Notes in Criminal Procedure - Rules 110-127 (Final)

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(1)NOTES IN CRIMINAL PROCEDURE (Atty. T. Salvador III - Lecturer) Jurisdiction o In criminal procedure, venue is jurisdictional - the place where the crime was committed is the place where the action is to be instituted. It cannot be the subject of stipulation or agreement, and is not subject to waiver. Rule 4 does not apply in criminal cases. 1. The venue for purposes of instituting an action cannot be the subject of stipulation, or agreement, and is not subject to waiver. What can be transferred is the “venue of trial,” but only with the consent of the Supreme Court.1 2. But if the crime or offense is a continuing or transitory offense, the action can be instituted in the place or any of the places where the elements or the ingredients of the crime were committed. o Is Sec. 152 of Rule 110 inconsistent with the rule that venue is jurisdictional? No, it is not inconsistent. The basic provision of Sec. 15 says that the action can be instituted in the place or any of the places where the elements or the ingredients of the crime were committed because there are certain offenses which you call “continuing offenses” or “transitory offenses,” i.e. crimes which can be committed in one, or two, or three places. 1. Where will you file an action for violation of B.P. 22 if you were issued a check in Manila, but the check bounced upon deposit in a bank in Makati? You can file it in the place where the check bounced, i.e. in Makati, or in the place where the check was issued or drawn, i.e. in Manila, because violation of B.P. 22 is a transitory offense. But the thing is, it is easier to prove that the check bounced in Makati because at the dorsal portion of the check, you will see that there is a stamp of the bank that such check was received and the reason why it bounced. o Where will you file violations of the penal provisions of the Labor Code, Corporation Code, and Agrarian Reform Law? Violations of the penal provisions of laws have to be filed with the Office of the Prosecutor – because it is the Office of Prosecutor which determines “probable cause” for purposes of filing the action. 1. There are laws which seem to be non-penal laws, e.g. Labor Code, Corporation Code, Agrarian Reform Law, but for as long as there is a penal provision, the case will have to be filed with the Office of the Prosecutor.. Transfer of venue of trial is done for the protection of the witnesses both for the prosecution and for the accused, and for the orderly administration of justice. 1. 2. Rule 110, Sec. 15. Place where action is to be instituted. — (a) “Subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred. (b) Where an offense is committed in a train, 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. (c) 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 territory where the vessel passed during such voyage, subject to the generally accepted principles of international law. (d) Crimes committed outside the Philippines but punishable under Article 2 of the Revised Penal Code shall be cognizable by the court where the criminal action is first filed.”. jjsummer&rain#foursisons©2015-0135.

(2) Jurisdiction of Criminal Courts o Under RA No. 7691, for purposes of jurisdiction, the basis is the number of years of imprisonment, regardless of the amount of fine or accessory penalty. 1. If the crime or offense is punishable with imprisonment not exceeding six (6) years, jurisdiction lies with the MeTC or the MTC, as the case may be, regardless of the amount of fine or accessory penalty. 2. If the crime or offense is punishable with imprisonment exceeding six (6) years, jurisdiction lies with the RTC, regardless of fine or accessory penalty. o Under Administrative Circular 09-94, in cases where the only penalty provided by law is a fine, the amount thereof shall determine the jurisdiction of the court. 1. If the crime or offense is punishable by a fine not exceeding four thousand pesos (PhP 4,000), jurisdiction is with the MeTC or MTC, as the case may be. 2. If the crime or offense is punishable by a fine exceeding four thousand pesos (PhP 4,000), jurisdiction is with the RTC. o Do we need to distinguish whether the crime is committed within or outside of Metro Manila to determine the court which has jurisdiction over the crime? No, there is no need to distinguish whether the crime is committed within or outside of Metro Manila. The crime of rape committed in Metro Manila does not make the crime less of a rape when committed in Isabela. A crime would not change even if it is committed within or outside of Metro Manila. o Do we need to distinguish whether the crime is committed within or outside of Metro Manila “for purposes of institution of an action?” Yes, because the distinction of whether the crime is committed within or outside of Metro Manila is material when we talk of “institution of an action.” You will have to consider whether the crime is committed in a chartered city or not. Jurisdiction of the Ombudsman o “Under Section 163 of R.A. No. 6770, otherwise known as the Ombudsman Act of 1989, the jurisdiction of the Ombudsman encompasses all kinds of malfeasance, misfeasance, and nonfeasance committed by any public officer or employee during his/her tenure.” (Samson vs. Restrivera, 2011) o “Section 194 of R.A. No. 6770 also states that the Ombudsman shall act on all complaints relating, but not limited, to acts or omissions which are unfair or irregular. Thus, even if the complaint concerns an act of the public official or employee which is not service-connected, the case is within the jurisdiction of the Ombudsman. The law does not qualify the nature of the illegal act or omission of the public official or employee that the Ombudsman may investigate. It does not require that the act or omission be related to or be connected with or arise from the performance of official duty. Since the law does not distinguish, neither should we.” (Id.). RA No. 6770, Sec. 16. Applicability. – “The provisions of this Act shall apply to all kinds of malfeasance, misfeasance, and nonfeasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure of office.”. 3. RA No. 6770, Sec. 19. Administrative Complaints. – “The Ombudsman shall act on all complaints relating, but not limited to acts or omissions which: xxxx (2) Are xxxx unfair xxxx; xxxx (6) Are otherwise irregular xxxx.”. 4. jjsummer&rain#foursisons©2015-0136.

(3) o Is the Office of the Ombudsman a court? No, the Office of the Ombudsman is not a court, nor a quasi-court. o Can the Office of the Ombudsman prosecute cases within the jurisdiction of the regular courts? Yes, the Ombudsman can prosecute cases as long as it involves a public officer, even if the case falls before the regular courts. Besides, all prosecutors can be appointed as “Ombudsman Prosecutors.” 1. “The Ombudsman is mandated by law to act on all complaints against officers and employees of the government and to enforce their administrative, civil and criminal liability in every case where the evidence warrants. To carry out this duty, the law allows him to utilize the personnel of his office and/or designate any fiscal, state prosecutor or lawyer in the government service to act as special investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or deputized to assist him work under his supervision and control. The law likewise allows him to direct the Special prosecutor to prosecute cases outside the Sandiganbayan’s jurisdiction in accordance with Section 11(4c) of RA 6770.” (Castro vs. Deloria, 2009) 2. “Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan. The law defines such primary jurisdiction as authorizing the Ombudsman "to take over, at any stage, from any investigatory agency of the government, the investigation of such cases." The grant of this authority does not necessarily imply the exclusion from its jurisdiction of cases involving public officers and employees cognizable by other courts. The exercise by the Ombudsman of his primary jurisdiction over cases cognizable by the Sandiganbayan is not incompatible with the discharge of his duty to investigate and prosecute other offenses committed by public officers and employees. Indeed, it must be stressed that the powers granted by the legislature to the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance and non-feasance committed by public officers and employees during their tenure of office.” (Id.) o Can the Ombudsman initiate an investigation even without a complaint? Yes, the Ombudsman can initiate a complaint even without a complaint. Under Section 13 (1),5 Article XI of the 1987 Constitution, the Ombudsman can investigate on its own or on complaint [even an anonymous complaint] by any person any act or omission of any public official or employee when such act or omission appears to be illegal, unjust, or improper. This investigation is not for purposes of preliminary investigation, but is done only to determine, initially, whether or not there is basis to later file a case against you. 1. Can the Office of the Ombudsman conduct preliminary investigation? Yes, the Office of the Ombudsman can conduct preliminary investigation – hence it can file an information if it finds probable cause. 2. Can the Office of the Prosecutor initiate an investigation even without a sworn complaint? No, the Office of the Prosecutor cannot initiate an investigation without a sworn complaint.. Art. XI, Section 13. “The Office of the Ombudsman shall have the following powers, functions, and duties: (1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient.” 5. jjsummer&rain#foursisons©2015-0137.

