Ateneo 2007 Criminal Procedure

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SUMMER REVIEWER

—Advisers: Atty. Tranquil Salvador III; Head: Mary Elizabeth M. Belmonte, Renee Lynn C. Miciano, Ma. Cecillia G.

CRIMINAL PROCEDURE

PRELIMINARY MATTERS CRIMINAL PROCEDURE

It is the method prescribed by law for the apprehension and prosecution of persons accused of any criminal offense and for their punishment, in case of conviction (Remedial Law IV, Herrera).

It is concerned with the procedural steps through which a criminal case passes, commencing with the initial investigation of a crime and concluding with the release of the offender.

CRIMINAL JURISDICTION

It is the authority to hear and try a particular offense and impose the punishment for it (People v. Marinao,

71 SCRA 600, 604).

REQUISITES FOR VALID EXERCISE OF CRIMINAL JURISDICTION:

1. Jurisdiction over the subject matter – is the power to hear and determine cases of the general class to which the proceedings in question belong (Reyes v. Diaz, 73 Phil 484); by virtue of the imposable penalty or its nature, is one which the court is by law authorized to take cognizance of; conferred by law.

2. Jurisdiction over the territory where the

offense was committed – the offense must

have been committed within the territorial jurisdiction of the court; jurisdiction over the territory; cannot be waived

3. Jurisdiction over the person of the accused

– the person charged with the offense must

have been brought to its presence for trial, forcibly by warrant of arrest or upon his voluntary submission to the court.

The question of jurisdiction may be raised at any stage of the proceedings. The exception to this rule is when there is estoppel and laches on the party who raised the question of jurisdiction.

JURISDICTION OVER THE SUBJECT

MATTER

JURISDICTION OVER THE PERSON OF THE

ACCUSED Conferred by law. It

cannot be acquired by the consent of the accused.

May be acquired by consent of the accused or by waiver of

objections. Objection that the court

has no jurisdiction over the subject matter may be made at any stage of the proceeding and the right to make such objection is never waived.

If the accused fails to make his objection in time, he will be deemed to have waived it.

JURISDICTION What determines jurisdiction

Jurisdiction is determined by the extent of the penalty which the law imposes, on the basis of the facts as recited in the complaint or information constitutive of the offense charged

Jurisdiction is not determined by:

• what may be meted out to the offender after trial

• the result of the evidence that would be presented during the trial

Jurisdiction is retained regardless of:

• whether the evidence proves a lesser offense than that charged in the information,

• the subsequent happening of events, although of a character which would have prevented jurisdiction from attaching in the first instance.

GENERALRULE:

Jurisdiction of a court to try criminal action is to be determined by the law at the time of the institution of the action.

EXCEPTION: Where the statute expressly provides, or is construed that it is intended to operate to actions pending before its enactment, in which case, the court where the criminal action is pending is ousted of jurisdiction and the pending action will have to be transferred to the other tribunal which will continue the proceeding.

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ONCE VESTED, JURISDICTION CANNOT BE WITHDRAWN BY:

1. Subsequent valid amendment of the Information; or

2. Subsequent statutory amendment of the rules of jurisdiction, unless the amendatory law provides otherwise.

Venue is jurisdictional

Thus: Action must be instituted and tried in the

municipality or territory where the offense has been committed or where any one of the essential ingredients thereof took place.

GENERALRULE:

The question of jurisdiction may be raised at any stage of the proceedings.

EXCEPTION: It may not be raised for the first time on appeal, where there has been estoppel and laches on the party who raises the question.

Criminal jurisdiction of MTCs GENERAL RULE:

MTC has jurisdiction over all offenses, the maximum penalty of which as provided by law does not exceed 6 years (prision correccional).

EXCEPTION: In cases where the only penalty provided by law is a fine, the amount whereof shall determine the jurisdiction of the court:

• MetroTC, MTC, and MCTC: if fine is not more than 4000 pesos.

• RTC: if fine exceeds 4000 pesos, including offenses committed by public officers and employees in relation to their office, where the amount of the fine does not exceed 6000 pesos. (SC Court Circular No. 09-94).

Accessory penalties and civil liabilities: no longer determinative of jurisdiction.

No jurisdiction: over those cases which by

provision of special law are made triable by the RTC or the Sandiganbayan even if the maximum penalty prescribed by such special law is less than 6 years. Included in such exceptions are election offenses, libel or written defamation, and violation of Sec. 39 of the Dangerous Drugs Act of 1972 (RA 6425).

Criminal Jurisdiction of the Sandiganbayan

Offenses or felonies, whether simple or complexed with other crimes committed by the public officials and their employees mentioned in Subsection (a) of this section in relation to their office.

If the last element, namely, “in relation to his office” is absent or is not alleged in the information, the crime committed falls within the exclusive original jurisdiction of ordinary courts and not the SB.

The offense is committed in relation to the office if the offense is intimately connected with the office of the offender and perpetuated while he was in the performance of his official functions, or when the crime cannot exist without the office, or the office is a constituent element of the crime as defined in the statute.

Election Offenses

Fall outside the jurisdiction of SB even if they are committed by public officers classified as Grade 27 and higher and in relation to their offices. It is the RTC that has jurisdiction as provided for in the Omnibus Election Code.

Court Martial Cases

Offenses committed by members of the Armed Forces and other persons subject to military law are cognizable by court martial if such offenses are “service connected” as expressly enumerated in RA 7055.

If the particular offense is not one of those enumerated in the law, the case falls under either the regular courts or the SB, as the case may be.

Jurisdiction of Family Courts

Republic Act No. 8369 establishing the Family Court granting them exclusive original jurisdiction over child and family cases, namely: Criminal cases where one or more of the accused is below 18 years of age but not less than 9 years of age or where one or more of the victim is a minor at the time of the commission of the offense, provided that if the minor is found guilty, the court shall promulgate sentence and ascertain any civil liability which the accused may have incurred. The sentence shall be suspended without need of an application pursuant to the “Child and Youth Welfare Code or P.D. 603).

Jurisdiction over Complex Crimes

Jurisdiction is lodged with the trial court having jurisdiction to impose the maximum and most serious penalty imposable of an offense forming part of the complex crime.

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Jurisdiction over Crimes Punishable by Destierro

Where the imposable penalty is destierro, the case falls within the exclusive jurisdiction of the Municipal Trial Court, considering that in the hierarchy of penalties under Article 71 of the Revised Penal Code, destierro follows arresto mayor which involves imprisonment (People v. Eduarte, 182 SCRA).

