Formulation of pleadings

Pleading defined.
Pleadings are the written allegations of the parties of their respective claims and defences submitted to
the court for trial and judgement.
Pleadings are written allegations of what is affirmed on one side or denied on the other.
Pleading should be construed liberally, in order that the litigants may have ample opportunity to prove
their respective claims, and possible denial of substantial justice, due to technicalities, may be avoided.

Formal requirements of pleadings.

A pleading must meet the following formal requirements:
Caption. Each pleading shall contain a caption setting forth the name of the court, the title of the action,
the file number if assigned and a designation of the pleading.
The rule is well settled that it is not the caption of the pleading, but the allegations thereof that determines
the nature of the action.
Title. In the complaint the title of the action shall include the names of the parties; but in other pleadings
it shall be sufficient if the name of the first party on each side be stated with an appropriate indication
when there are other parties.
It should be noted that the full names of the parties should be given in the title of the action. It is desirable
for purposes of certainty to state their full names when known. Where names are not known such
specification as the circumstances permit will suffice to authorize the court to dispose of the real issues in
the case on application for preliminary injunction, and on the trial of the case on the merits proper
amendments can be suggested and made to get all parties by proper names before the court.
The names of the parties in an action need not appear in the body of the complaint; it is sufficient if they
are stated in the title.
Paragraphs. Every pleading shall be divided into paragraphs so numbered as to be readily identified
each of which shall contain a statement of a single set of circumstances so far as that can be done with
convenience. A paragraph may be referred to by a number in all succeeding pleadings.
Different set of circumstances should not be commingled in one paragraph in a complaint but the
complaint should be set out in paragraphs, each limited as far as practicable to a statement to a single set
of circumstances.
Headings. When two or more causes of action are joined, the statement of the first shall be prefaced by
the words first cause of action, of the second by second cause of action, and so on for the others.
When one or more in the paragraphs in the answer are addressed to one of several causes of action in
the complaint they shall be prefaced by the words answer to the first cause of action or answer to the
second cause of action and so on; and when one or more paragraphs of the answer are addressed to
several causes of action they shall be prefaced by words to that effect.
Where causes of action may not be properly united, but are not separately stated, the remedy is not by
motion to dismiss, but by a motion to make the pleading more definite and certain, by separating and
distinctly stating the different causes of action.

The defect of a failure to state separately the cause of action united in the complaint cannot be a ground
for a motion to dismiss the action.
When one or more paragraphs in the answer are addressed to one of several causes of action in the
complaint without being prefaced of the words Answer to First Cause of Action or Answer to Second
Cause of Action, a motion to amend is the proper remedy.
Signature and address. Every pleading of a party represented by an attorney shall be signed by at least
one attorney of record in his individual name, whose address shall be stated. A party who is not
represented by an attorney shall sign his pleading and state his address. Except when otherwise
specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The
signature of an attorney constitute a certificate by him that he had read the pleading; that to the best of his
knowledge, information, and belief there is good ground to support it; and that it is not interposed for
delay. If a pleading is not signed or is signed with intent to defeat the purpose of this rule, it may be
stricken out as sham and false and the action may proceed as though the pleading has not been served.
For a wilful violation of this rule an attorney may be subjected to appropriate disciplinary action. Similar
action may be taken if scandalous or indecent matter in inserted.
Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in
his individual name, whose address shall be stated.
All pleadings must be signed and must state the address of the signer, who may be a litigant not
represented by an attorney. If the litigant is represented by more than one attorney, at least one attorney
of record must sign his individual name and state his address. The purpose of the rule in requiring the
signature of at least one attorney of record is to hold the attorney of record to strict accountability.
The signature of an attorney constitutes a certificate by him that (a) he has read the pleading, (b) that to
the best of his knowledge, information, and belief there is good ground to support it; and (c) that it is not
interposed for delay. This rule is designed to lay upon counsel a definite moral and professional obligation
in drawing up and representing pleadings, motions and other papers. His signature is a certificate to good
faith.
If a lawyer signs a pleading knowing that there is no ground to support it or it is interposed for delay, or
with intent to defeat the purpose of this rule, or insert in the pleading scandalous or indecent matter, he
may be subjected to appropriate disciplinary action. Thus, an attorney may be suspended or disbarred for
preparing and having, or permitting his client to verify, pleadings which he knows or has reason to believe
are false; presenting false or unfounded affidavits for the purpose of deceiving or misleading the court;
commencing fictitious or unfounded litigation; colluding with a debtor or enable him, under color of law, to
defraud his creditors.
Verification. A pleading is verified only by an affidavit stating that the person verifying has read the
pleading and that the allegations thereof are true of his own knowledge.
Verifications based on information and belief, or upon knowledge, information and belief shall be
deemed insufficient.
To verify a pleading is to state, in writing, signed by the affiant and under sanction of an oath taken before
some competent officer, that the matters of fact in the pleading are true.
The court has consistently held that the reglementary phrase true of his own knowledge is not talismanic
formula, the use of which insure the granting of a petition and non-use whereof would result in a decree of
dismissal. It has ruled absence of verification not to be fatally defective in meritorious cases. What is
important is that the object of the Rule, to insure good faith and veracity in the material averments of the
petition, be compiled with, so that the court may properly act on the case. (Phil. Bank of Commerce vs.
Macadaeg, 109 Phil. 98, 1960).

Lack of, or defect in the verification of the pleading may be waived by the adverse partys failure to make
a proper and timely objection thereto. Where a party proceeds with the case as thought his adversarys
pleading were verified, he waives the lack of verification of such pleading.
Allegations in pleadings.
Every pleading shall contain in a methodical and logical form, a plain, concise and direct statement of the
ultimate facts on which the party pleading relies for his claim or defense, as the case may be, omitting the
statement of mere evidentiary facts.
A pleading should recite all the facts to which the courts attention is called, stated in a clear, coherent and
concise manner, without requiring any reference to or examination of the annexes. A reading of the latter
should not be made necessary except for the purpose of checking or verifying the correctness or
completeness of the fact alleged in the pleading, or of determining whether the stand taken by the pleader
is fairly and adequately presented. In other words, the pleading must contain brief summary of the
annexes referred therein. Pleading not drafted in accordance with the foregoing principle consume the
time of the court unnecessarily, to the detriment of litigants who are more careful in their pleadings, and
hinder instead of aiding the prompt administration of justice.

