03 Crimpro

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REMEDIAL LAW REVIEWER UP LAW C im a P o e u e r in l r c d r Table of Contents A. General Matters………………………………… 170 1. Distinguish Jurisdiction over subject matter from jurisdiction over person of the accused…………... 170 2. Requisites for exercise of criminal jurisdiction... 170 3. Jurisdiction of Criminal courts………………….. 171 4. When injunction may be issued to restrain criminal prosecution………………………………………….. 172 B. Prosecution of Offenses……………………… 172 1. Criminal actions, how instituted………………… 172 2. Who may file them, crimes that cannot be prosecuted de officio……………………………….. 172 3. Criminal actions, when enjoined……………….. 173 4. Control of prosecution…………………………… 174 5. Sufficiency of Complaint or Information……….. 174 6. Designation of Offense………………………….. 175 7. Cause of the Accusation………………………... 175 8. Duplicity of the Offense; Exception……………..176 9. Amendment or Substitution of complaint or information……………………………………………176 10. Venue of criminal actions……………………… 176 11. Intervention of offended party………………….177 C. Prosecution of Civil Action…………………... 177 1. Rule on implied institution of civil action with criminal action………………………………………..177 2. When civil action may proceed independently.. 177 3. When separate civil action is suspended………178 4. Effect of the death of accused or convict on civil action………………………………………………….178 5. Prejudicial Question……………………………... 178 6. Rule on Filing Fees in civil action deemed instituted with the criminal action……………………………...178 D. Preliminary Investigation…………………….. 178 1. Nature of right……………………………………. 178 2. Purposes of preliminary investigation…………. 179 3. Who may conduct determination of existence of probable cause……………………………………… 179 4. Resolution of investigation prosecutor………… 180 5. Review……………………………………………. 180 6. When warrant of arrest may issue……………... 180 7. Cases not requiring a preliminary investigation. 180 8. Remedies of accused if there was no preliminary investigation…………………………………………. 181 9. Inquest……………………………………………..181 E. Arrest…………………………………………….. 181 1. Arrest, how made…………………………………181 2. Arrest without warrant, when lawful……………. 182 3. Method of arrest…………………………………..182 a. by officer with warrant……………………… 182 b. by officer without warrant………………….. 183 c. by private person…………………………… 183 4. Requisites of a valid warrant of arrest…………. 183 5. Determination of Probable Cause for issuance of warrant of arrest…………………………………….. 183 6. Distinguish probable cause of fiscal from that of a judge…………………………………………………. 183 F. Bail………………………………………………... 183 1. Nature……………………………………………...183 2. When a matter of right; exceptions…………….. 184 3. When a matter of discretion…………………….. 184 4. Hearing of application for bail in capital offenses…………………………………………….... 185 5. Guidelines in fixing amount of bail……………... 185 6. Bail when not required…………………………... 185 7. Increase or Reduction of Bail……………………186 8. Forfeiture and Cancellation of bail……………... 186 9. Application not a bar to objections in illegal arrest, lack of or irregular preliminary investigation……... 186 10. Hold Departure Order & Bureau of Immigration Watchlist……………………………………………... 186 G. Rights of the Accused………………………… 186 1. Rights of accused at the trial…………………… 186 2. Rights of persons under Custodial Investigation…………………………………………. 187 H. Arraignment and Plea…………………………. 188 1. Arraignment and Plea, how made………………188 2. When should plea of NOT GUILTY be entered. 189 3. When may accused enter a plea of guilty to a lesser offense……………………………………….. 189 4. Accused plead guilty to capital offense, what the court should do……………………………………… 189 5. Searching Inquiry………………………………… 189 6. Improvident plea…………………………………. 189 7. Grounds for suspension of arraignment………. 189 I. Motion to Quash………………………………… 190 1. Grounds……………………………………………190 2. Distinguish from demurrer to evidence………... 193 3. Effects of sustaining the motion to quash……...193 4. Exception to the rule that sustaining the motion is not a bar to another prosecution………………….. 194 5. Double Jeopardy………………………………….194 16 8 REMEDIAL LAW REVIEWER UP LAW 6. Provisional Dismissal……………………………. 195 J. Pre-trial…………………………………………… 196 1. Matters to be considered during pre-trial……… 196 2. What the court should do when prosecution and offended party agree to the plea offered by the accused……………………………………………… 196 3. Pre-trial agreement……………………………….196 4. Non-appearance during pre-trial……………….. 197 5. Pre-trial order…………………………………….. 197 6. Referral of some cases for Court Annexed Mediation and Judicial Dispute Resolution………. 197 K. Trial………………………………………………..197 1. Instances when presence of accused is required by law……………………………………………………. 198 2. Requisite before trial can be suspended on account of absence of witness………………………………. 198 3. Trial in Absentia………………………………….. 198 4. Remedy when accused is not brought to trial within the prescribed period………………………………..198 5. Requisites for discharge of accused to become a state witness………………………………………… 198 6. Effects of Discharge of accused as state witness……………………………………………….. 199 7. Demurrer to Evidence…………………………… 199 L. Judgment…………………………………………200 1. Requisites of a judgment………………………...200 2. Contents of Judgment…………………………… 200 3. Promulgation of judgment; instances of promulgation of judgment in absentia……………..202 4. When does judgment become final (four instances) ……………………………………………. 203 M. New Trial or Reconsideration……………….. 203 1. Grounds for New Trial…………………………… 203 2. Grounds for Reconsideration…………………… 203 3. Requisites before a new trial may be granted on ground of newly discovered evidence……………. 203 4. Effects of granting a new trial or reconsideration……………………………………… 204 5. Application of Neypes Doctrine in Criminal Cases………………………………………………… 204 N. Appeal……………………………………………. 204 1. Effect of an Appeal………………………………. 204 2. Where to appeal…………………………………. 204 3. How appeal taken………………………………...205 4. Effect of appeal by any of several accused…… 210 5. Grounds for dismissal of appeal……………….. 210 O. Search and Seizure……………………………. 211 1. Nature of search warrant………………………...211 2. Distinguish from warrant of arrest……………… 212 3. Application for search warrant, where filed…… 212 4. Probable Cause………………………………….. 214 5. Personal examination by judge of the applicant and witnesses……………………………………………..214 6. Particularity of place to be searched and things to be seized…………………………………………….. 215 7. Personal property to be seized………………….216 8. Exceptions to search warrant requirement……. 216 a. Search incidental to lawful arrest…………. 216 b. Consented Search…………………………..216 c. Search of moving vehicle………………….. 217 d. Check points; body checks in airport…….. 217 e. Plain view situation…………………………. 217 f. Stop and Frisk situation…………………….. 217 g. Enforcement of Custom Laws…………….. 217 9. Remedies from unlawful search and seizure…. 218 P. Provisional Remedies…………………………. 219 1. Nature……………………………………………...219 2. Kinds of provisional remedies………………….. 219 16 9 Criminal REMEDIAL LAW REVIEWER Leofred Ledesma U P L A W Patrick Henry Salazar Heads Academics A. GENERAL MATTERS 1. Distinguish Jurisdiction over subject matter from jurisdiction over person of the accused 2. Requisites jurisdiction for exercise of criminal Michelle Go Subject Editor Richard Beltran Alzhoheir Hajim Criminal Procedure Heads 3. Jurisdiction of Criminal courts 4. When injunction may be issued to restrain criminal prosecution 1. Distinguish Jurisdiction over subject matter from jurisdiction over person of the accused Jurisdiction over Subject Matter • It is defined by law; determined by the extent of the penalty which law imposes based on the facts as recited in the complaint/information constitutive of the offense charged. o General rule: The court’s jurisdiction to try a criminal action is to be determined by the law at the time of the institution of the action. Succeeding legislation placing jurisdiction in another tribunal will not affect jurisdiction already obtained by a court. o Exception: Where the succeeding statute expressly provides, or is construed that it is intended to operate to actions pending before its enactment, in which case the court where the criminal action is pending is ousted of jurisdiction and the pending action will have to be transferred to the other tribunal, which will continue the proceeding. Jurisdiction over the Person of the Accused • Acquired either by: a.) ARREST of person or b.) VOLUNTARY SUBMISSION by the person • Voluntary appearance of the accused is accomplished by: a.) His pleading to the merits (filing a motion to quash, appearing for arraignment, or entering trial) or b.) by filing Bail Jiselle Compuesto Gianna Comsti Krizel Malabanan Rafaella Reyes Writers Layout Yasmin Refran Head Tina Amador . Victoria Caranay . Moi Colobong Daniel Luis Convocar . Erika Esperas . Carlo Marcaida Leo Morillo . Anne Jaycelle Sacramento . Janz Serrano Members 17 0 Bar Operations Commission 2011 Prof. Theodore Te Facutly Adviser Maria Carmela Maranan Commissioner Bar Candidates’ Welfare Purita Angela Sandalo . Maria Fatima Macanan Human Resources Jill Maureen Hernandez Lectures Loraine Mendoza . Andrew Santiago . Eden Mopia Mock Bar Arianne Cerezo . Arman Mislang Logistics Andrew John Lena . Pauline Alejandre Secretariat B arbie Perez F inance aim Mari Crisostomo Cuayo Juico . Lia Veneracion . Kriska Chen Sam Sy . Mickey Chatto J E vents ena De Mesa JP Rotap . Naomi Quimpo . Mario Cerilles J O perations H otel: Lei Flores . Ray Velasco DayOps: Krystel Bautista Food: AJ Toda.Krizel Malabanan Transpo: Rex Regis.Charles Icasiano Linkages: Jose REMEDIAL LAW REVIEWER Lacas UP LAW Jurisdiction Over the Subject Matter Derived from the law. It can never be acquired solely by consent of the accused. The absence of court’s jurisdiction over the subject matter may be raised at any stage of the proceeding. The right to make such objection is never waived. Jurisdiction Over The Person of the Accused May be acquired by consent of the accused or by waiver of objections. Failure of the accused to make objection in time would constitute a waiver of the objection. ingredients of the crime took place have concurrent jurisdiction. The first court taking cognizance of the case will exclude the others [People vs. Grospe (1988)] 3. Jurisdiction of Criminal courts How Determined • Determined by the allegations of the complaint or information. • By examination of the complaint/information to ascertain that the facts set out and punishment fall under jurisdiction of court. [People v. Ocaya (1978)] • Jurisdiction over Complex Crimes (2003 Bar): lodged with the court having jurisdiction to impose the maximum and most serious penalty imposable on an offense forming part of the complex crime. [Cuyos v. Hon. Garcia (1988)] Military Courts General rule: Ordinary courts will have jurisdiction over cases involving members of the armed forces, and other persons subject to military law, including members of the Citizens Armed Forces Geographical Units who commits crimes under the RPC or special laws, regardless of who the co-accused or victims are. Exception: When, as determined by the ordinary court during arraignment, the offense is serviceoriented, then it will be tried by the court martial. Provided: the President may, in the interest of justice, order/direct at any time before arraignment that any such crimes/offenses be tried by the proper civil courts. 