Criminal Procedure and Evidence - Short

QUESTIONS & ANSWERS IN

THE REVISED RULES OF CRIMINAL PROCEDURE

(As amended; December 1, 2000, A.M. No. 00-5-03-SC) AND

EVIDENCE

(As amended; SC Resolution dated March 14, 1989)

July 16, 2003 By

REYNALDO U. AGRANZAMENDEZ

Dean, College of Law, Baguio Colleges Foundation Professor and Reviewer, Remedial Law JURISDICTION QUESTIONS & ANSWERS IN REMEDIAL LAW

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1. Over what offenses may the MTC exercise exclusive original jurisdiction? Over the following offenses: a) All violations of city or municipal ordinances committed within its territorial jurisdiction. b) Over all offenses punishable with imprisonment not exceeding six years irrespective of the amount of fine, and regardless of other imposable accessory or other penalties including civil liability arising from such offenses or predicated thereon irrespective of kind, nature, value, or amount thereof. Provided, however, that in offenses involving damage to property through criminal negligence, it shall have exclusive original jurisdiction thereof. (Sec 32, BP129 as amended by RA 7691) 2. In determining what court has jurisdiction over a criminal case, is the amount of fine material? If the offense is punishable by imprisonment not exceeding six (6) years the MTC has jurisdiction irrespective of the amount of the fine. But where the only penalty repeat, only penalty provided by law is fine the amount thereof shall determine the jurisdiction of the court. Thus if the amount of fine imposable is not more than P4000, it is the MTC that has jurisdiction; if it exceeds more than P4000, it is the RTC that has jurisdiction. The RTC also has jurisdiction over offenses committed by public officers and employees in relation to their duties where the amount of fine does not exceed P6000. And where the offense involves damage to property through criminal negligence the same is under the exclusive original jurisdiction of the MTC irrespective of the amount of the fine imposable. (Ref: RA No. 7691; SC Adm. Circular No. 09-94) 3. Libel is punishable by imprisonment of 6 months and 1 day to 4 years and 2 months. Do Municipal Trial Courts (and MeTC’s) have jurisdiction to try libel cases? Despite the expanded jurisdiction conferred by RA No. 7691 to Municipal Trial Courts, they do not have jurisdiction to try libel cases. Administrative Circular No. 104-96 provides that libel cases shall be tried by the regional trail courts having jurisdiction over them to the exclusion of the Metropolitan Trial Courts. (Ref: PP vs. MTC of Quezon City, Br. 31, et al. GR No. 123263 Dec. 16, 1996) 4. What court has jurisdiction over violation of B.P. Blg. 22? The MTC has original exclusive jurisdiction over all cases involving violations of B.P. Blg. 22 because the penalty imposable is imprisonment of not exceeding one year regardless of the amount of the check. (Ref: R.A. No. 7691) 5. In private crimes, must the offended party sign the criminal complaint so that the trial court could acquire jurisdiction over the offense? No. The signing of the complaint by the offended party is no longer jurisdictional, but it is merely a condition sine qua non for the exercise by the proper authorities of their power to prosecute. Consequently, the failure of the accused to raise said issue at the trial bars him from raising it on appeal. (Ref: People vs. Leoparte, 192 SCRA 662) RULE 110 QUESTIONS & ANSWERS IN REMEDIAL LAW

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PROSECUTION OF OFFENSES 1. How may criminal actions be instituted? Criminal actions may be instituted as follows: a) For offenses requiring preliminary investigation by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation. b) For all other offenses, by filing the complaint or information directly with the MTC or the complaint with the office of the prosecutor. In Manila and other chartered cities, the complaint shall be led with the office of the prosecutor, unless otherwise provided in their charters. (Ref: Sec. 1) 2. Does the filing of a complaint with the Prosecutor’s (or Fiscal’s) Office stop the running of the period of prescription of offenses? Yes. Section 1 of Rule 110 provides that the institution of the criminal action shall interrupt the period of prescription of the offense charged unless otherwise provided in special laws. But as held in Zaldivia vs. Perez, 211 SCRA 277, July 2, 1992 if the charge is violation of a municipal coincidence it is the filing thereof in court (MTC) that stops the running of the prescriptive period. This because the law that is applicable is not Article 91 of the Revised Penal Code but Act No. 3326 as amended entitled “An Act to Establish Ordinances and to Provide When Prescription Shall Begin to Run.” Thus, if the offense is, say, reckless imprudence resulting in slight physical injuries, the applicable law is Article 91 of the Revised Penal Code which provides, among other things, that the period of prescription of the offenses shall be interrupted by the filing of the complaint or information. In other words the prescriptive period for offenses penalized by the Revised Penal Code is interrupted by the filing of the complaint either in the prosecutor’s office or in court. (Refs: Francisco vs. CA 122 SCRA 538 [1983]; Reodica vs. CA. G.R. No. 125066, July 8, 1996). In Llenes vs. RTC Judge Dicdican, et al., G.R. No. 122274, July 31, 1996 [260 SCRA 207], it was held that the filing of a complaint with the Office of the Ombudsman against a government official interrupts the period of prescription of the offense. 3. Section 2 of Rule 110 provides that “the complaint or information shall be x x x against all persons who appear to be responsible for the offense involved.” Is there and exception to this Yes. Where a person, although among those responsible for the offense is admitted to the Witness Protection Program under R.A. No. 6981 to be utilized as a state witness, he does not have to be included as an accused in the information. (Ref: Webb vs. de Leon, et al G.R. No. 121234 August 23, 1995) 4. What is a complaint? – Information? A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated. (Ref: Sec. 3) An information is an accusation in writing charging a person with an offense subscribed by the prosecutor and filed with the court. (Ref: Sec. 4) 5. What are the distinctions between complaint and information? QUESTIONS & ANSWERS IN REMEDIAL LAW

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The following are the distinctions between complaint and information. a) A complaint is subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated while an information is subscribed by the prosecutor; b) A complaint is under oath, while an information need not be under oath; c) A complaint is filed with the court either for preliminary investigation or for trial; an information is filed with the court for trial. 6. What is the rule regarding qualifying and aggravating circumstances? The rule now requires the complaint or information to state and specify the qualifying and aggravating circumstances of the offense charged. (Refs: Secs. 8 and 9) Qualifying or aggravating circumstances proven during the trial but are not alleged in the complaint or information shall not be considered by the court in the imposition of the penalty even if the proven at the trial. (Ref: People vs. Arrojado G.R. No. 30492, Jan. 31, 2001) 7. What is the doctrine of parens patriae as anunciated under Section 5, Rule 110 of the Rules of Court (The Revised Rules of Criminal Procedure)? Parens Patriae is the doctrine that vests upon parents, grandparents, guardian, and the State the authority to intiate criminal prosecution in cases if seduction, abduction, or acts of lasciviousness in the event the offended party dies or becomes incapacitated before she could file the complaint. The doctrine of parens patriae, however does not cover adultery and concubinage where only the offended spouse and no other is authorized by law to initiate the criminal prosecution thereof. (Ref: Pilapil vs. Somera, 174 SCRA 653) 8. May the complaint or information charge more than one offense? No. A complaint or information must charge only one offense except when the law prescribes a single punishment for various offenses. (Sec. 13, Rule 110) 9. What are the distinctions between amendment and substitution of information (or complaint)? The following are the distinctions: a) The amendment may involve either formal or substantial charges, while substitution necessarily involves substantial changes from the original charge; b) Amendment before plea has been entered can be affected without leave of court, as a general rule; while substitution must always be with leave of court as the original information has to be dismissed;

