Criminal Procedure - Law 7100

Question 1

What is CRIMINAL JURISDICTION?

Answer 1

CRIMINAL JURISDICTION is the POWER OF THE STATE to TRY and PUNISH a PERSON for a VIOLATION of its PENAL LAWS.

Question 2

What is CRIMINAL PROCEDURE?

Answer 2

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.

Question 3

What are the TWO SYSTEMS of CRIMINAL PROCEDURE?

Answer 3

1. INQUISITORIAL SYSTEM

2. ACCUSATORIAL SYSTEM

Question 4

Who are the THREE PARTIES in a CRIMINAL CASE?

Answer 4

1. STATE, through the prosecutor
2. ACCUSED
3. PRIVATE VICTIM

Question 5

What is TERRITORIAL JURISDICTION?

Answer 5

TERRITORIAL JURISDICTION refers to the LIMITS OF THE GEOGRAPHICAL BOUNDARIES of a PLACE WITHIN which a COURT HAS JURISDICTION to ACT JUDICIALLY and OUTSIDE of which its JUDICIAL ACTS are NULL AND VOID.

Question 6

How is TERRITORIAL JURISDICTION in CRIMINAL CASES DETERMINED?

Answer 6

The TERRITORIAL JURISDICTION of a COURT in CRIMINAL CASES is DETERMINED by the GEOGRAPHICAL AREA over which it PRESIDES, and the fact that the CRIME WAS COMMITTED, or ANY of its ESSENTIAL INGREDIENTS TOOK PLACE, within said AREA is an ELEMENT OF JURISDICTION.

Question 7

How are CRIMINAL ACTIONS INSTITUTED?

Answer 7

A.

For OFFENSES where a PRELIMINARY INVESTIGATION is REQUIRED according to SEC. 1 of RULE 112, by FILING the COMPLAINT with the PROPER OFFICER to CONDUCT the REQUISITE PRELIMINARY INVESTIGATION.

B.

For ALL OTHER OFFENSES, by FILING the CoMPLAINT or INFORMATION DIRECTLY with the MUNICIPAL TRIAL COURTS and MUNICIPAL CIRCUIT TRIAL COURTS, or the COMPLAINT 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.

Question 8

What are the REQUISITES for the VALID EXERCISE of CRIMINAL JURISDICTION?

Answer 8

1. JURISDICTION over the SUBJECT MATTER
2. JURISDICTION over the TERRITORY
3. JURISDICTION over the PERSON OF THE ACCUSED

Question 9

How is JURISDICTION DETERMINED?

Answer 9

It is DETERMINED by the ALLEGATIONS IN THE COMPLAINT or INFOMATION and NOT BY THE RESULTS OF PROOF or by the TRIAL COURT’S APPRECIATION of the EVIDENCE PRESENTED.

Question 10

What is the EFFECT of INSTITUTION of the CRIMINAL ACTION on the PRESCRIPTIVE PERIOD?

Answer 10

RULE 110

It INTERRUPTS THE RUNNING OF THE PERIOD of the PRESCRIPTION of the offense charged.

Question 11

May the OFFENDED PARTY GO DIRECTLY to court to FILE a CRIMINAL ACTION?

Answer 11

NO.

Before a COMPLAINT is filed in court, THERE SHOULD HAVE BEEN A CONFRONTATION BETWEEN THE PARTIES before the LUPON CHAIRMAN. The LUPON SECRETARY must CERTIFY that NO CONCILIATION or SETTLEMENT was REACHED, attested to by the Lupon chairman. The COMPLAINT may also be FILED if the settlement is REPUDIATED by the PARTIES.

Question 12

What is the CONCEPT of an OFFENSE or CRIME that CANNOT BE PROSECUTED DE OFFICIO?

Answer 12

These are the crimes or offenses which CANNOT BE PROSECUTED EXCEPT ON COMPLAINT FILED BY THE OFFENDED PARTY or if the OFFENDED PARTY IS A MINOR, by the PARENTS, GRANDPARENTS or the GUARDIAN.

ALL OTHER CRIMES CAN BE PROSECUTED DE OFFICIO.

Question 13

What are PRIVATE CRIMES?

Answer 13

(CASADA)

1. CONCUBINAGE
2. ADULTERY
3. SEDUCTION
4. ABDUCTION
5. DEFAMATION
6. ACTS OF LASCIVIOUSNESS

Question 14

Are there INSTANCES where the STATE may INITIATE the ACTION for SEDUCTION, ABDUCTION, or ACTS OF LASCIVIUSNESS on behalf of the offended party?

Answer 14

RULE 110

1. DIES or becomes INCAPACITATED BEFORE a COMPLAINT is FILED
2. Has NO KNOWN parents, grandparents, or guardian

Question 15

Who may FILE a COMPLAINT on cases of unlawful acts in RA 7610 (Special Protection of Children Against Child Abuse, Exploitation, and Discrimination)?

Answer 15

SEC. 27, RA 7160

1. OFFENDED PARTY
2. PARENTS or GUARDIANS
3. ASCENDANT or COLLATERAL RELATIVE within the THIRD DEGREE of CONSANGUINITY
4. OFFICER, Social Worker, or REPRESENTATIVE of a licensed child-caring institution
5. OFFICER or Social Worker of the Department of Social Welfare and Development
6. BARANGAY CHAIRMAN

OR at least THREE (3) CONCERNED, RESPONSIBLE CITIZENS where the VIOLATION OCCURRED.

