CRIMINAL PROCEDURE Rule 110 PROSECUTION of Offenses 1.

General Rule: MTC and RTC courts gain jurisdiction over the offense upon the filing of complaint by a complainant or an information by the prosecuting officer Court gains jurisdiction over the person of the accused upon arrest or surrender; such jurisdiction once gained cannot be lost even if accused escapes (Gimenez vs. Nazareno) Jurisdiction of the court over the offense is determined at the time of the institution of the action and is retained even if the penalty for the offense is later lowered or raised (People vs. Lagon) 2. Complaint sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer or other public official charged with the enforcement of the law violated Information accusation in writing charging a person with an offense, subscribed by the fiscal and filed with the court 3. Complaint and Information distinguished: Complaint A sworn statement Subscribed by the offended party, any peace officer or other officer charged with the enforcement of the law violated May be filed either with the court or in the fiscals office generally to commence the preliminary investigation of the charges made Information Need not be sworn to

(1) First port of entry (2) Thru which it passed during voyage e. Libel and written defamation 5. Remedies of offended party when fiscal unreasonably refuses to file an information or include a person therein as an accused 1. In case of grave abuse of discretion, action for mandamus 2. Lodge a new complaint against the offenders 3. Take up matter with the Secretary of Justice 4. Institute administrative charges against the erring fiscal 5. File criminal charges under Art. 208, RPC (prosecution of offenses) 6. File civil action under Art. 27, NCC for damages (PO refuses or neglects to perform official duty) 7. Secure appointment of another fiscal 8. Institute another criminal action if no double jeopardy is involved 6. Writs of injunction or prohibition to restrain a criminal prosecution are not available, EXCEPT 1. To afford adequate protection to constitutional rights of accused 2. Necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions 3. Pre-judicial question which is sub judice 4. Acts of the officer are without or in excess of authority 5. Prosecution is under an invalid law, ordinance or regulation 6. Double jeopardy is clearly apparent 7. Court has no jurisdiction over the case 8. Case of persecution rather than prosecution 9. Charges are manifestly false and motivated by lust for vengeance 10. Clearly no prima facie case against the accused and MTQ on that ground had been denied 7. Institution of Criminal Actions: a. In RTC: By filing a complaint with the appropriate officer for the purpose of conducting requisite preliminary investigation therein. b. In Municipal Trial Courts and Municipal Circuit Trial Courts: By filing the complaint or information directly with said courts, or a complaint with the fiscals office c. In Metropolitan Trial Courts By filing the complaint ONLY with the office of the fiscal

Subscribed to by the fiscal

Filed with the court

4. Cases where civil courts of equal rank are vested with concurrent jurisdiction: 1. Features stated in Art. 2, RPC Cognizable by proper court in which charge is first filed 1. Continuing crimes committed in different judicial regions 2. Offenses wherein any of the essential elements were committed in different territorial jurisdictions 3. Offenses committed aboard a train, vehicle, aircraft or vessel (see R110, 15) i. Railroad, train, aircraft (1) Territory or municipality where vehicle passed (2) Place of departure (3) Place of arrival ii. Vessel

 In all 3 above cases, such institution shall interrupt the period of prescription of the offense charged (Rule 110, 1) d. Offenses subject to summary procedure [i.e. (1) violation of traffic laws; (2) violation of rental laws; (3) violation of municipal or city ordinances; and (4) criminal cases where the penalty does not exceed 6 months or fine of P1000 or both, irrespective of other imposable penalties and civil liabilities] The complaint or information shall be filed directly in court without need of a prior preliminary examination or preliminary investigation. Zaldivia vs. Reyes since a criminal case covered by the Rules of Summary Procedure shall be deemed commenced only when it is filed in court, then the running of the prescriptive period shall be halted on the date the case is actually filed in court and not on any date before that. Reodica vs. CA [clarifies Zaldivia above] Under Art. 91 of the RPC, the period of prescription shall be interrupted by the filing of the complaint or information. It does not distinguish whether the complaint is filed for preliminary examination or investigation only, or for an action on the merits. Thus, the filing of the complaint even with the fiscals office should suspend the running of the Statute of Limitations. The ruling in Zaldivia is not applicable to all cases subject to the Rules on Summary Procedure, since that particular case involved a violation of an ordinance. Therefore, the applicable law therein was not Art. 91 of the RPC, but Act No. 3326 (An Act to Establish Periods of Prescription for Violations Penalized by Special Acts and Municipal Ordinances and to Provide when Prescription Shall Begin to Run), 2 of which provides that period of prescription is suspended only when judicial proceedings are instituted against the guilty party. 8. Contents of information a. Name of the accused Information may be amended as to the name of the accused, but such amendment cannot be questioned for the first time on appeal (People vs. Guevarra) Error of name of the offended party: if material to the case, it necessarily affects the identification of the act charged. Conviction for robbery cannot be sustained if there is a variance between the allegation and the proof as to the ownership of the property stolen. b. Designation of offense by statute (or of section/subsection of statute violated) Only one offense charged, EXCEPT where law prescribes a single punishment for various offenses. If facts do not completely allege all the elements of the crime charged, the info may be quashed; however, the prosecution is allowed to amend the info to include the necessary facts (People vs. Purisima) c. Acts or omissions complained of constituting the offense Information need only allege facts, not include all the evidence which may be used to prove such facts (Balitaan vs. CFI) d. Name of offended party