2. Requisites for exercise of criminal jurisdiction • WON the court has jurisdiction over the offense by virtue of the imposable penalty and its nature JURISDICTION) (SUBJECT MATTER 17 1 • WON the action has been filed within the TERRITORIAL JURIDICTION of the court o Refers to VENUE or the place where the case is to be tried. The action should be instituted and tried in the municipality or territory where offense has been committed or where any one of the essential ingredients thereof took place. For transitory/ continuing offenses, the courts of the territories where the essential o Jurisdiction of Courts MTC RTC SANDIGANBAYAN • Exclusive original jurisdiction over all violations of city/municipal ordinances committed within their respective territorial jurisdiction. [Sec. 32 BP 129] • Exclusive original jurisdiction all criminal cases not within the exclusive jurisdiction of any court/tribunal/body. [Sec. 20, BP 129] o Exception: Those now falling under the exclusive and concurrent jurisdiction of the Sandiganbayan, which shall hereafter be exclusively taken • Exclusive original jurisdiction in those cases expressly enumerated in PD 1606, as amended by RA 8249 Violations of RA 3019 – AntiGraft and Corrupt Practices Act, RA 1379, Chapter II, Section 2, Title VII, Book II of the RPC Officials enumerated are the following: • Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding 6 years irrespective of the amount of fine, and regardless of other REMEDIAL LAW REVIEWER UP LAW imposable accessory or other penalties, including the 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 they shall have exclusive original jurisdiction thereof. [Sec. 32, BP 129] Exception: Cases falling within the exclusive original jurisdiction of RTCs and of the Sandiganbayan. [Sec. 32, BP 129] Cases classified under the Revised Rules on Summary Proceedings: [SC Resolution, October 15, 1991] o Violations of traffic laws/rules/ regulations; o Violations of rental law; o Cases where the penalty prescribed by law for the offense charged is imprisonment not exceeding 6 months, or a fine not exceeding P1,000, or both, irrespective of other imposable penalties, accessory or otherwise, or of the civil liability arising therefrom: Provided, however, that in offenses involving damage to property through criminal negligence, this Rule shall govern where the imposable fine does not exceed P10,000.  Exception: a criminal case falling under the aforementioned list where the offense charged is necessarily related to another criminal case subject to the ordinary procedure. cognizance of by the latter. [Sec. 20, BP 129] • Criminal cases where one or more of the accused is below eighteen (18) years of age but not less than fifteen (15) years, or where one or more of the victims is a minor at the time of the commission of the offense [RA 9344] • Cases against minors cognizable under the Dangerous Drugs Act, as amended. • Violations of Republic Act No. 7610, the Child Abuse Act. • Cases of domestic violence against women and children. If an act committed against women and children likewise constitute a criminal offense, the accused or batterer shall be subject to criminal proceedings and the corresponding penalties. (Rep. Act No. 8369, Family Courts Act of 1997) o Officials of the executive branch occupying the positions of regional director and higher, otherwise classified as Grade '27' and higher, of the Compensation and Position Classification Act of 1989 (RA 6758) o Members of Congress and officials thereof classified as Grade'27'and up under the Compensation and Position Classification Act of 1989 o Members of the judiciary without prejudice to the provisions of the Constitution o Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the Constitution • Other offenses or felonies whether simple or complexed with other crimes committed by public officials and employees in relation to their office Requisites: o Accused is any one of the public officials enumerated in subsec. (a) of Sec. 4 of Ra 8249, grade 27 or higher o Accused commits any other offense or felony, than those specified in subsec. (a) whether simple or complexed with other crimes; and offender commits such other offense or felony in relation to his office 17 2 4. When injunction may be issued to restrain criminal prosecution General rule: The prosecution of a criminal case may not be enjoined by prohibition/ injunction. Rationale: Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society. Exceptions (1999 Bar) REMEDIAL LAW REVIEWER UP LAW • • • • • • • • • • • To afford protection to the constitutional rights of the accused; Necessary for the orderly administration for justice or to avoid multiplicity of actions; There is a prejudicial question which is sub judice; The acts of the officer are without or in excess of authority; The prosecutions is under an invalid law/ordinance/regulation; When double jeopardy is clearly apparent; The court has no jurisdiction over the offense; A case of persecution rather than prosecution; The charges are manifestly false and motivated by the lust for vengeance; There is clearly no prima facie case against the accused and MTQ on that ground has been denied; Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners. Institution and Commencement of actions • For offenses which require a preliminary investigation pursuant to section 1 of Rule 112 (where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard to the fine), the criminal action is instituted by filing the complaint with the appropriate officer for PI. In offenses cognizable by inferior courts, the complaint or information is filed directly with said courts or the complaint is filed with the fiscal. In Metropolitan Manila and other chartered cities, the complaint may be filed with the office of the public prosecutor unless otherwise provided in their charters. [Rule 110, Sec. 1] • The criminal action is commenced when the complaint or information is filed in court. Effect of the Institution of criminal action on the prescriptive period • General Rule o The institution of a criminal action shall interrupt the running of the period of prescription of the offense charged unless otherwise provided in special laws. [Rule 110, Sec. 1] o Prescription is interrupted with the filing of the case even if if the court is without jurisdiction (Francisco vs. CA, 122 SCRA 538) B. PROSECUTION OF OFFENSES 1. Criminal actions, how instituted 2. Who may file them, crimes that cannot be prosecuted de officio 3. Criminal actions, when enjoined 4. Control of prosecution 5. Sufficiency of Complaint or Information 6. Designation of Offense 7. Cause of the Accusation 8. Duplicity of the Offense; Exception 9. Amendment or Substitution of complaint or information 10. Venue of criminal actions 11. Intervention of offended party • Exception The Court held that the interruption of the prescriptive period upon the institution of the complaint under Sec.1 of Rule 110 does not apply to cases for violation of special acts and municipal ordinances. This is governed by Act No. 3326 and is interrupted only by the institution of judicial proceedings for its investigation and punishment. [Zaldivia vs. Reyes, 211 SCRA 277] 2. Who may file them, crimes that cannot be prosecuted de officio 1. Criminal actions, how instituted In general A criminal action is commenced in this jurisdiction by the filing of a complaint or information. The complaint may be filed either with the MTC or with a public prosecutor for purposes of conducting a preliminary investigation. General Rule • All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor [Rule 110, Sec. 5] • The public prosecutor is a quasi-judicial officer and a representative of sovereignty whose REMEDIAL LAW REVIEWER UP LAW obligation to govern impartially is as compelling as its obligation to govern at all. Exception • In case of (1) heavy work schedule of the public prosecutor or (2) in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecution to prosecute the case subject to the court’s approval. The authority will continue up to the end of the trial even in the absence of a public prosecutor until revoked or withdrawn. • The private prosecutor is the attorney representing the offended where the civil action for recovery of civil liability is instituted with the criminal case. Cases that cannot be prosecuted de oficio Those which cannot be prosecuted except upon complaint filed by the aggrieved/offended party are the following: 1. Adultery/concubinage 2. Seduction, abduction, acts of lasciviousness 3. Defamation which consists of imputation of any of the foregoing offenses. Rationale: The aggrieved party might prefer to suffer the outrage in silence rather than go through the scandal of a public trial. Offended parties who can file complaint death/incapacity and he has no known parents/grandparents/ guardians. • In adultery/concubinage, such death does not extinguish the criminal liability of accused. b. Desistance by offended party • It does not bar the People of the Philippines from prosecuting the criminal action, but it operates as a waiver of the right to pursue civil indemnity. • An affidavit of desistance cannot justify dismissal of the complaint if made after (and not before) the institution of the criminal action. c. Pardon by offended party In rape, seduction, abduction and acts of lasciviousness of a minor – The pardon will be effective if given by both parents and the offended party. • In seduction, abduction and acts of lasciviousness - Express pardon by the offended party, parents, grandparents or guardian will prevent prosecution. [Rule 110, Sec. 5] • The parents/grandparents/guardian of the offended minor (in that order) cannot extend a valid pardon without conformity of the offended party, even if the latter is a minor. [US v. Luna (1902)] • If the offended woman is of age and not incapacitated, only she can extend a valid pardon which would absolve the offender. • 17 3 • In adultery and concubinage – The offended spouse. Both guilty parties should be included if both are alive. However, a criminal prosecution will not prosper if the offended party consented to the offense. • In oral defamation – can only be brought upon instance and upon complaint of the offended party. 