Crim Procedure 2003

 REMEDIAL LAW REVIEWER 
1 SAINT LOUIS UNIVERSITY BAR OPERATIONS
ANS. All criminal actions either commenced by a

complaint or information shall be prosecuted under the direction
CRIMINAL PROCEDURE and control of the fiscal (now prosecutor). However, in
Municipal Trial Courts or Municipal Circuit Trial Courts when
there is no fiscal (now prosecutor) available, the offended party,
any peace officer or public officer charged with the enforcement
Rule 110 of the law violated may prosecute the case. This authority
PROSECUTION OF OFFENSES ceases upon actual intervention of the fiscal (now prosecutor) or
upon elevation of the case to the Regional Trial Court.
Q. How are criminal actions instituted? (Sec. 5).
Since the fiscal (now prosecutor) has direction and
ANS. Criminal actions shall be instituted as follows: control, what prosecution evidence should be
presented during the trial depends solely upon the
a.) For offenses where a preliminary discretion of the prosecutor. (People vs. De Los
investigation is required pursuant to Section Reyes, 47 SCAD 389, G.R. No. 106874, Jan. 21,
1 of Rule 112, by filing the 1994).
complaint with the proper officer for the
purpose of conducting the requisite
preliminary investigation. Q. Who and how shall the crimes of adultery or
concubinage be prosecuted? Why?
b.) For all other offenses, by filing the complaint or
information directly with the Municipal Trial ANS. The crimes of adultery and concubinage shall not
Courts and Municipal Circuit Trial Courts, or be prosecuted except upon a complaint filed by the
the complaint with the Office of the offended spouse. The offended party cannot
Prosecutor. In Manila and other chartered institute criminal prosecution without including both
cities, the complaint shall be filed with the the guilty parties, if they are both alive, nor, in any
office of the prosecutor unless otherwise case, if the offended party has consented to the
provided in their charters. (Sec. 1). offense or pardoned the offenders. (Sec. 5).
Q. State the form of the complaint or information. Q. Who and how shall the crimes of seduction,
abduction, or acts of lasciviousness be prosecuted?
ANS. The complaint or information shall be in writing, in
the name of the People of the Philippines against all ANS. The offenses of seduction, abduction, and acts of
persons who appear to be responsible for the lasciviousness shall not be prosecuted except upon
offense involved. (Sec. 2) a complaint filed by the offended party or her
parents, grandparents, or guardian, nor, in any
Q. State the fundamental requirements in the case, if the offender has been expressly pardoned
designations of the offense charged in the by the above – named persons, as the case may
complaint or information. What is the reason for the be. In case the offended party dies or becomes
requirements? incapacitated before she could file the complaint,
and has no known parents, grandparents or
ANS. The complaint or information shall state the guardian, the State shall initiate the criminal action
designation of the offense given by the statute; aver in her behalf. (Sec. 5)
the acts or omissions constituting the offense, and
specify its qualifying and aggravating
circumstances. If there is no designation of the
offense, reference shall be made to the section or Q. May a minor initiate the prosecution of the crimes of
subsection of the statute punishing it. (Sec. 8). seduction, abduction, rape or acts of
lasciviousness?
Q. What is a complaint? ANS. The offended party, even if a minor, has the right to
initiate the prosecution for the above offenses,
ANS. Complaint is a sworn written statement charging a independently of her parents, grandparents or
person with an offense, subscribed by the offended guardian, unless she is incompetent or incapable of
party, any peace officer or other public officer doing so upon grounds other than her minority.
charged with the enforcement of the law violated. Where the offended party who is a minor fails to file
(Sec. 3). the complaint, her parents, grandparents, or
guardian may file the same. (Sec. 5)
Q. What is an information?
ANS. An information is an accusation in writing charging a Q. How do you consider the right of the parents,
person with an offense, subscribed by the grandparents or guardian of a minor to file the
prosecution and filed with the court. (Sec. 4) action for the minor?
Q. Who must prosecute criminal actions? ANS. The right to file the action granted to the parents,
grandparents or guardian shall be exclusive of all
 Prepared by the REMEDIAL LAW SECTION  Chief CHRISTIAN PAUL ULPINDO Assistant Chief MAGDALENA ERFE Members YVONNE
BINWAG, SHARON BANAGEN, CHARLES JAVIER CALAPINI, BRIAN CRISPIN, QUOINA GABOL, RAYMOND MENDOZA, RUSSEL
SABADO, MICHELLE EXIOMO and ANA MAY CORPUZ. All Rights Reserved by the SAINT LOUIS UNIVERSITY COLLEGE OF LAW
BAR OPERATIONS  2003.
other persons and shall be exercised successively Q. When is the allegation as to the place of the
in the order herein provided. (Sec. 5) commission of the offense sufficient? Is there an
exception?
Q. Who can file an action for defamation?
ANS. The complaint or information is sufficient if it can be
ANS. No criminal action for defamation which consists in understood therefrom that offense was committed
the imputation of an offense mentioned above shall or some of the essential ingredients thereof
be brought except at the instance of and upon occurred at some place within the jurisdiction of the
complaint filed by the offended party. (Sec. 5). court, unless the particular place wherein it was
Q. When is a complaint or information considered committed constitutes an essential element of the
sufficient? offense or is necessary for identifying the offense
charged. (Sec. 10).
ANS. A complaint or information is sufficient if it states the
name of the accused; the designation of the offense Q. How should the time of the commission of the
by the statute; the acts or omissions complained of offense be alleged? Is there an exception?
as constituting the offense; the name of the
offended party; the approximate date of the ANS. It is not necessary to state in the complaint or
commission of the offense, and the place wherein information the precise time at which the offense
the offense was committed. was committed except when time is a material
ingredient of the offense, but the act may be alleged
When an offense is committed by more than one to have been committed at any time as near to the
person, all of them shall be included in the actual date at which the offense was committed as
complaint or information. (Sec. 6). the information or complaint will permit. (Sec. 11).
Q. State the requirement when alleging the name of an Q. State the requirement as to the allegation of the
accused in the information or complaint. name of the offended party.
ANS. A complaint or information must state the name and ANS. A complaint or information must state the name and
surname of the accused or any appellation or surname of the person against whom or against
nickname by which he has been or is known, or if whose property the offense was committed, or any
his name cannot be ascertained, he must be appellation or nickname by which such person has
described under a fictitious name with a statement been or is known, if there is no better way of
that his true name is unknown. (Sec. 7) identifying him, he must be described under a
fictitious name. (Sec. 12).
Q. If the accused is named under a fictitious name and
his name is discovered during the trial, what is the Q. What is the remedy if the name of the offended
procedure? party is discovered during the trial?
ANS. The true name shall be inserted in the complaint or ANS. The court must cause the true name of the offended
information and record. (Sec. 7). party to be inserted in the complaint or information.
(Sec. 12).
Q. State the requirements as to the designation of the
offense. Q. How should the name of the offended party be
alleged if it is a corporation?
ANS. Whenever possible, a complaint or information
should state the designation given to the offense by ANS. If the offended party is a corporation or any other
the statute, besides the statement of the acts or juridical person, it is sufficient to state the name of
omissions constituting the same, and if there is no such corporation or juridical person, or any name or
such designation, reference should be made to the designation by which it has been or is known, or by
section or subsection of the statute punishing it. which it may be identified, without necessity of
(Sec. 8). averring that it is a corporation, or that it is
organized in accordance with law. (Sec. 12).
Q. How should the cause of action be alleged in the
complaint or information? Q. How many offenses may be alleged in one
information? Is there an exception?
ANS. the acts or omissions complained of as constituting
the offense must be stated in ordinary and concise ANS. A complaint or information must charge only one
language without repetition, not necessarily in the offense. This is to prevent duplicity. There is an
terms of the statute defining the offense, but in such exception, as when existing laws prescribe a single
form as is sufficient to enable a person of common punishment for various offenses. (Sec. 13).
understanding to know what offense is intended to Q. When may a complaint or information be amended
be charged, and enable the court to pronounce in substance or form without leave of court?
proper judgment. (Sec. 9).
ANS. It may be amended without leave of court at any
time before the accused pleads. (Sec. 14).
Q. When may a complaint or information be amended Q. May the offended party intervene in a criminal
in matters of form with leave of court? action?
ANS. When the same can be done without prejudice to ANS. Yes, unless he waived the civil action or he
the rights of the accused. (Sec. 14). expressly reserved the right to institute it separately
from the criminal prosecution. (Sec. 16).
Q. State the requirements if an information is amended
to downgrade the nature of the offense charged or
exclude any accused from the complaint or
information. Rule 111
PROSECUTION OF CIVIL ACTION
ANS. Any amendment before plea, which downgrades the
nature of the offense charged in or excludes any Q. State the rule when a criminal action is filed?
accused from the complaint or information can be
made only if the following conditions are met: ANS. When a criminal action is instituted, the civil action
a) There must be a motion filed by the for the recovery of civil liability is impliedly instituted
prosecutor; with the criminal action, unless the offended party
b) There must be notice of the motion upon the waives the civil action, reserves his right to institute
offended party; it separately, or institute the civil action to the
c) The amendment must be with leave of court. criminal action. (Sec. 1).
(Sec. 14).
Q. What is the procedure if before judgment, it was Q. Are there exceptions to the above – cited rule that
found out that there was a mistake in charging the the filing of the criminal action carries with it the
offense? filing of the civil action?
ANS. If it appears at any time before judgment that a ANS. Yes, like when the offended party waives the civil
mistake has been made in charging the proper action, or reserves his right to institute it separately
offense, the court shall dismiss the original or institutes the civil action prior to the criminal
complaint or information upon the filing of a new action. (Sec. 1).
one charging the proper offense in accordance with
Rule 119, Section 11, provided the accused would Q. What civil actions are covered by the above – cited
not be placed thereby in double jeopardy, and may rule?
also require the witnesses to give bail for their
appearance at the trail. (Sec. 14) ANS. Such civil action includes recovery of indemnity
Q. Where shall the complaint or information be filed? under the Revised Penal Code, and damages under
Articles 32, 33, 34 and 2176 of the Civil Code of the
ANS. (a) Subject to existing laws, in all criminal Philippines arising from the same act or omission of
prosecutions, the action shall be instituted the accused. (Sec. 1).
and tried in the court of the municipality or
territory wherein the offense was committed Q. What is the effect of the institution of a criminal
or any one of the essential ingredients action on the civil arising from the crime charged?
thereof took place. Is the rule absolute? Why?
(b) Where an offense is committed on a railroad ANS. When the criminal action is instituted, the civil action
train, in an aircraft, or in any other public or for the recovery of civil liability arising from the
private vehicle while in the course of its trip, crime charged shall be deemed instituted with the
the criminal action may be instituted and criminal action.
tried in the court of any municipality or
territory where such train , aircraft or other Q. State the rule on the filing of counterclaim, cross –
vehicle passed during such trip, including claim or third party complaint by the accused.
the place of departure and arrival.
ANS. No counterclaim, cross – claim, or third – party
(c) Where an offense is committed on board a complaint may be filed by the accused in the
vessel in the course of its voyage, the criminal case. But if the accused has such causes
criminal action may be instituted and tried in of action, the same can be litigated in a separate
the proper court of the first port of entry or of action. (Sec. 1)
any municipality or territory through which
vessel passed during such voyage subject
to the generally accepted principles of Q. State the effect of the filing of an information for
international law. violation of B.P. Blg. 22. Explain.
(d) Other crimes committed outside the ANS. The criminal action for violation of B.P. Blg. 22 shall
Philippines but punishable therein under be deemed to include the corresponding civil action.
Article 2 of the Revised Penal Code shall be No reservation to file such civil action separately
cognizable by the proper court in which the shall be allowed. (Sec. 1[b]). The prohibition
charge is first filed. (Sec. 15). against the filing of separate civil liability of the
accused is to avoid multiple suits, as the same circumstances affording the offended party a
contribute to the clogging of court dockets. reasonable opportunity to make such reservation
but the offended party cannot recover damages
Q. State the rule if a civil action to enforce the civil twice. (Sec. 1).
liability for violation of B.P. Blg. 22 has been filed
but trial has not yet commenced. Q. What is the effect if the offended party seeks to
enforce the civil liability against the accused by way
ANS. Such civil action filed separately may be of moral, nominal, etc., damages in case it is
consolidated with the criminal action upon granted?
application with the court trying the criminal case. If
the application is granted, the criminal and civil ANS. When the offended party seeks to enforce civil
actions shall be tried and decided jointly. (Sec. 1 in liability against the accused by way of moral,
relation to Sec. 2 par. 2) nominal, temperate or exemplary damages, the
filing fees for such civil action as provided in these
Q. What are the civil actions which do not prescribe Rules shall constitute a first lien on the judgment
during the pendency of the criminal action? Explain except in an award for actual damages. (Sec. 1).
why?
Q. Give the rule if the amount of damages other than
ANS. During the pendency of the criminal action, the actual is alleged in the complaint or information.
running of the period of prescription of the civil
action which cannot be instituted separately or ANS. In cases wherein the amount of damages, other
whose proceeding has been suspended shall be than actual, is alleged in the complaint or
tolled. (Sec. 2, par. 3). The civil actions referred to information, the corresponding filing fees shall be
are those arising from the crime. If they were paid by the offended party upon the filing thereof in
reserved or filed separately and a criminal case is court for trial. (Sec. 1).
filed, they have to be suspended to await final
judgment in the criminal action. Q. State the effect of the filing of the criminal action on
the civil action.
Q. State the effects of death of the accused after
arraignment and during the pendency of the ANS. After the filing of the criminal action, the civil action
criminal action. Explain. which has been reserved cannot be instituted until
final judgment has been rendered in the criminal
ANS. The death of the accused after arraignment and action. (Sec. 2, Rule 111).
during the pendency of the criminal action shall
extinguish, the civil liability arising from the delict. Q. Is the rule cited above absolute? Why?
(Sec. 4). The reason for the rule is that, such liability
is merely the effect of the crime committed and it is ANS. No, because if the civil case falls under the rules of
personal to the accused. It is not transmissible to independent civil actions under Articles 32, 33, 34
his heirs and even his estate. It dies with the and 2176 of the Civil Code, the independent civil
accused. action which has been reserved may be brought by
the offended party and shall proceed independently
Q. Are there exceptions to the afore-cited rule? of the criminal action; and shall require only a
preponderance of evidence. (Sec. 3)
ANS. Yes, under the Rules, the independent civil action
instituted under Section 3 (referring to damages Q. State the rule if the civil action is filed ahead of the
under Articles 32, 33, 34, and 2176 of the Civil criminal action in a case where there is no
Code) or which are instituted to enforce civil liability independent civil action.
arising from other sources of obligations may be
continued against the estate or legal representative ANS. Whenever the offended party shall have instituted
of the accused after proper substitution or against the civil action before the filing of the criminal action
said estate. (Sec. 4). and the criminal action is subsequently
commenced, the pending civil action shall be
Q. What is the effect of the waiver of any of the civil suspended, in whatever stage before final judgment
actions? it may be found, until final judgment in the criminal
action has been rendered. However, if no final
ANS. A waiver of any of the civil actions extinguishes the judgment has been rendered by the trial court in the
others. The institution of, or the reservation of the civil action, the same may be consolidated with the
right to file any of said civil actions separately criminal action upon application with the court trying
waives the others. (Sec. 1). the criminal action. If the application is granted, the
evidence presented and admitted in the civil action
Q. When should the reservation of the right to file shall be deemed automatically reproduced in the
separate civil action be made? criminal action, without prejudice to the admission
of additional evidence that any party may wish to
ANS. The reservation of the right to institute the separate present. In case of consolidation, both the criminal
civil actions shall be made before the prosecution and the civil actions shall be tried and decided
starts to present its evidence and under jointly. (Sec. 2)
criminally liable shall also be civilly liable. (Art. 100,