Civil case
Complaint.
The complaint is a concise statement of the ultimate facts constituting the plaintiffs cause or causes of
action. It shall specify the relief sought, but it may add a general prayer for such further or other relief as
may be deemed just and equitable. The names and residences of the parties plaintiff and defendant must
be stated in the complaint.
The purpose of an action or suit and the law to govern it, including the period of prescription, is to be
determined not by the claim of the party filing the action, made in his argument or brief, but rather by the
complaint itself, its allegations and the prayer for relief.

Parties.
To every civil action there are necessarily, two or more parties: the person who seeks to establish a right
in himself, known as the plaintiff, and the person upon whom the corresponding duty or liability is sought
to be imposed, known as the defendant.
In appellate courts, the party bringing the case shall be called the appellant and the adverse party the
appellee.
Only natural and juridical persons or entities authorized by law may be parties in a civil action.
Natural person has been defined as an individual; a private person, as distinguished from an artificial
person; a corporation.
Under the Civil Code, the following are juridical person:
1. The state and its political subdivisions;
2. Other corporations, institutions and entities for public interest or purpose, created by law; their
personality begins as soon as they have been constituted according to law;
3. Corporations, partnerships and associations for private interest or purpose to which the law
grants a juridical personality, separate and distinct from that of each shareholder, partner or
member.

Cause of action
A cause of action has been defined by the Supreme Court as an act or omission of one party in violation
of the legal right or rights of the other; and its essential elements are legal right of the plaintiff, correlative
obligation of the defendant, and act or omission of the defendant in violation of said legal right.
To determine whether or not a complaint states a cause of action, only the allegations of the complaint
taking them to be true should be considered, and that courts should not go beyond and outside of those
averred facts.

Ultimate facts.
Ultimate facts are important and substantial facts which either directly form the basis of the primary right
and duty, or which directly make up the wrongful acts or omissions of the defendant. The term does not
refer to the details of probative matter or particulars of evidence by which these material elements are to
be established. It refers to principal, determinate facts, upon the existence of which, the entire cause of
action rests.
The following question furnishes an absolute test as to the essentiality of ultimate facts of any allegation:
Can it be made the subject of a material issue? In other words, if it be denied, will the failure to prove it
decide the case in whole or in part? If it will not, the fact is not essential; it is not one of those which
constitute the cause of action, defense, or reply.
In the language of the Supreme Court the test sufficiency of a complaint is, could a component court
render a valid judgement upon the facts alleged in it, if admitted or proved. If it could, then the allegations
are sufficient.
There are two kinds of facts which forms the basis of the action and upon the proof of which the right to a
judgement vests. These are called the ultimate facts and should be alleged. The other class of facts are
those which are accessory to the main fact or which relate to it in such a way as tend to prove it. These
facts, which are called evidential facts, are matters of testimony and need not be alleged in a complaint.

Answer.
An answer is a pleading in which a defendant or other adverse party sets forth the negative and
affirmative defenses upon which he relies.
Answers are classified into two: (1) Those which consist of specific denials and therefore serve the sole
purpose raising a direct issue upon the plaintiffs allegation. When the answer controverts the allegation in
the complaint thereby raising an issue, the answer is sufficient in law because the defendant is not called
upon to formulate any theory beyond stating the bare facts in support of its denial of the right of the
plaintiff. (2) The other kind of answers are those which state a new matter, that is, facts different from
those averred by the plaintiff, and not embraced within the judicial injury into their truth. This kind of
answer is again subdivided into (a) those in which the new matter is simply defensive, and, if true,
destroy s or bars the plaintiffs right of action, and (b) those in which the new matter is the statement of
an independent cause of action in favour of the defendant against the plaintiff, as a counter claim, which
is to be tried at the same time with that set up by the plaintiff, to the end that a recovery upon it may be
used in opposition to the recovery upon the plaintiffs demand, by either diminishing, equally, or exceeding
the same. It is plain, from this brief description, that the answers included in the latter subdivision are not,
in any true sense of the word, defenses; they do not defeat or bar the plaintiffs right of action. They are in
truth independent causes action in favor of the defendant, which for purposes of convenience merely, are
tried and determined at one and at the same time.

Defenses.
An answer embraces two classes of defenses:
(a) Negative defense is the specific denial of the material fact or facts alleged in the complaint
essential to the plaintiffs cause or causes of action.
(b) An affirmative defense is an allegation of new matter which, while admitting the material
allegations of the complaint, expressly or impliedly, would nevertheless prevent or bar recovery
by the plaintiff. The affirmative defenses include fraud, statute of limitations, release, payment
illegality, statute of fraud, estoppels, former recovery, discharge in bankruptcy, and all other
matter by way of confession and avoidance.