Principle of Adherence of Jurisdiction

Once jurisdiction is vested in the court, it is retained up to the end of litigation (Dela Cruz v. Moya, 160

SCRA 838).

RULE 110

PROSECUTION OF OFFENSES CRIMINAL ACTION

It is an action by which the State prosecutes a person for an act or omission punishable by law.

Section 1. Institution of Criminal Actions

For offenses which require preliminary investigation:

By filing the complaint with the proper officer for preliminary investigation.

• Refers to a complaint-affidavit, and is different from the complaint defined in Section 3 of Rule 110.

• Preliminary investigation is required for offenses where the penalty prescribed by law is at least 4 years, 2 months and 1 day of imprisonment without regard to the fine (Rule 112, Sec. 1, Par. 2).

For all other offenses, or for offenses which are penalized by law with lower than at least 4 years, 2 months and 1 day without regard to the fine:

Instituted directly with the MTC and MCTC, or the complaint is filed with the Office of the Prosecutor. In Manila and other chartered cities, the complaint shall be filed with the Office of the Prosecutor unless otherwise provided in their charters.

NOTE: A complaint for offenses cognizable by the RTC is NOT filed directly with the RTC either for purposes of preliminary investigation or for commencement of the criminal prosecution.

DOES NOT APPLY: To offenses which are subject to summary procedure

Effect of institution of the Criminal Action:

The institution of the criminal action interrupts the running of the period of prescription of the offense charged

UNLESS: otherwise provided in special laws.

Act No. 3323 governs the prescriptive periods of violations of special laws, or offenses other than those penalized under the Revised Penal Code. NOTE: With respect to offenses penalized by special laws, the filing of the complaint or information in court is the one that interrupts the prescriptive period and not the filing of the complaint in the proper office for purposes of conducting a preliminary investigation (Zaldivar v. Reyes, 211 SCRA 277).

The filing of a complaint for purposes of preliminary investigation starts the prosecution process.

REQUISITES OF A COMPLAINT OR

INFORMATION

1. in writing

2. in the name of the People of the Philippines 3. Against all persons who appear to be

responsible for the offense involved.

Who is the real offended party?

The People of the Philippines, but since the crime is also an outrage against the offended party, he is entitled to intervene in its prosecution in cases where the civil action is impliedly instituted therein.

Section 2. The complaint or information

FORM:

1. In writing;

2. In the name of the People of the Philippines; and

3. Against all persons who appear to be responsible for the offense involved.

Section 3. Complaint defined

COMPLAINT

It is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated.

The complaint as defined under Section 3 is different from the complaint filed with the Prosecutor’s Office. It refers to the one filed in court for the

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commencement of a criminal prosecution for violation of a crime usually cognizable by municipal trial courts as well as to a complaint filed by an offended party in private crimes or those which cannot be prosecuted de officio.

REQUISITES OF A COMPLAINT:

1. It must be in writing and under oath;

2. It must be in the name of the People of the Philippines;

3. It must charge a person with an offense; and 4. It must be subscribed by the offended party, by

any peace officer or public officer charged with the enforcement of the law violated.

The COMPLAINT FILED WITH THE PROSECUTOR’S OFFICE, from which the latter may initiate a preliminary investigation, refers to:

1. any written complaint

2. filed by an offended party or not

3. not necessarily under oath, except in 2 instances:

• complaint for commission of an offense which cannot be prosecuted de officio or is private in nature

• where the law requires that it is to be started by a complaint sworn to by the offended party, or when it pertains to those which need to be enforced by specified public officers.

Under the Rule on Summary Procedure:

A complaint may be directly filed in the MTC, provided that in Metro Manila and in chartered cities, the criminal action may only be commenced by the filing of information, which means, only by the prosecutor, except when the offense cannot be prosecuted de officio as in private crimes.

PERSONS WHO CAN FILE A COMPLAINT:

1. Offended party; 2. Any peace officer;

3. Other public officer charged with the enforcement of the law violated.

Section 4. Information defined

INFORMATION

It is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court.

REQUISITES OF AN INFORMATION:

1. It must be in writing;

2. It must charge a person with an offense; 3. It must be subscribed by the prosecutor; and

4. It must be filed in court.

PERSONS AUTHORIZED TO FILE AN INFORMATION

1. City or provincial prosecutor and their assistants

2. Duly appointed special prosecutors.

Information and Complaint distinguished

COMPLAINT INFORMATION

Subscribed by the offended party, any peace officer or other officer charged with the enforcement of the law violated.

Subscribed by the prosecutor. It does not have to be subscribed by the offended party or any peace officer or other peace officer charged with the enforcement of the law.

Filed either in the MTC or with the provincial/city prosecutor’s office

Filed in court.

NOTE: PROSECUTION IN THE RTC IS ALWAYS COMMENCED BY INFORMATION, EXCEPT:

1. In certain crimes against chastity (concubinage, adultery, seduction, abduction, acts of lasciviousness) ; and

2. Defamations imputing any of the aforesaid offenses wherein a sworn written complaint is required in accordance with Section 5 of this Rule.

In case of variance between the complaint filed by the offended party and the information in crimes against chastity, the complaint controls (People v.

Oso, 62 Phil 271).

People v. Santiago G.R. No. 137281 (2001)

A defectively crafted information, such as that alleging multiple offenses in a single complaint or information transgresses Rule 110, § 13. A. However, failure to make a timely objection to such a defect is deemed to be a waiver of the said objection.

Section 5. Who Must Prosecute Criminal Actions

Full Discretion and Control of the Prosecutor

All criminal actions commenced by complaint of information shall be prosecuted under the direction and control of the prosecutor.

The institution of a criminal action depends upon the sound discretion of the prosecutor. But once the case is already filed in court, the same can no longer be withdrawn or dismissed without the tribunal’s

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approval. Should the prosecutor find it proper to conduct a reinvestigation of the case at such stage, the permission of the Court must be secured (Crespo

v. Mogul).

May a criminal prosecution be restrained by injunction?

GENERAL RULE: No

REASON: Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society.

EXCEPTIONS WHERE CRIMINAL PROSECUTION MAY BE RESTRAINED BY INJUNCTION

1. where injunction is justified by the necessity to afford protection to the constitutional rights of the accused

2. when necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions

3. when there is a prejudicial question which is

sub judice

4. when the acts of the officer are without or in excess of authority

5. where the prosecution is under an invalid law, ordinance or regulation

6. when double jeopardy is clearly apparent 7. where the court has no jurisdiction over the

offense

8. where it is a case of persecution rather than prosecution

9. where the charges are manifestly false and motivated by the lust for vengeance

10. when there is clearly no prima facie case against the accused and the motion to quash on that ground has been denied

11. preliminary injunction has been issued by the Supreme Court to prevent the threatened unlawful arrest of petitioners.