(4) Jurisdiction of the Sandiganbayan o The general rule is that a public official must (1) occupy a position with SG-27 and higher, and (2) that the crime or offense must have been committed in relation to his office, i.e. without the office, the crime or offense would not have been committed, in order that the Sandiganbayan could exercise jurisdiction over him. The exceptions are as follow: 1. Even if the accused public officer occupies a position with an SG lower than 27, but if the position that he occupies falls under the enumeration of PD No. 1606 – he still falls under the jurisdiction of the Sandiganbayan. 2. A private individual charged together with an SG-27 public officer or higher, or with one of the persons enumerated under PD No. 1606 also falls under the jurisdiction of the Sandiganbayan. o Can ordinary offenses, i.e. not cases for graft, bribery, plunder, still fall within the jurisdiction of the Sandiganbayan? Yes, if the accused occupies a position with SG27 and higher, and it was committed in relation to the office. “The jurisdiction is simply subject to the twin requirements that (a) the offense is committed by public officials and employees mentioned in Section 4(A) of P.D. No. 1606, as amended, and that (b) the offense is committed in relation to their office.” (Serana vs. Sandiganbayan, 2008). o Does the crime of rape committed by an incumbent mayor fall under the jurisdiction of the Sandiganbayan? No, the crime of rape committed by an incumbent mayor does not fall under the jurisdiction of the Sandiganbayan because such crime is not an offense committed in relation to his office. You do not need to be a mayor to commit rape. 1. “In Montilla vs. Hilario (1951), cited in the case of Sanchez vs. Demetriou (1993), the court described the "offense committed in relation to the office" as follows: “The relation between the crime and the office contemplated by the Constitution is, in our opinion, direct and not accidental. To fall into the intent of the Constitution, the relation has to be such that, in the legal sense, the offense cannot exist without the office. In other words, the office must be a constituent element of the crime as defined in the statute, such as, for instance, the crimes defined and punished in Chapter Two to Six, Title Seven, of the Revised Penal Code.” 2. “Public office is not of the essence of murder. The taking of human life is either murder or homicide whether done by a private citizen or public servant, and the penalty is the same except when the perpetrator, being a public functionary took advantage of his office, as alleged in this case, in which event the penalty is increased. But the use or abuse of office does not adhere to the crime as an element; and even as an aggravating circumstance, its materiality arises not from the allegations but on the proof, not from the fact that the criminals are public officials but from the manner of the commission of the crime.” (Id.) o Can a public officer not occupying a position with SG-27 and higher who commits a crime in relation to his office fall under the jurisdiction of the Sandiganbayan? Yes, a public officer not occupying a position with SG-27 and higher can still fall under the jurisdiction of the Sandiganbayan if the position that he occupies falls under the enumeration of PD No. 1606 – the law that determines the jurisdiction of the Sandiganbayan. 1. “It is not only the salary grade that determines the jurisdiction of the Sandiganbayan. The Sandiganbayan also has jurisdiction over other officers enumerated in P.D. No. 1606. In Geduspan v. People, we held that while the first part of Section 4(A) covers only officials with Salary Grade 27 and higher, its second part specifically includes. jjsummer&rain#foursisons©2015-0138.

(5) other executive officials whose positions may not be of Salary Grade 27 and higher but who are by express provision of law placed under the jurisdiction of the said court. Petitioner falls under the jurisdiction of the Sandiganbayan as she is placed there by express provision of law.” (Serana vs. Sandiganbayan, 2008). 2. “Compensation is not an essential element of public office. At most, it is merely incidental to the public office. Delegation of sovereign functions is essential in the public office. An investment in an individual of some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public makes one a public officer.” (Id.) o Should a private person be impleaded in a complaint against a public officer and tried in the Sandiganbayan, or should the private person be charged separately before the regular courts? A private individual charged together with an SG-27 public officer or higher, or with one of the persons enumerated under PD No. 1606 must be indicted and tried before the Sandiganbayan. 1. As long as there is an SG-27 public officer or higher impleaded in the complaint, even private persons, and public officers with SG lower than 27 must be indicted and tried together with the SG-27 public officer in the Sandiganbayan. 2. “In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees in the proper courts which shall exercise exclusive jurisdiction over them.” (PD No. 1606, Sec. 4, par. 5). Office of the Special Prosecutor o The Office of the Special Prosecutor (“OSP”) is under the Office of the Ombudsman. The Office of the Ombudsman, through the OSP, prosecutes a case before the Sandiganbayan – the OSP is the fiscal or prosecutor when it comes to the Sandiganbayan. 1. The OSP’s power to conduct preliminary investigation and to prosecute is limited to criminal cases within the jurisdiction of the Sandiganbayan. However, Ombudsman may direct the Special Prosecutor to prosecute cases outside the Sandiganbayan’s jurisdiction in accordance with Section 11 (4c) of RA 6770. o Can the Special Prosecutor, after there is an order of amendment of the information from the Ombudsman, file the information with the Sandiganbayan without the approval of the Ombudsman? No, the Special Prosecutor cannot file an information without the approval of the Ombudsman for the simple reason that the power to file an information is lodged with the Ombudsman, and not with the OSP. 1. “The OSP is merely a component of the Office of the Ombudsman and may only act under the supervision and control, and upon authority of the Ombudsman.” (Lazatin vs. Desierto, 2009). 2. “The power to prosecute carries with it the power to authorize the filing of informations, which power had not been delegated to the OSP.” (Perez vs. Sandiganbayan, 2006).. jjsummer&rain#foursisons©2015-0139.