Question 16

Distinguish PARDON from CONSENT.

Answer 16

In PARDON, in order to ABSOLVE the accused from liability, it must be EXTENDED TO BOTH OFFENDERS.

On the other hand, in CONSENT, in order to ABSOLVE the accused from liability, it is SUFFICIENT even if GRANTED ONLY TO THE OFFENDING SPOUSE.

Question 17

What must be STATED in the COMPLAINT or INFORMATION?

Answer 17

SEC. 6, RULE 110

A COMPLAINT or INFORMATION is SUFFICIENT if it:

1. STATES THE NAME OF THE ACCUSED;
2. DESIGNATION OF THE OFFENSE GIVEN BY THE STATUTE;
3. ACTS or OMMISSIONS COMPLAINED OF as constituting the offense;
4. NAME OF THE OFFENDED PARTY;
5. APPROXIMATE DATE OF THE COMMISSION OF THE OFFENSE; and
6. PLACE WHERE THE OFFENSE WAS COMMITTED.

When an offense is committed by MORE THAN ONE PERSON, ALL OF THEM SHALL BE INCLUDED IN THE COMPLAINT OR INFORMATION.

Question 18

What is the RULE on the DESIGNATION OF THE OFFENSE?

Answer 18

SEC. 8, RULE 110

The complaint or information shall STATE the:

1. DESIGNATION OF THE OFFENSE GIVEN BY THE STATUTE,
2. AVER THE ACTS or OMISSIONS constituting the offense,
3. 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.

Question 19

What is the RULE on the CAUSE OF ACTION AGAINST THE ACCUSED?

Answer 19

SEC. 9, RULE 110

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.

Question 20

What is the RULE on the PLACE on the COMMISSION OF THE OFFENSE relative to the FILING OF AN INFORMATION?

Answer 20

SEC. 10, RULE 110

The complaint or information is sufficient if it can be UNDERSTOOD from its ALLEGATIONS the offense was COMMITTED or SOME OF THE ESSENTIAL INGREDIENTS OCCURED at SOME PLACE WITHIN THE JURISDICTION of the court UNLESS the PARTICULAR PLACE where it was committed CONSTITUTES an ESSENTIAL ELEMENT of the OFFENSE or is NECESSARY for its IDENTIFICATION.

Question 21

What is the RULE on the PLACE on the DATE of the OFFENSE relative to the FILING of an INFORMATION?

Answer 21

SEC. 11, RULE 110

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.

Question 22

What is the RULE on the NAME OF THE OFFENDED PARTY relative to the FILING of an INFORMATION?

Answer 22

SEC. 12, RULE 110

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.

A.
In offenses against PROPERTY, if the NAME OF THE OFFENDED PARTY is UNKNOWN, the PROPERTY MUST BE DESCRIBED WITH SUCH PARTICULARITY to properly identify the offense charged.

B.
If the TRUE NAME of the person against whom or against whose properly the offense was committed is thereafter DISCLOSED or ASCERTAINED, the court MUST CAUSE the 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 the need of averring that it is a juridical person or that it is organized in accordance with the law.

Question 23

What is the RULE on the DUPLICITY OF THE OFFENSE relative to the FILING OF THE INFORMATION?

Answer 23

SEC. 13, RULE 110

A complaint or information MUST CHARGE but ONE OFFENSE, EXCEPT when the LAW prescribes a SINGLE PUNISHMENT for VARIOUS OFFENSES.

Question 24

What is the RULE on the AMENDMENT or SUBSTITUTION of an INFORMATION relative to its FILING?

Answer 24

SEC 14, RULE 110

A complaint or information may be AMENDED, in FORM or in SUBSTANCE, WITHOUT LEAVE OF COURT, at ANY TIME BEFORE THE ACCUSED ENTERS HIS PLEA.

AFTER THE PLEA and DURING THE TRIAL, a FORMAL AMENDMENT may ONLY ONCE be made WITH LEAVE OF COURT and when it can be done WITHOUT CAUSING PREJUDICE to the RIGHTS OF THE ACCUSED.

HOWEVER, any amendment BEFORE PLEA, which DOWNGRADES the NATURE of the offense charged in or EXCLUDES any accused from the complaint or information, can be made ONLY UPON MOTION OF THE PROSECUTOR, with NOTICE to the offended party and with LEAVE OF COURT. The court shall state its reasons for resolving the motion and copies of its order shall be furnished to all parties, especially the offended party.

If it appears at ANY TIME BEFORE THE JUDGMENT that MISTAKE has ben made in CHARGING THE PROPER OFFENSE, the court shall DISMISS the original complaint or information upon the filing of NEW ONE charging the proper offense in accordance with SEC. 19, RULE 119, 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.

Question 25

Where is the PLACE of the CRIMINAL ACTION is to be INSTITUTED?

Answer 25

SEC. 15, RULE 110

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 while 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 SUCH 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 of the Philippines BUT punishable under ART. 2 of the RPC shall be cognizable by the court where the criminal action is first filed.