Prior to the filing of the information in court, the prosecutor has full control of the case. He

decides who should be charged in court and who should be excluded from the information.

DECISION OF THE PROSECUTOR SUBJECT TO REVIEW BY:

• the Secretary of Justice who exercises supervision and control over his actions and who may sustain, modify or set aside his resolution on the matter

• in appropriate cases, by the courts when he acts with grave abuse of discretion amounting to lack of jurisdiction.

Private Prosecutor Participation:

May a public prosecutor allow a private prosecutor to actively handle the conduct of the trial? Yes, where the civil action arising from the crime is deemed instituted in the criminal action.

Public Prosecutor must be present during the proceedings and must take over the conduct of the trial from the private prosecutor at any time the cause of the prosecution may be adversely affected.

Thus, where the prosecutor has turned over the

active conduct of the trial to the private prosecutor who presented testimonial evidence even when the public prosecutor was absent during the trial, the evidence presented could not be considered valid evidence of the People.

However: this rule applies only to courts which are

provided by law with prosecutors, and not to municipal courts which have no trial prosecutors, in which case the evidence presented by the private prosecutor can be considered as evidence for the People.

GENERAL RULE:

In appeals, the Sol. Gen. has control. He may abandon or discontinue the prosecution of the case in the exercise of his sound discretion and may even recommend the acquittal of an accused when he believes that the evidence does not warrant his conviction.

EXCEPTION: provided for in RA 8249 which states in part that “in all cases elevated to the Sandiganbayan and from the SB to the SC, the Office of the Ombudsman, through its special prosecutor, shall represent the People of the Philippines, except in cases filed pursuant to EO Nos. 1, 2, 14 and 14-A, issued in 1986.”

When it is said that the requirement of Art. 344 of

RPC is jurisdictional, what is meant is that it is the

complaint that starts the prosecutory proceeding. It is not the complaint which confers jurisdiction on the court to try the case.

People v. Yparraguire, G. R. No. 124391 (2000)

Even when a complaint is defective for being signed and filed by the chief of police and not by the complainant, the court may still acquire jurisdiction over the case. The complaint required in Art. 344 of the RPC is but a condition precedent to the exercise by the proper authorities of the power to prosecute the guilty parties. The complaint simply starts the

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prosecutory proceeding but does not confer jurisdiction in the court to try the case. Art. 344 is not determinative of the jurisdiction of courts over private offenses because the same is governed by the Judiciary Law and not the RPC.

Once the complaint is filed, does death of the complainant in a crime of adultery extinguish the criminal liability of the accused? No. The

participation of the offended party in private crimes is essential not for the maintenance of the criminal action but solely for the initiation thereof. Any pardon given by the complainant or her death after the filing

of the complaint would not deprive the court of the

jurisdiction to try the case.

REMEDIES OF THE OFFENDED PARTY IF THE PROSECUTOR REFUSES TO FILE AN INFORMATION:

1. File an action for mandamus, in case of grave abuse of discretion

2. Lodge a new complaint before; the court having jurisdiction over the offense;

3. Take up the matter with the Secretary of Justice in accordance with the Administrative Code;

4. Institute administrative charges against erring prosecutor; and

5. File criminal action against the prosecutor with the corresponding civil action for damages.

PROSECUTION OF PRIVATE CRIMES Who may prosecute?

1. Concubinage and adultery – only by the offended spouse who should have the status, capacity and legal representation at the time of filing of the complaint regardless of age; Both guilty parties must be included in the complaint; The offended party did not consent to the offense nor pardoned the offenders.

2. Seduction, Abduction and Acts of

Lasciviousness – prosecuted exclusively and

successively by the following persons in this order:

a. By the offended woman;

b. By the parents, grandparents or legal/ judicial guardians in that successive order, if the offended party is a minor or of age but suffers from physical or mental disability; c. By the State pursuant to the doctrine of

parens patriae, when the offended party

dies or becomes incapacitated before she could file the complaint and she has no known parents, grandparents or guardians.

3. A defamation imputing to a person any of the foregoing crimes of concubinage, adultery, seduction, abduction, rape or acts of lasciviousness can be prosecuted only by the party or parties defamed (Article 360, last

paragraph, Revised Penal Code).

NOTE: If the offended party is of legal age and does not suffer from physical or mental disability, she alone can file the complaint to the exclusion of all.

Who can give pardon?

1. Concubinage and adultery – only the offended spouse not otherwise incapacitated, can validly extend the pardon or consent contemplated therein.

2. Seduction, abduction and acts of

lasciviousness -

a. the offended minor, if with sufficient discretion can validly pardon the accused by herself if she has no parents or where the accused is her own father and her mother is dead

b. the parents, grandparents or guardian of the offended minor, in that order, cannot extend a valid pardon in said crimes without the conformity of the offended party, even if the latter is a minor;

c. if the offended woman is of age and not otherwise incapacitated, only she can extend a valid pardon.

The pardon refers to pardon BEFORE filing of the criminal complaint in court. Pardon effected after the filing of the complaint in court does not prohibit the continuance of the prosecution of the offense EXCEPT in case of marriage between the offender and the offended party.

Pardon and Consent

PARDON CONSENT

Refers to past acts of adultery.

Refers to future acts

In order to absolve the accused from liability must be extended to both offenders.

In order to absolve the accused from liability, it is sufficient even if granted only to the offending spouse.

The SUBSEQUENT MARRIAGE between the party and the accused extinguishes the criminal liability of the latter, together with that of the co-principals, accomplices and accessories, Except:

a. Where the marriage was invalid or contracted in bad faith in order to escape criminal liability.

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b. In “private libel” or the libelous imputation of the commission of the crimes of concubinage, adultery, seduction, abduction, rape or acts of lasciviousness and in slander by deed;

c. In multiple rape, insofar as the other accused in the other acts of rape respectively committed by them are concerned.

NOTE: The acquittal or death of one of the accused in the crime of adultery does not bar the prosecution of the other accused (People v. Topiño, 35 Phil 901). However, the death of the offended spouse before the filing of the complaint for adultery bars further prosecution, BUT if the offended spouse died after the filing of the corresponding complaint, his death will not prevent the proceeding from continuing to its ultimate conclusion.

Effect of Desistance of Complainant

It does not bar the People from prosecuting the criminal action. BUT: it does operate as a waiver of the right to pursue civil indemnity.

