding of the appellate court that the w a r r a n t is a "general"
w a r r a n t as one "devoid of merit."
8.
A high degree of particularity is required for items
such as books, films, recordings, or other materials that have
not y e t 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 w h e n the bases for their
seizure are the ideas which they contain (Stanford v. Texas,
379 U.S. 476, 485, 85 S. Ct. 506, 511-12, 13 L.Ed.2d 431, 436
1965; Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325, 99S.Ct.
2319, 2324, 60 L. Ed.2d 920, 927 1979).
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9.
Some decisions (State v. Brown, 470 P.2d 815, 81920 Kan. 1970), in the U n i t e d States have sometimes allowed
a general description when specificity is difficult and w h e r e a
technical description would h a v e required the experience of
a trained surgeon. F o r instance, the following description for
purposes of a w a r r a n t w a s 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 v a l i d i t y of the following description of gambling
paraphernalia w a s allowed: "wagering paraphernalia such as
betting slips, bottom sheets and owe sheets, and journals and
schedules of sporting events."
A w a r r a n t describing the property to be seized as "deer or
elk meat illegally possessed" w a s considered adequate because
a more particular description w a s not possible. T h e m e a t to
be seized had no brand names or serial numbers (Dunn v.
Municipal Court, 1963, 220 CA2d 858, 868, 34 CR 251).
10. In the Philippines, general descriptions h a v e likewise
been allowed in some cases w h e n dictated by the nature of
the things to be seized on the theory that the description
must be specific insofar as the circumstances w i l l ordinarily
allow (People v. Rubio, 57 Phil. 384). T h e l a w 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 (Yao, Sr. v. People, G.R. No. 168306,
June 19, 2007).
But the use of a generic term or a general description in
a warrant is allowed only w h e n a more specific description of
the things to be seized is not available. Thus, the mere use of
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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 w h e r e the petitioner is alleged to have
committed tax fraud and smuggling. T h e issuing j u d g e 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. T a k i n g into consideration the nature
of the articles described, no other m o r e adequate and detailed
description could h a v e been g i v e n because of the difficulty in
describing the contents of the same (Uy v. Bureau of Internal
Revenue, 344 SCRA 36).
11. In Kho v. Makalintal, 306 SCRA 70, the petitioners
claim that the search warrants issued w e r e general warrants
prohibited by the constitution because the things to be seized
w e r e not described and specified. O n e w a r r a n t for instance,
directing the search and seizure of firearms, did not list the
firearms to be seized and w e r e not classified as to size, make,
caliber. T h e other w a r r a n t m e r e l y stated "unlicensed radio
communication equipment such as transmitters,
transceivers,
handsets, scanners, monitoring devices and the like."
In brushing aside the contention of the petitioner, the
Court observed that the l a w enforcement officers could not
h a v e been in the position to know beforehand the exact
caliber or m a k e of the firearms to be seized. In the process
of surveillance conducted at a distance, they had no w a y of
knowing the caliber and m a k e of the firearms unless they get
a close v i e w of the weapons and thus, could not be expected
to know the detailed particulars of the objects to be seized
including the communications equipment. T h e court likewise
considered the use of the words, "and the like" of no moment
and did not m a k e the warrants in question, general warrants.
12. In Yao v. People, the petitioners argued that the
search warrants did not indicate w i t h particularity the items
to be seized since the search warrants merely described the
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257
items to be seized as L P G cylinders bearing the trademarks
G A S U L and S H E L L A N E without specifying their sizes.
T h e contention found no merit w i t h the Court holding
that a search warrant m a y be said to particularly describe the
things to be seized when the description therein is as specific
as the circumstances w i l l ordinarily allow; or w h e n the description expresses a conclusion of fact not of l a w by which the
w a r r a n t officer m a y be guided in m a k i n g 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) L P G
cylinders bearing the trademarks GASUL and SHELL A N E ; (2) Machines and equipments used or intended to
be used in the illegal refilling of GASUL and S H E L L A N E
cylinders. These machines were also specifically enumerated and listed in the search warrants; (3) Documents
which pertain only to the production, sale and distribution of the GASUL and S H E L L A N E L P G cylinders; and
(4) Delivery trucks bearing Plate Nos. WTE-527, X A M 970 and WFC-603, hauling trucks, and/or other delivery
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trucks or vehicles or conveyances being used or intended
to be used for the purpose of selling and/or distributing
GASUL and S H E L L A N E L P G 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 S H E L L A N E L P G cylinders or
tanks would be unnecessary" (Yao v. People, G.R. No.
168306, June 19, 2007).
13.
T h e description "an undetermined amount of marijuana or Indian hemp" satisfies the r e q u i r e m e n t of particularity in a search w a r r a n t . By reason of its character and the
circumstances under which it w o u l d be found, said article is
illegal. A further description w o u l d be unnecessary and impossible except as to such character, the place and the circumstances. T h e description therein is ( 1 ) as specific as the circumstances w i l l ordinarily allow; ( 2 ) expresses a conclusion of
fact — not of l a w — by which the peace officers m a y be guided
in m a k i n g 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 w a r r a n t imposes a meaningful restriction upon the objects to be seized b y the officers
serving the warrant. T h u s , 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
T h e l a w does not require that the property to be seized
should be owned by the person against w h o m the search
warrant is directed. It is sufficient that the person against
w h o m the w a r r a n t is directed has control and possession of the
property sought to be seized (Yao v. People, G.R. No. 168306,
June 19, 2007). In an A m e r i c a n 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
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259
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 w a r r a n t w a s executed including the time and place of its
execution.
A l s o , 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 w a r r a n t describing only
intoxicating liquors should not include ledgers and bills of
account w i t h i n the searched premises.
W h e r e the w a r r a n t 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 e v e n 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 w a r r a n t because
the place not described is w h a t the officers had in mind (People
v. Court of Appeals, 291 SCRA 400).
2.
A w a r r a n t 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 g i v e w a y to the interest in the prompt and
efficient completion of the task when a legitimate search is
underway and w h e n its purpose and limits have been precisely
defined. If the warrant is to search a vehicle, e v e r y part of
that vehicle which m a y contain the object to be seized may be
searched. In other words, the lawful search of the premises
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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 w a r r a n t 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 h a v e also generally allowed a search of vehicles owned or controlled by the owner
of the premises and at the same t i m e found in the premises
(United States v. Percival, 756 F.2d 600 7th Cir. 1985).
Search of third persons not named in the warrant
A s s u m e that a search w a r r a n t for a described place of
a named o w n e r is being executed, m a y a person w h o just
happens to be in the premises be also searched? T h e prevailing
A m e r i c a n general rule is that a w a r r a n t to search a place does
not extend to the authority to search all persons in the place
because the police h a v e no probable cause to search and detain
a person not particularized in the w a r r a n t . 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.
T h e r e h a v e been cases w h e r e the Court upheld the search
of things belonging to third persons w h i l e in the place validly
searched as w h e n the officers had no k n o w l e d g e that the same
belongs to a third person (Carman v. State, 602 P.2d 1255,
Alaska 1979). M o r e l e e w a y has also been allowed in searches
of contraband like narcotics. S o m e cases authorized the temporary detention of a person in the premises searched w h i l e
the search was underway to prevent flight if incriminating
evidence is found, to m i n i m i z e risks to the officer and destruction of the evidence. T h e search of narcotics often result to
violence and a scrambling for the destruction or concealment
of incriminating evidence
Issuance and form of the search warrant
T h e warrant shall be issued w h e n the j u d g e is satisfied
of the existence of facts upon which the application is based or
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261
that there is a probable cause to believe that they exist. T h e
form of the search w a r r a n t must be substantially in the form
prescribed by the Rules (Sec. 6, Rule 126, Rules of Court).
Duration of the validity of a search warrant
A search w a r r a n t shall be v a l i d for ten ( 1 0 ) days from its
date. Thereafter, it shall be v o i d (Sec.10, Rule 126, Rules of
Court).
Time of making the search
T h e w a r r a n t shall be served in the daytime and such fact
must be so directed by the w a r r a n t . H o w e v e r , if the affidavit
asserts that the property is on the person or in the place ordered to be searched, the w a r r a n t m a y insert a direction that
it may be served at any t i m e of the day or night (Sec. 9, Rule
126, Rules of Court). T h e rule on issuance of search warrants
allows for the exercise of judicial discretion in fixing the time
within which the w a r r a n t m a y be served, subject to the statutory requirement fixing the m a x i m u m t i m e for the execution
of a w a r r a n t (People v. Court of Appeals, 347 SCRA 453).
Manner of making the search
1.
T h e search shall be m a d e in the presence of the lawful occupant of the house, room or any other premises, or any
m e m b e r of the lawful occupant's family. In the absence of the
latter, the search shall be m a d e in the presence of t w o witnesses of sufficient age and discretion residing in the same
locality. T h e 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 w h i l e she was not in the house. T h e
petitioner alleges that since the search warrant was defective,
the items seized during the search could not be used in evidence against her.
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T h e Court categorically ruled that even assuming that
the petitioner or any lawful occupant of the house was not
present when the search w a s conducted, the search was done
in the presence of at least t w o witnesses of sufficient age and
discretion residing in the same locality. Clearly, the requirements of Sec. 8, Rule 126 of the Rules of Court w e r e complied
with by the police authorities w h o conducted the search.
Section 8, R u l e 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.
T h e officer seizing the property under the w a r r a n t
must g i v e a receipt for the same to the lawful occupant of the
premises in whose presence the search and seizure w e r e made,
or in the absence of such occupant, must, in the presence of at
least t w o witnesses of sufficient age and discretion residing
in the same locality, l e a v e 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.
B e i n g armed w i t h a w a r r a n t 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 m a y he forego the same like w h e n his
safety is in danger of being j e o p a r d i z e d or w h e n evidence is
about to be destroyed (Wilson v. Layne, 526 U.S. 603, 143
L.Ed.2d 818 119 S.Ct. 1692 1926).
2.
T h e officer m a y 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)
thority;
T h e officer gives notice of his purpose and au-
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263
( b ) He is refused admittance to the place of directed search despite the notice; and
( c ) T h e purpose of breaking is to execute the warrant or to liberate himself or any person lawfully aiding
him w h e n unlawfully detained therein (Sec. 7, Rule 126,
Rules of Court).
Duties of the officer after the search and seizure; delivery
and inventory
( a ) T h e officer must forthwith deliver the property
seized to the j u d g e w h o issued the warrant;
( b ) T h e officer must, together w i t h the delivery of
the property also d e l i v e r a true inventory of the property
seized. Such inventory must be duly verified under oath
(Sec. 12, Rule 126, Rules of Court).
( c ) N o t e : 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.
U n d e r Sec. 12(b) of R u l e 126, the j u d g e issuing the
search w a r r a n t has the following duties:
( a ) T h e j u d g e w h o issued the w a r r a n t shall ascertain if the return has been made. He shall do so ten ( 1 0 )
days after issuance of the search warrant.
( b ) If no return has been made, the j u d g e shall
summon the person to w h o m the w a r r a n t w a s issued and
require him to explain w h y no return w a s made.
( c ) If the return has been made, the j u d g e shall
ascertain w h e t h e r Sec. 11 of Rule 126 ( g i v i n g of a receipt
for the property seized) w a s complied w i t h and shall
require that the property seized be delivered to him.
T h e j u d g e shall also see to it that subsection "a" of Sec.
12 of Rule 126 ( d e l i v e r y of the property seized and true
inventory) has been complied w i t h .
2.
A j u d g e should know that his duty as a magistrate
does not end w h e n the w a r r a n t is issued. W h e n the evidence
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shows that the j u d g e who issued the search warrant did not
require the officers executing the w a r r a n t to m a k e 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,
November 23,2007, the Court found that the Court of A p p e a l s ,
in reversing the order of the trial court granting the motion
to quash, erred in ordering the return of the seized items
to respondent. Section 12, R u l e 126 of the Revised Rules of
Criminal Procedure expressly mandates the delivery of the
seized items to the j u d g e w h o issued the search w a r r a n t
to be kept in custodia legis in anticipation of the criminal
proceedings against petitioner. T h e d e l i v e r y of the items
seized to the court which issued the w a r r a n t together w i t h
a true and accurate inventory thereof, duly verified under
oath, is mandatory in order to preclude the substitution of
said items by interested parties. T h e j u d g e w h o issued the
search warrant is mandated to ensure compliance w i t h the
requirements for ( 1 ) the issuance of a detailed receipt for the
property received, ( 2 ) d e l i v e r y of the seized property to the
court, together w i t h ( 3 ) a verified true inventory of the items
seized. A n y violation of the foregoing constitutes contempt of
court.
T h e Court observed that operatives w h o served the
w a r r a n t properly delivered the seized items to the custody of
the trial court which issued the search warrant. Thereafter,
the trial court ordered their return to petitioner after quashing
the search warrant. W h e n the Court of A p p e a l s reversed the
trial court's quashal of the search warrant, it erred in ordering
the return of the seized items to respondent because it would
seem that respondent instituted the special civil action for
certiorari in order to regain possession of the property This
cannot be countenanced. T h e seized items should remain in
the custody of the trial court which issued the search warrant
pending the institution of criminal action against petitioner.
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265
Duty of the custodian of the log book
1.
T h e return on the search w a r r a n t 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 j u d g e (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. A n y objection concerning the issuance or service of
a w a r r a n t or a procedure in the acquisition by the court of jurisdiction o v e r the person of the accused must be m a d e before
he enters his plea, otherwise, the objection is deemed w a i v e d
(Buenaventura v. People, 529 SCRA 500, August 7, 2007).
2.
T h e constitutional right of appellant against warrantless arrest and search w a s not v i o l a t e d w h e n the appellant
failed to assail the l e g a l i t y of the arrest and the seizure of
the sachet of shabu prior to a r r a i g n m e n t or at any stage in
the proceedings of the trial court. T h e arrest w a s pursuant
to a buy-bust operation which is a v a l i d form of entrapment
of felons in the execution of their criminal plan; and that the
search conducted on appellant w a s incidental to a lawful
arrest (People v. Macatingag, 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 w a r r a n t and/or to
suppress evidence obtained by virtue of the w a r r a n t m a y be
filed and acted only by the court w h e r e 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. H o w e v e r , 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).
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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 h a v e 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.
T h e m a n a g e r of an establishment is a real party-ininterest to seek the quashal of the search w a r r a n t for the obvious reason that the search w a r r a n t , in which the manager
was solely named as respondent, w a s directed against the
premises and articles over which he had control and supervision. T h e manager, w h o is at the same t i m e the petitioner w a s
directly prejudiced or injured by the seizure of the gas tanks
because petitioner w a s directly accountable as m a n a g e r to the
purported o w n e r of the seized items. W h e n the application for
a search w a r r a n t a v e r r e d that petitioner had in his possession
and control the items subject of the alleged criminal offense,
the interest of the manager/petitioner becomes obvious.
T h e corporation does not h a v e 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. A s s u m i n g
arguendo that the corporation w a s the o w n e r of the seized
items, petitioner, as its m a n a g e r had the authority to question
the seizure of the items belonging to the corporation. U n l i k e
natural persons, corporations m a y 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 R T C of
Iloilo made a turnaround and granted the motion to quash
filed by the petitioner. T h e R T C likewise issued an order for
the return of the items seized to the petitioner. After a denial
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267
of its motion for reconsideration, the respondent elevated the
matter to the Court of A p p e a l s via a special civil action for
certiorari, arguing that the trial court committed g r a v e abuse
of discretion in quashing the search warrant. T h e petition
essentially questioned the quashal of the search warrant
despite a prior finding of probable cause. T h e Court of Appeals
rendered a decision setting aside the orders of the lower court.
T h e petitioner sought reconsideration but w a s denied.
One of the issues raised in the subsequent petition for
r e v i e w on certiorari before the Supreme Court w a s whether or
not the petition for certiorari filed w i t h the Court of A p p e a l s
by respondent w a s the proper r e m e d y to assail the orders of
the trial court.
T h e Court held that the special civil action for certiorari
w a s the proper recourse a v a i l e d by respondent in assailing
the quashal of the search w a r r a n t . An unwarranted reversal
of an earlier finding of probable cause constituted g r a v e abuse
of discretion. In any case, the Court had allowed e v e n direct
recourse to this Court or to the Court of A p p e a l s via a special
civil action for certiorari from a trial court's quashal of a
search w a r r a n t (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 l a w enforcer can v a l i d l y search or seize the
person, house, papers, or effects of any individual. To underscore
the significance the l a w attaches to the fundamental right of
an individual against unreasonable searches and seizures, the
Constitution clearly declares in Section 3 ( 2 ) , A r t i c l e I I I , that
"any evidence obtained in violation of this or the preceding
section shall be inadmissible in evidence for any purpose in
any proceeding." ( B a r 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
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obtained therefrom shall be inadmissible for any purpose in
any proceeding (People v. Racho, G.R. No. 186529, August 3,
2010).
2.
T h e r e are however, instances when securing a
warrant before effecting a search and a seizure would not serve
the ends of an orderly society. T h e time and effort required
to secure a w a r r a n t m a y sometimes actually frustrate the
effective enforcement of the l a w s and encourage criminal
activities. On the other hand, the rule requiring a w a r r a n t
protects citizens from the overzealousness of l a w enforcement
officers who hold as personal dogma that the means justify the
end. To harmonize these conflicting perspective, Courts h a v e
developed certain exceptions to the w a r r a n t requirement in
order to authorize warrantless searches and seizures w i t h the
end of striking out a balance b e t w e e n the need to safeguard
the rights of citizens and the need to avoid emasculating the
powers of the state to m a i n t a i n a well-ordered society.
A l t h o u g h embedded w i t h i n the rule on search warrants
is the general rule that searches and seizures shall be v a l i d
only w h e n carried out by v i r t u e of a search warrant, this rule
however, is subject to certain judicially formulated exceptions.
3.
It has a l w a y s been recognized that the rule requiring a w a r r a n t is not h o w e v e r , absolute. T h e r e are w e l l recognized instances w h e r e searches and seizures are allowed
even without a v a l i d w a r r a n t 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 arrest;
( b ) Seizure of evidence in "plain v i e w . " ( B a r 2008)
T h e elements of the plain v i e w 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
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269
discovered by the police w h o have the right to be where
they are; c) the evidence must be immediately apparent;
and d) "plain v i e w " justified m e r e seizure of evidence
without further search;
( c ) Search of a m o v i n g vehicle — H i g h l y regulated
by the g o v e r n m e n t , 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 T e r r y searches (People v. Lacerna, 278 SCRA 561; People v. Molina, 352 SCRA 174).
( B a r 1995)
( g ) E x i g e n t and e m e r g e n c y circumstances (People
v. Bohol, 560 SCRA 232, July 28, 2008; People v. Racho,
G.R. No. 186529, August 3, 2010.
( h ) Search of vessels and aircraft; [ a n d ]
( 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 w h e r e a w a r r a n t is not
necessary to effect a v a l i d search or seizure, w h a t 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).
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Search incident to a lawful arrest (Bar 2003)
1.
T h e "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.
T h e application of the above rule presupposes that
the person searched w a s previously arrested lawfully. Hence,
a person illegally arrested cannot be v a l i d l y searched without
a warrant under this provision. F o r an arrest to be lawful, the
arrest may either be by v i r t u e of a w a r r a n t lawfully procured
and 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. N e v e r t h e l e s s , a
search substantially contemporaneous w i t h an arrest can
precede the arrest if the police h a v e probable cause to m a k e
the arrest at the outset of the search. T h u s , we h a v e to
determine first w h e t h e r the police officers had probable cause
to arrest appellant. If w h a t prompted the police to apprehend
the accused, e v e n w i t h o u t a w a r r a n t , w a s the tip g i v e n by
the informant that appellant w o u l d arrive carrying shabu
this circumstance g i v e s rise to another question of w h e t h e r
that information, by itself, is sufficient probable cause to
effect a valid warrantless arrest. T h e long standing rule in
this jurisdiction is that "reliable information" alone is not
sufficient to justify a warrantless arrest. T h e 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. T h e r e is no cogent reason to
depart from this well-established doctrine (People v. Racho,
G.R. No. 186529, August 3, 2010).
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Parameters of a search incident to a lawful arrest; immediate possession and control rule
1.
Sec. 13 of R u l e 126 specifically enumerates the allowable scope of a search incident to a lawful arrest. T h e provision limits the search to the following:
( a ) F o r dangerous weapons;
( b ) F o r anything w h i c h m a y h a v e been used in the
commission of an offense; or
( c ) F o r anything w h i c h constitute proof in the commission of an offense.
2.
Is the search confined to the search of the person
lawfully arrested? H o w about the search of the premises
w h e r e he w a s arrested? T h e phraseology of Sec. 13 of Rule
126, at first glance, suggests that it is only the person lawfully
arrested who is to be searched. T h e provision partly reads: " . . .
A person lawfully arrested may be searched . ."
3.
T h e Court has h o w e v e r , ruled on several occasions
that: " x x x W h e n an arrest is made, it is reasonable for the
arresting officer to search the person arrested in order to r e m o v e
any weapon that the latter m i g h t use in order to resist arrest
or effect his escape. O t h e r w i s e , 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. M o r e o v e r , 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 tatter's reach, x x x a valid arrest allows the seizure of
evidence or dangerous weapons either on the person of the one
arrested o r w i t h i n t h e a r e a o f h i s i m m e d i a t e control. T h e
phrase "within the area of his i m m e d i a t e control" means the
area from within which he m i g h t 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
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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, w h e n the person arrested w a s brought out of the
room with his hands tied, a cabinet which is locked could no
longer be considered as part of "an area w i t h i n his i m m e d i a t e
control" because there w a s no w a y for h i m 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 l e g a l l y 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 w i t h no actual
connection to the crime of i l l e g a l possession of the drugs. If in
the course of the search, evidence is found constituting proof
of another offense, like an i l l e g a l l y possessed w e a p o n it is
submitted that the phraseology of the rule does not prevent
the seizure of the evidence.
T h e provisions of Sec. 13 of R u l e 126 are consistent w i t h
the ruling in Adams v. Williams, 47 U.S. 143, that a person
arrested m a y be searched for weapons and all unlawful articles
in his person and w i t h i n his i m m e d i a t e control m a y be seized.
A m e r i c a n decisions categorically declare that an arresting officer m a y 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 w a r r a n t for possession and transportation of explosives but during the search there was discovered an item the possession of which is illegal. T h e discovery of objects unrelated to the arrest does not render the
seizure invalid (United States v. Simpson, 453 F.2d 1028 10th
Cir. 1972).
5.
Sec. 13 of Rule 126 allows the warrantless search
of the "person lawfully arrested" as an incident to a lawful
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273
arrest in a manner similar to A m e r i c a n rulings allowing a full
search of the body of the person. T h e cases of United States v.
Robinson (414 U.S. 218,94 S. Ct. 467,38L.Ed.2d4271973) 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. I l l e g a l drugs w e r e discovered
in both instances. A full search means searching any property
associated w i t h the arrestee's body like clothing, j e w e l r y ,
watches and others attached to the person in a permanent or
semi-permanent capacity. T h e search includes inspecting the
clothing of the person arrested for bloodstains, fingerprints or
even serial numbers (State v. Smith, 203 N.W.2d 348 Minn.
1972; Parker v. State, 544 S.W. 2d 149 Tex. Crim. App. 1976).
6.
In an A m e r i c a n case, the accused w a s legally arrested
in his backyard. T h e officers then searched the apartment of
the accused. T h e search w a s declared illegal not being within
the i m m e d i a t e control of the accused, i.e., not within his
i m m e d i a t e reach (Frazier v. State, 488 P2d 613 Okla. Crim.
App. 1971).
Others cases h a v e similarly held that the right without a
search w a r r a n t to contemporaneously search persons lawfully
arrested and to search the place w h e r e the arrest is made to
find and seize things connected w i t h the crime as its fruits or
by the means it w a s committed, as w e l l as weapons and other
things to escape from custody is not to be doubted (Carroll v.
United States, 267 U.S. 132; Weeks v. United States, 232 U.S.
383, 392). But w h i l e the U . S . Supreme Court had broadened
the search from the "person" to the "place," such place should be
one where the arrest w a s made. T h e house for instance, where
the arrest was m a d e 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 m a d e a valid arrest in the premises,
they had a right without a w a r r a n t to contemporaneously
search the place for evidence of the criminal enterprise. In
Marron, the Court made clear that the search should be
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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 a w a y from the place w h e r e an arrest w a s
made. In this case, the search would no longer be incident to a
lawful arrest (Agnello v. United States, 269 U.S. 20,30; Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391; People
v. Conway, 225 Mic. 151; Gamble v. Keyes, 35 S.D. 645, 650).
7.
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 w i t h an
arrest w a r r a n t but not a search w a r r a n t , w e r e admitted to
petitioner's home by his w i f e , w h e r e they a w a i t e d petitioner's
arrival. W h e n he entered, he w a s served w i t h 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." T h e officers looked through the entire house
including the attic, the g a r a g e and a small workshop. At
petitioner's trial on burglary charges, items taken from his
home w e r e admitted o v e r the objection that they had been
unconstitutionally seized. H i s conviction w a s affirmed by
the California appellate courts, which held, despite their
acceptance of petitioner's contention that the arrest w a r r a n t
was invalid, that, since the arresting officers had procured
the w a r r a n t "in good faith," and since, in any event, they had
had sufficient information to constitute probable cause for the
arrest, the arrest w a s lawful. T h e courts also held that the
search w a s justified as incident to a v a l i d arrest.
T h e U . S . Supreme Court found the search of the entire
house unreasonable. It categorically ruled in Chimel that
assuming the arrest w a s v a l i d , 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 r e m o v e 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 m i g h t gain
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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 w e l l recognized exceptions,
a search w a r r a n t is required. A reasonable distinction is to be
made between a search of the person arrested and the area
within his reach and i m m e d i a t e control on one hand and more
extensive searches in other areas on the other.
T h e ruling in Chimel clarified previous cases (like United
States v. Rabinowitz, 339 U.S. 56) which m a d e v a g u e references
to the search of areas considered to be in the "possession" and
"control" of the person arrested a l l o w i n g searches of places
not necessarily w i t h i n the actual physical control of a person
but within his constructive control and g i v i n g free reign to l a w
enforcers in d e t e r m i n i n g w h a t 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 t w o r e v o l v e r s w i t h i n the reach of the person arrested
for being i n v o l v e d in an a r m e d robbery (People v. Spencer, 99
CaLRptr 681 Cal. App. 1972).
8.
T h e C h i m e l tradition found expression for instance,
in the Philippine case of People v. Leangsiri (252 SCRA 213).
H e r e L e a n g s i r i w a s arrested at the N A I A for bringing heroin
into the country. L a t e r , the persons i n v o l v e d in the smuggling
of heroin w e r e arrested in the hotel room of Leangsiri in an
entrapment operation. Questioning of the persons arrested
disclosed that one of t h e m w a s occupying a room in the same
hotel w h e r e L e a n g s i r i w a s billeted. W i t h o u t a search warrant,
the other room w a s searched and incriminating evidence was
seized. C l e a r l y said the Court, citing Chimel, the search of
the latter room w a s illegal and the evidence obtained therein
is inadmissible, the place searched being not within the
immediate control of the person arrested.
9.
In a leading Philippine case, Nolasco v. Pano, 139
SCRA 152, the accused w h o w e r e at large for rebellion and
subversion, w e r e arrested by constabulary officers at the
intersection of t w o streets in Quezon City at 11:30 A . M . On
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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.
A f t e r charges w e r e 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. T h e motion w a s anchored on the alleged void
character of the search w a r r a n t for its failure to particularly
describe the things to be seized and for lack of searching
questions propounded to the applicant's witnesses. T h e
Supreme Court held the w a r r a n t void in a later proceeding
but did not order the return of the items confiscated because
the search of the house could h a v e accordingly been v a l i d l y
effected e v e n without a w a r r a n t . Accordingly, considering
that the accused has been charged w i t h rebellion, which is
a crime against public order, the w a r r a n t for her arrest not
having been served for a considerable period of time, and
the search h a v i n g been m a d e just w i t h i n h a l f 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." W h a t 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 the
warrantless search as an incident to a lawful arrest, a dissenting
opinion was interposed by Justice T e e h a n k e e , calling the
majority decision "patently against the constitutional
proscription and settled l a w and jurisprudence." W h i l e 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 t i m e 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 m a d e in a place other than the
place of arrest.. .To hold that her d w e l l i n g could be searched
without a warrant is to sanction an untenable violation, if not
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nullification, of the cited basic constitutional rights against
unreasonable searches and seizures."
Justice Cuevas and Justice A b a d Santos likewise lodged
strong dissents. Justice Cuevas, w i t h w h o m 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 w i t h
respect to the person of the suspect, and things that m a y be
seized from him are limited to "dangerous weapons" or "anything which m a y 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 w i t h the lawful arrest. ...to be v a l i d it must h a v e been conducted at about the
time of the arrest or i m m e d i a t e l y thereafter and only at the
place w h e r e the suspect w a s arrested." Justice Cuevas added:
". . . in addition to a lawful arrest, the search must be incident to the arrest and the search must be m a d e at the place of
the arrest, otherwise it is not incident to the arrest" (citations
omitted).
A c t i n g on a partial motion for reconsideration of the
Court's decision, the Court reversed itself and ordered the
return of the items seized to the petitioner. In doing so,
the Court adopted the rationale in the dissent of Justice
T e e h a n k e e w h o at the t i m e had become the C h i e f Justice
(Nolasco v. Pano, 147 SCRA 509).
10. Espano v. Court of Appeals, 288 SCRA 588, is one
of the cases which drives home the point on the concept of a
search incident to a lawful arrest. H e r e , police officers arrested
the accused in flagrante delicto selling marijuana in a street
corner. T h e search of his person yielded t w o cellophane bags
of marijuana. W h e n asked if he had more, he admitted he
had marijuana in his house. T h e policemen then proceeded
to the house of the accused and m a d e a search which yielded
ten more cellophane tea bags of marijuana. T h e 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. T h e search may extend beyond the person of
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the person arrested to include the premises or surroundings
under his immediate control. T h e warrantless search however,
of the house of the accused which yielded marijuana became
unlawful since the police officers w e r e not armed w i t h a search
warrant at the time. M o r e o v e r , the house of the accused w a s
beyond his reach and control.
11. Earlier in People v. Lua, 256 SCRA 539, a similar
pronouncement w a s m a d e by the Court. T h e accused in Lua
was arrested outside his house in flagrante delicto in a buybust operation. T h e Court found nothing objectionable in
the body search of the person arrested and the confiscation
of the bags of marijuana and a paltik r e v o l v e r in his person.
H o w e v e r , the subsequent search of the house of the arrestee
was found invalid and the marijuana found therein considered
inadmissible. T h e search of the house according to the Court is
not within the contemplation of a "search incident to a lawful
arrest." T h e house, at the t i m e of his arrest w a s not w i t h i n the
reach and control of the arrestee.
Searches of moving vehicles
1.
A warrantless search of a m o v i n g vehicle is justified
on the ground that "it is not practicable to secure a w a r r a n t
because the vehicle can be quickly m o v e d out of the locality or
jurisdiction in which the w a r r a n t must be sought" (People v.
Tuazon, 532 SCRA 152, September 3, 2007).
2.
W h e n a vehicle is flagged down and subjected to an
extensive search, such a warrantless search has been held
to be valid as long as the officers conducting the search h a v e
reasonable or probable cause to b e l i e v e 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).
3.
"The scope of a warrantless search of an automobile
thus is not defined by the nature of the container in which
the contraband is secreted. Rather, it is defined by the object
of the search and the places in which there is probable cause
to believe that it m a y be found. Just as probable cause to
believe that a stolen l a w n m o w e r m a y be found in a garage
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w i l l not support a w a r r a n t to search an upstairs bedroom,
probable cause to believe that undocumented aliens are being
transported in a van w i l l not justify a warrantless search of a
suitcase. Probable cause to believe that a container placed in
the trunk of a taxi contains contraband or evidence does not
justify a search of the entire cab" (United States v. Ross, 456
U.S. 798, 824, 102 S.Ct. 2157, 2172, 72 L.Ed.2d 572).
Check points
1.
In the famous case ofValmonte v. De Villa, G.R. No.
83988, May 24, 1990, the Court declared that nowhere in its
decision did the Court l e g a l i z e all checkpoints, i.e. at all times
and under all circumstances and w h a t it declared was that
that checkpoints are not illegal per se. T h e Court en banc w e n t
on to hold that "under exceptional circumstances, as w h e r e
the survival of o r g a n i z e d g o v e r n m e n t is on the balance, or
w h e r e the lives and safety of the people are in g r a v e peril,
checkpoints m a y be a l l o w e d and installed by the government.
Implicit in this proposition is, that w h e n the situation clears
and such g r a v e perils are r e m o v e d , checkpoints w i l l have
absolutely no reason to r e m a i n , x x x F o r 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 r e g a r d e d as violative of
an individual's right against unreasonable search."
C i t i n g A m e r i c a n jurisprudence, the court added that
routine checks, w h e n conducted in a fixed area, are even less
intrusive are permissible. Routine checkpoint stops do not
intrude similarly on the motoring public. A l s o , automobiles,
because of their mobility, m a y 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, 39ALR 790 [1925]). T h e cases so holding
have, however, always insisted that the officers conducting
the search have reasonable or probable cause to believe that
they w i l l 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).
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2.
Searches conducted in checkpoints are valid for as
long as they are warranted by exigencies of public order and
are conducted in a w a y 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 search
(People v. Vinecario, G.R. No. 141137, January 20, 2004, 420
SCRA 280).
3.
A more recent case affirming De Villa and Vinecario
holds that not all checkpoints are illegal. T h o s e which are
warranted by the exigencies of public order and are conducted
in a w a y 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 t w o . F o r 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
v i o l a t i v e of an individual's right against unreasonable search.
In fact, these routine checks, w h e n conducted in a fixed area,
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 w a y of apprehending
drug dealers in the act of committing an offense. T h i s 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 w a y of conducting
such operations (People of the Philippines v. Joey Tion y
Cabadu, G.R. No. 172092, December 16, 2009).
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281
2.
A search w a r r a n t or w a r r a n t 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 h a v e 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).
S i m i l a r pronouncements h a v e been m a d e in other cases.
Hence, it w a s ruled that an arrest m a d e after an entrapment
operation does not require a warrant. Such warrantless is
considered reasonable and v a l i d under Sec. 5 ( a ) , R u l e 113 of
the Rules of Court (People v. Bohol, G.R. No. 171729, July
28, 2008, 560 SCRA 232). W h e n an arrest is m a d e during an
entrapment operation, it is not required that a w a r r a n t be
secured in line w i t h the provisions of Sec. 5 ( a ) , Rule 113 of the
Revised Rules of Court a l l o w i n g warrantless arrests. U n d e r
the said rule, a peace officer or a private person may, without
a warrant, arrest a person w h e n , 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). T h e 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 w h e r e the accused assailed the validity
of a buy-bust operations, it w a s ruled that from the v e r y
nature of a buy-bust operation, the absence of a warrant does
not make the arrest illegal. T h e illegal drug seized is not the
"fruit of the poisonous tree" as the defense allege. T h e 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,
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it follows that the search w a s also valid, and a w a r r a n t w a s
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 e m p l o y m e n t of such w a y s 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).
2.
In instigation, the instigator practically induces
the would-be offender into the commission of the offense,
and the instigator h i m s e l f becomes a co-principal. In a buybust operation, the idea of c o m m i t t i n g a crime originates
form the offender, without anybody inducing or prodding him
to commit the offense (People v. Naelga, G.R. No. 171018,
September 11, 2009; People v. Lazaro, Jr., G.R. No. 186418,
October 16, 2009). In entrapment, the peace officer resorts to
w a y s and means to trap and capture the l a w b r e a k e r in the
execution of the latter's criminal plan (People v. Tion, 608
SCRA 299). In instigation, the police or its agent lures the
accused into committing the offense in order to prosecute him
and which is deemed contrary to public policy and considered
an absolutory cause (People v. Lazaro, Jr., G.R. No. 186418,
October 16, 2009). E n t r a p m e n t in the Philippines is, however,
not a defense available to the accused; instigation is, and is
considered, an absolutory cause (People v. Doria, 301 SCRA
668, 694).
Applicable tests in a buy-bust operation; adoption of the
'objective test'
a
1.
T h e r e is no rigid or textbook method in conducting
buy-bust operation (People v. Tion, G.R. No. 172092,
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283
December 16, 2009). H o w e v e r , in determining the occurrence
of entrapment, t w o tests have been developed: the subjective
test and the objective test (22 C.J.S. CRIMLAW § 77).
2.
U n d e r the "subjective" v i e w of entrapment, the focus
is on the intent or predisposition of the accused to commit
a crime. U n d e r the "objective" v i e w , on the other hand, the
primary focus is on the particular conduct of l a w 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, 1997NMSC-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
[1979]). T h e g o v e r n m e n t agent's act is evaluated in the light
of the standard of conduct exercised by reasonable persons
generally and w h e t h e r 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.
P h i l i p p i n e courts h a v e adopted the "objective" test
in upholding the v a l i d i t y 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 b e t w e e n 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
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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.