e. Approximate time of commission Approximation of time is sufficient; amendment as to time is only a formal amendment; no need to dismiss case (People vs. Molero) A significant discrepancy in the time alleged cannot be sustained since such would allow the prosecution to prove an offense distantly removed from the alleged date, thus substantially impairing the rights of the accused to be informed of the charges against him (People vs. Reyes) f. Place of commission Conviction may be had even if it appears that the crime was committed not at the place alleged, provided that the place of actual commission was within the courts jurisdiction and accused was not surprised by the variance between the proof and the information Qualifying and inherent aggravating circumstances need to be alleged as they are integral parts of the crime. If proved, but not alleged, become only generic aggravating circumstances. 9. Amendment of information and Substitution of information, distinguished Amendment Involves either formal or substantial changes Without leave of court if before plea Where only as to form, there is no need for another preliminary investigation and retaking of plea of accused Refers to the same offense charged or which necessarily includes or is necessarily included in original charges, hence, substantial amendments to info after plea taken cannot be made over objections of accused for if original info is withdrawn, accused could invoke double jeopardy Substitution Necessarily involves a substantial change Needs leave of court as original information has to be dismissed Another preliminary investigation is entailed and accused has to plead anew

Requires or presupposes that new info involves a different offense which does not include or is not included in the original charge, hence, accused cannot claim double jeopardy

10. After plea, amendment only as to matters of form, provided 1. Leave of court is obtained; and 2. Amendment is not prejudicial to rights of accused 11. When amendment is only as to form 1. Neither affects or alters nature of offense charged 2. Charge does not deprive accused of a fair opportunity to present his defense 3. Does not involve a change in basic theory of prosecution 12. Exceptions to rule on venue 1. Felonies in Art. 2, RPC (cognizable by proper court in which charge is first filed)

2. 3. 4. 5.

Continuing offenses Piracy which is triable anywhere Libel (residence; or where first published) In exceptional cases, to ensure fair trial and impartial inquiry

Objection to the amendment of an information or complaint must be raised at the time the amendment is made; otherwise, deemed to have consented thereto. 15. Remedies a. Motion to quash May be filed after arraignment but before plea on the grounds provided by the rules (generally, a flaw in the info) If duplicity of offense charged is not raised in trial through a motion to quash info, the right to question it is waived (People vs. Ocapan) b. Motion to dismiss

13. Special cases (who may prosecute) a. Adultery and concubinage Only offended spouse can be complainant Both guilty parties must be included in complaint b. Crimes against chastity With consent of the offended party, offended spouse, grandparents, guardian, or state asparens patriae, in that order Offended party, even if minor, has right to initiate the prosecution of the case independently of parents, grandparents or guardian, unless she is incompetent/incapable on grounds other than minority. If offended party who is a minor fails to file the complaint, her parents, grandparents or guardian may do so. In crimes against chastity, the consent of the victim is a jurisdictional requirementretraction renders the information void (People vs. Ocapan) If complexed with a public crime, the provincial fiscal may sign the complaint on his own c. Defamation (consisting of imputation of offenses in [a] or [b]) Complainant must be offended party The offended party may intervene in the prosecution of the criminal case because of her interest in it (Banal vs. Tadeo) 14. Procedure 1. Complaint filed in MTC or info filed in RTC where an essential ingredient of the crime took place (territorial jurisdiction) 1. Amendment as a matter of right before plea 2. Amendment upon discretion of the court after plea Inclusion of other accused is only a formal amendment which would not be prejudicial to the accused and should be allowed (People vs. CA) d. After plea and before judgment, if it appears there was a mistake in charging proper offense, court shall dismiss original info upon the filing of a corrected one, provided that the accused will not be placed in double jeopardy (substitution) Fiscal determines direction of prosecution; complainant must ask fiscal if he wants to dismiss the case; the motion to dismiss must be addressed to the court which has discretion over the disposition of the case (Republic vs. Sunga)