Criminal Case
Complaint.
Complaint is a sworn written statement charging a person with an offense, subscribed by
the offended party, any peace officer charged with the enforcement of the law violated.
The right to file a complaint charging the commission of a crime is personal. This is so,
because as required in Section 2 of Rule 11, a complaint charging a person with an
offense must be subscribed by the offended party. The right being personal, if the
complainant should die after the filing of the complaint, said complaint is abated. This
ruling was rendered by the Supreme Court in a case for mandamus instituted for the
purpose of compelling the Judge of the Court of the First Instance (now Regional Trial
Court) of Quezon to conduct a preliminary investigation of complaint filed by the
complainants charging the respondents (the provincial fiscal of Quezon, the Municipal
Mayor of Candelaria, the clerk of the Justice of the Peace (now Municipal Circuit Trial
Court) of Candelaria, with the crime of falsification of public documents. The complainants
having died in Bilibid Prison, their son and brother prayed that they be allowed to
substitute the deceased in the proceedings for mandamus. The Supreme Court denied the
petition and laid down the ruling quoted above. However, where the offense charged in a
criminal complaint or information is one against the state, involving peace and order, and
not such as can only be initiated by complaint of the offended party, as in connection with
charges of adultery or concubinage, death of the offended party before final conviction of
the defendant will not abate the prosecution.
In a subsequent case, the Supreme Court held: A widow may be considered an offended
party within the meaning of the applicable Rules of Court provision, entitled to file a
complaint for the murder of her deceased husband.
The injury to the widow loss of right of consortium material support should be
sufficient to consider her an offended party within the meaning of the Rules of Court
provision. A contrary holding is likely to be attended with deplorable consequences,
where, as in this case, the accused is a member of the police force. Under such
circumstances, reliance on that portion of the rule empowering any peace officer or any
employee of the government or governmental institution in charge of the enforcement of
execution of the law violated to file the complaint mig ht in not a few instances prove futile.
The Guevarra decision (77 Phil. 615) may be distinguished, dealing as it did with the
question of whether or not a prosecution for the crime of falsification of public documents
could be continued by a son and a brother or petitioners, who apparently died in the
meanwhile with the instant case. The facts are differnet. Whatever statement, general

in charavter found expression in the opinion of the Court as well as the concurrence of
Justice Feria should be thus limited to the particular situation that called for such
pronouncement. There should be no doubt that our present holding renders untenable the
implication apparently yeilded by the Guevarra decision that a widow may not be
considered an offended party within the meaning of the applicable Rules of Court
provision.
A complaint differs from an information in that the former is signed and sworn to by the
offended party, while the latter must be file and signed by the prosecuting officer or his
deputy.
The crimes of adultery and concubinage shall not be prosecuted except upon a complaint
filed by the offended spouse. The offended party cannot institute a criminal prosecution
without including both the guilty parties if they are both alive, nor, in any case, if the
offended party has consented to the offense or pardoned the offenders.
The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be
prosecuted except upon a complaint filed by the offended party or her parents,
grandparents, or guardian, nor in any case, if the offended has been expressly pardoned
by the above-named persons, as the case may be.
No criminal action for defamation which consists in the imputation of an offense mentioned
above, shall be brought except at the instance of and upon complaint filed by the offended
party.
The requirement that the crimes of adultery and concubinage, seduction, abduction, rape,
acts of lasciviousness and defamation which consist in the imputation of a crime which
cannot be prosecuted de oficio, must be prosecuted by a complaint filed by the offended
party, is jurisdictional and the Supreme Court has invariably maintained strict compliance
with this jurisdictional requirement.
When a complaint for a private offense is filed by the offended party, the court acquire
jurisdiction over the subject-matter of the action. Otherwise, the court does not acquire
jurisdiction to try the defendant and the trial and judgement are a nullity.
The right and power of the court to try the accused for seduction, abduction, rape, or act
of lasciviousness, attaches upon the filing of the complaint by the offended party or by any
person authorized by law, that is, her parents, grandparents, or guardian.
The offended party, even if she were a minor has the right to institute the prosecution for
the above offenses, independently of her parents, grandparents, or guardian, unless she is
incompetent or incapable of doing so upon grounds other than her minority. Where the
offended party who is a minor fails to file the complaint, he parents, grandparents, or
guardian may file the same. The right to file the action granted to the parents,
grandparents, or guardian shall be exclusive of all other persons and shall be exercised
successively in the order herein provided. However, in case the offended party dies or
becomes incapacitated before she could file the complaint and has no known parents,
grandparents or guardian, the state shall initiate the criminal action in her behalf.

Information.
An information is an accusation in writing charging a person with an offense subscribed by
the fiscal and filed with the court.

In defining information, the rule states that it is an accusation in writing charging a person
with an offense x x x. The word person as used in this section refers to natural person
only. So it was held that corporations cannot be prosecuted criminally and brought into
court. The only process known to the Code of Criminal Procedure after an information is
filed is an order of arrest of the accused, and only natural persons can be arrested. A
corporation is an artificial being created by operation of law.
The rule requires that the information be subscribed by the fiscal. It is valid information
signed by a competent officer which, among other requisites, confers jurisdiction on the
court over the person of the accused and the subject matter of the accusation. An
information not signed by a competent officer cannot be cured by silence, acquiescence,
or even by express consent.
An information is not an information until so presented in court. Section 4 of Rule 110
requires that an information be filed with the court.

Defenses.
If the accused enters a plea of not guilty and thus puts in issue the entire question of guilt,
the prosecution must prove its whole case at the trial. For his part the accused is
permitted a wide range of matters to be presented in defense. He may establish the
defense justification or of exemption from criminal liability, in either of which case he
necessarily admits the commission of the acts charged in the complaint or information, but
denies criminal liability. In lieu of the foregoing, the defendant may absolutely deny having
committed the offense charged. In certain crimes specific defenses may be proved. For
instance is the so-called private crimes consent of the offended party or the marriage
between the offender and offended, etc., may be valid defense. These and other defenses
are discussed hereunder.

Designation of the offense.

Whenever possible, a complaint or information should state the designation given to the
offense by the statute, besides the statement of the acts or omission constituting the
same, and if there is no such designation, reference should be made to the section or
subsection of the statute punishing it. In People vs. Arnault, the Supreme Court held: The
real nature of the crime charges in an information or complaints is determined not by the
title of the complaint nor by the specification of the provision of law alleged to have been
violated, but by the facts alleged in the complaint or information. So, an error in specifying
a wrong provision of law applicable does not vitiate the information if it clearly mentions
the crime charged and recites the facts constituting it.

Name of the accused.

A 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, or if his name cannot be
discovered he must be described under a fictitious name with a statement that his true
name is unknown. If in the course of the proceeding the true name of the accused is
disclosed by him, or appears in some other manner to the court, the true name of the
accused shall be inserted in the complaint or information and record. The name of the
defendant may be corrected by proper amendment of the information or complaint by leave
of court. Thus, the true family name of the accused in a case should be spelled Vayson

but in the information it was written Baison. The court held that a motion, oral or written
may be presented asking that the family name be change from Baison to Vayson.