QUESTIONS & ANSWERS IN REMEDIAL LAW

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c) Where the amendment s only as to form, there is no need for another preliminary investigation and retaking of the plea of the accused while in substitution of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; d) An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is included in the original charge hence substantial amendments to the information after the plea has been taken cannot be made, for if the original information would be withdrawn, the accused can invoke double jeopardy. On the other hand substitution of information presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge; hence the accused cannot claim double jeopardy. In determining, thereof whether there should be amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the first information an amendment of the information is sufficient; otherwise, where the new information charges an offense which is distinct and different from that initially charged a substitution is in order. (Teehankee Jr. v. Madayag, et al. G.R. No. 103102, March 6, 1992) 10. When may the complaint or information be amended without leave of court? – with leave of court? 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 final formal amendment may only be made with leave of court. Before the plea, however, any amendment that downgrades the nature of the offense charged in or excludes any accused from the complaint or information can be made only upon motion by the prosecutor, with notice to the offended party, and with leave of court. (Ref: Sec 14) 11. If the accused has already been arraigned, may the prosecution still amend the complaint or information to change the date of the commission of the offense? Yes, because the allegation of the date of the commission of the offense is merely a matter of form Sec. 11, Rule 110 provides that it is not necessary to state in the complaint of information the precise date the offense was committed. The exception is when the date or time is a material ingredient of the offense in which case the amendment will be considered substantial and therefore, will not be allowed after the accused has already been arraigned. (Ref: Gablonza vs. CA G.R. No. 140311, March 30, 2001) 12. X is charged with serious physical injuries and the case is filed with the MTC. Later, the prosecution sought to amend the information to charge frustrated murder, alleging intent to kill. The MTC judge denied the amendment and ordered the prosecution to present its evidence. When the case was submitted for decision, the judge found out that there really was intent to kill. The judge then dismissed the case to give way to the filing of an information for frustrated murder with the RTC. Is the dismissal of the case correct? The dismissal of the case is not correct. The MTC judge should not have decided the case as originally filed. The information cannot anymore be amended to charge frustrated murder because such amendment will violate the right of the accused against double jeopardy. (Ref: People vs. Mogel, 131 SCRA 296) QUESTIONS & ANSWERS IN REMEDIAL LAW

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RULE 111 PROSECUTION OF CIVIL ACTION 1. When a criminal action is instituted, what civil action is deemed instituted with the criminal action? Only the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action. The civil action is deemed instituted, not merely impliedly instituted with criminal action. But this rule on institution of the civil action with the criminal action does not apply if the offended party: (1) waives the civil action; (2) reserves the right to institute it separately; or (3) institutes the civil action prior to the criminal action. (Ref: Sec. 1) Independent civil actions under Articles 32, 33, 34, and 2176 of the Civil Code are not deemed or impliedly instituted with the criminal action. 2. May the offended party institute a separate civil action even if he has not reserved his right to do so? If the civil action is one to enforce a civil liability arising from the offense charged the offended party is required to reserve his right to institute a separate civil action. But there are instances when reservation is not allowed, and these are: (a) in criminal action for violation of BP. 22 where the corresponding civil action is deemed included and therefore, no reservation to file such civil action separately shall be allowed; (b) in criminal action filed with the Sandiganbayan where the criminal action deemed to necessarily carry with it the filing of the civil action, and no right reserved the filing of such civil action separately from the criminal action shall be recognized. (Refs: Sec. 1 (b); Sec. 4, PD 1606, as amended by RA No. 8249) The reservation of the right to institute a separate civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. But if the civil action is an independent civil action as provided for in Articles 32, 33, 34, and 2176 of the Civil Code, the offended party is not required to make such reservation. Moreover, and independent civil action may proceed simultaneously with and independently of the criminal action. (Ref: Sec. 3) 3. An information as filed against X for violation of BP. 22 because the check in the amount of P100,000 issued by X to Y was dishonoured by the drawee-bank. May Y reserve his right to file a separate civil action for the payment of the sum of P100,000? No, Section 1(b), Rule 111 of the Revised Rules of Criminal Procedure provides. “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.” Under SC Circular No. 57-97 dated September 16, 1997 the criminal action for violation of BP 22 shall be deemed to necessarily include the corresponding civil action and no reservation to file such civil action separately shall be allowed or recognized. The same Circular states “Where the civil action has heretofore been filed separately and trial thereof has not yet commenced. It may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted the trial of both actions shall proceed in accordance with the pertinent procedure outlined in Section 2(a) of Rule 111 governing the proceedings in the actions as thus consolidated. “ QUESTIONS & ANSWERS IN REMEDIAL LAW

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4. On the basis of wise complaint, an information for Estafa was filed against X in the RTC of Baguio City. After his arraignment X filed an answer with counterclaim where he asked the trial court to dismiss the criminal action, together with the civil action impliedly instituted with it and to order Y to pay him moral damages, exemplary damages, attorney’s fees and litigation expenses. But on motion of the prosecution the trial court ordered that the answer with counterclaim be expunged from the records. Did the trial court act correctly? Yes, because under Section 1, Rule 111 no counterclaim cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. The old rules of criminal procedure did not contain a similar provision prohibiting the filing of counterclaim, cross-claim, third-party complaint in criminal actions. But the rule was the same even then. So it was that in Cabaero et al. vs. Cantos, G.R. No. 102942, April 18, 1197. The Supreme Court, in holding that the accused cannot set-up a counterclaim. Cross-claim, or thirdparty complaint in the same criminal case noted that while the rules on civil procedure expressly recognized a defendant’s entitlement to plead his counterclaim and offer evidence in support thereof the rules on criminal procedure which authorize the implied institution of a civil action in criminal case are in contrast, silent on this point and do not provide specific guidelines on how such a counterclaim shall be pursued. 5. What are the rules on the payment of filing fees in the instances where the civil action is deemed instituted with the criminal action? a) When the amount of damages, other than actual, is alleged in the complaint or information, then the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial. b) When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information the filing fees therefore shall constitute a first lien on the judgment awarding such damages. (Ref: Sec.1) In Manuel vs. Alleche Jr., G.R. No. 115683, July 26, 1996, citing General vs. Claravall, 195 SCRA 623, it was held that when the amount of damages is not alleged in the complaint or information, the corresponding filing does need not be paid and shall simply constitute a first lien in the judgement, except in an award for actual damages. This applies where the judgement awards a claim not specified in the pleading or the complainant expressly claims moral, exemplary temperate and /or nominal damages but has not specified any amount at all leaving the quantification thereof entirely to the trial courts discretion. c) A criminal action for violation of BP 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action shall be allowed. Upon the filing of the joint criminal and civil action, the offended party shall pay in full the filing fees based on the mount of check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover the liquidated, moral, nominal, temperate, or exemplary damages, the offended party shall pay the filing fees based on the amounts therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court the filing fees based on the amount awarded shall constitute a first lien on the judgement. (Ref: Sec. 1) d) In criminal actions for Estafa, the offended party shall pay the filing fee therefore if he fails to manifest within 15 days from the filing of the information that the civil liability arising from the crime has been or would be separately prosecuted. (Ref: Sec. 20(a), Rule 141)