May be filed after plea but before judgment on most of grounds for motion to quash 16. Duplicity of Offense (in information or complaint) Defined as the joinder of separate and distinct offenses in one and the same information/complaint Remedy: file a motion to quash; failure is equivalent to a waiver Exception: when existing laws prescribe a single punishment (complex crimes) Rule 111 Prosecution of Civil Action 1. General Rule: The injured party may file a civil action independent of the criminal proceeding to recover damages from the offender. Article 32 is a valid cause of a civil action for damages against public officers who impair the Constitutional rights of citizens (Aberca vs. Ver) Even if the private prosecutor participates in the prosecution, if he is not given the chance to prove damages, the offended party is not barred from filing a separate civil action 2. Civil action for recovery of civil liability impliedly instituted, EXCEPT 1. Waiver 2. Reservation of right to institute separate action 3. Institution of civil action prior to criminal action NOTE: Under SC Circular 57-97, all criminal actions for violations of BP Blg. 22 shall be deemed to necessarily include the corresponding civil action, and no reservation to file such civil action separately shall be allowed or recognized. San Ildefonso Lines vs. CA past pronouncements of the SC that the requirement in Rule 111 that a reservation be made prior to the institution of an independent civil action is an unauthorized amendment to substantive law is now no longer controlling. Far from altering substantive rights, the primary purpose of the reservation requirement is to avoid multiplicity of suits, to prevent delays, to clear congested dockets, to simplify the work of the trial court, and in short, the attainment of justice with the least expense and vexation to parties-litigants.

3. Civil action suspended when criminal action filed, EXCEPT 1. Independent civil action (Arts. 32, 33, 34 and 2176 of NCC) 2. Prejudicial civil action 3. Civil case consolidated with criminal action 4. Civil action not one intended to enforce civil liability arising from the offense (e.g., action for legal separation against a spouse who committed concubinage) 4. Prejudicial question arises when 1. The civil action involves an issue similar or intimately related to the issue raised in the criminal action 2. The resolution of such issue will determine whether the criminal action will proceed or not Requisites for a prejudicial question: 1. The civil action involves an issue similar or intimately related to the issue raised in the criminal action: and 2. The resolution of such issue determines whether or not the criminal action may proceed Petition for suspension of criminal action is to be filed at any time before prosecution rests. 5. Remedies a. Reservation of right to institute separate civil proceedings to recover civil liability arising from crime Must be made before prosecution presents evidence Action instituted only after final judgment in criminal action b. Petition to suspend the criminal action May be filed upon existence of a prejudicial question in a pending civil action Filed at any time before the prosecution rests 6. Extinction of penal action does not carry with it extinction of the civil unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. Final judgment in civil absolving defendant from civil liability not a bar to criminal action 7. Filing fees: 1. Actual or compensatory damages filing fees not required 2. Moral, temperate and exemplary filing fees required 1. If alleged, fees must be paid by offended party upon filing of complaint or information 1. If not alleged, filing fees considered a first lien on the judgment Rule 112 Preliminary Investigation