An offended party in a criminal case has sufficient personality to file a special civil action for certiorari, in proper cases, even without the imprimatur of the State. In so doing, the complainant should not bring the action in the name of the People of the Philippines. The action may be prosecuted in the name of the said complainant (Perez v. Hagonoy

Rural Bank, Inc. 327 SCRA 588).

Section 6. Sufficiency of complaint or information

ACOMPLAINTISSUFFICIENTIFITSTATES:

1. the name of the accused

2. the designation of the offense by a statute 3. the acts or omission complained of as

constituting the offense 4. the name of the offended party

5. the approximate time of the commission of the offense

6. the place where the offense was committed.

People v. Dela Cruz, G.R. No. 137967 (2001)

The non-inclusion of some of the names of the eyewitnesses in the information does not preclude the prosecutor from presenting them during trial. PURPOSE: to safeguard the constitutional right of an

accused to be informed of the nature and cause of the accusation against him so that he can duly prepare his defense.

NOTE: Substantial defect in the information cannot

be cured by evidence that would jeopardize the accused’s right to be informed of the true nature of the offense he is charged with.

Section 7. Name of the accused

NAME OF THE ACCUSED

1. If name is known: the name and surname of the accused or any appellation or nickname by which he has been or is known.

2. If name cannot be ascertained: a fictitious name with a statement that his true name is unknown.

• If true name thereafter disclosed: such true name shall be inserted in the complaint or information and record.

3. While one or more persons, along with specified and named accused, may be sued as “John Does,” an information against all accused described as “John Does” is void, and an arrest warrant against them is also void. NOTE: An error in the name of the accused is not reversible as long as his identity is sufficiently established. This defect is curable at any stage of the proceedings as insertion of the real name of the accused is merely a matter of form (People v. Padica,

221 SCRA 362).

Section 8. Designation of the offense

THE INFORMATION OR COMPLAINT MUST STATE OR DESIGNATE THE FOLLOWING WHENEVER POSSIBLE:

1. The designation of the offense given by the statute. If there is no designation of the offense, reference shall be made to the section of the statute punishing it.

2. The statement of the acts or omissions constituting the offense, in ordinary, concise and particular words.

3. The specific qualifying and aggravating circumstances must be stated in ordinary and concise language.

The qualifying and aggravating circumstances cannot be appreciated even if proved unless alleged in the information (People v. Perreras, 362 SCRA 202). In case of allegation of aggravating circumstance of HABITUAL DELINQUENCY, it should not be generally averred. The information must specify:

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a. the commission of the crimes; b. the last conviction or release;

c. the other previous conviction or release of the accused.

In rape cases, the concurrence of the minority of the victim and her relationship with the offender is a special qualifying circumstance which should be both alleged (People v. Cantos, 305 SCRA 786) and proved (People v. Manggasin) with certainty in order to warrant the imposition of the [maximum] penalty.

DESIGNATION OF THE OFFENSE

1. In case of a conflict between the designation of the crime and the recital of facts constituting the offense, the latter prevails over the former. 2. The real question is not, did he commit a crime

given in the law some technical and specific name, but did he perform the acts alleged in the body of the information. If he did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the crime.

It is not the designation of the offense in the complaint or information that is controlling (People v.

Samillano, 56 SCRA 573); the facts alleged therein

and not its title determine the nature of the crime

(People v. Magdowa, 73 Phil 512).

The accused may be convicted of a crime more serious than that named in the title or preliminary part if such crime is covered by the facts alleged in the body of the information and its commission is established by evidence (Buhat v. Court of Appeals,

265 SCRA 701).

An accused could not be convicted under one act when he is charged with a violation of another if the change from one statue to the other involves:

a. a change in the theory of the trial;

b. requires of the defendant a different defense; or

c. surprise the accused in any way. (U.S. v.

Panlilio, 28 Phil 603).

Section 9. Cause of the accusation

If one or more elements of the offense have not been alleged in the information, the accused cannot be convicted of the offense charged, even if the missing elements have been proved during the trial.

Even the accused’s entering a plea of guilty to such defective information will not cure the defect, nor justify his conviction of the offense charged.

IMPORTANT: The new rule requires that the

qualifying and aggravating circumstances be alleged in the information.

PURPOSE:

1. To enable the court to pronounce a proper judgment;

2. To furnish the accused with such a description of the charge as to enable him to make a defense;

3. As a protection against further prosecution for the same cause. ( U.S. v. Karelsen).

RULE ON NEGATIVE AVERMENTS:

1. Where the law alleged to have been violated: • prohibits generally acts therein defined • is intended to apply to all persons

indiscriminately,

• but prescribes certain limitations or exceptions from its violation the information is sufficient if it alleges facts which the offender did as constituting a violation of law, without explicitly negating the exception, as the exception is a matter of defense which the accused has to prove. 2. Where the law alleged to have been violated…

• applies only to specific classes of persons and special conditions

• the exemptions from its violation are so incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly set forth if the exemption is omitted, the information must show that the accused does not fall within the exemptions.

NOTE: When an exception or negative allegation is not an ingredient of the offense and is a matter of defense, it need not be alleged (U.S. v. Chan Toco,

12 Phil 262).

COMPLEX CRIMES

Where what is alleged in the information is a

complex crime and the evidence fails to support the

charge as to one of the component offenses, the defendant can be convicted of the offense proven.

Section 10. Place of commission of the offense

GENERAL RULE:

A complaint or information is sufficient if it appears from the allegation that the offense was committed or some of its essential ingredients occurred at some place, within the territorial jurisdiction of the court.

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EXCEPTION: When the place of commission is an essential element of the offense, the place of commission must be alleged with particularity e.g.

trespass to dwelling, destructive arson, robbery in an inhabited house.

PURPOSE: To show territorial jurisdiction of the

court.

May conviction be had even if it appears that the crime was committed not at the place alleged in the information? Yes, provided the place of actual

commission was within the jurisdiction of the court. UNLESS: the particular place of commission is an essential element of the offense charged.

Section 11. Date of commission of the offense

What is the determinative factor in the resolution of the question involving a variance between the allegation and proof in respect of the date of the crime? The element of surprise on the part of the accused and his inability to defend himself properly

People v. Elpedes, G.R. No. 137106-07 (2001)

The remedy against an indictment that fails to allege the time of commission of the offense with sufficient definiteness is a motion for bill of particulars (Rule 116 § 10). The failure to move or specification or the quashal of the information on any of the grounds provided for in the Rules deprives the accused of the right to object to evidence which could be lawfully introduced and admitted under an information of more or less general terms but which sufficiently charges the accused with a definite crime. Besides, the exact date of the commission of the crime is not an essential element of the crime.