QUESTIONS & ANSWERS IN REMEDIAL LAW

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6. The rule stated in Sec. 1 is that “no filing fees shall be required for actual damage.” What are the exceptions? The exceptions are: 1. In criminal actions for violation of BP. 22. 2. In criminal actions for estafa if the offended fails to manifest within 15 days from the filing of the information that the civil liability arising from the crime has been or would be separately prosecuted. 7. Suppose the civil action was impliedly instituted in the criminal action, and the accused after trial was convicted and was ordered so pay damages to the offended party, and the accused appealed, does the death of the accused while his case is on appeal extinguish his civil liability? OLD RULE: in the case of People vs. Sendaydiego, 81 SCRA 120, it was held that the civil liability of an accused who dies while his case is pending appeal survives him although the civil liability is exclusively dependent on the criminal action already extinguished. NEW RULE: the ruling in Sendaydiego has been abandoned. The rule now is laid down into People vs. Bayotas G.R. No. 102007, Sept. 2, 1994 (EN Banc) reiterated in Fonacier vs. Sandiganbayan, 238 SCRA 655. Thus: a) Death of an accused pending appeal of his conviction extinguishes his criminal liability as well as civil liability based solely thereon. As opined by justice Regalado, the death of the accused prior to final judgement terminates his criminal liability and his civil liability directly arising from and based solely on the offense committed, i.e. civil liability ex delicto in senso strictiore. b) Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the same may also be predicated on a source of obligation other than delict. Article 1157 of the civil code enumerates these other sources of obligation from which the civil liability may arise as a result of the same act or omission: (a) law, (b) contracts, (c) quasi-contracts, (d) xxx, (e) quasidelicts. c) Where the civil liability survives as explained in No. (b) above, an action for recovery therefore may be pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111. This separate civil action may be enforced either against the executor/administrator or the estate of the accused depending on the source of obligation upon which the same is based as explained above. d) Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action by prescription in cases where during the prosecution of the criminal action and prior to its extinction, the private offended party instituted together therewith the civil action. In such a case the statute of limitations on the civil liability is deemed interrupted during the dependency of the criminal case, conformably with the provisions of Article 1155 of the civil code; that should avoid any apprehension on a possible privation of right by prescription. Section 4 of the Revised Rules of Criminal Procedure already mentions the effect the death of the accused on his civil liability as follows: a) If the accused dies after arraignment and during dependency of the criminal action, his death shall extinguish the civil liability arising from the delict (or crime).

QUESTIONS & ANSWERS IN REMEDIAL LAW

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b) If he dies before arraignment, the case shall be discussed without any prejudiced to any civil action the offended party may file against the estate of the deceased. [RUA’s opinion; the civil action adverted to here refers to a civil action not arising from the delict (or crime), because civil action arising from the delict (or crime) is likewise extinguished if the accused dies before arraignment. Note that independency with actions and civil actions to enforce civil liability arising from other sources of obligation i.e law, contracts, quasi-contracts, or quasi-delicts, are not affected by the death of the accused, and such civil actions may be continued against the estate or the legal representative of the deceased accused after proper substitution. 8. What are the elements of a prejudicial question? The following: a) The previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and b) The resolution of such issue determines whether not the criminal action may proceed. (Ref: Sec. 7) The rule regarding prejudicial question does not apply where one case is administrative and the other is civil. (Ocampo vs. Buenaventura, 55 SCRA 267 [1974]) 9. The rule is that a criminal action may be suspended by reason of the pendency of a prejudicial question in a civil action. Where and when may the petition for the suspension of criminal action be filed? The petition for suspension of the criminal action based upon the pendency of a prejudicial question may be filed in the office of the prosecutor or the court conducting the preliminary investigation. But when the criminal action has already been filed in court for trial the petition for suspension shall be filed in the same court and in the same criminal action at any time before the prosecution rest. (Ref: Sec. 6) RULE 112 PRELIMINARY INVESTIGATION 1. What is preliminary investigation? Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded-belief that a crime punishable by imprisonment of at least 4 years 2 months and 1 day, without regard to the fine, has been committed and the respondent is probably guilty thereof and should be held for trial. Only offenses where the penalty prescribed by law is at least 4 years 2 months and 1 day (4:2:1), without regard to the fine require preliminary investigation. (Ref. Sec 1)

QUESTIONS & ANSWERS IN REMEDIAL LAW

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2. May the right to preliminary investigation be waived? How? Yes. It may be waived but not asserting it before arraignment and plea (Ref: People vs. Monteverde, 142 SCRA 68; People vs. Selfailson, 110 Phil. 839) In the case of Rolito Go vs. CA, 206 SCRA 138, the SC held that Go did not waive his right to preliminary investigation notwithstanding the fact that he posted bail because firstly, he refused to plead at his arraignment prompting the trial court to enter a plea of not guilty for him, and secondly he had asserted his right to preliminary investigation before he posted bail. Under the new rule application for or posting of bail does not constitute waiver of preliminary investigation anymore. Under Sec. 26, Rule 114 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 therefore 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. 3. Is absence or lack of preliminary investigation a ground for a motion to quash? No. Lack or absence of preliminary investigation is not ground for quashing the complaint or information. The absence of preliminary investigation does not impair the validity of the complaint or information or otherwise or render it defective. Neither does it affect the jurisdiction of the court. If the offense requires preliminary investigation, but no preliminary investigation was conducted the trial should not dismiss the complaint or information. Istead, the trial court should hold in abeyance the proceedings and order the public prosecutor to conduct a preliminary investigation. (Ref: Villaflor vs. Gozon, G.R. No. 13477, Jan. 16,2001) If the offense requires preliminary investigation and none was conducted the accused waives his right thereto if he allows himself to be arraigned without asserting such right. But where the accused asserts his right to preliminary investigation to deny him that right will amount to a denial of due process because the right to preliminary investigation is substantive not merely formal or technical. (Ref: Yusop vs. Sanidganbayan, G.R. No. 138859-60, Feb. 22, 2001) 4. X was charged with murder in an information filed in court. No preliminary investigation was conducted prior to the filing of the information. At this arraignment, he pleaded not guilty the case was set for trial. Before the commencement of the trial, X filed a motion demanding his right to preliminary investigation. The trial court denied his motion. After trial X was convicted. He appealed. Among the errors he assigned are the lack of preliminary investigation and the trial court’s denial of his motion. Is the trial court correct in denying X’s motion for preliminary investigation? Yes, the trial court is correct. X filed his motion after he already entered his plea of not guilty. He demanded his right to preliminary investigation only after he had been arraigned. By nit asserting it before arraignment and plea he has waived his right to preliminary investigation. (Ref: People vs. Lambino, 103 Phil. 504) 5. May preliminary investigation be conducted ex parte? Yes, in two instances: (a) if the respondent cannot be served with subpoena or, (b) he does not appear despite due notice for him. (Ref: Mercade vs. CA, G.R. No. 109036, July 5, 1995)

QUESTIONS & ANSWERS IN REMEDIAL LAW

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6. A complaint for homicide was filed with the MTC of Rosario, La Union for preliminary investigation. After going over the statements of witnesses, the judge was convinced that the crime committed was murder not homicide. He then amended the designation of the offense from homicide to murder. Does the judge have that authority? None. The MTC judge conducting a preliminary investigation has no authority to amend the designation of the offense in the complaint. If he believes that the offense charged in the complaint is not correct he should refer his recommendation to the provincial prosecutor. (Ref: Balagapo vs. Duquilla, Dec. 5,1994; Chilagan Sr. vs. Acting presiding judge Cattling, A.M. 00-888-MTJ, Nov. 16, 2001) 7. Complaint for illegal fishing with the use of explosives was filed against A, B, C, and D with the MTC for preliminary investigation. The penalty for illegal fishing with the use of explosives is 20 years to life imprisonment under Sec. 38 PD 704 as amended. The MTC judge amended the complaint by deleting the allegation that “the accused used explosives in the commission of the crime.” This the MTC judge did so as to bring the case within his jurisdiction. The accused where then arraigned for illegal fishing only, and after they all pleaded guilty, the judge sentenced each of them to pay a fine of P1000. Did the judge act correctly? No, the judge did not act correctly. It is gross ignorance of the law for the judge to amend Motu Proprio the complaint. The power to amend the complaint at any time before the accused pleads both in for or in substance, is lodged in the prosecuting officer, not in the trial court. The MTC judge should have conducted a preliminary investigation only: he should not have tried the case it has been held that when a municipal judge conducts a preliminary investigation, he performs a none judicial function as an exception to his usual duties. The assignment of such consecutive function to the municipal judge under Rule 112 of the rules of court is dictated by necessity and practical considerations. Consequently the findings of an investigating judge are subject to review by the provincial fiscal (or prosecutor) whose findings in turn may also be reviewed by the secretary of justice in appropriate cases. (Ref: Balagapo Jr. vs. Judge Demosthenes C. Duquilla A.M. No. MTJ-94-971, Dec. 5, 1994). 8. Under Section 7 of Rule 112, an accused validly arrested without warrant for an offense which requires preliminary investigation and charged in court without preliminary investigation having been first conducted may ask for a preliminary investigation within five days from the time he learns of the filing of the information against him. What is the nature of the five-day period? The five-day period is mandatory and if the accused fails to ask for preliminary investigation within the said five-day period, he is deemed to have waived such right. ( ref: People vs CA and Esam Gadi vs Abdulan, GR No. 116623, March 23, 1995) 9. The Constitution provides that no warrant shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complaint and his witnesses. May the RTC Judge, in issuing the warrant of arrest rely on the fiscal’s certification of the probable cause? Yes. But the RTC Judge can make such reliance only if there are reports and necessary documents supporting the fiscal’s certification. It is thus necessary for the judge to personally evaluate the report and annexes attached to the fiscal’s certification. ( ref: Lim vs Judge Felix, GR No. 94054, 19 SCRA 292). QUESTIONS & ANSWERS IN REMEDIAL LAW