Sufficiency of complaint or information.

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 time of the commission of the
offense, and the place wherein the offense was committed.
When an offense is committed by more than one person, all of them shall be included in
the complaint or information.
No man can be put upon his trial for an offense without being formally accused, and we
have seen the different modes of accusation, namely, by complaint and by information. It
is not only necessary that there shall be an accusation, but it must be in the form required
by the Rule.
The minimum requirements are that the complaint or information should state: (a) the
name of the accused; (b) when an offense is committed by more than one person, all of
them shall be included in the complaint or information; (c) the designation of the offense
by the statute; (d) the acts or omissions complained of as constituting the offense; (e) the
name of the offended party; (f) the approximate time of the commission of the offense; and
(g) the place wherein the offense was committed. When an offense is committed by more
than one person, all of them shall be included in the complaint or information.
Some offenses are of such nature that one person only can commit them, for instance,
perjury, and every person whom commits such offense must be prosecuted separately. On
the other hand, there are some offenses which cannot be committed by one person alone,
adultery and concubinage or conspiracy to commit treason, and where several persons
joined in the commission of an offense they should be included in the information. The rule
is, therefore, that where several persons join in the commission of an offense, they must
be included in the complaint or information, and one or all may be convicted.

Cause of accusation.
The acts or omissions complained of as constituting the offense must be stated in ordinary and concise
language without repetition, not necessarily in the terms of the statute defining the offense, but in such
forms as in is sufficient to enable a person of common understanding to know what offense is intended to
be charged, and enable the court to pronounce proper judgement.
It is constitutional right of the accused to be informed of the nature and cause of the accusation against
him and under this provision, the accused is entitled to a plain statement of the charge against him.
Accordingly, Section 8, Rule 110 of the Rules of court, provides that the acts or omissions complained of
as constituting the offense must be stated in ordinary or concise language to enable a person of common
understanding to know what offense is intended to be charged.
If, after reading the information, said the Supreme Court, the accused, being a man of common
understanding can not tell to what acts of his done in the past the information refers, it is insufficient.
The Supreme Court also held that the no information for a statutory crime will be held to be good if it
does not accurately and clearly alleged all of the ingredients of which the offense is composed.

The main purpose of requiring the various elements of a crime to be set out in an information is to enable
the accused to suitably prepare his defense. He is presumed to be innocent, and therefore to have no
independent knowledge of the facts that constitute the offense.
Any defect in the accusation other than that f lack of jurisdiction over the subject matter may be cured by
good and sufficient evidence introduced by the prosecution and admitted by the trial court, without any
objection on the part of the defense, and the accused may be legally convicted of the offense intended to
be charge d and so established by the evidence.

Place of the commission of the offense.

The complaint or information is sufficient if it can be understood therefrom that the offense was committed
or some of the essential ingredients thereof occurred at some place within the jurisdiction of the court,
unless the particular place wherein it was committed constitutes an essential elements of the offense or is
necessary for identifying the offense charged.
In criminal proceeding, said the Supreme Court the rule is that one cannot be held to answer for
any crime committed by him except in the jurisdiction where it was committed. Said rule is based on the
legal provision which prescribes the essential requisites of a good complaint or information, one of which
is the allegation that the crime was committed within the jurisdiction of the court where the complaint or
information is filed and that such court has authority to try it. As was said in the case of United State vs.
Cunanan, the jurisdiction of the Court of First Instance of the Philippine Islands in criminal cases, is
limited to certain well-defined territory, so that they cannot take jurisdiction of person charged with an
offense alleged to have been committed outside of that limited territory.
Where the particular place in which the offense was committed constitutes an essential element of the
offense, such place must be specifically stated in the information. Thus, a prosecution for violation of
Section 52 of the Revise Election Code which provides It is unlawful to establish in any polling place or
within a radius of thirty meters thereof, on the days and hours of registration, voting and canvas, booths of
any kind of sale, dispensing or display of wares, merchandise or refreshments, whether solid or liquid, or
for any other purpose, it is not sufficient to state that the offense was committed in a certain municipality
within the jurisdiction of a court. The particular place that is the polling place, or within a radius of thirty
meters thereof must be positively averred, otherwise the information would state no offense at all.
The rule provides that the complaint or information is sufficient it can not be understood thereof that x x x
some of the essential ingredients thereof occurred at some place within the jurisdiction of the court x x x.
This provision refers to a continuing offense which is defined as a continuous, unlawful act or series of
acts set on foot by a single impulse and operated by an unintermittent force, however, long a time it may
occupy.
A continuing offense may be prospected in the court under whose jurisdiction it is committed, is being
committed or continue to be committed. Thus, the Supreme Court has held: The crimes of estafa and
malversation of public funds can be prosecuted in the court under whose jurisdiction they are committed,
they are being committed or continue to be committed, and where the accused of said crime in under
obligation to account for the things he had received and which he has misappropriated. This is so
because the crimes of estafa which are usually committed partly in one municipality or province and partly
in other municipalities or provincies are what can be called, and fact are called, continuous felonies.
The offense of maintaining a gambling house is a continuing offense.
Kidnapping is also a continuing offense.
Where the particular place where the offense was committed is necessary for identifying the offense
charged such place must be specifically stated in the information. Thus, in an information for arson,

trespass to dwelling, robbery in an inhabited house or public building or edifice devoted to worship,
robbery in an uninhabited place or in a private building, the particular place must be particularly stated in
the information, not as a venue but as a matter of local description for purposes of identifying the offense
charges.
Where an information omits to state the place of the offense charged, this is a fatal defect and the
information may be quashed. Likewise, if the place stated in the information does not correspond to the
jurisdiction of the court, this is a fatal defect and the information may be quashed. But when the place of
the offense charge is not an essential element of the crime charged, conviction may be and had no proof
of the commission of the crime, even if it appears that the crime was not committed at the precise place
alleged, provided the evidence shows that the crime charged was in fact committed at a place within the
jurisdiction of the court.
The court may take judicial notice that the place of the commission of the offense, as alleged in the
information, is within the territorial jurisdiction of the court.