People v. Baniguid, GR No. 137714 (2000)

Death penalty is imposed for the crime of rape if the “victim is under 18 years of age and the offender is a parent of the victim.” For this purpose, the special qualifying circumstances of the victim’s minority and her relationship with the offender must be alleged and proved. The information must state the exact age of the victim at the time of the commission of the crime.

People v. De Villa, G.R. No. 124639 (2001)

Under the amendatory provisions of RA 7659 § 11, the attendance of facts that would mandate the imposition of the single indivisible penalty of death are in the nature of qualifying circumstances which

should be alleged in the information and proved at the trial. The New Rules of Criminal Procedure which took effect on Dec. 1, 2000, now specifically require that both qualifying and aggravating circumstances to be alleged in the information.

Section 12. Name of the offended party

The rules require the complaint or information to state the name and surname of the persons against whom or against whose property the offense was committed or any appellation or nickname by which such person has been or is known and if there is no better way of identifying him, he must be described under a fictitious name (Sayson v. People, 166 SCRA 693). In crimes against property, if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the particular offense charged.

To constitute larceny, robbery, embezzlement, obtaining money by false pretenses, malicious mischief, etc., the property obtained must be that of another person, and indictment for such offense must

name the owner and a variance in this respect

between the indictment and the proof will be fatal.

Section 13. Duplicity of the Offense

The information is defective when it charges two or more DISTINCT or DIFFERENT offenses. A complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses.

PURPOSE: To give the defendant the necessary

knowledge of the charge to enable him to prove his defense. The State should not heap upon the defendant two or more charges which might confuse him in his defense.

WAIVER

When the accused fails, BEFORE ARRAIGNMENT, to move for the quashal of the information which charges 2 or more offenses, he thereby waives the objection and may be found guilty of as many offenses as those charged and proved during the trial.

Where the law with respect to an offense may be committed in any of the different modes provided by law, the indictment in the information is sufficient if the offense is alleged to have been committed in one, two or more modes specified therein. The various ways of committing the offense should be considered

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as a description of only one offense and the information cannot be dismissed on the ground of multifariousness.

EXCEPTIONS TO THE RULE ON DUPLICITY

1. continuous crimes 2. complex crimes

3. special complex crimes

4. crimes susceptible of being committed in various modes

5. crimes of which another offense is an ingredient

REQUISITES OF CONTINUOUS CRIMES:

1. Plurality of acts performed separately during a period of time;

2. Unity of penal provision infringed upon or violated;

3. Unity of criminal intent which means that two or more violations of the same penal provision are united on one and the same intent leading to the perpetration of the same criminal purpose or claim (People v. Ledesma).

Section 14. Amendment or Substitution

KINDS OF AMENDMENT OR SUBSTITUTION

a. BEFORETHEACCUSEDENTERSHISPLEA, THEPROSECUTORMAY:

• upgrade the offense

• allege qualifying and aggravating circumstances or

• change the offense charged

WITHOUT LEAVE OF COURT, provided there is evidence thereon which has been presented during the preliminary investigation.

HOWEVER,PROSECUTORCANNOT: • downgrade the offense charged

• exclude from the information a co-accused without filing a motion to that effect, with notice to the offended party, and subject to the approval of the court. The court shall state the reasons in resolving the motion and copies thereof furnished all parties, especially the offended party.

b. AFTER THE PLEA-

a. If it covers only formal amendment- leave of court is obtained and such amendment is not prejudicial to the rights of the accused. b. But when a fact supervenes which changes

the nature of the crime charged in the information or upgrades it to a higher crime, in which case, there is a need for another

arraignment of the accused under the amended information.

Technically, paragraph 2 of Section 14 does not refer to amendment, but to substitution of the complaint or information by a new one. If the substitution is made before the accused enters his plea, the question of double jeopardy does not arise. If the filing of new information is done after the plea and before judgment on the ground that there has been a mistake in charging the proper offense, the filing thereof may only be allowed if it will not place the accused twice in jeopardy.

Test as to whether a defendant is prejudiced by an amendment:

• whether a defense under the information as it originally stood would be available after the amendment is made, and

• whether any evidence defendant might have would be equally applicable to the information in the new form as in the other.

GENERAL RULE:

After arraignment, the prosecutor may no longer amend the information which changes the nature of the crime, as it will prejudice the substantial rights of the accused.

EXCEPTION: When a fact supervenes which changes the nature of the crime charged in the information or upgrades it to a higher crime, the prosecutor, with leave of court, may amend the information to allege such supervening fact and upgrade the crime charged to the higher crime brought about by such supervening fact.

HOWEVER: if the supervening event which changes the nature of the crime to a more serious one occurred after the accused has been convicted, which makes the amendment of the information no longer the remedy of the prosecution, the prosecution can and should charge the accused for such more serious crime, without placing the accused in double jeopardy, there being no identity of the offense charged in the first information and in the second one.

Section 14 applied only to original case and not to appealed case.

Gabionza v. CA, G.R. No. 140311 (2001)

When amendments to informations may be allowed:

a. it does not deprive the accused of the right to invoke prescription

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b. it does not deprive the accused of the right to invoke prescription

c. it does not affect or alter the nature of the offense originally charged

d. it does not involve a change in the basic theory of the prosecution so as to require the accused to undergo any material charge or modification in his defense

e. it does not expose the accused to a charge which would call for a higher penalty

f. it does not cause surprise or deprive the accused of an opportunity to meet the new averment.

A defendant may file a counterclaim for interpleader against the plaintiff and a third party also claiming the subject matter of the suit..

LIMITATION TO THE RULE ON SUBSTITUTION:

a. No judgment has yet been rendered;

b. The accused cannot be convicted of the offense charged or of any other offense necessarily included therein;

c. The accused would not be placed in double jeopardy.

Amendment vs. Substitution

AMENDMENT SUBSTITUTION

May involve either formal or substantial changes.

Involves substantial change from original charge.

Amendment before the pleas has been entered can be effected without leave of court.

Substitution of

information must be with leave of court as the original information has to be dismissed. Amendment is only as to

form, there is no need for another preliminary investigation and the retaking of the plea of the accused.

Another preliminary investigation is entailed and the accused has to plead anew to the new information.

An amended information refers to the same offense charged in the original information or to an offense which

necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused,

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

for if the original would be withdrawn, the accused could invoke double jeopardy.