Question 26

What is the RULE relative to the INTERVENTION OF THE OFFENDED PARTY in a criminal action?

Answer 26

SEC. 16, RULE 110

Where the CIVIL ACTION for RECOVERY of civil liability is instituted in the criminal action pursuant to RULE 111. The OFFENDED PARTY may INTERVENE by COUNSEL in the prosecution of the offense.

Question 27

What is the FORM of a VALID complaint or information?

Answer 27

SEC. 2, RULE 110

The complaint shall be:

1. In WRITING
2. In the NAME OF THE PEOPLE OF THE PHILIPPINES
3. AGAINST ALL PERSONS responsible for the offense involved

Question 28

Is the MISTAKE IN THE NAME of the ACCUSED equivalent to a MISTAKE IN HIS IDENTITY?

Answer 28

NO.

A mistake in the name of the accused is NOT EQUIVALENT and does NOT NECESSARILY AMOUNT TO, a mistake in the identity of the accused especially when SUFFICIENT EVIDENCE is adduced to show the accused as pointed to as ONE of the perpetrators of the crime.

Question 29

Do ALLEGATIONS PREVAIL over DESIGNATION of the offense in the information?

Answer 29

ALLEGATIONS PREVAIL OVER THE DESIGNATION OF THE OFFENSE IN THE INFORMATION.

It is NOT the designation of the offense in the complaint or information that is controlling (People vs. Samillano, 56 SCRA 573); the FACTS ALLEGED therein and NOT ITS TITLE determine the nature of the crime (People vs. Magdowa, 73 Phil. 512)

Question 30

May the accused be CONVICTED of a crime MORE SERIOUS than that named in the title of the information?

Answer 30

YES.

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 vs. Court of Appeals, 265 SCRA 701).

Question 31

What is the PURPOSE of DESIGNATING the CAUSE OF ACTION?

Answer 31

1. To ENABLE the court to PRONOUNCE 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

Question 32

What is the RULE regarding NEGATIVE AVERMENTS?

Answer 32

Where the STATUTE ALLEGED to have been violated PROHIBITS GENERALLY ACTS THEREIN DEFINED and is INTENDED to APPLY to ALL PERSONS INDISCREMENATELY, but PRESCRIBES CERTAIN LIMITATION or EXCEPTIONS from its VIOLATION, the complaint or information is SUFFICIENT if it ALLEGES facts which the offender did as constituting a violation of law, WITHOUT EXPLICITLY NEGATING THE EXCEPTION is a matter of RIGHT which the accused has to PROVE.

Question 33

What is the REMEDY in the case of DUPLICITY OF OFFENSE?

Answer 33

Should there be duplicity of offense in the information UNLESS as SINGLE PUNISHMENT of VARIOUS OFFENSES is PRESCRIBED, the accused must MOVE for the QUASHAL of the same before. Otherwise, he is DEEMED TO HAVE WAIVED THE OBJECTION and may be found guilty of as many offenses as those charged and proved during the trial.

Question 34

What is the PRINCIPLE OF ABSORPTION?

Answer 34

The principle of absorption states that ACTS COMMITTED in FURTHERANCE of REBELLION though CRIMES IN THEMSELVES are deemed ABSORBED in the SINGLE CRIME OF REBELLION.

The test is whether or not the ACT WAS DONE IN FURTHERANCE OF A POLITICAL END. The political motive of the act should be conclusively demonstrated.

Question 35

When is there an AMENDMENT IN SUBSTANCE?

Answer 35

There is an amendment in substance where it COVERS MATTERS INVOLVING THE RECITAL OF FACTS constituting the offense charged and determinative of the jurisdiction of the court.

Question 36

What is the TEST in determining whether the RIGHT OF THE ACCUSED is PREJUDICED BY THE AMENDMENT?

Answer 36

The right of the accused is prejudiced by the amendment of information the defense of the accused UNDER THE COMPLAINT OR INFORMATION AS IT ORIGINALLY STOOD, WOULD NO LONGER BE AVAILABLE AFTER THE AMENDMENT IS MADE, and when in any evidence the accused might have, would be INAPPLICABLE to the complaint or information as amended.

Question 37

Can the PROSECUTOR amend the information which CHANGES THE NATURE OF THE CRIME AFTER THE ARRAIGNMENT?

Answer 37

NO.

The prosecutor CAN NO LONGER AMEND THE INFORMATION AFTER ARRAIGNMENT as it would PREJUDICE the SUBSTANTIAL RIGHTS of the accused.

Question 38

When is SUBSTITUTION PROPER?

Answer 38

If it appears 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, PROVIDED the accused SHALL NOT BE PLACED IN DOUBLE JEOPARDY.

Question 39

What are the LIMITATIONS to the RULE ON SUBSTITUTION?

Answer 39

1. NO JUDGMENT HAS YET BEEN RENDERED
2. The accused CANNOT BE CONVICTED OF THE OFFENSE CHARGE or of ANY OTHER OFFENSE NECESSARILY INCLUDED THEREIN
3. The accused would NOT BE PLACED IN DOUBLE JEOPARDY

Question 40

When is a SEPARATE CIVIL ACTION SUSPENDED?