2. Effect of Death of offended party • Once a complaint is filed, the will of the offended party is ascertained and the action proceeds. Death after filing the complaint would not deprive the court of the jurisdiction to try the case. • The State shall initiate the action on behalf of the offended party in case of his General rule Pardon must be made before the filing of the criminal complaint in court EXCEPT in rape where marriage between the offender and the offended party would be effective as pardon even when the offender has already commenced serving his sentence) • If there are more than one accused, the pardon must be extended to all offenders. • Marriage between offender and offended party. • Pardon or desistance extinguishes civil liability. • Pardon or express condonation has the effect of waiving the civil liability with regard to the interest of the injured party. Liability arising from an offense is extinguished in the same manner as other obligations. REMEDIAL LAW REVIEWER UP LAW 3. Criminal actions, when enjoined General rule: The prosecution of a criminal case may not be enjoined by prohibition/ injunction. Rationale: Public interest requires that criminal acts be immediately investigated and prosecuted for the protection of society. Exceptions (1999 Bar) • To afford protection to the constitutional rights of the accused; • Necessary for the orderly administration for justice or to avoid multiplicity of actions; • There is a prejudicial question which is sub judice; • The acts of the officer are without or in excess of authority; • The prosecutions is under an invalid law/ordinance/regulation; • When double jeopardy is clearly apparent; • The court has no jurisdiction over the offense; • A case of persecution rather than prosecution; • The charges are manifestly false and motivated by the lust for vengeance; • There is clearly no prima facie case against the accused and MTQ on that ground has been denied; • Preliminary injunction has been issued by the SC to prevent the threatened unlawful arrest of petitioners. 4. Control of prosecution Extent of the prosecutor’s control a. Prior to the filing of the case • The prosecutor has the discretion to file or not to file a criminal action. • The prosecutor is vested with discretion as to who is to prosecute and for what; he cannot be compelled to file a particular information. However, if the evidence presented at the PI leaves no doubt as to what crime was committed and by whom, then mandamus is available to compel the prosecuting officer to file the corresponding complaint or information in accordance with the evidence [Bernabe vs. Bolinas, 18 SCRA 812]. b. After a case is filed • Once a criminal case has been filed in court, it is the prosecutor’s duty, regardless of his personal convictions or opinions, to proceed with the presentation of his evidence to enable the court to arrive at its own judgment as to the accused’s culpability. • After an action has been filed in court, the prosecutor has no power to dismiss the action without the court’s consent. While the Secretary of Justice has the authority to review the acts of his subordinates in criminal cases, the court has always has the discretion to try a motion to dismiss which the prosecution may file after the Secretary of Justice reverses an appealed decision. [Roberts Jr. vs. CA, GR 113930] The trial court is not bound to adopt the resolution of the Secretary of Justice since it is mandated to independently evaluate or assess the merits of the case and it may either agree or disagree with the recommendation of the Secretary of Justice. Effects of the lack of intervention by the fiscal in the trial • Although the private prosecutor had previously been authorized by the special counsel to present the evidence for the prosecution, in view of the absence of the City Fiscal at the hearing, it can’t be said that the prosecution of the case was under the control of the City Fiscal. It follows that the evidence presented by the private prosecutor at said hearing could not be considered as evidence for the plaintiff [People vs. Beriales, 70 SCRA 361]. 5. Sufficiency of Complaint or Information 1) Complaint defined Definition: 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. [Rule 110, Sec. 3] Persons authorized to file the complaint: o offended party o any peace officer o other public officer charged with the enforcement of the law violated. • Complaint refers to private crimes. • • REMEDIAL LAW REVIEWER UP LAW • Criminal cases under the Revised Rules on Summary Procedure shall be either by complaint or by information; provided that in MM and in chartered cities the criminal action may only be commenced by the filing of information (which means by the prosecutor), except when the offense cannot be prosecuted de oficio. • The complaint must be under oath. But lack of oath is not a formal defect and will not invalidate a judgment. 2) Information defined Definition: An accusation in writing, charging a person with an offense, subscribed by the prosecutor and filed with the court. [Rule 110, Sec. 4] It is filed by the prosecutor and need not be under oath. But it must be signed and subscribed by the fiscal/prosecutor. What the prosecutor signs under oath is the certification that he has conducted the required preliminary investigation (PI). Lack of certification does not invalidate judgment. [People v. Bulaong (1981)] Information is valid when signed by prosecutor who has authority to conduct PI of the offense committed within his jurisdiction. Information refers to public crimes. The "complaint" referred to in Rule 110 contemplates one filed in court, not with the fiscal. In that case, the proceeding must be started by the aggrieved party himself. As a general rule, a criminal action is commenced by complaint or information, both of which are filed in court. In case of a complaint, it must be filed by the offended party; with respect to an information, it is the fiscal who files it. But a "complaint" filed with the fiscal prior to a judicial action may be filed by any competent person. [Ebarle v. Sucaldito (1987)] Form & Substance Name of the accused • It must include the name and surname of the accused, as well as any appellation or nickname by which he has been or is known. • If the name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown. His true 17 name will be inserted if eventually disclosed or 4 appears in some manner to the court. [Rule 110, Sec. 7] • If there are more than 1 accused, name all of them. [Rule 110, Sec. 6] Place of commission of offense • • • General rule: It is sufficient if it can be understood that the offense (or some of its essential ingredients) was committed within jurisdiction of the court. Exception: If the particular place where it was committed: o Constitutes an essential element of the offenses charged; o Is necessary for its identification. • • • Time of commission of the offense • • • • • 3) Sufficiency of complaint or information A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. [Rule 110, Sec. 6] General rule: The precise date is not necessary. • Exception: When the date is a material ingredient of the offense. • The determinative factor in the resolution of the question involving a variance between allegation and proof in respect of the date of the crime is the element of surprise on the part of the accused and his inability to defend himself properly. o Need not be exact  As long as the alleged date is not so remote or far removed from the actual date so as to surprise and prejudice the accused, then the information is valid. o When date is so remote: defective  The allegation in the information of “on or about the year 1992” is defective as it violates Rule 110, Sec. 11 and the accused’s right to be informed of the nature and cause of the accusation against him, because the phrase not only includes 12 months of the year 1992 but also years prior and subsequent to 1992. o Remedy in case of defect in averment of time REMEDIAL LAW REVIEWER UP LAW   The remedy against an indictment that fails to allege the time of commission of the offense with sufficient definiteness is a motion for a bill of particulars under Rule 116, Sec. 6. The accused may also file a MTQ on the ground that allegations are so vague and the time of commission of the offense so remote that he is denied due process and the right to be informed of the accusation against him. But defect in the date is not a ground for MTQ under Rule 116. • • To enable a person of common understanding to know what offense is intended to be charged; To enable the court to pronounce proper judgment. Allegations required to safeguard right to be informed • Allegations must be in ordinary or concise language, sufficient to enable a person of common understanding to know what offense is being charged. This must be done both for the offense charged and the circumstances involved in its commission. [Rule 110, Sec. 9] The prosecutor’s characterization of the crime is immaterial and purposeless. The facts stated in the body of the complaint/information determine the crime of which the accused stands charged and for which he must be tried. • • Name of the offended party [Rule 110, Sec. 12] • If an offense against person: Name and surname; nickname/appellation; fictitious name, if real name is unknown. • If an offense against property: o If name is unknown, particularly describe the property to identify the offense; o If the name is later known, insert it; o If a juridical person, name or known name; without need to aver that it is juridical. • Where the name of the injured party is necessary as matter of essential description of the crime charged, the complaint must invest such person with individuality by either naming him or alleging that his name is unknown. • It is elementary that in crimes against property, ownership must be alleged as matter essential to the proper description of the offense. [US v. Lahoylahoy (1918)] 6. Designation of Offense • Aver the acts and omissions constituting the offense. • Specify the qualifying and aggravating circumstances. [Rule 110, Sec. 8] • This is a procedural requirement to safeguard the right of the accused to be informed of the nature and cause of the accusation against him. Information is legally viable as long as it distinctly states the statutory designation of the offense and the acts or omissions thereof. • In case of a conflict between the designation of the crime and the recital of facts constituting the offense, the latter prevails over the former. 