VARIANCE BETWEEN INDICTMENT AND PROOF:

1. When the offense proved is less serious than and is necessarily included in the offense charged, in which case, the defendant shall be convicted of the offense proved.

2. When the offense proves is more serious than and includes the offense charged, in which case the defendant shall be convicted of the offense charged;

3. When the offense proved is neither included in, nor does it include, the offense charged and is different therefrom, in which case the court should dismiss the action and order the filing of new information charging the proper offense. (Substitution of information applies in this case).

Section15. Place where action is to be instituted

VENUE IN CRIMINAL CASE IS JURISDICTIONAL, BEING AN ESSENTIAL ELEMENT OF JURISDICTION.

PURPOSE: Not to compel the defendant to move to

and appear in a different court from that of the territory where the crime was committed as it would cause him great inconvenience in looking for his witnesses and other evidence in another place.

GENERAL RULE:

Penal laws are territorial; hence Philippine courts have no jurisdiction over crimes committed outside the Philippines.

EXCEPTIONS:

1. Those provided in Article 2 of the Revised Penal Code. Those who commit any of the crimes contemplated therein can be tried by Philippine courts.

2. Where an offense is committed on a railroad train, in an aircraft or other public or private vehicle in the course of its trip, the criminal action shall be instituted and tried in the court of any municipality or territory where such train, aircraft or other vehicle passed during its trip, including the place of its departure and arrival.

3. Where an offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted and tried in the court of the first port of entry or of any municipality or

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territory where the vessel passed during such voyage, subject to the generally accepted principles of international law.

4. Piracy – has no territorial limits as it is a crime against all mankind.

5. Libel – the action may be instituted at the election of the offended party in the province or city:

a. where the libelous article is printed or first published;

b. If one of the offended parties is a private individual, where said private individual actually resides at the time of the commission of the offense;

c. If the offended party is a public official, where the latter holds office at the time of the commission of the offense.

6. In exceptional circumstances- to ensure a fair trial and impartial inquiry. The Supreme Court shall have the power to order a change of venue or place of trial to avoid the miscarriage of justice (Sec. 5[4], Article VIII, 1987

Constitution),

7. B.P. 22 cases- criminal action shall be filed in

the place where the check was dishonored.

VENUE IS JURISDICTIONAL

The court has no jurisdiction to try an offense committed outside its territorial jurisdiction. It cannot be waived or changed by the agreement of the parties or by consent of the defendant.

Section 16. Intervention of the offended party in criminal action

GENERAL RULE:

Offended party has the right to intervene by counsel in the prosecution of the criminal action where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111.

EXCEPTIONS:

1. Where from the nature of the crime and the law defining and punishing it, no civil liability arises in favor of the offended party;

2. Where the offended party has waived the right to civil indemnity; or

3. Where the offended party has already instituted an action.

Where the offended party withdrew a reservation to file a separate civil action, the private prosecutor may still intervene in the prosecution of the criminal case, by conducting the examination of witnesses under the control of the prosecutor.

HOWEVER: Once the offended party has filed a separate civil action arising from the crime, he may not withdraw such civil case in order to intervene in the criminal prosecution. He loses the right to intervene. He no longer has any standing in the criminal case, except to be a prosecution witness.

Where a criminal action has been provisionally dismissed upon motion of the prosecutor, can the case be revived upon motion of the offended party? No, because the offended party or

complaining witness cannot act for the prosecutor.

RULE 111

PROSECUTION OF CIVIL ACTION

Section 1. Institution of criminal and civil actions

GENERAL RULE:

The institution or filing of the criminal action includes the institution therein of the civil action for recovery of civil liability arising from the offense charged.

EXCEPTIONS: Where institution of criminal liability does not include civil liability the offended party WAIVES the civil action; he RESERVES his right to institute the civil action separately; or he INSTITUTES THE CIVIL ACTION PRIOR TO THE CRIMINAL ACTION.

The employer may not be held civilly liable for quasi-delict in the criminal action as ruled in Maniago v.

Court of Appeals since quasi-delict is not deemed

instituted with the criminal. If at all, the only civil liability of the employer in the criminal action would be his subsidiary liability under the Revised Penal Code.

WHEN RESERVATION SHALL BE MADE:

a. Before the prosecution starts to present its evidence; and

b. Under circumstances affording the offended party a reasonable opportunity to make such reservation.

INSTANCES WHERE NO RESERVATION SHALL BE ALLOWED

1. Criminal action for violation of BP 22 – unless a separate civil action has been filed before the institution of the criminal action, no such civil action can be instituted after the criminal action has been filed as the same has been included therein.

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2. A claim arising from an offense which is cognizable by the Sandiganbayan – a civil action filed prior to the criminal action has to be transferred to the subsequently filed criminal action for joint hearing (Sec. 4 of PD1606 as

amended by RA 8249)

3. Tax cases (Sec. 7, par. b, no.1, RA 9282) When the reservation of the right to institute the separate civil actions shall be made: before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such a reservation. The rule requiring reservation to file a separate civil action does not apply to civil actions which can be filed and prosecuted independently of the criminal action, namely, those provided in Arts. 32, 33, 34 and 2176 of the Civil Code.

Although the criminal and civil actions may be joined in the criminal case, they are distinct from each other. The plaintiffs in the two actions are different.

THUS: even if the accused started serving his sentence within the 15-day period from the promulgation of the judgment of conviction by the lower court, thereby making the judgment against him final, the complainant may, within the 15-day reglementary period, still ask that the civil liability be fixed by the court, if the judgment does not adjudicate any civil liability, as the judgment regarding civil liability has not become final and the court still has jurisdiction to adjudge the civil liability.

NOTE: Only civil liability arising from crime charged (cause of action arising from delict) as a felony is deemed instituted. Civil liability arising from other sources of obligations (law, contract and quasi-delict) are no longer deemed instituted like those under Article 32, 33, 34 and 2176 of the Civil Code which can be prosecuted even without reservation.

RULES ON FILING FEES

GENERAL RULE: No filing fees are required for

amounts of actual damages.

EXCEPTION: Criminal action for violation of BP 22 which is deemed to include the corresponding civil action. The offended party shall, upon the filing of the criminal and civil actions, pay in full the filing fees based on the face value of the check as the actual damages.

Purpose of Exception: to prevent the offended party from using the prosecutor’s office and the court as vehicles for recovery of the face value of the check, without paying the corresponding filing fees therefor. With respect to damages other than actual, if these damages are specified in the complaint or information, the corresponding filing fees should be paid, otherwise, the trial court will not acquire jurisdiction over such other damages.