(6) o What is a Hold-Departure Order (“HDO”)? An HDO can only be issued by an RTC in accordance with SC Circular No. 39-97 which provides that: “Hold-Departure Orders shall be issued only in criminal cases within the exclusive jurisdiction of the Regional Trial Courts.” When there is an HDO, you cannot depart from the PH. However, you can still file a “motion to travel” – which if granted, you will be allowed to do so. 1. “Circular No. 39-97 limits the authority to issue hold-departure orders to criminal cases within the jurisdiction of second level courts. Paragraph No. 1 of the said circular specifically provides that hold-departure orders shall be issued only in criminal cases within the exclusive jurisdiction of the regional trial courts. Clearly then, criminal cases within the exclusive jurisdiction of first level courts do not fall within the ambit of the circular, and it was an error on the part of respondent judge to have issued one in the instant case.” (Mondejar vs. Buban, 2001) o Can an Executive Judge of the RTC issue an HDO in connection with a case pending in the MTC? No, an Executive Judge of the RTC cannot issue an HDO in connection with a case pending in the MTC, because the case falls under the jurisdiction of the MTC. o Can an Executive Judge of the RTC issue an HDO in connection with a case pending in another RTC Branch? No, an Executive Judge of the RTC cannot issue an HDO in pending in another RTC Branch. It is only the presiding judge of the court where the case is pending who can issue an HDO. o Can the Sandiganbayan issue an HDO? Yes, the Sandiganbayan can issue an HDO because once an information is filed with the Sandiganbayan, an HDO is automatically issued – this is the first order of the day; while in the RTC, an HDO is not automatic. You have to apply for it subject to the discretion of the court. o Can an HDO be lifted? Yes, an HDO can be lifted. But in the Sandiganbayan, even if an HDO can be lifted, the Sandiganbayan does not lift it. What is provided at the bottom portion of an HDO issued by the Sandiganbayan is that you can apply for a “motion to travel.” 1. In the Sandiganbayan, as long as your case is pending, you have an HDO. Every time you want to travel, you must first file a “motion to travel,” and you post a bond. 2. In the RTC, you can also apply for a “motion to travel,” but the HDO can be lifted if the court sees no reason that an HDO should remain. o What cases are under the jurisdiction of the Ombudsman? How about of the Department of Justice (“DOJ”)? 1. The Ombudsman has primary jurisdiction over cases cognizable by the Sandiganbayan, and has authority to take-over such case at any stage from any investigative agency; while the DOJ has general jurisdiction to conduct preliminary investigation of cases involving violations of the Revised Penal Code. 2. “Congress itself acknowledged the significant role played by the Office of Ombudsman when it enacted Republic Act No. 6770. Section 15 (1) of said law gives the Ombudsman primary jurisdiction over cases cognizable by the Sandiganbayan and authorizes him to take over, at any stage, from any investigatory agency, the investigation of such cases. This power to take over a case at any time is not given to other investigative bodies. All this means that the power of the Ombudsman to investigate cases cognizable by the Sandiganbayan is not co-equal with other investigative bodies, such as the DOJ. The Ombudsman can delegate the power but the delegate cannot claim equal power.” (DOJ vs. Liwag, 2005).. jjsummer&rain#foursisons©2015-0140.

(7) 3. The court further held: “Clearly, therefore, while the DOJ has general jurisdiction to conduct preliminary investigation of cases involving violations of the Revised Penal Code, this general jurisdiction cannot diminish the plenary power and primary jurisdiction of the Ombudsman to investigate complaints specifically directed against public officers and employees. The Office of the Ombudsman is a constitutional creation. In contrast, the DOJ is an extension of the executive department, bereft of the constitutional independence granted to the Ombudsman.” (Id.). jjsummer&rain#foursisons©2015-0141.

(8) RULE 110: Prosecution of Offenses o Sufficiency of complaint or information. — “A complaint or information6 is sufficient if: 1. It states the name of the accused;7 2. The designation of the offense given by the statute;8 3. The acts or omissions complained of as constituting the offense;9 4. The place where the offense was committed.10 5. The approximate date of the commission of the offense;11 and 6. The name of the offended party.12 When an offense is committed by more than one person, all of them shall be included in the complaint or information.” (Rule 110, Sec. 6) o Can an information contain more than one (1) offense? No, as a general rule, an information cannot contain more than one (1) offense. One information for every offense committed. Every information will have to be proven in court. 1. Rule 110, Sec. 13: “A complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses.” 2. Rule 120, Sec. 3: “When two or more offenses are charged in a single complaint or information but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense.” o What is your remedy if the information contains more than one (1) offense? Your remedy is to file a “motion to quash” under Rule 117. One of the grounds for a motion to quash Rule 110, Sec. 4. “An information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court.” 6. 7 Rule 110, Sec. 7. “The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known. If his name cannot be ascertained, he must be described under a fictitious name [“John Doe” for male, “Jane Doe” for female] with a statement that his true name is unknown.. If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court, such true name shall be inserted in the complaint or information and record.” (Annotation supplied). Rule 110, Sec. 8. “The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it.” 8. 9 Rule 110, Sec. 9. “The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment.”. Rule 110, Sec. 10. “The complaint or information is sufficient if it can be understood from its allegations that the offense was committed or some of its essential ingredients occurred at some place within the jurisdiction of the court, unless the particular place where it was committed constitutes an essential element of the offense charged or is necessary for its identification.” 10. Rule 110, Sec. 11. “It is not necessary to state in the complaint or information the precise date the offense was committed except when it is a material ingredient of the offense. The offense may be alleged to have been committed on a date as near as possible to the actual date of its commission.”. 11. Rule 110, Sec. 12. “The complaint or information must state the name and surname of the person against whom or against whose property the offense was committed, or any appellation or nickname by which such person has been or is known. If there is no better way of identifying him, he must be described under a fictitious name. 12. (a) In offenses against property, if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged. (b) If the true name of the person against whom or against whose property the offense was committed is thereafter disclosed or ascertained, the court must cause such true name to be inserted in the complaint or information and the record. (c) If the offended party is a juridical person, it is sufficient to state its name, or any name or designation by which it is known or by which it may be identified, without need of averring that it is a juridical person or that it is organized in accordance with law.”. jjsummer&rain#foursisons©2015-0142.