T h e "objective" test in buy-bust operations demands
that the details of the purported transaction must be clearly
and adequately shown. T h i s must start from the initial
contact between the poseur-buyer and the pusher, the offer to
purchase, the promise or p a y m e n t of the consideration until
the consummation of the sale by the d e l i v e r y of the illegal
drug subject of the sale. T h e m a n n e r by which the initial
contact w a s made, whether or not through an informant, the
offer to purchase the drug, the p a y m e n t of the "buy-bust"
money, and the delivery of the illegal drug, w h e t h e r 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, h o w e v e r ,
examining the conduct of the police should not disable courts
into ignoring the accused's predisposition to commit the crime.
If there is o v e r w h e l m i n g 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 v a l i d i t y of the defense of
inducement (People v. Araneta, G.R. No. 191064, October 20,
2010).
5.
In order to determine the validity of a buy-bust
operation, the Supreme Court has consistently applied the
"objective" test. A p p l y i n g 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 further emphasized that the "manner by
which the initial contact w a s 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
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285
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 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.
O w i n g 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
ArayMirasol, 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. Conception, G.R. No. 178876, June 27, 2008,
the Court explained that the absence of a prior surveillance or
test buy does not affect the l e g a l i t y of the buy-bust operation.
T h e r e is no textbook method of conducting buy-bust operations.
T h e Court has left to the discretion of police authorities the
selection of effective means to apprehend drug dealers. A
prior surveillance, much less a l e n g t h y one, is not necessary
especially w h e r e the police operatives are accompanied by
their informant during the entrapment. Flexibility is a trait of
good police work. A l s o , the failure of the operatives to record
the boodle m o n e y w i l l not render the buy-bust operation
illegal. T h e recording of m a r k e d money used in a buy-bust
operation is not one of the elements for the prosecution of sale
of illegal drugs. T h e recording or non-recording thereof in an
official record w i l l 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
one, is not necessary, especially w h e r e the police operatives
are accompanied by their informant during the entrapment.
Flexibility is a trait of good police w o r k and that when time is
of the essence, the police m a y dispense with the need for prior
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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 nonrecording of the buy-bust m o n e y in the police blotter will
not affect the validity of the operations. N e i t h e r l a w nor
jurisprudence requires that the buy-bust money be entered in
the police blotter. T h e 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.
T h e 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 e x a m p l e could illustrate the principle
particularly w e l l . F o r instance, a policeman flags down a car
for a traffic violation. W h e n the officer approaches the car, he
sees in the front seat of the car a sub machinegun and two
hand grenades, items not n o r m a l l y issued to civilians. A f t e r a
few inquiries and h a v i n g d e t e r m i n e d the absence of a license
for the items, the officer n o w has a reasonable ground to seize
the object without a warrant. A l s o , assume that an officer
goes to a residence to execute a w a r r a n t to search a house for
particularly described stolen antique images. As the officers
look around in the l i v i n g 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 v i e w , " seizing them would not be
an invalid warrantless search.
2.
U n d e r the plain v i e w doctrine, objects falling in the
plain v i e w of an officer w h o has a right to be in the position to
have that v i e w are subject to seizure and m a y be presented as
evidence. T h e plain v i e w doctrine applies w h e n the following
requisites concur: ( 1 ) the l a w enforcement officer in search of
the evidence has a prior justification for an intrusion or is in
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287
a position from which he can v i e w a particular area; ( 2 ) the
discovery of the evidence in plain v i e w 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 2009).
Stated in another w a y , the plain v i e w doctrine permits
an officer, w h i l e lawfully e n g a g e d in an activity and lawfully
present in a particular place, to seize an apparently illicit
object without first obtaining a w a r r a n t authorizing him to do
so. It is founded on a common sense rule that w h e n a police
officer has seen or observed an object in 'plain v i e w , ' to require
the officer to secure a w a r r a n t would be to e n g a g e in a needless
exercise because failure to seize the object once observed
m i g h t i n v o l v e danger to the public and to the officer. T h e rule
allows a l a w enforcement officer to m a k e a seizure without
obtaining a search w a r r a n t 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 k n o w i n g l y exposes to public
v i e w , even in their o w n h o m e or office, is not private." In the
context of searches and seizures, the principle provides that
objects perceptible by an officer w h o 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 w e r e in the area
because that w a s w h e r e they caught up w i t h petitioner after
the chase. T h e y saw the firearms inside the vehicle when petitioner opened the door. Since a shooting incident just took
place and it w a s reported that petitioner w a s involved in the
incident, it was apparent to the police officers that the firearms m a y be evidence of a crime. Hence, they w e r e justified
in seizing the firearms (Judge Felimon Abelita, III v. P/Supt.
German Doria and SP03 Cesar Ramirez, G.R. No. 170672,
August 14, 2009).
4.
In another case, the police w e r e investigating a
reported homicide. T h e police looked into the car of the accused
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and from the w i n d o w they saw a pillowcase, backseat and a
briefcase, all covered w i t h blood. T h e 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. T h e y
took the things. T h e accused assailed the validity of the taking
of the items as have been illegally taken since they w e r e not
mentioned in the affidavit supporting the application for the
warrant. T h e Court ruled that the seizure w a s constitutional.
T h e items seized w e r e in plain 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.
F o r e i g n cases h a v e frequently g i v e n as an example
of the applicability of the 'plain v i e w ' doctrine, a situation in
which the police h a v e a w a r r a n t to search a g i v e n 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.
T h e doctrine has been applied to a situation w h e r e
the police officers inadvertently come across evidence w h i l e 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)]).
T h e doctrine has also been applied w h e n an incriminating
object comes into v i e w during a search incident to a lawful
arrest and thus, could be searched without a w a r r a n t (Chimel
v. California, 395 U.S. [752J 762-763 [89 S.Ct. 2034, 20392040
(1969)]).
7.
T h e 'plain v i e w ' doctrine has been applied w h e r e a
police officer is not searching for evidence against the accused,
but nonetheless inadvertently comes across an incriminating
object (Harris v. United States, 390 U.S. 234 [88 S.Ct. 992, 19
L.Ed.2d 1067 (1968)]; Frazier v. Cupp, 394 U.S. 731 [89 S.Ct.
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289
7420, 22 L.Ed.2d 684 (1969)]; Ker v. California, 374 U.S. [23,]
43 [83 S.Ct. 1623, 1635, 10 L.Ed.2d 726(1963)].
W h e r e the object seized was inside a closed package, the
object itself is not in plain v i e w 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 v i e w
(People v. Nuevas, 516 SCRA 463, February 22, 2007).
8.
T h e fact that the evidence is in plain v i e w is not alone
sufficient to justify a warrantless seizure. A m e r i c a n courts
which have extensively discussed the principle have held
that the seizure be based also on the "immediately apparent"
element. T h i s means that the officer must have probable cause
to believe that the object is evidence of a crime. Probable cause
exists w h e n "the facts and circumstances within the officer's
knowledge and of which he had reasonably trustworthy
information are sufficient in themselves to w a r r a n t a man of
reasonable caution in the b e l i e f that the object is evidence of a
crime (Brinegar v. U.S. 338 U.S. 160, 175-176 [U.S. Supreme
Court 1949]). N o t only must the i t e m be in plain v i e w . Its
incriminating character must also be "immediately apparent"
(Arizona v. Hicks, 480 U.S., at 326-327, 107 S.Ct, at 1153).
T h i s principle has also been followed in Philippine decisions (Judge Felimon Abelita, HI v. P/Supt. German Doria
and SP03 Cesar Ramirez, G.R. No. 170672, August 14, 2009).
9.
T h e principle is w e l l illustrated in Coolidge v. New
Hampshire, 403 U.S. 443,91 S.Ct. 2022,29L.Ed.2d564, where
the State endeavored to justify the seizure of the automobiles
in plain v i e w and their subsequent search at the police station.
T h e cars w e r e obviously in plain v i e w , but whether or not
they w e r e evidence of a crime remained uncertain until after
the interiors w e r e swept and examined microscopically. T h e
incriminating nature of the car w a s not therefore immediately
apparent. T h e Court hence, held that the police, in seizing
two automobiles parked in plain v i e w 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
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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. T h e 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 t w o sets of expensive stereo equipment,
which seemed out of place inside the squalid, rundown and illappointed four-room apartment and suspected that the stereo
components w e r e stolen. He recorded their serial numbers. In
the process.he had to m o v e a turntable which w a s in the w a y .
T h a t they w e r e stolen and taken during an armed robbery
w e r e later confirmed. H i c k s w a s subsequently arrested.
T h e state trial court and the A r i z o n a Court of A p p e a l s
granted the motion to suppress all the evidence seized on
the grounds that the seizure w a s unconstitutional. W h e n the
A r i z o n a Supreme Court denied r e v i e w , the U n i t e d States
Supreme Court accepted the prosecutors' request for a hearing.
In Arizona v. Hicks, the S u p r e m e Court first ruled that
the warrantless entry by the officers, under the exigent
circumstances exception to the w a r r a n t requirement, was
valid. N e x t , the Court held that the m e r e recording of serial
numbers of appliances and e q u i p m e n t did not constitute a
seizure under the constitution, since it did not meaningfully
interfere w i t h respondent's possessory interest in either
the numbers recorded or the stereo equipment. H o w e v e r ,
the m o v i n g of the equipment w a s a "search" separate apart
from the search that w a s the lawful objective of entering the
apartment. T h a t the items w e r e stolen w e r e not immediately
apparent and that there exists no separate justification for
moving the equipment.
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 v i e w doctrine is
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291
enlightening. In this case, a California police officer executed
a search w a r r a n t 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 v i e w which
he seized. During the trial, the accused moved to suppress the
evidence as to the weapons on the ground that the weapons
w e r e not discovered inadvertently but on purpose and their
search and seizure w e r e not included in the warrant. T h e trial
court refused and the accused w a s convicted of robbery. T h e
California Court of A p p e a l s affirmed.
Surprisingly, 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 v i e w even
if inadvertence h a v e been mentioned as a characteristics in
other l e g i t i m a t e plain v i e w 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, w h e r e he declared that there must be an element of
inadvertence, did not command a majority, and a plurality of
the Court has since m a d e 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 of Rehnquist,
J.]). T h e 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 w a r r a n t 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, 94L.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.
T h e "inadvertence" requirement, following Coolidge
appears, however, to be the consistent norm in Philippine
jurisprudence (United Laboratories v. Isip, 461 SCRA 574;
Abenes v. Court of Appeals, G.R. No. 156320, February 14,
2007). T h e requirement of inadvertence means that the officer
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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, HI v. PISupt. German
Doria and SP03 Cesar Ramirez, G.R. No. 170672, August 14,
2009).
Emphatically, it w a s ruled that plain v i e w doctrine does
not apply w h e r e 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 w i t h i n the context
of Philippine jurisprudence. H e r e , the R T C found the accused
guilty beyond reasonable doubt of illegal possession of high
powered firearms and ammunition under Presidential Decree
N o . 1866 ( P . D . N o . 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 w a i s t of the petitioner, w a s readily visible,
and, therefore, could be seized without a search w a r r a n t under
the "plain v i e w " doctrine. T h e Court of A p p e a l s affirmed the
decision of the Regional T r i a l Court because notwithstanding
the absence of a search warrant, the policemen m a y v a l i d l y
seize the firearm and the same is admissible in evidence
against the accused pursuant to the "plain v i e w doctrine."
T h e petitioner raised before the Supreme Court the issue
of violation of his constitutional right against an unlawful
search and seizure. T h e Court, in finding against the petitioner
declared that under the plain v i e w doctrine, objects falling
in the "plain v i e w " of an officer w h o has a right to be in the
position to h a v e that v i e w are subject to seizure and m a y be
presented as evidence.
T h e "plain v i e w " doctrine, stressed the Court, applies
when the following requisites concur: ( a ) the l a w enforcement
officer in search of the evidence has a prior justification
for an intrusion or is in a position from which he can v i e w
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293
a particular area; ( b ) the discovery of the evidence in plain
v i e w is inadvertent; and ( c ) it is i m m e d i a t e l y apparent to the
officer that the item he observes m a y be evidence of a crime,
contraband or otherwise subject to seizure. A l l the foregoing
requirements h a v e been determined to be present in the instant
case. T h e l a w enforcement officers lawfully made an initial
intrusion because of the enforcement of the gun ban and w e r e
properly in a position from which they particularly v i e w e d the
area. In the course of such lawful intrusion, the policemen
came inadvertently across a piece of evidence incriminating
the petitioner w h e r e they saw the gun tucked into his waist.
T h e gun w a s in plain v i e w and discovered inadvertently when
the petitioner alighted from the vehicle.
2.
In a case, the police w h o had just tracked down the
petitioner and w h o w e r e informed of the i n v o l v e m e n t 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. T h e court observed that the police
authorities w e r e in the place because it w a s w h e r e they caught
up w i t h the petitioner w h o sped up in his vehicle after initially
g i v i n g his a g r e e m e n t to go to the police headquarters to shed
light on the shooting incident. T h e y saw the firearms when
the petitioner opened the door of the car. Since a shooting
just took place, and it w a s reported that the petitioner was
involved, it w a s apparent to the authorities that the firearms
m a y be evidence of the crime. H e n c e , they w e r e justified in
seizing the firearms under the plain v i e w doctrine (Abelita, III
v. Doria, G.R. No. 170762, August 14, 2009).
3.
W h e n a police officer sees a person placing a plastic
sachet containing w h i t e crystalline substance into her
cigarette case, it w a s in his plain v i e w (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 a w a y a footer, they also saw
various drug paraphernalia scattered on top of his bed. These
circumstances, according to the Court, w e r e sufficient to justify
the warrantless search and seizure because objects falling in
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the 'plain v i e w ' of an officer w h o has right to be in the position
to have that v i e w are subject to seizure (Zalameda v. People,
G.R. No. 183656, September 4, 2009).
5.
In cases w h e r e 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 w a r r a n t w h e n they are in
the plain v i e w of the officer. But w h e n not described in the
warrant, such objects seized are not presumed to be in plain
v i e w . "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 inadvertently"
(United Laboratories v. Isip, 461 SCRA 574).
6.
T h a t it must be i m m e d i a t e l y apparent to the officer that the items observed m a y be an evidence of a crime is
another important e l e m e n t of the doctrine. T h i s requirement
means that the incriminating nature of the evidence becomes
apparent if the officer, at the m o m e n t of seizure had probable
cause to connect it to a crime without the benefit of an unlawful search or seizure. To be i m m e d i a t e l y apparent, the rule
does not require an unduly high d e g r e e of certainty as to the
incriminating character of the evidence. "It requires m e r e l y
that the seizure be presumptively reasonable assuming that
there is probable cause to associate the property w i t h criminal
activity; that a nexus exists b e t w e e n a v i e w e d object and criminal activity" (United Laboratories v. Isip, 461 SCRA 574).
United Laboratories explains in unequivocal language
that the plain v i e w doctrine is not an exception to the w a r r a n t
but merely serves to supplement the prior justificationwhether it be a w a r r a n t for another object, hot pursuit, search
as an incident to a lawful arrest or some other legitimate
reason for being present, unconnected w i t h a search directed
against the accused. T h e Court significantly stressed that the
plain v i e w doctrine cannot be made to extend to a general
exploratory search from one object to another until something
incriminating at last emerges. T h e doctrine is a recognition
however, of the fact that when executing police officers come
across immediately upon incriminating evidence not covered
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295
by the warrant, they should not be required to close their
eyes to it, regardless w h e t h e r 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. U n d e r the plain v i e w 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 g a v e no credence to the claim
that the plain v i e w doctrine applies.
In 1996 the accused, V a l e r o s o w a s charged w i t h violation
of Presidential Decree N o . 1866 for illegal possession of
firearms and later w a s convicted by the trial court. On appeal,
the Court of A p p e a l s affirmed the conviction. On petition for
r e v i e w , the S u p r e m e Court affirmed the decision of the Court
of A p p e a l s . T h e subsequent motion for reconsideration was
denied by the Court w i t h finality.
Undaunted, the accused implored the Court through a
L e t t e r - A p p e a l to once m o r e take a contemplative reflection
and deliberation on the case, focusing on his breached constitutional rights against unreasonable search and seizure.
T h e Office of the Solicitor General ( O S G ) filed a Manifestation in which it changed it previous position on the case and
instead recommended the acquittal of the accused. T h e O S G
claimed that after a second look at the evidence presented,
the O S G 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.
A f t e r considering anew arguments through the LetterA p p e a l , together w i t h the O S G ' s position recommending his
acquittal, and keeping in mind that substantial rights must
ultimately reign supreme over technicalities, this Court was
swayed to reconsider.
T h e 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
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his children. He was awakened by the arresting officers who
w e r e heavily armed. T h e y 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. T h e other
police officers remained inside the room and ransacked the
locked cabinet w h e r e they found the subject firearm and
ammunition. W i t h such discovery, the accused w a s charged
with illegal possession of firearm and ammunition.
F r o m the foregoing narration of facts, the Court concluded that the arresting officers served the w a r r a n t of arrest
without any resistance from the accused. T h e y placed h i m
immediately under their control by pulling h i m out of the bed,
and bringing h i m out of the room w i t h his hands tied. To be
sure, the cabinet w h i c h w a s locked and forcibly open could
no longer be considered as an "area w i t h i n his i m m e d i a t e
control" because there w a s no w a y for h i m to take any weapon
or to destroy any evidence that could be used against him.
T h e arresting officers w o u l d h a v e been justified in
searching the person of the accused as w e l l as the tables or
drawers in front of him, for any concealed w e a p o n that m i g h t
be used against the former. But under the circumstances
obtaining, there w a s no comparable justification to search
through all the desk drawers and cabinets or the other closed
or concealed areas in that room itself.
T h e 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
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."
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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
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
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experience and training tell him that their acts are consistent
with acts of people w i t h 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 m a k e a valid arrest
but his instincts honed by years of experience in the streets
tell him something untoward is imminent. M a y he briefly stop
the persons, ask them questions and e n g a g e in a protective
search for a concealed weapon short of a full scale arrest?
T h e Supreme Court of the U n i t e d 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 M a r t i n M c F a d d e n w a s in his usual beat
in downtown Cleveland, a place he had covered for 30 years
as member of the C l e v e l a n d police force. M c F a d d e n saw t w o
unknown men w h o later w e r e identified as T e r r y and Chilton,
and w h o by their acts appeared to him to be e n g a g e d in an
elaborate y e t casual reconnaissance of a store. At one point, a
third man, later on identified as K a t z , came to confer w i t h the
first two, then disappeared and then rejoined the other t w o .
Suspecting t h e m to be a r m e d , and fearing that the three w e r e
preparing to rob the store, M c F a d d e n approached the men,
identified himself as a police officer and asked t h e m to identify
themselves. W h e n they simply mumbled an answer and did
not get a clear and audible response, he patted down the outer
garment of T e r r y and felt a gun in his pocket and removed
the same. A gun w a s also recovered from Chilton. T e r r y w a s
subsequently convicted for carrying a concealed weapon. T h e
Ohio Court of A p p e a l s affirmed the conviction, and the Ohio
Supreme Court declined to hear the case, claiming that no
"substantial constitutional question" w a s involved. T h e U . S .
Supreme Court then took cognizance of the case. I n the Supreme
Court, T e r r y contended that there existed no probable cause
for his arrest, that since the "stop" w a s an arrest and that
the "frisk" was a search under America's Fourth A m e n d m e n t
(Freedom from unreasonable searches and seizures), probable
cause is required. T h e argument was rejected by the Supreme
Court.
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299
Speaking for the Court, C h i e f Justice W a r r e n 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 * * *."
T h e Court held that the acts of Officer M c F a d d e n w e r e
acts which a reasonably prudent m a n would h a v e done in
believing that T e r r y w a s a r m e d and that he presented a
threat to the officer's safety w h i l e he w a s investigating his
suspicious behavior. T h e actions of T e r r y and Chilton w e r e
consistent w i t h M c F a d d e n ' s hypothesis that these men w e r e
contemplating a d a y l i g h t robbery which reasonably would
have been carried out w i t h a deadly weapon. N o t h i n g in their
conduct from the t i m e he first noticed them until the time he
confronted t h e m and identified h i m s e l f as a police officer g a v e
him sufficient reason to negate that hypothesis. M u m b l i n g an
unclear response to the officer's distinct question did nothing
to clear up the suspicion. T h e record observed the Court,
evidences the tempered act of a policeman who in the course
of an investigation had to m a k e a quick decision as to how to
protect himself and others from possible danger, and he took
limited steps to do so.
T h e Court likewise noted that Officer McFadden's actions
w e r e not invasive and o v e r l y intrusive. He patted down the
outer clothing of T e r r y and his t w o 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 K a t z '
person beyond the outer surfaces of his clothes, since he
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discovered nothing in his pat down which might have been
a weapon. Officer M c F a d d e n confined his search strictly to
what was minimally necessary to learn whether the men w e r e
armed and to disarm them once he discovered the weapons.
He did not conduct a general exploratory search for w h a t e v e r
evidence of criminal activity he m i g h t find.
T h e Court concluded that the r e v o l v e r seized from T e r r y
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 w a s necessary for the
protection of himself and others to take swift measures to
discover the true facts and neutralize the threat of h a r m if
it materialized. T h e policeman carefully restricted his search
to w h a t w a s appropriate to the discovery of the particular
items which he sought. T h e Court held that w h e r e a police
officer observes unusual conduct which leads him reasonably
to conclude in the light of his experience that criminal
activity m a y be afoot and that the persons w i t h w h o m he is
dealing may be a r m e d and presently dangerous, w h e r e in
the course of investigating this behavior he identifies himself
as a policeman and makes reasonable inquiries, and w h e r e
nothing in the initial stages of the encounter serves to dispel
his reasonable fear for his o w n or others' safety, he is entitled
for the protection of h i m s e l f 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 m i g h t be used to
assault him. Such a search is a reasonable search and any
weapons seized m a y properly be introduced in evidence
against the person from w h o m they w e r e taken.
Justice H a r l a n w h o 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,
CHAPTERV
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301
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.
T h e T e r r y doctrine is of t w o parts: the "stop" and
the "frisk." A v a l i d "stop" by an officer requires that he has
a reasonable and articulable b e l i e f that criminal activity
has happened or is about to happen. T h e "frisk" m a d e after
the "stop" must be done because of a reasonable b e l i e f that
the person stopped is in possession of a w e a p o n that w i l l
pose a danger to the officer and others. T h e "frisk" must be
a m e r e pat down outside the person's outer g a r m e n t and not
unreasonably intrusive.
2.
T h e gist of the ruling in T e r r y considered as constitutionally permissible a stop and frisk despite the lack of a
probable cause to m a k e a full scale arrest. W h i l e conceding
that the search w a s a search as defined by the constitution,
it did not agree w i t h the accused that the constitutional prohibition on unreasonable searches and seizures was violated
when he w a s stopped and frisked without a probable cause.
T h e test of the conduct of an officer under similar
circumstances, w a s not the existence of probable cause because
no full arrest is made. T h e test instead w a s r e a s o n a b l e
b e l i e f (called a g e n u i n e r e a s o n in a Philippine decision)
Because of the important interest in protecting the safety of
police officers, the Court held that a l a w 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
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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. T h i s 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 m a k i n g a stop must 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. T h e 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 e v e r y "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, w h e r e no crime is still apparent to
the officer. Terry calls these concrete facts as the "specific and
articulable facts which, taken together w i t h rational inferences
from those facts, reasonably w a r r a n t that intrusion." A mere
deep suspicion by an experienced officer that criminal activity
could take place is not sufficient for the application of the T e r r y
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 w e r e on a surveillance operation as
part of their l a w enforcement efforts w h e n P O l Cruz saw
petitioner placing a plastic sachet containing w h i t e crystalline
substance into her cigarette case. G i v e n his training as a l a w
enforcement officer, it w a s instinctive on his part to be drawn
to curiosity and to approach her. T h a t 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 w h a t includes "stop-and-frisk" operation and
how it is to be carried out. T h e 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 w e a p o n ( s ) or contraband.
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303
T h e 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. T h e
apprehending police officer must h a v e a g e n u i n e r e a s o n ,
in accordance w i t h the police officer's experience and the
surrounding conditions, to w a r r a n t the belief that the person
to be held has weapons (or contraband) concealed about him.
It should therefore be emphasized that a search and seizure
should precede the arrest for this principle to apply.
5.
A r e a d i n g of numerous jurisprudence disclose 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 w i t h w h o m he deals is not a r m e d with
a deadly w e a p o n that could be used against him.
"This principle of "stop-and-frisk" search w a s invoked
by the Court in a case w h e r e a policemen chanced upon the
accused w h o had reddish eyes, w a l k i n g in a s w a y i n g manner,
and w h o appeared to be h i g h on drugs. T h u s , we upheld the
validity of the search as akin to a "stop-and-frisk." T h e Court
also found justifiable reason to "stop-and-frisk" the accused
after considering the f o l l o w i n g circumstances: the drunken
actuations of the accused and his companions, the fact that
his companions fled w h e n they saw the policemen, and the
fact that the peace officers w e r e precisely on an intelligence
mission to verify reports that a r m e d persons w [ h ] e r e roaming
the vicinity.
" W h a t is, therefore, essential is that a g e n u i n e r e a s o n
must exist, in light of the police officer's experience and
surrounding conditions, to w a r r a n t 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
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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 w i t h
w h o m he deals is not armed w i t h a deadly weapon that could
unexpectedly and fatally be used against the police officer"
(Esquillo v. People, G.R. No. 182010, August 25, 2010).
7.
A stop-and-frisk situation, following Terry v. Ohio,
392 U.S. 1, 20 L. Ed. 2nd 889 (1968), must precede a warrantless arrest, be l i m i t e d to the person's outer clothing, and
should be grounded upon a g e n u i n e r e a s o n , in light of the
police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him (Valdez v. People, 538 SCRA 611, November
23, 2007).
Terry search vs. a search incident to a lawful arrest
1.
A T e r r y search or a "stop' and "frisk" is not to be
confused w i t h a search incident to a lawful arrest. A l t h o u g h
they result in a warrantless search, they differ in terms of the
requisite quantum of proof before they m a y be v a l i d l y effected
and in their allowable scope (Malacat v. Court of Appeals, 283
SCRA 159; People v. Chua, 396 SCRA 660).
2.
A T e r r y stop is l i k e w i s e not an arrest. A T e r r y
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, i n v e s t i g a t i v e "stop" followed by a surface, nonintrusive 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,
w h e r e the person is taken under the custody of the arresting
officer. T h e search is of the person and the area w i t h i n 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 evidence, any fruit of a crime or of things which
may provide the person arrested w i t h the means of escape.
3.
A T e r r y stop and frisk has a limited scope compared
to a full scale arrest and search. T h e T e r r y doctrine therefore,
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305
is not judged by the more stringent requirement of probable
cause which concededly applies only to an arrest and a search.
W h a t applies in a T e r r y stop and frisk is the reasonableness of
the act of the officer. T h i s "reasonable standard" w h i l e 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 w i t h judicial warrant, otherwise, such search and
seizure constitutes derogation of a constitutional right (Epie,
Jr. v. Ulat-Marredo, 518 SCRA 641, March 22, 2007).
4.
T h e 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, b e t w e e n persons and the police, there must
stand the protective authority of a magistrate clothed w i t h
the power to issue or refuse such search warrant. T h e
responsibilities of the m a g i s t r a t e do not end w i t h the granting
of the warrant, but extends to the custody of the articles seized
(Summerville General Merchandising Co. v. Court of Appeals,
529 SCRA 602, June 26, 2007).
W h e r e the articles seized h a v e 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,
525 SCRA 602, June 26, 2007).
Bond to ensure the return of the seized items
An order requiring the o w n e r 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
basis in law (Sony Computer Entertainment, Inc. v. Bright
Future Technologies, Inc., 516 SCRA 62, February 15, 2007).
Consented Searches
1.
T h e consent to a warrantless search must be voluntary, that is, it must be unequivocal, specific, and intelligently
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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 w a s obtained and that it w a s freely and
voluntarily g i v e n (Valdez v. People, 538 SCRA 611, November
23, 2007).
2.
Jurisprudence requires that in case of consented
searches or w a i v e r 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 k n o w l e d g e , 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 m e r e l y a demonstration
of regard for the supremacy of the l a w (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.
T h e 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 w a r r a n t 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
to quash the search warrant. A l s o , w h e n evidence is illegally
obtained, a motion to suppress the evidence is in order.
3.
T h e general rule is that all searches and seizures
made without a w a r r a n t are invalid. T h e illegality of a search
and a seizure occurs not only from the failure to obtain a
warrant w h e n required but also from the failure to comply with
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ARREST, S E A R C H A N D SEIZURE
307
the procedures for obtaining a w a r r a n t and in the execution
of the same. Such failure w i l l result in the application of the
exclusionary rule.
T h e 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 w e r e violated by the search, the evidence being the proverbial and jurisprudential "fruit of the
poisonous tree." T h e violation of an individual's rights also inevitably result into civil, criminal and administrative charges
against the officer responsible for the violation. ( B a r 2 0 0 5 )
4.
T h e prior rule embodied in Moncado v. People's
Court, 80 Phil. 1, 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." T h e
non-exclusionary rule ruling in Moncado w a s anchored on
the theory that the citizen is protected by other provisions of
the l a w s and has m e a n s of redress other than the exclusion
of evidence unlawfully obtained such as actions for damages
against the erring officers and the person w h o procured the
warrant. T h i s theory h o w e v e r , w a s 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.
XXX
"We hold, therefore, that the doctrine adopted in the
Moncado case must be, as it is hereby, abandoned..."
Civil damages; criminal liability
1. T h e proceedings under Rule 126 of the Rules of Court
does not provide for the filing of counterclaims for damages
against those w h o may have improperly sought the issuance
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of the search warrant. H o w e v e r , the petitioners had the right
to seek damages, if the circumstances warranted, by separate
civil action for the w r o n g inflicted on t h e m by an improperly
obtained or enforced search w a r r a n t (Arthur Del Rosario, et
al. v. Hellenor D. Doanto, Jr., et al., G.R. No. 180595, March
5, 2010).
2.
T h e r e 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 ( A r t i c l e 32[9], C i v i l Code
of the Philippines). T h i s liability is separate and distinct from
any criminal liability that m a y arise from the R e v i s e d Penal
Code like ( a ) violation of domicile ( A r t i c l e 128, Revised Penal
C o d e ) , ( b ) search w a r r a n t maliciously obtained and abuse
in the service of those l e g a l l y obtained ( A r t i c l e 129, Revised
Penal C o d e ) , or possibly ( c ) searching domicile without witness
(Article 130, Revised P e n a l C o d e ) .
Authority of the Executive Judge and Vice Executive Judge
re search warrants in Manila and Quezon City
1. A . M . N o . 99-1-09-SC dated January 25, 2000 authorizes the Executive Judges of the R T C ' s of M a n i l a and Quezon
City to act on all applications fro search w a r r a n t s involving
heinous crimes, illegal gambling, dangerous drugs and illegal possession of firearms on application filed by the Philippine N a t i o n a l Police ( P N P ) , N a t i o n a l Bureau o f Investigation
( N B I ) , Presidential A n t i - O r g a n i z e d C r i m e T a s k Force ( P A O C T F ) , and Reaction G A N S T C r i m e T a s k Force ( R E A C T - T F )
(Marimla v. People, G.R. No. 158467, October 16, 2009).
T h e 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. T h e warrants issued m a y
be served in places outside the territorial jurisdiction of said
courts (A.M. No. 99-1-09 SC, January 25, 2000).
2.
Although A . M / N o . 99-1-09 SC provides a personal
endorsement of the application by the "Heads" of the agencies
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309
mentioned, it w a s held that nothing in the rule prohibits
such heads from delegating the ministerial duty of endorsing
the application for search w a r r a n t s 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.
U n d e r the Rules of Court, bail is the security g i v e n
for the release of a person in custody of the l a w , 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.
T h e term bail under the Rules of Court distinguishes
it from the bondsman w h o furnishes the security g i v e n for the
provisional release of the person in custody of the l a w .
3.
T h e rule clearly specifies that the purpose of bail is
to guarantee the appearance of a person before any court w h e n
so required (Sec. 1, Rule 114, Rules of Court). T h a t the accused
shall appear before the proper court w h e n e v e r 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 i n v o l v e the right of the
accused to temporary liberty, but l i k e w i s e 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.
T h e right to bail is a constitutional right
Article III, 1987 Constitution of the Philippines). It is
in nature and is therefore, w a i v a b l e (Paderanga v.
Appeals, 247 SCRA 741; Go v. Bongolan, 311 SCRA
(Sec. 13,
personal
Court of
99).
5.
T h e right to bail springs from the presumption of
innocence accorded e v e r y accused upon w h o m should not be
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BAIL
(Rule 114)
311
inflicted incarceration at the outset since after the trial he
would be entitled to acquittal, unless his guilt be established
beyond reasonable doubt (Paderanga v. Court of Appeals, 247
SCRA 741; Go v. Bongolan, 311 SCRA 99).
6.
Since bail is the security for the release of a person
under custody of the l a w (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.
T h e money deposited as bail m a y h o w e v e r , be considered
not only as bail. It m a y be applied to the p a y m e n t of fines and
costs w h i l e the excess if any shall be returned to the accused
or to w h o e v e r m a d e the deposit (Sec. 14, Rule 114, Rules of
Court; A.M. No. 05-8-26 SC, October 3, 2005).
7.
T h e question of g r a n t i n g bail to the accused is but
an aspect of the criminal action, p r e v e n t i n g h i m or her from
eluding punishment in the e v e n t of conviction. T h e grant of
bail or its denial has no impact on the civil liability of the
accused that depends on conviction by final j u d g m e n t (Heirs
of Sarah Marie Palma Burgos v. Court of Appeals and Johnny
Co y Yu, G.R. No. 169711, February 8, 2010).
8.
W h e n 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 j a i l so that he m a y be
bound to answer for the commission of the offense. He must
be detained in j a i l during the pendency of the case against
him, unless he is authorized by the court to be released on bail
or on recognizance. A l l prisoners w h e t h e r under preventive
detention or serving final sentence cannot practice their
profession nor e n g a g e in any business or occupation, or
hold office, elective or appointive, w h i l e in detention (People
v. Honorable Maceda, 323 SCRA 45 cited in Trillanes TV v.
Pimentel, Sr., 556 SCRA 471).
9.
T h e 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 PV
v. Pimentel, Sr., 556 SCRA 471).
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
312
Constitutional basis of the right to bail
1.
" A l l persons, except those charged with offenses punishable by reclusion perpetua w h e n evidence of guilt is strong,
shall, before conviction, be bailable by sufficient sureties, or
be released on recognizance as m a y be provided by law. T h e
right to bail shall not be impaired e v e n w h e n the privilege of
the w r i t of habeas corpus is suspended. Excessive bail shall
not be required" (Sec. 13, Article III, 1987 Constitution of the
Philippines).
2.
on bail:
T h e Constitution lays d o w n the following principles
( a ) A l l persons shall, before conviction, be bailable.
T h i s is the general rule which m a k e s the right to bail a
constitutional right. Excepted from this general rule are
those w h o are charged w i t h offenses punishable by reclusion perpetua w h e n evidence of guilt is strong. T h e person accused of such offense h o w e v e r , shall be entitled to
bail w h e n evidence of guilt is not strong.
( b ) T h e suspension of the p r i v i l e g e of the w r i t of
habeas corpus does not i m p a i r the right to bail.
(c)
Excessive bail is not to be required.
3.
T h e Constitutional provision denying bail to those
charged w i t h reclusion perpetua w h e n 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.
T h e grant or denial of bail to a person charged with
an offense punishable by at least reclusion perpetua is made
CHAPTER VI
BAIL
(Rule 114)
313
dependent on whether or not the evidence of guilt is strong.
( B a r 2002)
T h e Court has described this quantum of evidence by
employing the terms "Proof evident," "Evident p r o o f and
"Presumption great." T h e first t w o terms w e r e held to mean
clear, strong evidence which leads a well-guarded dispassionate
j u d g m e n t to the conclusion that the offense has been committed
as charged, that accused is the guilty agent, and that he will
probably be punished capitally if the l a w is administered.
"Presumption great" exists w h e n the circumstances testified
to are such that the inference of guilt naturally to be drawn
therefrom is strong, clear, and convincing to an unbiased
j u d g m e n t and excludes all reasonable probability of any other
conclusion. E v e n though there is a reasonable doubt as to the
guilt of accused, if on an examination of the entire record the
presumption is g r e a t that accused is guilty of a capital offense,
bail should be refused.
T h e test is not w h e t h e r the evidence establishes guilt
beyond reasonable doubt but rather w h e t h e r it shows evident
guilt or a g r e a t 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).
T h e w o r d "strong" does not m e a n "proof beyond reasonable
doubt" (Pareja v. Gomez, 5 SCRA 830).
5.
T h e rule is v e r y explicit as to w h e n 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 w h e n the evidence of guilt is strong. Thus,
if the accused had been sentenced to reclusion perpetua, the
bail should h a v e been cancelled, instead of increasing it as
respondent Judge did. T h e 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 j u d g m e n t on the part
of the j u d g e but a patent disregard of well-known rules (Dipatuan v. Mangotara, A.M. No. RTJ-09-2190, April 23, 2010).
6.