1. Preliminary investigation inquiry or proceeding to determine if there is sufficient ground to engender a well-founded belief that a crime cognizable by the RTC has been committed, and that the respondent is probably guilty thereof, and should be held for trial A preliminary investigation is only necessary for an information to be filed with the RTC; complaints may be filed with the MTC without need of an information, which is merely recommendatory (Tandoc vs. Resultan) Absence of a preliminary investigation is NOT a ground for a motion to quash the information; an information filed without a preliminary investigation is defective but not fatal; in its absence, the accused may ask for one; it is the fiscals refusal to conduct a preliminary investigation when the accused demands one which is a violation of the rights of the accused(Doromal vs. Sandiganbayan). Court should not dismiss the info, but hold the case in abeyance and either: (1) conduct its own investigation; or (2) require the fiscal to hold a reinvestigation. 2. GENERAL RULE: The fiscal conducts the preliminary investigation before filing an information with the RTC, EXCEPT where the accused is lawfully arrested without a warrant and an inquest is conducted. 3. Right to Preliminary Investigation A personal right and may be waived Waived by failure to invoke the right prior to or at least at the time of the plea 4. Who conducts Preliminary Investigation 1. Provincial or city fiscals and their assistants 2. Judges of MTC and MCTC 3. National and regional state prosecutors 4. Such other officers as may be authorized by law 5. Duly authorized legal officers of COMELEC 1. The Ombudsman 2. The PCGG, in cases of ill-gotten wealth 5. Procedure a. If conducted prior to arrest i. Complainant files complaint with (a) Provincial or city fiscal (b) Regional or state prosecutor (c) MTC or MCTC judge, excluding MTC judge of Metro Manila or chartered cities (d) Other offices authorized by law 1. Investigating officer either dismisses complaint or asks by subpoena complainant and respondent to submit affidavits and counter-affidavits 1. If the investigating officer finds prima facie evidence, he prepares an information and a resolution

 i.e., if fiscal finds reasonable ground to believe that a crime has been committed and accused is probably guilty thereof Prima facie evidence is that evidence which, standing alone, unexplained and uncontradicted, would be enough to merit a conviction of the accused iv. Otherwise, he recommends the dismissal of the complaint If the investigating officer is an MTC judge, and he finds that probable cause exists and that there is a need to place the accused under custody, then he may issue a warrant of arrest Flores vs. Sumaling What differentiates the present rule from the previous one is that while before, it was mandatory for the investigating judge to issue a warrant for the arrest of the accused if he found probable cause, the rule now is that the investigating judges power to order the arrest of the accused is limited to instances in which there is a necessity for placing him in custody in order not to frustrate the ends of justice. It is therefore error for the investigating judge to order the issuance of a warrant of arrest solely on his finding of probable cause, without making any finding of a necessity to place the accused in immediate custody to prevent a frustration of justice. 1. Investigating officer forwards records to the city fiscal or chief state prosecutor 1. City fiscal or state prosecutor either dismisses the complaint or files the information in court Decision prevails over decision of the MTC judge vii. Records will not form records of the case proper Court on its own or on motion may order production of record b. If conducted after warrantless arrest 1. If accused waives Art. 125, RPC and asks for a preliminary investigation, with the assistance of counsel, then the procedure for one prior to arrest is followed 1. Inquest conducted as follows (a) Fiscal determines the validity of the arrest (b) Fiscal determines existence of prima facie evidence based on the statements of the complainant, arresting officer and witnesses (c) Fiscal either dismisses the complaint and orders the immediate release of the accused, OR prepares and files an information While fiscal has quasi-judicial discretion whether or not to file an information, once it is filed with the court, the court acquires jurisdiction giving it discretion over the disposition of the case and the Sec. of Justice should refrain from entertaining petitions for review or appeals from the decision of fiscal (Crespo vs. Mogul; Velasquez vs. Undersecretary of Justice) NOTE: Information may be filed by offended party, peace officer or fiscal without preliminary investigation. 6. Remedies a. Motion for preliminary investigation

Filed when accused is arrested without warrant Must be with assistance of counsel and after waiving Art. 125, RPC b. Motion for preliminary investigation Filed within 5 days after accused learns an information against him has been filed without a preliminary investigation c. Motion for re-investigation d. Appeal to DOJ Filed upon denial of his motion for a preliminary investigation, on the ground that his rights to due process of law were violated, ousting the court of jurisdiction e. Petition for prohibition Filed with appellate court to stop the criminal proceedings Ordinarily, injunction will not lie but may be granted in certain cases When prohibition proper to restrain criminal proceedings: 1. When strong-arm tactics are used for vindictive purposes (Salonga vs. Cruz-Pano) 2. When the accused is deprived of his rights 3. When the statute on which the charge is based is null and void 4. When it will aid the administration of justice (Tatad vs. Sandiganbayan) 5. When multiplicity of suits will be avoided (Guingona vs. City Fiscal) Rule 113 Arrest 1. Arrest taking a person into custody in order that he may be bound to answer for the commission of some offense, made by an actual restraint of the person or by his submission to custody 2. General Rule: No person may be arrested without a warrant. Not all persons detained are arrested; only those detained to answer for an offense. Invitations are not arrests and are usually not unconstitutional, but in some cases may be taken as commands (Babst vs. NBI); however, the practice of issuing an invitation to a person who is investigated in connection with an offense he is suspected to have committed is considered as placing him under custodial investigation. (RA 7438) Warrants of arrest remain valid until arrest is effected, or the warrant is lifted Arrest may be made at any time of the day or night 3. Warrantless arrests by a peace officer or a private person