Q. If the criminal action is extinguished, will it R.P.C.)}
extinguish the civil action? Is the rule absolute?
ANS. As a rule, no. Extinction of the penal action does Q. If the civil action was filed ahead of the criminal
not carry with it extinction of the civil action, unless case, state the rule as to what shall be done with
the extinction proceeds form a declaration in a final the civil action.
judgment that the fact from which the civil liability
might arise did not exist. (Sec. 2). ANS. Where the civil action has therefore been filed
separately and trial thereof has not yet commenced,
Q. State the procedure after the death of the accused it may be consolidated with the criminal action upon
in cases where the independent civil actions have application with the court trying the latter cases. If
been filed. the application is granted, the trial of both actions
shall proceed in accordance with the pertinent
ANS. In case of death of the accused where independent procedure outlined in Section 2 (a) of Rule 111
civil actions have already been instituted, the heirs governing the proceedings in the actions as thus
of the accused may be substituted for the deceased consolidated. (Par. 3, supra).
without requiring the appointment of an executor or
administrator and the court may appoint a guardian
ad litem for the minor heirs. In that case, the court
shall order the legal representative or Rule 112
representatives to appear and be substituted within PRELIMINARY INVESTIGATION
a period of thirty (30) days from notice. (Sec. 4).
Q. What is a preliminary investigation?
Q. In the cases above, how shall the judgment be
executed? ANS. Preliminary investigation is an inquiry or proceeding
for the purpose of determining whether there is
ANS. A final judgment entered in favor of the offended sufficient ground to engender a well-founded belief
party shall be brought to the testate and intestate that a crime cognizable by the Regional Trial Court
proceedings as a claim against the estate. (and for offenses where law the prescribes a
penalty of at least 4 years, 2 months and 1 day of
Q. State the rule if the accused dies before imprisonment without regard to the fine) has been
arraignment. committed and that the respondent is probably
guilty thereof, and should be held for trial. (Sec. 1).
ANS. If the accused dies before arraignment, the case
shall be dismissed without prejudice to any civil
action the offended party may file against the estate Q. In what cases is preliminary investigation required?
of the deceased. (Sec. 4).
ANS. A preliminary investigation is required to be
Q. What is the effect of a final judgment absolving the conducted before the filing of a complaint or
defendant from civil liability? information for an offense where the penalty
prescribed by law is at least four (4) years, two (2)
ANS. A final judgment rendered in a civil action absolving months and one (1) day without regard to the fine.
the defendant from civil liability is no bar to a (Sec. 1).
criminal action. (Sec. 4).
The rule, however is not absolute because the
Q. What are the elements of a prejudicial question? accused can ask for preliminary investigation in the
following cases:
ANS. The elements of a prejudicial question are the
following: a) If a person is arrested, he can ask for
preliminary investigation before the filing of
a) The previously instituted civil action involves the complaint or information but he must
an issue similar or intimately related to the sign a waiver in accordance with Article 125
issue raised in the subsequent criminal of the Revised Penal Code in the presence
action, and of his counsel (Sec. 7, par. 2);
b) The resolution of such issue determines b) After the filing of the information or
whether or not the criminal action may complaint in court without preliminary
proceed. (Sec. 7). investigation, the accused may, within five
(5) days from the time he learns of its filing
ask for preliminary investigation. (Sec. 7,
Q. What is the effect of the filing of a criminal action for par.3).
violation of B.P. Blg. 22? Why?
if he does not ask for it, then, he is
ANS. It shall be deemed to necessarily include the considered as having waived the right to preliminary
corresponding civil action. {Every person who is investigation.
complaint based on the evidence presented

Q. State the procedure in conducting preliminary by the complainant;
investigation.
e) The investigating officer may set a hearing if
ANS. The preliminary investigation shall be conducted in there are facts and issues to be clarified
the following manner: from a party or a witness. The parties can
be present at the hearing but without the
a) The complaint shall state the address of the right to examine or cross-examine. They
respondent and shall be accompanied by may, however, submit to the investigating
the affidavits of the complainant and his officer questions which may be asked to the
witnesses, as well as other supporting party or witness concerned.
documents to establish probable cause.
They shall be in such number of copies as The hearing shall be held within ten (10)
there are respondents, plus two (2) copies days from submission of the counter-
for file. The affidavits shall be subscribed affidavits and other documents or from the
and sworn to before any prosecutor or expiration of the period for their submission.
government official authorized to administer It shall be terminated within five (5) days;
oath, or, in their absence or unavailability,
before a notary public, each of whom must f) Within ten (10) days after the investigation,
certify that he personally examined the the investigating officer shall determine
affiants and that he is satisfied that they whether or not there is sufficient ground to
voluntarily executed and understood their hold the respondent for trial.
affidavits;
Q. Who may conduct a preliminary investigation?
b) Within ten (10) days after the filing of the
complaint, the investigating officer shall ANS. The following may conduct a preliminary
either dismiss it if he finds no ground to investigation:
continue with the investigation, or issue a
subpoena to the respondent attaching to it a (a) Provincial or city fiscals and their assistants;
copy of the complaint and its supporting (b) Judges of the Municipal Trial Courts and
affidavits and documents. Municipal Circuit Trial Courts;
(c) National and Regional state prosecutors;
The respondent shall have the right to and
examine the evidence submitted by the (d) Such other officers as may be authorized by
complainant which he may not have been law.
furnished and to copy them at his expense.
If the evidence is voluminous, the Their authority to conduct preliminary
complainant may be required to specify investigation shall include all crimes cognizable by
those which he intends to present against the proper court in their respective territorial
the respondent, and these shall be made jurisdiction. (Sec. 2).
available for examination or copying by the Q. What is the duty of the prosecutor or the judge
respondent at his expense. conducting preliminary investigation in cases within
Objects as evidence need not be furnished the cognizance of the Sandiganbayan?
a party but shall be made available for
examination, copying, or photographing at ANS. Within five (5) days from his resolution, he shall
the expense of the requesting party; forward the records of the case to the Ombudsman
or his deputy in cases of offenses cognizable by the
c) Within ten (10) days from the receipt of Sandiganbayan in the exercise of its original
subpoena with the complaint and supporting jurisdiction. (Secs. 4 and 5).
affidavits and documents, the respondent
shall submit his counter-affidavit and that of Q. What is the extent of the powers of the Ombudsman
his witnesses and other supporting or investigating prosecutor in case the record of the
documents relied upon for his defense. The case is forwarded to him by the prosecutor?
counter-affidavits shall be subscribed and
sworn to and certified as provided in ANS. The Ombudsman, shall within thirty (30) days from
paragraph (a) of this section, with copies receipt of the records, review the resolution of the
thereof furnished by him to the complainant. investigating judge or prosecutor on the existence
The respondent shall not be allowed to file a of probable cause. They shall order the release of
motion to dismiss in lieu of a counter- the accused who is detained if no probable cause is
affidavit; found against him. (Sec. 5, par. 2).
d) If the respondent cannot be subpoenaed, or Q. State the duties of a judge of the Regional Trial
if subpoenaed, does not submit counter- Court upon the filing of the complaint or information.
affidavits within the ten (10) day period, the
investigating officer shall resolve the ANS. a) Within ten (10) days from the filing of the
complaint or information, the judge shall personally
evaluate the resolution of the prosecutor and its c) If the offense is punishable by fine only.
supporting evidence; (Sec. 6, par. c).
b) If the judge finds probable cause, he shall Q. When may a complaint or information be
issue a warrant of arrest or a commitment filed without preliminary investigation even if the law requires a
order if the accused has already been preliminary investigation?
arrested pursuant to a warrant issued by a
judge who conducted the preliminary ANS. When a person is lawfully arrested without warrant
investigation or when the complaint or involving an offense which requires a preliminary
information was filed without investigation by investigation, the complaint or information may be
an inquest prosecutor; filed by a prosecutor without need of such
investigation provided an inquest has been
c) In case of doubt on the existence of conducted in accordance with existing rules. In the
probable cause, the judge may order the absence or unavailability of an inquest prosecutor,
prosecutor to present additional evidence the complaint may be filed by the offended party or
within five (5) days from notice and resolve a peace officer directly with the proper court on the
the issue within thirty (30) days from the basis of the affidavit of the offended party or
filing of the complaint or information. (Sec. arresting officer or person. (Sec. 7, par. 1).
6, par. a).
Q. What must accompany a complaint or information if
Q. Who conducts preliminary investigation of cases filed in court?
falling within the jurisdiction of the Metropolitan Trial
Court, Municipal Trial Court in Cities, Municipal Trial ANS. An information or complaint filed in court shall be
Court or Municipal Circuit Trial Court when supported by the affidavits and counter-affidavits of
required? the parties and their witnesses together with the
other supporting evidence and the resolution of the
ANS. It shall be conducted by either the judge or case. (Sec.8, par. a).
prosecutor. (Sec. 6, par. b).
Q. What procedure shall be followed if a complaint is
Q. What is the power of the judge conducting directly filed with the prosecutor or the MTC or
preliminary investigation if his resolution is affirmed MCTC involving an offense punishable by
by the provincial or city prosecutor or the imprisonment of less than four (4) years, two (2)
Ombudsman? months and one (1) day?
ANS. The judge shall issue a warrant of arrest. ANS. The procedure outlined in Sec. 3(a) of this Rule
shall be followed or observed. If the judge finds no
Q. May the judge conducting preliminary investigation probable cause after personally evaluating the
issue a warrant of arrest without concluding his evidence, or after personally examining in writing
investigation? Why? and under oath the complainant and his witnesses
in the form of searching questions and answers, he
ANS. Yes, if he finds after an examination in writing and shall dismiss the same. However, he may require
under oath of the complainant and his witnesses in the submission of additional evidence, he shall
the form of searching questions and answer, that a dismiss the case. If he finds probable cause, he
probable cause exists and that there is necessity of shall issue a warrant of arrest or a commitment
placing the respondent under immediate custody in order if the accused has already been arrested and
order not to frustrate the ends of justice. (Sec. 6, hold him for trial. If the judge is satisfied that there
par. b). is no necessity for placing the accused under
custody, he may issue summons instead of a
Q. In what instances is a warrant of arrest not warrant of arrest. (Sec. 9, par. b)
necessary?
ANS. A warrant of arrest is not necessary in the following Q. State the procedure in the conduct of preliminary
instances: investigation for offense cognizable by the Regional
Trial Court.
a) If the accused is already under detention
pursuant to a warrant issued by the ANS. The procedure is as follows:
municipal trial court after preliminary
investigation where his recommendation (a) The complaint shall state the known address
was affirmed by the provincial or city of the respondent and be accompanied by
prosecutor or the Ombudsman; affidavits of the complainant and his
witnesses as well as other supporting
b) If the complaint or information was filed after documents, in such number of copies as
the accused was lawfully arrested without there are respondents, plus two (2) copies
warrant; for the official file. The said affidavits shall
be sworn to before any prosecutor, state
prosecutor or government official authorized
to administer oath, or, in their absence or informed of the complaint and of the evidence
unavailability, a notary public, who must submitted against him; and that he was given an
certify that he personally examined the opportunity to submit controverting evidence.
affiants and that he is satisfied that they Otherwise, he shall recommend dismissal of the
voluntarily executed and understood their complaint.
affidavits.
In either case, he shall forward the records of the
(b) Within ten (10) days after the filing of the case to the provincial or city prosecutor or chief
complaint, the investigating officer shall state prosecutor within five (5) days from his
either dismiss the same if he finds no resolution. The latter shall take appropriate action
ground to continue with the inquiry, or issue thereon within ten (10) days from receipt thereof,
a subpoena to the respondent, attaching immediately informing the parties of said action.
thereto a copy of the complaint, affidavits (Sec. 4).
and other supporting documents. Within ten
(10) days from receipt thereof, the
respondent shall submit counter-affidavits Q. When may a complain or information be dismissed
and other supporting documents. He shall or filed by the investigating prosecutor?
have the right to examine all other evidence
submitted by the complainant. ANS. No complaint or information may be filed or
dismissed by an investigating prosecutor without
(c) Such counter-affidavits and other supporting the prior written authority or approval of the
evidence submitted by the respondent shall provincial or city prosecutor or chief state
also be sworn to and certified as prescribed prosecutor. (Sec. 4).
in paragraph (a) hereof and copies thereof
shall be furnished by him to the Q. Asst. Prosecutor Supnet of the City of Manila
complainant. recommended the dismissal of a complaint after
investigating it. If City Prosecutor Guerrero
(d) If the respondent cannot be subpoenaed, or reverses it, what will the latter do?
if subpoenaed, does not submit counter-
affidavits within the ten (10) day period, the ANS. Where the investigating assistant prosecutor
investigating officer shall base his resolution recommends the dismissal of the case but his
on the evidence presented by the findings are reversed by the provincial or city
complainant. prosecutor or chief state prosecutor on the ground
that a probable cause exists, the latter may by
(e) If the investigating officer believes that there himself, file the corresponding information against
are matters to be clarified, he may set a the respondent or direct any other assistant
hearing to propound clarificatory questions prosecutor or state prosecutor to do so, without
to the parties or their witnesses, during conducting another preliminary investigation. (Sec.
which the parties shall be afforded an 4).
opportunity to be present but without the
right to examine or cross-examine. If the Q. If the resolution of the prosecutor is reversed by the
parties so desire, they may submit questions Secretary of Justice, what shall be done?
to the investigating officer which the latter
may propound to the parties or witnesses ANS. If upon petition by a proper party, the Secretary of
concerned. Justice reverses the resolution of the provincial or
(f) Thereafter, the investigation shall be city prosecutor or chief state prosecutor, he shall
deemed concluded, and the investigating direct the prosecutor concerned to file the
officer shall resolve the case within ten (10) corresponding information without conducting
days therefrom. Upon the evidence thus another preliminary investigation or to dismiss or
adduced, the investigating officer shall move for dismissal of the complaint or information.
determine whether or not there is sufficient (Sec. 4).
ground to hold the respondent for trial. (Sec.
3).
Q. If the preliminary investigation was conducted by a
Q. What are the duties of the investigating judge, state his duty thereafter.
prosecutor after conducting the preliminary investigation?
ANS. Within ten (10) days after the conclusion of the
ANS. If the investigating prosecutor finds cause to hold preliminary investigation, the investigating judge
the respondent for trial, he shall prepare the shall transmit to the provincial or city prosecutor, for
resolution and corresponding information. He shall appropriate action, the resolution of the case,
certify under oath that he, or as shown by the stating briefly the findings of facts and the law
record, an authorized officer, has personally supporting his action, together with the entire
examined the complainant and his witnesses, that records of the case, which shall include: (a) the
there is reasonable ground to believe that a crime warrant, if the arrest is by virtue of a warrant; (b) the
has been committed and that the accused is affidavits and other supporting evidence of the
probably guilty thereof; that the accused was parties; (c) the undertaking or bail of the accused;
(d) the order of release of the accused and ANS. When a person is lawfully arrested without a
cancellation of his bail bond, if the resolution is for warrant for an offense cognizable by the Regional
the dismissal of the complaint. (Sec. 5). Trial Court, the complaint or information may be
filed by the offended party, peace officer or
Q. What should be done by the prosecutor if he prosecutor without a preliminary investigation
disagrees with the findings of the judge who having been first conducted, on the bases of the
conducted the preliminary investigation? affidavit of the offended party or arresting officer or
person. (Sec. 7).
ANS. Should the provincial or city prosecutor disagree
with the findings of the investigating judge on the Q. What is the right of a person lawfully arrested
existence of probable cause, the prosecutor ruling without warrant before the filing of the complaint or
shall prevail, but he must explain his action in information and under what condition?
writing furnishing the parties with copies of his
resolution, not later than thirty (30) days from ANS. Before the filing of such complaint or information,
receipt of the records from the judge. If the the person arrested may ask for a preliminary
accused is detained, the prosecutor shall order his investigation by a proper officer in accordance with
release. (Sec. 5). this Rule, but he must sign a waiver of the
provisions of Article 125 of the Revised Penal Code,
Q. When shall the RTC issue a warrant of arrest? as amended, with the assistance of a lawyer and in
case of non-availability of a lawyer, a responsible
ANS. It shall issue the warrant of arrest upon the filing of person of his choice. Notwithstanding such waiver,
the information. (Sec. 6). he may apply for bail as provide in the
corresponding rule and the investigation must be
Q. What is a warrant of arrest? terminated within fifteen (15) days from its
inception. (Sec. 7).
ANS. It is a legal process issued by competent authority,
directing the arrest of a person or persons upon Q. What is the right of a person if an information has
grounds stated therein. been filed against him without preliminary
investigation?
Q. What rules shall govern the conduct of preliminary
investigation of cases directly filed with the ANS. He may ask for preliminary investigation with five
prosecutor in cases not falling under the jurisdiction (5) days from the time he learns of the filing of the
of the RTC or those not covered by the Rules on information where he can adduce evidence. (Sec.
Summary Procedure? 7).
ANS. The procedure outlined in Section 3 (a) of Rule 112 Q. State the nature, purpose of, and persons who
shall govern. The prosecutor shall take appropriate conduct, preliminary examination.
action based on affidavits and other supporting
documents submitted by the complainant. (Sec. 9). ANS. Preliminary examination is a proceeding for the
purpose of determining probable cause for the
The rule shall also apply if the case is filed directly issuance of a warrant of arrest.
with the Municipal Court. If the judge finds no
sufficient ground to hold the respondent for trial, he It is mandated by the Constitution.
shall dismiss the complaint or information.
Otherwise, he shall issue a warrant of arrest after Only judges may determine probable cause for the
personally examining in writing and under oath the purpose of issuing a warrant of arrest.
complainant and his witnesses in the form of
searching questions and answers. (Sec. 9). Q. How do you distinguish preliminary examination
from preliminary investigation?
Q. When may the Municipal Court conducting the
preliminary investigation issue a warrant of arrest? ANS. Preliminary examination is done ex parte.
Preliminary investigation is not ex parte.
ANS. If the municipal trial judge conducting the
preliminary investigation is satisfied after an Preliminary examination may be done only by
examination in writing and under oath of the judges. Preliminary investigation may be done by a
complainant and his witnesses in the form of judge or a prosecutor, by the Comelec or by the
searching questions and answers, that a probable PCGG.
cause exists and that there is a necessity of placing
the respondent under immediate custody in order Preliminary investigation is an executive function; a
not to frustrate the ends of justice, he shall issue a part of the work of prosecutor. Preliminary
warrant of arrest. (n) (Sec. 6[b]). examination is done by a judge and a judicial
Q. What is the procedure if a person is lawfully function.
arrested without warrant for an offense cognizable
by the Regional Trial Court?
RULE 113
ARREST ANS. The doctrine of hot pursuit in warrantless arrest is