W h e r e 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 t w o offenses, nothing can be clearer, therefore, that fixing the amount of PI,195,200.00 as the bail that
should be posted is clearly v i o l a t i v e of the constitutional provision (De la Camara v. Enage, 41 SCRA 1).
Bail in the military
T h e 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 B i l l of Rights. T h e right to
a speedy trial is g i v e n m o r e emphasis in the m i l i t a r y w h e r e
the right to bail does not exist. T h e unique structure of the
military should be enough reason to e x e m p t military men
from the constitutional coverage on the right to bail. T h e
argument that denial from the m i l i t a r y of the right to bail
would violate the equal protection clause is not acceptable.
This guaranty requires equal t r e a t m e n t only of persons or
things similarly situated and does not apply w h e r e the subject
of the treatment is substantially different from others. T h e
accused officers can complain if they are denied bail and other
members of the m i l i t a r y are not. But they cannot say they
h a v e 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 w a s whether or not a person facing extradition
is entitled to bail. T h e 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 w i t h an offense punishable with
reclusion perpetua, when evidence of guilt is strong. He also
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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 w h e n 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 w h o is the subject of an extradition request
and arrest w a r r a n t .
T h e Court agreed w i t h the petitioner and advanced the
following reasons:
( a ) T h e use of the word "conviction," in the constitutional provision on bail in Sec. 13 of A r t . I l l of the Constitution, as w e l l as Section 4 of R u l e 114 of the Rules
of Court, suggests that bail applies only w h e n a person
has been arrested and detained for violation of Philippine
criminal l a w s . It does not apply to extradition proceedings, because extradition courts do not render judgments
of conviction or acquittal.
( b ) T h e constitutional r i g h t to bail "flows from the
presumption of innocence in favor of e v e r y accused w h o
should not be subjected to the loss of freedom as thereafter he w o u l d be entitled to acquittal, unless his guilt
be proved beyond reasonable doubt." It follows, ruled the
Court, "that the constitutional provision on bail w i l l not
apply to a case like extradition, w h e r e 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 w i l l 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.
T h e Court however, did not hold that bail never applies
in extradition cases. It instead explained t h a t " x x x bail is not
a matter of right in extradition cases. H o w e v e r , the judiciary
has the constitutional duty to curb g r a v e abuse of discretion
and tyranny, as w e l l as the power to promulgate rules to protect and enforce constitutional rights. Furthermore, we be-
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lieve 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 m a y 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 m a t t e r of reciprocity, those cited
by the highest court in the requesting state w h e n 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 r e q u i r e m e n t w i t h clarity, precision and emphatic forcefulness. T h e Court realizes that extradition is basically an executive, not a judicial, responsibility
arising from the presidential p o w e r 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 this 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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Purganan case re-examined
F i v e ( 5 ) years after, on A p r i l 19, 2007, in Government of
Hongkong Special Administrative Region v. Olalia, Jr., 521
SCRA 470, ruled a n e w on the issue of w h e t h e r or not bail
applies to extradition cases in a petition which assailed the
order of the R T C of M a n i l a , Branch 8 g r a n t i n g bail to a person
subject of extradition proceedings. T h e Court in Hongkong v.
Olalia, Jr., r e e x a m i n e d its o w n ruling earlier m a d e in Purganan.
W h i l e a d m i t t i n g 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., v i e w e d the
issue in the light of the m o d e r n trend in international law
placing primacy on the w o r t h 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 g r o w i n g importance
of the individual person in public international l a w w h o , in
the 20th century, has g r a d u a l l y attained global recognition;
( 2 ) the higher v a l u e n o w being g i v e n to human rights in the
international sphere; ( 3 ) t h e corresponding duty of countries
to observe these universal h u m a n rights in fulfilling their
treaty obligations; and ( 4 ) the duty of t h [ e ] Court to balance
the rights of the individual under our fundamental law, on
one hand, and the l a w on extradition, on the other."
T h e Philippines, added the Court, along w i t h the other
members of the family of nations, is committed to uphold
fundamental human rights as w e l l as value the worth and
dignity of e v e r y person. T h e country has the responsibility of
protecting and promoting the right of e v e r y 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 e v e r y 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 l i m i t 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. T h i s Court has
admitted to bail persons w h o 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, t a k i n g into cognizance the
obligation of the Philippines under international conventions to uphold human rights.
N o t i n g 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 w h y it
should not also be a l l o w e d in extradition cases. L i k e w i s e ,
considering that the U n i v e r s a l Declaration of H u m a n
Rights applies to deportation cases, there is no reason w h y
it cannot be i n v o k e d in extradition cases. A f t e r all, both are
administrative proceedings w h e r e the innocence or guilt of
the person detained is not in issue.
Clearly, explained the H i g h Court, "the right of a prospective extraditee to apply for bail in this jurisdiction must
be v i e w e d in the light of the various treaty obligations of the
Philippines concerning respect for the promotion and protection of human rights. U n d e r these treaties, the presumption
lies in favor of human liberty. T h u s , the Philippines should
see to it that the right to liberty of e v e r y 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.
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ex rel. Iaonnis v. Garfinkle 44 F. Supp. 518); and it has been
held that a person arrested or detained cannot be released on
bail, unless that right is granted expressly by l a w (Bengzon v.
Ocampo, et al, 84 Phil. 611). Section 37(9) ( e ) of the Philippine
Immigration A c t 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."
" N o t e that this provision confers upon the Commissioner
of I m m i g r a t i o n the p o w e r and discretion to grant bail in
deportation proceedings, but does not g r a n t to aliens the right
to be released on bail. T h e use of the w o r d 'may' in said provision
indicates that the g r a n t of bail is m e r e l y permissive and not
mandatory or obligatory on the part of the Commissioner. T h e
exercise of the p o w e r 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). T h e determination as to the propriety
of allowing an alien, subject to deportation under the
I m m i g r a t i o n A c t , to be released t e m p o r a r i l y on bail, as w e l l as
the conditions thereof, falls w i t h i n the exclusive jurisdiction of
the Commissioner, and not in the courts of justice. T h e reason
for this is that the courts do not administer i m m i g r a t i o n 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, w a s challenged by them. T h e
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 A c t
of 1940 provides that "any alien under arrest in a deportation
proceeding may be released under bond or under such other
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conditions as m a y be imposed by the Commissioner of I m m i gration." T h e use of the word "may" in said provision indicates
that the grant of bail is m e r e l y permissive and not mandatory
on the part of the Commissioner. T h e 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 R e v i s e d A d m i n i s t r a t i v e
Code guarantees the right of aliens facing deportation to provisional liberty on bail' (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 m a y not be invoked by aliens in said
proceedings (Ong Hee Sang v. Commissioner of Immigration,
supra).
Who furnishes the bail
T h e bail m a y 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.
T h e bondsman shall surrender the accused to the
court for execution of the final j u d g m e n t (Sec. 2[d], Rule 114).
F o r the purpose of surrendering the accused, the bondsman
may arrest h i m or, upon w r i t t e n authority endorsed on a
certified copy of the undertaking, cause h i m 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 m a y be re-arrested
without the necessity of a w a r r a n t if he attempts to depart
from the Philippines without permission of the court w h e r e
the case is pending (Sec. 23, Rule 114, Rules of Court).
3.
T h e 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 j a i l e r 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
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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 l a w . A freeman therefore, is not entitled to
bail.
2.
T h e rule considers bail as applicable only to a person
in "custody of the l a w " and does not cover a person who is
in the enjoyment of his physical liberty. A fugitive therefore,
m a y not apply for bail unless he g i v e s himself up first so he
m a y placed under the custody of the l a w .
Thus, it w o u l d be incongruous, to file a petition for bail for
someone whose freedom has y e t to be curtailed (Docena-Caspe
v. Bagtas, 400 SCRA 37; Maguddatu v. Court of Appeals, 326
SCRA 362).
3.
Custody of the l a w 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 (Santiago
v. Vasquez, 217 SCRA 633; Miranda v. Tuliao, 486 SCRA
377). H e n c e , 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 l a w or otherwise deprived of his liberty. A person
w h o has not submitted h i m s e l f to the jurisdiction of the court
has no right to invoke the processes of that court. T h e j u d g e
therefore, should diligently ascertain the whereabouts of the
applicant and that he indeed has jurisdiction over the body of
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). T h e rationale behind this rule is to discourage
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and prevent the practice w h e r e 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 w a r r a n t or e v e n without a w a r r a n t pursuant to
the Rules of Court or if he voluntarily submits himself to the
jurisdiction of the court as w h e n he surrenders to the proper
authorities (People v. Gako, Jr., 348 SCRA 334).
A person is deemed to be under the custody of the l a w
either w h e n he has been arrested or has surrendered himself
to the jurisdiction of the court. T h e accused w h o is confined
in a hospital m a y be deemed to be in the custody of the l a w
if he clearly communicates his submission to the court w h i l e
confined in a hospital (Paderanga v. Court of Appeals, G.R.
No. 115407, August 28, 1995).
5.
In Defensor-Santiago v. Vasquez, 217 SCRA 634,
the petitioner w h o w a s charged before the Sandiganbayan
for violation of the A n t i - G r a f t and Corrupt Practices A c t , filed
through counsel w h a t purported to be an "Urgent Ex-parte
M o t i o n 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 l e a v e "that she
be considered as h a v i n g 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
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 v i e w of her physical incapacity and as a matter
of humane consideration.
Exceptions to the rule that the applicant must be in custody
of the law
T h e exceptions to the above rule that the applicant for
bail must be in the custody of the l a w arise ( a ) when the
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bail is required to guarantee the appearance of a material
witness under Sec. 14, Rule 119, Rules of Court; ( B a r 1999)
or ( b ) when bail is required to guarantee the appearance of a
prosecution witness in cases w h e r e there is a substitution of
the information (Sec. 14, Rule 110, Rules of Court).
Bail to guarantee appearance of witnesses (Bar 1999)
1.
W h i l e the rule is that bail does not apply to a person
who is not in custody of the l a w , the bail required to secure the
appearance of a material witness constitutes an exception to
the rule because he m a y be ordered to post bail even if he is
not under detention.
B a i l m a y be required to guarantee the appearance of a
material witness other than that of the accused (Sec. 14, Rule
119, Rules of Court).
2.
W h e n the court is satisfied, upon proof or oath, that
a material witness w i l l not testify w h e n required, the court,
may, upon motion of either party, order the witness to post
bail in such sum as m a y be d e e m e d proper. If he refuses to post
bail, the court shall c o m m i t h i m to prison until he complies or
is legally discharged after his testimony has been taken (Sec.
14, Rule 119, Rules of Court).
3.
If it appears at any t i m e before j u d g m e n t that a
mistake has been m a d e in charging the proper offense, the
court shall dismiss the original complaint or information upon
the filing of a n e w one charging the proper offense as long
as the accused is not placed in double jeopardy. T h e court
m a y require the appearance of witnesses to g i v e bail for their
appearance at the trial (Sec. 14, Rule 110, Rules of Court).
Bail for those not yet charged
1.
W h a t entitles a person to bail is his being under the
custody of the law. Hence, "any person in custody who is not
y e t charged in court m a y apply for bail with any court in the
province, city, or municipality w h e r e he is held" (Sec. 17[c],
Rule 114, Rules of Court).
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A person deprived of his liberty by virtue of his arrest
or voluntary surrender m a y apply for bail as soon as he is
deprived of his liberty, even before a complaint or information
is filed against him (Serapio v. Sandiganbayan, G.R. No.
148468, January 28, 2003).
2.
T h e application for bail shall be made w i t h any court
in the province, city or municipality w h e r e the person arrested
is held.
In Ruiz v. Beldia, Jr., A.M. No. RTJ-02-1731, February
16,2005, a j u d g e w a s censured and fined for gross ignorance of
the law by the Supreme Court for misapplying the provisions
of the Rules of Court on bail. H e r e , the person arrested w a s
detained in C a m p C r a m e , Quezon City, pending the filing of
formal charges in court. U p o n inquest, the arrestee executed a
w a i v e r of the provisions of A r t i c l e 125 of the R e v i s e d Penal Code
in relation to Section 7, R u l e 112 of the then applicable 1985
Rules of C r i m i n a l Procedure. T h e Inquest Prosecutor thus set
the hearing of the p r e l i m i n a r y investigation. H o w e v e r , a day
before the preliminary investigation, the arrestee obtained
an Order of Release signed by the respondent j u d g e w h o was
then detailed as assisting j u d g e of Branch 272, Regional T r i a l
Court of M a r i k i n a City.
T h e Certificate o f Detention issued b y the P N P - T M G S O D shows that the arrestee w a s detained at C a m p C r a m e in
Quezon City. T h e Court ruled that as correctly pointed out by
the Office of the Court A d m i n i s t r a t o r , the application for bail
should have been filed before the proper Quezon City court
and not in M a r i k i n a City.
3.
It is elementary that a municipal trial court j u d g e
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 in the trial
1.
T h e failure of the accused to appear at the trial
without justification shall be deemed a w a i v e r of his right to
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be present and the trial m a y proceed in absentia (Sec. 2[c],
Rule 114, Rules of Court).
2.
T h e bondsman m a y arrest the accused for the
purpose of surrendering the accused. T h e bondsman m a y also
cause the accused to be arrested by a police officer or any other
person of suitable age and discretion upon w r i t t e n 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 w h e t h e r an accused must first be arraigned before
he may be g r a n t e d bail. Lavides i n v o l v e d an accused charged
w i t h violation o f Section 5 ( b ) Republic A c t N o . 7610 ( T h e
Special Protection of C h i l d r e n A g a i n s t A b u s e , Exploitation
and Discrimination A c t ) , an offense punishable by reclusion
temporal in its m e d i u m period to reclusion perpetua. T h e
accused therein assailed the trial court's imposition of the
condition that he should first be a r r a i g n e d before he is allowed
to post bail.
It w a s held in Lavides that the grant of bail should not
be conditioned upon the prior a r r a i g n m e n t of the accused. In
cases w h e r e bail is authorized, bail should be granted before
arraignment, otherwise the accused w i l l 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 a r r a i g n m e n t of the accused.
To condition the grant of bail on his arraignment would
be to place h i m in a position w h e r e 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. T h e s e scenarios undermine the accused's
constitutional right not to be put on trial except upon 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).
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2.
In Serapio v. Sandiganbayan, G.R. No. 148468,
January 28, 2003, the prosecution argued that arraignment
is necessary before bail hearings m a y be commenced, because
it is only upon arraignment that the issues are joined.
Accordingly, it is only w h e n an accused pleads not guilty m a y
he file a petition for bail and if he pleads guilty to the charge,
there would be no more need for h i m to file said petition. T h e
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 v a l i d i t y of the bail hearings on
the ground that he w a s 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. L i k e w i s e , the a r r a i g n m e n t 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 m a y be had only if an accused escapes after he has
been arraigned." It w a s l i k e w i s e argued that "the conduct
of bail hearings prior to a r r a i g n m e n t w o u l d extend to an
accused the undeserved p r i v i l e g e of being appraised of the
prosecution's evidence before he pleads guilty for purposes of
penalty reduction."
T h e 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 w a s sustained. It w a s ruled
that a person is allowed to petition for bail as soon as he is
deprived of his liberty by v i r t u e of his arrest or voluntary
surrender. An accused need not w a i t 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 m a y apply for and
be granted bail even prior to arraignment. T h e Court stressed
that its ruling in Lavides also implies that an application for
bail in a case i n v o l v i n g an offense punishable by reclusion
perpetua to death m a y also be heard even before an accused
is arraigned. Further, if the court finds in such case that the
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accused is entitled to bail because the evidence against him is
not strong, he m a y be granted provisional liberty even prior to
arraignment; for in such a situation, bail would be "authorized"
under the circumstances. In fine, the Sandiganbayan committed a g r a v e abuse of its discretion amounting to excess of
jurisdiction in ordering the arraignment of petitioner before
proceeding w i t h the hearing of his petition for bail
T h e 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 m a y
apply for bail as soon as he is deprived of his liberty, even
before a complaint or information is filed against him. T h e
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 w e l l as a motion to quash the
informations filed against him. H e n c e , the ruling that to
condition the g r a n t of bail to an accused on his arraignment
would be to place him in a position w h e r e 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 h i m w i t h a crime
and his right to bail.
A n o t h e r related issue decided in Serapio w a s whether or
not a motion to quash m a y be filed during the pendency of
a petition for bail, that w h e t h e r or not the motion and the
petition are not inconsistent and m a y proceed independently
of each other. R u l i n g 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 g i v e n 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
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offense until his conviction while at the same time securing his
appearance at the trial. As stated earlier, a person may apply
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 m a y file a motion to quash
the Information, as a general rule, before arraignment.
"These t w o reliefs have objectives which are not necessarily antithetical to each other. Certainly, the right of an accused to seek provisional liberty w h e n charged w i t h an offense
not punishable by death, reclusion perpetua or life imprisonment, or w h e n charged w i t h 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 h i m w i t h such offense. It must
be conceded, h o w e v e r , 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 m a y become moot and academic."
Forms of bail (Bar 1999)
1.
Bail m a y be g i v e n 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 — T h i s is bail furnished by a
corporation. U n d e r the Rules of Court, any domestic or foreign
corporation which is licensed as a surety and authorized to
act as such, m a y 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).
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A c t N o . 536 enacted on N o v e m b e r 25, 1902 prescribes the
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 g i v e n as security for
the amount of the bail. W i t h i n ten (10) days from the approval
of the bond, the accused shall cause the annotation on the
certificate of title on file w i t h the R e g i s t r y of Deeds. If the
land is unregistered, it is annotated in the Registration Book
on the space provided therefore in the R e g i s t e r of Deeds of
the province or city w h e r e the land lies. T h e registration is
likewise m a d e on the corresponding tax declaration in the
office of the provincial, city and municipal assessor concerned.
W i t h i n ten (10) days from the performance of the above acts,
the accused shall submit his compliance to the court. H i s
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).
T h e sureties in a property bond must h a v e the following
qualifications:
( a ) Each must be a resident or o w n e r of real estate
w i t h i n the Philippines;
( b ) W h e r e there is only one surety, his real estate
must be w o r t h at least the amount of the undertaking;
( c ) If there are t w o or more sureties, each m a y justify in an amount less than that expressed in the undertaking but the a g g r e g a t e of the justified sums must be
equivalent to the w h o l e amount of the bail demanded.
In all cases, e v e r y 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). E v e r y surety is also required to
execute an affidavit taken before the j u d g e that he possesses
the qualifications of a surety also describing the property and
all relevant maters 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. T h e accused or any person acting in his behalf
may deposit in cash w i t h the nearest collector of internal
revenue or provincial, city, or municipal treasurer the amount
of bail fixed by the court or recommended by the prosecutor
who investigated or filed the case. T h e accused shall be
discharged from custody upon submission of the certificate of
deposit and a written undertaking showing compliance w i t h
the requirements of the Rules of Court. T h e money deposited
shall be considered as bail and applied to the payment of fine
and costs w h i l e the excess, if any, shall be returned to the
accused or to w h o e v e r m a d e the deposit (Sec. 14, Rule 114,
Rules of Court)
T h e deposit must be m a d e w i t h 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 j u d g e is not one of those authorized to
receive a deposit of cash bail; nor should such cash be kept in
the judge's office, much less in his o w n residence (Agulan v.
Fernandez, 356 SCRA 162; Naui v. Mauricio, 414 SCRA 11;
Lachica v. Tormis, 470 SCRA 206).
5.
Recognizance — T h i s is an obligation of record
entered into before some court or m a g i s t r a t e duly authorized
to take it, w i t h 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 m a y be released on recognizance
w h e n e v e r allowed by l a w or by the Rules of Court (Sec. 15,
Rule 114, Rules of Court). T h e release m a y be either on the
recognizance of the accused h i m s e l f or by a responsible person
(Sec. 15, Rule 114, Rules of Court).
Release on recognizance m a y be ordered by the court in
the following cases:
( a ) W h e n the offense charged is for violation of an
ordinance, a light felony, or a criminal offense, the imposable penalty of which does not exceed six ( 6 ) months im-
CHAPTER VI
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(Rule 114)
331
prisonment and/or P2,000 fine, under the circumstances
provided in R . A . N o . 6036;
( b ) W h e r e a person has been in custody for a period equal to or more than the m i n i m u m of the imposable principal penalty, without application of the Indeterminate Sentence L a w or any modifying circumstance,
in which case, the court, in its discretion, m a y allow his
release on his o w n recognizance, or on a reduced bail, at
the discretion of the court (Sec. 16, Rule 114, Rules of
Court);
( c ) W h e r e the accused has applied for probation,
pending finality of the j u d g m e n t but no bail was filed or
the accused is incapable of filing one (P.D. 968, Sec. 7);
and
( d ) In case of a youthful offender held for physical
and m e n t a l 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
696).
( e ) In s u m m a r y procedure, w h e n the accused has
been arrested for failure to appear w h e n required. H i s
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.
T h e 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 w h e n 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. T h e inability of the accused to
secure bail in a certain amount is not solely to be considered
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
332
and this fact does not by itself m a k e bail excessive. W h e n an
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.
T h e j u d g e w h o issued the w a r r a n t or w h o 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 g i v e bail;
( b ) N a t u r e and circumstances of the offense;
(c)
P e n a l t y for the offense charged;
( d ) Character and reputation of the accused;
( e ) A g e and health o f the accused;
(f)
W e i g h t of evidence against the accused;
( g ) Probability of the accused appearing at the trial;
( h ) Forfeiture of other bail;
( i ) T h e fact that the accused w a s a fugitive from
justice w h e n arrested; and
(j)
Pendency of other cases w h e r e the accused is on
bail (Sec. 9, Rule 114, Rules of Court).
3.
T h e existence of a high d e g r e e of probability that
the defendant w i l l 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
w h e n 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 2005).
Duration of the bail
1.
T h e undertaking under the bail shall take effect
upon approval, and unless cancelled, shall remain in force at
all stages of the case until promulgation of j u d g m e n t of the
Regional T r i a l Court, irrespective of w h e t h e r the case was
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(Rule 114)
333
originally filed in or appealed to it (Sec. 2[a], Rule 114, Rules
of Court).
2.
T h e bail bond posted by the accused can only be
used during the 15-day period to appeal and not during the
entire period of appeal. T h i s is consistent w i t h Section 2 ( a ) of
Rule 114 which provides that the bail "shall be effective upon
approval and r e m a i n in force at all stages of the case, unless
sooner cancelled, until the promulgation of the j u d g m e n t of the
Regional T r i a l Court...." T h i s rule is a departure from the old
rules which provided that the bail shall be effective and remain
in force at all stages of the case until its full determination,
and thus effective e v e n during the period of appeal. For the
accused to continue his provisional liberty on the same bail
bond, consent of the bondsman is necessary (Maguddatu v.
Court of Appeals, 326 SCRA 362; People v. Nitcha, 240 SCRA
283).
No release or transfer of person in custody; exceptions
No person under detention by legal process shall be
released or transferred except:
(a)
Rules
U p o n order of the court; or
( b ) W h e n he is admitted to bail (Sec. 3, Rule 114,
of Court).
When bail is not required
1.
Generally, bail is not required w h e n the l a w or the
Rules of Court so provide (Sec. 16, Rule 114, Rules of Court).
2.
W h e n a person has been in custody for a period
equal to or more than the possible m a x i m u m imprisonment
prescribed for the offense charged, he shall be released
immediately, without prejudice to the continuation of the trial
or the proceedings on appeal. A l s o , if the m a x i m u m penalty
to which the accused m a y be sentenced is destierro, he shall
be released after thirty ( 3 0 ) days of preventive imprisonment
(Sec. 16, Rule 114, Rules of Court). In all these cases bail is not
required prior to the release of the person in custody.
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3.
In cases filed w i t h the Municipal T r i a l Court or M u nicipal Circuit T r i a l Court for an offense punishable by an
imprisonment of less than four ( 4 ) years, two ( 2 ) months and
one (1) day, and the j u d g e is satisfied that there is no necessity
for placing the accused under custody, he may issue summons
instead of a w a r r a n t of arrest (Sec. 8[b], Rule 112, Rules of
Court). Since no arrest is made, bail is not required.
4.
U n d e r Sec. 1 of R . A . 6036, bail shall not be required
if a person is charged w i t h violation of a municipal or city
ordinance, a light felony and/or a criminal offense, the penalty
of which is not higher than six ( 6 ) months imprisonment and/
or a fine of t w o thousand (P2,000.00) pesos or both w h e r e it is
established that he is unable to post the required cash or bail
bond. This rule is subject to the following exceptions:
( a ) W h e n he is caught c o m m i t t i n g the offense in
flagrante;
( b ) W h e n he confesses to the commission of the offense unless the confession is later repudiated by him in
a sworn statement or in open court as h a v i n g been extracted through force or intimidation;
( c ) W h e n he is found to h a v e previously escaped
from legal confinement, e v a d e d sentence, or j u m p e d bail;
( d ) W h e n he is found to h a v e previously violated
the provisions of Section 2 of the law;
( e ) W h e n he is found to be a recidivist or a habitual delinquent or has been previously convicted for an
offense to which the l a w or ordinance attaches an equal
or greater penalty or for t w o or more offenses to which it
attaches a lighter penalty;
( f ) W h e n he commits the offense w h i l e on parole or
under conditional pardon; and
( g ) W h e n the accused has previously been pardoned by the municipal or city mayor for violation of municipal or city ordinance for at least t w o times.
Instead of bail, Sec. 2 of the l a w provides that "the person
charged w i t h any offense contemplated by Section 1 hereof
CHAPTER VI
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335
shall be required to sign in the presence of t w o witnesses of
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 t w o
weeks. T h e Court may, in its discretion and w i t h 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 w h o m a y be w i l l i n g 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. T h e C l e r k of Court shall i m m e d i a t e l y report
the presence of the accused person to the Court. Except
w h e n 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 i m m e d i a t e arrest unless he files bail in the
amount forthwith fixed by t h e Court."
When bail is not allowed
Bail is not a l l o w e d in the following cases:
1.
A person charged w i t h a capital offense, or an
offense punishable by reclusion perpetua or life imprisonment,
shall be not admitted to bail w h e n evidence of guilt is strong
regardless of the stage of the criminal prosecution (Sec. 7,
Rule 114, Rules of Court).
2.
B a i l shall not be allowed after a j u d g m e n t of
conviction has become final (Sec. 24, Rule 114, Rules of Court).
T h e rule is that no bail shall be allowed after a j u d g m e n t
of conviction has become final. H o w e v e r , if before finality of
the judgment, the accused applies for probation, he may be
allowed temporary liberty under his bail. W h e n 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.
T h e general rule is that all persons in custody shall
be admitted to bail as a matter of right. T h i s rule applies to
the following situations:
( a ) before conviction by the Metropolitan T r i a l
Court, Municipal T r i a l Court, Municipal T r i a l Court in
Cities, or Municipal Circuit T r i a l Court;
( b ) after conviction by the courts mentioned in letter "a;" and
( c ) before conviction by the Regional T r i a l Court of
an offense not punishable by death, reclusion perpetua,
or life imprisonment (Sec. 4, Rule 114, Rules of Court).
2.
W h e n the records show that the accused w a s charged
w i t h violation o f Section 15, A r t i c l e I I I o f R . A . N o . 6425 which
is punishable by prision correctional, following the provisions
of the Constitution and the R e v i s e d 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).
W h e r e bail is a m a t t e r of r i g h t and prior absconding and
forfeiture is not excepted from such right, bail must be allowed
irrespective of such circumstance. T h e existence of a high
degree of probability that the defendant w i l l abscond confers
upon the court no g r e a t e r discretion than to increase the bond
to such an amount as would reasonably tend to assure the
presence of the defendant w h e n it is w a n t e d , such amount
to be subject, of course, to the other provision that excessive
bail shall not be required. T h e recourse of the j u d g e is to fix a
higher amount of bail and not to cancel the same (San Miguel
v. Maceda, A.M. No. RT J-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 T r i a l
Court for an offense punishable by death, reclusion perpetua
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or life imprisonment, bail m a y or not be given depending upon
the strength of the evidence of guilt.
W h e t h e r or not the evidence is strong is a matter
addressed to the sound discretion of 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).
T h e prosecution has the burden of showing that evidence
of guilt is strong (Sec. 8, Rule 114, Rules of Court).
4.
T h e exercise by the trial court of its discretionary
power to grant bail to an accused charged w i t h a capital
offense thus depends on w h e t h e r the evidence of guilt is strong.
T h e court should first conduct a hearing, w h e t h e r summary
or otherwise in the discretion of the court to determine the
existence of strong evidence or the lack of it. T h i s hearing is
to enable the j u d g e to m a k e an intelligent assessment of the
evidence presented and m e r e l y to d e t e r m i n e the w e i g h t 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.
B a i l is not a m a t t e r of right in cases w h e r e the person
is charged w i t h 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
T h e r e m e d y of the petitioner from the order of the trial
court denying his petition for bail is to file a petition for certiorari if the trial court committed a g r a v e abuse of its discretion
amounting to excess or lack of jurisdiction in issuing the said
order (People v. IAC, 147 SCRA 219; Galvez v. Court of Appeals, 237 SCRA 685; Caballes v. Court of Appeals, G.R. No.
163108, February 23, 2005; 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 T r i a l Court of an
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
offense not punishable by death, reclusion perpetua or life
imprisonment. But when the accused has been convicted in
the Regional T r i a l 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 w h e t h e r or not the prosecution refuses to
present evidence and the prosecutor must be notified to require
him to submit his recommendation. T h i s hearing applies in all
cases w h e t h e r bail is a matter of right or a matter of discretion
(Zuno v. Cabebe, 44 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 T r i a l 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 e a r l y 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 T h e clear implication therefore, is that if an
accused w h o is charged w i t h 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 h a v e been sufficient to deny bail even
before conviction — it would h a v e 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 j u d g m e n t of conviction."
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3.
It is a misconception that w h e n an accused is
charged w i t h the crime of murder, he is not entitled to bail
at all or that the crime of murder is non-bailable. T h e grant
of bail to an accused charged w i t h 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. T h e
prosecution is accorded ample opportunity to present evidence
because by the v e r y nature of deciding applications for bail,
it is on the basis of such evidence that judicial discretion is
weighed in determining w h e t h e r the guilt of the accused is
strong (Eduardo San Miguel v. Maceda, A.M. No. RTJ-031749, April 4, 2007).
Where application for bail is to be filed when bail is a matter
of discretion and after conviction by the Regional Trial Court
1.
T h e application for bail m a y be filed and acted upon
by the trial court e v e n if a notice of appeal has already been
filed provided that the trial court has not y e t 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 w i t h the said appellate court.
2.
T h e rule a l l o w i n g the filing of the application for
bail in the trial court prior to the transmission of the original
record is consistent w i t h Sec. 6 of R u l e 120. T h e second
sentence of the second paragraph of said Section provides
that: "xxx The court promulgating the judgment shall have
authority to accept the notice of appeal and to approve the bail
bond pending appeal xxx."
3.
If the decision of the R T C convicting the accused
changed the nature of the offense from non-bailable to bailable,
the application for bail can only be filed and resolved by the
appellate court (Sec. 5, Rule 114, Rules of Court).
Sec. 6 of Rule 120 has a similar provision thus: " x x x if
the decision of the trial court convicting the accused changed
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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. T h i s rule
is however, subject to the consent of the bondsman (Sec.
5, Rule 114, Rules of Court). T h e consent of the bondsman
shall be required to h a v e provisional liberty under the same
bail because of the rule in Sec. 2 ( a ) of Rule 114, that the
"undertaking shall b e effective x x x until promulgation o f
j u d g m e n t of the Regional T r i a l 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.
E v e n if the penalty imposed by the trial court is not
any of the above but m e r e l y 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 ) T h a t the accused is a recidivist or a quasi-recidivist, a habitual delinquent or has committed the crime
aggravated by the circumstance of reiteration;
( b ) T h a t the accused has previously escaped from
legal confinement, evaded sentence, or violated the conditions of his bail without justification;
( c ) T h a t the accused committed the offense w h i l e
under probation, parole or conditional pardon;
( d ) T h a t the circumstances of his case indicate the
probability of flight if released on bail; or
( e ) T h a t there is undue risk that he may commit
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(Rule 114)
341
another crime during the pendency of the appeal (Sec. 5,
Rule 114, Rules of Court).
T h e court is not authorized to deny or cancel the bail ex
parte. T h e rule requires "notice to the accused" (Sec. 5, Rule
114, Rules of Court).
T h e resolution of the R e g i o n a l T r i a l Court denying or
cancelling the bail m a y be r e v i e w e d by the appellate court
motu propio 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
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 y e a r s , the discretionary nature of the
grant of bail pending appeal does not m e a n that bail should
automatically be g r a n t e d absent any of the circumstances
mentioned in the third p a r a g r a p h of Sec. 5, R u l e 114 of the
Rules of Court (Jose Antonio Leviste v. Court of Appeals, et al.,
G.R. No. 189122, March 17, 2010).
2.
T h e third p a r a g r a p h of Section 5, Rule 114 applies
to t w o scenarios w h e r e the penalty imposed on the appellant
applying for bail is imprisonment exceeding six years. T h e
first scenario deals w i t h circumstances enumerated in the said
paragraph not being present. T h e second scenario contemplates
the existence of at least one of the said circumstances. In the
first situation, bail is a m a t t e r of sound judicial discretion.
This means that, if none of the circumstances mentioned in
the third paragraph of Section 5, R u l e 114 is present, the
appellate court has the discretion to grant or deny bail. An
application for bail pending appeal m a y 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
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is present will not automatically result in the grant of bail.
Such finding will simply authorize the court to use the less
stringent sound discretion approach (Jose Antonio Leviste v.
Court of Appeals, et al., G.R. No. 189122, March 17, 2010).
3.
T h e appellant has no right to be freed on bail pending
his appeal from the trial court's j u d g m e n t w h e r e 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. T h e
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 m i g h t flee or commit another
crime w h i l e 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
w h e n 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
evidence of guilt is strong (Sec. 8, Rule 114, Rules of Court).
Bail in this type of offense is not a m a t t e r of right.
W h e n the g r a n t i n g of bail is not a matter of right or is
merely discretionary, as w h e n the offense is punishable by
reclusion perpetua, a hearing, w h e t h e r 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 j u d g e to m a k e an intelligent
assessment of the evidence presented by the parties.
A summary hearing is defined as "such brief and speedy
method of receiving and considering the evidence of guilt as is
practicable and consistent w i t h the purpose of hearing which
is merely to determine the w e i g h t of evidence for the purposes
of bail. On such hearing, the court does not sit to try the merits
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or to enter into any nice inquiry as to the w e i g h t 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 w h a t further
evidence m a y be therein offered and admitted. T h e course of
inquiry m a y 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 j u d g e on the alleged "voluminous records"
of the case does not suffice because the j u d g e is mandated to
conduct a hearing on the petition for bail of the accused since
he k n e w 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 w o r t h stressing that the
prosecution is equally entitled to due process.
A n o t h e r compelling reason w h y a hearing of a petition
for bail is necessary is to d e t e r m i n e the amount of bail based
on the guidelines set forth in Sec. 6, R u l e 114 of the Rules of
Court. W i t h o u t the required hearing, the bail which m a y be
granted to the accused would be arbitrary and without basis
(People v. Gako, Jr., 348 SCRA 334; See also People v. Cabral,
303 SCRA 361; People v. Dacudao, 170 SCRA 489; Basco v.
Rapatalo, 269 SCRA 220).
2.
A hearing is plainly indispensable before a j u d g e can
determine w h e t h e r the evidence for the prosecution is strong.
Jurisprudence is replete w i t h decisions compelling
judges to conduct the required hearings in bail applications,
in which the accused stands charged w i t h a capital offense.
T h e absence of objection from the prosecution is never a basis
for the grant of bail in such cases. T h e j u d g e has no right to
presume that the prosecutor knows w h a t he is doing on account
of familiarity w i t h 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. T h e 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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T h e bail hearing is mandatory in order to g i v e 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.
RT J-06-2011, August 7, 2006).
3.
In Narciso v. Santa Romana-Cruz, the petitioner
was charged w i t h parricide, an offense which is punishable
with reclusion perpetua. He argued before the Court of A p p e a l s
that he w a s entitled to bail because the evidence of his guilt
was not strong as indicated by the prosecutor's conformity to
his motion for bail. T h i s conformity, argued the petitioner,
w a s tantamount to a finding that the prosecution evidence
against him w a s not strong.
T h e Court of A p p e a l s disagreed because the records show
that hearing had been conducted on the application for bail.
T h e appellate court found that only ten minutes had elapsed
between the filing of the motion by the accused and the order
granting bail. T h i s period, according to the appellate court
w a s not sufficient for the trial court to receive and evaluate
any evidence.
T h e Supreme Court agreed w i t h the Court o f A p p e a l s
and stressed the duty of a j u d g e to d e t e r m i n e w h e t h e r the
evidence of guilt w a s strong.
T h e 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 very 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."
4.
It is a m a n d a t o r y duty to conduct a hearing despite
the prosecution's refusal to adduce evidence in opposition to
the application to g r a n t and fix bail (Cortes v. Catral, 279 SCRA
12) or w h e n the prosecution chooses to just file a comment
(Goodman v. De la Victoria, 325 SCRA 658). T h e fact that the
prosecutor interposed no objection to the application for bail
by the accused does not r e l i e v e the j u d g e 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.