7. Cause of the Accusation Purpose Qualifying and aggravating circumstances must be alleged Under the 2000 Rules of Criminal Procedure [Rule 110, Sec. 8], aggravating circumstances must be specified in the information, otherwise they are not to be considered even if proven during the trial. What to allege a) Where law prescribes exceptions • • General rule: Where the law alleged to have been violated prohibits generally acts therein defined and is intended to apply to all persons indiscriminately, but prescribes certain limitations/exceptions from its violation, the indictment/information is sufficient if it alleges facts which the offender did as constituting a violation of law, without explicitly negating the exception, as the exception is a matter of 17 5 defense which the accused has to prove. Exception: Where the statute alleged to have been violated applies only to specific classes of persons and special conditions and the exemptions from its violation are so incorporated in the language defining the crime that the ingredients of the offense cannot be accurately and clearly set forth if the exemption is omitted, then the indictment must show that the accused does not fall within the exemptions. b) Where exceptions form as ingredients of offense If the exception is needed for defining the offense, REMEDIAL LAW REVIEWER UP LAW then the information should negate the exception. [US v. Chan Toco (1908)] c) Where complex crime is charged Where what is alleged in the information is a complex crime and the evidence fails to support the charge as to one of the component offenses, the defendant can only be convicted of the offense proven. 8. Duplicity of the Offense; Exception Duplicity of offenses [Rule 110, Sec. 13] offense charged in, or excludes any accused from, the complaint/information, it can be made only upon motion of the prosecutor, with notice to the offended party and with leave of court. Substantial amendments after plea proscribed • Unlike formal amendments, substantial amendments cannot be introduced after plea. [People v. Zulueta (1951)] • Substantial matter in a complaint is the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. [Almeda v. Villaluz (1975)] Formal amendments after plea • It may be made after plea and during trial; but it should not cause prejudice to the rights of the accused. • The test as to WON a defendant is prejudiced by the amendment of information is – o WON a defense under the information as it originally stood would be available after the amendment is made, and o WON any evidence defendant might have would be equally applicable to the information in the one form as in the other. [People v. Casey (1981)] AMENDMENT Formal or Substantial changes Can be effected without leave of court Only as to form, there is no need for another PI and retaking of plea Amended information refers to the same offense charged in the original information or to an offense which is included in the original charge; can invoke double jeopardy SUBSTITUTION Substantial change form original Must be with leave of court Another PI is entailed and accused has to plead anew Involves a different offense which does not include those provided in the original charge; cannot invoke double jeopardy • General rule The information must charge only one offense. • Exception When the law prescribes a single punishment for various offenses • Purpose To give the accused the necessary knowledge of the charge to enable him to prepare his defense. Hence, when an information charges more than one offense, the accused may file a MTQ on the ground of duplicity of offenses. Several modes of committing offense not duplicitous • In case of crimes susceptible of being committed in various modes, the allegations in the information of the various ways of committing the offense would be regarded as a description of only one offense and information is not rendered defective. • Exception o Complex crimes o Special complex crimes o Continuous crimes o Crimes susceptible of being committed in various modes o Crimes which another offense is an ingredient [People v. Camerino (1960)] 9. Amendment or Substitution of complaint or information [Rule 110, Sec. 14] (2001 Bar) Amendments in form and substance before plea • General rule It must be made before the accused enters his plea. • Exception If the amendment downgrades the nature of the 17 6 10. Venue of criminal actions Place where action is to be instituted Venue of criminal actions shall be: • in the court of the municipality or territory o where the offense was committed; or REMEDIAL LAW REVIEWER UP LAW o where any of its essential ingredients occurred. [Rule 110, Sec. 15(a)] How venue or jurisdiction determined • Venue in criminal cases is jurisdictional, being an essential element of jurisdiction. • One cannot be held to answer for any crime committed by him except in the jurisdiction where it was committed or where an essential ingredient thereof took place. The place where the accused was arrested is of no moment. [People v. Enriquez] Where crime is continuing A person charged with a transitory crime may be validly tried in any municipality or province where the offense was in part committed. [People v. Gorospe (1984)] Libel cases • Action to be instituted and filed in the court of the province or city where the libelous article is printed and first published. • If a private individual, action may also be filed in the province where he actually resides at the time of the commission of the offense. If a public officer, action may be filed in the court of the province or city where he held office at the time of the commission of the offense. [Art 360, RPC] Offense committed on railroad • Action to be instituted and filed in the court of any municipality or territory where said train, aircraft or vehicle passed thru, including place of departure or arrival. [Rule 110, Sec. 15(b)] • Rule applies only when the crime was committed in the COURSE of the trip. Offense committed on a vessel Action may be instituted and tried in the court of the first port of entry or any municipality or territory where the vessel passed during such voyage, subject to generally accepted principles of international law. [Rule 110, Sec. 15(c)] Offense committed outside the Philippines Cognizable by the court where the criminal action is first filed [Rule 110, Sec. 15(d)] 11. Intervention of offended party [Rule 110, Sec. 16] General rule An offended party has the right to intervene in the prosecution of a crime. Exception 1) Where, from the nature of the crime and the law defining and punishing it, no civil liability arises in favor of a private offended party. 2) Where, from the nature of the offense, the private offended party is entitled to civil indemnity arising therefrom but he has waived the same or has expressly reserved his right to institute a separate civil action or he has already instituted such action. 3) Offended party has already instituted action • • Any move on the part of the complainant or offended party to dismiss the criminal case, even if without objection of the accused, should first be referred to the prosecuting fiscal for his own view on the matter. He controls the prosecution of the case and may have reasons why the case should not be dismissed. [Republic v. Sunga (1988)] When private prosecutor is allowed to intervene: [A.M. No. 02-2-07-SC] o All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. o In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. C. PROSECUTION OF CIVIL ACTION 1. Rule on implied institution of civil action with criminal action 2. When civil action may proceed independently 3. When separate civil action is suspended 4. Effect of the death of accused or convict on civil action 5. Prejudicial Question 6. Rule on Filing Fees in civil action deemed instituted with the criminal action 17 7 REMEDIAL LAW REVIEWER UP LAW • 1. Rule on implied institution of civil action with criminal action How instituted • • • General rule: When a criminal action is instituted, the civil action for the recovery of damages is deemed instituted with the criminal action. [Rule 111, Sec. 1] Exception: If the offended party: o Waives the civil action; o Institutes the civil action prior to the criminal action. o Reserves the right to institute it separately; • Exception to this exception o Claims arising out of a dishonored check under BP 22 where “no reservation to file such civil action separately shall be allowed”. (2001 Bar) o Claims arising from an offense which is cognizable by the Sandiganbayan. [Sec. 4, PD 1606, as amended by RA 8249] The rule requiring reservation does not apply to Art. 32-34 and 2176, CC. These civil actions can be filed and prosecuted independently of the criminal action. No counterclaim, cross-claim or 3rd-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. [Rule 111, Sec. 1] 3. When separate civil action is suspended • The civil action which should be suspended after the institution of the criminal action is that arising from delict or crime. • Civil actions mentioned in Sec. 3 Rule 111 under Arts. 32-34 and 2176 of the Civil Code are exempted from the rule that after a criminal action has been commenced, the civil action which has been reserved cannot be instituted until final judgment has been rendered in the criminal action. 4. Effect of the death of accused or convict on civil action [Rule 111, Sec. 4] • If death is before arraignment – Dismissal of case without prejudice to filing of civil action against estate of the deceased. If death is after arraignment and during pendency of criminal action – Extinguishes civil liability. Exception: if civil liability is predicated on other sources of obligations, as with independent civil actions, recovery may still be made against the estate of the deceased or legal representative after proper substitution. o If death is while appeal is pending – extinguishes criminal liability and civil liability based thereon. • • • An offended party loses his right to intervene in the prosecution of a criminal case, not only when he has waived the civil action or expressly reserved his right to institute it, but also when he has actually instituted the civil action. For by either of such actions his interest in the criminal case has disappeared. [Garcia v. Florido (1973)] Only civil liability arising from the crime charged as a felony is deemed instituted with the criminal action. Does not include civil liability that the offended party waives, reserves or those instituted prior to the criminal action. • • 2. When civil action may proceed independently • The reservation of the right to institute separately the 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. • Procedure for making the reservation: o Filing a manifestation in the criminal case that the offended party is reserving his right to file a separate civil action; o Filing the separate civil action and informing the court trying the criminal case that the offended party has filed a separate civil action. 