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Under the present rule, an information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and the witnesses, together with the other supporting evidence and resolution of the case. (Sec. 8(a)) 10. In issuing the warrant of arrest, is the RTC Judge required to personally examine the complaint and his witnesses by searching questions and answers? No. The RTC Judge who issues the warrant of arrest is not required to personally examine the complaint and his witnesses. Within ten days from the filing of the complaint or information, he shall personally evaluate the resolution and supporting evidence submitted by the prosecutor regarding the existence of probable cause, and on the basis thereof, and if he finds probable cause, issue a warrant of arrest. Ref: Sec. 6, Rule 112, Webb vs de Leon 247 SCRA 652. 11. What may the RTC Judge do after personally evaluating the resolution and supporting evidence submitted by the prosecutor? If he finds probable cause, he shall issue the warrant of arrest. If the evidence on record clearly fails to establish probable cause, he may immediately dismiss the case. If there is doubt as to the existence of probable cause, he may order the prosecutor to present additional evidence within five days from notice on the existence of probable cause and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. Ref: Sec. 6: Webb vs de Leon 247 SCRA 652 In Paul Roberts et al. vs CA et al., March 5, 1996, the High Tribunal said that an RTC Judge, before issuing the warrant of arrest should order the elevation of the complete records of the preliminary investigation, examine such records and determine therefrom the existence of probable cause. 12. What about the MTC Judge, may he also issue warrant of arrest? Yes, but let us look at the following situations: a. The case is one that requires preliminary investigation but falls within the jurisdiction of the MTC because the penalty prescribed by law for the offense is at least 4 years, 2 months, and 1 day but does not exceed 6 years. The preliminary investigation may be conducted by the prosecutor or by the MTC Judge himself. If the preliminary investigation is conducted by the prosecutor and the prosecutor later files the information in the MTC then the MTC Judge may issue the warrant of arrest as in the case of the RTC Judge outlined in Q&A Nos. 9, 10, and 11. But if the preliminary investigation is conducted by the MTC Judge himself, he shall only issue the warrant of arrest if his findings and recommendations are affirmed by the city or provincial prosecutor (or by the Ombudsman or his deputy) and the corresponding information is filed. The MTC Judge, however, without waiting for the conclusion of the investigation he is conducting, may issue a warrant of arrest if he finds after an examination in writing and under oath of the complaint and his witnesses in the forms of searching questions and answers, that 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. QUESTIONS & ANSWERS IN REMEDIAL LAW

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b. The case falls within the jurisdiction of the RTC and the preliminary investigation is being conducted by the MTC Judge. The MTC Judge without waiting for the conclusion of the investigation he is conducting, may issue a warrant if he finds after an examination in writing and under oath of the complaint and his witnesses in the form of searching questions 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. c. The case does not require preliminary investigation. If the complaint or information is filed with the MTC and the MTC Judge finds no probable cause after personally evaluating the evidence or after personally examining in writing and under oath the complaint and his witnesses in the form of searching questions and answers, he shall dismiss the same. He may, however, require the submission of additional evidence within ten days from notice to determine further the existence of probable cause. If the judge still finds no probable cause despite the additional evidence, he shall within ten days from its submission or expiration of said period, dismiss the case. When he finds probable cause and there is a necessity for placing the accused under custody, he shall issue a warrant of arrest ( or commitment order if the accused had already been arrested) and hold him for trial. 13. Suppose the MTC Judge, after conducting a preliminary investigation, finds that a probable cause exists, may he still refuse to issue a warrant of arrest? Yes. The reason is that the finding of probable cause is not enough; the MTC Judge must also be satisfied that there is a necessity of placing the accused under immediate custody in order not to frustrate the ends of justice (Ref: Sec. 6, Rule 112). But, in Sandoval vs Judge Manalo, A.M. MTJ 96-1080, Aug 22, 1996, it was held that the rule laid down in Sec. 6, Rule 112 does not apply if the MTC Judge conducting the preliminary investigation finds probable cause against an accused charged with capital offense. 14. What are the instances where warrant of arrest shall not issue because it is not necessary? Warrant of arrest not necessary in the following instances: a. If the accused is already under detention pursuant to a warrant issued by the MTC that conducted the preliminary investigation in which event a commitment order is all that is required. b. If the complaint or information was filed against an accused who was validly arrested without warrant. c. If the offense is penalized by fine only. ( ref: Sec. 6(c)) 15. When may the MTC Judge issue summons instead of warrant of arrest? If the complaint or information is filed with the MTC for an offense not requiring preliminary investigation (because the penalty prescribed by law therefor is less than 4:2:1), the MTC Judge may issue summons instead or warrant of arrest, if he finds probable cause, but he is satisfied that there is no necessity for placing the accused under custody. Briefly, the requisites are: a. the case does not require preliminary investigation; b. the MTC Judge finds probable cause; and c. there is no necessity for placing the accused under custody. QUESTIONS & ANSWERS IN REMEDIAL LAW

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16. Is a petition for habeas corpus the remedy against a warrant of arrest that was improperly issued? No. the remedy is a petition to quash warrant of arrest on a motion to quash the complaint or information. The writ of habeas corpus is not available as a remedy after the information is filed and a warrant of arrest is issued by the trial court. Ref: Ilagan vs Enrile, 139 SCRA 349 It must be remembered that an accused who fails to move to quash the information or complaint against him prior to his arraignment and entry of plea is estopped from questioning the legality of his arrest ( People vs de Guzman, GR No. 117952-53, Feb. 14, 2001) RULE 113 ARREST 1. What is arrest? An arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. Ref: Sec 1 2. How is an arrest made? 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. Sec 2, Rule 113 Application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not required. It is enough that there be an intent on the part of one of the parties to arrest the other and an intent of the other to submit under the belief and impression that submission is necessary. Sanchez vs. Demetriou et al., GR No. 111771, November 1993 3. If a person has been legally arrested, how may he question the legality of his arrest? a. If the case is already filed in court, he may question the legality of his arrest by filing a motion to quash the complaint or information on the ground that the court has not acquired jurisdiction over his person. If the arrest is indeed illegal, then the court has not acquired jurisdiction over the person of the accused. The accused must raise the question of the legality of his arrest before he pleads to the complaint or information otherwise, the objection to the illegality of his arrest is deemed waived. The question of legality of an arrest affects only the jurisdiction of the court over the person of the accused. Consequently, if objections based on this ground are waived, the fact that the arrest was illegal is not sufficient cause for setting aside an otherwise valid judgment. The technicality cannot render the subsequent proceedings void and deprive the State of its right to convict the guilty when all the facts on record point to the culpability of the accused. People vs. Meris, GR No. 117145, March 28, 2000 b. If no case has yet been filed against him in court, he may question the legality of his arrest by filing a petition for habeas corpus. In Bernarte vs. Mahusay, 263 SCRA 323 (1996), it was held that once a person has been duly charged in court, he may no longer question his detention by a petition for habeas corpus, his remedy being to move to quash the information or the warrant of arrest.