S u m m a r i z i n g 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 ) N o t i f y 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 w h e t h e r 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 w h e t h e r the evidence of guilt of the accused is strong based on the s u m m a r y 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, petition should be denied.
"The above-enumerated procedure should now l e a v e no
room for doubt as to the duties of the trial j u d g e in cases of
bail applications. So basic and fundamental is it to conduct a
hearing in connection w i t h the g r a n t of bail in the proper cases
that it would amount to judicial apostasy for any m e m b e r of
the judiciary to disclaim k n o w l e d g e or awareness thereof.
"Additionally, the court's g r a n t 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 o w n conclusion
on whether such evidence is strong enough to indicate the
guilt of the accused. T h e s u m m a r y thereof is considered an
aspect of procedural due process for both the prosecution and
the defense; its absence w i l l 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.
E v e n if the capital offense charged is bailable o w i n g
to the weakness of the evidence of guilt, the right to bail m a y
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).
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Evidence in bail hearing are automatically reproduced at the
trial
T h e evidence presented during the bail hearing shall be
considered automatically reproduced at the trial. H o w e v e r ,
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 l a w
existing at the t i m e of its commission and of the application
for admission to bail, m a y be punished w i t h 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 l a w and not the penalty to be actually imposed (Bravo v. De
Borja, 134 SCRA 466).
3.
T h e imposition of the death penalty is now prohibited
by R . A . 9346 enacted into l a w 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, w h e n the law
violated m a k e s use of the nomenclature of the penalties
of the R e v i s e d P e n a l Code; or
" ( b ) the penalty of life imprisonment, w h e n the law
violated does not m a k e use of the nomenclature of the
penalties of the R e v i s e d P e n a l Code."
Effect of Republic Act No. 9346 on the graduation of penalties
In People v. Bon, G.R. No. 166401, October 30, 2004,
the Court w a s confronted by the question of whether or not
the enactment of R . A . N o . 9346 resulted in the statutory
interdiction of the death penalty. G i v i n g 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. T h e sentence was prescribed
by the appellate court prior to the enactment of R . A . N o .
9346 which ended the imposition of the death penalty in the
Philippines.
T h e concern of the accused-appellant is whether his
penalty for attempted qualified rape, which under the penal
law should be t w o degrees l o w e r than that of consummated
qualified rape, should be computed from death or reclusion
perpetua. T h i s is because Sec. 2 of R . A . N o . 9346 provides that
instead of the death penalty, the penalty of reclusion perpetua
or life imprisonment w h e n appropriate shall be imposed.
T h e Court found no doubt as to the v a l i d i t y this sentence
at the time it w a s m e t e d prior to the enactment of R . A . N o .
9346. T h e prescribed penalty for the consummated rape of a
victim duly proven to h a v e been under eighteen years of age
and to have been raped by her uncle, is death under A r t i c l e
266-B of the R e v i s e d P e n a l Code. T h e determination of the
penalty t w o degrees l o w e r than the death penalty entails the
application of A r t i c l e s 61 and 71 of the R e v i s e d P e n a l Code.
F o l l o w i n g the scale prescribed in A r t i c l e 71, the penalty
t w o degrees l o w e r than death is reclusion temporal, which w a s
the m a x i m u m penalty imposed by the Court of A p p e a l s on
appellant for attempted rape. Reclusion temporal is a penalty
comprised of three divisible periods, a m i n i m u m , a medium
and a maximum.
T h e critical question according to the Court is whether
R . A . N o . 9346 intended to delete the word "death" as expressly
provided for in the graduated scale of penalties under A r t i c l e
71.
T h e Court ruled in the affirmative and found R . A . N o .
9346 to unequivocally bar the application of the death penalty,
as w e l l 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 A r t i c l e 71. Hence, the
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Court added, that it cannot find basis to conclude that R . A .
N o . 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, h o w e v e r , stressed that the debarring of the
death penalty through R . A . N o . 9346 did not correspondingly
declassify those crimes previously catalogued as "heinous."
T h e amendatory effects of R . A . N o . 9346 extend only to the
application of the death penalty but not to the definition
or classification of crimes. T r u e , the penalties for heinous
crimes h a v e been d o w n g r a d e d under the aegis of the new
law. Still, w h a t remains extant is the recognition by l a w that
such crimes, by their abhorrent nature, constitute a special
category by themselves. A c c o r d i n g l y , R . A . N o . 9346 does not
serve as basis for the reduction of civil indemnity and other
damages that adhere to heinous crimes.
H a v i n g pronounced and determined the statutory
disallowance of the death penalty through R . A . N o . 9346 and
the corresponding modification of penalties other than death
through that statute, the penalty of "death," as utilized in
A r t i c l e 71 of the R e v i s e d P e n a l 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 t w o degrees lower
than death, but t w o degrees l o w e r than reclusion perpetua.
Hence, the m a x i m u m t e r m of his penalty shall no longer be
reclusion temporal, as ruled by the Court of A p p e a l s , 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 w h e r e the case is pending. If the j u d g e
thereof is absent or unavailable, then the application may
be filed with any Regional T r i a l Court j u d g e , Metropolitan
T r i a l Court judge, Municipal T r i a l Court judge, or Municipal
Circuit T r i a l Court j u d g e in the province, city, or municipality
(Sec. 17[a], Rule 114, Rules of Court).
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W h e r e there is no showing that the j u d g e of the court
w h e r e the criminal case is pending is unavailable, another
j u d g e w h o 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 w h o approve applications for bail of accused
whose cases are pending in other courts are guilty of gross
ignorance of the l a w (Re: Report on the Judicial Audit in RTC
Branch 4, Dolores Eastern Samara, 536 SCRA 313).
2.
W h e r e the accused is arrested in a province, city,
or municipality other than w h e r e the case is pending, the
application for bail m a y also be filed w i t h any Regional T r i a l
Court of said place. If no j u d g e t h e r e o f is available, then w i t h
any Metropolitan T r i a l Court j u d g e , Municipal T r i a l Court
j u d g e or Municipal Circuit T r i a l Court j u d g e in the said place
(Sec. 17[a], Rule 114, Rules of Court).
W h e n bail is filed w i t h the court other than w h e r e the
case is pending, the j u d g e w h o accepted the bail shall forward
it, together w i t h the order of release and other supporting
papers, to the court w h e r e the case is pending, which m a y , for
good reasons, require a different one to be filed (Sec. 19, Rule
114, Rules of Court).
T h e failure of a j u d g e w h o granted the bail to transmit
the order of release and other supporting papers to the court
w h e r e the case is pending constitutes violation of the rules
(Savella v. Ines, 521 SCRA 417).
3.
W h e r e the grant of bail is a matter of discretion,
or the accused seeks to be released on recognizance, the
application m a y only be filed in the court w h e r e the case is
pending, on trial, or appeal (Sec. 17[b], Rule 114, Rules of
Court as amended by A.M. 05-08-26, August 30, 2005).
4.
W h e n a person is in custody but not y e t charged,
he may apply for bail w i t h any court in the province, city or
municipality w h e r e he is held (Sec. 17[c], Rule 114, Rules of
Court).
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In Ruiz v. Beldia, Jr., A.M. No. RT J-02-1731, February
16, 2005, the Certificate of Detention of the person lawfully
arrested without a w a r r a n t issued by the P N P - T M G - S O D
shows that he was detained at C a m p C r a m e in Quezon City.
T h e application for bail should h a v e been filed before the
proper Quezon C i t y court and not in M a r i k i n a City.
Increase or reduction of bail
1.
E v e n after the accused is admitted to bail, the
amount of bail m a y either be increased or reduced by the court
upon good cause (Sec. 20, Rule 114, Rules of Court).
2.
T h e increased amount must be g i v e n within a
reasonable period if the accused w a n t s to avoid being taken
into custody. T h e rule i s clear: " x x x W h e n increased, the
accused m a y be committed to custody if he does not g i v e bail
in the increased amount w i t h i n 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 w i t h o u t bail, he m a y later be required to
g i v e bail in the amount fixed by the court w h e n e v e r at any
subsequent stage of the proceedings a strong showing of
guilt appears to the court. If he does not g i v e bail he m a y 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 w h e n e v e r required (Sec. 2[b],
Rule 114, Rules of Court). W h e n his presence is required, his
bondsmen shall be notified to produce him before the court on
a g i v e n date and time (Sec. 21, Rule 114, Rules of Court).
2.
If he fails to appear in person as required by the
court or by the Rules, his bail shall be declared forfeited. T h e
bondsmen shall be g i v e n thirty ( 3 0 ) days within which to
produce their principal and to show cause w h y no judgment
should be rendered against them for the amount of the bail.
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T h e bondsmen must, within the period:
( a ) produce the body of their principal or give the
reasons for his non-production; and
( b ) explain w h y the accused did not appear before
the court w h e n first required to do so. Failing in these
t w o requirements, a j u d g m e n t shall be rendered against
the bondsmen, j o i n t l y and severally, for the amount of
the bail (Sec. 21, Rule 114, Rules of Court).
If the bondsmen m o v e 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 j u d g m e n t is preceded by an order of forfeiture and
an opportunity g i v e n to the bondsmen to produce the accused
or to adduce satisfactory reason for their inability to do so.
An order of forfeiture m e r e l y requires the bondsmen "to show
cause w h y j u d g m e n t should not be rendered against them
for the amount of the bond." T h e order is different from the
j u d g m e n t on the bond w h i c h is issued if the accused w a s not
produced w i t h i n 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
m a y be cancelled by application of the bondsmen with due
notice to the prosecutor ( a ) upon surrender of the accused, or
( b ) proof of his death.
2.
A u t o m a t i c cancellation — T h e bail m a y also be
deemed automatically cancelled upon ( a ) acquittal of the
accused, ( b ) dismissal of the case, or ( c ) execution of the
j u d g m e n t of conviction (Sec. 22, Rule 114, Rules of Court).
3.
Sec. 5 of Rule 114 allows the cancellation of bail
w h e r e 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 w h e n the circumstances indicate the probability
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of flight. T h e same section authorizes the appellate court to
motu proprio or on motion of any party r e v i e w the resolution
of the Regional T r i a l Court after notice to the adverse party in
either case.
4.
It w a s 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 w i t h the Court of A p p e a l s a motion to
r e v i e w the said order in the same regular appeal proceedings
which the appellant h i m s e l f initiated, such motion being an
incident to his appeal. T h e 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, 520 SCRA 729).
Application for or admission to bail not a bar to objections
on illegal arrest, lack of or irregular preliminary investigation
1.
T h e application or admission of the accused to
bail shall not bar h i m from challenging both the validity of
his arrest or the l e g a l i t y of the w a r r a n t issued therefore,
provided that he raises t h e m before entering his plea. It shall
not likewise bar the accused from assailing the regularity
or questioning the absence of a p r e l i m i n a r y investigation of
the charge against him provided the same is raised before he
enters his plea (Sec. 26, Rule 114, Rules of Court).
T h e 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 R u l e 114 is a n e w rule intended to modify
previous rulings that an application for bail or the admission
to bail by the accused shall be considered as a w a i v e r of his
right to assail the w a r r a n t issued for his arrest on the legalities
or irregularities thereon. T h e 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 y e t undetermined
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at the time of their effectivity (Okabe v. Gutierrez, 429 SCRA
685).
3.
T h e former ruling that the posting of bail constitutes
a w a i v e r of any irregularity in the issuance of a w a r r a n t of
arrest, has already been superseded by Section 26, Rule 114
of the Revised R u l e of C r i m i n a l Procedure. T h e 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.
143951, 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. T h e rights of the accused are normally treated in
Constitutional L a w specifically under the topic on the Bill
of Rights. T h e discussion in this treatise shall be confined to
selected rights of an accused.
2.
Sec. 1 of R u l e 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 doubt.
( 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 e v e r y stage of the proceedings, from arraignment
to promulgation of the j u d g m e n t . T h e accused however,
m a y w a i v e 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.
T h e absence of the accused without justifiable cause at
the trial of which he had notice shall be considered to be
a w a i v e r of his right to be present thereat. W h e n an accused under custody escapes, he shall be deemed to have
his right to be present on all subsequent trial dates until
custody over him is regained. U p o n motion, the accused
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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. H i s silence shall not in any manner prejudice him.
( e ) To be e x e m p t from being compelled to be a witness against himself.
( f ) To confront and cross-examine the witnesses
against him at the trial. E i t h e r party m a y utilize as part
of its evidence the testimony of a witness w h o is deceased,
out of or cannot w i t h due diligence be found in the P h i l i p pines, unavailable, or otherwise unable to testify, g i v e n
in another case or proceeding, judicial or administrative,
involving the same parties and subject matter, the adverse party h a v i n g the opportunity to cross-examine him.
( g ) To h a v e compulsory process issued to secure
the attendance of witnesses and production of other evidence in his behalf.
( h ) To h a v e speedy, impartial and public trial.
( i ) To appeal in all cases a l l o w e d and in the manner prescribed by l a w .
Presumption of innocence (Bar 2005)
1.
T h e presumption of innocence under the Rules is of
a constitutional origin and a m e r e substantial reiteration of
Sec. 14(2) of A r t . I l l 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
doubt. This constitutional guarantee cannot be overthrown
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unless the prosecution has established by such quantum of
evidence sufficient to overcome this presumption of innocence
and prove that a crime w a s committed and that the accused is
guilty thereof. U n d e r our Constitution, an accused enjoys the
presumption of innocence. A n d this presumption prevails over
the presumption of regularity of 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).
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).
T h e presumption of innocence is stronger than any other presumption under the Rules of Court. F o r instance, Sec.
3 ( m ) of R u l e 131, establishes the disputable presumption that
"official duty has been regularly performed." H e n c e , as a general rule, the testimony of the police officers w h o apprehended
the accused is usually accorded full faith and credit because
of the presumption that t h e y h a v e performed their duties
regularly. H o w e v e r , w h e n the performance of their duties is
tainted w i t h irregularities, such presumption is effectively destroyed. W h i l e the l a w 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. T h e presumption of regularity is m e r e l y just that—a m e r e presumption disputable by
contrary proof and which w h e n challenged by evidence cannot
be regarded as binding truth (People v. Cantalejo, G.R. No.
182790, April 24, 2009).
Prima facie presumptions of guilt
M a y the Rules or the l a w 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. U n d e r this provision, "a person
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 . "
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
358
An answer to the question m a y be gleaned from a case
decided several years ago. In that case, the petitioners w e r e
convicted of the offense of illegal fishing w i t h the use of obnoxious or poisonous substance penalized under Presidential Decree ( P . D . ) N o . 704, the Fisheries Decree of 1975. T h e y challenge the provision of P . D . N o . 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.
C i t i n g previous pronouncements, the Court held that
the validity of l a w s establishing presumptions in criminal
cases is a settled matter. It is g e n e r a l l y conceded that the
legislature has the p o w e r 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 b e t w e e n 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
w h e n committed.
T h e challenged provision of P . D . N o . 704 creates a presumption of guilt based on facts proved and hence is not constitutionally 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
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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. T h e ultimate fact presumed is that the owner and operator of the boat or the fisherman w e r e 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. T h e fact presumed is a natural inference from
the fact proved.
T h e Court h o w e v e r , stressed that the statutory presumption is m e r e l y 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, 256
SCRA 517).
Proof beyond reasonable doubt
1.
T h e presumption of innocence is not meant to be
forever. It ends w h e n it is overcome in a final conviction. T h e r e
is only one type of q u a n t u m of evidence which overcomes the
presumption — proof beyond reasonable doubt. W i t h o u t such
quantum of evidence, the accused is entitled to an acquittal
(Sec. 2, Rule 133, Rules of Court). P r o o f beyond reasonable doubt
is indispensable to overcome the constitutional presumption
of innocence (People v. Montenegro, 436 SCRA 33; Caunan v.
People, G.R. Nos. 181999 & 182001-04, September 2, 2009;
People v. Labagala, G.R. No. 184603, August 2, 2010).
2.
" x x x P r o o f beyond reasonable doubt does not mean
such a degree of proof as, excluding possibility of error, produces absolute certainty. M o r a l certainty only is required, or
that degree of proof which produces conviction in an unprejudiced mind" (Sec. 2, Rule 133, Rules of Court).
3.
T h e 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
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inability after such investigation to let the mind rest each
upon the certainty of guilt."
4.
T h e 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. T h e rule m e r e l y
requires moral certainty. In criminal cases, the prosecution
is not required to show the guilt of the accused w i t h absolute
certainty. Only moral certainty is demanded, or that degree
of proof which, to an unprejudiced mind, produces conviction.
We find that the prosecution has discharged its burden of
proving the guilt of the accused w i t h moral certainty (People
v. Malate, G.R. No. 185724, June 5, 2009).
T h e 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 o w n evidence and must not rely on the
weakness of the defense. A n d if the prosecution fails to meet
its burden of proof, the defense m a y logically not e v e n present
evidence on its o w n 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.
T h e constitutional presumption of innocence can
be accorded to the accused only in the absence of evidence to
prove his guilt beyond reasonable doubt. T h a t constitutional
presumption cannot be upheld in the face of the o v e r w h e l m i n g
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 i n v o l v i n g illegal possession
of prohibited drugs, the prosecution must establish w i t h
moral certainty the elemental act of possession of a prohibited
substance coupled w i t h the fact that such possession is not
authorized by law. Essential, h o w e v e r , in a drug-related case is
that the identity of the dangerous drug be established beyond
reasonable doubt. Since the dangerous drug constitutes the
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corpus delicti of the offense and the fact of its existence is vital
to a j u d g m e n t of conviction, it behooves upon the prosecution
to establish and prove w i t h 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 e v e n if the conviction is appealed?
T h i s w a s answered by the Court in one case. H e r e , the
R T C of Quezon C i t y rendered a decision convicting a Caloocan
City R T C j u d g e , the respondent in this case, for two counts of
child abuse or violations of Republic A c t ( R . A . ) N o . 7610. T h e
convictions w e r e h o w e v e r , appealed to the C A .
A Senior State Prosecutor of the D O J wrote a letter to
the then C h i e f Justice inquiring w h e t h e r it is possible for
the Supreme Court, in the public interest, to motu proprio
order the i m m e d i a t e suspension of the j u d g e in v i e w of
the aforementioned R T C decision. T h e letter argued that
"Although the conviction is not y e t final, the presumption of
innocence x x x enjoyed during the pendency o f the trial has
already been overcome by its result. T h e presumption today
is that she is guilty and must clear her n a m e of the charges."
T h e matter w a s referred by the Court for comment and
recommendation to the Office of the Court Administrator
( O C A ) , before which an administrative complaint against the
same j u d g e w a s pending.
T h e O C A recommended that the administrative case be
g i v e n due course and that the respondent j u d g e be indefinitely
suspended pending the outcome of the case. T h e Second
Division of the Supreme Court through a Resolution, approved
the recommendations, thus, suspending the respondent judge
from performing judicial functions w h i l e awaiting the final
resolution of the criminal convictions appealed from or until
further orders from the Court.
T h e respondent j u d g e filed an U r g e n t Motion for Reconsideration of the aforementioned Resolution. T h e motion
claimed that the suspension order was issued without afford-
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ing respondent j u d g e the opportunity to be heard and that
the suspension is essentially unjust because the t w o criminal
cases are still on appeal before the CA and have, therefore,
not y e t attained finality. As such, respondent still enjoys the
constitutional presumption of innocence and the suspension
clashes with this presumption and is tantamount to a prej u d g m e n t of her guilt.
T h e Court, quoting previous declarations, resolved the
query in the n e g a t i v e . T h e Court ruled that it cannot fully
agree w i t h the recommendations of the O C A . T h e fact of
respondent's conviction by the R T C does not necessarily
warrant the suspension. Since the convictions are currently
on appeal before the C A , the same h a v e not y e t 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 w i t h all the evidence, or the lack of any evidence or
explanation, proves the accused's guilt beyond a reasonable
doubt. U n t i l the accused's guilt is shown in this manner, the
presumption of innocence continues and until a promulgation
of final conviction is m a d e , this constitutional mandate
prevails (Re: Conviction of Judge Angeles, A.M. No. 06-9-545RTC, 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 m a y logically not e v e n present evidence on its
own behalf. In which case, the presumption of innocence shall
prevail and hence, the accused shall be acquitted. H o w e v e r ,
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).
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2.
F o r example, in r e v i e w i n g 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 o w n merits and cannot d r a w 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
W h a t is the effect of the failure to identify the accused as
perpetrator of the offense charged?
In one case of robbery w i t h homicide, the accusedappellants argued that in criminal prosecutions, the State
has the burden of p r o v i n g the guilt of the accused beyond
reasonable doubt. It has to prove the identity of the accused
as the malefactor, as w e l l as the fact of the commission of
the crime for which he is a l l e g e d l y responsible. T h e y argued
that it can be gleaned from the records of the case that the
prosecution relied m a i n l y on the testimony of the alleged
eyewitness w h o did not e v e n point to t h e m as the malefactors
and she only did so upon the instructions g i v e n her in a police
camp. T h e y pointed out that they w e r e invited allegedly
for violation of the anti-drugs l a w and w e r e appalled to
learn that they w e r e charged w i t h a different crime and the
alleged witness w a s coached to identify them. Evidently, they
stressed, their guilt has not been proved w i t h the required
quantum of evidence. T h e y asserted that w h e r e the people's
evidence fails to m e e t 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.
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 accusedappellants are assailing the correctness of the findings of
fact of the trial court by impugning the credibility of the
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prosecution witness. T h e prosecution claimed that contrary
to the accused-appellants' claim that the police officers taught
the witness to point to t h e m as the perpetrators, her testimony
is straightforward and direct.
A f t e r r e v i e w , T h e 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.
"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 by an
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eyewitness who failed to identify them three times. Theap
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
W h a t is the effect of the failure of the arresting officers to
comply w i t h post-seizure procedures set by law?
T h i s has been a n s w e r e d in various decisions of the Court.
F o r instance, In People v. Frondozo, G.R. No. 177164, June
30, 2009, the accused-appellant assailed his conviction by
the Court of A p p e a l s for violation of Sec. 5 of R . A . N o . 9165
( C o m p r e h e n s i v e D a n g e r o u s Drugs A c t o f 2002) which among
other illegal acts, penalizes the sale and trading of dangerous
drugs. T h e appeal contended that the evidence showed that the
arresting officers h a v e not complied w i t h 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 . N o . 9165 should be complied w i t h . It w a s pointed
out that Sec. 21 of the I m p l e m e n t i n g Rules and Regulations
of R . A . N o . 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 perspn/s
from whom such items were confiscated and/or seized, or
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).
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T h e Court held that w h a t is material in the prosecution
for illegal sale of dangerous drugs is proof that the transaction
or sale actually took place, coupled w i t h 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 w i t h
moral certainty, together w i t h the fact that the same is not
authorized by law. T h e dangerous drug itself constitutes the
v e r y corpus delicti of the offense and the fact of its existence is
vital to a j u d g m e n t of conviction. Therefore, it is essential that
the identity of the prohibited drug be shown beyond doubt by
complying w i t h the l a w . In this case, declared the Court, the
arresting officers failed to strictly comply w i t h the procedures
for the custody and disposition of confiscated dangerous drugs
as prescribed by R . A . N o . 9165. T h e arresting officers did not
mark the shabu i m m e d i a t e l y after they arrested the accused.
Further, w h i l e there w a s t e s t i m o n y r e g a r d i n g the m a r k i n g of
the shabu after it w a s turned o v e r to the police investigator,
no evidence w a s presented to prove that the m a r k i n g thereof
w a s done in the presence of the accused. A l s o , fatal in the
prosecution's case is the failure of the arresting officers to
take a photograph and m a k e an inventory of the confiscated
materials in the presence of the accused or there was no
mention that any representative from the media, D O J 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. C l e a r l y , none of the statutory safeguards
mandated by R . A . N o . 9165 w a s observed. Hence, the failure
of the buy-bust t e a m to comply w i t h the procedure in the
custody of the seized drugs raises doubt as to its origins.
N e v e r t h e l e s s , w h i l e the seized drugs m a y be admitted in
evidence, it does not necessarily follow that the same should
be given evidentiary w e i g h t if the procedures provided by
R . A . N o . 9165 w e r e not complied w i t h . T h e admissibility
of the seized dangerous drugs in evidence should not be
equated w i t h its probative v a l u e in proving the corpus delicti.
T h e admissibility of evidence depends on its relevance and
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competence w h i l e the w e i g h t 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 l o w e r 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 w h o apprehended the accused is
accorded full faith and credit because of the presumption that
they have performed their duties regularly. H o w e v e r , w h e n
the performance of their duties is tainted w i t h 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; People v. Librea, G.R. No. 179937, July 17, 2009;
Catuiran v. People, 175647, May 8, 2009; People v. Barba;
G.R. No. 182420, July 23, 2009).
The equipoise rule
1.
T h e presumption of innocence has g i v e n 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. T h e application of the rule is t r i g g e r e d by a
situation w h e r e the court is faced w i t h conflicting versions of
the prosecution and the defense and w h e r e the evidence, facts
and circumstances are capable of t w o or more explanations,
one of which is consistent w i t h the innocence of the accused
and the other consistent w i t h his guilt. T h i s situation cannot
fulfill the test of moral certainty and is not sufficient to
support a conviction. T h e court then w i l l h a v e to resort to the
equipoise rule.
"The equipoise rule provides that w h e r e the evidence
in a criminal case is e v e n l y balanced, the constitutional
presumption of innocence tilts the scales in favor of the
accused" (People v. Erguiza, G.R. No. 171348, November 26,
2008). If the inculpatory testimony is capable of t w o or more
explanations, one consistent w i t h the innocence of the accused
persons and the other consistent w i t h their guilt, then the
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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.
T h e r e is, therefore, no equipoise if the evidence is
not evenly balanced. Said rule is not applicable w h e r e the
evidence presented is not equally w e i g h t y . T h e equipoise rule
cannot be invoked w h e r e the evidence of the prosecution is
o v e r w h e l m i n g (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 n a m e and surname of the accused
or any appellation or nickname by which he has been or is
known and if his n a m e cannot be ascertained, to describe
him under a fictitious n a m e (Sec. 7, Rule 110, Rules of
Court).
( b ) To state the n a m e and surname of the offended
party or any appellation or nickname by which such person has been or is k n o w n and if there is no other w a y of
identifying h i m , to describe h i m 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 k n o w n or by which it
m a y be identified (Sec. 12[c], Rule 110, Rules of Court).
( c ) To state w i t h 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 w i t h (Sec. 9, Rule 110, Rules of
Court); to state the designation of the offense given by
statute unless there is no such designation in which case
it is sufficient to m a k e reference to the section or subsection of the statute punishing the offense (Sec. 8, Rule 110,
Rules of Court).
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( d ) To state also in ordinary and concise language,
the qualifying and a g g r a v a t i n g 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
w i t h i n 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 m a y be
one as near as possible to the actual date of the commission of the offense, except w h e n 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 w i t h 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 w i t h simple rape and
consequently convicted w i t h certain qualifying circumstances
which w e r e not alleged in the information (People v. Lagarde,
G.R. No. 182549, January 20, 2009).
3.
In Lagarde, the accused-appellant w a s charged with
rape in an information which reads:
T h a t 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
lewd designs and by use of force and intimidation, did
then and there willfully, unlawfully and feloniously have
carnal knowledge with [ A A A ] , 11 years old, against her
will to her damage and prejudice.
C O N T R A R Y TO L A W . "
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T h e R T C found A A A ' 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 v i e w of the
location of the offense.
T h e appellate court upheld the trial court's findings of
fact and j u d g m e n t of conviction. W i t h regard to the penalty,
however, the CA ruled that the trial court erred w h e n it
imposed the death sentence on the basis of the following
aggravating circumstances: minority, use of bladed weapon,
and uninhabited place. A s i d e 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 a g g r a v a t i n g circumstances
of minority, use of a bladed weapon, and uninhabited place
w e r e not specifically alleged in the information.
T h e Office of the Solicitor General, on the other hand,
agreed w i t h the j u d g m e n t of conviction but not with the death
penalty for the same reasons submitted by accused-appellant.
T h e Court sustained the Court of A p p e a l s . 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
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371
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. —
xxx
When the offended party is under twelve (12) years
of age or is demented, even though none of the circumstances mention above is present."
4.
M a y 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 w i t h three ( 3 ) counts of violation of Batas
Pambansa Big. 22 ( B . P . Big. 22) involving among other checks,
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F E B T C Check N o . 364903 for P100.000 as described in the
information. During his appeal to the Supreme Court following
his conviction by the l o w e r courts, the Court discovered a
discrepancy between the checked marked as exhibit and the
check described in the information.
T h e information filed by the public prosecutor described
the check as F E B T C Check N o . 364903 dated 12 M a y 1993 in
the amount of P100,000 payable to Equitable Banking Corporation. H o w e v e r , the parties, including the lower courts, overlooked the fact that the check being identified in court was
different from that described in the information. T h e prosecution marked as its Exhibit " B " F E B T C Check N o . 369403 (not
F E B T C Check N o . 364903), dated 12 M a y 1993 in the amount
of P100.000 payable to Equitable B a n k i n g Corporation.
T h e 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. T h e variance in the identity of the check
nullifies the conviction of the accused. T h e identity of the
check enters into the first e l e m e n t of the offense under Section
1 of B . P . Big. 22 — that a person draws or issues a check on
account or for value. T h e r e 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 w i l l be violated if his conviction
is upheld.
5.
W h e r e the date of the check and the amount thereof
as stated in the information v a r y w i t h the exhibits submitted
by the prosecution, the inconsistencies violate the constitutional right of the accused to be informed. W i t h o u t a sufficient
identification of the dishonored check in the information, the
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 w e l l that no preliminary investigation had
been conducted and no information had y e t been filed before
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373
his court. He justified his actions as "pursuant to his judicial
functions as presiding j u d g e . . . " C a l l i n g the act as "a clear
display of ignorance," 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 a r r a i g n m e n t (Gutierrez v. Hernandez,
AM. No. MTJ-06-1628, June 8, 2007).
7.
In y e t another case, the petitioners w e r e charged w i t h
violation of Republic A c t ( R . A . ) N o . 6539 (Anti-Carnapping
A c t of 1992) before the R T C of M a l o l o s City, Bulacan. T h e
information did not allege that the alleged felonious act of
the petitioners w a s committed by means of violence against
or intimidation of any person, or force upon things. In other
words, the information w a s only for simple carnapping the
penalty for which under Sec. 14 of the l a w shall not exceed
seventeen y e a r s and four months.
A f t e r trial, petitioners w e r e sentenced to suffer the penalty
of seventeen (17) y e a r s and four ( 4 ) months to thirty ( 3 0 ) years
imprisonment, a penalty in excess of that provided for simple
carnapping. T h e penalty m e t e d is actually equivalent to the
imprisonment imposable w h e n the carnapping is committed
by means of violence against or intimidation of any person, or
force upon things;
T h e petitioners appealed t o the C A which affirmed the
R T C decision w i t h modification, a s follows: x x x " M O D I F I C A T I O N that the accused-appellants shall suffer the indeterminate prison term o f S E V E N T E E N Y E A R S A N D F O U R
M O N T H S , a s minimum, t o T H I R T Y Y E A R S , a s maximum."
T h e petitioners m o v e d to reconsider this decision, but the
C A denied their motion. In the Supreme Court, the petitioners
raised as error, among others, the imposition upon them of the
penalty of seventeen (17) years and four ( 4 ) months to thirty
( 3 0 ) years. T h e petitioners also contended that assuming they
w e r e guilty of the crime charged, the penalty imposed by the
lower courts was erroneous. T h e y argue that the information
failed to allege any circumstance that would warrant the
imposition of a higher penalty.
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T h e Court agreed w i t h the petitioners w i t h respect to
the erroneous penalty imposed. T h e Court noted that the
information charging the petitioners w i t h violation of R . A .
N o . 6539, as amended, did not allege that the carnapping w a s
committed by means of violence against, or intimidation of,
any person, or force upon things. W h i l e these circumstances
w e r e proven at the trial, they cannot be appreciated because
they w e r e not alleged in the information. Thus, the lower
courts erred w h e n they took these circumstances into account
in imposing the penalty which they pegged at seventeen (17)
years and four ( 4 ) months to thirty ( 3 0 ) years imprisonment.
In the absence of these circumstances, the charge against the
petitioners is confined to simple carnapping whose imposable
penalty should h a v e been imprisonment for not less than
fourteen ( 1 4 ) years and e i g h t ( 8 ) months, and not more than
seventeen ( 1 7 ) years and four ( 4 ) months (Andres v. People,
G.R. No. 185860, June 5, 2009).
8.
In i m p l e m e n t i n g the r i g h t 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 a g g r a v a t i n g circumstances must be stated
in ordinary and concise language, not necessarily the language
used in the statute, but in t e r m s sufficient to enable a person of
common understanding to k n o w w h a t offense is being charged
and the attendant qualifying and a g g r a v a t i n g circumstances
present, so that the accused can properly defend himself and
the court can pronounce j u d g m e n t . 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).
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 w a s established and
proven during trial w a s the sale and possession of ephedrine,
a regulated drug?
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T h e Supreme Court answered in the negative, ruling that
the chemical formula of ephedrine is C I O H 1 5 N O , whereas
that o f methamphetamine i s C I O H 1 5 N . T h e only difference
between ephedrine and methamphetamine is the presence
of a single atom of o x y g e n in the former. T h e removal of the
oxygen in ephedrine w i l l produce methamphetamine. W i t h
ephedrine containing fifty percent ( 5 0 % ) of methamphetamine
hydrochloride if the o x y g e n content in the former is removed,
the nearly 680 g r a m s of ephedrine seized from the appellant
contains about 340 g r a m s of m e t h a m p h e t a m i n e hydrochloride.
T h e 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.
T h e allegations in the Informations for the unauthorized sale
and possession of "shabu" or m e t h a m p h e t a m i n e hydrochloride
are i m m e d i a t e l y followed by the qualifying phrase "which is
a regulated drug." T h u s , 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 N o . 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. U n d e r 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 b e t w e e n 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 e v e n 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
been violated because w h e r e 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. W h e n the counsel of the accused actively participated
in the proceedings this indicates that the accused was fully
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
aware of the charges against him, otherwise, his counsel would
have objected and informed the court of the blunder (People v.
Pangilinan, 518 SCRA 318). But the failure to file a motion
to quash the information cannot amount to a w a i v e r 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.
T h e Bill of Rights guarantees the right of counsel
to an accused (Sec. 14[2]), A r t i c l e I I I , 1987 Constitution of
the Philippines). U n d e r Sec. 1(c) of R u l e 115, the accused has
the right to "x x x defend in person and by counsel at e v e r y
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 m e m b e r of the bar is i m m u t a b l e . O t h e r w i s e ,
there would be a g r a v e denial of due process. Thus, e v e n if
the j u d g m e n t had become final and executory, it m a y still be
recalled, and the accused afforded the opportunity to be heard
by himself and counsel (Hilario v. People 551 SCRA 191 April
14, 2009).
2.
O n e need not h o w e v e r , be an accused to avail of the
right to counsel and the right to counsel does not commence
only during the trial. E v e r y person under custody of the l a w
enjoys the right.
Republic A c t N o . 7438 provides that " A n y person arrested,
detained or under custodial investigation shall at all times be
assisted by counsel."
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 w h o carry out a process of interrogation
that lends itself to elicit incriminating statements" (People v.
Sunga, 399 SCRA 624). ( B a r 2006)
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377
Custodial investigation involves any questioning initiated
by l a w enforcement officers after a person has been taken into
custody or otherwise deprived of his freedom of action in any
significant w a y . 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 A c t N o . ( R . A . ) 7438 has 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 m e r e l y 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 w h o is investigated in connection with
an offense he is suspected to h a v e committed x x x " (Aquino
v. Paiste, G.R. No. 147782, June 25, 2008) without prejudice
to the liability of the 'inviting" officer for any violation of laws
(Sec. 2[f], RA. 7438).
Rights of persons under custodial investigation; custodial
investigation report
1.
Republic A c t N o . 7438 provides for the following
requisites for a v a l i d custodial investigation report:
( a ) T h e report shall be reduced to w r i t i n g by the
investigating officer;
( b ) If the person arrested or detained does not know
how to read and w r i t e , it shall be read and adequately
explained to him by his counsel or by the assisting
counsel in the language or dialect k n o w n to such arrested
or detained person. T h i s 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.
2.
T h e importance of the right to counsel is so vital that
under existing law, "In the absence of any lawyer, no custodial
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
investigation shall be conducted and the suspected person can
only be detained by the investigating officer in accordance
w i t h the provisions of A r t . 125 of the Revised Penal Code"
(Sec. 3[cJ), RA. 7438).
Republic A c t N o . 7438 also clearly mandates that a
counsel "shall at all times be allowed to confer privately w i t h
the person arrested, detained or under custodial investigation
x x x " ( S e c . 2[b], RA. 7438).
T h e purpose of providing counsel to a person under
custodial investigation is to curb the uncivilized practice of
extracting a confession (People v. Duehas, Jr., 426 SCRA 666).
3.
E v e n a person under investigation for an offense
shall the right to h a v e a "competent and independent counsel
preferably of his o w n choice." Included in this right is the right
to be informed of his r i g h t to counsel (Sec. 12[1], Art. II, 1987
Constitution of the Philippines; Sec. 2[b], RA. 7438).