a. When person to be arrested is committing, attempting or has committed an offense b. When an offense has just been committed and the person making the arrest has personal knowledge that the person to be arrested committed it Warrantless arrest anytime for a continuing offense like rebellion, subversion (Umil vs. Ramos) The continuing crime, not the crime finally charged, needs only be the cause of the arrest (Umil vs. Ramos) c. When person to be arrested is an escaped detainee (either serving sentence or with case pending) 1. When a person lawfully arrested escapes 2. Bondsman, for purpose of surrendering the accused 3. Accused attempts to leave country without court permission 4. Procedure a. With warrant 1. Complainant files application with affidavits attached 2. Judge conducts ex parte preliminary examination to determine probable cause In determining probable cause, judge must: (1) Personally examine witness (2) Witness must be under oath (3) Examination must be reduced to writing (Luna vs. Plaza) In determining probable cause, the judge may rely on findings by responsible officer (Lim vs. Felix) iii. Judge issues warrant of arrest If without preliminary examination, considered irregular (Bagcal vs. Villaraza) iv. If peace officer is unable to serve warrant 10 days after issuance, he must file a report and explanation with judge within 10 days v. If warrant served (1) Person informed that he is being arrested (2) Informed of cause of his arrest (3) Officer may break door or window if admission to building is refused (4) Person physically restrained For private citizens making an arrest

May not do so except to do some service to humanity or justice (5) No violence or unnecessary force may be used (6) Officer may summon assistance (7) Person who escapes after arrest may be immediately pursued vi. Person arrested is brought to nearest police station or jail

b. Without warrant: 1. Person is arrested 1. Person arrested may waive right to Art. 125, RPC and ask for preliminary investigation or inquest Fiscal is not judicial authority contemplated under Art. 125 (Sayo vs. Chief of Police) 1. Fiscal files info 5. Requisites for a warrant of arrest: 1. Probable cause 2. Signed by judge 3. Specifically naming or particularly and sufficiently describing person to be arrested John Doe warrants are void for being general warrants (Pangandaman vs. Cesar) 6. Remedies a. Petition for writ of habeas corpus Filed with any court, to effect immediate release of the person detained Filed when a person is being illegally detained (without judicial process), or was illegally arrested (void warrant or unlawful warrantless arrest, or warrantless arrest beyond period with no information filed) Habeas corpus is not allowed when: 1. The person is in custody of an officer under process of law, and 2. The court had jurisdiction to issue the process (Luna vs. Plaza) If an arrest is improper, the remedy is a motion for quashal of the warrant of arrest and/or a motion to quash the information, not habeas corpus (Ilagan vs. Enrile) Habeas corpus is no longer available after an information has been filed, the information being the judicial process required by law (Ilagan vs. Enrile) Habeas corpus is proper when a person is being restrained illegally, e.g., imprisoned past maximum penalty allowed by law (Gumabon vs. Director of Prisons) b. Quashal of warrant of arrest Filed with court which issued the warrant of arrest when the warrant of arrest is fatally flawed c. Motion to quash information Filed with court when information against the person arrested has been filed