Answer 40

SEC. 2, RULE 111

If the criminal action is filed AFTER the said CIVIL ACTION has ALREADY been INSTITUTED, the latter shall be SUSPENDED in WHATEVER STAGE it may be found BEFORE JUDGMENT ON THE MERITS.

The suspension SHALL NOT LAST UNTIL FINAL JUDGMENT IS RENDERED IN THE CRIMINAL ACTION.

Nevertheless, before judgment on the merits 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.

In case of a consolidation, the evidence already adduced in the civil action shall be deemed AUTOMATICALLY REPRODUCED in the criminal action WITHOUT PREJUDICE to the right of the prosecution to cross-examine the witnesses presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil action shall be tried and decided JOINTLY.

Question 41

When may a CIVIL ACTION PROCEED INDEPENDENTLY?

Answer 41

SEC. 3, RULE 111

In the cases provided for in ART. 32, 33, 34, and 2176 of the New Civil Code of the Philippines, the offended party may bring the independent civil action. It shall proceed independently of the criminal action and shall require only a PREPONDERANCE OF EVIDENCE.

In no case, however, may the offended party recover damages TWICE for the SAME ACT or OMISSION CHARGED in the criminal action.

Question 42

What are the RULES relative to DEATH ON CIVIL ACTIONS?

Answer 42

SEC. 4, RULE 111

1. The DEATH of the accused AFTER ARRAIGNMENT and DURING the PENDENCY of the CRIMINAL ACTION shall EXTINGUISH the CIVIL LIABILITY ARISING FROM THE DELICT.

However, the independent civil action instituted under SEC 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. The HEIRS of the accused MAY BE SUBSTITUTED for the deceased WITHOUT requiring the APPOINTMENT OF THE EXECUTOR or ADMINISTRATOR and the court may appoint a GUARDIAN AD LITEM for the minor heirs.

2.
The court shall forthwith order said legal representative or representatives to APPEAR and be SUBSTITUTED WITHIN a period of THIRTY (30) DAYS FROM NOTICE.

3. A FINAL JUDGMENT entered in favor of the offended party shall be enforced in the manner especially provided in these rules for prosecuting claims against the estate of the deceased.

4.
If the accused DIES BEFORE ARRAIGNMENT, the case shall be DISMISSED WITHOUT PREJUDICE to any CIVIL ACTION the offended party may file against the estate of the deceased.

Question 43

Is judgment in a civil action a BAR to a criminal action?

Answer 43

SEC. 5, Rule 111

A final judgment rendered in a civil action absolving the defendant from civil liability IS NOT A BAR TO A CRIMINAL ACTION against the defendant for the SAME ACT or OMISSION subject of the civil action.

Question 44

What is the RULE relative to the SUSPENSION by reason of a PREJUDICIAL QUESTION?

Answer 44

SEC. 6, RULE 111

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 the same criminal action at any time before the prosecution rests.

Question 45

What are the ELEMENTS of a PREJUDICIAL QUESTION?

Answer 45

SEC. 7, RULE 111

The ELEMENTS of a PREJUDICIAL QUESTION are:

1.
The PREVIOUSLY INSTITUTED CIVIL ACTION INSTITUTED CIVIL ACTION involves an ISSUE SIMILAR or INTIMATELY RELATED to the issue raised in the subsequent criminal action.

2.
The RESOLUTION of such issue DETERMINES whether or not the criminal action may PROCEED.

Question 46

Does the INSTITUTION of a criminal action INCLUDE the civil action as well?

Answer 46

When a criminal action is instituted, the civil action for the recovery of civil liability ARISING from the offense shall be DEEMED INSTITUTED with the criminal action.

Question 47

What civil actions are NOT DEEMED IMPLIEDLY INSTITUTED in the criminal action?

Answer 47

1. Arising from BREACH OF CONTRACT
2. INDEPENDENT CIVIL ACTION or those based in ART. 31, 32, and 33 of the New Civil Code
3. Based on ART. 2176 of the New Civil Code or QUASI - DELICT

Question 48

Should the RESERVATION to FILE a separate action be EXPRESS?

Answer 48

NO.

Jurisprudence instructs the RESERVATION MAY NOT BE NECESSARILY EXPRESS but may be IMPLIED, which may be INFERRED NOT ONLY from acts other than those of the latter.

Question 49

What is PRELIMINARY INVESTIGATION?

Answer 49

SEC. 1, RULE 112

Preliminary investigation is an INQUIRY or PROCEEDING to DETERMINE whether there is SUFFICIENT GROUND to ENGENDER a well-founded belief that a crime has been committed and the respondent is PROBABLY GUILTY thereof and should be held for trial.

Question 50

When is a PRELIMINARY INVESTIGATION REQUIRED?

Answer 50

SEC. 1, RULE 112

EXCEPT as provided in SEC, 7 of RULE 112, a preliminary investigation is REQUIRED to be CONDUCTED BEFORE the filing of a complaint or information for an offense where the penalty prescribed law is at least FOUR (4) YEARS, TWO (2) MONTHS and ONE (1) DAY without regard to the fine.

Question 51

Who are the OFFICERS AUTHORIZED to conduct preliminary investigations?