Time of the commission of the offense.

It is not necessary to state in the complaint or information the precise time at which the
offense was committed except when time is a material ingredient of the offense, but the
act may be alleged to have been committed at any time as near to the actual date at which
the offense was committed as the information or complaint will permit.
According to the Supreme Court: W here time is not an essential element of the crime
charged, conviction may be had on proof of the commission of the crime, even if it appears
that the specific crime charged was in fact committed prior to the date of the filling of the
complaint or information and within the period of the statute of limitations.
A variance between the time alleged and the time proved, as well as the failure to allege in
the information or prove on the trial a specific date on which the crime was committed, is
of no consequence unless the accused takes advantage thereof sometime during the trial
by appropriate objection and satisfies the trial court that he had been prejudiced by reason
thereof. In other words, if such a variance between the time alleged and the time proven
occurs and it is shown to the trial court that the defendant is surprised thereby, and that,
by reason of the surprise, he is unable to defend himself properly, the court may, in the
exercise of sound discretion based on all the circumstances, order the information
amended so as to set forth the correct date and may grant an adjournment of the trial for
such a length of time as will enable the defendant to prepare himself to meet the variance
in date which was the cause of his surprise. But if the defendant fails to object, then he
can no longer raise the question of variance between the time averred and the time proved
and claim that he had been prejudiced by thereof.
The precise time of the commission of the offense must be stated in the complaint or
information if such time is a material ingredient of the offense. So an act prohibited by
statute on certain days only must be charged as having been committed on one of such
days. Where an act is by statute made criminal if committed within a certain period, it is
sufficient that the date alleged appears to be within such period.
In a prosecution for violation of the Revised Election Code, time is an element of the
offense.
When the time becomes material under the statute of limitations the same must be alleged
in the information or complaint. It has been said that the allegation of the time of
commission of the offense is jurisdictional where the statute requires an information to be
filed within a specified time after the commission of the offense. This rule may be applies

to the prosecution for violation of the election law which specifically provides the election
offense shall prescribe after two years from the date of their commission.

Rules of pleading in criminal cases.

Since it is the constitutional right of the accused to be informed of the nature and cause of the accusation
against him, it is necessary that there should be reasonable certainty in the statement of accusation. It is
said that a somewhat greater degree of certainty is required in criminal pleadings than in civil pleadings
because of the penal consequences involved.
On the basis of this requirement, the following rules on criminal pleading have been established:
(1)
(2)
(3)
(4)
(5)
(6)
(7)

The facts must be alleged in positive terms and not by way or recital;
The offense must not be stated hypothetically or argumentatively;
The offense must not be stated in the disjunctive or in the alternative;
Ambiguous allegations not permissible;
The statement of a conclusion of law without showing the facts is bad;
Matters of evidence need not be averted;
Matters that may be presumed or of which the court may take judicial notice must be alleged
if necessary to the description of the offense charged, although such facts need not be
proven;
(8) Matters of defense should not be alleged in information as a general rule;
(9) An information repugnant in a material part must be avoided;
(10)Matter which is necessary to the commission of the offense must be averred although
negative in form;
(11)An act of nonfeasance charged in an information may as a rule be alleged only in general
terms in a negative way;
(12)Where spoken words are the gist of the offense, they must be accurately set out in the
information;
(13)Where a written instrument enters into an offense as a part or basis thereof or when its
proper construction is material, the instrument should be set out in the information;
(14)Inducement and innuendo must be averred;
(15)Surplus age must be avoided;
(16)Use of abbreviations, numerals and symbols must be avoided(115)

Name of the offended party.

A complaint or information must state the name and surname of the person against whom or against
whose property the offense was committed, or any appellation or nickname by which such person has
been or is known, and if there is no better way of identifying him, he must be described under a fictitious
name.
(a) In case of offenses against property, if the name of the offended party is unknown, the property,
subject matter of the offense, must be described with such particularity as to properly identify the
particular offense charged.
(b) If in the course of the trial the true name of the person against whom or against whose property
the offense was committed is disclosed or ascertained, the court must cause the true name to be
inserted in the complaint or information, or record.
(c) If the offended party is a corporation or any other juridical person, it is sufficient to state the name
of such corporation or juridical person, or any name or designation by which it has been or is
known, or by which it may be identified, without necessity of averring that it is corporation, or that
it is not organized in accordance with law.

It is frequently necessary, where the principle is followed that the party accused shall be fully appraised of
the nature of identity of the offense with which he is charged, to set out the name of the person against
whom the offense was committed, if known, as a circumstance descriptive of its identity, not as a
substantive part of the offense itself.
An error in putting in the information the name of the offended party is material matter in the case when it
necessarily affects the identification of the act charged.
If the name or surname of the person against whom the offense was committed is not known, the
complaint or information must aver that fact and state any appellation or nickname by which such person
has been or is known, and if there is no better way of identifying him, he must be describe under a
fictitious name. Such an averment is presumed to be true in the absence of any evidence on the subject.
Where the name of the injured party is necessary as a matter essential to the proper description of the
offense, a variance between the allegation in the complaint as to the ownership of the property and the
proof adduced at the trial is fatal. Thus, several persons were accused to robbery with homicide, in that
they took and appropriated to themselves, with intent of gain and against the will of the owner thereof,
certain things which were the property of B in consequence of which the accused killed C, D and E. The
proof adduced at the trial showed that the owner of the property was not B and C. The accused asked for
the dismissal of the complaint for robbery with homicide against them on the ground of variance between
the allegation in the complaint as to the ownership of the property and the proof adduced at the trial. The
Supreme Court held: The information of robbery with homicide should be dismissed. Where the name of
the injured party is necessary as a matter essential to the proper description of the offense, an information
charging the commission of the complex crime of robbery with homicide must necessarily charge each of
the component offenses with the same precision that would be necessary if they were made the subject
of separate information. Where a complex crime is charge and the evidence fails to support the charge as
to one of the competent offenses, the defendant can be convicted only of homicide.
The question of the accuseds identity must be raised in the occasion of his arraignment by filling a motion
to dismiss based on the courts lack of jurisdiction over his person; otherwise the accused is estopped
from later raising such question.