5. Prejudicial Question (1999 Bar) Elements of prejudicial question • General Rule: a prejudicial question is that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. • The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. REMEDIAL LAW REVIEWER UP LAW • It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused. [Ras v. Rasul (1980)] Effect D. PRELIMINARY INVESTIGATION 1. Nature of right 2. Purposes of preliminary investigation 3. Who may conduct determination of existence of probable cause 4. Resolution of investigation prosecutor 5. Review 6. When warrant of arrest may issue 7. Cases not requiring a preliminary investigation 8. Remedies of accused if there was no preliminary investigation 9. Inquest 1. Nature of right Preliminary investigation, defined • It 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. [Rule 112, Sec. 1] • The conduct of a PI is the initial step towards the criminal prosecution of a person. Nature of the Right to PI • It is a statutory right in those instances where it is required, and to withhold it would violate the constitutional right to due process. [People v. Oandasa (1968)] • It is part of the guarantees of freedom and fair play. [La Chemise Lacoste, S.A. v. Fernandez (1984)] • The right to have a PI conducted before being bound over to trial for a criminal offense and hence formally at risk of incarceration or some other penalty is not a mere formal or technical right but a substantial right Right to Preliminary Investigation • The right to preliminary investigation is a personal right which the accused may waive either expressly or by implication. • When the accused waives his right to preliminary investigation, the fiscal may forthwith file the corresponding information with the proper court. [People v. Perez (1960)] • The right is deemed waived by: 1. the failure to claim it before the accused pleaded [People v. Magpale (1940)] • General rule: Where both a civil and a criminal case arising from the same facts are filed in court, the criminal case takes precedence. • Exception: If there exists a prejudicial question which should be resolved first before an action could be taken in the criminal case. Requisites [Rule 111, Sec. 7] 1. Previously initiated 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 WON the criminal action may proceed. Where to file petition • Office of the prosecutor; • Court conducting the PI. 6. Rule on Filing Fees in civil action deemed instituted with the criminal action Filing fees of civil action deemed instituted in criminal action 17 8 • • • • General Rule: the actual damages claimed or recovered by the offended party are not included in the computation of the filing fees. [Rule 111, Sec. 1] When the amount of damages, other than actual, is specified in the complaint or information filed in court, then the corresponding filing fees shall be paid by the offended party upon the filing thereof in court for trial; and In any other case—i.e., when the amount of damages is not so alleged in the complaint or information filed in court, the corresponding filing fees need not be paid and shall simply constitute a first lien on the judgment, except on an award for actual damages. [General v. Claravall (1991)] Except: in criminal actions for violation of BP22, the amount of the check involved shall be considered as the actual damages for which no separate civil action is allowed. REMEDIAL LAW REVIEWER UP LAW 2. silence of the accused [People v. Mijares (1951)] failure to request it within 5 days from time he learns of the filing of the complaint/information 4. when accused already posted bond for his release and subsequently went to trial without claiming his right to PI [People v. Selfaison (1961)] 5. a fortiori absence of the accused [Rule 112, Sec. 3(d); de Guzman v. People and Sandiganbayan (1982)] An application for or admission to bail shall not bar the accused from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him provided that he raises the challenge before entering his plea [Rule 114, sec. 26]. 3. 3. Who may conduct determination of existence of probable cause Generally [Rule 112, Sec. 2 as amended by A.M. No. 05-8-26-SC] 1. Provincial/city prosecutors and their assistants; 2. National and regional state prosecutors; Other officers as may be authorized by law. 17 9 3. • COMELEC, when vested COMELEC may conduct investigation as regards election offenses. [Art. 9-C, Sec. 2(6), Consti; Sec. 265, Omnibus Election Code] Ombudsman o The Ombudsman and his 2. Purposes of preliminary investigation • To determine whether or not a crime has been committed and whether or not there is probable cause to believe that the accused is guilty. [Raro v. SB (2000)] • To protect the accused from the inconvenience, expense and burden of defending himself in a formal trial • To secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense, anxiety of a public trial, and also protect the state from useless and expensive trials. [Tandoc v. Resultan (1989)] Scope of PI • A PI is “merely inquisitorial, and it is often the only means of discovering the persons who may reasonably be charged with a crime, to enable the prosecutor to prepare his complaint or information. It is not a trial of the case on the merits” and does not place the persons against whom it is taken in jeopardy. • It “is not the occasion for the full and exhaustive display of the parties’ evidence, it is for the presentation of such evidence as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof.” [Raro v. Sandiganbayan, et al. (2000)] • A PI takes on an adversarial quality, because a previous inquiry of some kind, before an accused person is placed on trial. [Raro v. SB, et al. (2000)] Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including GOCCs and shall, in appropriate cases, notify the complainants of the action taken and the result thereof. [Art. 11, Sec. 12, Consti] o The Ombudsman is authorized to conduct preliminary investigation and to prosecute all criminal cases involving public officers and employees, not only those within the jurisdiction of the Sandiganbayan, but also those within the jurisdiction of regular courts as well. o If the offense comes within the jurisdiction of regular courts, the Ombudsman may endorse the same to, and deputize the provincial/ city prosecutor who has jurisdiction over the case for proper preliminary investigation. o If the offense is cognizable by the Sandiganbayan, the preliminary investigation has to be conducted pursuant to Rule 11 of the Rules of Procedure of the Office of the Ombudsman requiring that the complaint must be under oath. Note: RTC judges have NO power to conduct PI; and MTC judges cannot conduct PI anymore after A.M. No. 05-8-26-SC eliminated judges of the MTC and REMEDIAL LAW REVIEWER UP LAW MCTC from those authorized to conduct a PI effective October 3, 2005. Procedure 1. Filing of the complaint [Rule 112, Sec. 3(a)] • The complaint must state the respondent’s address. It must include the affidavits of complainant and the witnesses, and other documents to establish probable cause. • It must be in 2 copies, and subscribed and sworn to before a prosecutor or government official authorized to administer oath or notary public. 2. Action of the investigating officer [Rule 112, Sec. 3(b)] • Investigating officer must act within 10 days after the filing of the complaint. He will either: • Dismiss - If he finds no ground to continue investigation; • Issue a subpoena to the respondent, attaching the complaint and other documents. o If subpoena is not possible, the investigating officer shall decide based on what complainant presented. • Respondent has the right to examine the evidence submitted by complainant, and copy evidence at his expense. Defendant’s counter-affidavit • Must be made within 10 days from receipt of complaint, and must comply with the same requirements as a complaint. [Rule 112, Sec. 3(c)] • If not made within 10 days, the investigating officer shall resolve the complaint based on the evidence presented by the complainant [Rule 112, Sec. 3(d)] Hearing [Rule 112, Sec. 3(e)] • The investigator must conduct a hearing within 10 days from receipt of the counteraffidavit. The hearing must be finished in 5 days. • Hearing is conducted only if there are such facts and issues to be clarified from a party or a witness. • Parties may be present evidence, but they have no right to examine or cross-examine. Questions of parties shall be submitted to the investigating officer. • Within 10 days, the officer shall determine WON there is sufficient ground to hold respondent for trial. 4. Resolution of investigation prosecutor [Rule 112, Sec. 4] • If the investigating officer finds no probable cause, he will dismiss the case. Otherwise, he will prepare an information and resolution. • He certifies in the information that he is an authorized officer; that he personally examined the complainant and 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. 5. Review [Rule 112, Sec. 4] • Within 5 days from resolution, the investigating officer will forward the case to the prosecutor or the ombudsman. • Within 10 days from receipt of the resolution, the prosecutor/ombudsman will act on the case. • The prosecutor/ombudsman has to authorize/approve the filing of an information by the investigating officer. • In case of dismissal by investigating officer, the prosecutor/ombudsman, if he disagrees, may file the information himself or any deputy or order any prosecutor to do so without conducting a new PI. • The DOJ Secretary may file the information or dismiss the information filed by the prosecutor. 6. When warrant of arrest may issue • If the judge finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested, and hold him for trial. • Judges of RTC and inferior courts need not personally examine the complainant and his witnesses in the determination of PC. But he must personally evaluate the prosecutor’s report and other sufficient supporting evidence, and on the basis thereof either dismiss the case, issue a warrant, or require further affidavits. • Warrant that is simply based on report and recommendation of prosecution invalid; judge must make an independent judgment of whether or not there is probable cause. This is because 3. 