Answer 51

SEC. 2, RULE 112

1. Provincial or City PROSECUTORS AND THEIR ASSISTANTS
2. JUDGES of the MTC and MCTC
3. Nation and Regional STATE PROSECUTORS
4. OTHER OFFICERS AUTHORIZED BY LAW

Question 52

What is the PROCEDURE of CONDUCTING a preliminary investigation?

Answer 52

SEC. 3, RULE 112

1.
FILING OF THE COMPLAINT accompanied by the affidavits and supporting documents.

2.
WITHIN TEN (10) DAYS AFTER THE FILING, the investigating officer shall EITHER DISMISS or ISSUE a SUBPOENA.

3.
If a subpoena is issued, the respondent shall submit a COUNTER-AFFIDAVIT and other supporting documents WITHIN TEN 9!)) DAYS FROM RECEIPT THEREOF.

4.
CLARIFICATORY HEARING WHICH IS OPTIONAL. This should be HELD within TEN (10) DAYS FROM THE SUBMISSION of the counter-affidavits or from the expiration of the period of their submission.

5.
RESOLUTION OF THE INVESTIGATING PROSECUTOR.

Question 53

What is the DIFFERENCE between the PRELIMINARY INVESTIGATION conducted by the PROSECUTOR and one conducted by the JUDGE?

Answer 53

The prosecutor is NOT BOUND by the DESIGNATION OF THE OFFENSE in the complaint. After a preliminary investigation, he may file ANY CASE as warranted by the facts.

The judge CANNOT CHANGE the charge in the complaint BUT must make a FINDING on whether or not the crime charged is committed.

Question 54

What is the EXTENT of the AUTHORITY of the OMBUDSMAN in the conduct of PRELIMINARY INVESTIGATION?

Answer 54

As held in the case of Office of the Ombudsman vs. Breva, the power to investigate and to prosecute granted to the Ombudsman is PLENARY and UNQUALIFIED. It pertains to ANY ACT or OMISSION of ANY PUBLIC OOFER or EMPLOYEE when such act or omission appears to be ILLEGAL, UNJUST, IMPROPER, or INEFFICENT.

The law DOES NOT make a distinction between cases cognizable by the Sandiganbayan and those cognizable by the regular courts.

Question 55

What are the INSTANCES wherein the RIGHT to a preliminary investigation is DEEMED WAIVED?

Answer 55

1. EXPRESS WAIVER or by SILENCE
2. FAILURE TO INVOKE it during arraignment
3. CONSENTING TO BE ARRAIGNED AND ENTERING A PLEA OF NOT GUILTY WITHOUT INVOKING the right to preliminary investigation

Question 56

What are the INSTANCES wherein the RIGHT to a preliminary investigation is NOT DEEMED WAIVED?

Answer 56

1.
FAILURE TO APPEAR BEFORE THE PROSECUTOR DURING THE CLARIFICATORY HEARING or when summoned, when the right was invoked at the start of the proceeding.

2.
When the accused FILED AN APPLICATION FOR BAIL AND WAS ARRAIGNED over his objection and accused demanding that a preliminary investigation be conducted.

Question 57

What is the EFFECT if the accused RAISES THE ISSUE of LACK OF PRELIMINARY INVESTIGATION BEFORE ENTERING PLEA?

Answer 57

The court, INSTEAD OF DISMISSING THE INFORMATION, should conduct the preliminary investigation or order the prosecutor to conduct it.

Question 58

What is the RULE if the investigating prosecutor FINDS PROBABLE CAUSE to hold the respondent for trial?

Answer 58

SEC. 4, RULE 112

If he finds probable cause to hold the respondent for trial, he shall PREPARE A RESOLUTION AND CERTIFY UNDER OATH in the information that:

A.
He or an authorized has PERSONALLY EXAMINED THE COMPLAINANT AND HIS WITNESSES

B.
That there is REASONABLE GROUND TO BELIEVE that a crime has been committed and the accused is PROBABLY GUILTY thereof.

C.
That the accused was INFORMED of the complaint and pieces of evidence against him.

D.
That he was GIVEN OPPORTUNITY TO SUBMIT controverting evidence.

Question 59

What is the RULE if the investigating prosecutor FINDS PROBABLE CAUSE to hold the respondent for trial?

Answer 59

SEC. 4, RULE 112

If the investigating prosecutor finds cause to hold the respondent in trial, he shall PREPARE THE RESOLUTION AND INFORMATION. He shall CERTIFY UNDER OATH in the information that he, or as shown by the record, and authorized officer, has PERSONALLY EXAMINED the complainant and his witnesses; that there is REASONABLE GROUND to believe that a crime has been committed and that the accused is probably guilty thereof; that the accused was INFORMED of the complaint and of the evidence submitted against him; and that he was given an opportunity to submit controverting evidence.

OTHERWISE, he shall recommend the DISMISSAL of the complaint.

Question 60

What is the RULE on the RESOLUTION of the investigating judge and its review?

Answer 60

WITHIN TEN (10) DAYS AFTER the preliminary investigation, the investigating judge shall TRANSMIT the resolution of the case to the provincial or city PROSECUTOR, to the OMBUDSMAN, or his deputy in cases of offenses cognizable by the Sandiganbayn in the exercise of its original jurisdiction, for appropriate action.