 Must be made in a special appearance before the court questioning only its lack of jurisdiction over the person of the accused Otherwise, the voluntary appearance of the person arrested by filing a motion before the court would be deemed a submission to the authority of the court, thus granting it whatever jurisdiction it lacked over the person Any irregularity in the arrest is cured when the petitioner submits himself to the jurisdiction of the court, e.g., by filing for bail (Bagcal vs. Villaraza) 7. V.V. Mendoza, Rights to Counsel in Custodial Investigation Evolution of rights of the accused under custodial investigation 1. All involuntary confession were inadmissible; accused had to prove involuntariness 1. Involuntary confessions were inadmissible only if they were false 2. Revert to exclusionary rule: any involuntary confession is inadmissible 1. Miranda rule: the accused must be informed of his rights 1. To remain silent 2. Against self-incrimination 3. To counsel 4. Definition of custodial investigation questioned 1. It begins only after arrest 2. Police investigations prior to arrest are not covered 3. The rights may be waived, but the rights to be informed of these rights,i.e., to warning, may not be waived 4. Warning must not only be said, officer must make sure the person arrested understands them specifically 5. Present rules 1. Voluntary confessions are admissible 2. Test of voluntariness determined on a case-tocase basis 3. Waiver of rights must not only be with counsel but must be in writing Confessions made without assistance of counsel are inadmissible as evidence to incriminate the accused, but they may be used to impeach the credibility of the accused, or they may be treated as verbal admission of the accused through the testimony of the witnesses (People vs. Molas) Rule 114 Bail 1. Bail security given for the release of a person in custody of law, furnished by him or a bondsman, conditioned upon his appearance before any court as required under the following conditions: 1. Undertaking effective upon approval and remains in force at all stages until promulgation of judgment, unless sooner cancelled 2. Accused shall appear before court when required 3. Failure to appear despite notice to him or the bondsman will waive his right to be present and trial shall proceed in absentia 4. Bondsman shall surrender accused for execution of judgment Bail applies to all persons detained, not just to those charged with the offense (Herras vs. Teehankee) Court has power to prohibit person out on bail from leaving the country (Manotoc, Jr. vs. CA) Bail implies delivery of the accused to the sureties who, though not holding him prisoner, may seize him and imprison him until they can deliver him to court (US vs. Bonoan)

2. General Rule: All persons are entitled to bail as a matter of right, except those charged with capital offenses. Right to bail traditionally unavailable to military personnel facing court martial, who are not in the same class as civilians (Comendador vs. de Villa) Bail should be available regardless of other circumstances or the merits of the case, if the health or the life of the detainee is in danger (Dela Rama vs. Peoples Court) Excessive bail is tantamount to denial of bail, which is unconstitutional (Dela Camara vs. Enage) 3. When bail is a matter of right Before or after conviction by MTC, MCTC, MJC Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment 4. When bail is discretionary (application filed with court where case is pending) 1. Upon conviction by RTC of an offense not punishable by death, reclusion perpetua or life imprisonment 2. Provisional liberty under same circs. but during period to appeal subject to consent of bondsman 3. In case he has applied for probation after final judgment, he may be allowed temporary liberty under his bail or recognizance 5. Procedure a. Offense charged is not capital: i. Accused applies for bail (1) Where information against him was filed or where case is pending (2) Absent (1), in another branch of the same court within the province or city where he is held (3) If arrested in another province, city or municipality, file with the RTC (4) Absent (3), with the MTC 1. Judge sets bail 1. Accused may move to reduce bail, and hearing will be set 2. Accused posts bail and deposits the same with the Municipal/City/Provincial Treasurer or, if cash, with the Collector of Internal Revenue 3. Accused is released b. Offense charged is capital: 1. Accused petitions for bail 2. Judge sets hearing to determine whether evidence of guilt is strong Ex-parte hearing on bail is arbitrary and unacceptable (Herras vs. Teehankee) 1. Prosecution presents evidence 1. Court may not force fiscal to produce evidence (Herras vs. Teehankee) 2. If evidence is strong, bail is denied

Otherwise, judge sets bail and procedure for non-capital offense is followed In capital crimes, judges discretion is limited to determining strength of evidence and does not cover determining whether bail should be allowed (Herras vs. Teehankee) Evidence must be strong that the accused is guilty of the capital offense charged, not just of any offense (Bernardez vs. Valera) 6. Bail bond an obligation under seal given by accused with one or more sureties and made payable to proper officer with the condition to be void upon performance by the accused of such acts as he may legally be required to perform 7. Recognizance 1. Obligation of record entered into before some court of magistrate duly authorized to take it, with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial 2. Does not require signature of accused for trial 3. Does not require signature of accused to be valid 8. Prosecution witnesses may be required to post bail to ensure their appearance at the trial,except: 1. Substitution of info (see R110, 14) 2. Court believes that material witness may not appear at the trial 9. When bail required under RA 6036 (violation of ordinance, light felony, criminal offense not higher that 6 month imprisonment and/or P2000 fine, or both) 1. a. Caught in flagrante 2. Confessed to commission of offense unless repudiated (force and intimidation) 3. Previously escaped, evaded sentence or jumped bail 4. Violation of Sec. 2 (fails to report to clerk of court periodically under his recognizance) 5. Recidivist, habitual delinquent previously convicted for an offense to which the law or ordinance attaches an equal or greater penalty or for 2 or more offenses to which it attaches a lighter penalty 6. Committed offense while on parole or under conditional pardon 7. Previously pardoned by municipal or city mayor for violation of ordinance for at least 2 times 10. Instances when accused may be released on recognizance: 1. Offense charged is a violation of an ordinance, a light felony or criminal offense the imposable penalty to which does not exceed 6 months and or P2000 fine 2. Person has been in custody for a period equal to or more than the minimum of the imposable principal penalty, without application of the Indeterminate Sentence Law or any modifying circumstance 3. Accused has applied for probation and before the same has been resolved, but NO BAIL was filed or accused is incapable of filing one 4. Youthful offender held for physical and mental examination, trial or appeal, if unable to furnish bail 11. Cancellation of bail a. Upon application with the court and due notice to the fiscal 1. Accused surrenders back to custody