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4. Does the accused waive the objection to the legality of his arrest by posting bail? NO. The rule now is that 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. Ref: Sec. 20, Rule 114 RULE 114 BAIL 1. What is bail? Bail is the security given for the release of a person in custody of the law furnished by him or his bondsmen to guarantee his appearance before the court. Ref: Sec. 1 2. In what form may bail be given? Bail may be given in the form of: a. b. c. d.

Corporate surety Property bond Cash deposit Recognizance ( REF: Sec. 1)

3. In what instances may the court order the release of a detained person on recognizance? Only on the ff instance: a. If the offense charged is for violation of an ordinance, a light felony or a criminal offense, the imposable penalty for which does not exceed 6 months imprisonment or P2000.00 fine. b. If the person has been in the custody for a period equal to or more than the minimum of the imposable principal penalty without application of the Indeterminate Sentence Law or any modifying circumstance. c. If the accused has applied for probation and he has not filed his bail or is incapable of filing one. d. If the accused is a youthful offender held for physical and mental examination, trial, or appeal, if he is unable to furnish bail. Ref: Sec. 16, Espiritu vs. Jovellanos, 280 SCRA 579, 1997 4. What are the conditions of the bail? The following: a. It shall be effective upon approval thereof at all stages of the trial unless sooner cancelled until promulgation of judgment of the RTC irrespective of whether the cases was originally filed in or appealed to it. b. The accused shall appear before the court whenever so required by the court or by the Rules. c. The failure of the accused to appear at the trial without justification and after due notice is deemed an express waiver of his right to be present on the date specified in the notice, and he may be tried in absentia. d. The accused shall surrender himself for execution of the final judgement. (Ref: 2, Rule 114) QUESTIONS & ANSWERS IN REMEDIAL LAW

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5. In granting bail, may the court impose as condition that the accused shall secure a certification from the mayor of the place of his residence that he is a resident of the area and that he will remain to be a resident therein until final judgment is rendered, or in case he transfers residence, it must be with prior notice to the court? Yes. Such a condition is consistent with the nature and function of a bail bond, which is to ensure that the accused will make himself available at all times whenever the court requires his presence. The condition does not prevent the accused from changing abode, it merely requires him to inform the court in case he does so. (Yap v. CA, et al., G.R. No. 141529, June 6, 2001) 6. May the court defer the approval of the bail until after the arraignment of the accused? No. a condition making arraignment a prerequisite to the grant of bail to the accused is void. (Lavides v. CA, et al., G.R. No. 129670, Feb 1, 2000) 7. What is the purpose of bail? The purpose of bail is to guarantee the appearance of the accused at the trial whenever so required by the court or by the rules. The amount should be high enough to assure the presence of the accused when required, but n higher than is reasonably calculated to fulfil this purpose. (Ref: Yap v. CA, et al., G.R. No. 141529, June 6, 2001) 8. May bail be fixed at an amount equivalent to the civil liability of the accused? In Yap v. CA, et al., G.R. No. 141529, June 6, 2001, the SC said that to fix bail at an amount equivalent to the civil liability for which the petitioner (accused) is charged is to permit the impression that the amount paid in an exaction of the civil liability that accused is charges of Bail is not intended as punishment nor as a satisfaction of the civil liability. 9. When is bail a matter of right?- a matter of discretion?-neither a matter or right nor a matter of discretion, hence it must be denied, or if bail has been previously granted shall be cancelled? A Matter of Right a) Before or after conviction by the MTC; b) Before conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment; c) Before conviction by the RTC, of an offense punishable by death, reclusion perpetua or life imprisonment and the evidence of guilt is not strong. A Matter of Discretion on the Part of the Court a) After conviction of the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment; Neither a Matter of Right nor a Matter of Discretion a) After conviction by the RTC of an offense and the penalty imposed is death, reclusion perpetua or life imprisonment; QUESTIONS & ANSWERS IN REMEDIAL LAW

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b) After conviction by the RTC, and the penalty imposed is more than 6 years and1. the accused is a recidivist , quasi-recidivist, habitual delinquent, or has committed the crime aggravated by reiteration; 2. the accused has previously escaped from legal confinement; evaded sentence, or violated the condition of his bail without valid justification; 3. the accused committed the offense while on probation, parole or under conditional pardon; 4. there is probability of flight is released on bail; 5. there is undue risk that during the pendency of his appeal, he may commit another crime; c) After judgment becomes final, unless he files a petition for probation before commencing to serve his sentence.

10. With what court may bail be filed? a) Bail may be filed with the court where the case is pending. But if the absence of unavailability of the judge, thereof with any RTC judge or MTC judge in the province, city, or municipality. And, if the accused is arrested in a province, city, or municipality, other than where the case is pending, bail may be also be filed with any RTC of said place, or if no judge thereof is available, with any MTC judge therein. b) Where the grant of bail is a matter of discretion or the accused is to be released on recognizance, the application may be filed in the court where the case is pending, whether on preliminary investigation, trial or appeal. 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. Ref: Sec.17 d) If the accused has been convicted by the RTC of an offense not punishable by death, reclusion perpetua, or life imprisonment and admission to bail is discretionary, the application for bail may be filed with and action upon by the RTC despite filing of a notice of appeal provided it has not transmitted the original record of the case to the appellate court. Sec.5 , Rule 114 e) The accused has been convicted by the RTC and the decision of the RTC convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. Sec. 5, Rule 114 11. If the accused who is charged with a capital offense files an application for bail, what are the duties of the judge? The judge must: a. Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation. b. Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its discretion. c. Decide whether the evidence of guilt of the accused is strong based on the summary of the evidence of the prosecution. d. If the evidence of guilt of the accused is not strong, discharge the accused upon the approval of the bail bond. Ref: People vs Cabral, 303 SCRA 361, Feb. 18, 1999 QUESTIONS & ANSWERS IN REMEDIAL LAW

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12. X was charged with murder. No bail was recommended. He filed an application for bail. A hearing was conducted to determine whether the evidence of guilt is strong. After hearing, the trial court ruled that he was not entitled to bail because he was charged with a capital offense and the evidence of guilt was strong. After trial, he was convicted of homicide. He appealed. Given the fact that X was convicted of homicide, is he now entitled to bail? No. by reason of his appeal, his conviction for the lesser offense of homicide brings him to his original situation as he was before the judgment, that is, that he is charged with a capital offense where the evidence of guilt is strong. The appellate court may still find him guilty of murder. Obosa vs CA, et al., Jan 16, 1997 13. When may the accused released on bail be rearrested without the necessity of warrant? An accused released on bail may be rearrested if he attempts to depart from the Phil without permission of the court where the case is pending. Ref: Sec. 23 14. Does the filing of, or admission to, bail bar the accused from challenging the legality of his arrest or the absence of preliminary investigation? No. The rule is now stated in Sec. 26, Rule 114. It provides: 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 raised 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. Ref: Yusop vs Sandiganbayan, GR No. 138859-60, Feb 22, 2001 RULE 115 RIGHTS OF THE ACCUSED 1. Notwithstanding due notice to him, the accused failed to appear for trial. Trial in absentia was held where the prosecution presented its evidence ex parte. After the presentation of the people’s evidence, the court declared the case submitted for decision. Did the trial court act correctly? No. The court committed grave abuse of discretion in declaring the case submitted for decision. The non- appearance of the accused on the day of the trial of which he was notified is a waiver of his right to be present for trial on such date only and not for the succeeding trial dates of which he had no notice. What the accused waived by his absence is his right to cross- examine the witness presented by the prosecution on that day. It is error for the trial court to consider the case submitted for decision because even if the accused was absent during the time the prosecution presented its evidence, he could still file a demurer to evidence if he would so desire. The situation is different if the accused is in custody as a detention prisoner and he escapes. His non- appearance for trial is considered a waiver of his right to be present on that date and on the subsequent trial dates. Ref: Marcos vs Ruiz, GR No. 707466, Sept. 1, 1992