4. 18 0 REMEDIAL LAW REVIEWER UP LAW the probable cause for the prosecutor and judge are different: o PC for PROSECUTOR: whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial for which information is to be filed. PC for JUDGE: • If the judge finds PC, he shall issue a warrant of arrest or a commitment order (if the accused had already been arrested) and hold him for trial. • However, if the judge is satisfied that there is no need to place the accused under custody, he may issue summons instead. 8. Remedies of accused preliminary investigation if there was no o whether or not a warrant of arrest should be issued so that the accused may be held in custody in order not to frustrate the ends of justice. • Judge may dismiss the case if the evidence on record clearly fails to establish a probable cause • Judge may order the prosecutor to present evidence within 5 days from notice and the issue may be resolved by the court within 30 days from filing of complaint/information. 7. Cases not requiring a preliminary investigation Cases not requiring a preliminary investigation Nor Covered by Rule on Summary Procedure [Rule 112, Sec. 8] • For cases punishable by imprisonment of less than 4 years, 2 months and 1 day, filed with the prosecutor or MTC/MCTC, • Within 10 days after the filing of the complaint/information, if the judge finds no PC after personally evaluating the evidence or after personally examining in writing and under oath the complainant and his witnesses in the form of searching questions and answers, he shall dismiss the same. • However, the judge may require the submission of additional evidence within 10 days from notice, to determine further the existence of PC. • If the judge still finds no PC despite the additional evidence, he shall dismiss the case within 10 days from its submission or expiration of said period. Effect of denial of right to PI • While PI is a statutory and substantive right and a component part of due process, the absence of PI (1) does not impair the validity of the information or otherwise render it defective; (2) neither does it affect the jurisdiction of the court (3) nor constitute a ground for quashing the information. The trial court, instead of dismissing the information, should hold in abeyance the proceedings and order the public prosecutor to conduct a PI. [Villaflor vs. Vivar, 349 SCRA 194] • 9. Inquest General rule PI is required to be conducted before a complaint/ information is filed for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day, without regard to the fine. [Rule 112, Sec. 1] Exception • When a person is lawfully arrested without a warrant involving an offense that requires a PI, a complaint/information may be filed without conducting the PI if the necessary inquest is conducted. o INQUEST – a summary inquiry conducted by the prosecutor for the purpose of determining whether the warrantless arrest of a person is based on probable cause • In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or by a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person. • However, before the complaint or information is filed, the person arrested may ask for a PI, but he must sign a waiver of the provisions of Art. 125, RPC in the presence of his counsel. REMEDIAL LAW REVIEWER UP LAW Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within 15 days from its inception. • After the filing of the complaint/ information in court without a PI, the accused may within 5 days from the time he learns of its filing, ask for a PI with the same right to adduce evidence in his defense as provided in Rule 112. [Rule 112, Sec. 6] o not more than 6 years imprisonment. [Art. 6, Sec. 11, Consti] Diplomatic Immunity - Ambassadors and ministers of foreign countries. [RA 75] 1. Arrest, how made Constitutional requirements on arrest The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and E. ARREST 1. Arrest, how made 2. Arrest without warrant, when lawful 3. Method of arrest 4. Requisites of a valid warrant of arrest 5. Determination of Probable Cause for issuance of warrant of arrest 6. Distinguish probable cause of fiscal from that of a judge ARREST – Taking of a person into custody in order that he may be bound to answer for the commission of an offense. [Rule 113, Sec. 1] • Ordinarily, an invitation to attend a hearing and answer some questions, which the person invited may heed or refuse at his pleasure, is not illegal or constitutionally objectionable. However, where the invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely been lifted, and the designated interrogation site is a military camp, the same can be easily taken, not as a strictly voluntary invitation which it purports to be, but as an authoritative command which one can only defy at his peril. Although in the guise of a request, it was obviously a command or an order of arrest that a person could hardly be expected to defy. [(Sanchez v. Demetriou (1993)] Immunity from arrest no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. [Art. 3, Sec. 2, Consti] Arrest with warrant (2008 Bar) • How arrest is made o No violence or unnecessary force shall be used in making an arrest. Person arrested shall not be subject to a greater restraint than necessary. [Rule 113, Sec. 2, par. 2] o Application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not required. o It is enough that there be an intent on the part of one of the parties to arrest the 18 other and an intent on the part of the other to submit, under the belief and impression that 1 submission is necessary. [Sanchez v. Demetriou (1993)] • Time to make arrest Arrest may be made on any day and at any time of the day or night [Rule 113, Sec. 6] 2. Arrest without warrant, when lawful (1997, 2000, 2003, 2004 Bar) • • • o Parliamentary Immunity - Senators and Members of the House of Representatives, while Congress is in session and for offenses punishable by IN FLAGRANTE DELICTO – Literally, caught in the act of committing a crime. When the person to be arrested has committed, is actually committing or is attempting to commit an offense in the presence of the peace officer or private person who arrested him. [Rule 113, Sec. 5(a)] o “In his presence” means: [People v. Evaristo (1992)] REMEDIAL LAW REVIEWER UP LAW    o He sees the offense, even though at a distance; He hears the disturbances created by the offense and proceeds at once to the scene; Offense is continuing or has been consummated at the time arrest is made. Entrapment An arrest made after an entrapment does not require a warrant inasmuch as it is considered a valid warrantless arrest pursuant to Rule 113, Sec. 5(a) of the Rules of Court. [Teodicio v Court of Appeals (2004)] Buy-bust operation When the appellant is caught in flagrante as a result of the buy-bust operation, the policemen are not only authorized but are also under obligation to apprehend the drug pusher even without a warrant of arrest. [People v de Lara (1994)] o Meaning of “offense has in fact just been committed”: implies immediacy in point of time • ARREST OF ESCAPED PRISONER o When the person to be arrested is a prisoner who has escaped: [Rule 113, Sec. 5(c)] From a penal establishment or place where he is:  Serving final judgment;  Temporarily confined while his case is pending. While being transferred from one confinement to another. Escapee may be immediately pursued or re-arrested without a warrant at any time and in any place within the Philippines. [Rule 113, Sec. 13] Rationale: At the time of arrest, the escapee is in continuous commission of a crime (i.e. evasion of service of sentence).  o o  18 2 o • HOT PURSUIT ARREST - When an offense has just been committed and the officer or private person has probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested has committed it [Rule 113, Sec. 5(b)] o Officer/private person must have personal knowledge of offense just committed 3. Method of arrest a. by officer with warrant Duties of the arresting officer • Execution of warrant (section 4, Rule 113) The head of the office to whom the warrant of arrest was delivered shall cause the warrant to be executed within ten (10) days from its receipt • To make a report to the judge who issued the warrant within 10 days after expiration of the period to execute. In case of his failure to execute, he shall state the reasons therefore • Personal knowledge must be based on “probable cause” which means an actual belief or reasonable grounds of suspicion. • The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officer, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. • To arrest the accused and deliver him to the nearest police station or jail without unnecessary delay. [Rule 113, Sec. 3] Rights of the arresting officer • To summon assistance. [Rule 113, Sec. 10] He may orally summon as many persons as he deems necessary to assist him in effecting the arrest. Persons summoned shall assist in effecting the arrest when he can do so without detriment to himself. • A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.. [Posadas v. Ombudsman (2000)] REMEDIAL LAW REVIEWER UP LAW To break into any building/enclosure where the person to be arrested is or is reasonably believed to be. [Rule 113, Sec. 11] If he is refused admittance after announcing his authority and purpose. Also applicable where there is a valid arrest without a warrant. Rationale: Person to be arrested cannot use his house/ building/ enclosure as a shelter for crime. The inviolability of domicile cannot be used to shield arrest. To break out from the building/enclosure when necessary to liberate himself. [Rule 113, Sec. 12] Also applicable where there is a valid arrest without a warrant. To search the person arrested for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense. [Rule 126, Sec. 13] Without need of a search warrant if it is incidental to a lawful arrest. b. by officer without warrant Duties of arresting officer without warrant • The officer shall inform the person to be arrested of his authority and the cause of the arrest. [Rule 113, Sec. 8] • Exceptions: o The person to be arrested is engaged in the commission of the offense; o He is pursued immediately after its commission; o He escapes, flees or forcibly resists before the officer has the opportunity to so inform him; o Giving such information will imperil the arrest. c. by private person Duties of private person effecting an arrest • The private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest. [Rule 113, Sec. 9] • Exceptions: same as those for arrest by an officer • • The private person must deliver the arrested person to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Sec. 7. • Otherwise, the private person may be held liable for illegal detention. 