T h e purpose of p r o v i d i n g counsel to a person under
custodial investigation is to curb the police-state practice
of extracting a confession that leads suspects to m a k e selfincriminating statements. In order to comply w i t h the
constitutional mandates, there should l i k e w i s e 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).
T h e 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 w h a t is conveyed
(People v. Guillermo, 420 SCRA 326).
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 w r i t i n g 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).
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4.
T h e 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. W h e r e the participation of a l a w y e r
in the proceedings w a s 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.
A s i d e 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
w i t h conducting preliminary investigation or those charged
with the prosecution of crimes" (Sec. 3, R.A. 7438).
6.
Jurisprudence supports the v i e w that a m e r e inquiry
on the commission of a crime by l a w enforcement authorities
does not automatically t r i g g e r 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 M i r a n d a Rule
begins to operate, though R . A . N o . 7438 has extended this
constitutional guarantee to situations in which an individual
has not been formally arrested but has m e r e l y been "invited"
for questioning" (Aquino v. Paiste, 555 SCRA 255, June 25,
2008). T h e m o m e n t a police officer tries to elicit admissions
or confessions or e v e n plain information from a suspect, the
latter should, at this juncture, be assisted by counsel, unless
he w a i v e s this right in w r i t i n g 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 y e t being investigated.
In the line-up, the right to counsel does not y e t attach (People
v. Tolentino, 423 SCRA 448).
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8.
It has also been held that a barangay chairman is
not deemed a l a w enforcement officer for purposes of applying
Section 12(1) and ( 3 ) of the Philippine Constitution. Thus,
a suspect's uncounselled statement before the barangay
chairman is admissible (People v. Ulit, 423 SCRA 374).
9.
T h e right to counsel applies in certain pre-trial
proceedings that can be deemed "critical stages" in the criminal
process like in a preliminary investigation. T h i s investigation
can be no different from the in-custody interrogations by
the police, for a suspect w h o takes part in a preliminary
investigation w i l l be subjected to no less than the State's
processes, oftentimes i n t i m i d a t i n g and relentless, of pursuing
those w h o m i g h t be liable for criminal prosecution (People v.
Sunga, 399 SCRA 624).
Right to choose a counsel is not plenary; right may be waived
1. T h e r e is no denial of the r i g h t to counsel w h e r e
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. T h e
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. O t h e r w i s e , 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).
2.
T h e right to counsel m a y be w a i v e d but to insure
that the w a i v e r is voluntary and intelligent, the w a i v e r
must be in w r i t i n g and in the presence of the counsel of the
accused (People v. Del Castillo, 439 SCRA 601). T h e right
to a competent and independent counsel is one of the rights
of the accused guaranteed under Sec. 12(1) of A r t . I l l of the
Philippine Constitution. As the proviso declares: "xxx These
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381
rights cannot be waived except in writing and in the presence
of counsel."
Competent and independent counsel
1.
T h e m e a n i n g of "competent counsel" and its
standards w e r e explained in People v. Deniega, 251 SCRA 626
as follows:
"The l a w y e r called to be present during such investigations should be as far as reasonably possible, the
choice of the individual undergoing questioning. If the
l a w y e r w e r e one furnished in the accused's behalf, it is
important that he should be competent and independent,
i.e., that he is w i l l i n g to fully safeguard the constitutional rights of the accused, as distinguished from one who
would be m e r e l y g i v i n g a routine, peremptory and meaningless recital of the individual's constitutional rights. In
People v. Basay, t h [ e ] Court stressed that an accused's
right to be informed of the right to r e m a i n 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 l a w y e r e n g a g e d for an individual facing custodial investigation ( i f the latter could not
afford o n e ) should be e n g a g e d by the accused (himself),
or by the latter's r e l a t i v e 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." L a w y e r s engaged by the police, whatever
testimonials are g i v e n as proof of their probity and supposed independence, are generally suspect, as in many
areas, the relationship b e t w e e n l a w y e r s and l a w enforcement authorities can be symbiotic.
" x x x T h e competent o r independent l a w y e r s o engaged should be present from the beginning to end, i.e.,
at all stages of the interview, counseling or advising caution reasonably at e v e r y turn of the investigation, and
stopping the interrogation once in a w h i l e either to g i v e
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advice to the accused that he m a y either continue, choose
to remain silent or terminate the i n t e r v i e w (People 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 e m p t y rhetoric. It stresses
the need to accord the accused, under the uniquely stressful
conditions of a custodial investigation, an informed j u d g m e n t
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
v i g i l a n t counsel necessarily and logically requires that the
l a w y e r 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. M o r e o v e r , the l a w y e r should ascertain that the
confession is m a d e v o l u n t a r i l y 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 w o u l d undoubtedly be antagonistic to
the constitutional rights to r e m a i n 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 w r i t t e n into our Constitution in
order to prevent the use of duress and other undue influence in
extracting confessions from a suspect in a crime. T h e lawyer's
role cannot be reduced to being that of a m e r e witness to
the signing of a pre-prepared confession, e v e n if it indicated
compliance w i t h the constitutional rights of the accused. T h e
accused is entitled to effective, v i g i l a n t and independent
counsel. W h e r e the prosecution failed to discharge the State's
burden of proving w i t h clear and convincing evidence that the
accused had enjoyed effective and v i g i l a n t counsel before he
extrajudicially admitted his guilt, the extrajudicial confession
cannot be g i v e n any probative v a l u e (People v. Peralta, 426
SCRA 472, citing People v. Binamira, 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.
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383
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 w h o failed to m e e t the exacting standards
of an independent and competent counsel is deemed an uncounseled confession and, therefore, inadmissible in evidence
(People v. Tomaquin, 435 SCRA 23).
4.
In the case of People v. Bermas, 306 SCRA 135
three P A O l a w y e r s w h o w e r e assigned to an accused w h o
was charged w i t h raping his o w n daughter. T h e records
show that the first l a w y e r w i t h o u t sufficient reason did not
cross-examine the p r i v a t e complainant and thus, effectively
w a i v e d the right to cross-examination. He subsequently asked
to be relieved of his duties asked to be relieved of her duties
as counsel. T h e second l a w y e r w a s appointed by the court,
missed several dates and could no longer be located. A third
reluctant l a w y e r w a s appointed by the court and later ceased
to appear for the accused.
T h i s Court held that:
T h e right t o counsel must b e m o r e than just the
presence of a l a w y e r in the courtroom or the m e r e propounding of standard questions and objections. T h e right
to counsel means that the accused is a m p l y accorded legal assistance extended by a counsel w h o commits himself to the cause for the defense and acts accordingly. T h e
right assumes an active i n v o l v e m e n t by the l a w y e r 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
the fundamental procedures, essential l a w s and existing
jurisprudence. T h e right of an accused to counsel finds
substance in the performance by the l a w y e r of his sworn
duty of fidelity to his client. T e r s e l y put, it means an efficient and truly decisive legal assistance and not a simple
perfunctory representation" (People v. Nadera 324 SCRA
490).
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5.
W h e r e the participation of the l a w y e r 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.
T h e right to counsel involves more than the m e r e
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. T h e r e is no l a w , jurisprudence or rule which
mandates that an e m p l o y e e 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.
W h i l e investigations conducted by an administrat i v e body m a y at times be akin to a criminal proceeding, the
fact remains that under existing l a w s , 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 w i t h counsel. Thus,
the right to counsel is not i m p e r a t i v e in administrative investigations because such inquiries are conducted m e r e l y to
determine w h e t h e r there are facts that m e r i t disciplinary
measures against erring public officers and employees, with
the purpose of maintaining the dignity of g o v e r n m e n t service
(Perez v. People, G.R. No. 164763, February 12, 2008; See also
Lastimoso v. Asayo, 517 SCRA 522 and Ampong v. Civil Service Commission, CSC-Regional Office No. 11, 563 SCRA 293).
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
CHAPTER VII
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365
imposed by the 1987 Constitution (People v. Rapeza, 520
SCRA 596, April 3, 2007).
2.
A confession is admissible in evidence when it is
clearly shown to have been obtained in accordance w i t h the
requisites mandated by the Philippine Constitution.
Sec. 12, A r t . I l l 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.
T h e extrajudicial confession must also be tested for
voluntariness, that is, if it was g i v e n freely by the confessant
without any form of coercion or inducement (People v. Rapeza,
520 SCRA 596, April 3, 2007).
T h e voluntariness of a confession m a y 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
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
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which appear to have been supplied by the investigators
themselves (People v. Rapeza, 520 SCRA 596, April 4, 2007).
4.
T h e 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 w a s m a d e to acknowledge that
the six ( 6 ) small plastic bags of dried marijuana leaves w e r e
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 w a s the v i c t i m of a clever ruse to m a k e 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 m a d e to sign receipts for w h a t
w e r e taken from him. It is the police officers w h o confiscated
the same w h o should h a v e signed such receipts. No doubt
this is a violation of the constitutional right of the accused
whereby he w a s m a d e to a d m i t the commission of the offense
without informing him of his right. Such a confession obtained
in violation of the Constitution is inadmissible in evidence.
T h e Inventory Receipt signed by appellant is thus not only
inadmissible for being v i o l a t i v e of appellant's custodial right
to remain silent; it is also an indicium of the irregularity in
the manner by which the raiding t e a m conducted the search
of appellant's residence (People v. Del Castillo, 439 SCRA
601). ( B a r 2010)
5.
Republic Act No. 7438 (Sec. 2[d]) provides for
the following requisites for the v a l i d i t y of an extrajudicial
confession made by a person arrested, detained or under
custodial investigation:
( a ) It shall be in w r i t i n g 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 v a l i d w a i v e r ;
( c ) In the event of a valid w a i v e r , it must be signed
in the presence of any of the parents, elder brothers and
sisters, his spouse, the municipal mayor, the municipal
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judge, district school supervisor, or priest or minister of
the gospel as chosen by him.
If there is any w a i v e r of the provisions of A r t . 125 of the
Revised Penal Code, the w a i v e r must:
( a ) be in writing; and
( b ) such by the person arrested, detained or under
custodial investigation; and
( c ) such person must sign the w a i v e r in the presence of his counsel.
If the above is not complied w i t h , "the w a i v e r shall
be null and v o i d and of no effect" (Sec. 2[e], R.A. 7438).
Thus, e v e n if the police officers claimed that upon
arresting the accused, they informed h i m of his constitutional
rights to r e m a i n silent, that any information he would g i v e
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 w i l l
be provided w i t h one, any w a i v e r of his rights could not have
been valid since these rights can only be w a i v e d in w r i t i n g and
w i t h the assistance of counsel. T h e constitutional requirement
obviously had not been observed. Settled is the rule that the
m o m e n t a police officer tries to elicit admissions or confessions
or e v e n plain information from a suspect, the latter should, at
that juncture, be assisted by counsel, unless he w a i v e s this
right in w r i t i n g and in the presence of counsel. T h e 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 m a k e 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, w h e t h e r verbal or non-verbal, w h e n taken without the assistance of counsel without a valid w a i v e r
of such assistance regardless of the absence of such coercion,
the fact that it had been voluntarily given, is inadmissible in
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evidence, even if such confession w e r e 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 m a d e w i t h 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 w r i t i n g (People v. Bagnate, 428 SCRA 633;
People v. Rapeza, G.R. No. 169431, April 3, 2007; People v.
Tuniaco, G.R. No. 177727, January 19, 2010).
8.
A s s u m i n g that all constitutional and statutory safeguards h a v e been complied w i t h , " A n 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. W h i l e the S u p r e m e Court has consistently stricken
out the extrajudicial confession extracted in violation of
constitutionally enshrined rights and declared it inadmissible
in evidence, the accused w i l l not be entitled to an acquittal if his
conviction was not based on the evidence obtained during such
custodial investigation and if e v e n 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. T h e accused's confession to a bantay bayan is
inadmissible in evidence if the same was done without the
assistance of his l a w y e r and without w a i v e r of his right to
counsel (People v. Lauga, G.R. No. 186228, March 15, 2010).
T h e Supreme Court held in this case that that barangaybased volunteer organizations in the nature of watch groups,
as in the case of the "bantay bayan," are recognized by the
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
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(Rule 115)
389
and objective insofar as the entitlement of a suspect to his
constitutional rights provided for under Section 12, Article
I I I , of the Constitution, otherwise known as the Miranda
Rights, is concerned. Therefore, the extrajudicial confession of
appellant taken without counsel w a s 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)
by
In
to
v.
1.
T h e right to a speedy trial is explicitly guaranteed
Section 14(2) of A r t i c l e I I I of the Constitution. Thus "xxx
criminal cases, the accused shall xxx enjoy the right xxx
have a speedy, impartial and public trial x x x" (See People
Anonas, 513 SCRA 552).
T h e same r i g h t 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 " T o have a speedy, impartial and
public trial."
N o w h e r e is the guarantee of the right to speedy disposition
of cases m o r e significant and meaningful than in criminal
cases w h e r e not only the fortune, but the life and liberty of
the accused as w e l l , are at stake (Cabarles v. Maceda, 516
SCRA 303).
On the hand, the right to a speedy disposition of cases is
provided for under Section 16, A r t i c l e I I I , of the Constitution
which provides that, "all persons shall have the right to a
speedy disposition of their cases before all judicial, quasijudicial, or administrative bodies."
2.
T h i s 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 m a y be free from the anxiety and
expense of a court litigation or, if otherwise, of having his guilt
determined within the shortest possible time compatible with
the presentation and consideration of whatsoever legitimate
defense he m a y interpose."
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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. T h e 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 w h e n
without cause or justifiable m o t i v e , a long period of time is
allowed to elapse without the party h a v i n g his case tried. Just
like the constitutional guarantee of "speedy trial," "speedy
disposition of cases" is a flexible concept. It is consistent
w i t h delays and depends upon the circumstances. W h a t
the Constitution prohibits are unreasonable, arbitrary and
oppressive delays which render rights nugatory (Ombudsman
v. Jurado, G.R. No. 154155, August 6, 2008; Lumanog, et al. v.
People, G.R. No. 182555, September 7, 2010).
T h e right does not preclude justifiable postponements
and delay when w a r r a n t e d 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. Sandignabayan, 476 SCRA 496).
A l t h o u g h 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 l a w 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. 08-19SB-J, August 24, 2010 citing State Prosecutors v. Muro,251
SCRA 111).
3.
U n d e r 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
CHAPTER VII
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391
and administrative cases, and in all proceedings, including judicial and quasi-judicial hearings. Hence, under the Constitution, any party to a case m a y demand expeditious action from
all officials w h o are tasked w i t h the administration of justice
(Ombudsman v. Jurado, G.R. No. 154155, August 6, 2008).
4.
T h e 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 r i g h t to speedy disposition
of cases is considered violated only w h e n the proceedings are
attended by vexatious, capricious, and oppressive delays. T h e
concept of speedy disposition of cases is relative or flexible
(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).
2.
A l t h o u g h courts h a v e reiterated t i m e and time
again that in all criminal prosecutions, the accused shall enj o y his right to a speedy trial the rule finds itself violated in
some instances (People v. Anonas, G.R. No. 156847, January
31, 2007).
3.
People v. Anonas, G.R. No. 156847, January 31,
2007, for e x a m p l e is one case which aptly demonstrates a
clear disregard of the right.
H e r e , the respondent, a police officer assigned to the
W e s t e r n Police District, was apprehended by his colleagues
during a raid in Sta. Cruz, M a n i l a . T h e apprehending police
officers claimed that he and four other persons w e r e sniffing
methamphetamine hydrochloride, more popularly known as
shabu, a regulated drug, and that he was in possession of an
unlicensed .38 caliber revolver.
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
T w o separate informations w e r e 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 w a s conducted. T h e trial court granted the motion and a prosecutor w a s designated
to conduct the reinvestigation w h o w a s later appointed j u d g e
of the R T C in Iloilo. A p p a r e n t l y , he did not inform the prosecutor w h o took his place about the pending reinvestigation.
M e a n w h i l e , respondent has remained in detention.
A l m o s t 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. T h e trial court heard the motion to dismiss. It turned
out that the prosecutor w h o took over the case w a s not a w a r e
of the pending reinvestigation. T h e trial court then directed
him to terminate the reinvestigation w i t h i n thirty ( 3 0 ) days.
W i t h i n 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. T h e trial court then
issued an O r d e r d e n y i n g respondent's motion to dismiss the
informations. H i s motion for reconsideration w a s likewise
denied.
Respondent then filed a petition for certiorari w i t h the
Court of A p p e a l s , contending that the trial court committed
g r a v e abuse of discretion amounting to lack or excess of
jurisdiction in denying his motion to dismiss both informations.
T h e Court of A p p e a l s granted the petition and set aside the
Order of the trial court and dismissed the criminal charges
against respondent.
T h e Court of A p p e a l s ruled that h a v i n g been made
to w a i t for the resolution of his motion for reinvestigation
for almost five years w h i l e being detained, the right of
respondent to due process w a s violated. T h e Court of Appeals
then ordered that respondent be released from custody. T h e
CHAPTER VII
RIGHTS OF THE ACCUSED
(Rule 115)
393
Government, represented by the Solicitor General, moved for
reconsideration, but the Court of A p p e a l s 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 w h e n an
accused person, through the vacillation and procrastination of
prosecuting officers, is forced to w a i t 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 i m m e d i a t e l y discharged from the custody of the
law.
"The p r e l i m i n a r y investigation of the respondent for the
offenses charged took m o r e than four years. He w a s apprehended for the offenses charged on N o v e m b e r 19, 1996. H a v ing been arrested without a w a r r a n t of arrest and not having
been afforded a formal investigation, he prayed for reinvestigation of the cases. T h e trial court, in an O r d e r dated January
28,1997 ordered a reinvestigation which w a s terminated only
on February 16, 2001. In fact, e v e n the Solicitor General admitted it took some t i m e for the C i t y Prosecutor to terminate
and resolve the reinvestigation.
T h e r e can be no question that respondent w a s prejudiced
by the delay, h a v i n g to be confined for more than four
oppressive years for failure of the investigating prosecutors
to comply w i t h the l a w on preliminary investigation. As aptly
held by the Court of A p p e a l s , respondent's right to due process
had been violated."
4.
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.
5.
In Cervantes v. Sandiganbayan, 307 SCRA 149, it
was held that the Sandiganbayan g r a v e l y abused its discretion in not quashing the Information filed six years after the
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
initiatory complaint, thereby depriving petitioner of his right
to a speedy disposition of the case.
6.
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. T h e 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 Tatad 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 factual issues necessitating such "painstaking and grueling
CHAPTER VII
RIGHTS OF THE ACCUSED
(Rule 115)
395
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).
7.
A judge's illness should not be an excuse for his failure to render the corresponding decision or resolution within
the prescribed period. T h e demands of public service cannot
abide by his illness. In case of poor health, the j u d g e 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).
8.
A l s o , the designation of a j u d g e 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 w o r k , as acting presiding j u d g e
in other courts, is not sufficient justification for the delay
because j u d g e s are a l l o w e d , upon motion or letter-request,
extensions of the r e g l e m e n t a r y period in deciding cases (Re:
Report on the Judicial and Financial Audit Conducted in
MTCs of Bayombong & Solano & MCTC, Aritao-Sta. Fe,
Nueva Vizcaya, 535 SCRA 224).
9.
T h e absence of a branch clerk of should not affect
the prompt disposition of cases. It is the duty of the j u d g e to
recommend to the Supreme Court the i m m e d i a t e appointment
of a branch clerk of court (Office of the Court Administrator
v. Laron, 527 SCRA 45). E v e n 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 n the preparation
of decisions without w a i t i n g for the transcribed stenographic
notes (Office of the Court Administrator v. Janolo, Jr.
535 SCRA 262). T h e incompleteness of the transcript of
stenographic notes is not a ground for delay (Re: Report on the
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
Judicial Audit Conducted in the Regional Trial Court,
4, Dolores, Eastern Samar, 536 SCRA 313).
Branch
10. T h e defects in a motion are not reasons for a judge
not to act on the same. If a j u d g e believes that the motions
pending before him w e r e 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. RT J-09-2170, December 16, 2009).
Purpose of time limits set by law or the rules; principle of
speedy trial is a relative term
1. 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 l a w 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).
2.
Various decisions like Olbes v. Buemio, G.R. No.
173319, December 4, 2009, have held that the principle of
"speedy trial" is a relative t e r m and necessarily involves a
degree of flexibility. Thus, in spite of the prescribed time limits,
jurisprudence continues to adopt the v i e w that the concept
of "speedy trial" is a relative t e r m and must necessarily be a
flexible concept and that w h i l e justice is administered with
CHAPTER VII
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397
dispatch, the essential ingredient is orderly, expeditious
and not m e r e speed. T h e Court explained that it cannot be
definitely said how long is too long in a system w h e r e justice
is supposed to be swift, but deliberate. It is consistent w i t h
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.
3.
T h e t i m e limits set by the Speedy Trial Act of 1998
do not preclude justifiable postponements and delays w h e n so
warranted by the situation (Olbes v. Buemio, G.R. No.173319,
December 4, 2009).
4.
In Alvizo v.
Sandiganbayan, G.R. No.
101689,
17 March 1993, 220 SCRA 55, the Court ruled that there
was no violation of the r i g h t to speedy trial and speedy
disposition. T h e Court took into account the reasons for the
delay, i.e., the frequent a m e n d m e n t s of procedural laws
by presidential decrees, the structural reorganizations in
existing prosecutorial agencies and the creation of n e w ones by
executive fiat, resulting in changes of personnel, preliminary
jurisdiction, and the functions and powers of prosecuting
agencies. T h e Court also considered the failure of the accused
to assert such right, and the lack of prejudice caused by the
delay to the accused.
5.
In Defensor-Santiago v. Sandiganbayan, 408 Phil.
767, the complexity of the issues and the failure of the accused
to invoke her right to speedy disposition at the appropriate time
spelled defeat for her claim to the constitutional guarantee.
6.
In
Cadalin
v.
Philippine
Overseas Employment
Administration's Administrator, G.R. No.
104776, December
5,1994, the Court, considering also the complexity of the cases
and the conduct of the parties' l a w y e r s , held that the right to
speedy disposition w a s not violated therein.
7.
In Tan v. People, G.R. No. 173637, April 21, 2009,
no objection w a s interposed by his defense counsel when at
the preliminary hearing the prosecution manifested that the
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
evidence to be presented would be only for the other t w o cases
against the petitioner and not on the case w h e r e he claims a
violation of his right to speedy trial. H i s 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 i n v o l v i n g petitioner, the length of delay,
complexity of the issues and his failure to invoke said right to
speedy trial at the appropriate t i m e tolled the death knell on
his claim to the constitutional guarantee. M o r e importantly,
in failing to interpose a t i m e l y objection to the prosecution's
manifestation during the p r e l i m i n a r y hearings that the cases
be tried separately, one after the other, petitioner w a s deemed
to have acquiesced and w a i v e d his objection thereto. T h e
Court hence, found that t h e r e 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 or disposition of cases
1.
T h e trial court m a y dismiss a criminal case on a motion nolle prosequi if the accused is not brought to trial within
the prescribed t i m e and is d e p r i v e d 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. Sandiganbayan, 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 w i t h 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 m o v i n g for its dismissal outrightly. If the
prosecution cannot produce its witnesses or evidence and its
CHAPTER VII
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399
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).
Time limits in the Speedy Trial Act of 1998
T h e following are the t i m e limits set under the A c t :
1.
Section 6. Time Limit for Trial. — In criminal cases
i n v o l v i n g persons charged of a crime, except those subject to
the Rules on S u m m a r y Procedure, or w h e r e the penalty prescribed by l a w does not exceed six ( 6 ) months imprisonment,
or a fine of One thousand pesos ( P I , 0 0 0 . 0 0 ) or both, irrespect i v e of other imposable penalties, the justice or j u d g e shall,
after consultation w i t h the public prosecutor and the counsel
for the accused, set the case for continuous trial on a w e e k l y
or other short-term trial calendar at the earliest possible t i m e
so as to ensure speedy trial. In no case shall the entire trial
period exceed one hundred e i g h t y (180) days from the first day
of trial, except as o t h e r w i s e authorized by the C h i e f Justice of
the Supreme Court pursuant to Sec. 3, R u l e 22 of the Rules of
Court.
2.
Section 7. Time Limit Between Filing of Information
and Arraignment and Between Arraignment and Trial.
—
T h e arraignment of an accused shall be held w i t h i n thirty
( 3 0 ) days from the filing of the information, or from the date
the accused has appeared before the justice, j u d g e or court
in which the charge is pending, w h i c h e v e r date last occurs.
Thereafter, w h e r e a plea of not guilty is entered, the accused
shall h a v e at least fifteen ( 1 5 ) days to prepare for trial. T r i a l
shall commence w i t h i n thirty ( 3 0 ) days from arraignment as
fixed by the court.
If the accused pleads not guilty to the crime charged,
he/she shall state w h e t h e r he/she interposes a negative or
affirmative defense. A n e g a t i v e defense shall require the
prosecution to prove the guilt of the accused beyond reasonable
doubt, w h i l e an affirmative defense m a y modify the order of
trial and require the accused to prove such defense by clear
and convincing evidence.
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
3.
Section 8. Time Limit Following an Order for New
Trial. — If the accused is to be tried again following an order
of a court for a n e w trial, the trial shall commence within
thirty (30) days from the date the order for a new trial becomes
final, except that the court retrying the case m a y extend such
period but in any case shall not exceed one hundred eighty
(180) days from the date the order for a n e w trial becomes
final if unavailability of witnesses or other factors resulting
from passage of time shall m a k e trial within thirty ( 3 0 ) days
impractical.
4.
Section 9. Extended Time Limit. — N o t w i t h s t a n d i n g
the provisions of Section 7 of this A c t , for the first t w e l v e calendar-month period following its effectivity, the time limit
with respect to the period from a r r a i g n m e n t to trial imposed
by Section 7 of this A c t shall be one hundred eighty (180)
days. For the second t w e l v e - m o n t h period the t i m e l i m i t shall
be one hundred t w e n t y (120) days, and for the third t w e l v e month period the t i m e l i m i t w i t h respect to the period from
arraignment to trial shall be eighty ( 8 0 ) days.
Speedy Trial Act; exclusions in computing time to commence trial
1. T h e Court stressed that the exceptions consisting of
the time exclusions provided in the Speedy Trial Act of 1998
reflect the fundamentally recognized principle that "speedy
trial" is a relative t e r m and necessarily involves a degree of
flexibility. T h e t i m e limits set by the Speedy Trial Act of 1998
do not thus preclude justifiable postponements and delays
when so warranted by the situation and that "speedy trial" is
a relative and flexible t e r m and the courts are to maintain a
delicate balance b e t w e e n the demands of due process and the
strictures of speedy trial on the one hand, and the right of the
State to prosecute crimes and rid society of criminals on the
other (Olbes v. Buemio, G.R. No. 173319, December 4, 2009).
2.
T h e following periods of delay shall be excluded in
computing the time within which trial must commence:
(a)
A n y period of delay resulting from other pro-
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(Rule 115)
401
ceedings concerning the accused, including but not limited to the following:
( 1 ) delay resulting from an examination of the
accused, and hearing on his/her mental competency,
or physical incapacity;
( 2 ) delay resulting from trials w i t h respect to
charges against the accused;
( 3 ) delay resulting from interlocutory appeals;
( 4 ) delay resulting from hearings on pre-trial
motions: Provided, T h a t the delay does not exceed
thirty ( 3 0 ) days;
( 5 ) delay resulting from orders of inhibition,
or proceedings r e l a t i n g to change of v e n u e of cases
or transfer from other courts;
( 6 ) delay resulting from a finding of the existence of a v a l i d prejudicial question; and
( 7 ) delay reasonably attributable to any period, not to exceed thirty ( 3 0 ) days, during which any
proceeding concerning the accused is actually under
advisement.
( b ) A n y period of delay resulting from the absence
or unavailability of the accused or an essential witness.
F o r purposes of this subparagraph, an accused or an
essential witness shall be considered absent w h e n his/
her whereabouts are unknown and, in addition, he/she is
attempting to avoid apprehension or prosecution or his/
her whereabouts cannot be determined by due diligence.
An accused or an essential witness shall be considered
unavailable w h e n e v e r his/her whereabouts are known
but his/her presence for trial cannot be obtained by due
diligence or he/she resists appearing at or being returned
for trial.
( c ) A n y period of delay resulting from the fact that
the accused is mentally incompetent or physically unable
to stand trial.
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
( d ) If the information is dismissed upon motion of
the prosecution and thereafter a charge is filed against
the accused for the same offense, or any offense required
to be joined w i t h that offense, any period of delay from
the date the charge was dismissed to the date the t i m e
limitation would commence to run as to the subsequent
charge had there been no previous charge.
( e ) A reasonable period of delay when the accused
is joined for trial w i t h a co-accused over w h o m the court
has not acquired jurisdiction, or as to w h o m the t i m e for
trial has not run and no motion for severance has been
granted.
( f ) A n y period of d e l a y resulting from a continuance granted by any justice or j u d g e motu propio or on
motion of the accused or his/her counsel or at the request
of the public prosecutor, if the justice or j u d g e granted
such continuance on the basis of his/her findings that the
ends of justice served by t a k i n g such action outweigh the
best interest of the public and the defendant in a speedy
trial. No such period of delay resulting from a continuance granted by the court in accordance w i t h this subparagraph shall be excludable under this section unless
the court sets forth, in the record of the case, either orally or in w r i t i n g , its reasons for finding that the ends of
justice served by the g r a n t i n g of such continuance outw e i g h the best interests of the public and the accused in
a speedy trial (Sec. 10, Speedy Trial Act).
Factors for granting continuance
1.
T h e factors, among others, which a justice or j u d g e
shall consider in determining w h e t h e r to grant a continuance
as follows:
( a ) W h e t h e r 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.
CHAPTER VTI
RIGHTS OF THE ACCUSED
(Rule 115)
403
( b ) W h e t h e r 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 A c t (Sec. 11, Speedy
Trial Act).
2.
No continuance 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 disposition of cases; balancing test
1. In d e t e r m i n i n g w h e t h e r or not the right to the
speedy disposition of cases has been violated, this 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 (People v. Lacson, 400 SCRA 267; Republic v.
Desierto, 436 SCRA 543; Corpuz v. Sandiganbayan, 442
SCRA 294; Gaas v. Mitmug, G.R. No. 165776, April 30, 2008;
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.
T h e above guidelines are actually reiterations of the
guidelines declared in the famous A m e r i c a n case of Barker v.
Wingo, 407 U.S. 514 (1972), a case in which the U n i t e d States
Supreme Court concededly m a d e the most comprehensive
discussion of the right to speedy trial. H e r e , the petitioner
and his alleged accomplice, w e r e 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 w h o 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. T h e co-accused
was tried several times because of hung juries and a series of
appeals. W h e n he w a s convicted and it was time to hold the
404
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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.
T h e 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 w e i g h e d and balanced;
among factors which courts should assess in determining
whether 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. A l l must be considered and w e i g h e d
together under w h a t is n o w k n o w n as the "balancing test."
W h i l e it appeared that in Barker, the delays w e r e due to
continuances or postponements initiated by the prosecution,
the petitioner failed to t i m e l y assert his right to a speedy trial.
T h e records show that he raised his right only after a series of
sixteen ( 1 6 ) continuances m a d e by the prosecution. Coupled
w i t h the absence of a showing that he w a s actually prejudiced,
the U . S . Supreme Court held that despite the delays, the
petitioner's right a speedy trial has not been violated.
3.
In Perez v. People, G.R. No. 164673, 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 t w e l v e
years. "The years that he had to w a i t for the outcome of his
case w e r e allegedly spent in limbo, pain and agony."
T h e Court rejected the contention of the petitioner finding
no serious prejudice caused upon him by the alleged delay.
T h e 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 T h e records
CHAPTER VII
RIGHTS OF THE ACCUSED
(Rule 115)
405
do not however, show that petitioner has filed any motion or
manifestation which could be construed e v e n remotely as an
indication that he w a n t e d his case to be dispatched without
delay. F o r this, the Court concluded that the petitioner "has
clearly slept on his right." T h e Court further explained that
"the matter could h a v e taken a different dimension if during
all those t w e l v e 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 w a s not w a i v i n g that right."
Perez v. People h e a v i l y relied on Barker v. Wingo in
disposing of the issue of speedy trial declaring that in that
case the U n i t e d States S u p r e m e Court w a s confronted for the
first time w i t h t w o "rigid approaches" on speedy trial, namely
as "ways of e l i m i n a t i n g some of the uncertainty which courts
experience protecting the right." T h e s e are:
( a ) T h e "fixed-time period" which holds the v i e w
that the Constitution requires a criminal defendant to be
offered a trial w i t h i n a specified t i m e period.
(b) The
"demand-waiver rule" which
provides
that a defendant w a i v e s any consideration of his right
to speedy trial for any period prior to which he has not
demanded trial. U n d e r this rigid approach, a prior dem a n d is a necessary condition to the consideration of the
speedy trial right.
T h e f i x e d - t i m e period w a s rejected because there
is no constitutional basis for holding that the speedy
trial can be quantified into a specific number of days or
months." T h e d e m a n d - w a i v e r rule was likewise rejected
because aside from the fact that it is inconsistent with
this Court's pronouncements on w a i v e r of constitutional
rights, "it is insensitive to a right which we have deemed
fundamental."
xxx
T h e Court w e n t on to adopt a middle ground: the
'balancing test,' in which the conduct of both the prosecution and defendant are weighed. T h e test necessarily
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
compels courts to approach speedy trial cases on an ad
hoc basis w h e r e 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. U n t i l there is some delay which is presumptively prejudicial, there is no necessity for inquiry
into the other factors that go into the balance. N e v e r t h e less, because of the imprecision of the r i g h t to speedy trial, the length of delay that w i l l provoke such an inquiry is
necessarily dependent upon the peculiar circumstances
of the case. To take but one e x a m p l e , 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
g o v e r n m e n t assigns to justify the delay. H e r e , too, different weights should be assigned to different reasons. A
deliberate attempt to delay the trial in order to hamper
the defense should be w e i g h t e d h e a v i l y against the government. A more neutral reason such as negligence or
overcrowded courts should be w e i g h t e d less h e a v i l y but
nevertheless should be considered since the ultimate responsibility for such circumstances must rest w i t h the
government rather than w i t h the defendant. Finally, a
valid reason, such as a missing witness, should serve to
justify appropriate delay. We h a v e already discussed the
third factor, the defendant's responsibility to assert his
right. W h e t h e r and how a defendant asserts his right is
closely related to the other factors we h a v e mentioned.
T h e strength of his efforts w i l l 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. T h e
CHAPTER VII
RIGHTS OF THE ACCUSED
(Rule 115)
407
more serious the deprivation, the more likely a defendant
is to complain. T h e defendant's assertion of his speedy
trial right, then, is entitled to strong evidentiary w e i g h t
in determining w h e t h e r the defendant is being deprived
of the right. We emphasize that failure to assert the right
w i l l m a k e 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. T h i s Court has identified three such
interests: ( i ) to p r e v e n t oppressive pretrial incarceration;
( i i ) to m i n i m i z e anxiety and concern of the accused; and
( i i i ) to l i m i t the possibility that the defense w i l l 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.
T h e r e is also prejudice if defense witnesses are unable
to recall accurately events of the distant past. Loss of
m e m o r y , h o w e v e r , is not a l w a y s reflected in the record
because w h a t has been forgotten can rarely be shown."
The privilege against self-incrimination (Bar 1996; 1998;
2004; 2005)
1.
T h e p r i v i l e g e is expressed in the following provisions:
( a ) " N o 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 h i m s e l f
(Sec. l[e], Rule 115, Rules of Court).
2.
T h e p r i v i l e g e 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
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
to such compulsion to perjure himself for his own protection
(People v. Besonia, 422 SCRA 210).
3.
T h e privilege rests upon the principle that "forcing
a man to be a witness against h i m s e l f is at w a r w i t h 'the fundamentals of a republican government;' that [i]t may suit the
purposes of despotic p o w e r but it can not abide the pure atmosphere o f political liberty and personal freedom, x x x T h e
m a x i m Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods
of interrogating accused persons, w h i c h 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, w a s not uncommon e v e n in England. W h i l e
the admissions of confessions of the prisoner, w h e n voluntarily and freely made, h a v e a l w a y s ranked high in the scale of incriminating evidence, if an accused person be asked to explain
his apparent connection w i t h a c r i m e under investigation,
the ease w i t h which the questions put to h i m m a y assume an
inquisitorial character, the temptation to press, the witness
unduly, to browbeat h i m if he be t i m i d or reluctant, to push
him into a corner, and to entrap h i m into fatal contradictions,
which is so painfully evident in m a n y of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and U d a l ,
the Puritan minister, m a d e the system so odious as to g i v e
rise to a demand for its total abolition. T h e 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, h o w e v e r adopted, it has become firmly embedded in English, as w e l l as in A m e r i c a n jurisprudence. So deeply did the
iniquities of the ancient system impress themselves upon the
minds of the A m e r i c a n colonists that the states, w i t h one accord, made a denial of the right to question an accused person
a part of their fundamental law, so that a m a x i m which in
England w a s a m e r e rule of evidence, became clothed in this
country w i t h the impregnability of a constitutional enactment
(Brown v. Walker, 161 U.S., 591, 597; 40 Law. ed., 819, 821)."