based on the provisions of the Rules that an arrest
Q. Define arrest. can be made without warrant when an offense has
just been committed and he has probable cause to
ANS. Arrest is the taking of a person into custody in order believe based on personal knowledge of facts or
that he may be bound to answer for the commission circumstances that the person to be arrested has
of an offense. (Sec. 1). committed it. (Sec. 5, par. b). The rule does not
require the actual commission of an offense,
Q. How should arrest be made? instead, it is sufficient that there is probable cause
to believe based on personal knowledge of facts
ANS. An arrest is made by an actual restraint of the and circumstances that a crime has been
person to be arrested, or by his submission to the committed. Personal knowledge of facts and
custody of the person making the arrest. No circumstances to justify arrest is not necessary.
violence or unnecessary force shall be used in
making an arrest, and the person arrested shall not Q. At what time may a warrant of arrest be executed?
be subject to any greater restraint than is necessary
for his detention. (Sec. 2). ANS. An arrest may be made on any day and at any time
of the day or night. (Sec. 6).
Q. State the duties of the arresting officer.
Q. How should an officer enforce a warrant of arrest?
ANS. It shall be the duty of the officer executing the
warrant without unnecessary delay to arrest the ANS. When making an arrest by virtue of a warrant, the
accused and to deliver him to the nearest police officer shall inform the person to be arrested of the
station or jail. (Sec. 3). cause of the arrest and of the fact that a warrant
has been issued for his arrest, except when he flees
Q. Within what period should the warrant of arrest be or forcibly resists before the officer has opportunity
enforced? to so inform him or when the giving of such
information will imperil the arrest. The officer need
ANS. The head of the office to whom the warrant of arrest not have the warrant in his possession at the time of
has been delivered for execution shall cause the the arrest but after the arrest, if the person arrested
warrant to be executed within ten (10) days from so requires, the warrant shall be shown to him as
receipt thereof. (Sec. 4). soon as practicable. (Sec. 7).
Q. When may a person be arrested without warrant? Q. What should an officer do when making an arrest
without warrant?
ANS. A peace officer or a private person may, without a
warrant arrest a person: ANS. When making an arrest without a warrant, the
officer shall inform the person to be arrested of his
(a) When, in his presence, the person to be authority and the cause of the arrest, unless the
arrested has committed, is actually person to be arrested is then engaged in the
committing , or is attempting to commit an commission of an offense or is pursued immediately
offense; after its commission of an offense or is pursued
immediately after its commission or after an escape,
(b) When an offense has in fact just been or flees or forcibly resists before the officer has an
committed, and he has probable cause to opportunity to so inform him, or when the giving of
believe based on personal knowledge of fact such information will imperil the arrest. (Sec. 8).
and circumstance that the person to be
arrested has committed it; and Q. What should a private person do when effecting
arrest?
(c) When the person to be arrested is a prisoner
who has escaped from a penal ANS. A private person when making an arrest shall inform
establishment or place where he is serving the person to be arrested of the intention to arrest
final judgment or temporarily confined while him and cause of the arrest, unless the person to be
his case is pending, or has escaped while arrested is then engaged in the commission of an
being transferred from one confinement to offense, or is pursued immediately after its
another. commission or after an escape, or flees or forcibly
resists before the person making the arrest has
In cases falling under paragraphs (a) and (b) opportunity to so inform him, or when the giving of
hereof, the person arrested without a such information will imperil the arrest. (Sec. 9).
warrant shall be forthwith delivered to the
nearest police station or jail, and he shall be Q. What may an officer do if in effecting arrest, he
proceeded against in accordance with Rule needs assistance?
112, Section 7. (Sec. 5)
ANS. An officer making a lawful arrest may orally
Q. What is the basis of the doctrine of hot pursuit in
summon as many persons as he deems necessary
warrantless arrest?
to aid him in making the arrest. Every person so
summoned by an officer shall aid him in the making b) Any public officer or employee, or anyone
of such arrest, when he can render such aid without acting under his order or in his place, who
detriment to himself. (Sec. 10). arrests, detains or investigates any person
for the commission of an offense shall
Q. What is the remedy of a peace officer who is inform the latter, in a language known to and
refused admittance into a building where the person understood by him, of his rights to remain
to be arrested is believed to be in? silent and to have competent and
independent counsel, preferably of his own
ANS. An officer in order to make an arrest either by virtue choice, who shall at all times be allowed to
of a warrant, or when authorized to make such confer privately with the person arrested,
arrest for an offense without a warrant, as provided detained or under custodial investigation. If
in Section 5, may break into any building or such person cannot afford the services of
enclosure in which the person to be arrested is or is his own counsel, he must be provided with a
reasonably believed to be, if he is refused competent and independent counsel by the
admittance thereto, after he has announced his investigating officer;
authority and purpose. (Sec. 11).
c) The custodial investigation report shall be
Q. What can the officer do if after entering a building to reduced to writing by the investigating
effect arrest, he could not get out? officer, provided that before such report is
signed, or thumbmarked if the person
ANS. He may break out of that building when necessary arrested or detained does not know how to
for the purpose of liberating himself. (Sec. 12). read and write, it shall be read and
adequately explained to him by his
Q. What is the remedy against an arrested person who counselor, by the assisting counsel provided
escapes? by the investigating officer in the language
or dialect known to such arrested or
ANS. If a person lawfully arrested escapes or is rescued, detained person, otherwise, such
any person may immediately pursue or retake him investigation report shall be null and void
without a warrant at any time and in any place and of no effect whatsoever;
within the Philippines. (Sec. 13).
d) Any extrajudicial confession made by a
Q. State the rights of an attorney or relative of a person person arrested, detained or under custodial
arrested. investigation shall be in writing and signed
by such person in the presence of his
ANS. Any member of the bar shall, at the request of the counsel or in the latter’s absence, upon a
person arrested or of another acting in his behalf, valid waiver, and in the presence of any of
have the right to visit and confer privately with such the parents, elder brothers and sisters, his
person, in the jail or any other place of custody at spouse, the municipal mayor, the municipal
any hour of the day or, in urgent cases, of the night. judge, district school supervisor, or priest or
This right shall also be exercised by any relative of minister of the gospel as chosen by him;
the person arrested subject to reasonable otherwise, such extrajudicial confession
regulation. (Sec. 14). shall be inadmissible as evidence in any
proceeding;
Q. What is R.A. No. 7438? State its purpose.
e) Any waiver by a person arrested or detained
ANS. R.A. No. 7438 is an act defining certain rights of under the provisions of Article 125 of the
persons arrested, detained or under custodial Revised Penal Code, or under custodial
investigation by officers, and providing penalties for investigation, shall be in writing and signed
violations thereof. by such person in the presence of his
counsel; otherwise, such waiver shall be null
Its basic purpose is to comply with the policy of the and void and of no effect;
State to value the dignity of every human being and
guarantee full respect for human rights. (Sec. 1, f) Any person arrested or detained or under
R.A. No. 7438). custodial investigation shall be allowed visits
by or conferences with any member of the
Q. What are the rights of a person arrested, or immediate family, or any medical doctor or
detained under R.A No. 7438? priest or religious ministers chosen by him or
by any member of his immediate family or
ANS. The rights of the person arrested, detained or under by his counsel, or by any national non-
custodial investigation as defined by R.A. No. 7438 governmental organization duly accredited
are the following: by the Commission on Human Rights or by
any international non-government
a.) Any person arrested, detained or under organization duly accredited by the Office of
custodial investigation shall at all times be the President. The person’s “immediate
assisted by counsel; family” shall include his or her spouse,
fiancée or fiancé, parent or child, brother or
sister, grandparent or grandchild, uncle or ANS. Bail is a matter of right before final conviction, but
aunt, nephew or niece, and guardian or the rule is not absolute. The exception is when a
ward. person is charged with a capital offense when the
evidence of guilt is strong, or when the offense for
which one is charged is punishable by reclusion
perpetua. The exception to this rule however, is
RULE 114 even if a person is charged with a capital offense
BAIL where the evidence is strong, if the accused has
failing health, hence, for humanitarian reasons, he
Q. What is bail? may be admitted to bail, but that is discretionary on
the part of the court. (De la Ramos vs. People’s
ANS. Bail is the security given for the release of a Court, 77 Phil. 461; Caurara vs. Enage).
person in custody of the law, furnished by him or a bondsman,
conditioned upon his appearance before any court as required The Rules of Court provide that bail is a mater of
under the conditions hereinafter specified. Bail may be given in right before or after conviction by the Metropolitan
the form of corporate surety, property bond, cash deposit, or Trial Court, Municipal Trial Court, Municipal Trial
recognizance. (Sec. 1). Court in Cities and Municipal Circuit Trial Court, and
before conviction by the Regional Trial Court of an
Q. State the constitutional right to bail. offense not punishable by death, reclusion perpetua
or life imprisonment, and the accused may be
ANS. All persons, except those charge with admitted to bail as a matter of right, with sufficient
offenses punishable with reclusion perpetua when evidence of sureties, or be released on recognizance as
guilt is strong, shall, before conviction, be bailable by sufficient prescribed by law or this Rule. (Sec. 3)
sureties, or be released on recognizance as may be provided by
law. The right to bail shall not be impaired even when the Q. When may a person be admitted to bail.
privilege of the writ of habeas corpus is suspended. Excessive
bail shall not be required. (Sec. 13, Art. III, 1987 Constitution). ANS. Upon conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua
Q. Is the right to bail impaired while the writ of habeas or life imprisonment, the court, on application, may
corpus is suspended? Why? admit the accused to bail.
ANS. No, because under Sec. 13 of Art. III, 1987 The court, in its discretion, may allow the accused
Constitution, the right to bail shall not be impaired even when to continue on provisional liberty under the same
the privilege of the writ of habeas corpus is suspended. bail bond during the period to appeal subject to the
consent of the bondsman. (Sec. 5).
Q. What are the conditions contained in a bail?
Q. Under what circumstances may a person who has
ANS. The conditions in a bail are: been sentenced to an imprisonment exceeding 6
years but not more than 20 years be denied bail?
a) The undertaking shall be effective, upon
approval and remain in force at all stages of ANS. If the court imposed a penalty of imprisonment
the case, unless sooner cancelled, until the exceeding six (6) years but not more than twenty
promulgation of the judgment of the (20) years, the accused shall be denied bail, or his
Regional Trial Court, irrespective of whether bail previously granted shall be cancelled, upon a
the case was originally filed or appealed to showing by the prosecution, with notice to the
it; accused, of the following or other similar
circumstances:
b) The accused shall appear before the proper
court whenever so required by the court or (a) That the accused is a recidivist, quasi-
these Rules; recidivist, or habitual delinquent, or has
committed the crime aggravated by the
c) The failure of the accused to appear at the circumstance of reiteration;
trial without justification despite due notice
to him or his bondsman shall be deemed an (b) That the accused is found to have previously
express waiver of his right to be present on escaped from legal confinement, evaded
the date specified in the notice. In such sentence, or has violated the conditions of
case, the trial may proceed in absentia; and his bail without valid justification;
d) The bondsman shall surrender the accused (c) That the accused committed the offense
to the court for execution of the final while on probation, parole, or under
judgment. (Sec. 2). conditional pardon;
Q. When is bail a matter of right? Is it (d) That the circumstances of the accused or
absolute? Why? his case indicate the probability of flight if
released on bail; or
(e) That there is undue risk that during the Q. Who has the burden of proof that the evidence of
pendency of the appeal, the accused may guilt is strong in an application for bail?
commit another crime.
ANS. At the hearing of an application for admission to bail
The appellate court may review the filed by any person who is in custody for the
resolution of the Regional Trial Court, on motion and with notice commission of an offense punishable by death,
to the adverse party. (Sec. 5). reclusion perpetua or life imprisonment, the
prosecution has the burden of showing that
evidence of guilt is strong. (Sec. 8)
Q. X was charged with a crime. After trial, he was
convicted. He filed a notice of appeal. Can he still Q. What shall be done with the evidence presented at
file a petition for bail with the trial court? Explain. the hearing in an application for bail?
ANS. It depends. The accused may still file an ANS. It shall be automatically reproduced at the trial, but
application for bail with trial court and the latter may upon motion of either party, the court may recall any
still act upon it despite the filing of a notice of witness, except if he is already dead, outside of the
appeal provided that it has not yet transmitted the Philippines or otherwise unable to testify. (Sec. 8)
original record to the appellate court. (Sec. 5). The
reason for the rule is based on the doctrine of Q. State the guidelines in the fixing of the bail.
residual powers, powers which the trial court retain
even after the perfection of the appeal. ANS. The court may consider the following:
Q. X was charge with the crime of murder. After trial, (a) Financial ability of the accused to give bail;
he was convicted of the crime of homicide. The (b) Nature and circumstances of the offense;
accused appealed and the record has been (c) Penalty of the offense charged;
transmitted to the appellate court. In what court (d) Character and reputation of the accused;
should a petition for bail be file? Why? (e) Age and health of the accused;
(f) The weight of the evidence against the
ANS. It should be filed and resolved by the appellate accused;
court. Under the Rules, if the decision of the trial (g) Probability of the accused appearing in trial;
court convicting the accused changed the nature of (h) Forfeiture of other bonds;
the offense from non-bailable to bailable, the (i) The fact that accused was a fugitive from
application for bail can only be filed with and justice when arrested; and
resolved by the appellate court. (Sec. 5). The (j) The pendency of other cases in which the
reason for the rule is that, the trial court has already accused is under bond. (Sec. 9; Villasenor
lost jurisdiction over the subject matter upon the vs. Abano, 21 SCRA 312).
perfection of appeal and transmission of the record
to the appellate court. The doctrine of residual Q. May excessive bail be imposed? Why?
powers does not apply anymore.
ANS. No, because that is tantamount to denying bail.
Q. What is a capital offense?
Q. What is a property bond?
ANS. A capital offense, as the term used in these Rules,
is an offense which, under the law existing at the ANS. A property bond is an undertaking constituted as a
time of its commission and at the time of the lien on the real property given as security for the
application to be admitted to bail, may be punished amount of the bail. (Sec. 11).
with death. (Sec. 6).
Q. What are the qualifications of sureties to a property
Q. Can a person charged with capital offense or one bond.
punishable by reclusion perpetua or life
imprisonment be admitted to bail? ANS. They are the following:
ANS. No. No person charged with a capital offense, or an (a) Each of them must be a resident-owner of
offense punishable by reclusion perpetua or life real estate within the Philippines;
imprisonment, when evidence of guilt is strong,
shall be admitted to bail regardless of the stage of (b) Where there is only one surety, his real
the criminal prosecution. (Sec. 7). estate must be worth at least the amount of
the undertaking;
Q. What is the remedy of a person who is charge with
an offense punishable by death or reclusion (c) In case there are two or more sureties, they
perpetua or life imprisonment while he is detained? may justify severally in amounts less than
that expressed in the undertaking if the
ANS. He can apply for bail because bail is not a matter of entire sum justified to is equivalent to the
right. If he can prove that the evidence of guilt is whole amount of bail demanded.
not strong, he can be admitted to bail.
In all cases, every surety must be worth the Q. Is it sufficient that a person be charged with capital
amount specified in his own undertaking over and above all just offense for bail to be a matter of discretion? Why?
debts, obligations and property exempt from execution. (Sec.
12). ANS. No. What controls is that the evidence of guilt is
strong. It does not mean that if the case is a capital
Q. What is the effect of depositing cash as bail? offense, bail is a matter of discretion. What is
important is that the evidence of guilt is strong.
ANS. The accused shall be discharged from custody as it
is considered as bail. (Sec. 14). The discretion lies in the determination of whether
the evidence of guilt is strong. If it is determined
Q. When may a person be released on recognizance? that it is not strong, then bail is a matter of right.
There is no more discretion of the court in denying
ANS. Whenever allowed pursuant to law or these Rules, the bail, the moment there is a determination that
the court may release a person in custody on his the evidence of guilt is not strong.
own recognizance or that of a responsible person.
(Sec. 15). Q. What shall the court do after approving the bail of
an accused?
Q. What shall the court do if the person has been in
custody for a period equal to or more than the ANS. The accused must be discharged. (Sec. 19).
possible maximum imprisonment of the offense
charged? Q. If the bail is filed in a court other than the sala
where the case is pending, what shall the said court
ANS. He shall be released immediately, without prejudice do?
to the continuation of the trial or the proceedings on
appeal. In case the maximum penalty to which the ANS. Whenever bail is filed with a court other than where
accused may be sentenced is destierro, he shall be the case is pending, the judge accepting the bail
released after 30 days of preventive imprisonment. shall forward the bail, the order of release and other
supporting papers to the court where the case is
A person in custody for a period equal to or more pending, which may, for good reason, require a
than the minimum of the principal penalty different one to be file. (Sec. 19).
prescribed for the offense charged, without
application of the Indeterminate Sentence Law or Q. May the bail be increased or decreased?
any modifying circumstances, shall be released on
a reduced bail or on his own recognizance, at the ANS. Yes. After the accused shall have been admitted to
discretion of the court. (Sec. 16). bail, the court may, upon good cause shown, either
increase or decrease the amount of the same. If
Q. Where shall the bail be filed? increased, the accused may be committed to
custody unless he gives bail in the increased
ANS. (a) Bail in the amount fixed may be filed with amount thereof within a reasonable period. An
the court where the case is pending, or in the accused held to answer a criminal charge but who
is released without bail on the filing of a complaint
absence or unavailability of the judge
or information, may at any subsequent stage of the
thereof, with another branch of the same
proceedings whenever a strong showing of guilt
court within the province or city. If the
appears to the court, be required to give bail in the
accused is arrested in a province, city or
amount fixed, or in lieu thereof may be committed to
municipality other than where the case is
custody. (Sec. 20).
pending, bail may be filed also with any
regional trial court of said place, or, if no
Q. When may the bail forfeited?
judge thereof is available, with any
metropolitan trial judge, municipal trial judge
ANS. When the presence of the accused is specifically
or municipal circuit trial judge therein.
required by the court, or these Rules, his bondsman
shall be notified to produce him before the court on
(b) Whenever the grant of bail is a matter of a given date. If the accused fails to appear in
discretion, or the accused seeks to be person as required, the bond shall be declared
released on recognizance, the application forfeited and the bondsmen are given thirty (30)
therefore may be filed only in the particular days within which to produce their principal and to
court where the case is pending, whether for show cause why judgment should not be rendered
preliminary investigation, trial, or on appeal. against them for the amount of their bond. (Sec.
12).
(c) Any person in custody who is not yet
charged in court may apply for bail with any Q. What shall the bondsman do within 30 days as
court in the province, city or municipality ordered if the accused fails to appear at the trial?
where he is held. (Sec. 17).
ANS. The bondsman:
(a) must produce the body of their principal or incapable of filing one, the court may allow his
give the reason for his non-production; and release on recognizance to the custody of a
responsible member of the community. In no case
(b) must explain satisfactorily why the accused shall bail be allowed after the accused has
did not appear before the court when first commenced to serve sentence. (Sec. 24).
required to do so.
Q. Is the accused barred from questioning the illegality
Failing in this two requisites, a of his arrest or the lack of preliminary investigation if
judgment shall be rendered against the bondsmen, jointly and he posts bail? Explain.
severally, for the amount of the bond, and the court shall not
reduce or otherwise mitigate the liability of the bondsmen, ANS. No, as a rule. Under the Rules , an application or
except when the accused has been surrendered or is acquitted. admission to bail shall not bar the accused from
(Sec. 21). challenging the validity of his arrest or the legality of
the warrant issued therefore, or from assailing the
Q. When may a bond be cancelled? regularity or questioning the absence of a
preliminary investigation of the charge against him,
ANS. Upon application filed with the court and after due provided that he raises them before entering his
notice to the prosecutor, the bail bond may be plea. (Sec. 26). If he does not do it before he
cancelled upon surrender of the accused or proof of enters his plea, he is deemed to have waived such
his death. (Sec. 22). right.
Q. Within what time should the trial court resolve such