Where moral, exemplary and other damages are not specified in the complaint or information, the grant and amount thereof are left to the sound discretion of the trial court, the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment.

NOTE: Counterclaims, cross-claims, third-party complaints are no longer allowed in a criminal proceeding. Any claim which could have been the subject thereof maybe litigated in a separate civil action.

In an appeal of a criminal case, the appellate court may impose additional damages or increase or decrease the amounts of damages upon the accused-appellant.

HOWEVER, additional penalties cannot be imposed upon a co-accused who did not appeal, but modifications of the judgment beneficial to him are considered in his favor.

The offended party in a criminal case may appeal the civil aspect despite the acquittal of the accused. Where the trial court convicted the accused, but dismissed the civil action instituted therein, the offended party may appeal the dismissal to the CA.

Compromise on civil aspect:

The offended party may compromise the civil aspect of a crime, provided that it must be entered before or during the litigation, and not after final judgment. A compromise on the civil aspect is valid even if it turns out to be unsatisfactory either to one or both of the parties.

IMPORTANT: Section 1, Rule 111 now expressly

provides that no counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been subject thereof may be litigated in a separate civil action.

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a. the counterclaim of the accused will unnecessarily complicate and confuse the criminal proceedings;

b. the trial court should confine itself to the criminal aspect and the possible civil liability of the accused arising out of the crime.

Section 2. When separate civil action is suspended

Primacy of Criminal Action over Civil Action

After the filing of the criminal action, the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action

If the civil action is instituted before the criminal action and the criminal action is subsequently commenced, the pending civil action shall be suspended until final judgment of the criminal action has been rendered.

EXCEPTIONS:

1. In cases of independent civil actions based upon Article 32, 33, 34 and 2176 of the Civil Code;

2. In cases where the civil action presents a prejudicial question; and

3. Where the civil action is not one intended to enforce the civil liability arising from the offense.

CONSOLIDATION OF CRIMINAL AND CIVIL CASES

Before judgment on the merit is rendered in the civil action, the same may, upon motion of the offended party be consolidated with the criminal action in the court trying the criminal action. This is a modification on the rule on primacy of criminal action.

The consolidation must be effected in the criminal court, irrespective of the nature of the offense, the amount of the civil claim or the rank of the court trying the civil case.

In cases where consolidation is given due course, the evidence presented and admitted in the civil case shall be deemed automatically reproduced in the criminal action.

The consolidated criminal and civil cases shall be tried and decided jointly.

NOTE: Article 29 of the Civil Code merely emphasizes that a civil action for damages is not precluded by the acquittal of an accused for the same

criminal act or omission. It does not state that the remedy can be availed of only in a separate civil action.

ACQUITTAL IN A CRIMINAL CASE DOES NOT BAR THE FILING OF THE CIVIL CASE WHERE:

1. The acquittal is based on reasonable doubt, if the civil case has been reserved.

2. The decision contains a declaration that the liability is not criminal but only civil in nature. 3. The civil liability is not derived from or based

on the criminal act of which the accused is acquitted. (Sapiera v. Court of Appeals, 314

SCRA 370)

Section 3. When civil action may proceed independently

Prior reservation is not necessary to file separate civil action under Arts. 32, 33, 34 and 2176 of the Civil Code. The phrase “which has been reserved” that has caused conflicting rulings in the past has now been deleted.

Actions based on quasi-delict may be filed

independently of the criminal action regardless of the result of the criminal action, except that a plaintiff cannot recover damages twice for the same act or omission of the defendant.

PURPOSE: To make the court’s disposition of the

criminal case of no effect whatsoever on the separate civil case.

Section 4. Effect of death on civil actions

EFFECT OF DEATH OF THE ACCUSED ON CIVIL ACTIONS

1. After arraignment and during the pendency of the criminal action:

GENERAL RULE:

Death extinguishes the civil liability arising from delict or the offense

EXCEPT: where civil liability is predicated on other sources of obligations such as law, contract, quasi-contract and quasi-delict. If such civil action which survives is impliedly instituted in the criminal action, the legal representative or heir of the deceased shall be substituted for the deceased. The criminal case is reduced to a civil action.

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However, if the civil action has been reserved and subsequently filed or such civil action has been instituted, when the accused died, then such civil action will proceed and substitution of parties shall be ordered by the court pursuant to Sec.16 Rule 3 of the Rules of Court.

2. Before arraignment:

The civil action impliedly instituted in the criminal action shall be dismissed without prejudice to the offended party’s filing a civil action against the administrator of the estate of the deceased.

NOTE: The independent civil action instituted under Section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution, or against said estate, as the case may be.

3. Pending appeal of his conviction:

It extinguishes his criminal liability as well as the civil liability based solely thereon.

4. Prior to final judgment:

It terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed.

Section 5. Judgment in civil action not a bar

The judgment in civil actions based on Arts. 32, 33, 34 and 2176 absolving the defendant from civil liability does not bar the criminal action.

NOTE: Where the criminal case was dismissed before trial because the offended party executed an affidavit of desistance, the civil action thereof is similarly dismissed.

Section 6. Suspension by reason of prejudicial question

PREJUDICIAL QUESTION

It is one which arises in a case, the resolution of which is a logical antecedent of the issue involved therein and the cognizance of which pertains to another tribunal.

PURPOSE: To avoid two conflicting decisions.

NOTE: A prejudicial question is based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused.

PREJUDICIAL QUESTION

1. The prejudicial question may be raised during the preliminary investigation of the offense or in court before the prosecution rests its case. 2. The suspension of the criminal case due to a

prejudicial question is only a procedural matter, and is subject to a waiver by virtue of prior acts of the accused.

3. There is no prejudicial question where one case is administrative and the other is civil.

Time to Plead

When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests.

WHERE TO FILE PETITION FOR SUSPENSION BY REASON OF PREJUDICIAL QUESTION

1. Office of the Prosecutor; or

2. Court where the criminal action has been filed for trial at any time before the prosecution rests.

Section 7. Elements of prejudicial question

ELEMENTS OF A PREJUDICIAL QUESTION

1. The civil action must be instituted PRIOR to the criminal action;

2. The civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action;

3. The resolution of such issue determines whether or not the criminal action may proceed.

RULE 112

PRELIMINARY INVESTIGATION

Section 1. Preliminary investigation defined; when required

PRELIMINARY INVESTIGATION

It is an inquiry or proceeding to determine whether there exists sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial.

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1. To determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof.