CHAPTER VII
RIGHTS OF THE ACCUSED
(Rule 115)
409
M r . Justice M a l c o l m , in expressive language, tells us that this
m a x i m 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 G o v e r n m e n t of the U n i t e d States;" as having "its
origin in a protest against the inquisitorial methods of interrogating the accused person;" and as h a v i n g been adopted in
the Philippines "to w i p e out such practices as formerly prevailed in these Islands of requiring accused persons to submit
to judicial examinations, and to g i v e testimony regarding the
offenses w i t h which they w e r e charged."
"So it is then that this r i g h t is 'not m e r e l y 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 U n i t e d States (January 29, 1968), speaking thru M r .
Justice H a r l a n w a r n e d that "[t]he constitutional privilege was
intended to shield the guilty and imprudent as w e l l as the
innocent and foresighted."
xxx
"Therefore, the court m a y not extract from a defendant's
own lips and against his w i l l an admission of his guilt. N o r may
a court as much as resort to compulsory disclosure, directly or
indirectly, of facts usable against h i m 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 o w n free, genuine w i l l "
(Chavez v. Court of Appeals, G.R. No. L-29169, August 19,
1968; Citations omitted).
4. T h e 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 ap-
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
propriate time (U.S. v. Molina, 317 U.S. 424; People v. Judge
Ayson, G.R. No. 85215, July 7, 1989).
T h e assertion of the p r i v i l e g e against self incrimination must be raised in response to each specific inquiry or it is
w a i v e d . Each assertion of the p r i v i l e g e rests on its own circumstances. Blanket assertions of the p r i v i l e g e are not permitted.
See, United States v. White, 589 F.2d 1283, 1286-87 (5th Cir.
1979); Meyer v. Tunks, 360 S.W.2d 518, 523 (Tex.1962).
5.
T h e right prescribes an "option of refusal to answer
incriminating questions and not a prohibition of inquiry." It
simply secures to a witness, w h e t h e r 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. H o w e v e r , the right can be claimed only w h e n
the specific question, incriminatory in character, is actually
put to the witness. It cannot be claimed at any other time. It
does not g i v e a witness the right to disregard a subpoena, to
decline to appear before the court at the t i m e appointed, or to
refuse to testify altogether. T h e witness receiving a subpoena
must obey it, appear as required, take the stand, be sworn
and answer questions. It is only w h e n a particular question is
addressed to him, the answer to which m a y incriminate him
for some offense, that he m a y refuse to answer on the strength
of the constitutional guaranty (People v. Judge Ayson, G.R.
No. 85215, July 7, 1989).
The privilege applies only to natural persons
1.
Does the t e r m "person" as used in the Philippine
Constitution include juridical persons? In other words, m a y
juridical persons invoke the right against self-incrimination?
T h e 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
CHAPTER VII
RIGHTS OF THE ACCUSED
(Rule 115)
411
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 p r i v i l e g e 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 w h e n it ruled that since corporate existence
implies amenability to legal powers, a subpoena duces tecum
m a y be directed to a corporation which is under a duty to produce records, books, and papers in its possession w h e n they
m a y be properly required in the administration of justice. An
individual m a y not i n v o k e the p r i v i l e g e to refuse to produce
corporate records w h e n the subpoena is directed to the corporation.
Wilson adds that a subpoena duces tecum which is
suitably specific and properly l i m i t e d in its scope does not
violate the unreasonable search and seizure provisions of the
constitution the p r i v i l e g e against self-incrimination cannot be
raised by a corporate officer h a v i n g possession of corporate
documents for his personal benefit.
A case decided after U.S. v. White sustained the conviction
for contempt of the petitioner w h o testified that she had been
the Treasurer of the C o m m u n i s t P a r t y of D e n v e r and had been
in possession of its records, which she later had turned them
over to another person. W h e n asked to identify the person to
w h o m she had delivered the records, she refused the order of
the court. W h e n she was charged w i t h contempt, she asserted
her privilege against self-incrimination. H e r claim of privilege
was overruled and she was convicted of contempt (Rogers v.
United States, 340 U.S. 367).
Rogers held that since the p r i v i l e g e against self-incrimination is solely for the benefit of the witness, petitioner's original refusal to answer could not be justified by a desire to pro-
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tect another from punishment, much less to protect another
from interrogation by a grand jury. A l s o , 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 w e r e not held in a personal capacity.
The privilege protects a person from testimonial compulsion or evidence of a communicative nature
1.
T h e famous case of Schmerber v. California, 384
U.S. 757, held that the p r i v i l e g e against self-incrimination
protects a person only from testimonial compulsion or a
compelled testimony of a communicative nature without
however, declaring that the p r i v i l e g e 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 w h o w a s d r i v i n g a car. A police officer who
smelled liquor on his breath and noticed he w a s drunk, placed
him under arrest and informed h i m of his M i r a n d a rights. A
physician was directed by the officer to extract a blood sample
from petitioner despite the petitioner's refusal. T h e chemical
analysis of the blood sample indicated an intoxication which
subsequently became the basis for his conviction for driving
w h i l e intoxicated and the chemist's report was admitted in
evidence despite his objection. He w a s convicted and said conviction was affirmed on appeal. T h e appellate court rejected
his claim of denial of the p r i v i l e g e against self-incrimination,
among others.
Deciding on whether or not the w i t h d r a w a l 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 w i t h d r a w a l of blood and use of the
analysis in question in this case did not involve compulsion to
these ends."
CHAPTER VII
RIGHTS OF THE ACCUSED
(Rule 115)
413
XXX
"In the present case, however, no such problem of
application is presented. N o t 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 w e r e in no w a y implicated;
indeed, his participation, except as a donor, w a s irrelevant
to the results of the test, w h i c h depend on chemical analysis
and on that alone. Since the blood test evidence, although an
incriminating product of compulsion, w a s neither petitioner's
testimony nor evidence r e l a t i n g to some communicative act or
w r i t i n g by the petitioner, it w a s 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 w a s
confronted w i t h the question w h e t h e r or not the accused prior
to trial, could be required to w e a r a particular clothing over his
protest to facilitate his identification by witness. T h e accused
contended that to submit to the demand of authorities is to
violate the p r i v i l e g e against self-incrimination. T h e Court
rejected the claim describing the same as "based upon an
e x t r a v a g a n t extension of the Fifth A m e n d m e n t . "
T h e Court w e n t on to state:
" [ T ] h e prohibition of compelling a m a n in a criminal
court to be witness against h i m s e l f is a prohibition of the
use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence
w h e n it m a y be material. T h e objection in principle would
forbid a j u r y to look at a prisoner and compare his features w i t h 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 m a d e to w e a r strips of
tape on his face, as the robber allegedly had done, and, on
direction, repeated words like those the robber allegedly
had used. T w o bank employees identified the accused as
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the perpetrator both in the line up and in the trial. U r g i n g
that the conduct of the lineup violated his Fifth A m e n d m e n t
privilege against self-incrimination the accused sought for his
acquittal. T h e trial court convicted the accused.
T h e Wade court explained that neither the lineup itself
nor anything required therein violated respondent's Fifth
A m e n d m e n t 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 g i v e evidence of a testimonial
nature against himself. T h e Fifth A m e n d m e n t protects an
accused only from being compelled to testify against himself,
or otherwise provide the State w i t h evidence of a testimonial
or communicative nature. . . ."
T h e Court explained further that the prohibition compelling a person to be a witness against h i m s e l f is a prohibition of
the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence w h e n
it may be material and that " compelling the accused m e r e l y
to exhibit his person for observation by a prosecution witness
prior to trial involves no compulsion of the accused to g i v e evidence having testimonial significance. It is compulsion of the
accused to exhibit his physical characteristics, not compulsion
to disclose any k n o w l e d g e he m i g h t have." It is no different
from compelling Schmerber to provide a blood sample or Holt
to w e a r the blouse, and, as in those instances, is not within
the cover of the p r i v i l e g e . Similarly, compelling W a d e to speak
within hearing distance of the witnesses, e v e n to utter words
purportedly uttered by the robber, w a s 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 A m e n d m e n t p r i v i l e g e against selfincrimination is one between an accused's "communications,"
in w h a t e v e r form, vocal or physical, and "compulsion which
makes a suspect or accused the source of real or physical evidence,"
CHAPTER VII
RIGHTS OF THE ACCUSED
(Rule 115)
415
T h e Court stressed:
"x x x both federal and state courts have usually
held that . . . [the p r i v i l e g e ] offers no protection against
compulsion to submit to fingerprinting, photography, or
measurements, to w r i t e or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to
m a k e a particular gesture. N o n e of these activities hecomes testimonial w i t h i n the scope of the privilege x x x"
(Underscoring
supplied).
4.
T h e principles explained by the U . S . Supreme Court
in previous cases including that in Wade and Schmerber w e r e
applied to cases like United States v. Dionisio, 410 U.S. 1,
w h e r e the petitioner refused to comply w i t h an order from
a special grand j u r y to furnish it w i t h samples of his voice
recordings. It appeared that the grand j u r y received in evidence
certain voice recordings that had been previously obtained
through court orders. Dionisio and other witnesses refused
to furnish the voice e x e m p l a r s invoking, among others, the
Fifth a m e n d m e n t p r i v i l e g e against self-incrimination. T h e
district Court later adjudged him in civil contempt due to his
persistent refusal.
T h e U . S . Supreme Court held that the Court of A p p e a l s
correctly rejected the contention that the compelled production of the voice exemplars would v i o l a t e the Fifth A m e n d ment since it has long been held that the compelled display of
identifiable physical characteristics infringes no interest protected by the p r i v i l e g e 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 w h e n it m a y be material." Citing Schmerber,
Court once again declared that the privilege offers "no protection against compulsion to submit to fingerprinting, photographing, or measurements, to w r i t e or speak for identification, to appear in court, to stand, to assume a stance, to walk,
or to make a particular gesture."
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5.
T h e 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" w a s the prohibition
against "testimonial compulsion and rejected the arguments
of a w o m a n 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 w a s forced out of
the mouth of the accused because it i n v o l v e d no testimonial
compulsion.
7.
In U.S. v. Tan Teng, 23 Phil. 145, the Supreme
Court rejected a claim of the p r i v i l e g e w h e n the accused in a
criminal action for acts of lasciviousness w a s stripped of his
clothing after his arrest and in his body w a s found a substance
consistent w i t h gonorrhea, a disease from which his alleged
seven-year old victim w a s suffering from.
8.
In People v. Otadora, 86 Phil. 244, it w a s held that
there is no infringement of the p r i v i l e g e w h e n a person is
required to put on clothings or shoes for size or for measuring
or photographing. N e i t h e r is it a violation of the p r i v i l e g e 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 D N A samples from an accused in a criminal case or from the respondent in a paternity case, w i l l not
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 selfincrimination basically mirror those of their A m e r i c a n
counterparts although the former have been found to be more
succinct and less susceptible to misinterpretations.
11. People v. Olvis, G.R. No. 71092, September 30,1987,
for instance, is an exemplar of a v e r y lucid summary of the
essence of the privilege w h e n it declared that forced re-enactments, like uncounselled and coerced confessions come within
CHAPTER VII
RIGHTS OF THE ACCUSED
(Rule 115)
417
the ban against self- incrimination. Thus, all evidence based
on such a re-enactment are to be deemed in violation of the
Constitution and hence, incompetent evidence.
Justice Sarmiento inPeople v. Olvis goes on to declare that
the "constitutional p r i v i l e g e has been denned 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." T h i s w a s the lesson learned
from the ancient days of the inquisition in which accusation
was equivalent to guilt. T h u s , an act, w h e t h e r 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 m e a n t to unearth undisclosed facts but to ascertain
physical attributes d e t e r m i n a b l e by simple observation. This
includes requiring the accused to submit to a test to extract
virus from his body, or compelling h i m to expectorate morphine
from his mouth or m a k i n g her submit to a pregnancy test or
a footprinting test, or requiring h i m to take part in a police
lineup in certain cases. In each case, the accused does not
speak his guilt. It is not a prerequisite therefore that he be
provided w i t h the guiding hand of counsel.
"But a forced re-enactment is quite another thing. H e r e ,
the accused is not m e r e l y required to exhibit some physical
characteristics; by and large, he is m a d e to admit criminal
responsibility against his w i l l . It is a police procedure just as
condemnable as an uncounselled confession" (People v. Olvis,
G.R. No. 71092, September 30, 1987).
12. 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
w i l l , disable him from m a k i n g a free and rational choice, or
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impair his capacity for rational j u d g m e n t 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 j u r y which imposed the death penalty. T h e petitioner alleges that his conviction w a s attended by constitutional
errors like, among others, in the admission of h a n d w r i t i n g exemplars taken from him after arrest.
T h e contention w a s brushed aside by the Court and held
that the taking of h a n d w r i t i n g exemplars did not violate
petitioner's constitutional rights. T h e Fifth A m e n d m e n t
privilege against self-incrimination reaches compulsory
communications, but a m e r e h a n d w r i t i n g exemplar, in contrast
with the content of w h a t is w r i t t e n , is an identifying physical
characteristic outside its protection. M i l i t a t i n g against the
argument w a s the fact that the t a k i n g of the exemplars w a s
not a "critical" stage of the criminal proceedings.
2.
U n d e r different set of facts, the Philippine Supreme
Court in the 1929 case of Beltran v. Samson, 53 Phil. 57, ruled
against the furnishing of w r i t t e n exemplars.
Beltran stemmed from an order of the respondent j u d g e
requiring the petitioner to appear before the provincial fiscal
to take a dictation in his o w n handwriting. T h e purpose of
the order was for the court to h a v e a basis for the purpose
of comparing the petitioner's h a n d w r i t i n g and to determining
whether or not it is he w h o 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 self-incrimination.
T h e court explained in Beltran that as to its scope, the
privilege is not limited precisely to testimony, but extends to
all giving or furnishing of evidence.
CHAPTER VII
RIGHTS OF THE ACCUSED
(Rule 115)
419
It w e n t on to declare:
"The rights intended to be protected by the constitutional provision that no man accused of crime shall be
compelled to be a witness against himself is so sacred,
and the pressure toward their relaxation so great w h e n
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, w r i t i n g is something m o r e than m o v i n g the body, or the hands, or the
fingers; w r i t i n g is not a purely mechanical act, because
it requires the application of intelligence and attention;
and in the case at bar w r i t i n g 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. H e r e the witness is compelled to w r i t e and
create, by means of the act of writing, evidence which
does not exist, and which m a y identify h i m as the falsifier
(Beltran v. Samson, 53 Phil. 57; Underscoring supplied).
C o m p a r i n g Beltran w i t h Villaflor, the Court ratiocinated:"
"In the case of Villaflor v. Summers (41 Phil. 62),
it w a s plainly stated that the court preferred to rest its
decision on the reason of the case rather than on blind
adherence to tradition. T h e said reason of the case there
consisted in that it w a s 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 w a s not compelled to execute
any positive act, much less a testimonial act; she was
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only enjoined from something preventing the examination; all of which is v e r y different from w h a t is required
of the petitioner of the present case, w h e r e it is sought to
compel him to perform a positive, testimonial act, to write
and g i v e 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, w h i l e in the case at bar, the question deals with
something not y e t in existence, and it is precisely sought
to compel the petitioner to m a k e , prepare, or produce by
this means, evidence not y e t in existence; in short, to create this evidence which m a y seriously incriminate him."
3.
N o t e v e r y act of affixing one's signature is within the
protection of the p r i v i l e g e against self-incrimination as the
Court found in Marcelo v. Sandiganbayan, G.R. No. 109242,
January 26, 1999.
In a petition for r e v i e w after his conviction, the petitioner
raised, as one of the issues on appeal the fact that the trial
court erred in a d m i t t i n g in evidence the letters signed by
him because he w a s asked to sign t h e m 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."
Petitioner's counsel argued that the signing of petitioner's
and his co-accused's names w a s not a m e r e 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 m a n to be a witness
against himself extends to any attempt to compel the accused
to furnish a specimen of his h a n d w r i t i n g for the purpose
of comparing it w i t h the handwriting in a document in a
prosecution for falsification. W r i t i n g is something more than
moving the body, or the hand, or the fingers; w r i t i n g is not a
purely mechanical act because it requires the application of
intelligence and attention."
CHAPTER VII
RIGHTS OF THE ACCUSED
(Rule 115)
421
T h e Court h o w e v e r made a distinction between the use
of the specimen handwriting in Beltran. In that case, the
purpose w a s to show that the specimen handwriting matched
the handwriting in the document alleged to h a v e been falsified
and thereby show that the accused w a s the author of the crime
(falsification). In Marcelo v. Sandiganbayan, the purpose for
securing the signature of petitioner on the envelopes was
m e r e l y to authenticate the envelopes as the ones seized
from him..." T h u s , the invocation of the right against selfincrimination w a s not upheld.
In Marcelo h o w e v e r , the Court explained that w h e n the
signatures of the accused w e r e affixed, such signatures w e r e
actually evidence of admission obtained from petitioner and
his co-accused under circumstances constituting custodial
investigation. U n d e r 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 w i t h one. It is on this ground that
the letters w i t h the signature of the accused could be rejected.
" H o w e v e r , the letters are themselves not inadmissible in
evidence. T h e L e t t e r s w e r e v a l i d l y seized from petitioner x x
x as an incident of a v a l i d arrest. A ruling that petitioner's
admission that the letters in question w e r e those seized from
him and his companion x x x is inadmissible in evidence
does not extend to the exclusion from evidence of the letters
themselves. T h e letters can stand on their o w n , being the fruits
of the crime v a l i d l y seized during a lawful arrest. T h a t these
letters w e r e the ones found in the possession of petitioner
and his companion and seized from t h e m w a s shown by the
testimonies x x x." T h u s , in effect the Court meant that the
signatures affixed w e r e irrelevant to the identification 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 w i d e ranging scope of the kinds of questions which a witness
may refuse to answer. In this case, the petitioner refused to
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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 w h o is sought by
the same grand j u r y and for w h o m a bench w a r r a n t has been
issued. Despite the order for h i m to answer the questions, he
refused and was subsequently convicted of contempt.
In reversing the conviction, the U.S. Supreme Court
ruled that the p r i v i l e g e 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 a n s w e r the questions
as to his contacts and connections and his k n o w l e d g e of the
whereabouts of the witness being sought m i g h t h a v e exposed
him to the perils of a prosecution under existing l a w s on
obstruction and conspiracy. Hoffman obviously accorded a
liberal interpretation to the p r i v i l e g e and allowed a refusal to
answer questions which m a y tend to incriminate the witness.
C i t i n g previously decided cases, Hoffman h o w e v e r ,
cautioned that this protection must be confined to instances
where the witness has reasonable cause to apprehend danger
from a direct answer. T h e witness is not exonerated from
answering m e r e l y because he declares that, in so doing he
would incriminate himself. W h a t 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 h i m to answer if
"it clearly appears to the court that he is mistaken. H o w e v e r ,
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 v e r y protection which the privilege
is designed to guarantee. To sustain the p r i v i l e g e , it need only
be evident from the implications of the question, in the setting
in which it is asked. T h e p r i v i l e g e 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.
CHAPTER VTI
RIGHTS OF THE ACCUSED
(Rule 115)
423
2.
Malloy v. Hogan, 378 U.S. 1, is the 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. T h e test for determining if the
privilege is v a l i d l y asserted w a s 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 w h y it cannot be answered m i g h t be dangerous because
injurious disclosures would result. In applying that test, the
j u d g e 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 h a v e such tendency to
incriminate."
Privilege extends to lawyers advising a witness to invoke
the privilege
T h e issue is w h e t h e r in a civil proceeding a l a w y e r 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 m a y tend to incriminate the witness in
another proceeding. It w a s held that the l a w y e r m a y not
be penalized e v e n though his advice caused the witness to
disobey the court's order. To hold otherwise would deny the
constitutional p r i v i l e g e against self-incrimination the means
of its o w n implementation, since, w h e n a witness is so advised
the advice becomes an integral part of the protection accorded
the witness by the Fifth A m e n d m e n t (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
tax-payers who w e r e 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. T h e s e w e r e transferred by the
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
taxpayers to their lawyers hired to assist them in the investigations. T h e lawyers refused to produce the documents when
summoned by the Internal R e v e n u e Service. T h e 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 w e r e not immune from
production in the attorney's hands. Fischer upheld the lower
court. T h e compelled production of the documents in question
from the attorneys did not implicate the privilege against selfincrimination. T h e Court explained that enforcement of the
summons against the l a w y e r s 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 A m e n d ment on the p r i v i l e g e against self-incrimination being limited
to prohibiting the use of physical or moral compulsion against
one who exercises the p r i v i l e g e . T h i s is true e v e n if the lawyers w e r e agents of the taxpayers because the l a w y e r s w e r e
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 w h o is compelled to do an act and he makes no
claim that he m a y tend to be incriminated by the production.
N e i t h e r does the subpoena implicate a violation of the privilege against self-incrimination of the t a x p a y e r since the subpoena and the demand for the information sought w a s 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.
T h e 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). P r i v i l e g e against self incrimination under
the Fifth A m e n d m e n t "applies alike to civil and criminal
CHAPTER VII
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(Rule 115)
425
proceedings, w h e r e v e r the answer m i g h t tend to subject
to criminal responsibility him w h o g i v e s it" (McCarthy v.
Arndstein, 266 U.S. 34). T h e right is accorded to every person
w h o gives evidence, w h e t h e r voluntarily or under compulsion of
subpoena, in any civil, criminal, or administrative proceeding
(People v. Judge Ayson, G.R. No. 88215, July 7,1989).
T h e Philippine Supreme Court enunciated the same rule
when it ruled that the p r i v i l e g e 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 m i g h t be so used (Mapa v. Sandiganbayan, G.R.
No. 100295, April 26, 1994).
2.
It is important to reiterate that p r i v i l e g e is a personal
privilege: it adheres basically to the person, not to information
that m a y incriminate him (Couch v. United States, 409 U.S.
322).
3.
T h e m e a n i n g of the constitutional provision is not
merely that a person shall not be compelled to be a witness
against h i m s e l f in a criminal prosecution against himself, but
its object is to insure that a person shall not be compelled,
w h e n acting as a witness in any investigation, to g i v e testimony
which m a y tend to show that he himself has committed a crime
(Counselman v. Hitchcock, 142 U.S. 547; Italics supplied).
" x x x T h e p r i v i l e g e i s 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, w h e r e v e r the answer m i g h t tend to subject to criminal responsibility him who g i v e s 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.
T h e leading case of Chavez v. Court of Appeals,
G.R. L-29169, August 1968, clearly spelled out the distinction
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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. W h e r e a s
an ordinary witness may be compelled to take the witness
stand and claim the p r i v i l e g e as each question requiring an
incriminating answer is shot at him, an accused m a y 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. T h e
rule positively intends to avoid and prohibit the certainly
inhuman procedure of compelling a person "to furnish the
missing evidence necessary for his conviction." T h i s rule m a y
apply even to a co-defendant in a j o i n t trial.
In Chavez, the petitioner w a s 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 invoked the p r i v i l e g e of selfincrimination. T h e j u d g e did not heed his protestations and
asserted that it "is the r i g h t 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 h a v e the accused
called on the witness stand." Because of the hard stance of the
judge, petitioner had to take the stand.
T h e Court in Chavez observed that in compelling the
accused to take the stand, the j u d g e 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 r e m a i n silent. Thus, it could not
be considered that the petitioner has w a i v e d his right since
he did not volunteer to take the stand and even in his own
defense he did not offer h i m s e l f 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. H i s 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 j u d g e who
CHAPTER VII
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(Rule 115)
427
possessed the power to put him under contempt had he chosen
to remain silent."
2.
T h e right of the defendant in a criminal case "to
be exempt from being a witness against h i m s e l f 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) w h o m a y be compelled to
testify by subpoena, h a v i n g only the right to refuse to answer
a particular incriminatory question at the t i m e 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. A n d , as the l a w categorically states, "his
neglect or refusal to be a witness shall not in any manner
prejudice or be used against him."
xxx
"It must h o w e v e r be m a d e clear that if the defendant in a
criminal action be asked a question which m i g h t incriminate
him, not for the crime w i t h which he is charged, but for some
other crime, distinct from that of which he is accused, he may
decline to answer that specific question, on the strength of the
right against self-incrimination x x x . T h u s , assuming that
in a prosecution for murder, the accused should testify in his
behalf, he m a y not on cross-examination refuse to answer any
question on the ground that he m i g h t be implicated in that
crime of murder; but he m a y decline to answer any particular
question which m i g h t implicate him for a different and distinct
offense, say, estafa" (People v. Judge Ayson, G.R. No. 85215,
July 7, 1989).
Waiver of the privilege
1.
T h e p r i v i l e g e against self-incrimination may be
w a i v e d . It is a rule that an accused m a y refuse to testify. H o w ever, if he testifies in his o w n behalf, he may be cross-exam-
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
ined on matters covered by the direct examination (Sec. Iff],
Rule 115, Rules of Court). It m a y be w a i v e d by the failure to
timely assert the right, that is, by answering an incriminating
question (Beltran v. Samson, 58 Phil. 570).
2.
" T o be effective, a w a i v e r must be certain and unequivocal, and intelligently,
understandably,
and willingly
made; such w a i v e r following only w h e r e liberty of choice has
been fully accorded. A f t e r a claim, a witness cannot properly
be held to have w a i v e d his p r i v i l e g e on v a g u e and uncertain
evidence." A w a i v e r is an intentional relinquishment or abandonment of a known right. Accordingly, courts do not presume
a w a i v e r of fundamental rights and in fact. T h e "courts indulge e v e r y reasonable presumption against w a i v e r " 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 w i t h the Communist P a r t y .
H a v i n g done so, the petitioner could not refuse to answer further questions which would not subject her to a real danger of
further incrimination.
The privilege will not apply when witness is given immunity
from prosecution
1.
U n d e r A m e r i c a n common l a w , a witness m a y b e immunized from prosecution. I m m u n i t y from prosecution occurs
when the government, under an authorizing law, grants immunity to a witness in exchange for a testimony favorable to
the prosecution. T h i s i m m u n i t y embodies an understanding
that the prosecutor essentially agrees to refrain from prosecuting the witness.
T h e g o v e r n m e n t m a y grant immunity in one of the t w o
following t w o forms: ( a ) Transactional i m m u n i t y also known
as "blanket" or "total" immunity completely protects the witness from future prosecution for crimes related to his or her
testimony; ( b ) " U s e and derivative use" immunity prevents
the prosecution only from using the witness's o w n testimony
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429
or any evidence derived from the testimony against the witness. H o w e v e r , should the prosecutor later on acquire evidence of a crime committed by the witness, independently of
the witness's testimony, the witness m a y then be prosecuted
for the crime (Suggested reading: Kastigar v. United States
446 U.S. 441).
2.
Recognized in this jurisdiction is the A m e r i c a n common l a w concept of statutory criminal i m m u n i t y available to a
witness. A P h i l i p p i n e S u p r e m e Court decision categorizes the
forms of i m m u n i t y into:
(a)
transactional immunity; and
( b ) use-and-derivative-use immunity.
Transactional i m m u n i t y is broader in the scope of its
protection. By its grant, a witness can no longer be prosecuted
for any offense w h a t s o e v e r arising out of the act or transaction
to which the testimony relates. In contrast, by the grant of
use-and-derivative-use i m m u n i t y , a witness is only assured
that his or her particular testimony and evidence derived
from it w i l l not be used against him or h e r in a subsequent
prosecution (Tanchanco v. Sandiganbayan, G.R. No. 14167596, November 25, 2005).
3.
Transactional i m m u n i t y derives from common-law
tradition, which g i v e s g r e a t e r deference to the w e i g h t of judicial precedents since the codification of l a w s by the legislature is atypical in practice. In our jurisdiction though, the
definition of crimes and provision of criminal penalties are ineluctably w i t h i n 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 m a y be i m m u n e from criminal or civil prosecution. Since the legislature possesses sole discretion to enact
statutes to such effect, it is not obliged to conform w i t h judgemade standards, or e v e n traditional modalities concerning the
grant of criminal immunity. T h e solitary limitation on legislative grant of immunity, as w i t h all other legislative acts, is
adherence to the Constitution (Tanchanco v. Sandiganbayan,
G.R. No. 141675-96, November 25, 2005).
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
Immunity statutes; examples
1.
I m m u n i t y statutes seek a rational accommodation
between the imperatives of the p r i v i l e g e and the legitimate
demands of g o v e r n m e n t to compel citizens to testify. T h e
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 g i v i n g useful testimony are those
implicated in the crime (Mapa v. Sandiganbayan, G.R. No.
100295, April 26, 1994).
2.
( a ) T h e most w e l l - k n o w n i m m u n i t y provision is the
one found in A r t i c l e X V I , Section 3 which provides that "the
State may not be sued w i t h o u t its consent."
( b ) A r t i c l e V I , Section 11 of the Constitution also grants
parliamentary immunities. T h e provision reads: " A Senator
or M e m b e r of the H o u s e of R e p r e s e n t a t i v e s shall, in all offenses punishable by not m o r e than six y e a r s imprisonment,
be privileged from arrest w h i l e the Congress is in session. No
m e m b e r 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], A r t . X I I I , of the Philippine Constitution
provides that one of the powers and functions of the C o m m i s sion on H u m a n R i g h t s is to "Grant i m m u n i t y from prosecution to any person whose testimony or whose possession of
documents or other evidence is necessary or convenient to
determine the truth in any investigation conducted by it or
under its authority."
( d ) Sec. 17 of the O m b u d s m a n A c t of 1989 provides for
immunity, thus:
"Under such terms and conditions as it may determine, taking into account the pertinent provisions of the
Rules of Court, the Ombudsman m a y grant immunity
from criminal prosecution to any person whose testimony
or whose possession and production of documents or other
evidence m a y be necessary to determine the truth in any
hearing, inquiry or proceeding being conducted by the
CHAPTER VII
RIGHTS OF THE ACCUSED
(Rule 115)
431
Ombudsman or under its authority, in the performance
or in the furtherance of its constitutional functions and
statutory objectives. T h e immunity granted under this
and the i m m e d i a t e l y 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.
" A n y refusal to appear or testify pursuant to the
foregoing provisions shall be subject to punishment for
contempt and r e m o v a l of the i m m u n i t y from criminal
prosecution."
( e ) Sec. 5, E x e c u t i v e O r d e r N o . 14 as amended grants
the Presidential Commission on Good G o v e r n m e n t ( P C G G )
the authority to g r a n t i m m u n i t y to informants or witnesses,
thus:
"Sec. 5. T h e Presidential Commission on Good Government is authorized to g r a n t i m m u n i t y to any person
who provides information or testifies in any investigation
conducted by such Commission, to establish the unlawful
manner by w h i c h any respondent, defendant or accused
has accumulated the property or properties in question
in any case w h e r e such information or testimony is necessary to ascertain or prove his guilt or civil liability. T h e
i m m u n i t y g r a n t e d thereby shall be continued to protect
the witness w h o repeats the testimony before the Sandiganbayan w h e n required to do so by the latter or by the
commission."
(f)
P . D . 749 provides i m m u n i t y from prosecution for
informants, thus:
A n y person w h o voluntarily g i v e s information about any
violation of A r t i c l e s 210, 211, 212 of the Revised Penal Code,
Republic A c t N o . 3019, as amended; Section 345 of the Internal
R e v e n u e Code and Section 3604 of the T a r i f f 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
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
testified, such violator shall be exempt from prosecution
or punishment for the offense w i t h reference to which his
information and testimony w e r e g i v e n , and m a y plead or prove
the g i v i n g of such information and testimony in bar of such
prosecution: Provided, T h a t this i m m u n i t y m a y be enjoyed
even in cases w h e r e the information and the testimony are
g i v e n against a person w h o is not a public official but w h o is a
principal or accomplice, or accessory in the commission of any
of the above-mentioned violations: Provided, further, T h a t
this immunity m a y be enjoyed by such informant or witness
notwithstanding that he offered or g a v e bribe or gift to the
public official or is an accomplice for such gift or bribe-giving;
A n d , Provided, finally, T h a t the following conditions concur:
i.
T h e information must refer to consummated v i olations of any of the above-mentioned provisions of law,
rules and regulations;
ii. T h e information and testimony are necessary
for the conviction of the accused public officer;
iii. Such information and testimony are not y e t in
the possession of the State;
i v . Such information and testimony can be corroborated on its m a t e r i a l points; and
v.
T h e informant or witness has not been previously convicted of a crime i n v o l v i n g moral turpitude.
( g ) Republic A c t 6981 also k n o w n as the W i t n e s s Protection, Security and Benefit A c t provides in Sec. 12 thereof:
"Section 12. Effect of Admission of a State Witness
into the Program. — T h e certification of admission into
the P r o g r a m by the D e p a r t m e n t shall be g i v e n full faith
and credit by the provincial or city prosecutor w h o is required not to include the W i t n e s s in the criminal complaint or information and if included therein, to petition
the court for his discharge in order that he can utilized as
a State W i t n e s s . T h e Court shall order the discharge and
exclusion of the said accused from the information.
CHAPTER VII
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(Rule 115)
433
"Admission into the P r o g r a m shall entitle such State
Witness to immunity from criminal prosecution for the
offense or offenses in which his testimony w i l l 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 r i g h t to be present at the trial at e v e r y stage of
the proceedings from a r r a i g n m e n t to the promulgation of the
j u d g m e n t (Sec. l[b], Rule 115, Rules of Court).
U p o n motion, the accused m a y be allowed by the court
to defend h i m s e l f in person w h e n it sufficiently appears to
the court that he can properly protect his rights without the
assistance of counsel (Sec. l[b], Rule 115, Rules of Court).
2.
Pursuant to the stipulations set forth in his bail,
the accused has the r i g h t to w a i v e 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[b], Rule 115, Rules of Court).
3.
T h e w a i v e r of the r i g h t of the accused to be present at
the trial m a y be inferred from his absence without justifiable
cause provided he had prior notice of the said trial (Sec. l[b],
Rule 115, Rules of Court).
4.
In case the accused is under custody and he escapes,
his act shall be deemed to be a w a i v e r to be present on all
subsequent trial dates until custody over h i m is regained (Sec.
lib], Rule 115, Rules of Court).
5.
If the accused is absent during the trial after his
arraignment, trial m a y 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.
W h e n the accused filed a motion for leave to file a
demurrer to evidence which w a s granted by the trial court,
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
and the demurrer w a s eventually denied the trial court should
g i v e 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, " I f
the court denies the demurrer to evidence filed with leave of
court, the accused m a y adduce evidence in his defense."
The right to testify as a witness
1.
T h e accused has the right to testify as a witness in
his own behalf but subject to cross-examination on matters
covered by the direct e x a m i n a t i o n (Sec. l[d], Rule 115, Rules
of Court).
2.
T h e questions that m a y be asked of the accused
in a cross-examination is limited to the matters covered by
the direct examination. T h i s is contrast to the much w i d e r
scope of the cross-examination of an ordinary witness ( w h o is
not the accused). U n d e r Sec. 6 of R u l e 132, the witness m a y
be cross-examined by the adverse party not only as to any
matter stated in the direct e x a m i n a t i o n or those connected
w i t h the matters stated in the direct examination but the
cross examiner is g i v e n "sufficient fullness and freedom" to
ask questions that would test the accuracy and truthfulness of
the witness, his freedom from interest or bias, or the reverse.
T h e witness m a y e v e n be asked questions for the purpose of
eliciting all important facts bearing upon the issue e v e n if
they w e r e 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 w a n t 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.
T h e right to confront the witnesses against him and
cross-examine them are basic constitutional rights embodied
in Sec. 14 ( 2 ) of A r t . I l l of the Philippine Constitution.
CHAPTER VII
RIGHTS OF THE ACCUSED
(Rule 115)
435
2.
T h e 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 g i v e substance to the
constitutional right of the accused to confront the witnesses
against him (People v. Ortillas, 428 SCRA 659).
3.
T h e 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 w i t h quasi-judicial powers, is a fundamental right which
is part of due process.
It is, h o w e v e r , equally true that the right is a personal
one which m a y be w a i v e d expressly or i m p l i e d l y by conduct
amounting to a renunciation of the right of cross-examination.
Thus, w h e r e a party has had the opportunity to cross-examine
a witness but failed to a v a i l h i m s e l f of it, he necessarily
forfeits the r i g h t to cross-examine and the testimony g i v e n on
direct examination of the witness w i l l be received or allowed
to remain in the record (Equitable PCI Banking Corporation
v. RCBC Capital Corporation, G.R. No. 182248, December 12,
2008; People v. Abatayo, 433 SCRA 562). T h e w a i v e r to crossexamine m a y take various forms but common reason suggests
that a w a i v e r m a y occur w h e n the party fails to cross-examine
the witnesses against h i m despite opportunity to do so.
Thus, it w a s held that w h e r e a party has had the opportunity to cross e x a m i n e a witness but failed to avail himself
of it, he necessarily forfeits the right to cross-examine and
the testimony g i v e n 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.