The resolution shall state the findings of facts and law supporting his action, together with the record of the case which shall include:

A.
The WARRANT, if the arrest is by virtue of a warrant

B.
The affidavits, counter-affidavits, and other supporting evidence of the parties

C.
The UNDERTAKING or BAIL of the accused and the order for his release

D.
The TRANSCRIPTS of the proceedings during the PRELIMINARY INVESTIGATION

E.
The ORDER OF CANCELLATION of his bail bond, if the resolution is for the dismissal of the complaint

WITHIN THIRTY (30) DAYS FROM THE RECEIPT OF THE RECORDS, the provincial or city PROSECUTOR, or the OMBUDSMAN or his deputy, as the case may be, shall review the resolution of the investigating judge on the existence of PROBABLE CAUSE. Their ruling shall ExPRESSLY and CLEARLY state the facts and the law now on which it is based and the parties shall be FURNISHED with copies thereof. They shall order the release of an accused who is detained if NO PROBABLE CAUSE is found against him.

Question 61

When may a WARRANT be issued by the REGIONAL TRIAL COURT?

Answer 61

SEC. 6, RULE 112

WITHIN TEN (10) DAYS FROM FILING of the complaint or information, the judge shall PERSONALLY EVALUATE the resolution of the prosecutor and its supporting evidence. He may IMMEDIATELY DISMISS the case if the evidence on record CLEARLY FAILS to ESTABLISH PROBABLE CAUSE.

If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the preliminary investigation or when the complaint or information was filed pursuant to SEC. 7 of RULE 112.

In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence WITHIN FIVE 95) DAYS FROM NOTICE and the issue must be resolved by the court WITHIN THIRTY (30) DAYS from the filing of the complaint of information.

Question 62

When may a WARRANT be ISSUED by the MUNICIPAL TRIAL COURT?

Answer 62

SEC. 6, RULE 112

WHEN REQUIRED pursuant to the second paragraph of SEC. 1 of RULE 112, the preliminary investigation of cases falling under the ORIGINAL JURISDICTION or the METROPOLITAN TRIAL COURT, MUNICIPAL TRIAL COURT IN CITIES, MUNICIPAL TRIAL COURT, or MUNICIPAL CIRCUIT TRIAL COURT may be conducted by either the judge or the prosecutor.

When conducted by the prosecutor, the procedure of the issuance of a warrant or arrest by the judge shall be governed by PARAGRAPH (A) of this section.

When the investigation is conducted by the judge himself, he shall follow the procedure provided in SEC. 3 of RULE 112.

If the findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest.

However, WITHOUT waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he finds after examination in writing and under oath of the complainant and his witnesses in the form of SEARCHING QUESTION AND ANSWERS, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice.

Question 63

When is a warrant of arrest NOT NECESSARY?

Answer 63

SEC. 6, RULE 112

A warrant of arrest shall NOT ISSUE if the accused is ALREADY UNDER DETENTION pursuant to a warrant issued by the municipal trial court in accordance with paragraph (B) of this section, or if the complaint or information was file pursuant to SEC. 7 of this RULE or is for an offense penalized by fine only.

The court shall then proceed in the exercise of its original jurisdiction.

Question 64

What are the RULES when the accused is LAWFULLY ARRESTED WITHOUT A WARRANT?

Answer 64

SEC. 7, RULE 112

1.
When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor WITHOUT NEED of such investigation, provided an INQUEST has been conducted in accordance with existing rules.

In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace office directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person.

2.
Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this rule, BUT he must SIGN A WAIVER of the provisions of ART. 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he MAY APPLY FOR BAIL and the investigation must be TERMINATED WITHIN FIFTEEN (15) DAYS from its inception.

3.
AFTER the filing of the complaint or information in court WITHOUT a preliminary investigation, the accused may, WITHIN FIVE (5) DAYS from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense in this rule.

Question 65

What is the REMEDY of an aggrieved party against the RESOLUTION OF THE SECRETARY OF JUSTICE?

Answer 65

As held in the case of Ching vs. Secretary of Justice, such resolution MAY BE NULLIFED in a PETITION FOR CERTIORARI under RULE 65 on the grounds of GRAVE ABUSE OF DISCRETION RESULTING TO LACK OR EXCESS OF JURISDICTION.

Question 66

Are “JOHN DOE” warrants VALID?

Answer 66

Generally, John Doe warrants are VOID, because they violate the constitutional provision that requires that warrants of arrest should PARTICULARLY DESCRIBE the person or persons to be arrested.

BUT if there is SUFFICIENT DESCRIPTION to identify the person to be arrested, then the warrant is VALID.

Question 67

What is the DEFINITION OF ARREST?

Answer 67

SEC. 1, RULE 113

Arrest is the TAKING OF A PERSON IN CUSTODY in order that he may be BOUND TO ANSER for the commission of an offense.

Question 68

How is arrest MADE?

Answer 68

SEC. 2, RULE 113

An arrest 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.

NO VIOLENCE or UNNECESSARY FORCE shall be used in making an arrest. The person arrested SHALL NOT be subject to greater restraint than is necessary for his detention.