2. To preserve evidence and keep the witnesses within the control of the State.

3. To determine the amount of bail, if the offense is bailable.

Preliminary investigation is required to be conducted BEFORE the filing of a complaint or information for an offense where the penalty prescribed by law is at least 4 years, 1 months and 7 day without regard to the fine.

It is not part of the trial of the criminal action in court. Nor is its record part of the record of the case in the RTC. The dismissal of the case by the investigator will not constitute double jeopardy and will not bar the filing of another complaint for the same offense, but if re-filed, the accused is entitled to another preliminary investigation (U.S. v. Marfori, 35 Phil 666).

It is subject to the requirements of both substantive and procedural due process.

The right of an accused to a preliminary investigation is not a constitutional but merely a statutory right. Nonetheless, it is a component part of due process in criminal justice and is a substantive right.

A personal right and may be waived expressly or by implication.

Lack of preliminary investigation is not a ground to quash or dismiss a complaint or information, nor does it affect the court’s jurisdiction. When there is no preliminary investigation, the accused must invoke it at the first opportunity and the court should hold in abeyance or suspend proceedings and remand the case to the office of the prosecutor for him to conduct PI.

WAIVER:

1. Failure to claim it before the accused pleaded. 2. Silence of the accused.

3. Failure to request it within 5 days from the time he learns of the filing of the complaint or information in those instances where the accused is lawfully arrested without a warrant. Absence of preliminary investigation does not affect the jurisdiction of the court or invalidate the information if no objection was raised by the accused.

If an objection was raised, the court, instead of dismissing the complaint or information should order the conduct of such investigation (Doromal v.

Sandiganbayan, 117 SCRA 354).

REMEDIES OF THE ACCUSED IF THERE WAS NO PRELIMINARY INVESTIGATION:

1. Refuse to enter a plea upon arraignment and object to further proceedings upon such ground.

2. Insist on a preliminary investigation.

3. Raise lack of preliminary investigation as error on appeal.

4. File a petition for certiorari. 5. File for petition for prohibition.

There is NO right of preliminary investigation when a person is lawfully arrested without a warrant unless there is a waiver of the provisions of Article 125 of the Revised Penal Code.

HOWEVER, THE ACCUSED CAN ASK FOR PRELIMINARY INVESTIGATION IN THE FOLLOWING CASES:

1. If a person is arrested, he can ask for preliminary investigation BEFORE the filing of the complaint/ information BUT he must sign a waiver in accordance with Article 125, RPC. 2. AFTER the filing of the information/ complaint,

the accused may, within 5 days from the time he learns of its filing ask for preliminary investigation.

NOTE: This Rule has been partially amended by AM 05-0-8-26-SC. The amendments took effect on October 3, 2005. The amendment removed the conduct of preliminary investigation from the judges of the first level courts.

Section 2. Officers authorized to conduct preliminary investigation

OFFICERS AUTHORIZED TO CONDUCT PRELIMINARY INVESTIGATION

1. provincial or city prosecutor and their assistants

2. National and regional state prosecutors 3. Such other officers as may be authorized by

law such as the COMELEC, Ombudsman and PCGG

4. Judges of RTCs

No longer authorized to conduct PI:

By implication, MTC judges in Manila and in

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to conduct PI, as the officers authorized to do so are the prosecutors.

TWO TYPES OF OFFENSES MAY BE FILED IN THE MTC FOR PRELIMINARY INVESTIGATION:

1. a case cognizable by the RTC may be filed with the MTC for PI;

2. even if it is cognizable by the MTC because it is an offense where the penalty prescribed by law is at least 4 years 2 months and 1 day.

Regarding offenses falling within the original jurisdiction of the Sandiganbayan:

Prosecutors or municipal trial court judges conducting PI of offenses falling within the original jurisdiction of the Sandiganbayan shall, after their conclusion, transmit the records and their resolutions to the Ombudsman or his deputy for appropriate action. Moreover, the prosecutor or judge cannot dismiss the complaint without the prior written authority of the Ombudsman or his deputy, nor can the prosecutor file an information with the Sandiganbayan without being deputized by, and without prior written authority of, the Ombudsman or his deputy.

Uy v. Sandiganbayan, G.R. Nos. 105965-70(2001)

The Ombudsman is clothed with authority to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but those within the jurisdiction of the regular courts as well. § 15 of RA 6770 (Ombudsman Act of 1989) does not make any distinction. “Any illegal act or omission of any public official” is broad enough to embrace any crime committed by a public officer or employee. Such grant of primary jurisdiction over cases cognizable by the Sandiganbayan does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by the other courts.

Roxas v. Vasquez, G.R. No. 114944 (2001)

In criminal prosecutions, a reinvestigation, like an appeal, renders the entire case open for review, regardless of whether a motion for reconsideration or reinvestigation was sought. The Ombudsman should not be limited in its review. It is clear from R. A. 6770 that the Ombudsman may motu propio conduct a reinvestigation.

ELECTION OFFENSES:

The exclusive jurisdiction of the Comelec to investigate and prosecute election offenses inheres

even if the offender is a private individual or public officer or employee, and in the latter instance, irrespective of whether the offense is committed in relation to his official duties or not. In other words, it is the nature of the offense, namely, an election offense as defined in the Omnibus Election Code and in other election laws, and not the personality of the offender that matters.

THE OMBUDSMAN:

The power of the Ombudsman to make investigation extends to any illegal act or omission of any public official, whether or not the same is committed in relation to his office.

Preliminary investigation by the Ombudsman is limited to cases cognizable by the Sandiganbayan and must be conducted pursuant to Rule 11 of the Rules of Procedure of the Office of the Ombudsman. Section 4(d) of Administrative Order No. 07 disallows the filing of a motion to quash or dismiss a complaint filed with the Ombudsman, except on the ground of lack of jurisdiction.

Which remedy may an aggrieved party avail of against resolutions of the Ombudsman in criminal or non-administrative cases? The law is

silent. Hence, appeal is not available as a remedy because the right to appeal is a statutory privilege and may be availed of only if there is a statute to that effect. However, an aggrieved party is not without remedy, as he can resort to the special civil action of certiorari under Rule 65.

THE OMBUDSMAN DOES NOT HAVE THE FOLLOWING POWERS:

1. to prosecute before the Sandiganbayan any impeachable officers with any offense which carries with it the penalty of removal from office, or any penalty service of which would amount to removal from office because by constitutional mandate, they can only be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust

2. to prosecute public officers or employees who have committed election offenses.

3. to file an information for an offense cognizable by the regular courts.

EFFECTS OF AN INCOMPLETE PRELIMINARY INVESTIGATION