(9) is that the information contains more than one (1) offense, unless the offense charged is a complex crime, i.e. a single punishment for various offenses is prescribed by law. o Can the information be amended? What is the reference point? Yes, an information can be amended under Rule 110, Sec. 14. The reference point is the “plea.” 1. Before plea, a complaint or information can be amended, both “in form” and “in substance,” without leave of court. a. Downgrading of the nature of the offense can only be made before plea upon motion, with leave of court, and with notice to the offended party. b. Exclusion or removal of any accused from the complaint or information must also be made before plea, upon motion, with leave of court, and with notice to the offended party. 2. After plea, a complaint or information can only be amended, with leave of court, “in form” for as long as such amendment will not prejudice the rights of the accused. a. If the nature of the defense of the accused will vary even if the amendment is a matter of form; or if by reason of the amendment, the offense was made graver, then it will prejudice the rights of the accused. o Substitution of Information (Rule 110, Sec. 14, par. 3): “If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Section 19, Rule 119,13 provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial.” 1. This is not amendment. This is a situation where an information that has already been filed will be replaced by a new information if the prosecution is convinced that they will be unable to prove the previously filed information for as long as the accused will not be placed in double jeopardy.. Rule 119, Sec. 19. When mistake has been made in charging the proper offense. — “When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information.” 13. jjsummer&rain#foursisons©2015-0143.

(10) RULE 111: Prosecution of Civil Action o Once a criminal action is instituted, the civil aspect arising from the offense charged is likewise instituted, unless the offended party waives the civil action, i.e. unilateral relinquishment of the civil aspect; or reserves the right to institute it separately, but you have to reserve at any time before the prosecution commences its presentation of evidence taking into consideration the circumstances of the case; or institutes the civil action prior to the criminal action. o Can the reserved right to institute the civil aspect of the crime be proceeded by the court side-by-side with the criminal aspect? No, the civil case must wait after the criminal case is terminated, i.e. fully completed. o Can you reserve the right to institute the civil aspect in a BP22 case? No, you cannot reserve the right to institute the civil aspect in a BP22 case.14 o Can you file the civil aspect in a BP22 case ahead of the criminal case? Yes, but the very moment that the criminal case is filed, the civil case is suspended (with an option to consolidate) in whatever stage – the law has preference for criminal cases over civil cases. 1. Consolidation of the criminal aspect and the civil aspect of the same delict only happens when the civil action is instituted prior to the criminal case. You do not reserve the right to institute the civil action, and then eventually ask for its consolidation with the criminal case. 2. The evidence so far presented in the civil case can be reproduced in the criminal case subject to cross-examination. o What is a prejudicial question? A prejudicial question is a question that is determinative of the guilt or innocence of the accused. The issue which is determinative of the guilt or innocence of the accused must be resolved in the civil case, not in the criminal case – it is for this reason that the criminal case must be suspended. The rationale for the suspension on the ground of a prejudicial question is to avoid conflicting decisions. Please take note that the civil action must have been instituted ahead of the criminal case. 1. “For a civil action to be considered prejudicial to a criminal case as to cause the suspension of the criminal proceedings until the final resolution of the civil, the following requisites must be present: (1) the civil case involves facts intimately related to those upon which the criminal prosecution would be based; (2) in the resolution of the issue or issues raised in the civil action, the guilt or innocence of the accused would necessarily be determined; and (3) jurisdiction to try said question must be lodged in another tribunal.” (Reyes vs. Rossi, 2013) 2. “It comes into play generally in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case.” (Id.). Rule 111, Sec. 1 (b), 1st par. “The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed.” 14. jjsummer&rain#foursisons©2015-0144.

(11) o Can an action for rescission of sale be a prejudicial question? No, rescission of contract is not a prejudicial question. The mere issuance of a worthless check was already the offense in itself. 1. “The rescission of a contract of sale is not a prejudicial question that will warrant the suspension of the criminal proceedings commenced to prosecute the buyer for violations of the Bouncing Checks Law (Batas Pambansa Blg. 22) arising from the dishonor of the checks the buyer issued in connection with the sale.” (Id.) 2. “The issue in the criminal actions upon the violations of Batas Pambansa Blg. 22 is, therefore, whether or not Reyes issued the dishonored checks knowing them to be without funds upon presentment. On the other hand, the issue in the civil action for rescission is whether or not the breach in the fulfilment of Advanced Foundation’s obligation warranted the rescission of the conditional sale. If, after trial on the merits in the civil action, Advanced Foundation would be found to have committed material breach as to warrant the rescission of the contract, such result would not necessarily mean that Reyes would be absolved of the criminal responsibility for issuing the dishonored checks because, as the aforementioned elements show, he already committed the violations upon the dishonor of the checks that he had issued at a time when the conditional sale was still fully binding upon the parties.” (Id.) 3. “The pendency of the civil case does not bar the continuation of the proceedings in the preliminary investigation on the ground that it poses a prejudicial question. Considering that the contracts are deemed to be valid until rescinded, the consideration and obligatory effect thereof are also deemed to have been validly made, thus demandable. Consequently, there was no failure of consideration at the time when the subject checks were dishonored.” (Id.) o Does the daily interest rate of 5% of the subject checks, being contra bonos mores and hence null and void, constitutes a prejudicial question in a BP22 case? No, the interest rate does not pose a prejudicial question. 1. “Whether or not the interest rate imposed by petitioners is eventually declared void for being contra bonos mores will not affect the outcome of the B.P. Blg. 22 cases because what will ultimately be penalized is the mere issuance of bouncing checks. In fact, the primordial question posed before the court hearing the B.P. Blg. 22 cases is whether the law has been breached, that is, if a bouncing check has been issued.” (Sps. Jose vs. Sps. Suarez, 2008). o Where do you a file a motion to suspend proceedings on the ground of prejudicial question? You can file the motion to suspend proceedings before the Office of the Prosecutor conducting preliminary investigation; or in court where the criminal case is pending at any time before the prosecution rests its case.15. Rule 111, Sec. 6. Suspension by reason of prejudicial question. — “A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. 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.”. 15. jjsummer&rain#foursisons©2015-0145.