U n d e r the present Rules of Criminal Procedure, the
right of confrontation does not apply in a preliminary inves-
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
tigation. T h e investigating officer during preliminary investigation m a y set a hearing if there are facts and issues to be
clarified from a party or witness. H o w e v e r , w h i l e the parties
are allowed to be present at the hearing, they are "without the
right to examine or cross-examine. T h e y may, however, submit to the investigating officer questions which m a y be asked
to the party or witness concerned" (Sec. 3[e], Rule 112, Rules
of Court).
5.
W h e r e the adverse party is deprived of the right to
cross-examine the persons w h o executed the affidavits, said
affidavits are g e n e r a l l y 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 would not h a v e a
basis to deny a demurrer to evidence (People v. Ortillas, 428
SCRA 659).
6.
If one is deprived of the opportunity to crossexamine without fault on his part, it is g e n e r a l l y held that he
is entitled to h a v e the direct e x a m i n a t i o n stricken form the
record (People v. Seneris, 99 SCRA 92).
Right to use testimony of a deceased witness
1.
Either party (the prosecution or the defense), m a y
utilize as part of its evidence the testimony of a witness w h o
is deceased, out of or cannot without due diligence be found
in the Philippines, unavailable or otherwise unable to testify,
g i v e n in another case or proceeding, judicial or administrative
provided they i n v o l v e the same parties and subject matter
and the adverse party had the opportunity to cross-examine
him (Sec. Iff], Rule 115, Rules of Court).
2.
A similar provision is found under the Rules of E v i dence, as an exception to the rule which bars hearsay evidence.
Thus, "The testimony or deposition of a witness deceased or
unable to testify, g i v e n in a former case or proceeding, judicial or administrative, i n v o l v i n g the same parties and subject
matter, may be given in evidence against the adverse party
CHAPTER VII
RIGHTS OF THE ACCUSED
(Rule 115)
437
who had the opportunity to cross-examine him" (Sec. 47, Rule
130, Rules of Court).
F o r the provision to apply the following requisites must
be satisfied:
( a ) the witness is dead or unable to testify; ( b ) his
testimony or deposition w a s g i v e n in a former case or
proceeding, judicial or administrative b e t w e e n the same
parties or representing the same interests; ( c ) the former
case i n v o l v e d 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 i n v o l v e d 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.
T h i s right m a y be i n v o k e d by the accused to secure
the attendance of witnesses and the production of witnesses
in his behalf. T h i s is a constitutional r i g h t embodied in Sec.
14(2), A r t . 3 of the Bill of Rights.
2.
In connection w i t h this right, the accused m a y m o v e
the court for the issuance of a subpoena ad testificandum or a
subpoena duces tecum pursuant to the provisions of Rule 20 of
the Rules of Court.
In case of the failure of the witness to attend, the court
or j u d g e issuing the subpoena, upon proof of the service of
such subpoena and proof of his failure to attend, m a y issue a
w a r r a n t for his arrest (Sec. 8, Rule 20, 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
r e v i e w and the appellate court m a y correct even unassigned
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
errors (People v. Montinola, 543 SCRA 412; People v. Jabiniao,
Jr., 553 SCRA 769; Lao v. People, 556 SCRA 120; People v.
Tambis, 560 SCRA 343).
T h e above rule is in contrast to the rule in a civil case.
In a civil case, as a rule, an unassigned error w i l l not be considered by the appellate court unless such error affects the
jurisdiction of the court, affects the validity of the j u d g m e n t
appealed from, or the error is closely related to or dependent
upon the assigned error properly argued in the brief, or w h e n
the error is simply plain or clerical (Sec. 8, Rule 51, Rules of
Court).
3.
An established rule in appellate r e v i e w is that the
trial court's findings, its assessment of the credibility of the
witnesses and the probative w e i g h t of their testimonies, as
w e l l as the conclusions d r a w n 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 w e i g h t and influence which h a v e been
overlooked and, if considered, w o u l d affect the result (People
v. Sison, 555 SCRA 156; People v. Tormis, 574 SCRA 903).
Generally, the findings of the trial court r e l a t i v e to
the credibility of the v i c t i m are n o r m a l l y respected and not
disturbed on appeal (People v. Coja, 555 SCRA 176).
4.
T h e fact that the j u d g e w h o penned the decision w a s
not the j u d g e w h o heard the testimonies of the witnesses is
not enough reason to overturn the findings of fact of the trial
court on the credibility of the witnesses (People v. Ranin, Jr.,
555 SCRA 297).
— oOo -
CHAPTER VIII
ARRAIGNMENT AND PLEA
(Rule 116)
A. BASIC CONCEPTS
Meaning and importance of arraignment (Bar 2007)
1.
An a r r a i g n m e n t is that stage w h e r e , in the mode
and manner required by the Rules, an accused, for the first
time, is g r a n t e d the opportunity to k n o w the precise charge
that confronts h i m (Brig Gen. [Ret.] Jose Ramiscal, Jr. v. Sandiganbayan and People of the Philippines, G.R. No. 17247699, September 15, 2010).
A r r a i g n m e n t is the formal mode and m a n n e r of implementing the constitutional r i g h t 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). A r r a i g n m e n t
is not an e m p t y ritual that should be taken lightly (Gamas v.
Oco, 425 SCRA 588).
2.
A r r a i g n m e n t 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. T h u s , a r r a i g n m e n t cannot be regarded lightly
or brushed aside peremptorily (People v. Espinosa, 409 SCRA
256).
3.
W i t h o u t a prior arraignment, the accused cannot
invoke double jeopardy (Miranda v. Tuliao, 486 SCRA 377).
N o t e too that if the accused has not been arraigned, he cannot
be tried in absentia.
439
440
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
Duty of the court before arraignment
1.
Before arraignment, the court shall ( a ) inform the
accused of his right to counsel; ( b ) ask h i m if he desires to
have one; and ( c ) must assign a counsel de officio to defend h i m
unless the accused ( i ) is allowed to defend himself in person;
or ( i i ) has employed a counsel of his choice (Sec. 6, Rule 116,
Rules of Court).
T h i s duty is m a n d a t o r y and the only instance w h e n
the court can arraign without the benefit of counsel is if the
accused w a i v e s such right and the court, finding the accused
capable, allows h i m to represent h i m s e l f in person. If the
accused informs the court that he cannot afford a l a w y e r , and
the court has not a l l o w e d the accused to represent h i m s e l f or
the accused is incapable of r e p r e s e n t i n g himself, the j u d g e
has the duty to appoint a counsel de oficio to g i v e m e a n i n g and
substance to the constitutional r i g h t of the accused to counsel
(Gamas v. Oco, 425 SCRA 588).
T h e insistence of the accused to be arraigned without
representation is no reason for the j u d g e to accede readily to
his wishes (Gamas v. Oco, 425 SCRA 588).
2.
T h e court shall appoint as counsel de officio members
of the bar in good standing w h o , by reason of their experience
and ability, can competently defend the accused. In localities
w h e r e members of the bar are not available, the court m a y
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).
3.
T h e counsel de officio shall be g i v e n a reasonable t i m e
to consult w i t h the accused as to his plea before proceeding
w i t h the arraignment (Sec. 8, Rule 116, Rules of Court).
Options of the accused before arraignment and plea
1.
Before arraignment and plea, the accused m a y avail
of any of the following:
( a ) Bill of particulars — T h e accused may, before
arraignment, m o v e for a bill of particulars to enable him
CHAPTER VIII
ARRAIGNMENT AND PLEA
(Rule 116)
441
to properly plead and prepare for trial. T h e 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 a y e a r 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 a r r a i g n m e n t — U p o n motion, the
proper party m a y ask for the suspension of the arraignm e n t in the following cases:
( i ) T h e accused appears to be suffering from an
unsound m e n t a l condition w h i c h effectively renders
h i m unable to fully understand the charge against
h i m and to plead i n t e l l i g e n t l y thereto. In such case,
the court shall order his m e n t a l examination and, if
necessary, his confinement for such purpose;
( i i ) A s i d e from suspension of the arraignment,
the trial court is mandated to order the confinement
of an accused w h o is m e n t a l l y 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).
( i i i ) T h e r e exists a prejudicial question; and
( i v ) T h e r e is a petition for r e v i e w of the resolution of the prosecutor which is pending at either
the D e p a r t m e n t of Justice, or of the Office of the
President. T h e period of suspension shall not exceed
sixty ( 6 0 ) days counted from the filing of the petition
w i t h the r e v i e w i n g office (Sec. 11, Rule 116, Rules of
Court).
Section 11(c), Rule 116, which directs the trial court
to suspend the arraignment w h e r e there is a pending petition w i t h the D e p a r t m e n t of Justice ( D O J ) or the Office
of the President ( O P ) , is qualified by the proviso stating
442
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
that the period of suspension shall not exceed 60 days
counted from the filing of the petition w i t h the reviewing office (Adasa v. Abalos, 516 SCRA 261, February 19,
2007).
Jurisprudence is clear that w i t h the arraignment of
the accused, the D O J Secretary can no longer entertain
the appeal or petition for r e v i e w because petitioner had
already w a i v e d or abandoned the same (Gandarosa v.
Flores, 527 SCRA 776, July 17, 2007).
( c ) M o t i o n to quash — At any t i m e before entering
his plea, the accused m a y m o v e to quash the complaint
or information on any of the grounds provided for under
Sec. 3 of R u l e 117, in relation to Sec. 1 of Rule 117.
( d ) C h a l l e n g e the v a l i d i t y of arrest or legality of the
w a r r a n t issued or assail the regularity or question the
absence of a p r e l i m i n a r y 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 m a d e
at or before the a r r a i g n m e n t , otherwise the objection is
deemed w a i v e d (People v. Lozada, 406 SCRA 494; People
v. Bagsit, 409 SCRA 350). T h e principle that the accused
is precluded from questioning the l e g a l i t y of his arrest
after a r r a i g n m e n t 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).
T h e arraignment of the accused constitutes a w a i v e r
of the right to preliminary investigation or reinvestigation. Such w a i v e r 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
the Ombudsman should have suspended his arraignment. A c cording to the Supreme Court, the Rules of Procedure of the
Ombudsman allows the filing of an information in court pend-
CHAPTER VIII
ARRAIGNMENT AND PLEA
(Rule 116)
443
ing 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 a r r a i g n m e n t 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 R e v i s e d Internal Rules of the Sandiganbayan. Thus, the Sandiganbayan committed no error w h e n it
proceeded w i t h 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 m a d e before a court that has no jurisdiction over
the criminal action does not g i v e rise to double j e o p a r d y
(Zapatos v. People, 411 SCRA 148).
Arraignment under an amended information; substituted information
1.
W h e r e the accused has been already arraigned and
subsequently, the information w a s 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. Conception, 95 Phil. 87).
2.
W h e r e the a m e n d m e n t 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
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
has to plead anew to the n e w information (Teehankee, Jr. v.
Madayag, 207 SCRA 134).
B. HOW ARRAIGNMENT AND PLEA ARE MADE
Where arraignment is to be made
T h e accused must be arraigned before the court w h e r e
the complaint or information w a s filed or assigned for trial
(Sec. l[a], Rule 116, Rules of Court).
How arraignment is made
T h e a r r a i g n m e n t is m a d e in open court by the j u d g e or
clerk by furnishing the accused w i t h a copy of the complaint
or information, reading the same in the language or dialect
known to him, and asking h i m w h e t h e r he pleads guilty or not
guilty (Sec. l[a], Rule 116, Rules of Court).
When arraignment is to be made
1. U n d e r the Rules of Court, the a r r a i g n m e n t shall be
held within thirty ( 3 0 ) days from the date the court acquires
jurisdiction over the person of the accused, unless a shorter
period is provided by a special l a w or a S u p r e m e Court Circular
(Sec. l[g], Rule 116, Rules of Court). In computing the period,
the following shall be excluded: ( a ) the t i m e of the pendency
of a motion to quash; ( b ) the t i m e 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.
T h e a r r a i g n m e n t of an accused shall be held within thirty ( 3 0 ) days from the filing of the information, or from
the date the accused has appeared before the justice, j u d g e or
court in which the charge is pending, whichever date last occurs. Thereafter, w h e r e a plea of not guilty is entered, the accused shall h a v e at least fifteen ( 1 5 ) days to prepare for trial.
T r i a l shall commence w i t h i n thirty ( 3 0 ) days from arraignment as fixed by the court (Sec. 7 of The Speedy Trial Act of
1998
[R.A.8493]).
If the accused pleads not guilty to the crime charged,
he/she shall state whether he/she interposes a negative or
CHAPTER VIII
ARRAIGNMENT AND PLEA
(Rule 116)
445
affirmative defense. A negative defense shall require the prosecution to prove the guilt of the accused beyond reasonable
doubt, w h i l e an affirmative defense m a y 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.
W h e n the accused is under p r e v e n t i v e detention, his
case shall be rained and its records transmitted to the j u d g e
to w h o m the case w a s raffled w i t h i n three ( 3 ) days from the
filing of the information or complaint. T h e accused shall be
arraigned w i t h i n ten ( 1 0 ) days from the date of the raffle and
the pre-trial conference shall be held w i t h i n ten ( 1 0 ) days
after arraignment (Sec. l[e], Rule 116, Rules of Court).
Arraignment after submission of the case for decision
M a y a r r a i g n m e n t be m a d e after a case has been submitted
for decision? T h e question w a s a n s w e r e d by the Supreme
Court in the affirmative.
In a case, accused appellant assailed his conviction because he claimed that he w a s not properly arraigned. Since it
appeared that he w a s a r r a i g n e d only after the case w a s 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 a r r a i g n m e n t did not cure the defect in
the trial proceedings because at the t i m e the petition for bail
was heard, the trial court had not y e t acquired jurisdiction
over his person.
Brushing aside the contentions, the Court emphatically
stated:
"Appellant is mistaken. W h e n the hearings for his
petition for bail w e r e conducted, the trial court had already acquired jurisdiction o v e r his person. Settled is the
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
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
person o f the appellant w h e n h e w a s arrested x x x . H i s
arrest, not his arraignment, conferred on the trial court
jurisdiction over his person.
" A r r a i g n m e n t 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. T h e 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 v e r y least to inform h i m of w h y the prosecuting a r m of the State is mobilized against him.
" A d m i t t e d l y , appellant w a s arraigned after the case
w a s submitted for decision. T h e question is: W e r e appellant's rights and interests prejudiced by the fact that he
was arraigned only at this stage of the proceedings?
" W e do not think so. A p p e l l a n t ' s belated a r r a i g n m e n t
did not prejudice him. T h i s procedural defect w a s cured
when his counsel participated in the trial without raising any objection that his client had y e t to be arraigned.
In fact, his counsel e v e n cross-examined the prosecution
witnesses. H i s counsel's active participation in the hearings is a clear indication that he w a s fully a w a r e of the
charges against him; otherwise, his counsel would h a v e
objected and informed the court of this blunder. M o r e over, no protest w a s m a d e w h e n appellant w a s subsequently arraigned. T h e parties did not question the procedure undertaken by the trial court. It is only now, after
being convicted and sentenced to t w o death sentences,
that appellant cries that his constitutional right has been
violated. It is already too late to raise this procedural defect. T h i s Court w i l l not allow it. x x x Since appellant's
rights and interests w e r e 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
SCRA 358 citing People v. Cabale, 185 SCRA 140, People
v. Atienza, 86 Phil. 576; Underscoring supplied).
CHAPTER VIII
ARRAIGNMENT AND PLEA
(Rule 116)
447
Record of arraignment
T h e arraignment and plea shall be made of record, but
failure to do so shall not affect the validity of the proceedings
(Sec. Ifb], Rule 116, Rules of Court).
Presence of the accused
T h e accused must be present at the arraignment and
must personally enter his plea (Sec. Ifb], Rule 116, Rules of
Court).
Presence of the offended party
1.
T h e p r i v a t e offended party shall be required to
appear at the a r r a i g n m e n t for the following purposes: ( a ) plea
bargaining, ( b ) determination of civil liability, and ( c ) other
matters requiring his presence (Sec. Iff], Rule 116, Rules of
Court).
2.
In case the offended party fails to appear despite
due notice, the court m a y allow the accused to enter a plea
of guilty to a lesser offense w h i c h is necessarily included in
the offense charged w i t h the conformity of the trial prosecutor
alone (Sec. Iff], Rule 116, Rules of Court).
When a plea of 'not guilty' shall be entered (Bar 1992; 1993;
1996)
1.
A s i d e 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 ) w h e n he pleads guilty but presents exculpatory
evidence in which case the guilty plea shall be w i t h d r a w n and
a plea of not guilty shall be entered (Sec. l[d], Rule 116, Rules
of Court);or ( d ) w h e n he so clearly pleads guilty.
2.
N o t e than w h e n 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).
3.
W h e n the accused admits the facts in the information
but alleges that he performed the acts as charged because he
448
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
feared for his life, it is proper to enter a plea of not guilty
(People v. Baetiong, 2 Phil. 126).
4.
W h e n the accused pleads guilty but it can be inferred
from the arguments m a d e by his counsel and in his appeal
brief that the accused is asking that a certain penalty be
imposed upon him in v i e w of some m i t i g a t i n g 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 rule presupposes that the plea of guilty is conditioned
upon the imposition of a lesser penalty and not a m e r e request
to be meted a lesser penalty after a plea of guilty. T h e 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. T h e Court held that w h i l e it is true
that accused-appellant requested for a lesser penalty, such
does not m a k e his plea of g u i l t y conditional. It remains to be
an admission of the facts alleged in the information charging
robbery w i t h homicide. At most, said plea for a lesser penalty
is an appeal to emotion as it does not assail, restrict or qualify
the information.
T h e 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 m e r e l y submitted the
case for decision. A l t h o u g h 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 o w n the crime.
H i s claim, therefore, that his plea of guilty is conditional
is inconsistent w i t h his candor, spontaneity and insistent
admission of guilt in the trial court. Clearly, added the Court,
this change in his stand is m e r e l y a belated and unconvincing
effort to avoid conviction.
5.
W h e n 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
CHAPTER VIII
ARRAIGNMENT AND PLEA
(Rule 116)
449
and unconditionally his guilt and responsibility for the offense
imputed to him. Hence, an accused m a y not foist a conditional
plea of guilty on the court by admitting his guilt provided that
a certain penalty w i l l be meted unto him. Accused-appellant's
plea of guilty is undoubtedly a conditional plea. Hence, the
trial court should h a v e 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 j u d g m e n t m a y be rendered (People v.
Magat, 332 SCRA 517).
6.
An accused m a y not foist a conditional plea of guilty
on the court in the sense that he admits his guilt provided
that a certain penalty w i l l be m e t e d unto him. L i k e w i s e , 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 e x e m p t or r e l i e v e 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, e v e r y t i m e he was asked about
the specific allegations of the information, he denied the
specific allegations about the killing of the victim. W h e n
interrogated further to explain w h y he answered in the
negative considering that he had entered a guilty plea and
specifically queried as to whether he m e a n t to say that he did
not attack, that he did not assault, that be did not stab, that he
did not choke and strangle the victim to death, he manifested
an outright denial and that he asserted that he did not do any
of those acts attributed to him. He consistently answered "no"
e v e r y time to each question on whether or not he did the acts
mentioned in the information. It is well-settled, continued the
court, that w h e n a plea of guilty is not definite or ambiguous,
or not absolute, the same amounts to a plea of not guilty.
8.
In People v. Balisacan, 17 SCRA 1119, the accused
had first entered a plea of guilty. Subsequently, however, he
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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
a n e w on the charge, or at least direct that a n e w plea of not
guilty be entered for him. Since this w a s not done, it follows
that in effect was no standing plea at the time the court a quo
rendered its j u d g m e n t of acquittal.
Plea of guilty is a judicial confession; effect on aggravating
circumstances
1.
A plea of guilty is a judicial confession of guilt — an
admission of all the material facts alleged in the information,
including the a g g r a v a t i n g circumstances alleged (People v.
Comendador, G.R. No. L-38000, September 19, 1980).
A plea of guilty admits the truth of all the material facts
alleged in the information, including all the a g g r a v a t i n g
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 a g g r a v a t i n g circumstances listed therein
(People v. Busa, G.R. No. L- 32047, June 25, 1973).
2.
Conclusions of l a w are not h o w e v e r , admitted by
a plea of guilty (People v. De la Cruz, 82 Phil. 338) because
conclusions of l a w are not facts.
Thus in one case, w h i l e 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 w a s not an admission that
the acts charged w e r e 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, 1975 citing
People v. Santos Lopez, 45 O.G. [No. 5] 2089).
Exception to the admission of aggravating circumstances
1.
W h i l e the rule is that a judicial confession of guilt
admits all the material facts alleged in the information in-
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451
eluding the a g g r a v a t i n g circumstances listed therein, if such
circumstances are disproved by the evidence, it should be disallowed in the j u d g m e n t . Thus, the Court ruled that when an
accused pleads guilty to the crime of parricide described in the
information as h a v i n g been committed w i t h the aggravating
circumstances of treachery and evident premeditation and his
testimony g i v e n under oath before the trial court fails to show
the existence of such a g g r a v a t i n g circumstances, his plea of
guilty shall be understood as being to the admission of h a v i n g
committed the crime of parricide, not of h a v i n g done so w i t h
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 w h e r e 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.
T h e evidence m a y disprove the existence of aggrav a t i n g circumstances despite the plea of guilty because a plea
of guilty does not dispense w i t h the presentation of evidence.
W h e n the accused pleads guilty to a non-capital offense, the
court m a y receive evidence to d e t e r m i n e the penalty to be imposed pursuant to Sec. 4 of R u l e 116. If the plea is to a capital
offense the prosecution shall be required to prove the guilt of
the accused and the precise d e g r e e of his culpability as mandated by Sec. 3 of R u l e 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 w o r k a mutually satisfactory disposition of the case subject to court approval. It
usually involves the defendant's pleading guilty to a lesser
offense or to only one or some of the counts of a multi-count
indictment in return for a lighter sentence than that for the
g r a v e r charge (Daan v. Sandiganbayan, G.R. Nos. 163972-77,
March 28, 2008).
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
Requisites for a plea of guilty to a lesser offense
1.
During the arraignment, the accused may plead
guilty to a lesser offense. T h e court shall allow the plea
provided the following requisites concur:
( a ) T h e lesser offense is necessarily included in the
offense charged; and
( b ) T h e plea must be w i t h the consent of both the
offended party and the prosecutor (Sec. 2, Rule 116,
Rules of Court). T h e consent of the offended party w i l l
not be required if said party, despite due notice, fails to
appear during the a r r a i g n m e n t (Sec. Iff], Rule 116, Rules
of Court).
2.
T h e 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 R u l e 116 of the Rules of Court present the
basic requisites upon which plea b a r g a i n i n g m a y be made,
i.e., that it should be w i t h the consent of the offended party
and the prosecutor, and that the plea of guilt should be to
a lesser offense w h i c h is necessarily included in the offense
charged. T h e rules h o w e v e r , used the w o r d may in the second
sentence of Sec. 2, denoting an exercise of discretion upon the
trial court on w h e t h e r to allow the accused to m a k e such plea.
T r i a l courts are exhorted to k e e p 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 m a y be said to necessarily include another
when some of the essential elements or ingredients of the
former as alleged in the complaint or information constitute
the latter — and vice versa, an offense m a y be said to be
necessarily included in another when the essential ingredients
of the former constitute or form part of those constituting the
CHAPTER VIII
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(Rule 116)
453
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
1.
A l t h o u g h as a rule, a plea of guilty to a lesser offense
is m a d e during arraignment, a plea of guilty to a lesser offense
m a y be allowed e v e n after the a r r a i g n m e n t and after a plea of
guilty.
A f t e r the arraignment, a plea of guilty to a lesser offense
m a y still be allowed provided the following requisites are
present:
(a)
T h e plea o f g u i l t y i s w i t h d r a w n ;
( b ) T h e plea of not guilty and the w i t h d r a w a l of the
previous guilty plea shall be m a d e before trial;
( c ) T h e lesser offense is necessarily included in the
offense charged; and
( d ) T h e plea must h a v e the consent of the prosecutor and the offended p a r t y (Sec. 2, Rule 116, Rules of
Court; People v. Dawaton, 389 SCRA 277). T h e consent of
the latter shall not be required if said party fails to appear during the a r r a i g n m e n t despite due notice (Sec. Iff],
Rule 116, Rules of Court). F o r this purpose, no amendm e n t of the complaint or information is necessary (Sec. 2,
Rule 116, Rules of Court).
2.
Ordinarily, under the phraseology of the Rules of
Court, plea bargaining is earlier considered during the pretrial stage of the proceedings. One of the purposes of a pretrial conference is to consider plea bargaining (Sec. l[a], Rule
118, Rules of Court) although it is made at the arraignment
(Sec. 2, Rule 116, Rules of Court). It has been held however,
that it m a y also be considered during the trial proper and
even after the prosecution has finished presenting and rested
its case. It is i m m a t e r i a l that plea bargaining was not made
during the pre-trial stage or that it w a s made only after the
prosecution already presented several witnesses (Daan v.
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
Sandiganbayan, G.R. Nos. 163972-77,
People v. Mamarion, 459 Phil. 51).
March 28, 2008 citing
3.
It is incumbent upon a trial j u d g e to ascertain and
be fully convinced that the plea of guilty w a s 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
W h e n there is a plea to a lesser offense and the same
w a s 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
equivalent to a conviction of the offense charged for purposes
of double j e o p a r d y (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 g u i l t y m a d e after a r r a i g n m e n t and after
trial had begun does not entitle the accused to h a v e such plea
considered as m i t i g a t i n g (People v. Ibanez, 407 SCRA 406).
2.
In a case, an information for murder qualified by
treachery and evident premeditation w a s filed against the
accused. W h e n first arraigned, he pleaded not guilty but
during the pre-trial he offered to plead g u i l t y to the lesser
offense of homicide but w a s rejected by the prosecution, hence,
the case proceeded to trial. T h e accused w a s found by the trial
court guilty of murder qualified by treachery and sentenced to
death.
T h e accused argues that trial court erred in imposing
the death penalty despite the attendance of m i t i g a t i n g and
alternative circumstances in his favor. He avers that he is
entitled to the m i t i g a t i n g circumstance of plea of guilty because
he earlier pleaded guilty to the lesser offense of homicide.
T h e Court disagreed. It w e n t on to state that w h i l e the
accused offered to plead guilty to the lesser offense of homicide,
he was charged w i t h murder for which he had already entered
a plea of not guilty. An offer to enter a plea of guilty to a lesser
CHAPTER VIII
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455
offense cannot be considered as an attenuating circumstance
under the provisions of A r t . 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.
W h e n the accused pleads guilty to a capital offense,
it is not proper for the court to i m m e d i a t e l y render j u d g m e n t
on the basis of the guilty plea. Instead, the court is mandated
to perform the following acts:
( a ) To conduct a searching inquiry to ascertain ( i )
the voluntariness of the plea, and ( i i ) 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 ( i i ) the precise degree
of his culpability; and
( c ) To ask the accused if he wishes to present evidence and a l l o w the accused to present evidence in his behalf w h e n he so desires (Sec. 3, Rule 116, Rules of Court;
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).
T h e process is mandatory and absent any showing that
that it has been duly observed, a searching inquiry cannot
said to h a v e been aptly undertaken (People v. Oden, 427 SCRA
634). A m e r e w a r n i n g that the accused faces the supreme
penalty of death is insufficient (People v. Principe, 381 SCRA
642).
T h e 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 w a s voluntary
and w i t h full comprehension of the consequences of the plea.
T h e court shall still require the prosecution to prove the guilt
of the accused and the precise degree of his culpability.
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
T h e 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 w e l l as the consequences of his plea. It is
an unconditional admission of guilt w i t h respect to the offense
charged (People v. Mendoza, 231 SCRA 264).
2.
W h e n a plea of guilty to a capital offense is entered,
there are three ( 3 ) conditions that the trial court must observe
to obviate an i m p r o v i d e n t 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
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 w h e t h e r he desires
to present evidence on his behalf, and allow h i m to do so if he
so desires (People v. Gumimba, 517 SCRA 25, February 27,
2007; People v. Ernas, 408 SCRA 391).
T h e 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 n o w 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 w o r d s , notwithstanding
the plea of guilt, 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. A n d "the accused m a y also present evidence
in his behalf" either to rebut the prosecution's evidence or
to show the presence of m i t i g a t i n g circumstances (People v.
Francisco, G.R. No. 192818, November 17, 2010).
An earlier case likewise held that w h e n an accused pleads
guilty to a capital offense, the court shall conduct a searching
inquiry into the voluntariness and full comprehension of the
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(Rule 116)
457
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 i n v o l v i n g a conviction for kidnapping
w i t h rape of a minor w h e r e 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 18, a case w h e r e the Court ruled
that "there is no definite and concrete rule as to how a trial
j u d g e must conduct a 'searching inquiry," but nevertheless
came up w i t h the following guidelines:
( a ) A s c e r t a i n from the accused himself ( 1 ) how he
was brought into the custody of the l a w ; ( 2 ) w h e t h e r he
had the assistance of a competent counsel during the
custodial and p r e l i m i n a r y investigations; and ( 3 ) under
w h a t conditions he w a s detained and interrogated during
the investigations. T h i s 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 h a r m coming from m a l e v o l e n t quarters or simply because of the judge's i n t i m i d a t i n g robes.
( b ) A s k the defense counsel a series of questions
as to w h e t h e r he had conferred w i t h , and completely explained to, the accused the m e a n i n g 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 m a y serve as a trustw o r t h y index of his capacity to g i v e a free and informed
plea of guilty.
( d ) Inform the accused the exact length of imprisonment or nature of the penalty under the l a w and the
certainty that he w i l l serve such sentence. F o r not infrequently, observed the Court, an accused pleads guilty
in the hope of a lenient treatment or upon bad advice
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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 j u d g e to ensure that the accused does
not labor under these mistaken impressions because a
plea of guilty carries w i t h 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 w i t h
which he is charged and fully explain to him the elements
of the crime which is the basis of his indictment. Failure
of the court to do so w o u l d constitute a violation of his
fundamental r i g h t to be informed of the precise nature
of the accusation against him and a denial of his right to
due process.
( f ) A l l questions posed to the accused should be in
a language k n o w n and understood by the latter.
( g ) T h e trial j u d g e must satisfy h i m s e l f that the
accused, in pleading guilty, is truly guilty. T h e accused
must be required to narrate the t r a g e d y or reenact the
crime or furnish its missing details (People v. Pastor, 379
SCRA 18; People v. Mira, 535 SCRA 543).
T h e Court found in People v. Talusan that the guidelines
w e r e complied w i t h in the case under consideration and that
there w a s no i m p r o v i d e n t g u i l t y plea under the circumstances
as it reiterated the rule that w h i l e there is thus no hard and
fast rule as to h o w a j u d g e m a y 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.
T h e Court in Talusan continued to state that even
assuming arguendo that appellant entered an improvident
plea of guilt w h e n arraigned, there is no compulsion to
remand the case to the trial court for further reception of
evidence. W h i l e 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, w h e r e the trial court
receives evidence to determine precisely w h e t h e r the accused
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(Rule 116)
459
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, w h i l e the convictions based on pleas of guilty
to capital offenses h a v e been set aside because of the improvidence of the plea, the same holds true only w h e n such plea is
the sole basis of the j u d g m e n t (People v. Ceredon 542 SCRA
550 January 28, 2008).
Plea of guilty to a non-capital offense
1.
W h e n the accused pleads guilty to a non-capital
offense, the court m a y receive evidence from the parties to
determine the penalty imposed (Sec. 4, Rule 116, Rules of
Court).
N o t i c e that the duty imposed upon the court under this
section is not as stringent as the duty imposed upon it w h e n
the accused pleads guilty to a capital offense. Thus, in People v.
Madraga, 334 SCRA 628, it w a s ruled that w h e n 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.
T h e r e 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 m a y be considered to convince the j u d g e that it was
intelligently made. W h e n the accused pleads guilty to a noncapital offense, the court m a y receive evidence from the parties
to determine the penalty to be imposed. T h i s rule is at most
directory. It will certainly be a clear abuse of discretion on the
part of the j u d g e 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
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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.
W h e r e the trial court failed in its duty to conduct
the prescribed "searching inquiry" into the voluntariness of
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).
2.
In one case, the appellant w a s not fully apprised of
the consequences of his guilty plea. In fact, as argued by appellant, "the trial court should h a v e informed h i m that his
plea of guilty would not affect or reduce the imposable penalty, which is death as he m i g h t have erroneously believed
that under A r t . 63, the death penalty, being a single indivisible penalty, shall be applied by the court regardless of any
mitigating circumstances that m i g h t h a v e attended the commission of the deed." M o r e o v e r , the trial court j u d g e failed to
inform appellant of his right to adduce evidence despite the
guilty plea. W i t h the trial court's failure to comply with the
guidelines, appellant's guilty plea is d e e m e d improvidently
made and thus rendered inefficacious (People of the Philippines v. Oscar Documento, G.R. No. 188706, March 17, 2010).
3.
W h e n there is an i m p r o v i d e n t plea of guilty, it does
not mean that the case should be r e m a n d e d to the trial court.
This course of action is appropriate only w h e n 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 j u d g m e n t 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). T h e manner by which
the plea of guilt is made, whether improvidently or not, loses
much of great significance w h e r e the conviction can be based
CHAPTER VIII
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(Rule 116)
461
on independent evidence proving the commission by the
person accused of the offense charged (People v. Oden, 427
SCRA 634).
4.
An improvident plea of guilty m a y be withdrawn
even during trial or e v e n after j u d g m e n t provided ( a ) the
w i t h d r a w a l is m a d e prior to the finality of the j u d g m e n t of
conviction, and ( b ) the w i t h d r a w a l is permitted by the court
(Sec. 5, Rule 116, Rules of Court).
5.
W h e n w i t h d r a w n , the previous plea of guilty shall
be substituted by a plea of not guilty (Sec. 5, Rule 116, Rules
of Court).
Production or inspection of material evidence
1.
R u l e 116 allows a mode of discovery aside from
those a l l o w e d in other parts of the Rules of Court. Sec.
10 thereof authorizes the court, to issue an order to the
prosecution to produce and p e r m i t the inspection and copying
or photographing of any w r i t t e n statement g i v e n by the
complainant and other witnesses in any investigation of the
offense conducted by the prosecution or other investigating
officers, as w e l l as any designated documents, papers, books,
accounts, letters, photographs, objects, or tangible things not
otherwise p r i v i l e g e d , which constitute or contain evidence
material to any matter i n v o l v e d in the case and which are in
the possession or under the control of the prosecution, police
or other l a w investigating agencies (Sec. 10, Rule 116, Rules
of Court).
2.
T h e 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.
T h e purpose of the rule in a l l o w i n g 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.
T h e motion to quash m a y 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 m a t t e r or failure to comply w i t h the barangay
conciliation proceedings in Sec. 18 of the 1991 Rule on
Summary Procedure (Sec. 19, Rule on Summary Procedure).
( B a r 1989)
Form and contents of the motion to quash
T h e rule does not permit an oral motion to quash. T h e
motion shall be in w r i t i n g . T h e motion must then comply w i t h
the following requisites:
(a)
T h e motion shall be in w r i t i n g ;
( b ) T h e motion shall be signed by the accused or his
counsel;
(c)
T h e 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
462
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(Rule 117)
463
after the prosecution rests its case (Sec. 23, Rule 119, Rules of
Court) and hence, presupposes that the accused has already
entered his plea and is in fact already going through a trial.
2.
Rule 117 does not require a prior leave of court for
the filing of a motion to quash. U n d e r R u l e 119, a demurrer
to evidence m a y be filed by the accused either w i t h leave or
without leave of court.
3.
T h e grounds for a motion to quash are not grounds for
a demurrer to evidence. U n d e r Sec. 23 of R u l e 119, the ground
for a demurrer to evidence is "insufficiency of evidence." Such
ground is not a basis for filing a motion to quash.
4.
T h e ground for a motion to quash m a y be based on
the matters found on the face of the complaint or information
as w h e n 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.
5. W h e n a motion to quash is granted, a dismissal
of the case w i l l not necessarily follow. T h e court m a y even
order the filing of a n e w complaint or information because an
order sustaining the motion is g e n e r a l l y not a bar to another
prosecution (Sec. 4, Sec. 5, Rule 117). T h e grant of a demurrer
to evidence on the ground of insufficiency of evidence is, by
jurisprudence, d e e m e d an acquittal and would preclude the
filing of another information or an appeal by the prosecution
(People v. Declaro, 170 SCRA 142; Condrada v. People, 398
SCRA 482).
6.
If the court, in denying the motion to quash acts
without or in excess of jurisdiction or w i t h g r a v e 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 "shall not be r e v i e w a b l e by appeal or by certiorari
before judgment."
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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. T h e only ground which the court m a y 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 since it w a s 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 m a y be subject to a
motion to quash on any of the f o l l o w i n g grounds (Sec. 3, Rule
117, Rules of Court):
( a ) T h a t the facts charged do not constitute an offense; ( B a r 1987)
( b ) T h a t the court t r y i n g the case has no jurisdiction over the subject matter;
( c ) T h a t the court t r y i n g the case has no jurisdiction over the person of the accused;
( d ) T h a t the officer w h o filed the information had
no authority to do so; ( B a r 2000)
( e ) T h a t it does not conform substantially to the
prescribed form;
( f ) T h a t more than one offense is charged except
w h e n a single punishment for various offenses is prescribed by law; ( B a r 1996; 2005)
( g ) T h a t the criminal action or liability has been
extinguished;
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( h ) T h a t it contains averments which, if true, would
constitute a legal excuse or justification;
( i ) T h a t the accused has been previously convicted
or acquitted of the offense charged, or the case against
him w a s 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.