Question 69

What is the DUTY of the ARRESTING OFFICER?

Answer 69

SEC. 3, RULE 113

It shall be the duty of the officer executing the warrant to ARREST THE ACCUSED and to DELIVER HIM to the nearest police station or jail WITHOUT UNNECESSARY DELAY.

Question 70

What is the RULE relative to the EXECUTION OF A WARRANT?

Answer 70

SEC. 4, RULE 113

The head of the office whom the warrant of arrest was delivered for execution shall cause the warrant to be executed WITHIN TEN (10) DAYS AFTER the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant. In case of his failure to execute the warrant, he shall state the reasons therefor.

Question 71

When is arrest WITHOUT a warrant LAWFUL?

Answer 71

SEC. 5, RULE 113

A peace officer or a private person may, WITHOUT A WARRANT, arrest a person:

A.
When, IN HIS PRESENCE, the person to be arrested has committed, is actually committing, or is attempting to commit an offense.

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.

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 it is TEMPORARILY CONFINED while his case is pending, or has escaped while being transferred from one confinement to another.

Question 72

When should an arrest be MADE?

Answer 72

SEC. 6, RULE 113

An arrest may be made on ANY DAY and at ANY TIME of the DAY or NIGHT.

Question 73

What is the METHOD of ARREST by an OFFICER by virtue of a WARRANT?

Answer 73

SEC. 7, RULE 113

When making an arrest by virtue of a warrant, the officer shall INFORM the person to be arrested of the CAUSE of the arrest and of the FACT that a warrant has been ISSUED for his arrest, EXCEPT when he FLEES or FORCIBLY RESISTS before the officer has the opportunity to so INFORM him, or when the giving of such information will IMPERIL the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as PRACTICABLE.

Question 74

What is the METHOD of ARREST by an officer WITHOUT a WARRANT?

Answer 74

SEC. 8, RULE 113

When making an arrest without a warrant, the officer shall INFORM the person to be arrested of his AUTHORITY and the cause of the arrest, UNLESS the latter is either engaged in the COMMISSION of an offense, is PURSUED IMMEDIATELY AFTER its commission. has ESCAPED, FLEES, or FORCIBLY RESISTS before the officer has OPPORTUNITY so to inform him, or when the giving of such information will IMPERIL the arrest.

Question 75

What is the METHOD of ARREST by a PRIVATE PERSON?

Answer 75

SEC. 9, RULE 113

When making an arrest, a private person shall INFORM the person to be arrested of the intention to arrest him and cause the arrest UNLESS the latter is either ENGAGED in the commission of an offense, is PURSUED IMMEDIATELY AFTER its commission, or has ESCAPED, FLESS, or FORCIBLY RESISTS before the person making the arrest has the opportunity to so inform him, or when the giving of such information will imperil the arrest.

Question 76

May a person SUMMON ASSISTANCE in conducting an arrest?

Answer 76

SEC. 10, RULE 113

An officer making a lawful arrest may ORALLY SUMMON AS MANY PERSONS as he deems NECESSARY to assist him in effecting the arrest.

Every person so summoned by an officer shall assist him in effecting the arrest when he can render such assistance WITHOUT detriment to himself.

Question 77

What is REQUIRED by the phrase “ IN HIS PRESENCE”?

Answer 77

It does NOT NECESSARILY REQUIRE the arresting officer sees the offense, but it INCLUDES CASES where the arresting officer HEARS THE DISTURBANCE created and proceeds at once to the scene. The officer must have PERSONAL KNOWLEDGE of the offense just committed.

Question 78

What are the MODES of EFFECTING ARREST?

Answer 78

1. By ACTUAL RESTRAINT of the person to be arrested.
2. By his SUBMISSION TO THE CUSTODY of the person making the arrest.

Question 79

When is WARRANT of arrest NOT NECESSARY?

Answer 79

1. Accused is ALREADY UNDER DETENTION.

2.
Complaint or information WAS FILED PURSUANT TO A VALID WARRANTLESS ARREST.

3. Complaint or information is for an OFFENSE PENALIZED BY FINE ONLY

4.
Complaint or information is filed with the MTC and it INVOLVES an offense which DOES NOT REQUIRE PRELIMINARY INVESTIGATION, judge may issue SUMMONS INSTEAD of a WARRANT of arrest if he is SATISFIED that there is NO NECESSITY for placing the accused UNDER CUSTODY.

Question 80

Is an APPLICATION FOR BAIL a bar to questions of ILLEGAL ARREST, IRREGULAR, or LACK of preliminary investigation?

Answer 80

NO.

Provided that he RAISES them BEFORE ENTERING HIS PLEA.

That court shall resolve the matter as early as possible, not later than the start of the trial of the case.

Question 81

May an accused who has been DULY CHARGED in court, QUESTION his detention by a petition for HABEAS CORPUS?

Answer 81

NO.

Once a person has been duly charged in court, he may NO LONGER QUESTION his DETENTION by a petition for HABEAS CORPUS; his REMEDY is to QUASH the information and/or the warrant of arrest.

Question 82

What is BAIL?