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2. On motion of the accused, the trial court dismissed the criminal case on the ground of failure to prosecute. May the trial court reconsider its order for dismissal without violating the right of the accused against double jeopardy if there was in fact no unreasonable delay in the proceedings? Yes. If it appears that there was in fact no unreasonable, vexatious, and oppressive delay in the proceedings, there is no reason to support the order of dismissal. Hence, the trial court must reconsider it without violating the right of the accused against double jeopardy because his right to speedy trial had not been transgressed. Ref: Almario vs. CA, et al., GR No. 127772, March 22, 2001 RULE 116 ARRAIGNMENT AND PLEA 1. At the arraignment, counsel for the accused manifested that he had already explained to the accused the nature and the cause of the accusation against him and that the accused fully understood it. Counsel the moved that the reading of the information be waived and that the plea of not guilty be entered for the accused. The trial court allowed it. Is this a valid arraignment? No. Sec. 1 (b), rule 116 says “the accused must be present at the arraignment and must personally enter his plea.” The accused, therefor, cannot be arraigned through his counsel. Ref: Marcos vs. Ruiz, GR No. 707466, Sept. 1, 1992 2. A complaint for murder was filed with the MTC for preliminary investigation. The MTC Judge set the case for arraignment and ordered the arraignment of the accused. Did the MTC Judge act correctly? No. The accused must be arraigned before the court where the complaint or information has been filed or assigned for trial. In the problem presented, the complaint was filed with the MTC for preliminary investigation. Not for trial. Ref: Sec. 1 3. At his arraignment, X pleaded guilty to the charge of homicide. He, however, asked the court to allow him to present mitigating circumstances. In the course of the presentation of his evidence, he proved complete self-defense. May he still be acquitted? If so, what procedure should the court follow? Yes. X may still be acquitted. As held by the SC, it will certainly be a clear abuse of discretion on the part of the judge to persist in holding the accused bound to his admission of guilt and sentencing him accordingly when the totality of the evidence points to his acquittal. There is no rule which provides that simply because the accused pleaded guilty to the charge that his conviction automatically follows. Ref: People vs. Hon. Mendoza, GR No. 80845, March 14, 1994 In such a situation, the court should consider the plea of guilty as withdrawn, and in its place, order a plea of not guilty. Ref: GR No. L-26734, Sept. 5, 1987 Section 1(d), Rule 116 of the Revised Rules on Criminal Procedure already provides: “when the accused pleads guilty but presents exculpatory evidence, his plea shall be deemed withdrawn and a plea of not guilty shall be entered for him. Suppose there are three accused namely: X, Y, and Z. At their arraignment, X pleaded guilty, while Y and Z not guilty. Trial was held as to Y and Z. After trial, the court was convinced that all of them, including X, are not guilty. May the court still acquit X who earlier pleaded guilty? Yes. The court should consider X’s plea as withdrawn and order a plea of not guilty. QUESTIONS & ANSWERS IN REMEDIAL LAW

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4. When may the trial court allow the accused, upon a plea bargaining, to plead guilty to a lesser offense which is necessarily inckuded in the offense charged? At the arraignment, the accused, with the consent of the offended party and the prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. After arraignment, but before trial, the accused may still be allowed to plead guilty to a lesser offense after withdrawing his plea of not guilty. Of course, such plea of guilty must likewise be with the consent of the offended party and the prosecutor. Thus, the rule requires the private offended party to appear at the arraignment for purposes of plea bargaining, determination of civil liability, and other means requiring his presence. 5. In plea bargaining, may the trial court allow the accused to plead to a lesser offense without the consent of the private offended party? As a rule, no. But, if the offended party fails to appear at the arraignment despite due notice, the court may allow the accused to enter a plea of guilty to a lesser offense which is necessarily included in the offense charged with the conformity of the trial prosecutor alone. Ref: Sec. 1(f) But, take note that under Sec 20 of RA 645 as amended by RA 7659, “any person charged under any provision of this Act where the imposable penalty is reclusion perpetua to death shall not be allowed to avail of the provision on plea bargaining” 6. Sections 9 and 10 of Rule 116, allows discovery proceedings in criminal cases. Are these applicable during a preliminary investigation? No. the aforesaid provisions are applicable only after the filing of the information in court. The purpose of discovery proceedings is to assist the accused in making an intelligent plea during the arraignment and to prepare for trial. Ref: Webb vs Judge de Leon, et al., Aug. 23, 1995 7. In what instances shall the arraignment be suspended? Upon motion of the proper party, the arraignment shall be suspended in the following instances: a. The accused appears to be suffering from an unsound mental condition which effectively renders him unable to fully understand the charge against him and to plead intelligently thereto; b. There exists a prejudicial question; and c. A petition for review of the resolution of the prosecutor is pending at the DOJ or Office of the President, provided that the period of suspension shall not exceed 60 days counted from the filing of the petition with the reviewing office. Sec. 11, Rule 116. RULE 117 MOTION TO QUASH 1. When may the accused move to quash, the complaint or information, and on what ground? At any time before entering his plea, the accused may move to quash the complaint or information on any of the following grounds: QUESTIONS & ANSWERS IN REMEDIAL LAW

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a. That the facts charged do not constitute an offense b. That the court trying the case has no jurisdiction over the offense charged c. That the court trying the case has no jurisdiction ovr the person of the accused d. That the person who filed the information had no authority to do so e. That it does not conform substantially to the prescribed form f.

That more than one offense is charged except when a single punishment for various offenses is prescribed by law

g. That the criminal action or liability has been extinguished h. That it contains averments which if true would constitute a legal excuse or justifies i.

That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. Sections 1 and 3, Rule 117.

2. May the court entertain a motion to quash after the accused had already entered his plea? No, because the accused may move to quash the complaint or information only before he enters his plea. But, as an exception, a motion to quash may be entertained by the court even after the accused has already entered his plea if the ground therefor is any of the following: a. The facts charge do not constitute an offense b. The court has no jurisdiction over the offense charged c. The criminal action or criminal liability has been extinguished, and d. The accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. Ref: People vs Nitafan, et al., GR No. 107964-66, Feb. 1, 1999 3. What are the requisites of a provisional dismissal of the case? The following: a. It must be with the expressed consent of the accused; and b. It must be with notice to the offended party. Sec. 8, Rule 117 4. When does a provisional dismissal become permanent? If the offense is punishable by imprisonment not exceeding 6 yrs or a fine of any amount, a provisional dismissal thereof shall become permanent one year after the issuance of the order of dismissal without ht e case having been revived. If the offense is punishable by imprisonment of more than 6 yrs, the provisional dismissal thereof shall become permanent two years after the issuance of the order of dismissal without the case having been revived. Sec 8, Rule 117 QUESTIONS & ANSWERS IN REMEDIAL LAW

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RULE 118 PRE-TRIAL 1. What are the things to be considered at the pre-trial of criminal cases? The following: a. Plea bargaining b. The stipulation of facts c. Marking of identification of evidence of the parties d. Waiver of objection to admissibility of evidence e. Modification of the order of trial if accused admits the charge but interposes a lawful defense f.