Q. When is a bail bond deemed automatically issues?
cancelled?
ANS. The trial court should resolve the matters as early
ANS. The bail bond shall be deemed automatically as practicable but not later than the start of the trial
cancelled upon acquittal of the accused or dismissal of the case. (Sec. 26).
of the case or execution of the final judgment of
conviction. (Sec. 22).
Q. Will the cancellation of the bond because of the RULE 115

death, surrender of the accused or acquittal exempt RIGHTS OF THE ACCUSED
the bond from liability for damages?
Q. What are the rights of the accused at the trial.
ANS. No, because the law says that the cancellation is
without prejudice to any liability of the bond. (Sec. ANS. They are:
22).
(a) To be presumed innocent until the
Q. When may the bondsman arrest an accused who is contrary is proved beyond reasonable
out on bail? doubt;
ANS. For the purpose of surrendering the accused, the (b) To be informed of the nature and cause of
bondsman may arrest him, or on written authority the accusation against him;
endorsed on a certified copy of the undertaking
cause him to be arrested by any police officer or (c) To be present and defend in person and by
any other person of suitable age and discretion. counsel at every stage of the proceedings,
(Sec. 23). from the arraignment to the promulgation of
the judgment. The accused may, however,
Q. When may a person out on bail be re-arrested? waived his presence at the trial pursuant to
the stipulations set forth in his bail bond,
ANS. An accused released on bail may be re-arrested unless his presence is specifically ordered
without the necessity of a warrant if he attempts to by the court for purposes of identification.
depart from the Philippines without prior permission The absence of the accused without any
of the court where the case is pending. (Sec. 23). justifiable cause at the trial on a particular
date of which he had notice shall be
Q. May an accused who has been convicted by final considered a waiver of his right to be
judgment be allowed bail? Is the rule absolute? present during that trial. When an accused
under custody had been notified of the date
ANS. No, but the rule is not absolute. An accused shall of the trial and escapes, he shall be deemed
not be allowed bail after the judgment has become to have waived his right to be present on
final, unless he has applied for probation before said date and on all subsequent trial dates
commencing to serve sentence, the penalty and the until custody is regained. Upon motion, the
offense being within the purview of the Probation accused may be allowed to defend himself
Law. In case the accused has applied for probation, in person when it sufficiently appears to the
he may be allowed temporary liberty under his bail court that he can properly protect his right
bond, but if no bail was filed or the accused is without the assistance of counsel;
(2) the prosecution can present evidence if

(d) To testify as a witness in his own behalf but accused fails to appear;
subject to cross-examination on matters
(3) the court can decide without accused’s
covered by direct examination. His silence
evidence.
shall not in any manner prejudice him;
(e) To be exempt from being compelled to be a

Q. Is it proper for the court to suspend the proceedings
witness against himself;
if the accused fails to appear? Why?
(f) To confront and cross-examine the
witnesses against him at the trial. Either
party may utilize as part of its evidence the ANS. No, otherwise, the proceedings would be derailed
testimony of a witness who is deceased, out resulting in the delay in the administration of justice.
of or can not with due diligence be found in Trial can go on in absentia.
the Philippines, unavailable or otherwise
unable to testify, given in another case or
proceeding, judicial or administrative, Right Against Self – Incrimination
involving the same parties and subject
matter, the adverse party having had the
opportunity to cross-examine him; Q. What constitutional provision guarantees the right
against self-incrimination?
(g) To have compulsory process issued to

secure the attendance of witnesses and ANS. No person shall be compelled to be a witness
production of other evidence in his behalf; against himself. (Sec. 17, Art III, 1987 Constitution).
Right to Confrontation
(h) To have a speedy, impartial and public trial;
and
Q. What is the concept of the right to confrontation?
(i) To have the right of appeal in all cases
allowed and in the manner prescribed by
law. (Sec. 1). ANS. It is the right of the accused to meet the witnesses
against him face to face. It is the right of the
accused to cross-examine the witnesses.
Trial in Absentia
Compulsory Process
Q. What are the purposes and requirements of trial in
absentia?
Q. What is the basic purpose of the right of the
accused to have compulsory process to secure the
ANS. The basic purpose of trial in absentia is to speed up attendance of the witnesses in his behalf?
the disposition of criminal cases considering that if
the accused would not always be present, that
would derail the trial of the cases. ANS. The purpose is to assure a full and unimpeded
opportunity for him to meet what in the end could be
a baseless suit or accusation. The due process
The requirements are: clause simply requires, too, that before a person
may be deprived of his life, liberty or property, he
must be given the opportunity to be heard.
(1) the accused must be arraigned;
Q. What processes may be resorted to, to compel the
(2) the accused must have been duly notified; attendance of a person in court?
(3) the accused’s failure to appear must be
unjustifiable.
ANS. The different processes that my be resorted to, to
compel the attendance of parties in court as well as
Q. What are the effects of the waiver of the right to witnesses are: subpoena, subpoena duces tecum,
appear by the accused? warrant of arrest, contempt, perpetuation of
testimony, and modes of discovery.
ANS. The effects are:

Speedy, Impartial and Public Trial
(1) there is a waiver of the right to present

evidence; Q. What is the meaning of public trial?
three (3) days from the filing of the information or

complaint. The accused shall be arraigned within
ANS. It is one held openly or publicly. It is sufficient that
ten (10) days from the date of the raffle. The pre-
relatives, and friends who want to watch the
trial conference of his case shall be held within ten
proceedings are given the opportunity to witness
(10) days after arraignment. (Sec. 1, par. e).
the proceedings.
Q. What are the purposes for which the offended party

Q. When is the exclusion of the public valid without
may be required to appear at the arraignment?
violating the right to public trial?
ANS. The private offended party may be required to

ANS. The exclusion of the public from the trial is valid
appear at the arraignment for purposes of:
without violating the right to public trial when the
evidence to be produced is offensive to decency or
public morals. (Rule 119, Sec. 13, Rules of Court).
1. Plea – bargaining;
2. Determination of civil liability; and
3. Other matters requiring his presence. (Sec.
1, par. f).
Q. What is the effect if the offended party fails to

appear at the time of the arraignment?
RULE 116
ARRAIGNMENT AND PLEA
ANS. In case of failure of the offended party to appear at
the arraignment despite due notice, the court may
Q. Where and how must the arraignment of the
allow the accused to enter a plea of guilty to a
accused be made?
lesser offense which is necessarily included in the
offense charged with the conformity of the trial
prosecutor alone. (Sec. 1, par. f).
ANS. The accused must be arraigned before the court
where the complaint or information has been filed or
assigned for trial. The arraignment must be made
Q. Within what period should the accused be
in open court by the judge or clerk by furnishing the
arraigned?
accused a copy of the complaint or information with
the list of witnesses, reading the same in the
language or dialect known to him and asking him
ANS. The arraignment of the accused shall be held within
whether he pleads guilty or not guilty. The
thirty (30) days from the date the court acquires
prosecution may, however, call at the trial witnesses
jurisdiction over the person of the accused, unless
other than those named in the complaint or
a shorter period is provided for by special law or
information. (Sec. 1).
Supreme Court circular. The time of the pendency
of a motion to quash or for a bill of particulars or
other causes justifying suspension of the
Q. State the effect if an accused pleads guilty but
arraignment shall be excluded in computing the
presents exculpatory evidence. Explain.
period. (Sec. 1, par. g)
Q. What shall the court do if the accused refuses to
ANS. When the accused pleads guilty but presents enter his plea?
exculpatory evidence, his plea shall be deemed
withdrawn and a plea of not guilty shall be entered
for him. (Sec. 1, par. d). The reason for the rule is ANS. If the accused refuses to plead, or makes a
that, the accused cannot impose conditions or conditional plea of guilty, a plea of not guilty shall be
interpose defenses if he pleads guilty. A plea of entered for him. (Sec. 1).
guilty is an unconditional admission of guilt. (See
People vs. Balicasan, supra).
Q. When my an accused enter a plea of guilty to a
lesser offense?
Q. State the rules to be followed if an accused is under
detention but he has not yet been arraigned.
ANS. An accused may enter a plea of guilty to a lesser
offense provided that it is necessarily included in
ANS. When the accused is under preventive detention, the offense charged. (Sec. 2). Note that the former
his case shall be raffled and its records transmitted rule allowed the plea to any lesser offense
to the judge to whom the case was raffled within
regardless of whether or not it is included in the

offense charged.
Q. Who may be appointed counsel de officio?
Q. Give an example of the rule.

ANS. The court, considering the gravity of the offense and
the difficulty of the questions that may arise, shall
appoint as counsel de oficio only such members of
ANS. If an accused is charged with murder, he may be
the bar in good standing who, by reason of their
allowed, under the conditions set forth above to
experience and ability may adequately defend the
enter a plea of guilty to homicide. The latter is
accused. But in localities where such members of
necessarily included in the former.
the bar are not available, the court may appoint any
person, resident of the province and of good repute
for probity and ability, to defend the accused. (Sec.
Q. Is there a need to amend the information if the 7).
accused enters a plea to a lesser offense?
Q. State the time frame for the preparation of a

ANS. No. No amendment of the complaint or information counsel de officio for his plea.
is necessary if accused pleads to a lesser offense.
(Sec. 2).
ANS. Whenever a counsel de officio is assigned by the
court to defend the accused at the arraignment, he
Q. What must the court do if the accused enters a plea shall be given at least one hour to consult with the
of guilty to a capital offense? accused as to his plea before proceeding with the
arraignment. (Sec. 8).
ANS. When the accused pleads guilty to a capital offense,
the court shall conduct a searching inquiry into the Q. What is the time frame for the accused to prepare for
voluntariness and full comprehension of the trial after arraignment?
consequences of his plea and require the
prosecution to prove his guilt and the precise
degree of culpability. The accused may also
ANS. After a plea of not guilty, the accused is entitled to
present evidence in his behalf. (Sec. 3).
two (2) days to prepare for trial unless the court for
good cause grants him further time. (Sec. 9).
Q. If the accused pleads guilty to an offense not
capital, is the court required to conduct searching
Q. What may the accused do before arraignment if
inquiry?
there are defects of the information against him?
ANS. No, because it is a matter of discretion. When the

ANS. Accused may, at or before arraignment, move for a
accused pleads guilty to a non-capital offense, the
bill of particulars to enable him properly to plead
court may receive evidence from the parties to
and to prepare for trial. The motion shall specify the
determine the penalty to be imposed. (Sec. 3).
alleged defects and the details desired. (Sec. 9).
Q. May the accused withdraw his plea of guilty?