T h e 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.
In criminal cases, an affidavit of desistance or pardon is not a ground for the dismissal of an action, once the
action has been instituted in court (Cabico v. DimaculanganQuerijero, 522 SCRA 300; Sta. Catalina v. People, 571 SCRA
112). 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. Salazar, G.R. No. 181900, October 20, 2010).
3.
In People v. Salazar, the accused-appellant claims
that the case should h a v e been dismissed by the trial court,
considering that the alleged v i c t i m had executed an affidavit
of desistance exonerating h i m from the crimes charged.
T h e Court rejected the a r g u m e n t of the accused-appellant.
As a rule, explained the Court, a recantation or an affidavit
of desistance is v i e w e d w i t h 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. M o r e o v e r , 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
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
most the retraction is an afterthought which should not be
g i v e n probative value (People of the Philippines v. Roy Alcazar
y Miranda, G.R. No. 186494, September 15, 2010).
Absence of probable cause not a ground to quash an information
1. T h e absence of probable cause for the issuance of
a w a r r a n t 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 t e r m "to
quash" to m e a n "to annul, vacate or overthrow," i m p l y i n g
that quashing an information does not necessarily mean its
dismissal. N o t e that w h e n a motion to quash is sustained, the
court m a y in fact, order that another complaint or information
be filed under the conditions set forth in Sees. 5 and 6 of Rule
117 (People v. Sandiganbayan, 439 SCRA 390).
Matters of defense are not grounds for a motion to quash
1.
As a rule, m a t t e r s of defense are not grounds for a
motion to quash (People v. Miranda, 2 SCRA 261). Thus, if the
accused files a motion to quash the information for homicide
because he only acted in self-defense, and such fact is not
alleged in the information, the court should proceed w i t h the
case and determine the v a l i d i t y and truth of the defense in a
full-blown trial.
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 a v e r m e n t s 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).
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Absence of a preliminary investigation is not a ground to
quash an information
T h e absence of a preliminary investigation or inability
to participate in the preliminary investigation on the ground
of the accused not h a v i n g been served w i t h a subpoena is
not a proper ground for a motion to quash but a petition for
reinvestigation (Rodis v. Sandiganbayan, G.R. Nos. 7140409, October 26, 1988). Thus, in an early graft case w h e r e the
accused w e r e deprived of a full preliminary investigation
preparatory to the filing of the informations against them, the
Court emphasized that such fact does not w a r r a n t the quashal
of the information, nor should it obliterate the proceedings
already had. N e i t h e r 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 O m b u d s m a n for the
completion of the p r e l i m i n a r y investigation, the outcome of
which shall then be indorsed to the Sandiganbayan for its
appropriate action (Vasquez v. Hobilia-Alinio, 271 SCRA 67).
Test in appreciating a motion to quash
1.
W h e n 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 a v e r m e n t s in the information,
that is, w h e t h e r the facts alleged, if hypothetically admitted,
would establish the essential elements of the offense as
defined by l a w without considering matters aliunde (People
v. Romualdez, 559 SCRA 492). An information needs only
to state the ultimate facts constituting the offense, not the
finer details of w h y and how the illegal acts alleged amounted
to undue injury or d a m a g e — matters that are appropriate
for trial (People v. Romualdez, G.R. No. 166510, July 23,
2008). T h e 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).
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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
R . A . N o . 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 w a y of a motion to
quash on the ground provided in P a r a g r a p h ( 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 v a l i d i t y of the criminal proceeding, on
such ground, should be limited to an inquiry whether the
facts alleged in the information, if hypothetically admitted,
constitute the elements of an offense punishable under R . A .
N o . 3019 or the provisions on bribery of the Revised Penal
(Santiago v. Sandiganbayan, 356 SCRA 636; Italics supplied).
2.
Since, Sec. 2 of R u l e 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
m a y be based on factual and legal grounds, and since extinction
of criminal liability and double j e o p a r d y are retained as among
the grounds for a motion to quash in Sec. 3 of the n e w R u l e
117, it necessarily follows that facts outside the information
itself m a y 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.
T h e failure to assert any ground of a motion to quash
before a plea to the complaint or information shall be deemed
a w a i v e r of any objections. T h i s failure to assert a ground m a y
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
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constitutes w a i v e r (People v. Tabio, 544 SCRA 156, February
6, 2008; Sec. 3, Rule 120, Rules of Court).
Grounds not waived
A l t h o u g h the rule is that those grounds not asserted in
the motion to quash are w a i v e d , the following objections are
not waived:
( a ) that the facts charged do not constitute an offense (Sec. 3[a], Rule 117);
( b ) that the court t r y i n g the case has no jurisdiction over the offense charged (Sec. 3[b], Rule 117);
( c ) that the criminal action or liability has been extinguished (Sec. 3[g], Rule 117); and
( d ) double j e o p a r d y (Sec. 3[i], Rule 117).
Denial of a motion to quash
1.
W e l l established is the rule that w h e n a motion
to quash in a criminal case is denied, the r e m e d y is not a
petition for certiorari, but for petitioners to go to trial, without
prejudice to reiterating the special defenses invoked in their
motion to quash (Serana v. Sandiganbayan, 542 SCRA 225,
January 22, 2008).
2.
T h e general rule is that a petition for certiorari under
Rule 65 is not the proper r e m e d y against an order denying
a motion to quash. A b s e n t any showing of arbitrariness on
the part of the investigating prosecutor or any other officer
authorized by l a w 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). T h e r e m e d y is for the movant to go
to trial without prejudice to reiterating the special defenses
invoked in the motion to quash. T h i s r e m e d y however, is
subject to exceptions. If the court, in denying the motion to
quash acts without or in excess of jurisdiction or w i t h g r a v e
abuse of discretion, then certiorari or prohibition lies (Lazarte
v. Sandiganbayan [First Division], G.R. No. 180122, March
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
13, 2009; Javier v.
September 11, 2009).
Sandiganbayan,
G.R.
Nos.
147026-27,
When court shall order the amendment of the information or
complaint
1.
T h e existence of a v a l i d ground for sustaining a
motion to quash w i l l 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 g i v e the
prosecution an opportunity to correct the defect by amendment.
H o w e v e r , if despite such opportunity, the prosecution ( a ) fails
to m a k e the amendment, or ( b ) if despite the amendment, the
complaint or information still suffers from the same defect,
the court shall g r a n t the motion to quash (Sec. 4, Rule 117,
Rules of Court).
2.
E v e n if an information m a y be defective because the
facts charged do not constitute an offense, the dismissal of
the case w i l l not necessarily follow. T h e prosecution should
be g i v e n 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 p o w e r correctible by
certiorari if the trial court w o u l d 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.
W h e n 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
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471
another prosecution for the same offense unless based on the
ground that the criminal liability has been extinguished or
double jeopardy (Sec. 6, Rule 117, Rules of Court).
2.
If the order to file another complaint or information
is made, the accused w h o m a y 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 m a d e or if such
order is m a d e but no n e w complaint or information is filed
within the t i m e specified in the order, the accused, if in custody
shall be discharged. He shall h o w e v e r , 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 w a s based on the following grounds:
( a ) T h a t the criminal action or liability has been
extinguished (Sec. 3[g], Rule 117); or
( b ) T h a t the accused has been previously convicted
or acquitted or the offense charged, or the case against
h i m w a s dismissed or otherwise terminated without his
express consent (double j e o p a r d y ) (Sec. 3[i], Rule 117).
Double jeopardy
1.
Sec. 2 1 , A r t . I l l 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.
T h e essence of the constitutional provision
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
is
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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 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).
3.
"Jeopardy" in the legal sense, is the "danger of conviction and punishment which the defendant in a criminal action incurs w h e n a v a l i d indictment has been found..." (Hanley v. State, 83 Nevada 461 cited in Black's Law Dictionary,
5th Edition, p. 749). T h e constitution does not prohibit placing
a person in jeopardy. W h a t it prohibits is putting an accused
in "double j e o p a r d y " in w h i c h he is put in danger of punishment for the same offense m o r e than once.
T h e constitutional provision against double j e o p a r d y
guarantees that the state shall not be permitted to make
repeated attempts to convict an individual for an alleged
offense, thereby subjecting h i m to embarrassment, expense,
and ordeal and compelling h i m to l i v e in a continuing state of
anxiety and insecurity, as w e l l as enhancing that possibility
that e v e n though innocent he m a y 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 j u d g m e n t for the same offense would arm
the g o v e r n m e n t w i t h a potent instrument for oppression (Co
v. Lim, G.R. Nos. 164669-70, October 30, 2009).
4.
Double jeopardy, as a criminal l a w concept, refers
to jeopardy of punishment for the same offense, suggesting
that double jeopardy presupposes t w o separate criminal offenses (Garcia v. Sandiganbayan, G.R. No. 170122, October
12,2009). A l s o 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). ( B a r 2010)
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473
Hence, double jeopardy presupposes that a first jeopardy
has already attached prior to the second jeopardy and such
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 a n e w for the same offense as in
the first, then double j e o p a r d y arises. T h i s is the v e r y situation
prohibited by the Constitution. H e n c e , as a rule, if the accused
has been acquitted of frustrated homicide, he can 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 under an information for frustrated homicide
because the second offense includes the offense charged in the
first information.
Effects of double jeopardy; on criminal and civil aspects
1.
W h e n double j e o p a r d y 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 c o m m i t 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). H e n c e , as a rule, an acquittal
rendered by a court of competent jurisdiction after trial on
the merits is i m m e d i a t e l y final and cannot be appealed on
the ground of double j e o p a r d y (People of the Philippines v.
Hon. Sandiganbayan, Abelardo P. Panlaqui, et al., G.R. No.
173396, September 22, 2010).
2.
A j u d g m e n t of acquittal is final and is no longer
reviewable. It is also i m m e d i a t e l y executory and the State
may not seek its r e v i e w without placing the accused in
double jeopardy. T h e 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
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
from a j u d g m e n t of acquittal is likewise barred because the
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 j u d g m e n t of conviction,
the underlying reasons supporting the constitutional ban on
multiple trials applies and becomes compelling. T h e reason
is not only the defendant's already established innocence at
the first trial w h e r e he had been placed in peril of conviction,
but also the same untoward and prejudicial consequences
of a second trial initiated by a g o v e r n m e n t w h o has at its
disposal all the powers and resources of the State. Unfairness
and prejudice would necessarily result, as the g o v e r n m e n t
would then be a l l o w e d another opportunity to persuade a
second trier of the defendant's guilt w h i l e strengthening any
weaknesses that had attended the first trial, all in a process
w h e r e the government's p o w e r and resources are once again
employed against the defendant's individual means. T h a t the
second opportunity comes via an appeal does not m a k e 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 j u d g m e n t of acquittal through
either a regular appeal under R u l e 41 of the Rules of Court,
or an appeal by certiorari on pure questions of l a w under Rule
45 of the same Rules (People v. Nazareno, G.R. No. 168982,
August 5, 2009).
3.
T h e accused m a y appeal from a j u d g m e n t of conviction but w h e n the accused appeals from the sentence of the
trial court, he w a i v e s his right to the constitutional safeguard
against double j e o p a r d y and throws the whole case open to
r e v i e w by the appellate court (People v. Caraang, 418 SCRA
321; Oriente v. People, 513 SCRA 348).
A l s o , w h e n an accused himself files or consents to the
filing of a motion for reconsideration of the j u d g m e n t against
him, double jeopardy cannot be invoked by h i m because by
filing the motion, he w a i v e d his right not to be placed in double
jeopardy (People v. Astudillo, 401 SCRA 723).
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475
4.
Thus, an acquittal, w h e t h e r ordered by the trial or
appellate court, is final and unappealable on the ground of
double jeopardy. T h e only exception is w h e n the trial court acted
w i t h g r a v e abuse of discretion or, w h e n there was mistrial. In
such instances, the O S G can assail the said j u d g m e n t in a
petition for certiorari establishing that the State was deprived
of a fair opportunity to prosecute and prove its case. T h e
rationale behind this exception is that a j u d g m e n t rendered
by the trial court w i t h g r a v e abuse of discretion w a s issued
without jurisdiction. It is, for this reason, void. Consequently,
there is no double j e o p a r d y (Castro v. People, G.R. No. 180832,
July 23, 2008).
5.
A r e a d i n g 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 w h i l e a j u d g m e n t of acquittal cannot be
appealed by the prosecution, "either the offended party or the
accused m a y appeal the civil aspect of the j u d g m e n t despite
the acquittal of the accused" (Cruz v. Court of Appeals, 388
SCRA 72).
W h i l e the prosecution cannot appeal from a j u d g m e n t of
acquittal as it would place the accused in double jeopardy, the
a g g r i e v e d party w h o m a y be the offended party or the accused
or both m a y appeal from the j u d g m e n t on the civil aspect of
the case (Salazar v. People, 411 SCRA 598).
6.
T h e offended party and the accused m a y appeal the
civil aspect of a j u d g m e n t 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. T h e 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, l e a v e no doubt as to the concept's non-application
to a civil case.
Thus, in the same v e i n , the extinction of the criminal
liability will not necessarily g i v e rise to the extinction of the
civil liability. Thus, under Sec. 4 of Rule 111, if the accused
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dies before his arraignment, w h i l e 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. T h e
estate therefore, cannot invoke double jeopardy. Similarly,
under the same provision, e v e n if the civil liability arising
from the delict or criminal act is extinguished when the
accused dies after a r r a i g n m e n t and during the pendency of
the criminal action, the independent civil action arising from
other sources of obligation m a y be continued against the
estate of the deceased.
Double jeopardy; requisites
1.
In the language of the S u p r e m e Court, in order to
successfully invoke double j e o p a r d y , the following requisites
must be present:
(a)
second;
a first j e o p a r d y must h a v e attached prior to the
( b ) the first j e o p a r d y must h a v e been v a l i d l y terminated; and
( c ) the second j e o p a r d y 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 c o m m i t the same or a frustration thereof
(Cudia v. Court of Appeals, 284 SCRA 173; People v. Espinosa, 409 SCRA 256).
In determining w h e n the first j e o p a r d y m a y be said to
have attached, it is necessary to prove the following elements:
( a ) T h e accused has been convicted or acquitted, or
the case against him w a s dismissed or terminated without his express consent;
( b ) T h a t the conviction, acquittal or dismissal was
made by a court of competent jurisdiction;
( c ) T h e r e is a valid complaint or information or
other formal charge is sufficient in form and substance to
sustain a conviction;
CHAPTER DC
MOTION TO QUASH
(Rule 117)
(d)
477
T h e accused has pleaded to the charge;
T h e subsequent prosecution is for an offense which is the
same as the former complaint or information or for any attempt 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. 164669-7, 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. 1826511 G.R.
No. 182657, August 25, 2010).
Court must have competent jurisdiction
1.
F o r double j e o p a r d y to attach the court which rendered a j u d g m e n t of conviction or acquittal or the court which
terminated or dismissed the case be one vested w i t h "competent jurisdiction" (Sec. 7, Rule 117, Rules of Court).
A s s u m e that a criminal action for robbery that occurred in
the C i t y of M a k a t i w a s filed in a Quezon C i t y court. Because the
Quezon C i t y court r e a l i z e d 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 M a k a t i court
will not successfully g i v e rise to a defense anchored on double
jeopardy because the first court, the Quezon C i t y court had no
jurisdiction o v e r the case. H e n c e , no j e o p a r d y attached w h e n
the case was filed in Quezon City.
2.
U n d e r English common law, exceptions to the pleas
of prior conviction or acquittal existed w h e r e the trial court
lacked jurisdiction, the theory being that a defendant before
such a court w a s not actually placed in jeopardy. Hence, any
acquittal or conviction before a court h a v i n g 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). A l s o , there can be no
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double jeopardy w h e r e 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
A m e r i c a n 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, w h e r e an information for murder was filed
and tried in the Municipal T r i a l Court and the case w a s later
on dismissed despite objections from the accused, a subsequent
indictment for the same offense in the Regional T r i a l Court
will not constitute double jeopardy. T h e Municipal T r i a l Court
which earlier tried the case is bereft of jurisdiction over the
offense of murder which is punishable by reclusion perpetua
under A r t . 248 of the R e v i s e d P e n a l Code. T h e accused
therefore, could not claim being "twice put in j e o p a r d y for the
same offense" because there n e v e r w a s a first jeopardy. One
could not be v a l i d l y 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 R e g i o n a l T r i a l Court, jurisdiction never
attached to the latter court. It follows that as a rule the filing
of a complaint or information w i t h one court which has no
jurisdiction over it does not p r e v e n t the prosecution from filing
the same complaint later w i t h the competent court. T h e r e is
no estoppel from doing so simply because it m a d e 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.
T h e filing of the information in the Sandiganbayan did
not put the accused in double j e o p a r d y even though there was
a plea of "not guilty" to the information earlier filed in the
R T C . T h e first jeopardy never attached in the first place, the
R T C not being a court of competent jurisdiction. T h e r e can
be no double jeopardy w h e r e the accused entered a plea in
a court that had no jurisdiction. T h e remedy therefore, was
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not to m o v e for the quashal of the information pending in the
Sandiganbayan on the ground of double jeopardy. T h e remedy
was to m o v e 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. H o w e v e r , the first jeopardy
could not attach if the action w a s filed in a court of the place
which w a s not the proper venue for hearing the case. V e n u e
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
w h e r e i n the offense w a s committed or any one of the essential
ingredients thereof took place (Cudia v. Court of Appeals, 284
SCRA 173 citing People v. Tomio, 202 SCRA 77 and Agbayani
v. Sayo, 89 SCRA 699).
6.
A court initially w i t h 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 w h e r e the prosecution informed
the court that it had other witnesses to present. T h e court,
aside from not a l l o w i n g 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 A p p e a l s 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 w e n t 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
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.
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"The cardinal precept is that w h e r e there is a violation of basic constitutional rights, courts are ousted of
their jurisdiction. Thus, the violation of the State's light
to due process raises a serious jurisdictional issue which
cannot be glossed over or disregarded at w i l l . W h e r e 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 v o i d 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; Uy v. Genato,
57 SCRA 123; 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.
M a y 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 i m m e d i a t e l y final and
cannot be appealed on the ground of double j e o p a r d y (People of
the Philippines v. Hon. Sandiganbayan, Abelardo P. Panlaqui,
et al, G.R. No. 173396, September 22, 2010).
T h e rule on double jeopardy, h o w e v e r , is not without
exceptions. T h e only instance w h e n double jeopardy will
not attach is w h e n the trial court acted w i t h g r a v e abuse of
discretion amounting to lack or excess of jurisdiction, such as
where the prosecution w a s denied the opportunity to present
its case or w h e r e the trial w a s a sham. H o w e v e r , while
certiorari m a y 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 g r a v e as to deprive it of its v e r y power
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to dispense justice (People v. Tan, G.R. No. 167526, July 26,
2010). A j u d g m e n t rendered w i t h g r a v e abuse of discretion
or without due process of l a w 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, a v a i l m e n t of the remedy of
certiorari to correct an erroneous acquittal m a y be allowed
in cases w h e r e petitioner has clearly shown that the public
respondent acted without jurisdiction or w i t h g r a v e abuse of
discretion amounting to lack or excess of jurisdiction, but if
the petition m e r e l y calls for an ordinary r e v i e w of the findings
of the court a quo, we would run afoul of the constitutional
right against double j e o p a r d y (People v. Terrado, 558 SCRA
84, July 14, 2008).
3.
A more recent case unequivocally ruled that a
petition for certiorari under R u l e 65, not appeal, is the remedy
to question a verdict of acquittal w h e t h e r at the trial court or
at the appellate l e v e l .
In People v. Asis, G.R. No. 173089, August 25, 2010,
the accused w a s charged w i t h t w o ( 2 ) counts of attempted
murder and one (1) count of frustrated murder in the Regional
T r i a l Court. T h e trial court found no treachery and evident
premeditation. T h u s , in its decision, the R T C held the accused
liable only for serious physical injuries for shooting one
victim and less serious physical injuries w i t h regard to the
other victim. It also appreciated four ( 4 ) generic mitigating
circumstances in favor of the accused. W i t h respect to the
complaint of another victim, the accused w a s acquitted.
T h e O S G filed a petition for certiorari under Rule 65 before
the CA assailing as constituting a g r a v e abuse of discretion
the findings of the R T C for holding the accused guilty of lesser
crimes than for which he was charged and acquitting him on
the other charge as w e l l as in appreciating four ( 4 ) mitigating
circumstances in favor of the accused.
T h e C A , 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
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
of acquittal and findings of lesser offenses by the trial court,
the remedy, declared the C A should h a v e been an appeal.
Moreover, the petition for certiorari placed the accused in
double jeopardy.
T h e Supreme Court found that the appellate court erred
in dismissing the petition outright. H e l d the Court in no
uncertain terms:
"A petition for certiorari under Rule 65, not appeal,
is the r e m e d y to question a verdict of acquittal whether
at the trial court or at the appellate l e v e l . In our jurisdiction, we adhere to the finality-of-acquittal doctrine, that
is, a j u d g m e n t of acquittal is final and unappealable. T h e
rule, h o w e v e r , 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. T h u s , 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 SCRA 393, w h e r e the
acquittal of the accused w a s via the grant of his demurrer
to evidence, We 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
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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."
T h e Court explained further that in the petition, the
O S G claimed that the acquittal of the accused w a s improper.
Since appeal could not be taken without violating the
constitutionally guaranteed right against double jeopardy of
the accused, the O S G w a s correct in pursuing its cause via
a petition for certiorari under R u l e 65 before the appellate
court. It w a s a serious error by the C A , ratiocinated the
Court, to h a v e d e p r i v e d the petitioner of its right to avail of
that remedy. H o w e v e r , w h i l e holding that certiorari m a y 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.
C i t i n g the significant case of Galman v. Sandiganbayan, 228
Phil. 242, the Court reiterated that the rationale behind this
exception is that a j u d g m e n t rendered by the trial court w i t h
g r a v e abuse of discretion w a s issued without jurisdiction and
for this reason, the j u d g m e n t is v o i d . Consequently, there is
no double j e o p a r d y .
N o t e : W h i l e the Court finally set aside the resolution of
the CA dismissing the petition for certiorari, it denied the
petition upon ruling upon the same on the merits because the
prosecution failed to show that the prosecution w a s deprived of
its right to due process. T h e Court found that the O S G petition
did not mention or e v e n hint that there w a s a curtailment of its
right. U n l i k e in Galman, the prosecution failed to show in this
case that it never denied its day in court. T h e records showed
that the prosecution and the defense w e r e able to present
their respective evidence, testimonial and documentary. Both
parties had their opportunity to cross-examine witnesses and
scrutinize e v e r y piece of evidence. Thereafter, the trial court
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
exercising its discretion evaluated the evidence before it and
rendered its decision. Certainly, there was no mistrial.
A n o t h e r primary reason for denying the petition for
certiorari was the finding that the arguments proffered in
the said petition called for a r e v i e w of the evidence and a
recalibration of the factual findings by faulting the trial court
for g i v i n g full faith and credit to the testimonies of the accused
and his witnesses. T h e O S G also faulted the CA for failing
to notice certain relevant facts which, if properly considered,
would have justified a different conclusion.
Subsequently, in its m e m o r a n d u m , it m e r e l y reiterated
the purported errors of the trial j u d g e in appreciating and
assessing the evidence of both the prosecution and the
defense. A p p a r e n t l y , the O S G w a n t e d a r e v i e w of the trial
court's j u d g m e n t which it claimed to be erroneous. T h e O S G
then proceeded to show h o w the evidence should h a v e been
appreciated by the trial court in its favor and against the
accused to demonstrate that there w a s intent to kill on his
part.
W h a t the O S G w a s questioning, therefore, ruled the
Court, are errors of j u d g m e n t . T h i s , h o w e v e r , cannot be
resolved without v i o l a t i n g the constitutionally guaranteed
right of the accused against double jeopardy. An appellate
court in a petition for certiorari cannot r e v i e w a trial court's
evaluation of the evidence and factual findings. Errors of
j u d g m e n t cannot be raised in a R u l e 65 petition as a w r i t
of certiorari can, only correct errors of jurisdiction or those
involving the commission of g r a v e abuse of discretion.
4.
In y e t another case, from the decision of the R T C
acquitting the accused of the charge of murder after a motion
for reconsideration of an earlier j u d g m e n t of conviction, the
prosecution filed a petition for certiorari under R u l e 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 j u d g m e n t of
acquittal. Petitioner alleged and argued that a j u d g m e n t of
acquittal in a criminal case m a y be assailed in a petition for
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certiorari under Rule 65 of the Rules of Court upon a showing
by the petitioner that the l o w e r court, in acquitting the
accused, committed not only reversible errors of judgment,
but also g r a v e abuse of discretion amounting to lack or excess
of jurisdiction, or a denial of due process, thus rendering the
assailed j u d g m e n t void. Consequently, the accused cannot
be considered at risk of double jeopardy. T h e prosecution
hinged its arguments, among others, in the fact that when
the earlier decision of conviction w a s promulgated, only one
of the several accused w a s present and the other accused
w e r e not. Subsequently thereafter, without surrendering
and explaining the reasons for their absence, they joined the
present accused in a Joint M o t i o n for Reconsideration, an act
done in clear disregard of the rule in Sec. 6, Rule 120 that
in case of a j u d g m e n t 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 R T C not only failed to cause the arrest of the
respondents w h o w e r e at large, it also took cognizance of the
joint motion. T h e y w e r e in fact later acquitted.
T h e prosecution w a s sustained by the Supreme Court
holding that by w a y of exception, a j u d g m e n t of acquittal in a
criminal case m a y 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 l o w e r court, in acquitting the accused,
committed not m e r e l y reversible errors of j u d g m e n t but also
g r a v e abuse of discretion amounting to lack or excess of
jurisdiction, or to a denial of due process, thus rendering the
assailed j u d g m e n t void. In which event, the accused cannot be
considered at risk of double j e o p a r d y (People v. De Grano, G.R.
No. 167710, June 5, 2009).
5.
W h e n the trial court, in allowing the withdrawal of
the information, g l a r i n g l y 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 g r a v e abuse of discretion amounting to excess
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
of jurisdiction. T h e accused w a s 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, w a s not met. Thus, double j e o p a r d y 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 m e r e l y inquisitorial,
and it is often the only means of discovering the persons who
m a y be reasonably charged w i t h a crime, to enable the fiscal to
prepare his complain 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 c o m m i t t e d and w h e t h e r there is
probable cause to believe that the accused is guilty therefor,
and it does not place the person against whom it is taken in
jeopardy (Tandoc v. Resultan, 175 SCRA 37; Italics supplied).
P r e l i m i n a r y investigation is executive in character. It does not
contemplate a judicial function. It does not place the person
against w h o m it is taken in j e o p a r d y (Torres v. Aguinaldo,
G.R. No. 164268, June 28, 2005). H e n c e , a preliminary
investigation is not a trial to which double j e o p a r d y 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
of the parties' evidence (Vincoy v. Court of Appeals, 432 SCRA
36; Trinidad v. Office of the Ombudsman, 539 SCRA 415).
Res judicata and double jeopardy; res judicata in prison
grey (Bar 2010)
Res judicata is a doctrine of civil l a w and thus has no
bearing on criminal proceedings (Trinidad v. Office of the
Ombudsman, 539 SCRA 415) even if double jeopardy has been
described as "res judicata in prison grey" (Caes v. Intermediate
Appellate Court, G.R. No. 74989, November 6, 1989; Trinidad
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v. Office of the Ombudsman,
2007).
487
G.R. No. 166038, December 4,
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 j e o p a r d y does not apply to administrative
cases. H e r e , the Court sustained the Sandiganbayan w h e n
the latter held that double j e o p a r d y does not apply in a
controversy w h e n one case w a s administrative in character
w h i l e the Sandiganbayan case also against the same petitioner
was criminal in nature. A l l the elements for the application
of double j e o p a r d y do not apply vis-d-vis an administrative
case. H e n c e , the petitioner cannot successfully claim that
the dismissal of his a d m i n i s t r a t i v e case entitles him to raise
the defense of double j e o p a r d y in the criminal case in the
Sandiganbayan.
T h e principle of double j e o p a r d y finds no application in
administrative cases. Double j e o p a r d y attaches only: ( 1 ) upon
a v a l i d indictment; ( 2 ) before a competent court; ( 3 ) after
arraignment; ( 4 ) w h e n a v a l i d plea has been entered; and ( 5 )
w h e n the defendant w a s acquitted or convicted, or the case
w a s dismissed or otherwise t e r m i n a t e d without the express
consent of the accused. T h e s e elements w e r e not present in the
proceedings before the B o a r d of M e d i c i n e , as the proceedings
involved in the instant case w e r e administrative and not
criminal in nature. T h e Court has already held that double
jeopardy does not lie in administrative cases (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]).
2.
A single act m a y offend against t w o or more distinct
and related provisions of law, or that the same act may g i v e
rise to criminal as w e l l as administrative liability (Paredes v.
Court of Appeals, 528 SCRA 577, July 30,2007). T h i s principle
may successfully prevent any assertion of the principle of
double jeopardy in administrative cases.
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CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
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 t w o
remedies. T h e Court in various cases has stressed the distinct
and independent character of the remedies available to an offended party against any impropriety or wrongdoing committed by a public officer.
Significantly, there are three kinds of remedies available
against a public officer for impropriety in the performance of
his powers and the discharge of his duties: ( 1 ) civil, ( 2 ) criminal, and ( 3 ) administrative. T h e s e remedies m a y be invoked
separately, alternately, simultaneously or successively. Sometimes, the same offense m a y be the subject of all three kinds
of remedies.
Defeat of any of the three remedies w i l l not necessarily
preclude resort to other remedies or affect decisions reached
thereat, as different degrees of evidence are required in these
several actions. In criminal cases, proof beyond reasonable
doubt is needed, w h e r e a s a m e r e preponderance of evidence
w i l l suffice in civil cases. In administrative cases, only
substantial evidence is required.
It is clear, then, that criminal and administrative cases
are distinct from each other. T h e settled rule is that criminal
and civil cases are altogether different from administrative
matters, such that the first t w o w i l l not inevitably g o v e r n or
affect the third and vice versa. V e r i l y , administrative cases
may proceed independently of the criminal proceedings (Office of the Ombudsman v. Medrano, G.R. No. 177580, October
17, 2008 citing Vide Paredes v. Court of Appeals, 528 SCRA
577; Barillo v. Gervacio, 500 SCRA 561; Ocampo v. Office of
the Ombudsman, 379 Phil. 21; Paredes, Jr. v. Sandiganbayan,
322 Phil. 709; Tan v. Commission on Elections, 237 Phil. 353,
359).
Valid complaint or information (Bar 2002; 2004)
1.
F o r double jeopardy to be invoked, Sec. 7 of Rule 117
requires that "there must be a valid complaint or information
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or formal charge sufficient in form and substance to sustain a
conviction."
T h e sufficiency of the complaint or information or the
formal charge is dependent on whether the same could sustain
a conviction. If it could not sustain the conviction desired, then
the charge is not a valid one which would preclude double
jeopardy.
A s s u m e that an information alleges facts which taken
together do not constitute an offense. A f t e r sustaining a motion
to quash on such ground, the court ordered the amendment
of the information to correct the defect. W i l l the filing of the
new corrected information t r i g g e r the application of double
jeopardy? T h e answer is "no" because there never w a s a first
jeopardy under the first information. If there w a s no first
jeopardy, there could be no double jeopardy.
2.
A complaint or information m a y not be considered
valid if does not contain the basic requisites for the sufficiency
of a complaint. Sec. 6 of R u l e 110 provides that a complaint or
information is sufficient "if it states the n a m e of the accused;
the designation of the offense g i v e n 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 w h e r e the offense w a s committed."
A complaint or information which does not comply w i t h these
requirements would not be sufficient in form and substance to
sustain a conviction.
3.
It is submitted that the charges are not to be deemed
valid because conviction w i l l not be possible w h e r e the formal
charges for adultery and concubinage are not subscribed by
the offended party but by the public prosecutor. Section 5 of
Rule 110 clearly mandates that "The crimes of adultery and
concubinage shall not be prosecuted except upon a complaint
filed by the offended party.
A l s o , unless the offended party dies or becomes incapacitated or she has no known parents, grandparents or guardians, a public prosecutor cannot subscribe to or sign the formal charge for seduction, abduction and acts of lasciviousness.
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These offenses by express provision of the Rules, shall not be
prosecuted except upon a complaint filed by the offended party
or her parents, grandparents or guardians" (Sec. 5, Rule 110,
Rules of Court). Similarly, a criminal action for defamation
consisting in the imputation of any of the offenses of adultery,
concubinage, seduction, abduction or acts of lasciviousness
shall not be brought except upon a complaint filed by the offended party.
4. L i k e w i s e , the accused will not be placed in jeopardy
of conviction w h e r e the facts alleged in the complaint or
information do not constitute an offense. T h i s defect is in
fact, a ground for a motion to quash under Sec. 3 ( a ) of Rule
117.
5.
Thus, the Court once declared that there must have
been a valid and sufficient complaint or information in the
former prosecution. If, therefore, the complaint or information
w a s insufficient because it w a s so defective in form or substance
that the conviction upon it could not have been sustained,
its dismissal without the consent of the accused cannot be
pleaded. Jeopardy does not attach w h e r e a defendant pleads
guilty to a defective indictment that is voluntarily dismissed
by the prosecution (Cudia v. Court of Appeals, 284 SCRA 170).
6.
W h e r e the officer w h o filed the information has no
authority to do so, the information is indeed defective and could
not sustain a conviction. In Cudia v. Court of Appeals, 284
SCRA 173, for instance, the Court found that an information
was filed by the C i t y Prosecutor of A n g e l e s C i t y for a crime
committed in Mabalacat, P a m p a n g a . C i t i n g the pertinent
provisions of P . D . 1275 in relation to the A d m i n i s t r a t i v e
Code of 1987, the Court ruled that the C i t y Prosecutor had
no authority to file an information in a place beyond the
jurisdiction of his office. It is the Provincial Prosecutor of
Pampanga, not the C i t y Prosecutor, according to the Court,
w h o should prepare the information for an offense committed
within P a m p a n g a but outside of A n g e l e s City. An information,
when required to be filed by a public prosecuting officer, cannot
be filed by another. It must be exhibited or presented by the
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prosecuting attorney or someone authorized by law. K n o t , the
court does not acquire jurisdiction. ( B a r 2002; 2004)
Accused should have pleaded to the charge (should have
been arraigned) (Bar 2002; 2003)
1.
T h e application of the rule against double jeopardy
requires that the accused "had pleaded to the charge." T h e
rule on a r r a i g n m e n t and plea in Rule 116 governs this requirement.
Hence, if before arraignment, the prosecutor w i t h d r e w
an information charging theft and later on filed another
information for theft or robbery against the same accused,
double j e o p a r d y cannot be invoked because, the accused w a s
never arraigned under the first information. ( B a r 2002)
It is settled that the existence of a plea is an essential
requisite to double j e o p a r d y (People v. Ylagan, 58 Phil. 851;
People v. Quimsing, L-19860, December 23, 1964).
2.
It has a l w a y s been the rule that the accused should
have been a r r a i g n e d and h a d pleaded to the charge. Double
j e o p a r d y cannot be i n v o k e d w h e r e the accused has not been
arraigned. H e n c e , t h e r e is no double j e o p a r d y in the reinstatement of a criminal case dismissed before arraignment (Miranda v. Tuliao, G.R. No. 158763, March 31, 2006 citing People v.
Montiero, 192 SCRA 548).
3.
F o r double j e o p a r d y to attach, the plea must be v a l i d .
An invalid plea is demonstrated in People v. Magat, G.R. No.
130026, May 31, 2000. H e r e , the accused pleaded guilty to
the rape of his daughter but bargained for a lesser penalty for
each case. Complainant's mother and the public prosecutor,
agreed w i t h the plea bargain. He w a s sentenced to ten years
for each count of rape.
A f t e r three months, the cases w e r e r e v i v e d at the
instance of the complainant on the ground that the penalty
imposed w a s "too light." As a consequence, accused-appellant
was re-arraigned the entered a n e w a plea of guilty. After the
required proceedings for capital offenses and convinced of
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accused's voluntariness of his plea of guilty, the court rendered
a j u d g m e n t of conviction and imposed the death penalty.
On appeal, the accused-appellant contends that the
trial court erred in re-arraigning and proceeding into trial
despite the fact that he was already convicted based on his
plea of guilt. He also argues that w h e n the court rendered
j u d g m e n t convicting him, the prosecution did not appeal nor
m o v e for reconsideration or took steps to set aside the order.
Consequently, the conviction h a v i n g attained finality can no
longer be set aside or modified e v e n if the prosecution later
realizes that the penalty imposed w a s too light. Accusedappellant likewise posits that the re-arraignment and trial
on the same information violated his right against double
jeopardy.
T h e Court disagreed w i t h the accused-appellant. T h e
order of the trial court convicting the accused-appellant on
his own plea of guilt and sentencing h i m to a light penalty
was void ab initio on the ground that accused-app