Such matters as will promote a fair and expeditious trial of the criminal and civil aspects of the case. Sec 1,Rule118

2. When arraigned, the accused pleaded guilty to the charge of raping his own daughter, but he bargained for a lesser penalty. Complainant’s mother and the public prosecutor agreed to the imposition of a lesser penalty. The trial court sentenced the accused to suffer an imprisonment of ten years. Is this a valid plea bargaining? No. A plea for a lesser penalty is not a plea bargaining contemplated and allowed by the law and the rules of procedure. The only instance where a plea bargaining is allowed under the rules is when an accused pleads guilty to a lesser offense. Consequently, the judgment of the trial court convicting the accused on his plea of guilty, which is conditioned on the imposition of a lesser penalty, is void ab initio. People vs Magat, GR No. 130026, May 31, 2000 Take note that any person charged under the provisions of RA 7659 where the imposable penalty is reclusion perpetua to death shall not be allowed to take advantage of the provision on plea bargaining. Sec. 20-A, RA 7659 PRE-TRIAL ORDER- governs the conduct of the trial RULE 119 TRIAL 1. Section 17, Rule 119 allows the discharge of an accused to be utilized as a State witness. What are the requisites of the discharge? The following are the requisites: a. Two or more persons are jointly charge for the commission of an offense b. Before resting its case, the prosecution files a motion in court for the discharge of one or more of the accused so that they may be witnesses for the State c. The discharge of the accused being proposed as a State witness should be with his consent d. The court must require the prosecution, at a hearing, to present evidence and the sworn statement of the accused whose discharge is being sought e. After such hearing, the court is satisfied that: QUESTIONS & ANSWERS IN REMEDIAL LAW

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1. There is absolute necessity for the testimony of the accused whose discharge is requested 2. There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused 3. The testimony of said accused can be substantially corroborated in its material points 4. Said accused does not appear to be the most guilty. 5. Said accused has not at anytime been convicted of any offense involving moral turpitude 2. At the hearing on the motion for the discharge of an accused to be utilized as a State witness, his sworn statement shall be presented by the prosecution. Is this sworn statement admissible in evidence? If the court denies the motion for the discharge of the accused as a State witness, his sworn statement shall be inadmissible in evidence. Conversely, if the court grants the motion, his sworn statement is admissible in evidence. In fact, evidence adduced in support of the discharge shall automatically form part of the trial. Sec. 17, Rule 119 3. What is the effect of the order of the court discharging an accused to be utilized as state witness? The order discharging an accused to be utilized as a state witness shall amount to an acquittal of the discharged accused and shall be a bar to further prosecution for the same offense unless the accused fails or refuses to testify against his co- accused in accordance with his sworn statement constituting the basis for his discharge. Sec. 18, Rule 119 4. At the trial for multiple murder against X and Y, the prosecution called to X to testify as its first witness against Y. Y objected to the presentation of X as a witness on the ground that before X could be presented as a witness for the prosecution, he must first be discharge as a state witness pursuant to Section 17, Rule 119 roc. The trial court sustained Y’s objection. Is the trial court correct? No. The trial court is not correct. It is true that an accused cannot be made a hostile witness for the prosecution, for to do so would compel him to be a witness against himself. However, he may testify against a co- accused where he has agreed to do s, with full knowledge of his right and the consequences of his acts. It is not necessary that the court discharges him first as a state witness. There is nothing in the rules that says so. There is a difference between testifying as a state witness and testifying as a co- accused. In the first, the proposed state witness has to qualify as a witness to the state, after which he is discharged as an accused and exempted from prosecution. In the second, the witness remains an accused and can be made liable should he be found guilty of the criminal offense. The trial court must determine with certainty whether Y, indeed, has volunteered to testify for the prosecution lest his right against self- incrimination would be violated. People vs. Hon. Nazar U. Chaves and Miguel B. Paderanga, GR No 131377, Feb. 11, 2003 5. What is the rule on re- opening of trial? The rule is, at any time before finality of the judgment of conviction, the judge may, motu propio, or upon motion, with hearing in either case, reopen the proceedings to avoid a miscarriage of justice. Sec. 24, Rule 119. QUESTIONS & ANSWERS IN REMEDIAL LAW

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Rule 120 JUDGMENT 1. Z, who was charged with homicide, was out on bail. He was present during the trial and resented his evidence. After trial, the case was set for promulgation and, notice of promulgation was sent to him. He, however, failed to appear during the promulgation, and so the judgment finding him guilty of the offense charge was promulgated in his absence. May Z appeal from the judgment of conviction? No. the rule now is that if the judgment is for conviction and the failure of the accused to appear was without justifiable cause ,he shall lose his remedies against the judgment (such as appeal , motion for reconsideration, or new trial), and the court shall order his arrest. How may the accused, who failed to appear during the promulgation, avail himself of his remedies? If the accused wants to avail himself of the remedies (such as a as appeal, motion for reconsideration, or new trial), he must, within 15 days of the promulgation of the judgement, surrender and file a motion for leave of court to avail of the remedies. In his motion, he shall state the reasons for his absence during the promulgation and if he proves that his absence was for a justifiable cause, the court may allow him to avail of the remedies within 15 days from notice. (Ref: Sec. 6) RULE 121 NEW TRIAL OR RECONSIDERATION 1. Who may move for new trial or reconsideration, and when? The accused may move for new trial or reconsideration at any time before a judgement of conviction becomes final. However, the trial court at its instance but with consent of the accused grant a new trial or reconsideration at any time before a judgment of conviction becomes final. (Sec. 1, Rule 121) 2. What are the grounds for new trial? –reconsideration? The following are the grounds for new trial: a) That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trail; b) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at a trial and which if introduced and admitted would probably change the judgment. (Sec 2, Rule 121) The ground for reconsideration is errors of law or fact in the judgment which requires no further proceedings. (Sec. 3, Rule 121) 3. What are the requisites that must be satisfied so that new trial may be granted on the ground of newly discovered evidence? The following: a) The evidence was discovered after trial; QUESTIONS & ANSWERS IN REMEDIAL LAW

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b) Such evidence could not have been discovered and produces at the trail even with the exercise of reasonable diligence; c) The evidence is material, not merely cumulative, corroborative, or *peaching; and d) It must go to the merits as ought to produce a different result admitted. (Jose V. CA, et. al, G.R. No. L-38581, March 31, 1976) 4. X was found guilty by the trial court in a decision promulgated on May 2, 1999. On May 15, 1999, he filed a motion for new trial on the ground newly discovered evidence. The trial court granted the motion, and the case was tried de novo. After trial de novo, the trial court issued an order affirming its decision. A copy of the said order was receive by X on July 1, 1999, x filed a notice of appeal, but the trial court denied it. The trial court ruled that the notice of appeal was filed out of time because, according to it, the period to appeal should be reckoned from May 2, 1999, the date of promulgation of the decision. The trial court’s ratiocination is that when X filed his motion for new trial, he only had 2 days left to appeal; and because he received on July 1, 1999 the order which affirmed the decision, he had only up to July 3, 1999 to appeal. Is the trial Court correct? No, the trial court is not correct. If a motion for new trial of motion is granted, the decision is considered vacated whether said decision, is eventually, affirmed, modified or amended. Since the motion for new trial operates to vacate the original decision, the 15 day period to appeal should be reckoned from the notice of the order affirming (modifying or amending) the decision. Thus, in this particular case, X had until July 16, 1999 to file his notice of appeal. (Ref: Sec 6, Rule 121) RULE 122 APPEAL 1. Who may appeal from a judgment or final order rendered in criminal cases? Either the party (the accused or the prosecution) may appeal from a judgment or final order issued or rendered in a criminal case, provided that the appeal by the prosecution will not place the accused in double jeopardy. Sec. 1, Rule 122 Note that an appeal by the prosecution from a judgment of acquittal would place the accused in double jeopardy. People vs. CA, et al., GR No. 128986, June 21, 1999 However, an appeal by the prosecution from the order of dismissal of the criminal case shall not constitute double jeopardy if: a. Dismissal is made upon motion, or with the express consent of the defendant, and b. The dismissal not an acquittal or based upon consideration of the evidence or the merits of the case; and c. The question to be passed upon the appellate court is purely legal so that should the dismissal be found incorrect, the case would have to be remanded to the court for further proceedings, to determine the guilt or innocence of the defendant. ( people vs. Bellaflor, GR No. 103275, June 15, 1994, reiterating People vs. Villon, 192 SCRA 521)