1.

1.

Accused dies

b. Automatic cancellation 1. Case is dismissed 1. Accused is acquitted 2. Accused is convicted and surrenders for execution of judgment 12. When bail cancelled or denied: after RTC imposes imprisonment exceeding 6 years, but not more than 20 years, and: 1. Accused is a recidivist, quasi-recidivist, habitual delinquent or guilty of the aggravating circumstance of reiteration; 2. Provisionally escaped, evaded sentence, violated provisions of bail; 3. Committed offense while on probation, parole, or conditional pardon; 4. Probability of flight; or 5. Undue risk that during appeal, he may commit another crime 13. When bail is forfeited a. Accused fails to appear before court when required 30 days for bondsman to show cause why judgment should not be rendered against him b. Bondsman fails to produce him within 30 days c. Bondsman fails to satisfactorily explain to the court why accused did not appear when first required to do so Sureties guarantee only appearance of the accused, not his conduct (US vs. Bonoan) Sureties exonerated if appearance made impossible by an act of God, the obligee or the law (US vs. Bonoan) 14. Provisional forfeiture 1. Within 30 days, produce the body or give reason for non-production AND 2. Explain satisfactorily the absence of the accused when first required to appear 15. Remedies 1. Application for bail, when bail can be availed of as a matter of right 2. Petition for bail, when the offense charged is a capital offense For judge to set hearing for the determination of strength of evidence of guilt 16. Circumstances to be considered in fixing amount of bail: 1. Financial ability of accused to give bail; 2. Nature and circumstances of offense; 3. Penalty of offense charged; 4. Character and reputation of accused; 5. Age and health of accused 6. Weight of evidence against accused 7. Probability of accused appearing for trial;

8. Forfeiture of other bonds; 9. Fact that accused was a fugitive from justice when arrested; and 10. Pendency of other cases in which the accused is under bond 17. Notes: 1. Posting bail waives the right to question any irregularity attending the arrest of a person (Callanta vs. Villanueva). However, this does not result in waiver of the inadmissibility of the articles seized incidentally to such illegal arrest. 2. Accused waived the right to question any irregularity in the conduct of the preliminary investigation when he failed to do so before entering his plea (People vs. Dela Cerna) 3. Accused out on bail may be re-arrested if he attempts to depart from the Philippines without prior court permission (warrantless arrest allowed). Rule 126 Search and Seizure 1. Search warrant an order in writing issued in the name of the People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property described therein and bring it before the court Cannot be issued to look for evidence (Uy Khetin vs. Villareal) Seizing objects to be used as evidence is equivalent to forcing one to be a witness against himself (Uy Khetin vs. Villareal) For a warrant to be valid, it must meet the requirements set by law (Burgos vs. Chief of Staff) Tapping conversations is equivalent to a search and seizure (US vs. Katz) 2. General Rule: No search or seizure can be conducted unless it is authorized by a search warrant. Evidence gathered from an illegal search and seizure is inadmissible. Warrantless searches are illegal, unreasonable and unconstitutional (Alvarez vs. CFI) It is not the police action which is impermissible, but the procedure and unreasonable character by which it is exercised (Guazon vs. de Villa) Court gains jurisdiction over items seized by a valid search warrant and returned to it, and such is not an unconstitutional deprivation of property (Villanueva vs. Querubin) Evidence from an illegal search may be used as evidence, if no objection is raised (Stonehill vs. Diokno) Right against unreasonable search and seizure may be waived, but for the waiver to be effective: 1. The right must exist 2. Person must be aware of the right 3. Person clearly shows the intent to relinquish such right No waiver against unreasonable search and seizure when one compromises the criminal proceedings (Alvarez vs. CFI) There is no waiver of right when evidence of coercion is present (Roan vs. Gonzales) 3. Requisites of a valid search warrant a. Issued upon probable cause Probable cause such facts and circumstances which would lead a reasonably prudent man to believe that a crime has been committed and the thing to be searched for and seized is in the place to be searched