Q. What may the court do before trial to prevent
surprises?
ANS. Yes, if it is improvident. At any time before the
judgment of conviction becomes final, the court may
ANS. On motion of the accused showing good cause and
permit an improvident plea of guilty to be withdrawn
with notice to all parties, the court, in order to
and be substituted by a plea of not guilty. (Sec. 5).
prevent surprise, suppression, or alteration, may
order the prosecution to produce and permit the
inspection and copying or photographing, of any
Q. State the duties of the court before arraigning the written statements given by the complainant and
accused. other witnesses in any investigation of the offense
conducted by the prosecution or any other
investigating officers, as well as of any designated
ANS. Before arraignment, the court shall inform the documents, papers, books, accounts, letters,
accused of his right to counsel and shall ask him if photographs, objects or tangible things, not
he desires to have one. Unless the accused is otherwise privileged, which constitute or contain
allowed to defend himself in person, or he has evidence material to any matter involved in the
employed counsel of his choice, the court must case, and which are in the possession or under the
assign a counsel de officio to defend him. (Sec. 6).
control of the prosecution, the police, or any other 5) modification of the order of trial if the
law-investigating agencies. (Sec. 10). accused admits the charge but
interposes a lawful defense; and
6) such matters as will promote a fair and
Q. When may the court suspend the arraignment of the expeditious trial of the criminal and civil
accused? aspects of the case.
*Plea-bargaining is not allowed under the Dangerous Drugs Act

when the impossible penalty for the offense charged is reclusion
perpetua to death. (Section 18, RA 7659)
ANS. The arraignment shall be suspended, if at the time
thereof:
Q. What are the requisites before a pre-trial agreement may be
used as evidence?
(a) The accused appears to be suffering from
an unsound mental condition which effectively renders him ANS.
unable to fully understand the charge against him and to 1) they are reduced to writing;
plead intelligently thereto. In such case, the court shall 2) the accused and his counsel sign the
order his mental examination and, if necessary his pre-trial agreement.
confinement for such purpose;
(b) The court finds the existence of a valid Q. What is the propriety of non-appearance of the
prejudicial question; and counsel for accused or the prosecutor at the pre-trial
conference?
(c) Petition for review of the resolution of the ANS. If the counsel for the accused or the prosecutor does
prosecutor is pending at either the Department of Justice, not appear at the pr-trial conference and does not offer an
or the Office of the President; provided, that the period of acceptable excuse for his lack of cooperation, the court may
suspension shall not exceed 60 days counted from the impose proper sanctions or penalties.
filing of the petition with the reviewing office. (Sec. 11).
*When a judgment has been entered by consent of the counsel
without special authority, it will be set aside or re-opened. (Fule
RULE 118 v. CA, 162 SCRA 446)
PRE-TRIAL
*The requirement does not however apply to stipulation of facts
Q What is pre-trial? during trial. A stipulation of facts entered into by the prosecution
and the defense counsel during trial in open court is
ANS. It is a process whereby the accused and the prosecutor in automatically reduced into writing and contained in the official
a criminal case work out a mutually satisfactory disposition of transcript of the proceedings had in court. The conformity of the
the case subject to court approval. It usually involves the accused in the form of his signature affixed thereto is
defendant’s pleading guilty to a lesser offense or to only or some unnecessary. (McCormick on Evidence, 2nd Ed., p.141)
of the count s of a multi court indictment in return for a lighter
sentence than that for a graver charge. *Failure of the counsel for accused or the prosecutor results to
no dismissal of the case but the court may impose on them
Q. Is pre-trial mandatory? proper sanctions or penalties.
ANS. Yes, in all criminal cases pursuant to the provisions of *Insufficiency of Pre-trial
the Speedy Trial Act. A proffer of evidence on the basis of evidence
exhibited by the accused during pre-trial is not sufficient and the
Q. What is the purpose of pre-trial? acquittal of the accused on the basis thereof is a nullity for want
of due process.
ANS. To expedite the trial proceedings.
Q. What are subjects of the pre-trial conference? Q. What is the duty of the Court after the pre-trial?
ANS. The following are the subjects of the pre-trial ANS. After the pre-trial conference, the court shall issue an
conference: order reciting the actions taken, the facts stipulate, and evidence
1) plea bargaining; marked. Such order shall bind the parties, limit the trial to
2) stipulation of facts matters not disposed of and control the course of action during
3) marking for the identification of the trial, unless modified by the court to prevent manifest
evidence of the parties; injustice.
4) waiver of objections to admissibility of
evidence;
RULE 119
TRIAL a) delay resulting from an examination of

the physical and mental conditions of
Q. What is Trial? the accused;
b) delay resulting from proceedings with
ANS. Trial is the examination before a competent tribunal respect to other criminal charges
according to the laws of the land of the facts put in issue in a against the accused;
case for the purpose of determining such issue. c) delay resulting from extraordinary
remedies against interlocutory orders;
Q. When is the time to prepare for pre-trial? d) delay resulting from pre-trial
proceedings, provided that, the delay
ANS. After plea of not guilty is entered, the accused shall does not exceed 30 days;
have at least 15 days to prepare for trial. The trial shall e) delay resulting from orders of inhibition,
commence within 30 days from receipt of the pre-trial order. or proceedings relating to change of
venue of cases or transfer from other
*The refusal of a trial court to give to the defendant in a criminal courts; and
action, when demanded by him, to prepare for trial, as provided f) delay reasonably attributed to any
by the rule is mandatory and imperative, leaving no discretion in period, not to exceed 30 days during
the court, deprives the accused of constitutional rights namely a which
right to trial by due process of law. The remedy of the defendant the accused is actually under
in such case is appeal not by certiorari.(Montilla v. Arellano) advisement.
2. Any period of delay resulting from the absence or
Q. What is a continuous trial system? unavailability of essential witness.
For purposes of this subparagraph, an
ANS. Trial once commenced shall continue from day to day essential witness shall be considered absent
as far as practicable until terminated; but it may be postponed when his whereabouts are unknown or his
for a reasonable period of time for good cause. whereabouts cannot be determined by due
diligence. He shall be considered unavailable
Q. What is its purpose? whenever his whereabouts are known but his
presence for trial cannot be obtained by due
ANS. Its purpose is to expedite the decision or resolution of diligence.
cases in the trial court. 3. Any period of delay resulting from the mental
*The Supreme Court adopted the continuous trial system by a incompetence of physical inability of the accused
mode of judicial-fact-finding and adjudication conducted with to stand trial.
speed and dispatch so that the trials are held on the scheduled 4. if the information is dismissed upon the motion of
dates without postponement. The factual issues for trial well- the prosecution and thereafter a charge is filed
defined at pre-trial and the whole proceedings terminated and against the accused for the same offense. Any
ready for judgment within 90 days from the date of initial hearing period of delay from the date the charge was
unless for meritorious reasons, an extension is permitted. dismissed to the date that time limitation would
This system requires that the pending judge: commence to run as to the subsequent charge
1. adhere faithfully to the session hours prescribed had there had been no previous charge.
by law; 5. A reasonable period of delay when the accused
2. to maintain full control of the proceedings; is joined for trial with a co-accused over whom
3. effectively allocate and use time and court the court has not acquired jurisdiction, or as to
resources to avoid court delays. whom the time for
trial has not run and no motion for separate trial
Q. What are the remedies of accused where a has been granted.
prosecuting officer without good cause secures postponement of 6. Any period of delay resulting from a continuance
the trial of a defendant against this protest beyond a reasonable granted by any court motu proprio, or on motion
period of time? of either the accused or his counsel or the
prosecution, if the court granted the continuance
ANS. The remedies of the accused are the following: on the basis of its findings set forth in the order
1. Mandamus to compel a dismissal of the that the ends of justice served by taking such
information. action outweigh the best interest of the public and
2. If he is restrained of his liberty by habeas corpus the accused in a speedy trial.
to obtain his freedom. *Delays covered by the exclusions enumerated under this
section are subtracted from computation of the 180-day trial.
Q. What are the periods of delay which shall be excluded
in computing the time within which trial must commenced?
Q. What are the factors in granting continuance?
ANS. The following periods of delay shall be excluded in
computing the time within which trial must commenced: ANS. These factors which the court should consider in
1. Any period of delay resulting from other granting continuance are the following:
proceedings concerning the accused, including 1) Whether or not the failure to grant a continuance
but not limited to the following: in the proceeding would likely make a
continuance of such proceeding impossible or
result in a miscarriage of justice;
2) Whether or not the case taken as a whole is so 3) upon receipt of such notice, the public attorney
novel, unusual or complex, due to the number of shall promptly seek to obtain the presence of the
the accused or the nature of the prosecution, or prisoner for trial;
that it is unreasonable to expect adequate 4) when the custodian of the prisoner receives from
preparation within the periods of time established the public attorney a properly supported request
therein. for the availability of the prisoner for purposes of
*In addition, no continuance under section 3(f) of this Rule shall trial, the prisoner shall be made available
be granted because of congestion of the court’s calendar or lack accordingly.
of diligent preparation to obtain available witnesses on the part
of the prosecutor.
Q. In what cases sanctions may be imposed on the
*The general rule is that motions for postponement are granted public attorney or the prosecutor?
only upon meritorious grounds and no party has a right to
assume that his motion will be granted. The grant or denial of ANS. Sanctions may be imposed on the public attorney or
motion for postponement is address to the discretion of the the prosecutor on the following cases:
court. (De Guia v. Guerrero, 234 SCRA 625) 1) when he knowingly allows the case to be set for
trial without disclosing that a necessary witness
*Unless grave abuse discretion is shown, such discretion will not would be unavailable for trial;
be interpreted with either by mandamus or appeal. (Pp v. 2) files a motion solely for delay which he knows is
Leviste, 244 SCRA 238) totally frivolous and without merit;
3) makes a statement for the purpose of obtaining
*A party charged with a crime has no natural or inalienable right continuance which he knows to be false and
to a continuance. (Marcos v. Ruiz, 210 SCRA 177) which is material to the granting of a continuance;
4) willfully fails to proceed to trial without justification
Q. What is the time limit following an order for new trial? consistent with the provisions hereof, the court
may punish such counsel, attorney or prosecutor
ANS. If the accused is to be tried again pursuant to an order as follows:
for a new trial, the trial shall commence within thirty days from a) by imposing on a counsel privately
notice of the order, provided, if the order becomes impractical retained in connection with the defense
due to unavailability of witnesses and other factors, the court of an accused, a fine not exceeding
may extend it but not to exceed 180 days from notice of such twenty thousand pesos;
order for a new trial. b) by imposing on any appointed counsel
de oficio, public attorney, or prosecutor,
a fine not exceeding five thousand
*Notwithstanding the provisions of section1 (g) of Rule 116 and pesos;
the preceding section 1, for the first twelve-calendar-month c) by denying any defense counselor
period following its effectivity on September 15,1998, the time prosecutor the right to practice before
limit with respect to the period from arraignment to trial imposed the court trying the case for a period
by the said provision, shall be one hundred eighty days. For the not exceeding thirty days. The
second twelve-month period, the time limit shall be one hundred punishment provided for under this
twenty days, and for the third twelve-month period, the time limit section shall be without prejudice to
shall be eighty days. any appropriate criminal action or other
sanction authorized under these rules.
Section 7. Public attorney’s duties where accused is imprisoned
Q. What is the remedy where the accused is not brought
Q. What are the duties of the public attorney where to trial within the time limit?
accused is imprisoned?
ANS. If the accused is not brought to trial within the time
ANS. If the public attorney assigned to defend a person limit required by section 1(g), Rule 116 and section 1, as
charged with a crime knows that the latter is preventively extended by section 6 of this Rule, the information may be
detained, either because he is charged with a bailable crime but dismissed on motion of the accused on the ground of denial of
has no means to post bail, or is charged with a non-bailable his right to speedy trial. The accused shall have the burden of
crime, or is serving a term of imprisonment in any penal proving the motion but the prosecution shall have the burden of
institution, it shall be his duty to do the following: going forward with the evidence to establish the exclusion of
1) shall promptly undertake to obtain the presence time under section 3 of this Rule. The dismissal shall be subject
of the prisoner for trial or cause a notice to be to the rules on double jeopardy.
served on the person having custody of the
prisoner requiring such person to so advise the *The parties have the right to be present at the trial of their
prisoner of his right to demand trial; cases either by themselves or by their attorneys. They are also
2) upon receipt of that notice, the custodian of the entitled to reasonable notice of the time set for the trial. Hence,
prisoner shall promptly advise the prisoner of the if the trial court discovers that either of the parties to the action
charge and of his right to demand trial. If at any has not been notified of the trial it may on its own grant a new
time thereafter the prisoner informs his custodian trial.
that he demands such trial, the latter shall cause
notice to the effect to be sent promptly to the *The corresponding responsibilities of the principal, accomplice
public attorney; and accessory are distinct from each other. As long as the
commission of the offense can be duly established in evidence, When may an accused have witnesses conditionally
the determination of the liability of the accomplice or accessory examined in his behalf?
can proceed independently of that of the principal. (Vino v. When the accused has been held to answer
People, 178 SCRA 676) for an offense, he may, upon motion with notice to the
other parties, have witnesses conditionally examined
*A motion that does not contain a notice of hearing is but a mere in his behalf.
scrap of paper. It presents no question which merits the
attention and consideration of the court. It is not even a motion Q. What should the motion state?
for it does not comply with the rules and hence, the clerk has no
right to receive it. (Marcos v. Ruiz, 213 SCRA 177) ANS. The motion shall state the following:
a)name and residence of the witness;
*Contrary to petitioner’s submission, the absence of notice and b)the substance of his testimony; and
hearing does not divest the trial court of the authority to pass on c) that the witness is sick or infirm as to
the merits of the motion. The order of the court granting the afford reasonable ground for believing that
motion to dismiss despite notice of hearing or proof of service he will not be able to attend the trial, or
thereof is merely an irregularity in the proceedings. It cannot resides more than one hundred (100)
deprive the competent court of jurisdiction over the case. kilometers from the place of trial and has no
(Galvez v. CA, 56 SCAD 297) means to attend the same, or that other
similar circumstances exist that would make
Section 10.Law on speedy trial not a bar to provision on speedy him unavailable or prevent him from
trial in the Constitution. attending the trial. The motion shall be
supported by an affidavit of the accused and
No provision of law on speedy trial and no rule such other evidence as the court may
implementing the same shall be interpreted as a bar to any require.
charge of denial of the right to speedy trial guaranteed by *Accused may have his witness examined
section 14(2), Article III, of the 1987 Constitution. conditionally in his behalf before trial upon motion with
notice to all other parties.
Q. In what order does the trial shall proceed? *Motion must be supported by affidavit of the accused
and such other evidence as the court may acquire.
ANS. The trial shall proceed in the following order:
a) the prosecution shall present evidence to prove the Section 13. Examination of defense witness.
charge and, in the proper case, the civil liability. Q. How is examination of a defense witness
b) the accused may present evidence to prove his made?
defense and damages, if any, arising from the
issuance of a provisional remedy in the case. ANS. If the court is satisfied that the examination
c) The prosecution and the defense may, in that of a witness for the accused is necessary, an order
order, present rebuttal and sur-rebuttal evidence shall be made directing that the witness be examined
unless the court, in furtherance of justice, permits at a specific date, time and place and that a copy of
them to present additional evidence bearing upon the the order be served on the prosecutor at least three
main issue. (3) days before the scheduled examination. The
d) Upon admission of the evidence of the parties, the examination shall be taken before a judge, or, if not
case shall be deemed submitted for decision unless practicable, a member of the Bar in good standing so
the court directs them to argue orally or to submit designated by the judge in the order, or if the order be
written memoranda. made by a court of superior jurisdiction, before an
e) When the accused admits the act or omission inferior court to be designated therein. The
charged in the complaint or information but interposes examination shall proceed notwithstanding the
a lawful defense, the order of trial may be modified. absence of the prosecutor provided he was duly
notified of the hearing. A written record of the
*The strict observance of the rules depend upon the testimony shall be taken.
circumstances obtaining in each case at the discretion
of the trial judge. Thus, it is competent for him (judge) Q. When does the court may impose bail to
according to the nature of the case, to allow a party secure appearance of a material witness?
who has closed his case to introduce further evidence
in rebuttal. (US v. Valviar, 36 PHIL 804) ANS. When the court is satisfied, upon proof or
oath, that a material witness will not testify when
*Hence, the court may allow the prosecutor, even after required, it may, upon motion of either party, order the
he has rested his case or even after the defense has witness to post bail in such sum as may be deemed
moved for dismissal to present involuntary omitted proper.
evidence. the primary consideration is whether the
trial court still has jurisdiction over the case. (Vega v. Q. What is the effect of refusal to post bail?
Panis, 117 SCRA 269) ANS. Upon refusal to post bail, the court shall
commit him to prison until he complies or is legally
Section 12. Application for examination of witness for discharged after his testimony has been taken.
accused before trial.
Q. When is a witness for the prosecution conditionally Q. When is the discharge of an accused to be a state
examined? witness proper?
ANS. When it satisfactorily appears that a witness for the
prosecution is too sick or infirm to appear at the trial as directed ANS. When two or more accused are jointly charge with the
by the court, or has to leave the Philippines with no definite date commission of any offense, upon motion of the prosecution
of returning, he may forthwith be conditionally examined before before resting its case, the court may direct one or more of the
the court where the case is pending. Such examination, in the accused to be discharged with their consent so that they be
presence of the accused, or in his absence after reasonable witnesses for the state when, after requiring the prosecution to
notice to attend the examination has been served on him, shall present evidence and the sworn statement of each proposed
be conducted in the same manner as an examination at the trial. state witness at a hearing in support of the discharge, the court
Q. What is the effect or refusal of the accused to attend is satisfied that:
the examination? 1) there is absolute necessity for the testimony of
ANS. Failure or refusal of the accused to attend the the accused whose discharged is requested;
examination after notice shall be considered a waiver. This 2) there is no other direct evidence available for the
statement may be admitted in behalf of or against him. proper prosecution of the offense committed
*No hearing is required by the rules before conditional except the testimony of said accused;
examination of the witness may be allowed. The presence of the 3) the testimony of said accused cab be
accused is required in the examination itself, which presence substantially corroborated in its material points
may 4) said accused does not appear to be the most
be waived. It is enough that it shall satisfactorily appear that the guilty; and
witness for prosecution has to leave the Philippines with no 5) said accused has not been at anytime, convicted
definite date of returning thereto. Hence, said evidence was of any offense involving moral turpitude.
validly admitted.(Cinco v. Sandiganbayan G.R. No. 86037,
September 5, 1989) *Evidence adduced in support of the discharged shall
*There was no grave abuse of discretion by the judge in refusing automatically form part of the trial. If the court denies the motion
to allow the taking of oral deposition of the witnesses for the for discharge of the accused as a state witness, his sworn
defense since there was already more than sufficient evidence statement shall be inadmissible in evidence.
to establish the purpose of the deposition.
*Discovery procedure is directed to the sound discretion of the *When an offense is committed by more than one person, it id
court. (People v. Webb, 312 SCRA 573) the duty of the fiscal to include them in the complaint or
*Depositions may be taken at anytime after the deposition information.
taking, not only to the period of pre-trial or before it, there is no
prohibition against the taking of deposition of the pre-trial. The *There is nothing in the rule from which it can be inferred that
law authorizes the taking of deposition of witnesses before or before a person can be presented as a government witness that
after an appeal is taken from the judgment of the trial court. be first included as a co-accused in the information, for the
(Das Marinas Garments v. CA, 325 SCRA 622) fiscal is free to produce as a witness anyone whom he believes
*Deposition may even be taken during the process of execution can testify the truth of the crime charged; and the failure to
of a final and executory judgment. (East Asiatic v. CIR, 40 SCRA follow the requirements of the rule relative to the use of the
521) person, himself participis criminis,as a government witness does
not violate the due process clause of the constitution nor render
Q. When is trial of several accused may be had? his testimony ineffectual if otherwise competent and admissible.
ANS. When two or more accused are jointly charged with an (US v. Enriquez, 40 Phil 603)
offense, they shall be tried jointly unless the court, in its
discretion and upon motion of the prosecutor or any accused, Q. What is the effect of the discharge?
order separate trial for one or more accused.
ANS. Discharge of accused as an acquittal and bar to
*As a matter of law, the grant of separate when two or more further prosecution for the same offense.
defendants are jointly charged with an offense is discretionary. Except:
1) if the accused fails or refuses to testify against his
*The right of two or more accused in a criminal case to be tried co-accused with his sworn statement constituting the basis of
separately is essential and cannot be denied by the court the discharge;
according to section 33 of G.O. Order No. 56. (US v. Torres, 62 2) failure to testify refers exclusively to defendant’s will
Phil 942) or fault;
3) where an accused who turns state’s evidence on a
*In the interest of justice, a separate trial may be granted even promise of immunity but later retracts and fails to keep his part
after the prosecution has finished presenting its evidence in of the agreement , his confession of his participation in the
chief. (Joseph v. Maluz, 89 SCRA 324) commission of the crime is admissible as evidence against him.
*An amended information is not a new information but a