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2. X, Y, and Z were convicted by the RTC and were sentenced to reclusion perpetua. Only X appealed from the judgment. The SC rendered a judgment partially granting the appeal by finding the appellant guilty of homicide only. May Y and Z who did not appeal be benefited by the judgment of the appellate court? Yes. On the effect of appeal by any of the several accused, Sec. 11, Rule 122 provides, in part: “an appeal taken by one or more of several accused shall not affect those who did not appeal, except, insofar as the judgment of the appellate court is favourable and applicable to the latter.’’ The accused who did not appeal may be benefited by the judgment of the appellate court insofar as it is favourable and applicable to him. With the modification of the judgment from murder to homicide in this case, it follows that the two other accused who did not appeal should benefit from the reduction of the sentence imposed on the crime committed. (People v. Baltar Jr., et al., G.R. No. 125306, Dec. 11, 2000) RULE 124 PROCEDURE IN THE COURT OF APPEALS 1. Convicted by the RTC of homicide, the accused appealed within the reglementary period to the court of appeals. Can you still file a motion for new trial? Yes, he can file his motion for new trial with the court of appeals, but only on the ground on newly discovered evidence, material to his defense. He can file this motion after the appeal from the lower court has been perfected and before the judgment of the appellate court convicting him becomes final. But, when a new trial is granted, the court of appeals may refer it to the court of origin. (Ref: Tan v. CA, 213 SCRA 316)

EVIDENCE 1. Define “Evidence”. Evidence is the means sanctioned by the rules of court ascertaining in a judicial proceeding the truth respecting a matter of fact. (Ref: Sec. 1, Rule 128 of the rules of court) 2. What is factum probandum?- factum probans? Factum probandum is the ultimate fact sought to be established. Factum probans is the evidentiary fact by which the ultimate fact is to be established. 3. If the accused has been subjected to a paraffin test, is the result of this test admissible in evidence? Yes. A paraffin test to which an accused had been subjected without counsel and without prior information of his Miranda rights is admissible. The constitutional rights of the accused, (to remain silent, etc.) extends only to testimonial confessions. (Ref: People v. Gamboa, 194 SCRA 372)

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4. In buy-bust operations, is the non-presentation of the poseur buyer as a witness fatal to the cause of the prosecution? No, the non-presentation of the poseur buyer is not fatal and will not be considered wilful suppression of evidence if his testimony is merely corroborative of the testimony of the police officer who has already testified. (Ref: People v. De Jesus, 205 SCRA 383) But, where the accused, in his defense, defies the buy-bust operations, it becomes incumbent upon the prosecution to present as a witness the poseur buyer to rebut the accused’s testimony. Thus, in such a situation, the non-presentation of the poseur buyer as a witness would give rise to the presumption that evidence is being suppressed wilfully and that it is adverse if produced. (Ref: People v. Yabut, 210 SCRA 294) And, where there are material discrepancies in the testimonies of the prosecution witnesses, the poseur buyer should be presented as a witness to attest to the circumstances surrounding the arrest of the accused. (Ref: People v. Sillo, 214 SCRA 74) Also, where only the poseur buyer negotiated with the accused and the policemen were not privy to the alleged transactions, the testimony of the poseur buyer is crucial as he was the only one who could testify as what transpired between him and the accused. (Ref: People v. Villaviray, et. al., Sept 16, 1996) 5. Is the prosecution’s failure to present in evidence the marked money allegedly paid to the accused in a buy-bust operation fatal to the cause of the people? If there is a categorical declaration of a transfer of money, then the money is a material evidence to prove that there was indeed a “transactional relationship” between the police/witness and the accused, who as is often the case in buy-bust operations is immediately apprehended after the “transaction”. (Ref: People v. Mendoza, et al., 203 SCRA 148) If the accused was not able to get or receive the money before his apprehension, there is no necessity to present the money as long as the Marijuana actually given by the accused was presented at the trial. (Ref: People v. Tejada, 170 SCRA 497). 6. At his trial for illegal sail of Marijuana, accused objects to the admissibility of a xerox copy of the P1000 marked bill, arguing that it is not the best evidence. Rule on the objection Objection overruled. The marked money is not a document falling under the best evidence rule. The best evidence rule applies only when the contents of the documents are the subjects of inquiry. (Ref: People v. Tandoy, 192 SCRA 38). 7. After the buy-bust operation, the accused, at the instance of the police officers, signed a receipt acknowledging ownership of the marijuana described in the said receipt. Is the receipt admissible in the evidence? No. the receipt is not admissible if the accused signed it without the assistance of counsel and without being informed of his Miranda Rights. This is so because the receipt is in effect an extra judicial confession. (Ref: People v. Lim, 196 SCRA 809)

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8. Section 4, Rule 118 of the ROC (on criminal procedure) provides that, “No agreement or admission made or entered into during the pre-trial conference shall be used in evidence against the accused unless reduced to writing and signed by him and his counsel.” Suppose during the trial, the defense counsel made some admission but these were not in writing or although in writing, it was not signed by the accused, could these admissions be used in evidence against the accused? Yes. Admissions by the defense counsel or stipulations of facts entered into by the prosecution and defense counsel during trial in open court is automatically reduced into writing and contained in the official transcript of the proceedings had in court. The conformity of the accused in the form of his signature affixed thereto is unnecessary in view of the fact that “an attorney who is employed to manage a party’s conduct of a lawsuit XXX has prima facie authority to make relevant admissions by pleadings, by oral or written stipulation, XXX which, unless allowed to be withdrawn, are conclusive.” (Ref: People v. Hernandez, G.R. No. 108028, July 30, 1996) The aforequoted provision of Sec for Rule 118 applies only to agreement or admission made or entered into during the pre-trial conference. R.A. 8493(the Speedy trial act of 1998) contains a similar provision: “all agreements or admissions made or entered into during the pre-trial conference shall be reduced into writing and signed by the accusd and councel, otherwise the same shall not be used in evidence against the accused.” Sec 3. 9. Suppose the accused is adversely affected by the ruling of the trial court on the admissibility of evidence, what is his remedy? The remedy of the accused, if he is convicted, is to appeal from the judgment of conviction and assign the ruling of the court as an error. This is because the ruling of the trial court on the admissibility of evidence is interlocutory, and therefore it cannot be the subject of a separate appeal. 10. May a lawyer refuse to divulge the identity of his client under the lawyer-client privilege rule? The general rule is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of his client. Among the exceptions are: a) If there is strong probability that revealing the client’s name would implicate that client in the very activity for which he sought the lawyer’s advice; b) Where disclosure of the client’s name would open the client to civil liability; c) When the client’s name has an independent significance such that disclosure of the name would reveal client’s confidences. (Ref: Regala vs. Sandiganbayan, Sept 20, 1996) 11. Upon his counsel’s request, the plaintiff testified in narrative form. The defense objects to this manner of giving testimony. Rule on the objection. Objection overruled. There is no legal principle which prevents a witness from giving his testimony in narrative form if he is requested to do so by the examining counsel. It is within the discretion of the judge to direct a witness to testify in question-and-answer form, or allow him to testify in a narrative form. (Ref: People vs. Calixto, 193 SCRA 303)

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12. The accused offered to marry his victim whom he had raped. The victim rejected the offer. What is the effect of this offer? It may be given in evidence as an admission by the accused of his guilt. (Ref: People v. Gerones, 193 SCRA 425) 13. What is meant by falsus in uno, falsus in omnibus? It means “false in one, false in all.” In Lagunsad vs. CA, G.R No. 104939, Feb 2,1994, it was held that before this maxim can be applied, it must be shown that the witness wilfully falsified the truth on one or more material points. Even then the court may yet admit and credit those portions of the testimony which it thinks is worthy of belief. 14. What is the res inter alios acta rule? The res inter alios acta rule ordains that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. (Ref: Sec 28, Rule 130 ROC) 15. What are independently relevant statements? These are statements which are relevant, independently of whether they are true or not. They may be grouped into two classes: a) Those statements which are the very facts in issue; and b) Those statements which are circumstantial evidence of the facts in issue. (Ref: Moran, comments on the ROC, vol 5, c. 1980, p285). 16. Is circumstantial evidence sufficient for conviction? Yes, if: a) There is more than one circumstance; b) The facts from which the inference were derived are proven; c) The combination of all the circumstance is such as to produce a conviction beyond reasonable doubt. (Ref: Sec 4, Rule 133 ROC) 17. What is the quantum of proof required before administrative or quasi-judicial bodies? What is required is merely substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. (Ref: Sec5, Rule 133 ROC)

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