(12) RULE 112: Preliminary Investigation o What is a preliminary investigation? A preliminary investigation is a procedure by which the prosecutor conducts an investigation to ascertain whether there is probable cause to believe that a crime has been committed. All that the law requires is probability, hence the quantum of “proof beyond reasonable doubt” does not yet apply. 1. What criminal cases would require preliminary investigation? Crimes or offenses where the penalty of imprisonment is at least four (4) years, two (2) months, and (1) day, regardless of the amount of fine, require preliminary investigation. Cases where the penalty is less than the abovementioned period of imprisonment do not need to undergo preliminary investigation. 2. The Office of the Prosecutor is a very powerful office, because without them filing the information, there is no criminal case. If you become a lawyer, and your client is the respondent, the best way is to end the case at the level of the prosecutor. Do not dare go to trial if you can end the case at the level of the prosecutor – because once the case is filed in court, “sakit na ng ulo yan,” e.g. warrant of arrest, bail bond, HDO, etc. o Can the DOJ conduct preliminary investigation and thereafter file an information? Yes, the DOJ prosecutors can be directed by the Secretary of Justice to conduct preliminary investigation and file an information. 1. How about the rule that “venue is jurisdictional” in criminal cases? The DOJ’s power is national in scope, so any crime committed within the PH can be taken cognizance of, especially the controversial cases. o Can an MTC or MeTC Judge conduct preliminary investigation? No, an MTC or MeTC judge can no longer conduct preliminary investigation by virtue of AM No. 05-8-26SC which amended Rules 112 and 114 of the Revised Rules on Criminal Procedure by removing the conduct of preliminary investigation from judges of the first level courts. o Where will you file an information for a crime, which requires preliminary investigation, committed in a chartered city? How about those cases which do not require preliminary investigation? How about cases subject of summary procedure? 1. All cases committed in a chartered city, whether or not16 requiring preliminary investigation, or subject to summary procedure, i.e. a crime where the penalty does not exceed six (6) months, must be filed with the Office of the City Prosecutor. Under the second sentence of Sec. 1 (b) of Rule 110, an information for crimes or offenses committed in Manila and in other chartered cities, shall be filed with the Office of the Prosecutor, unless otherwise provided in the cities’ charters. o Where will you file an information for a crime, which requires preliminary investigation, committed outside of a chartered city? How about those cases which do not require preliminary investigation? How about cases subject of summary procedure? 1. In cases requiring preliminary investigation, the information must be filed with the Office of the Prosecutor.. Under the Local Government Code, crimes or offenses the penalty of which does not exceed one (1) year imprisonment require prior barangay conciliation. 16. jjsummer&rain#foursisons©2015-0146.

(13) 2. In cases not requiring preliminary investigation, and in those cases subject to summary procedure, you have two (2) options, i.e. you can file it with the Office of the Prosecutor, or you can directly file it with the MTC (direct filing).17 o Do all cases falling within the jurisdiction of the RTC require preliminary investigation? Yes, all cases falling within the jurisdiction of the RTC require preliminary investigation before it is filed with the court. 1. Since the jurisdiction of the RTC is over criminal cases the penalty of which exceed imprisonment of six (6) years, it is automatic that all criminal cases cognizable by the RTC require preliminary investigation – it being required for cases punishable by imprisonment of at least four (4) years, two (2) months, and one (1) day. o Do all cases falling within the jurisdiction of the MTC require preliminary investigation? No, not all cases falling within the jurisdiction of the MTC require preliminary investigation before it is filed with the court. 1. Since preliminary investigation is required only for cases punishable by imprisonment of at least four (4) years, two (2) months, and one (1) day, and some cases falling under the jurisdiction of the MTC are not punishable by the aforementioned period, then not all cases falling within the jurisdiction of the MTC require preliminary investigation. Duties of the Prosecutor o It is the public prosecutor’s duties to conduct preliminary investigation, under Rule 112, Sec. 3; to prosecute, under Rule 110, Sec. 5; and to conduct inquest, under Rule 112, Sec. 6. Duty to Conduct Preliminary Investigation o Let us say that you are a lawyer, and a client comes to you to ask for help on filing a criminal case for robbery. Upon seeing the merits of the case, you then prepare a complaint-affidavit duly subscribed and sworn to by the complainant before any public prosecutor or government official authorized to administer oath. Only in the absence or unavailability of the aforementioned persons can you appear before a notary public. o You now have a complaint-affidavit duly sworn to by the complainant – which will be filed with the Office of the Prosecutor, accompanied by payment for filing fees. The Office of the Prosecutor will assess you a minimum fee for the processing of your complaint. The case will then be raffled. 1. For purposes of criminal cases, actual damages are not assessed filing fees, except a complaint for violation of BP 22 – because for BP 22, actual damages, which is the value of the check, is assessed filing fees. o Upon raffling of the case, it gets to be assigned to, let us say, an Assistant City Prosecutor who then issues a subpoena together with the complaint-affidavit. 1. Is the proper service of the subpoena and the complaint-affidavit necessary for the Office of the Prosecutor to acquire jurisdiction over the person of the respondent? No, proper service of the subpoena is not necessary to acquire jurisdiction over the respondent. “If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, the. Why the direct filing with the MTC? Jurisdiction of the MTC is over cases not exceeding imprisonment of six (6) years; and since the case does not require preliminary investigation, i.e. its period of imprisonment is less than four (4) years, two (2) months, and one (1) day, it is the MTC which has jurisdiction over the case. 17. jjsummer&rain#foursisons©2015-0147.

(14) investigating officer shall resolve the complaint based on the evidence presented by the complainant.” [Rule 112, Sec. 3 (d)]. 2. Preliminary investigation is only a statutory right. Even without a preliminary investigation, the case will proceed – this is what you will wish for if you are the complainant. It is a wrong advice for you to tell your client, “magtago ka muna, huwag mong sagutin,” because the proper service of subpoena is not necessary. With or without a counter-affidavit, the Assistant Prosecutor can come up with a resolution. “Wag mong pagtaguan yan. Pinakamagaling, sumagot ka.” o The respondent within ten (10) days from receipt of the subpoena with the complaintaffidavit shall submit his sworn counter-affidavit and that of his witnesses. The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit. 1. The minimum requirement of law to say that there is preliminary investigation is that a subpoena and complaint-affidavit have been served and the respondent is given ten (10) days to file a counter-affidavit. However, in practice and depending on the leeway given by the prosecutor, the complainant may file a reply-affidavit, while the respondent may file a rejoinder-affidavit, and so forth, and so on. 2. When you talk of “no preliminary investigation” being conducted, the process that is followed is only up to Sec. 3 (a) of Rule 112.18 The subpoena and the complaint-affidavit will not be issued by the Assistant Prosecutor. Forget about the counter-affidavit. The Assistant Prosecutor prepares a resolution and makes his recommendation which will then be elevated to the City or Provincial Prosecutor. o After a counter-affidavit has been filed, the Assistant Prosecutor can now prepare a resolution and make his recommendation which will then be elevated to the City or Provincial Prosecutor. 1. If his recommendation is to file the complaint in court, he prepares an information. 2. If his recommendation is to dismiss the complaint, no information is prepared. o Within five (5) days from the Assistant Prosecutor’s resolution, he shall forward the record of the case to the City or Provincial Prosecutor or Chief State Prosecutor who shall then act on the resolution within ten (10) days from receipt thereof and shall immediately inform the parties of such action. 1. If the City or Provincial Prosecutor agrees with the recommendation to file the complaint in court, he approves the resolution, and signs the information – the resolution is served upon the parties and the information is filed in court. 2. If the City or Provincial Prosecutor approves the recommendation of dismissal, the resolution will be released to the parties. 3. If the City or Provincial Prosecutor does not agree to the recommendation of dismissal of the Assistant Prosecutor, he can on his own prepare an information and file the same in court, or he can require another Assistant Prosecutor to prepare an. 18. Rule 112, Sec. 3. Procedure. — “The preliminary investigation shall be conducted in the following manner: (a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to administer oath, or in their absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits.”. jjsummer&rain#foursisons©2015-0148.