Duplicity of offense.
A complaint or information must charge but one offense except only in those cases in which existing laws
prescribe a single punishment for various offences.
Duplicity in an information is generally defined as the joinder of separate and distinct offenses in one and
the same information.
The general rule is that a complaint or information must charge only one offense. This rule was made
more especially for the benefit of the accused in criminal cases, to protect him from being overwhelmed
with charges which he might be unable to meet and refute in a single trial.
The aim of the rule is to give the defendant the necessary knowledge of the charge to enable him to
prepare his defense. The State should not heap upon defendant two or more charges which may confuse
him in his defense.
The exception to the rule that a complaint or information must charge only one offense, is that it may
charge various offenses when the existing laws prescribe a single punishment for them. This exception
refers to a complex crime.
Complex crime is committed when a single act constitute two or more grave or less grave felonies, or
when an offense is a necessary means for committing the other, the penalty for the most serious crime
shall be imposed, the same to be applied in its maximum period.

Complex crime as defined by the Revise Penal Code, embraces two occurrences: (1) when a single act
constitutes two or more grave or less grave felonies; and (2) when an offense is a necessary means for
committing the other.
(1) As to the first occurrence. it is not difficult to determine if a given set of facts constitutes a single
act which produced two or more offenses. So long as the single act complained or resulted from a
single criminal impulse, it constitutes a single offense. Thus, where the accused causes with a
single shot not only the death of one person but also wounds upon another, he is guilty of the
complex crime of murder or homicide and physical injuries and for such complex crime only one
information should be filed.
(2) As to the second occurrence. It should be borne in mind that in the commission of two offenses,
one of them may be a necessary means for committing the other, in which case the two offenses
constitute a complex crime. Said the Supreme Court: In order to determine whether two offenses
constitute a complex crime, we should not find out whether in accordance with their definition by
law, one of them is an essential element of the other, such as physical injuries which cause the
death of the victim, or stealing of personal property without the consent of the owner through
force or violence for in such cases there would be only one single offense of homicide in the first
and robbery in the second case. But we should take into consideration the facts alleged in a
complaint or information and determine whether one of the separate and different offenses
charged therein was committed as a necessary means to commit the other offense; if it were, the
two offenses constitute one complex; otherwise the complaint or information charges two crimes
or offenses independent from one another. For example, the crime of falsification of a private
document is not, in general, an essential element of the crime of estafa, because this offense
may be committed through many and varied means; but if a defendant is charged in a complaint
or information with having committed falsification of a private document as a means of committing
estafa, the offense charge would be a complex offense of estafa through falsification. Also,
abduction is, in general, not an essential element of rape because rape may be committed
anywhere without necessity of forcibly abducting or taking the victim to another place for the
purpose; but if the offense charged is that the defendant abducted or carried by force the victim
from one place or another wherein. The latter was raped by the former, the crime charged would
be complex crime of rape through abduction, the abduction being in such a case a necessary
means to commit the rape.And although homicide or murder may be committed wherever the
victim may be found, yet it charge in a complaint or information is that the victim was kidnapped
and taken to another distant place in order to demand ransom for his release and kill him if
ransom is not paid, the offense charged would evidently be a complex crime of murder through
kidnapping, the latter being necessary means to commit the former.
Since to constitute duplicity two or more offenses must be sufficiently described,
additional allegations which merely tend to show the commission of distinct offenses, but
are not sufficient in themselves to constitute a charge thereof, will not make the
information duplicitous.
Mere surplusage does not amount to duplicity, and where a count charges one offense,
and defectively charges another, the latter charge may be rejected as surplusage.
An information is not duplicitous because it charges several related acts all of which
entered into and constitute distinct offenses.
In charging a complex offense, the information must allege each element of the complex
offense with the same precision as if the two constituent crimes were the subject of
separate prosecution. The allegations do not necessarily have to charge a complex crimes
as defined by law. It is sufficient that the information contains allegations which show that
one offense was a necessary means to commit the other.
In a case in which the accused was found guilty of the crimes of murder and multiple
frustrated murder for having thrown a hand grenade at the Chief Executive of the nation,

the Supreme Court said: In this connection it should be stated that, although there is
abundant proof that, in violation of the provisions of Article 148 of the Revised Penal
Code, the accused has committed among others the offense of assault upon a person in
authority for in fact his efforts were directed toward the execution of his main purpose of
eliminating President R. For his alleged failure to redeem his electoral campaign
promises, by throwing at him in his official capacity as the Chief Executive of the nation
the hand grenade in question yet, in view of the failure of the prosecution to insert in the
information the appropriate allegation charging the accused with the commission of said
offense we shall refrain from making a finding to that effect.