Q. What is a State witness? continuation of the previous one, so that a discharge under the
original information is just as binding upon the subsequent
ANS. State witness is one of two or more persons jointly amended information.
charged with the commission of any offense but who is
discharged with his consent as such, so that he may be a state Q. What is the effect when mistake is committed in
witness. charging the proper offense?
ANS. When it becomes manifest at anytime before ANS. After the prosecution has rested its case the accused,
judgment that a mistake has been committed in charging the has 5 days to file motion for leave of court to file demurrer to
proper offense and the accused cannot be convicted of the evidence.
offense charged pr any other offense necessarily included
therein, the accused shall not be discharged if there appears a Q. Is an order denying the motion to file demurrer to
good cause to detain him.. In such case the court shall commit evidence appealable?
the accused to answer for the proper offense and dismiss the
original case upon the filing of the proper information. ANS. No, because it is an interlocutory order not subject to
*The mistake referred to in this section refers to such mistake appeal.
whereby the defendant cannot be convicted of the offense
charged nor of any offense necessarily included therein. In such *The arrest rule allows the case in a criminal case to present
case a new information should be filed charging the accused evidence even after a motion to dismiss is filed provided the
with the proper offense without discharging him by keeping him demurrer was made with the express consent of the court. The
in custody or under bail. purpose of leave is to determine whether or not the defendant in
a criminal case has filed a demurrer merely to stall the
proceedings.
Q. When is appointment of acting prosecutor proper?
ANS. When a prosecutor, his assistant or deputy is *The rule on demurrer to evidence is inapplicable where the
disqualified to act due to any of the grounds stated in section 1 prosecution has not rested its case at the time the motion to
of Rule 137 or for any other reason, the judge or the prosecutor acquit was presented. (Codoy v. CA, 165 SCRA 152)
shall communicate with the Secretary of Justice in order that the
latter may appoint an acting prosecutor. *Judicial action on a motion to dismiss or demurrer to evidence
is left to the discretion of the court. Unless there is a grave
abuse of discretion thereof amounting to lack of jurisdiction, the
Q. When may the court exclude the public from the trial court’s denial of the motion to dismiss may not be disturbed.
courtroom? (Pp. v. Mercado, 159 SCRA 453)
ANS. The judge may motu proprio, exclude the public from *The Court’s denial of the motion to dismiss may only be
the courtroom if the evidence to be produced during the trial is reviewed in the ordinary courts of law by an appeal from the
offensive to the decency or public morals. He may also on judgment after trial and not by certiorari. (Cruz v. People, 144
motion of the accused, exclude the public from the trial except SCRA 677)
court personnel and the counsel for the parties.
*However, it was held that certiorari may be properly resorted to
*It lies with the court discretion whether to allow or not a where the factual findings complained of are not supported by
witness to testify who, notwithstanding the order excluding the evidence on record. (Congregation of the Religious v. CA, 291
witness from the courtroom remain there although the court SCRA 385)
believes that the testimony of said witness should have been
omitted.( Pp v. Sandal, 54 Phil 853) *With the grant by the RTC of the demurrer to evidence, the
same constituted a valid acquittal and any further prosecution
Q. When is consolidation of trials of related offenses of petitioners on the same charge would expose them to being
proper? put twice on jeopardy for the same offense. (Remedial Law
ANS. Charges for offenses founded on the same facts or Compendium by Regalado p.441)
forming part of a series of offenses of similar character may be
tried jointly at the discretion of the court.
Q. When is reopening of proceedings proper?
*The object of consolidation is to avoid multiplicity of suits, guard
against oppression or abuse, prevent delay, clear congested ANS. At any time before finality of the judgment of
dockets, and simplify the works of the trial court, save conviction, the judge may, motu proprio or upon motion, with
unnecessary cost and expenses. (Palanca v. Querubin, 30 hearing in either case, reopen the proceedings to avoid a
SCRA 732) miscarriage of justice. The proceedings shall be terminated
within thirty (30) days from the order granting it.
*Separate accusation charging a defendant with a disconnected
but joinable crimes may be tried together on condition that no
substantive rights of the defendant are necessarily affected.
(Ibid.) RULE 120
JUDGMENT
Q. What is the purpose of demurrer to evidence? Q. What is Judgment?
ANS. To avoid dilatory practice of some counsel of filing ANS. Judgment is the adjudication by the court that the
motions for dismissal as demurrer to evidence of the accused is guilty or not guilty of the offense charged and the
prosecution and after denial thereof, the defense is still allowed imposition on him of the proper penalty and civil liability, if any. It
to present evidence. must be written in the official language, personally and directly
prepared by the judge and signed by him and shall contain
Q. When to file demurrer to evidence? clearly and distinctly a statement of the facts and the law upon
which it is based.
*Pronouncements or remarks objected to are relevant to the before trial, the court may convict him of as many offenses as
issues in the case in which the court is called upon to recite. If are charged and proved, and impose on him the penalty for
irrelevant or impertinent, they should be stricken or expunged each offense, setting out separately the findings of fact and law
from the records like any other extraneous matters. (Pp. v. in each offense.
Meneses, 74 Phil 119) *Although an information charges more than one offense
*It is not necessary that the judge who tried the case be the one contrary to section 13, Rule 110, the defendants having
to decide the case, it is sufficient that he is apprised of the interposed no objection thereto, they were properly tried and
evidence already presented by a reading of the transcript of the maybe convicted of several and separate trials if found guilty.
testimony already introduced in the same manner as the (Pp. v. Umali, 96 Phil 185; Pp. v. Errojo, 229 SCRA 405)
appellate court review evidence on appeal. *But where the accused was charged of only one rape, he
cannot be convicted more than one rape even if evidence shows
Q. What are the contents of judgment? other rapes. (Pp. v. Ramos, 245 SCRA 405)
ANS. If the judgment is of conviction, it shall state the
following: Q. What is the propriety in case of variance between
1) the legal qualification of the offense constituted allegation and proof?
by the acts committed by the accused and the ANS. When there is variance between the offense charged
aggravating or mitigating circumstances which in the complaint or information and that proved, and the offense
attended its commission; as charged is included in or necessarily includes the offense
2) the participation of the accused in the offense, proved, the accused shall be convicted of the offense proved
whether as principal, accomplice or accessory which is included in the offense charged, or of the offense
3) the penalty imposed upon accused charged which is included in the offense proved.
4) the civil liability or damages caused by his
wrongful act or omission to be recovered from the Section 5. When an offense includes or is included in another.
accused by the offended party, if there is any, An offense charged necessarily includes the offense
unless the enforcement of the civil liability by a proved when some of the essential elements or ingredients of
separate civil action has been reserved or the former, as alleged in the complaint or information, constitute
waived. the latter. And an offense charged is necessarily included in the
In case the judgment is o acquittal, it shall state offense proved, when the essential ingredients of the former
whether the evidence of the prosecution absolutely constitute or form part of those constituting the latter.
failed to prove the guilt beyond reasonable doubt *An accused cannot be convicted of an offense not charged nor
*In either case, the judgment shall determine if the act or included in the information. It matters not how conclusive and
omission from which the civil liability might arise did not exist. convincing the evidence of guilt may be, an accused cannot be
convicted of any offense unless cannot charge in the complaint
*Reasons for the requirement: or information on which he is tried or necessarily included
1) to inform the parties of the reasons for the decision therein. (Pp v. Ortega, 85 SCAD 1)
so that if any of them appeals, he can point out to the *An accused can be convicted of an offense only when it is both
appellate court the findings of facts or the rulings on charged and proved. If it is not charged although proved, or if it
the point of law on which he disagrees; is not proved although charged, accused cannot be convicted
2) to serve as an assurance to the parties that in thereof. In other words, the variance between allegation and
reaching the judgment, the judge did so thru the proof cannot justify conviction for either the offense charged or
process of reasoning; the offense proved unless either is included in the other.
3) serve as a safeguard against the impetuosity of the (Esguerra v. Pp, 108 Phil 1078)
judge, preventing him from deciding by ipse dixit. (Pp *Minor variance between the information and that established by
v. Buggarin, 83 SCAD 330) evidence will not in any manner alter the nature of the offense.
*For failure of the decision to express the facts of the (Pp. v. Bunsol, 63 SCRA 248)
case, the case is remanded to the trial court. (Pp v.
Dayot, 187 SCRA 637)
*Sentences in criminal cases should not be in the Q. How is promulgation of judgment made?
alternative. There is nothing in the law which permits ANS. The judgment if promulgated reading it in the
the courts to impose sentences in the alternative. presence of the accused and any judge of the court in which it
(Chong v. Tinig, 23 Phil 120) was rendered. However, if the conviction is for alight offense, the
*Acquittal in criminal cases does not bar continuation judgment may be pronounced in the presence of his counsel of
of the civil case connected therewith where; representative. When the judge is absent or outside the
1. acquittal is based on reasonable doubt; province or city, the clerk of court may promulgate the judgment.
2. decision entails a declaration that the If the accused is confined or detained in another
liability of the accused is not criminal but province or city, the judgment may be promulgated by the
only civil; executive judge of the RTC having jurisdiction over the place of
3. civil liability is not derived or based from confinement or detention upon request of the court which
the criminal act of which the accused is rendered the judgment. The court promulgating the judgment
acquitted. (Sadio v. Hon. Judge of RTC shall have authority to accept the notice of appeal and to
Antique, 201 SCRA 744) approve the bail bond pending appeal; provide, that if the
decision of the trial court convicting the accused changed the
Q. What is the effect of failure to object to two or more nature of the offense from nonbailable to bailable, the
offenses charged in a single complaint? application for bail can only be filed and resolved by the
ANS. When two or more offenses are charged in a single appellate court.
complaint or information but the accused fails to object to it
Q. What is the propriety of the accused failure to appear 2. if convicted of an offense punishable by death or life
at a scheduled date of promulgation? imprisonment.
ANS. In case the accused fails to appear at the scheduled *Probation
date of promulgation of judgment despite notice, the It is a disposition under which a defendant after
promulgation shall be made by recording the judgment in the conviction and sentence is release subject to conditions
criminal docket and serving him a copy thereof at his last known imposed by the court and to the supervision of the probation
address or thru his counsel. office.
If the judgment is for conviction and the failure of the
accused to appear was without justifiable cause, he shall lose *Application for probation must be made within the period for
the remedies available in these Rules against the judgment and perfecting an appeal.
the court shall order his arrest. Within fifteen (15) days from
promulgation of judgment, however, the accused may surrender *Effectivity of probation order
and file a motion and file a motion for leave of court to avail of Upon issuance, at which time, the court shall inform
these remedies. He shall state the reasons for his absence at the offender of the consequences thereof and explain that upon
the scheduled promulgation and if he proves that his absence his failure to comply with any of the conditions prescribed in the
was for a justifiable cause, he shall be allowed to avail of said said order or his commission of another offense, he shall serve
remedies within fifteen (15) days from notice. the penalty imposed for the offense under which he was placed
*Judgment does not become effective until it is promulgated and on probation.
must be promulgated in its entirety. Merely reading the
dispositive portion of the decision to the accused is not *Effect on civil liability
sufficient. (Dizon v. Lopez, 278 SCRA 483) Probation only affects the criminal aspect of the case,
*Absence of the defendant’s counsel during the reading of the it does not follow that the civil liability of the offender is
judgment does not affect the validity of the promulgation. It is extinguished.
valid if the decision is read in the presence of the presiding *Parole refers to the conditional release of an offender from a
judge and the defendant or the latter’s attorney if the conviction penal or conditional institution after he has served the minimum
is for light offense. period of his prison sentence under the continued custody of the
*Where the judgment is for conviction and the accused failed to state and under conditions that his reincarceration if he violated
appear at the promulgation of judgment without justifiable cause a condition of his release.
despite due notice, his bondsman or counsel may be deemed to
have waived his right to appeal. (Pp. v. Acot, 232 SCRA 406) *Factors for consideration in executive clemency:
1) age of the petitioner;
Q. When is modification of judgment proper? 2) gravity of the offense;
ANS. A judgment of conviction may, upon motion of the 3) manner in which it is committed;
accused, be modified or set aside before it becomes final or 4) institutional behavior or conduct of the
before appeal is perfected. Except where the death penalty is accused;
imposed, a judgment becomes final after the lapse of the period, 5) previous criminal record if any
a judgment becomes final after the lapse of the period for
perfecting an appeal, or when the sentence has been partially or *Factors to consider in granting parole:
totally satisfied or serve, or when the accused has waived in 1) old age, provided the prisoner is not yet 60 years
writing his right to appeal, or has applied for probation. old at the time of the commission of the offense;
*Upon motion of the accused, a judgment of conviction may be 2) physical disability;
modified or set aside by the court before it has become final or 3) serious illness duly certified by a government
before an appeal has been perfected. physician;
*The prosecutor cannot ask for the modification or setting aside 4) similar circumstances which show that continued
of a judgment of conviction because the rules clearly provide imprisonment will be inhuman or will pose grave
that a judgment of conviction may be modified or set aside by danger to the life of the prisoner;
the court rendering upon motion of the accused. 5) evidence that the subject will be legitimately
employed at release;
Section 8. Entry of Judgment 6) a showing that the subject has a place where he
After a judgment has become final, it shall be entered can established residence;
in accordance with Rule 36. 7) availability of after-care service of a prisoner who is
old, seriously ill or suffering from physical disability.
Section 9. Existing provisions governing suspension of
sentence, probation and parole not affected by this Rule.
Nothing in this Rule shall affect any existing provisions
in the laws governing suspension of sentence, probation or RULE 121
parole.
*Youthful offender NEW TRIAL OR RECONSIDERATION
A child, minor or youth, including one who is emancipated in
accordance with law, who is emancipated in accordance with
law, who is over nine years but under eighteen years of age at Q. What is new trial?
the time of the commission of the offense.
*Instances when suspension of sentence shall not apply to ANS. It is the rehearing of a case already decided but
youthful offender: before the judgment of conviction therein rendered has become
1. has previously enjoyed suspension of sentence final, whereby errors of law or irregularities are expunged from
the record, or new evidence is introduced, or both steps are
take.
the witness or witnesses who are shown to have made