(15) information and file the same in court without conducting another preliminary investigation. o Can an Assistant Prosecutor, upon finding of the existence or non-existence of probable cause, file or dismiss the case? No, he cannot file nor dismiss the case on his own. An Assistant Prosecutor can only act if his recommendation is approved by the City or Provincial Prosecutor. An Assistant Prosecutor’s recommendation has no value if not approved by the City or Provincial Prosecutor. There is no exception to this rule. o Where do you go if you do not agree with the finding of the City or Provincial Prosecutor? An aggrieved party may go to the Department of Justice (“DOJ”) under DOJ Circular No. 70, Sec. 4.19 1. The petition for review must be filed within a period of fifteen (15) days from receipt of the resolution or of the denial of the motion for reconsideration if one has been filed within fifteen (15) days from receipt of the assailed resolution. 2. “If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the Ombudsman.” [Rule 112, Sec. 4, par. (5)]. 3. Only decisions or resolutions that went through preliminary investigation or reinvestigation can be reviewed by the DOJ. If the case was not subjected to preliminary investigation, you cannot elevate it to the DOJ, e.g. a BP 22 case is subject to summary procedure - it is not subject to preliminary investigation, hence you cannot elevate it to the DOJ for review. o Does the record of preliminary investigation form part of the record of the case? No, the record of the preliminary investigation does not form part of the record of the case. Only the affidavits and the counter-affidavits, together with the information, will form part of the records elevated to the court.20 Duty to Prosecute o As a general rule, all criminal actions shall be prosecuted under the “control and direction of the public prosecutor.” No proceedings in trial shall proceed without the presence of the public prosecutor. 1. If the schedule of the public prosecutor does not permit, however, or in case there are no public prosecutors, a private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecution Office to prosecute the case, subject to the approval of the court.. DOJ Circular No. 70, Sec. 4: “An aggrieved party may appeal by filing a verified petition for review with the Office of the Secretary, Department of Justice, and by furnishing copies thereof to the adverse party and the Prosecution Office issuing the appealed resolution.” 19. Rule 112, Sec. 7 (b). Record of preliminary investigation. —“The record of the preliminary investigation conducted by a prosecutor or other officers as may be authorized by law shall not form part of the record of the case. However, the court, on its own initiative or on motion of any party, may order the production of the record or any of its part when necessary in the resolution of the case or any incident therein, or when it is to be introduced as an evidence in the case by the requesting party.” 20. jjsummer&rain#foursisons©2015-0149.

(16) 2. Once so authorized, the private prosecutor shall continue to prosecute the case until the termination of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn. o Should the presentation of evidence by the defense be declared null and void in the absence of the public prosecutor despite the fact that the public prosecutor has already completed the presentation of evidence of the prosecution? Yes, the presentation of the evidence of the defense is null and void it being conducted in the absence of the public prosecutor. 1. Even though the public prosecutor has completed the presentation of the evidence of the prosecution, it is he who should raise objections to the presentation of the evidence of the defense, i.e. whether the evidence presented is admissible or not. Hence, his presence is indispensable. Any proceedings conducted in the absence of the public prosecutor is null and void. 2. “Respondents act of allowing the presentation of the defense witnesses in the absence of complainant public prosecutor or a private prosecutor designated for the purpose is thus a clear transgression of the Rules which could not be rectified by subsequently giving the prosecution a chance to cross-examine the witnesses. Respondents’ intention to uphold the right of the accused to a speedy disposition of the case, no matter how noble it may be, cannot justify a breach of the Rules. If the accused is entitled to due process, so is the State.” (State Prosecutor vs. Judge Ayco, 2005). o Can a minor institute an action by himself? Yes, a minor, by himself, can institute an action involving seduction, abduction and acts of lasciviousness. “The offended party, even if a minor, has the right to initiate the prosecution of the offenses of seduction, abduction and acts of lasciviousness, independently of her parents, grandparents, or guardian, unless she is incompetent or incapable of doing so…” [Rule 110, Sec. 5, par. (4)]. 1. “Where the offended party, who is a minor, fails to file the complaint, her parents, grandparents, or guardian may file the same. The right to file the action granted to parents, grandparents, or guardian shall be exclusive of all other persons and shall be exercised successively in the order herein provided…” (Id.) o In the crimes of adultery and concubinage,21 the rule is you always have to implead not only the offending spouse, but also the paramour, unless of course, the offenders have been pardoned by the offended party, or the offended party consented to the crime. 1. The requirement that both the offending spouse and the paramour be impleaded will not apply if one of the offenders has died, or that the paramour is not aware that there is in fact a pre-existing marriage. o In the crime of defamation22 in connection with CASAA,23 only the offended party can institute the action.. Rule 110, Sec. 5, par. (2). “The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both are alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders.” 21. Rule 110, Sec. 5, par. (5). “No criminal action for defamation which consists in the imputation of any of the offenses mentioned above shall be brought except at the instance of and upon complaint filed by the offended party.” 22. College of Arts and Sciences Alumni Association Food Center, UP Diliman, Q.C. . “CASAA” stands for the private crimes of: “Concubinage, Adultery, Seduction, Abduction and, Acts of Lasciviousness.” 23. jjsummer&rain#foursisons©2015-0150.

(17) Duty to Conduct Inquest o “A preliminary investigation is required before the filing of a complaint or information for an offense where the penalty prescribed by law is at least four years, two months and one day without regard to fine. As an exception, the rules provide that there is no need for a preliminary investigation in cases of a lawful arrest without a warrant involving such type of offense, so long as an inquest, where available, has been conducted.” (Leviste vs. Alameda, 2010). o “Inquest is defined as an informal and summary investigation conducted by a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose of determining whether said persons should remain under custody and correspondingly be charged in court.” (Id.) o An inquest only applies when a person is arrested without a warrant. It is done not to determine probable cause. The purpose of an inquest is to determine if the suspect (not yet an accused), i.e. the person arrested, should be detained, if the evidence against him is strong, or should be released for further preliminary investigation.. jjsummer&rain#foursisons©2015-0151.