Interview of Witness
The assembling of the facts in preparing a case for trial requires skills in addition to the
ability to interpret the law. You should have an appreciation and understanding of human
behaviour. When you are interviewing a client or witness you should be able to detect,
from such things as demeanor, restlessness, directness or lack of it, tonal variations, and
other signs of emotional expression, whether or not a factual and complete a story is
being told. Skills of understanding human behaviour are not taught in a law schools. The
lawyer who possesses these skills has, as a general rule, acquire them from the total of
his experiences in dealing with human beings. The lawyer deals with human beings; and
trials are conducted on human testimony. Physical exhibits, such as contracts, patent
drawings, or anything else, are all dependent upon human testimony and human
interpretation, for humans draw the contracts and make the drawings.
As a result of interviewing your client, you have obtained as complete a story as he was
able to give you, or as you were able to extract from him, including the names of
witnesses on both sides as he could give you You must conduct your investigation and
examine witnesses immediately after you have interviewed the client. By doing this you
will be able to make a more effective selection of the theory of your action, based upon
what you learn of the substantive case and of the thing you have to prove and your ability
or inability to prove them, through those witnesses.
It is common for facts to appear very strange and frequently, standing alone, quite improbable. In such
situations, surrounding circumstances are what make the facts probable, that is, believable. Bare facts in
themselves are not all that you seek from a witness. You need to know how the witness remembers those
facts or why the facts occurred. When you have that information, check it, if possible, with other
witnesses; check the existence of the surrounding circumstances, for they may be even more improbable
than the fact itself!
Therefore, if you intend to try the case, examine the witnesses yourself, and do it promptly. Furthermore,
and this is one rule to be followed scrupulously, do not neglect to interview a person because you feel that
what he can tell you is not material, or relevant, or admissible. You never know what facts you will dig up
or what leads you may develop. Interview anybody having the slightest connection with the case.
Preparing your witnesses for trial is also important. Far enough in advance of trial to permit deliberation
and reflection, and not so far in advance as to cause the witness to forget your suggestions, you should
carefully go over his testimony with each witness. You should explain to him in laymans language the
principle issue of fact with respect to which he is to testify, for example, negligence. You should let him

know negligence is, perhaps also contributory negligence. If it is a traffic case, you should refresh his
recollection as to the highway code or city ordinance that is applicable. This, of course, is not to lead him,
but orient him as to the significance of his testimony so he knows in a general way its purpose and
therefore, avoid irrelevancy. It thus helps him also not to overlook the main point of the testimony. If there
are photographs, maps or charts, he should be shown them and should indicate where he will mark them
with respect to position of cars, himself, other witnesses, or objects. If the evidence be documentary, such
as letters, telegrams, contracts, deeds, he can read them himself, holding them in his own hand as he
would on the witness stand. The same is true of corporation records, books of account, memoranda of
any kind. He should be encouraged to ask questions. He should then be led over his story, avoiding the
leading questions so far as possible, so that he will tell the story as he will in court. It is often important to
explain what a leading question is and to emphasize that he must tell his own story, least of all to put
words in his mouth. Of course he must not memorize his story because that will be fatal if he faces an
alert cross-examiner.
After explaining why and what you are going to do, you should cross-examine the witness using both the
ruthless or tough style and the unctuous or lead-along style. It is easy for a lawyer to forget how nervous
the witness may be because of unaccustomed surroundings and perhaps fear of the majesty of the law. If
lawyers are proverbially poor witnesses, what may we expect of layman? It was said of David Garrick
that, accustomed as he was to performing without nervousness before thousands or persons, he was to
nervous to be any good of the witness stand.
If there is more than one witness to the same set of facts, all the witness should be
interviewed at the same time. This will tend to avoid inconsistencies, will help them to
refresh their recollections, and will tend to give each of them more self-confidence then if
interviewed alone. They may stimulate each other and be as much help as possible to your
client by testifying as emphatically and clearly as they can.
The easier you make the witness task, the easier you will be able to conduct the litigation,
and the more effectively you will be able to present your fact. By telling the witness many
things which he may expect while on the stand, you may prevent may difficulties later on.
For example, the attorney on cross-examination frequently asks a witness whether he ever
talked with anyone about the case before the trial, and if so, with whom and when. This
question often confuses the witness, for he thinks it is wrong to talk over the case before
the trial. It is, therefore, well for you, when you interview your client and witnesses, to tell
them that if they are asked such a question by the other side, they should not become
upset, but should answer the question truthfully; as a matter of fact, tell them they should
answer all questions truthfully.
Also tell your client and witnesses that the other attorney may subject them to grilling
cross-examination, but that they need not have any fear so long as they are telling the
truth; that the attorney may attempt to discredit their testimony, but that if they are
absolutely fair and unprejudiced there is necessity of worrying; that the attorney may
attempt to impeach them, but this should not cause them to become alarmed if their
characters are irreproachable.
There are many other ways by which an attorney can make a witness become more
effective while testifying at the trial. For example, counsel should tell his witness that if he
does not know or does not remember a certain matter about which he is questioned on
direct or cross- examination, he should say so, and not make a guess. Some witnesses
are afraid to say that they do not know or do not remember something, and by making a

guess may injure their side of the case. Point out to the witness that it is erroneous for him
to believe that any answer is better than no answer, or considered in a bad light because
he answers, I don't know or , I don't remember.
Also tell your witness to be honest and fair at all times, and that if he has made an error in
testifying, and it is called to his attention either by yourself or by the opposing attorney, he
should admit his mistake. It is far better at admit an error than to insist upon the truth of a
matter which is false or incorrect. Tell the witness not to enter into any arguments with
counsel nor to lose his temper while on the stand, for this will only make him a less
effective witness, and will hurt the side for which he is testifying.

Knowing your witnesses.

There are several classes of witnesses. We have already spoken of the first type of
witness, that is the client himself. Naturally, being the most interested of all the witness
who will be called, he is likely to have the greatest bias and if handled properly he is also
likely to be the most co-operative of all the witnesses. The second class is the friendly
witness, the person who is pecuniarily interested in the event, or what out of liking for a
party is eager to testify. The third class we have designated is the willing witness. Such a
person is neither hostile, interested nor friendly, but is willing to tell his story to whomever
asks for it. The fourth class we shall call the adverse witness. That is a person, not a
party, who is unwilling to talk to you and who feels himself to be an ally of your opponent.
In other words, the adverse witness is your opponent's friendly witness. The fifth class is
designated the hostile witness, which includes adverse parties.
Friendly witnesses. There is never any guarantee that a witness who is friendly will remain
so and for this reason it is always best to secure their signed statements. Witnesses who
are pecuniarily interested in the event or who out of liking for a party are eager to testify
are almost as prone as the client himself to be biased in favor of the party calling him.
Often the very fact that a witness is being called upon to help with his testimony flatters
the witness so that he innocently shades the truth in his effort to be helpful. It is
dangerous to pour cold water on such a witnesss story. He may become sullen and
antagonistic, but as a rule if he is tactfully handled he can be made to see that the strict
truth will be more helpful to your client than what he deems to be the most favorable story.
As has been suggested, witnesses if they are interested and willing are prone to
exaggerate and to favor the party who calls them. For this reason in interviewing them it is
inadvisable to ask leading questions. It is so much easier to answer a question in the
affirmative than it is to relate what has occurred and the desire of the willing witness to
help your client is so great that he will almost certainly fall in with any suggestions you
may make. He may even come to believe as true, a story which you have suggested to him
through your questioning and become an easy target for skilful cross-examination. This
desire of friendly witnesses to be of help took an extreme form in a case involving property
damage to an automobile caused by a collision. The client referred his attorney to a friend
who owned a garage and service station which had repaired clients automobile. As an
expert witness he was most helpful. He prepared an itemized list of the repairs which were
required and expressed his willingness to take the stand at any time. A casual glance at