Q. What is its purpose? contradictory statements as to the material facts as to which
ANS. It is describe as a new invention to temper the severity circumstances, the court may be led to different conclusions so
of a judgment or prevent the failure of justice. (Jose v. CA 70 that a new trial or reversal of the judgment may be called for.
SCRA 257) (Tan Ang Bun v. CA, 182 SCRA 238)
*Cases when the trial court lose jurisdiction over its sentence Q. What are the grounds for reconsideration?
even before the lapse of 15 days:
1. When the defendant voluntarily submits to the ANS. The grounds for reconsideration are the following:
execution of the sentence. 1) errors of law;
2. When the defendant perfects his appeal. The 2) errors of fact in the judgment, which require no
moment the appeal is perfected the court a quo loses further proceedings.
jurisdiction over it, except for the purpose of correcting clerical
errors. Q. What are the requisites for new trial or
reconsideration?
*Errors of law do not invalidate or affect the whole proceeding
prior to the judgment but only the judgment itself. To correct ANS. The requisites for new trial are the following:
such errors,no new trial is required but only a reconsideration of 1) it shall be in writing;
the original and rendition of a new judgment, without necessity 2) filed with the court;
of newt trial.(Pp v. Enriquez, 90 Phil 423) 3) state the grounds on which it is based;
4) if the ground for new trial is based on a newly
*Where an appeal was dismissed for failure to file a brief on discovered evidence, it must be supported by the
time, and the order of the dismissal has already become final, affidavits of the witness by whom such evidence is
the lost appeal cannot be retrieved by filing a motion for new expected to be given, or duly authenticated copes of
trial. (Navarro v. CA, 234 SCRA 639) documents which it is proposed to introduce in
evidence.
Q. What are the grounds for new trial? 5)notice of the motion for new trial or reconsideration
ANS. The following are the grounds for new trial: shall be given to the fiscal.
1) that errors of law or irregularities prejudicial to the *The general rule is that the motion must be accompanied by a
substantial rights of the accused have been notice of hearing otherwise, it shall be considered merely scrap
committed during the trial; of paper. (Basco v. CA, G.R. No. 125290, August 9, 2000)
2) that a new or material evidence has been
discovered which the accused could not with Section 5. Hearing on motion
reasonable diligence has discovered and Where a motion for new trial calls for the decision of
produced at the trial and which if introduced and any question of fact the court may hear evidence of such motion
admitted would probably change the judgment. by affidavits or otherwise.
*Mistakes or errors of the counsel in the conduct of his case are
not grounds for new trial. This rule is the same whether the Q. What are the effects of granting a new trial or
mistakes are the result of his ignorance, inexperience or reconsideration?
incompetence. These are insufficient as ground for motion for ANS.
new trial. (Abrajano v. CA, GR No. 12098,Oct. 8,2000) 1. when a new trial is granted on the ground of
*But a new trial may be granted where the incompetence is so errors of law or irregularities committed during
great that the defendant is prejudiced and prevented from fairly the trial, all proceedings and evidence not
presenting his evidence and where the error of the counsel is so affected by the commission of such errors and
serious. (Pp v. Cabodoc, 263 SCRA 187) irregularities shall stand, but those affected
*Where the counsel for the accused is not a lawyer, the thereby shall be set aside and taken anew. The
accused is entitled to any trial. This is all because an accused is court may , in the interest of justice, allow the
entitled to be represented by a lawyer or a member of the bar in introduction of additional evidence.
a criminal case. (Delgado v. CA, 145 SCRA 357) 2. when a new trial is granted on the ground of
*However, where the defense counsel turned out later to be a newly discovered evidence, the evidence already
non-lawyer, but it is observed that he was chosen by the taken shall stand, and the newly discovered and
accused themselves there’s no violation of the right to counsel such other evidence as the court may, in the
as ground for a new trial. (Pp. v. Elesterio, 173 SCRA 243) interest of justice, allow to be introduced, shall be
*A motion for new trial on the ground of newly discovered taken and considered together with the evidence
evidence will be denied unless the application discloses that already in the record.
said evidence could not have been discovered by reasonable 3. in all cases, when the court grants new trial or
diligence before trial. (US. v. De Leon 1Phil 188) reconsideration, the original judgment shall be
set aside and a new judgment rendered
*New trials based on the recantation of the witnesses are accordingly.
generally refused. (Pp. v. Petilla, 170 SCRA 522)
*Yet when set aside from the testimonies of retracting

testimonies of the retracting witnesses, there is no evidence to
support the judgment of conviction, a new trial may be granted.
(Pp. v. Lao wan Sing, 46 SCRA 298) or when there is no RULE 122
evidence sustained in the judgment other than the testimony of APPEAL
offense for which the penalty of death, reclusion

Q. What is appeal? perpetua, or life imprisonment is imposed, shall
be by filing a notice of appeal in accordance with
ANS. Appeal is a proceeding for review by which the whole paragraph (a) of this section.
case is transferred to the higher court for a final determination. d) No notice of appeal is necessary in cases where
the death penalty is imposed by the RTC. The
Q. Who may appeal? same shall be automatically reviewed by the SC
as provided in Section 10 of this Rule.
ANS. Any party may appeal from a judgment or final order, e) Except as provided in the last paragraph of
unless the accuse will be placed in double jeopardy. section 13, Rule 124, all other appeals to the SC
*Appeal is not an inherent right of convicted person. The right of shall be by petition for review on certiorari under
appeal is and always has been s Rule 45.
statutory.
Q. How is service of notice of appeal made?
*Ordinary appeal is a matter of right if allowed by law, and is ANS. If personal service of the copy of the notice of appeal
compellable by mandamus. can not be made upon the adverse party or his counsel, service
may be done by registered mail or by substituted service
Q. What is the effect of an appeal? pursuant to sections 7 and 8 of Rule 13.
ANS. An appeal in a criminal case opens the whole case for Q. May the right to a notice of an appeal be waived?
review and this includes the review of the penalty, indemnity,
and the damages involved. Consequently, on appeal, the ANS. The appellee may waive his right to a notice that an
appellate court may increase the penalty, indemnity, or the appeal has been taken. The appellate court may, in its
damages awarded by the trial court, although the offended party discretion, entertain an appeal notwithstanding failure to give
had not appealed from said award, and the party who sought a such notice if the interests of justice so require.
review of the decision was the accused.
*A notice of appeal in a criminal case sent by registered mail
Section 2. Where to appeal. and addressed to the court having cognizance of the case and
The appeal may be taken as follows: deposited during office hours in the post office box of said court
(a) to the Regional Trial Court, in cases decided by is equivalent to filing it with the clerk thereof and constitutes a
the Metropolitan Trial Court, in cases decided by compliance with the rules. (Yangco v. Ocampo, G.R.No. 37171)
the Metropolitan Trial court, Municipal Trial Court
in Cities, Municipal Trial Court, or Municipal *Verbal notice of appeal, together with filing of the bond
Circuit Trial Court; constitutes substantial compliance with the rules. (Pp. v. Patilan,
(b) to the Court of Appeals or to the Supreme Court 197 SCRA 354)
in the proper cases provided by law, in cases
decided by the Regional Trial Court; and Q. When is appeal may be taken?
(c) to the Supreme Court, in cases decided by the
Court of Appeals. ANS. An appeal must be taken within fifteen days from
promulgation of the judgment or from notice of the final order
*The Supreme Court shall have exclusive jurisdiction to reveal appealed from. This period for perfecting an appeal shall be
or revise, reverse, modify or affirm on appeal, as the law or the suspended from the time a motion or new trial or
rules of court may provide, final judgments and decrees of reconsideration is files until notice of the order overruling the
inferior courts as herein provided in all criminal cases. (Sec. 17, order has been served upon the counsel at which time the
R.A. 296) balance of the period begins to run.
*An automatic review of the death penalty was deemed to *Period to appeal is mandatory. The clear terms of this section
include an appeal of the lesser serious cases. (Pp. v. leaves no room for doubt that the appeal should be effected
Panganiban, 125 SCRA 565) within fifteen days from promulgation of the judgment. (Pp v.
Tamahl, 55 SCRA 57)
Section 3. How appeal is taken.
a) The appeal to the RTC, or to the CA in cases Section 7. Transcribing and filing notes of stenographic reporter
decided by the RTC in the exercise of its original upon appeal
jurisdiction, shall be taken by filing a notice of When notice of appeal is filed by the accused, the trial
appeal with the court which rendered the court shall direct the stenographer to transcribe his notes of the
judgment of final order appealed from and by proceedings. When filed by the people of the Philippines, the
serving a copy thereof upon the adverse party. trial court shall direct the stenographic reporter to transcribe
b) The appeal to the CA in cases decided by the such portion of his notes of the proceedings as the court, upon
RTC in the exercise of its appellate jurisdiction motion, shall specify in writing. The stenographic reporter shall
shall be by petition for review under Rule 42. certify to the correctness of the notes and transcript thereof,
c) The appeal to the SC in cases where the penalty which shall consist of the original and four copies with the clerk
imposed by the RTC is reclusion perpetua or life without necessary delay.
imprisonment, or where a lesser penalty is If death penalty is imposed, the stenographic reporter
imposed but for offenses committed on the same shall, within thirty days from the promulgation of the sentence,
occasion or which arose out of the same file with the clerk the original and four copies of the duly certified
occurrence that gave rise to the more serious transcript of his notes of the proceedings. No extension of time
for filing of said transcript of stenographic notes shall be granted

except by the Supreme Court and only upon justifiable grounds. *If the records have been forwarded to the appellate court, only
the latter may act on the motion for withdrawal of appeal.
Section 8. Transmission of papers to appellate court upon (Ramos v. Gonong, 72 SCRA 559)
appeal *Where death penalty is imposed, the review shall proceed
Within five days from the filing of the notice of appeal, notwithstanding withdrawal of the appeal as the review is
the clerk of court with whom the notice of appeal was filed must automatic and the Court can do without the benefit of briefs or
transmit to the clerk of court of the appellate court the complete arguments filed by the appellant. (Pp v Galward, 267 SCRA
record of the case, together with said notice. The original and 798)
three copies of the transcript of stenographic notes, together
with the records shall also be transmitted to the clerk of Q. What are the duties of the clerk of the trial court to the
appellate court without undue delay. The other copy of the appellant who is confined in prison upon presentation of notice
transcript shall remain in the lower court. of appeal?
Section 9. Appeal to the Regional Trial Court ANS. The following are the clerk’s duties in case the
a) Within five days from perfection of the appeal, the appellant is confined to prison:
clerk of court shall transmit the original record to 1) he shall ascertain from the appellant, whether he
the appropriate RTC. desires the CA or the SC to appoint an attorney
b) Upon receipt of the complete record of the case, to defend him de oficio;
transcript and exhibits, the clerk of court of the 2) he shall transmit the records, upon a form to be
RTC shall notify the parties of such fact. prepared by the clerk of the appellate court a
c) Within fifteen days from receipt of such notice, certificate of compliance of his duty of the
the parties may submit memoranda or briefs or response of the appellant to his inquiry.
may be required by the RTC to do so. After the
submission or upon expiration of the period to
file the same, the RTC shall decide the case on
the basis of the entire records and of such RULE 123
memoranda or briefs as may have been filed. PROCEDURE IN THE MUNICIPAL TRIAL COURT
Section 10. Transmission of records in case of death penalty Q. What is the procedure to be observed in the MTC and
In all cases where the death penalty is imposed by the MCTC?
trial court, the records shall be forwarded to the Supreme Court
for automatic review and judgment within five days after the ANS. The procedure to be observed in the MTC, Municipal
fifteenth day following the promulgation of the judgment or trial courts and MCTC, shall be the same as in the RTC, except
notice of denial of a motion for new trial or reconsideration. The where a particular provision applies only to either of said courts
transcript shall also be forwarded within ten days after the filling and in criminal cases governed by the Revised Rules on
thereof by the stenographic reporter. Summary Procedure.
Q. What is the effect of appeal by several accused?
ANS. The effect of appeal by several accused are as
follows: RULE 124
1) an appeal taken by one or more several accused PROCEDURE IN THE COURT OF APPEALS
shall not affect those who did not appeal except
insofar as the judgment of the appellate court is
favorable and applicable to the latter; Section 1. Title of the case
2) the appeal of the offended party from the civil In all criminal cases, appealed to the Court of Appeals,
aspect shall not affect the criminal aspect of the the party appealing the case shall be called the “appellant” and
judgment or order appealed from; the adverse party, the “appellee”, but the title of the case remain
3) upon perfection of the appeal, the execution of as
the final judgment or final order appealed from it was in the court of origin.
shall be stayed as to the appealing party.
*Even if the accused escaped or jumped bail, the Court held, Section 2. Appointment of counsel de oficio for the accused
disquisition in this case is applicable and favorable to him.
Hence, he is affected by, and shall benefit from the acquittal the *Requisites before the accused can be given a counsel de oficio
Court handed down in such appeal. (Pp v. Hernandez, 186 on appeal:
SCRA 830) 1) that he is confined in prison;
2) without counsel de parte on appeal;
Q. When may the appellant withdraw his appeal? 3) he must signed the notice of appeal himself.
ANS. The appellant may withdraw his appeal before the Except:
record has been forwarded by the clerk of court to the appellate An accused appellant not confined to prison can have
court as provided by section 8, in which case the judgment shall a counsel de oficio if requested by him in the appellate court
become final. within ten days from receipt of the notice to file brief and the
*Where the only reason for the withdrawal of the appeal is right thereto is established by affidavit.
poverty, the court shall assign a counsel de oficio, for despite
such withdrawal, the duty to protect the rights of the accused Q. What is brief?
subsists. (Pp v. Rio, 201 SCRA 702)
ANS. Brief literally means a short or condensed statement. country, he has deemed to have abandoned his appeal and the
Its purpose is represent to the court in concise form the points judgment of the court below becomes final.
and questions in controversy and by fair arguments the facts
and law of the case, to assist the court in arriving at a just and Section 9. Prompt disposition of appeals
proper conclusion. Appeals of the accused who are under detention shall
be given precedence in their precedence over other appeals.
The CA shall hear and decide the appeal at the earliest
Q. When should it be filed? practicable time with due regard to the rights of the parties. The
accused need not be present in the court during the hearing of
ANS. Within thirty days from receipt by the appellant of his the appeal.
counsel the notice from the clerk of court of the CA that the *If the CA chooses not to hear the case, the justices composing
evidence oral and documentary, is already attached to the the division may just deliberate on the case, evaluate the
records, the appellant shall file seven copies of his brief with the recorded evidence on hand and then decide on it.
clerk which shall be accompanied by proof of service of two
copies thereof upon the appellant. Q. When may judgment be reversed or modified by the
CA?
Section 4. When brief for the appellee to be filed; reply brief for
the appellant ANS. If after examination of the record and of the evidence
Within thirty days from receipt of the brief of the adduced by the parties, the CA is of the opinion that error was
appellant, the appellee shall file seven copies of the brief of the committed which injuriously affected the substantial rights of the
appellee with the clerk of court which shall be accompanied by appellant the CA may reverse or modify the judgment.
proof of service of two copies thereof upon the appellant. *Where the trial court has overlooked important evidence, it is
the duty of the appellate court to revise the findings of facts
*The amendment is to avoid the time consuming filing of a made by the court below and to render judgment accordingly.
motion by the appellant to file brief by providing for a Rule which *Trial court’s findings on the credibility of the witnesses shall not
automatically allows the filing by the appellant of a Reply Brief. be disturbed on appeal unless substantial facts which might
affect the results of the case have been overlooked.
Section 5. Extension of time for filing brief
Extension for the filing of briefs will not be allowed Section 11. Scope of judgment
except for good and sufficient cause and only if the motion for The CA may reverse, affirm or modify the judgment
extension is filed before the expiration of the time sought to be and increase or reduce the penalty imposed by the trial court,
extended. remand the case to the RTC for new trial or retrial or dismiss the
case.
Section 6. Forms of brief
Briefs shall either be printed, encoded or type written Q. What are the powers of the CA?
in double space on legal size good quality unglazed paper,
330mm. in length by 216 mm. in width. ANS. Aside from the powers mentioned, the Rules
empowers the CA to:
Q. What are the contents of briefs? 1) to try cases and conduct hearings;
ANS. The briefs in criminal cases shall have the same 2) receive evidence
contents as provided in sections 13 and 14 of Rule 44. A 3) perform any and all the acts necessary to resolve
certified true copy of the decision or final order appealed from factual issues raised in the cases:
shall be appended to the brief of the appellant. a. falling under its original jurisdiction
b. involving claims for damages arising
*Unlike in the procedure in civil cases, it is not essential for the from provisional remedies
accused to make assignment of errors in his brief, as on c. wherein new trial is granted on the
appeal, the whole record of the case is submitted to and ground of newly discovered evidence.
reviewed by the appellate court. Q. What constitutes quorum in the CA?
*Issues which were never raised in the proceedings before the ANS. Three justices of the CA shall constitute quorum for
trial court cannot be considered and passed on upon appeal. the sessions of a division. The unanimous vote of the three
justices of a division shall be necessary for the pronouncement
Q. When may the CA dismiss the appeal? of a judgment or final resolution which shall be reached in
consultation before the writing of the opinion by a member of the
ANS. The CA may upon motion of the appellee or motu division.
proprio, and with notice to the appellant in either case, dismiss *If the CA imposes a penalty of reclusion perpetua or higher, it
the appeal if the appellant fails to file his brief within the time shall render judgment imposing the penalty of reclusion
prescribed by this Rule, except if the appellant is represented by perpetua or higher as than circumstances warrant but shall
a counsel de oficio. refrain from entering judgment and instead certify the case and
The CA may also, upon motion of the appellee or elevate the entire records to the Supreme Court.
motu proprio, dismiss the appeal if the appellant escapes from
prison or confinement, jumps bail or flees to a foreign country Q. When may motion for new trial be filed?
during the pendency of the appeal.
ANS. At anytime after the appeal from the lower court has
*If the convict escapes from prison or confinement or refuses to been perfected and before the judgment of the CA convicting
surrender to the authorities, jumps bail or flees to a foreign the accused becomes final, the latter may move for a new trial
on the ground of newly discovered evidence material to his