(18) RULE 113: Arrest o “Arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. [It] is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest.” (Rule 113, Secs. 1 and 2) o Can a warrant of arrest be applied for in anticipation of a commission of a crime? No, a warrant of arrest cannot be applied for in anticipation of a commission of a crime. But a search warrant can be applied for if there is probable cause for its issuance. o Arrest with Warrant: Let us say that you were arrested by the police armed with a warrant of arrest – which means that there is already an information filed in court, which further means that there is already a determination of probable cause. 1. You will then be brought to the nearest police station where you will be detained - you will not be placed on inquest since an inquest only applies to warrantless arrests. Your lawyer can file an application for bail in the court where your case is pending. o If an information which requires preliminary investigation is filed in court, the court has the following options: 1. The court shall issue a warrant of arrest if the judge, upon personal evaluation of the resolution of the prosecutor and its supporting evidence, finds probable cause to place the accused under custody; or 2. The court may immediately dismiss the case if the evidence on record clearly fails to establish probable cause to hold the accused for trial (judicial determination of probable cause); or 3. The court may, in case of doubt on the existence of probable cause, require a hearing for presentation of further evidence to determine if there exists a probable cause to hold the accused for trial (judicial determination of probable cause). o If an information which does not require preliminary investigation is filed in court, the court has the following options: 1. The court shall issue a warrant of arrest if the judge, upon personal evaluation of the resolution of the prosecutor and its supporting evidence, finds probable cause to place the accused under custody; or 2. The court may issue summons, instead of a warrant of arrest, if the judge is satisfied that there is no probable cause to place the accused under custody; or 3. The court may immediately dismiss the case if the evidence on record clearly fails to establish probable cause to hold the accused for trial (judicial determination of probable cause); or 4. The court may, in case of doubt on the existence of probable cause, require a hearing for presentation of further evidence to determine if there exists a probable cause to hold the accused for trial (judicial determination of probable cause).. jjsummer&rain#foursisons©2015-0152.

(19) o If an information which falls under summary procedure is filed in court, the court has the following options: 1. The court shall issue an order, not a warrant of arrest nor summons, requiring the accused to file his counter-affidavit within a period of ten (10) days. The only instance where a warrant of arrest will be issued is when the accused fails to appear whenever required by the court; or 2. The court may dismiss the case outright for being patently without basis or merit and order the release of the accused if in custody. o Warrantless Arrest:24 Let us say that you were caught by the police, without a warrant of arrest, in a raid conducted in a bar. You will then be brought to the nearest police station where your arrest will be booked. The arresting officer then will prepare a sworn arrest report (narrative report). 1. The arresting officer will then bring you (suspect), together with the sworn arrest report, to an inquest prosecutor who will, in your presence, examine the records. 2. The inquest prosecutor, upon examination of the records, can order you to be detained if the evidence against you is strong, or released for further preliminary investigation if the evidence is not strong.25 o Can you file a motion for reconsideration of the inquest prosecutor’s order of detention? How about a petition for review? No, you cannot file a motion for reconsideration or a petition for review of the inquest prosecutor’s order of detention. 26 1. In cases subject of inquest, you should first avail of a preliminary investigation or reinvestigation, if any, before elevating the matter to the DOJ Secretary because only decisions or resolutions of the City or Provincial Prosecutor that went through preliminary investigation or re-investigation can be reviewed by the DOJ Secretary. o If the inquest prosecutor orders your detention, he will prepare an information to be approved by the City or Provincial Prosecutor – if approved, it will be filed in court. You now have a number of options: 1. Before the filing of complaint or information in court, you can immediately apply for bail in accordance with Rule 114, Sec. 17 (c)27 since there is already a deprivation of 24. Instances of Lawful Warrantless Arrest: 1. 2. 3. 4. 5.. Rule 113, Sec. 5 (a): “When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;” Rule 113, Sec. 5 (b): “When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it;” Rule 113, Sec. 5 (c): “When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.” Rule 113, Sec. 13: “If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him [together with the rescuer] without a warrant at any time and in any place within the Philippines.” Rule 114, Sec. 23, par. (2): “An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending.”. The release mentioned herein does not mean dismissal of the case – you are only released for further preliminary investigation, which means that you have to go through the procedure for regular preliminary investigation outlined in Rule 112, Sec. 3. The sworn arrest report will be equivalent to a complaint-affidavit filed by the arresting officer. 25. “The accelerated process of inquest, owing to its summary nature and the attendant risk of running against Article 125, ends with either the prompt filing of an information in court or the immediate release of the arrested person. Notably, the rules on inquest do not provide for a motion for reconsideration. Contrary to petitioner’s position that private complainant should have appealed to the DOJ Secretary, such remedy is not immediately available in cases subject of inquest.” (Leviste vs. Alameda, 2010). 26. jjsummer&rain#foursisons©2015-0153.

(20) liberty; or you can avail of preliminary investigation, provided you duly sign a waiver of any objection against delay in his delivery to the proper judicial authorities under Article 125 of the Revised Penal Code – this is for the protection of the police officers because you will be detained without a charge. 2. After the complaint or information is filed in court, you can apply for bail; or within five (5) days from the time you learn of its filing, you can ask for a preliminary investigation by filing a “motion for re-investigation.” For all intents and purposes, you are simply asking for preliminary investigation. What you are praying for in your motion is the return of the records to the Office of the Prosecutor for preliminary investigation in accordance with Rule 112, Sec. 3. o Is the legality of a warrantless arrest jurisdictional? “A warrantless arrest is not a jurisdictional defect and any objection to it is waived when the person arrested submits to arraignment without any objection, as in this case. Accused-appellants are questioning their arrest for the first time on appeal and are, therefore, deemed to have waived their right to the constitutional protection against illegal arrests and searches.” (People vs. Aminola, 2010). 1. “An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable, but not later than the start of the trial of the case.” (Rule 114, Sec. 26).. Rule 114, Sec. 17 (c): “Any person in custody who is not yet charged in court may apply for bail with any court in the province, city or municipality where he is held.” 27. jjsummer&rain#foursisons©2015-0154.