the items of repair indicated that the cost was almost as great as that of a new car. If the
client had in fact expended any such sums in repairs it could only have been because he
had a sentimental attachment for his automobile. The attorney sent for the witness and
questioned him. The garage man admitted that some of the charges were high but stated
that all of the repairs which he had listed had been done. He was then asked, Do you
think that any of these damages could have been occasioned in another accident either
before or after the one we are suing for? and he answered, No, I went over the car
thoroughly the day before and found it in perfect condition. The plaintiff drove it out of my
garage at ten o clock the morning of the accident and it was back all smashed up at
eleven. The attorney then asked, Is it true that plaintiff drove it back to your garage as
early as eleven o clock? and he received an affirmative answer. Then the attorney
queried, How is it that the automobile could be driven to your garage, a distance of five
miles from the accident, with three blown out tires, a broken rear axle and a broken
differential, which you have put in your list of repairs? The garage man looked astonished
and then said, Well, then, maybe you better say that I called for the car with my repair
truck and towed it to the garage. The attorney did not adopt the garage mans suggestion.
He obtained instead a true list of the repairs which had been done, the cost of which was
brought down to approximately one-third of what has at first been suggested. At the trial
three of the defendants witnesses testified that they saw plaintiff drive the car away from
the scene of the accident. Had his attorney blindly accepted the garage mans estimate,
the defendant would probably have left the court with a vehicle in his favor, because
defendant defendants attorney would unquestionably have brought out on crossexamination the same inconsistency which developed on the interview. Had the attorney
followed the garage mans invitation to suborn perjury, that the car was towed away, he
might have found himself facing prosecution for subornation of perjury.
Willing witness. In the case of willing witnesses are placed all those who are not hostile, adverse,
interested nor friendly. It is usually advantageous, if possible, to make friendly witnesses out of willing
witness, so as to insure their continued co-operation. A willing witness will, for the most part, relate without
undue exaggeration what he actually observed. His story should be taken down in writing and signed by
him, as soon as possibly it can be obtained. Sometimes he may be unwilling to sign the statement, but
you can always suggest that he identify it with his initials or signature so that he will be able to use it to
refresh his recollection in case his memory thereafter fails him. The very fact that he has been interviewed
by you will tend to make him friendly. Another thing which will help will be a show of interest, such as
advising him from time to time as to the status of the case and reminding him that you are depending
upon his testimony Do not suggest to such a witness that he should not talk about the case to the other
side. He likes to feel independent, to be assured that he is not your witness but rather an instrument to be
used in obtaining justice. It is also well not to restrict your conversation with such witness to the particular
accident. Talk over general things with him and try to get an idea of his mode of life, the people with who
he associates and whether he has had any experiences which give him a peculiar bias. In other words, a
person whom you at first thought was a willing witness may actually be a friendly witness and his recital of
what took place may be colored by his experience in some similar situation. Remember that in order to
fall within the classification of willing witnesses, a person must be unbiased, he would be qualified to sit as
a juror in the case but for his observation of what actually occurred.
It should be borne in mind that a friendly witness will not necessarily testify on behalf of your client. He
may have formed an opinion as a result of his investigation that your client is not entitled to prevail, but
even though he is likely to be called by your opponent there is no reason for not interviewing him and
obtaining his story. Such an interview may even convince him that he was mistaken in his observations

and you may also learn that his testimony can be reconciled with your clients story. Some attorneys have
the mistaken idea that it is not unethical to talk to witnesses who will appear for the other side. Not only is
such a practice not unethical, but with the exception of an adverse party, it is almost a duty to do. As to
the ethics of the situation, witnesses are not pieces of property who belong to either of the parties. They
are not jurors whose views must be kept free from prior knowledge of the case, in order that they may
impartially decide the controversy. A witness who refuses to talk to you is an adverse witness, unless his
refusal is purely arbitrary and runs to the extent that he will not even permit the other side to interview
him, you safely put him down as an adverse witness who must be investigated very thoroughly.
Adverse witness. Though an adverse witness will not consciously do anything to help your case, he is not
as difficult a subject to investigate as an adverse party. The very fact that he is not a party to the litigation
makes him more prone to talk unguardedly in the presence of those who are interested in obtaining
information for your side of the case. However the longer one waits to investigate an adverse witness the
less chance will there be of obtaining information. Very early in the case opposing counsel will warn him
not to talk to anyone concerning the matter. After that he will be more partisan than ever and more
guarded. Though a direct interview may be impossible there is no reason to suppose that they cannot be
investigated to determine what their testimony is likely to be and whether the stories they will tell have any
foundation in fact. In these days people have a very limited private life. The live in a community that has
the opportunity of observing nearly all their actions. They write letters, they figure in vital statistics which
are open to your search. Their births, marriage and deaths are matters of public records. If they run afoul
of the law, either civilly or criminally, they leave a trail easy to follow. And so we must consider how such
witnesses are to be investigated and how through such investigation we may obtain evidence to support
our case and to destroy our opponents case.