defense.
Q. State the procedure if the Supreme Court en banc
is equally divided.
Section 15. Where new trial conducted
When a new trial is granted, the CA may conduct the
hearing and receive evidence as provided in section 12 of this
ANS. When the court en banc is equally divided in opinion
Rule or refer the trial to the court of origin.
or the necessary majority cannot be had, the case
shall be reheard, and if in rehearing no decision is
Section 16. Reconsideration
reached, the judgment of conviction of the lower
When is a motion for reconsideration may be filed?
court shall be reversed and the accused acquitted.
It shall be filed within fifteen days from notice of the
(Sec. 3).
decision or final order of the CA, with copies thereof served
upon the adverse party, setting forth the grounds in support
thereof. No party shall be allowed a second motion for
reconsideration of a judgment or final order.
*A case may reach the Supreme Court in the following manner:
*A rehearing is not a matter of right, but a privilege to be granted 1) automatic review;
or not, according to the discretion of the court. 2) ordinary appeal;
3) petition for review on certiorari
*New questions cannot be raised for the first time on a motion *Direct appeal to the Supreme Court on question of law in
for rehearing, especially when they are inconsistent with criminal cases in which the penalty imposed is not death or life
positions taken on the original hearing, or waived on the original imprisonment-precludes a review of facts.
submission of the case.
*Appeals to the Supreme Court is not a matter of right but a
*The mittimus shall be stayed during the pendency of the motion matter of sound judicial discretion. The prescribe mode is by
for rehearing or reconsideration. certiorari. The findings of fact of the appellate court are
What is the term “mittimus”? conclusive on the Supreme Court.
It is a process issued by the court after conviction to Section 2. Review of the decision of the Court of Appeals
carry out the final judgment, such as commanding a prison The procedure for the review by the Supreme Court of
warden to hold the accused in accordance with the terms of the decisions of criminal cases rendered by the CA shall be the
judgment. same as in civil cases.
Section 17. Judgment transmitted and filed in trial court *Exceptions to the rule that findings of facts by the CA is
When an entry of judgment of the CA is issued, a conclusive upon the Supreme Court:
certified true copy of the judgment shall be attached to the 1) when the conclusion is finding grounded entirely on
original record which shall be remanded to the clerk of the court speculation, surmises or conjectures;
from which the appeal was taken. 2) when the inference made is manifestly absurd,
mistaken or impossible;
 The judgment of the appellate court is promulgated by
3) when there is grave abuse of discretion in the
serving a copy of the decision to the parties. The
appreciation of facts;
certified true copy of the decision is transmitted to the
4) when the judgment is premised on a
clerk of court not for the promulgation of the reading
misapprehension of facts;
thereof but the execution of the judgment. (Landicho v
5) when the findings of facts are conflicting;
Tan, 87 Phil 601)
6) when the CA in making the findings went beyond
the issues of the case and the same is contrary to the
Section 18. Application of certain rules in civil procedure
admissions of both the appellant and the appellee;
The provisions of Rules 42, 44 to 46 and 48 to 56
7) when certain material facts and circumstances have
relating to procedure in the CA and in the Supreme Court in
been overlooked which if taken into account would alter the
original and appealed cases insofar as they are applicable and
result as it would give rise to a reasonable doubt to acquit the
not inconsistent with the provisions of this Rule.
accused.
*Rule 47(Annulment of Judgments of final judgment and
Q. What is meant by question of law?
resolutions) does not apply to criminal cases. The appropriate
remedy for lack of jurisdiction or extrinsic fraud is certiorari(Rule
ANS. It means the doubt or difference arises as to what the
65) or habeas corpus(Rule 102).
law is on a certain state of facts. It must not involve an
examination of the probative value of the evidence presented by
the litigants or any of them.
RULE 125
PROCEDURE IN THE SUPREME COURT
Q. What is meant by question of fact?
Q. What procedure shall be followed in appealed ANS. It means the doubt of difference arises as to the truth
cases before the Supreme Court? or falsehood of alleged facts.
Section 3. Decision if opinion is equally divided

ANS. The procedure is the CA shall be followed unless When the Supreme Court en banc is equally divided in
otherwise provided by the Constitution or law. (Sec. opinion or the necessary majority cannot be had on whether to
1). acquit the appellant, the case shall be again deliberated upon
and if no decision is reached after re-deliberation, the judgment was committed if the place of commission of the crime
of conviction of the lower court shall be reversed and the is known, or any court within the judicial region where
accused acquitted. the warrant shall be enforced.
*According to the Constitution, only the Supreme Court en banc
may modify or reverse a doctrine or principle of law or ruling laid *However, if the criminal action has already been filed, the
down by the court in a decision rendered en banc or in division. application shall only be made in the court where the criminal
case is pending.*An application for search warrant may be filed
with another court only under extreme and compelling
circumstances that the applicant must prove to satisfaction of
RULE 126 the court which may or may not give due course to the
SEARCH AND SEIZURE application depending on the justification offered for not filing the
same in the court with primary jurisdiction.
Q. What is search warrant? *In one case, the search warrant was quashed because the
ANS. It is an order in writing issued in the name of the applicant has been guilty of forum shopping. (Washington
Philippines, signed by a judge and directed to a peace officer, Distillers v CA 260 SCRA 821)
commanding him to search for personal property described
therein and bring it before the court. Section 3. Personal property to be seized
A search warrant may be issued for the search and
*Elements of search warrant: seizure of personal property:
1) it is an order in writing; 1) subject of the offense;
2) signed by the judge in the name of the People of 2) stolen or embezzled and other proceeds, or fruits of
the Philippines the offense;
3) commanding a peace officer to search personal 3) used or intended to be used as the means of
property committing an offense.
4) bring the property before the court.
Section 4. Requisites for the issuance of search warrant
*Search warrants are in the nature of criminal process and may
be invoked only in the furtherance of public prosecutions. *Requisites for the issuance of a valid search warrant:
Search warrants have no relation to civil process or trials and 1) probable cause;
are not available to individuals in the course of civil proceedings 2) which must be determined personally by the judge
nor for the maintenance of any mere private right. himself after oath and affirmation and not by the
applicant or any other person;
*The term search as applied to search and seizure is an 3) the judge must before issuing the warrant,
examination of a man’s house or other buildings or premises or personally examine in the form of searching questions
of his person with a view to the discovery of contraband, illicit or and answer, in writing and under oath the complaint
stolen property or some evidence of guilt to be used in the and any witness he may produce, on facts personally
prosecution of criminal action for some offense with which he is known to them;
charged. 4) the probable cause must be in connection with one
specific offense;
*A seizure is the physical taking of a thing into custody. 5) the warrant issued must particularly describe the
What is a general warrant? place to be searched and the things to be seized;
It is a process which authorizes the search and 6) sworn together with the affidavits submitted by the
seizure of things, in a general manner, without specifying or witnesses must be attached to the records.
describing them with particularity, the equipments, records,
publications, documents, instruments and other evidence in *Probable cause – facts and circumstances which would lead a
connection with the violation of the offense. reasonable, discreet and prudent man to believe that the
property subject of an offense are in the place sought to be
Q. What are the test to determine particularity? searched.
ANS. The test to determine particularity are the following:
1) when the description therein as specific as the *The requirement of probable cause does not extend to
circumstances will ordinarily allow; deportation proceedings.
2) when the descriptions express a conclusion of
fact not of law, which the warrant officer may be Section 5.Examination of complainant; record
guided in making the search and seizure; The judge must, before issuing the search warrant,
3) when the things described are limited to those personally examine in the form of questions and answers, in
which bear direct relation to the offense for which writing and under oath, the complainant and the witnesses he
the warrant is being issued. may produce on facts personally known to them and attach to
the record their sworn statements, together with affidavits
submitted.
Section 2. Court where application for search warrant shall be
filed Section 6. Issuance and form of search warrant
A search warrant shall be filed with the following: If the judge is satisfied of the existence of facts upon
a) any court within whose jurisdiction a crime was which the application is based or that there is a probable cause
committed; to believe that they exist, he shall issue the warrant which must
b) for compelling reasons stated in the application, be substantially in the form prescribed by these Rules.
any court within the judicial region where the crime
*The test of sufficiency of a deposition or affidavit to warrant Section 12. Delivery of property and inventory thereof to court;
issuance of search warrant is whether it has been drawn in a return and proceedings thereon
manner that perjury could be charged thereon and the affiant be a) the officer must forthwith deliver the property
held liable for damage cause. seized to the judge who issued the warrant,
together with a true inventory thereof duly verified
Section 7. Right to break out door or window to effect search under oath;
When may the officer break door or window to effect search b) ten days after the issuance of the search warrant,
warrant? the issuing judge shall ascertain if the return has
The officer if refused admittance, to the place of been made, and if none, shall summon the
directed search after giving notice of his purpose and authority, person to whom the warrant was issued and
may break open any outer or inner door or window of a house or require him to explain why no return was made. If
any part of the house or anything therein to execute the warrant the return was made, the judge shall ascertain
or liberate himself or any person lawfully aiding him when whether section 11 of this Rule has been
unlawfully detained therein. complied with and shall require that the property
seized be delivered to him. The judge shall see to
*A search warrant cannot be used everyday for ten days and for it that subsection (a) hereof has been complied
a different purpose each day, and that after the articles for which with;
the warrant was issued have been seized, the same warrant c) the return on the search warrant shall be filed
cannot be used as an authority to make another search except and kept by the custodian of the log book on
if the search made on succeeding day was really a continuation search warrants who shall enter therein the date
of the search which was begun on a previous day. of the return, the result, and other actions of the
Thus, where the search under a warrant on one day was judge.
interrupted, it may be continued under the same warrant the *A violation of this section shall constitute contempt of court.
following day provided it is still within the ten-day period. (Dizon *The judge shall see to it that the seizing officer has complied
v Capulong, 257 SCRA 430) with his duties under subsection (a) hereof.
Section 8. Search of house, room, or premises to be made in Section 13. Search incident to lawful arrest
presence of two witnesses A person lawfully arrested may be searched for
No search of a house, room or any other premises dangerous weapons or anything which may have been used or
shall be made except in the presence of the lawful occupant constitute proof in the commission of an offense without a
thereof or any member of his family or in the absence of the search warrant.
latter, two witnesses of sufficient age and discretion residing in *Cases where warrantless searches and seizures are valid:
the same locality. 1) search of moving vehicles;
2) consented search without a warrant;
3) seizure of evidence in plain view
Q. What time must the warrant be served? 4) enforcement of customs law, except in dwelling
ANS. The warrant must be directed that it be served in the day houses;
time, unless the affidavit asserts that the property is on the 5) search made based on probable cause under
person or in the place ordered to be searched in which case, a extraordinary circumstances.
direction may be served at anytime of the day or night.
*Immediate control test
Section 10. Validity of search warrant Search may extend beyond the person where the
A search warrant shall be valid for ten days from its exigencies of the situation justify a warrantless search for
date. Thereafter, it shall be void. dangerous weapons and to prevent the arrestee from destroying
evidence of the crime within the officer’s search but not to
*A search warrant cannot be used everyday for ten days and for search the entire house for evidence of the crime for which the
a different purpose each day, and that after the articles for which arrest is made. (Pp v Musa, 217 SCRA 597)
the warrant was issued have been seized, the same warrant *Total Exclusion Rule
cannot be used as an authority to make another search except Excludes as inadmissible in evidence those that were
if the search made on succeeding day was really a continuation illegally seized in violation of the provisions of the Constitution
of the search which was begun on a previous day. applies a restraint directed only against the government and its
Thus, where the search under a warrant on one day was agencies tasked with the enforcement of the law. It could only
interrupted, it may be continued under the same warrant the be invoked against the state to whom the restraint against the
following day provided it is still within the ten-day period. (Dizon arbitrary and unreasonable exercise of power is imposed.
v Capulong, 257 SCRA 430)
Section 14. Motion to quash a search warrant or to suppress
Section 11. Receipt for the property seized evidence; where to file.
The officer seizing property under the warrant must
give a detailed receipt for the same to the lawful occupant of the Q. Where to file motion to quash a search warrant?
premises in whose presence the search and seizure were made,
or in the absence of such occupant, must in the presence of at ANS. Gen. rule-A motion to quash a search warrant and/or
least two witnesses of sufficient age and discretion residing in to suppress evidence obtained thereby may be filed in and
the same locality, leave a receipt in the place in which he found acted upon only by the court where the action has been
the seized property. instituted.
Exception-If no criminal action has been instituted, the motion Q. When and on what grounds may attachment be
may be filed in and resolved by the court that issued the issued in criminal cases?
warrant.
ANS. At the commencement of a criminal action or at any
time thereafter, when the civil action for the
Exception to the exception-However, if such court failed to
recovery of civil liability arising from the offense
resolve the motion and a criminal case is subsequently filed in
charged is not expressly waived or the right to
another court, the motion shall be resolve by the latter court.
institute such civil action separately is not reserved,
the offended party may have the property of the
*Filing of motion to quash is without prejudice to any proper
accused attached as security for the satisfaction of
recourse to the appropriate higher court by the party aggrieved.
any judgment that may be recovered from the
All grounds and objections then available, existent or known
accused, in the following cases:
shall be raised in the original or subsequent proceedings for the
quashal of the warrant, otherwise they shall be deemed waived.
(a) When the accused is about to abscond from
the Philippines;
RULE 127
PROVISIONAL REMEDIES IN CRIMINAL CASES
(b) When the criminal action is based on a claim
Q. What are provisional remedies? for money or property embezzled or
fraudulently misapplied or converted to the
ANS. They are those remedies provided for present need or use of the accused who is a public officer, or
for the occasion that is one to meet a particular exigency. any officer of a corporation, or an attorney,
factor, broker, agent, or clerk, in the course
Q What is the nature of provisional remedies? of his employment as such, or by any other
person in a fiduciary capacity, or for a willful
ANS. They are those which parties litigant may resort for the violation of duty;
preservation or protection of their rights and interests and for no
other purposes during the pendency of the action. They are also
applied a pending litigation for purposes of securing the (c) When the accused has concealed, removed,
judgment or preserving the status quo, and in some cases after or disposed of his property, or is about to do;
judgment, for the purpose of preserving or disposing of the and
subject matter.
Q. What are the kinds of provisional remedies? (d) When the accused resides outside the
Philippines. (Sec. 2).
ANS. The kinds of provisional remedies are:
1) attachment;
2) injunction
3) receivers
4) delivery of personal property
5) support pendent elite
Section 2. Attachment
*It was held by the Supreme Court that the public prosecutor
has the authority to apply for preliminary attachment as may be
necessary to protect the interest of the offended party,
particularly considering that the corresponding civil liability of the
culprits is to be determined therein, no reservation having been
made of the right to enforce it in a separate civil action.
*Attachment may be availed of only when the civil action arising
from the has not been expressly waived or not reserved and
only in the following cases:
a)when the accused is about to abscond from the
Philippines;
b) when the criminal action is based on a claim for
money or property embezzled or fraudulently
misapplied or converted to the use of the accused
who is a public officer or a corporate officer or an
attorney, broker, or agent or clerk in the course of
employment or by a person in a fiduciary capacity.
c) when the accused has concealed, removed or
about to dispose of his property
d) when the accused resides abroad.

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 REMEDIAL LAW REVIEWER 

1 SAINT LOUIS UNIVERSITY BAR OPERATIONS

ANS. All criminal actions either commenced by a

criminally liable shall also be civilly liable. (Art. 100,

complaint based on the evidence presented

ARREST ANS. The doctrine of hot pursuit in warrantless arrest is

Q. Within what time should the trial court resolve such

Q. Will the cancellation of the bond because of the RULE 115

(2) the prosecution can present evidence if

(e) To be exempt from being compelled to be a

(g) To have compulsory process issued to

ANS. The effects are:

(1) there is a waiver of the right to present

three (3) days from the filing of the information or

Q. What are the purposes for which the offended party

ANS. The private offended party may be required to

Q. What is the effect if the offended party fails to

regardless of whether or not it is included in the

Q. Give an example of the rule.

Q. State the time frame for the preparation of a

ANS. No, because it is a matter of discretion. When the

Q. May the accused withdraw his plea of guilty?

*Plea-bargaining is not allowed under the Dangerous Drugs Act

TRIAL a) delay resulting from an examination of

*An amended information is not a new information but a

Q. What is the purpose of demurrer to evidence? Q. What is Judgment?

the witness or witnesses who are shown to have made

*Yet when set aside from the testimonies of retracting

offense for which the penalty of death, reclusion

for filing of said transcript of stenographic notes shall be granted

on the ground of newly discovered evidence material to his

Section 3. Decision if opinion is equally divided

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