4. Requisites of a valid warrant of arrest Issuance • Essential Requisites of a Valid Arrest • Warrant [Art. 3, Sec. 2, Consti] o It must be issued upon probable cause which must be determined personally by a judge after examination under oath or affirmation of the complainant and the witnesses he may produce. o The warrant must particularly describe the person to be seized. Instances When Judge Issues Warrant of Arrest • Upon the filing of the information by the public prosecutor and after personal evaluation by the judge of the prosecutor’s resolution and supporting evidence. [Rule 112, Sec. 6(a)] • o The judge does not have to personally examine the complainant and his witnesses. The prosecutor can perform the same functions. [Soliven v. Makasiar (1988)] o Bare certification by the fiscal is not enough. It should be supported by a report and necessary documents. [Lim v. Felix (1991)] o Examples of Evidence To Be Examined: complaint, affidavits and counter-affidavits. • Upon application of a peace officer and after personal examination by the judge of the applicant and the witnesses he may produce. [Rule 112, Sec. 6(b)] o Rationale: There is yet no evidence on record upon which judge may determine the existence of PC. o Conditions:  The investigating judge must have examined in writing and under oath the complainant and his witnesses by searching questions and answers.  He must be satisfied that PC exists; 18 3  There is a need to place the respondent under immediate custody in order not to REMEDIAL LAW REVIEWER UP LAW frustrate the ends of justice. [Samulde v. Salvani (1988)] • A warrant of arrest has no expiry date. It is only subject to the requirements found in Section 4, Rule 113. 5. Determination of Probable Cause for issuance of warrant of arrest Probable cause test The probable cause test is an objective one, for in order that there be probable cause, the facts and circumstances must be such as would warrant a belief by a reasonable prudent man that the accused is guilty of the crime which has just been committed [People vs. Allado (1994)] 6. Distinguish probable cause of fiscal from that of a judge Rule: The law requires personal determination on the part of the judge. The judge may rely on the report of the investigating prosecutor provided he also evaluates the documentary evidence in support thereof. Hence, the fiscal’s finding of probable cause is not conclusive upon the judge as to his determination of whether or not there is indeed probable cause. [AAA vs. Carbonell (2007)] Definition Bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under conditions hereinafter specified. [Rule 114, Sec. 1] Note: This does not refer to the bondsman or surety who furnishes the bail. Purpose 1. To honor the presumption of innocence until his guilt is proven beyond reasonable doubt [Art. III, Sec. 14, Consti; Paderanga vs CA (1995)]. 2. To implement his right to bail as provided for by the Constitution [Art III, Sec. 13, Consti]. 3. To allow the accused unhampered preparation of his defense and prevent infliction of punishment prior to conviction. Note: • F. BAIL 1. Nature 2. When a matter of right; exceptions 3. When a matter of discretion 4. Hearing of application for bail in capital offenses 5. Guidelines in fixing amount of bail 6. Bail when not required 7. Increase or Reduction of Bail 8. Forfeiture and Cancellation of bail 9. Application not a bar to objections in illegal arrest, lack of or irregular preliminary investigation 10. Hold Departure Order & Bureau of Immigration Watchlist 1. Nature The purpose of bail only accrues when a person is arrested or deprived of his liberty. It is incongruous to grant bail to one who is free. Hence, only those who have either been arrested, detained or otherwise deprived of their liberty can invoke his right under the Constitution. From the moment he is placed under arrest, detention or restrain by officers of the law, he can claim his constitutional right [Feliciano vs Pasicolan (1965)]. • Upon assumption of the obligation of bail, the sureties become in law the jailers of their principal. • It shall not constitute as a waiver of his right to challenge the legality of his arrest or the absence of PI [Rule 114, Sec. 26]. • Prosecution witnesses may also be required to post bail to ensure their appearance at the trial of the case where: 1. There is substitution of information [Rule 110, Sec. 4]. 2. Where the court believes that a material witness may not appear at the trial [Rule 119, Sec. 14]. 2. When a matter of right; exceptions Admittance to Bail as a Matter of Right When bail is a matter of right [Rule114, Sec. 4] a. Before or after conviction by the MTC. REMEDIAL LAW REVIEWER UP LAW b. Before conviction by RTC of all offenses punishable by penalty lower than reclusion perpetua. Note: • A formal complaint or information is not required [Herras Teehankee vs Rovira (1945)]. • The Court should not even allow a motion for bail to be set for hearing unless it has acquired jurisdiction over the person of the accused and the case by its filing in court [Guillermo vs Judge Reyes (1995)]. How is custody acquired? 1. By virtue of a warrant or a warrantless arrest. 2. Voluntary submission to the Court’s jurisdiction [Santiago vs Vasquez (1993)]. When right to bail not available 1. When evidence of guilt is strong in capital offenses or offenses punishable by reclusion perpetua or life imprisonment. • Exception: When accused charged with a capital offense is a minor, he is entitled to bail regardless of whether the evidence of guilt is strong. • Capital Offense: An offense which under the law existing at the time of commission and of the application for admission to bail is punishable by death [Rule 114, Sec. 6]. • The capital nature of the offense is determined by the penalty prescribed by law and not the one actually imposed. 2. Bail in extradition proceedings • The right to bail is available only in criminal proceedings. It does not apply to extradition proceedings because extradition courts do not render judgments of conviction or acquittal. Bail is not a matter of right in extradition cases. However, bail may be applied for and granted as an exception, only upon a clear and convincing evidence that once granted, the applicant will not be flight risk or will not pose danger to the community, and that there exists special humanitarian and compelling circumstances [Gov of USA vs Purganan & Jimenez (2002)]. Note: • If the penalty imposed by the trial court is imprisonment exceeding 6 yrs, the accused shall be denied bail or his bail shall be cancelled upon showing by the prosecution of the following: 1. Recidivism, quasi-recidivism, or habitual delinquency or commission of a crime aggravated by reiteration. 2. Previously escaped from legal confinement, evaded sentence or violated bail conditions without valid justification. 3. Commission of offense while under probation, parole or conditional pardon. 4. Probability of flight. 5. Undue risk that he may commit another crime during pendency of appeal. Right to bail is not available in the military [Comendador v. de Villa (1991)]. After a judgment of conviction has become final • If he applied for probation before finality, he may be allowed temporary liberty under his bail [Rule 114, Sec. 24]. After the accused has commenced to serve his sentence [Rule 114, Sec. 24] Note: See Appendix 1 for summary on the Availability of Bail 3.18 When a matter of discretion [Rule 114, Sec. 5] 4 1. Before conviction, in offenses punishable by death, reclusion perpetua or life imprisonment. 2. Upon conviction by the RTC of an offense not punishable by death, reclusion perpetua or life imprisonment. • It may be filed in and acted upon by the RTC despite the filing of notice of appeal, provided that it has not transmitted the original record to the appellate court. • If RTC changed nature of the offense from bailable to non-bailable, it can be resolved only by the appellate court. Note: • In hearing the petition for bail, the prosecution has the burden of showing that the evidence of guilt is strong [Rule 114, Sec. 8]. The prosecution must be given ample opportunity to show that the evidence of guilt is indeed strong. REMEDIAL LAW REVIEWER UP LAW While the proceeding is conduced as a regular trial, it must be limited to the determination of the bailability of the accused. It should be brief and speedy, lest its purpose be rendered nugatory [People vs Singh (2001)]. • If bail is granted, provisional liberty continues under the same bail subject to the consent of the bondsman [Rule 114, Sec. 5]. • If bail is denied by the RTC, the accusedappellant may challenge it by filing a motion (and not a special civil action or a special proceeding) in the appellate court after it has acquired jurisdiction over the case. It shall be treated as an incident in the appeal. • In deportation proceedings, it is the CID’s discretion. [Harvey v. Defensor-Santiago (1990)]. 4. Hearing of application for bail in capital offenses Section 6. Capital offense, defined It 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. The capital nature of an offense is determined by the penalty prescribed by law, and not by the penalty that may be imposed after trial and on the basis of the evidence adduced and the presence of aggravating or mitigating circumstance. NOTE: Republic Act No. 9346 entitled ”An Act Prohibiting the Imposition of Death Penalty in the Philippines” was enacted on June 24, 2006 repealing R.A. No. 8177 and R. A. No. 7659 and abolishing the death penalty. Section 7. Capital offense or an offense or life At the hearing of an application for bail filed by a person in custody for the commission of an offense punishable by reclusion perpetua or life imprisonment, the prosecution has the burden of showing that evidence of guilt is strong. EVIDENCE OF GUILT in the Constitution and the Rules refers to a finding of innocence or culpability, regardless of the modifying circumstances. Regarding Minors Charged with a Capital Offense If the person charged with a capital offense, such as murder, admittedly a minor, which would entitle him, if convicted, to a penalty next lower than that prescribed by law, he is entitled to bail regardless of whether the evidence of guilt is strong. The reason for this is that one who faces a probable death sentence has a particularly strong temptation to flee. This reason does not hold where the accused has been established without objection to be minor who by law cannot be sentenced to death. Duty of judge to conduct hearing Where the prosecution agrees with the accused’s application for bail or foregoes the introduction of evidence, the court must nonetheless set the application for hearing. It is mandatory for the judge to conduct a hearing and ask searching and clarificatory questions for the purpose of determining the existence of strong evidence against the accused; and the order, after such hearing, should make a finding that the evidence against the accused is strong. 