b. Probable cause is personally determined by the issuing judge Hence, signed by him By any RTC, to be served anywhere in the country, for an offense which occurred anywhere in the country (Malaloan vs. CA) c. Issuing judge personally examined, in the form of searching questions, the appellant and his witness and took down their written depositions d. Search warrant particularly describes or identifies the property to be seized Property which men may lawfully possess may not be the object of a search warrant (Uy Khetin vs. Villareal) Nature of goods may allow description to be general or not too technical (Alvarez vs. CFI) e. Particularly describes the place to be searched f. It shall issue only for one specific offense Otherwise, cannot be said to have issued upon probable cause (Asian Surety vs. Herrera) Absence of specific offense makes impossible determination of probable cause (Stonehill vs. Diokno) g. Was not issued for more than 10 days prior to a search made pursuant thereto (search warrant becomes void after 10 days) h. Indicates time, if to be served at night 4. When a search warrant may be said to particularly describe the thing to be seized 1. Description is as specific as circumstances allow 2. Expresses a conclusion of fact by which the warrant officer may be guided 3. Things described are limited to those which bear a direct relation to the offense for which the warrant is issued 5. Procedure a. Complainant files application, attaches affidavits Oath requires that the person taking it personally knows the facts of the case (People vs. Sy Juco) Affidavits submitted must state that the premises is occupied by the person against whom the warrant is issued, that the objects to be seized are fruits or means of committing a crime, and that they belong to the same person, thus, not affecting third persons (People vs. Sy Juco) When complainants knowledge is hearsay, affidavits of witnesses are necessary ( Alvarez vs. CFI) b. Judge conducts ex parte preliminary examination of complainant and witnesses under oath to determine probable cause Judge must ask probing questions, not just repeat facts in the affidavit (Roan vs. Gonzales) c. Judge issues search warrant good for 10 days

d. Peace officer in presence of occupant, members of the family OR 2 witnesses of sufficient age and discretion residing in the same locality Search may last for more than a day as long as it is part of the same search for the same purpose and of the same place (Uy Khetin vs. Villareal) e. Peace officer leaves receipt with occupant at place searched f. Peace officer files return of search warrant and inventory, and surrenders items seized to receiving court (not necessarily court which issued the warrant) Items seized illegally must remain in custodia legis pending resolution of the case (Roan vs. Gonzales) 6. Remedies from an unlawful search 1. MTQ the warrant 2. Motion to suppress as evidence the objects illegally taken 3. Return of property illegally seized 7. When a search may be validly conducted without a warrant 1. Without consent of person searched 2. When the search is incident to a lawful arrest 3. Personal knowledge of the arresting person (Posadas vs. CA) 4. Limited to: (1) Immediate time of arrest (2) Immediate vicinity of the arrest (3) Weapons and things which may be used as proof of offense charged (Nolasco vs. Pano) iii. Subject in an offense which is mala prohibita cannot be summarily seized (Roan vs. Gonzales) iv. May extend beyond arrestee to include premises and surrounding under his immediate control 1. Border searches (customs, mail and airport) 2. Vessels and aircrafts for violation of Tariff and Customs Code, EXCEPT dwelling houses 3. Plain view 4. Moving vehicle 5. Hot pursuit 6. Stop-and-frisk, reasonable check-points 7. Private searches with no state action (People vs. Marti) 8. Inspection of building and premises for enforcement of fire, sanitary and building regulations 8. Person making the arrest may take from the arrestee 1. Properties used in the commission of the crime 2. Fruits or proceeds thereof 3. Property which may furnish the arrestee with a weapon against the arresting person 4. Property which may be used as evidence at the trial 9. NOTES: Constitution, Art. III, Sec. 2

The right of the people to be secure in their persons, papers, houses and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. Constitution, Art. III, Sec. 3 1. The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law. 2. Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in the proceeding.