Answer 82

SEC. 1, RULE 114

Bail is the SECURITY given for the releases 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, PROPERTY BOND, CASH DEPOSIT, or RECOGNIZANCE.

Question 83

What are the CONDITIONS of the BAIL?

Answer 83

SEC. 2, RULE 114

A.
The UNDERTAKING shall be EFFECTIVE upon APPROVAL, and UNLESS CANCELED, shall remain in force at ALL STAGES of the case until the promulgation of the judgment of the RTC, IRRESPECTIVE of whether the case was originally filed in or appealed to it.

B.
The accused shall APPEAR before the proper court whenever REQUIRED by the court of these RULES.

C.
The FAILURE of the accused to APPEAR at the trial WITHOUT JUSTIFICATION and despite due notice shall be deemed a WAIVER OF HIS RIGHT to be present thereat. In such a case, the trial MAY PROCEED in ABSENTIA.

D.
The bondsman shall surrender the accused to the court of the EXECUTION of the FINAL JUDGMENT.

Question 84

What is the RULE relative to BAIL as a matter of RIGHT?

Answer 84

SEC. 4, RULE 114

All persons in CUSTODY shall be admitted to bail as a matter of right, with sufficient sureties, or released on recognition as prescribed by law or this RULE.

A.
BEFORE or AFTER CONVICTION by the MTC, MuTC

B.
BEFORE CONVICTION by the RTC of an offense NOT PUNISHABLE by DEATH, RECLUSION PERPETUA, or LIFE IMPRISONMENT.

Question 85

When is bail DISCRETIONARY?

Answer 85

SEC. 5, RULE 114

Upon conviction by the RTC of an offense NOT PUNISHABLE by death, reclusion perpetua, or life imprisonment, ADMISSION to bail is DISCRETIONARY.

The application for bail may be filed and acted upon by the trial court despite the filing of a notice of appeal, PROVIDED it has NOT TRANSMITTED the original record to the appellate court.

HOWEVER, if the decision of the trial court conviction the accused changed the nature of the offense from non-bailable to available, the application for bail can only be filed with and resolved by the APPELLATE COURT.

Question 86

What is a CAPITAL OFFENSE?

Answer 86

SEC. 6, RULE 114

A capital offense is an offense which, under the law existing at the time of its commission and of the application for admission to bail, MAY BE PUNISHED WITH DEATH.

Question 87

What is the RULE on the BURDEN OF PROOF on BAIL APPLICATION?

Answer 87

SEC. 8, RULE 114

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.

Question 88

What are the FACTORS to be considered in the IMPOSITION of bail?

Answer 88

SEC. 9, RULE 114

The judge who issued the warrant or granted the application shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors:

A. Financial Ability of the accused to give bail

B. Nature and circumstances of the offense

C. Penalty of the offense charged

D. Character and reputation of the accused

E. Age and health of the accused

F. Weight of the evidence against the accused

G. Probability of the accused appearing at the trial

H. Forfeiture of other bail

I. The fact that the accused was a fugitive from justice when arrested

J. Pendency of other cases where the accused is on bail

Question 89

What is CORPORATE SURETY?

Answer 89

SEC. 10, RULE 114

Any DOMESTIC or FOREIGN corporation, LICENSED as a SURETY in accordance with law and currently authorized to act as such, may provide bail by a bond subscribed JOINTLY by the accused and an officer of the corporation duly authorized by its board of directors.

Question 90

How is PROPERTY BOND posted?

Answer 90

SEC. 11, RULE 114

A property bond is an undertaking constituted as a LIEN on the real property given as security for the amount of the bail.

Within ten (10) days after the approval of the bond, the accused shall cause the ANNOTATION of the lien on the certificate of the title on file with the Register of Deeds if the land is registered, or if unregistered, in the Registration Book on the space provided therefor, in the Registry of Deeds for the province or city where the land lies, and on the corresponding tax declaration in the office of the provincial, city and municipal assessor concerned.

Within the same period, the accused shall submit to the court his compliance, and his failure to do so shall be sufficient cause for the cancellation of the property bond and his re-arrest and detention.

Question 91

What are the QUALIFICATIONS of SURETIES in property bonds?

Answer 91

SEC. 12, RULE 114

The qualification of sureties in a property bond shall be as follows:

A.
Each MUST be a RESIDENT OWNER of real estate within the Philippines.

B. Where there is ONLY ONE SURETY, his real estate must be worth AT LEAST the amount of the undertaking.

C. If there are TWO or MORE SURETIES, each may justify in an amount LESS THAN that expressed in the undertaking but the aggregate of the justified sums must be EQUIVALENT to the WHOLE AMOUNT of bail demanded.

Question 92

What is the RULE on the JUSTIFICATION of sureties?

Answer 92

SEC. 13, RULE 114

Every surety shall justify by affidavit taken before the judge that he possesses the qualifications prescribed in the preceding section. He shall describe the property given as security, stating the NATURE of his title, its ENCUMBRANCES, the NUMBER and AMOUNT of OTHER BAILS entered into by him and still undischarged, and his OTHER LIABILITIES.

The court may examine the sureties upon oath concerning their sufficiency in such manner as it may deem proper. NO BAILL shall be approved UNLESS the surety is QUALIFIED.