(21) RULE 114: Bail o “Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions hereinafter specified. Bail may be given in the form of corporate surety,28 property bond,29 cash deposit,30 or recognizance.31” (Rule 114, Sec. 1) o Factors to be considered by the court in granting bail - These are some of the factors to be considered by the court to determine whether or not the bail recommended is something which is fair and reasonable: 1. Financial ability of the accused to give bail; 2. Nature and circumstances of the offense; 3. Penalty for the offense charged; 4. Character and reputation of the accused; 5. Age and health of the accused; 6. Weight of the evidence against the accused; 7. Probability of the accused appearing at the trial; 8. Forfeiture of other bail; 9. The fact that the accused was a fugitive from justice when arrested; and 10. Pendency of other cases where the accused is on bail. o Bail, matter of right: 1. All cases within the jurisdiction of the MTC, whether before or after conviction for as long as it is not yet final and executory, are bailable as a matter of right. 2. All cases within the jurisdiction of the RTC, except those punishable by death, reclusion perpetua, or life imprisonment, before conviction are bailable as a matter of right. o Bail, matter of discretion: 1. Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua, or life imprisonment, and none of the enumerated circumstances32 under Rule 114, Sec. 5, par. 3 is present, bail becomes a matter of discretion.. 28 Corporate surety or bail bond furnished by a surety (bonding) company accredited by the Supreme Court. If the recommended bail is PhP 100K, you do not post that amount – what you will pay is the premium for the service of the bonding company.. The court allows a property bond subject the requirement that the owner of the property is a resident of the PH, but it is the duty of the accused to cause the annotation of the property bond within a period of ten (10) days from issuance of the order. 29. 30. Cash bond in an amount equivalent to the amount of bail recommended.. When you talk of recognizance, there is no money involved. It is simply the character of a person who commits your appearance in court. 31. Rule 114, Sec. 5, par. 3: “If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to the accused, of the following or other similar circumstances:. 32. (a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification; (c) That he committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the pendency of the appeal.”. jjsummer&rain#foursisons©2015-0155.

(22) 2. If any of the enumerated circumstances under Rule 114, Sec. 5, par. 3 is present, bail is no longer a matter of discretion – bail shall be denied. (Leviste vs. Court of Appeals, 2010). o Non-bailable offenses:33 1. “It is a misconception that when an accused is charged with the crime of murder, he is not entitled to bail at all or that the crime of murder is non-bailable. The grant of bail to an accused charged with an offense that carries with it the penalty of reclusion perpetua xxx is discretionary on the part of the trial court. In other words, accused is still entitled to bail but no longer "as a matter of right." Instead, it is discretionary and calls for a judicial determination that the evidence of guilt is not strong in order to grant bail. The prosecution is accorded ample opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is weighed in determining whether the guilt of the accused is strong.” (San Miguel vs. Maceda, 2007). 2. “Where bail is a matter of right and prior absconding and forfeiture is not excepted from such right, bail must be allowed irrespective of such circumstance. The existence of a high degree of probability that the defendant will abscond confers upon the court no greater discretion than to increase the bond to such an amount as would reasonably tend to assure the presence of the defendant when it is wanted, such amount to be subject, of course, to the other provision that excessive bail shall not be required.” (Id.) 3. “Irrefragably, a person charged with a capital offense is not absolutely denied the opportunity to obtain provisional liberty on bail pending the judgment of his case. However, as to such person, bail is not a matter of right but is discretionary upon the court. Had the rule been otherwise, the Rules would not have provided for an application for bail by a person charged with a capital offense under Rule 114, Section 8.” (Serapio vs. Sandiganbayan, 2003). 4. Under Rule 114, Sec. 8,34 “there must be a showing that the evidence of guilt against a person charged with a capital offense is not strong for the court to grant him bail. Thus, upon an application for bail by the person charged with a capital offense, a hearing thereon must be conducted, where the prosecution must be accorded an opportunity to discharge its burden of proving that the evidence of guilt against an accused is strong. The prosecution shall be accorded the opportunity to present all the evidence it may deems necessary for this purpose. When it is satisfactorily demonstrated that the evidence of guilt is strong, it is the courts duty to deny the application for bail. However, when the evidence of guilt is not strong, bail becomes a matter of right.” (Id.) o What is your remedy if you were charged with a non-bailable offense and was thereafter detained? Your remedy is to file a “petition for bail” wherein you have to convince the court that the evidence against you is not strong. If the court is convinced that the evidence against you is not strong, the court will release you on bail during the pendency of the action. o What is the nature of proceedings in a “petition for bail?” The proceedings are summary in nature, “meaning such brief and speedy method of receiving and considering the Rule 114, Sec. 7: “No person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecution.” 33. Rule 114, Sec. 8: “At the hearing of an application for bail filed by a person who is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail hearing shall be considered automatically reproduced at the trial but, upon motion of either party, the court may recall any witness for additional examination unless the latter is dead, outside the Philippines, or otherwise unable to testify.” 34. jjsummer&rain#foursisons©2015-0156.

(23) evidence of guilt as is practicable and consistent with the purpose of the hearing which is merely to determine the weight of evidence for purposes of bail.” (Serapio vs. Sandiganbayan, 2003). 1. “The court does not try the merits or enter into any inquiry as to the weight that ought to be given to the evidence against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be offered therein. It may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross-examination of witnesses, and reducing to a reasonable minimum the amount of corroboration particularly on details that are not essential to the purpose of the hearing.” (Id.) o Can there be joint bail hearings in a “petition for bail?” Yes, there can be joint bail hearings. “Joint bail hearings will save the court from having to hear the same witnesses and the parties from presenting the same evidence where it would allow separate bail hearings for the accused who are charged as co-conspirators in the crime.” (Id.) 1. “The matter of whether or not to conduct a joint hearing of two or more petitions for bail filed by two different accused or to conduct a hearing of said petition jointly with the trial against another accused is addressed to the sound discretion of the trial court.” (Id.) 2. “However, in the cases at bar, the joinder of the hearings of the petition for bail of petitioner with the trial of the case against former President Joseph E. Estrada is an entirely different matter. For, with the participation of the former president in the hearing of petitioner’s petition for bail, the proceeding assumes a completely different dimension. The proceedings will no longer be summary. As against former President Joseph E. Estrada, the proceedings will be a full-blown trial which is antithetical to the nature of a bail hearing.” (Id.) o Can a person detained for a non-bailable offense be released upon issuance of a custody receipt? No, a person detained cannot be released upon issuance of a mere custody receipt. Rule 114, Sec. 3 is explicit in stating that: “No person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail.” 1. “It is undisputed that accused were charged with a non-bailable offense; that they were released from detention on the basis merely of the Custody Receipt signed by the respondent, which was a clear violation of Section 3, Rule 114 of the Rules of Court which explicitly provides that no person under detention by legal process shall be released or transferred except upon order of the court or when he is admitted to bail. As a court employee, respondent is cognizant of this requirement as in fact he admitted in his Comment that a motion for temporary release should have been filed in court.” (Orbe vs. Digandang, 2009) o Can the court grant a petition for bail without giving the prosecution the opportunity to be heard or comment? No, the court cannot grant a petition for bail without giving the prosecution an opportunity to discharge its burden of proving that the evidence of guilt against the accused is strong. If the court grants the petition for bail without allowing the prosecution to present its side, the proceedings will be null and void, and any order will also be null and void. 1. “A hearing is indispensable for the court to ask searching questions from which it may infer the strength of the evidence of guilt, or the lack of it, against the accused, in cases where the offense is punishable by death, reclusion perpetua or life imprisonment.” (Domingo vs. Executive Judge, 2003).. jjsummer&rain#foursisons©2015-0157.

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