5. Guidelines in fixing amount of bail [Rule 114, Sec. 9] 1. Financial ability of the accused 2. Nature and circumstances of the offense 3. Penalty for the offense charged 4. Character and reputation of the accused 5. Age and health of the accused 6. Probability of the accused appearing at the trial 7. Forfeiture of other bail 8. Fact that accused was a fugitive from justice when arrested 9. Forfeiture of other bail 10. Pendency of other cases where the accused is on bail. 18 5 punishable by reclusion perpetua imprisonment or life imprisonment Conviction This refers to conviction by the trial court, which has not become final, as the accused still has the right to appeal. After conviction by the trial court, the accused convicted of a capital offense is no longer entitled to bail, and can only be released when the conviction is reversed by the appellate court. Section 13, Article III of the 1987 Constitution Section 8. Burden of proof in bail application Prosecution has burden of proof REMEDIAL LAW REVIEWER UP LAW Note: DOJ Department Circular No. 89 (2000 Bail Bond Guide) provides standards and criteria for recommendation of amount of bail to be granted, if possible, and the rules for the computation of bail. 6. Bail when not required • • When a person has been in custody for a period equal to or more than the possible maximum imprisonment of the offense charged to which he may be sentenced, he shall be released immediately, without prejudice to the continuation of the trial thereof or the proceedings on appeal. If the maximum penalty is destierro, he shall be released after 30 days of preventive imprisonment. Note: No bail shall be required in prosecution of offenses covered by the Rule on Summary Procedure, EXCEPT: 1. When a warrant of arrest was issued for failure of the accused to appear when so required 2. When the accused is o A Recidivist o A Fugitive from justice o Charged with physical injuries o Has no known residence [RSP, Sec 10, 12] 7. Increase or Reduction of Bail Court may either increase or reduce the amount of bail. 1. After the accused is admitted to bail 2. Upon good cause INCREASED bail: Accused may be committed to custody if he does not give bail in the increased amount within a reasonable period of time. [Rule 114, Sec. 20] REDUCED bail: Person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged may be released on a reduced bond. [Rule 114, Sec. 16] 8. Forfeiture and Cancellation of bail Forefeiture of bail [Rule 114, Sec. 21] If the accused failed to appear in person as required by the court, bondsmen are given 30 days within which to: 1. Produce the body of the principal or give reason for the non-production. Bondsmen may: • Arrest the accused; • Cause him to be arrested by a police officer or any other person of suitable age or discretion upon written authority endorsed on a certified copy of the undertaking. 2. Explain why the accused failed to appear. • If the bondsmen fail to do these, judgment is rendered against them, jointly and severally, for the amount of the bail. • Bondsmen’s liability cannot be mitigated or reduced, unless the accused has been surrendered or is acquitted. Cancellation of bail [Rule 114, Sec. 22] 1. Upon application of the bondsmen with due notice to the prosecutor, bail may be cancelled upon a) surrender of the accused and b) proof of his death. 2. Upon acquittal of the accused 3. Upon dismissal of the case 4. Upon execution of judgment of conviction. 9. Application not a bar to objections in illegal arrest, lack of or irregular preliminary investigation Bail is no longer a waiver of his objections [Rule 114, Sec. 26; Yusop vs Sandiganbayan (2001)]. Provided that the proper objections are timely raised (i.e., before accused enters a plea), an application or an admission to bail shall NOT bar the accused from challenging or questioning the: 1. Validity of his arrest. 2. Legality of the arrest warrant. 3. Regularity of PI. 4. Absence of PI. The court shall resolve the objections as early as practicable but not later than the start of the trial of the case. 10. Hold Departure Order & Bureau of Immigration Watchlist • Bondsmen can prevent accused from leaving country by arresting him or asking for him 18 6 REMEDIAL LAW REVIEWER UP LAW to be re-arrested by a police officer upon written authority [Rule 114, Sec. 23]. • The accused may be prohibited from leaving the country during the pendency of his case [PP v. Uy Tuising (1935); Manotoc v. CA (1986)]. If the accused released on bail attempts to depart from the Philippines without the permission of the court where his case is pending, he may be rearrested without warrant [Rule 113, Sec. 23]. • Hold-Departure Orders: This may be issued only by the RTCs in criminal cases within their exclusive jurisdiction [SC Circular No. 39-97 (June 19, 1997)]. 3) To be present and defend in person OR by counsel; 4) G. RIGHTS OF THE ACCUSED 1. Rights of accused at the trial 2. Rights of Investigation persons under Custodial 1. Rights of accused at the trial [Rule 115] 1) • To be presumed innocent; Until contrary is proved beyond reasonable doubt o Accusation is not synonymous with guilt. [People v. Dramayo (1971)] 2) To be informed of the nature and cause of accusation; Offense must be clearly charged in the information. [People v. Ortega (1997)] • Charge must be set forth with sufficient particularity which will enable him to intelligently prepare his defense. [Balitaan v. CFI of Batangas (1982)] • The purpose is served by arraignment. [Borja v. Mendoza (1977)] • The title of the complaint, nor the designation of the offense charged or the particular law violated is not controlling. No information for a crime will be sufficient if it does not accurately and clearly allege the elements of the crime charged. The requirement of alleging the elements of a crime in the information is to inform the accused of the nature of the accusation against him so as to enable him to suitably prepare his defense. [People v. Dimaano (2005)] 5) Right to be present at every stage of the proceedings: • This right may be waived. (1) Absence without just cause at the trial; (2) Accused under custody escapes. • However, presence is mandatory: a. For purposes of identification; b. At arraignment; [Rule 116, Sec. 1(b)] c. At the promulgation of judgment; • Exception: If the conviction is for a light offense. [Rule 120, Sec. 6] • Trial in absentia (1998 Bar): Requisites: [Parada v. Veneracion (1997)] a. Prior arraignment; b. Proper notice of the trial; c. Failure to appear is unjustifiable. • Effects: Waiver of right to be present, right to present evidence and right to cross-examine witnesses. [Gimenez v. Nazareno (1988)] Right to counsel: • It means reasonably effective legal assistance. [Gideon v. Wainright (1963)] • It is absolute and may be invoked at all times, even on appeal. [Telan v. CA (1991)] • Duty to appoint counsel de oficio is mandatory only at the time of arraignment. [Sayson v. People (1988)] • Violation of this right entitles the accused to new trial. [People v. Serzo (1997)] • It may be waived, so long as not contrary to law, public order, public policy, morals or good customs. • The waiver must be unequivocally, knowingly and intelligently made [People v. Nicandro (1968)] • 6) Right to defend in person: Only when it sufficiently appears that he can protect his rights without the assistance of counsel 7) To testify as witness in his behalf; • But subject to cross-examination on any matter cited in his direct examination. REMEDIAL LAW REVIEWER UP LAW • 8) Silence will not in any manner prejudice him. Right against self-incrimination; (2005 Bar) • Compulsion includes not only violence but also moral coercion. [Chavez v. CA (1968)] • Covers only testimonial compulsion and production of incriminating documents. • It does not include examination of his body as evidence when it may be material. [US v. Tan Teng (1912)] • An accused “occupies a different tier of protection from an ordinary witness.” He is entitled 1) to be exempt from being a witness against himself, and 2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. [People v. Ayson (1989)] • The questions on cross examination should be on matters related to his direct examination. [People v. Judge Ayson (1989)] Right to confrontation; • Applies to any witness against the accused at the trial • Includes testimony of a deceased or absentee witness • This right is waived by non-appearance. [Carredo v. People (1990)] • Identification by a witness of the accused is inadmissible if the accused had no opportunity to confront witness. [People v. Lavarias (1968)] c) subject to rules on double jeopardy . [SC Circular 38-98] Mandam us. [Vide Abadia v. CA (1994)] 12) Right to appeal • • Right to appeal is a statutory right and the requirements must be complied with; otherwise, the right is lost. [People v. Sabellano (1991)] If accused escapes from confinement, appeal is not allowed unless he voluntarily surrenders within period for appeal. [People v. Omar (1991)] 2. Rights of persons under Custodial 9) Investigation [Sec. 2, RA 7438] 1) To be assisted by counsel at all times. • Waiver of the right to counsel must be made with the assistance of counsel. [Art. 3, Sec. 12(1), Consti] 18 Specifically in the following instances: 7• o Signing of the written custodial report; Signing of the written extra-judicial 10) Right to compulsory process; • Trial court should not delegate to the accused the responsibility of getting his witnesses. • If a subpoena is issued and the witness failed to appear, the court should order the arrest of the witness if necessary. [People v. Montejo (1967)] 11) Right to speedy, impartial and public trial; confession (2008 Bar) In the absence of counsel and upon valid waiver, it may be made in the presence of any his parents, elder brothers and sisters, spouse, the municipal mayor, the municipal judge, district school supervisor, or priest/minister of the gospel as chosen by him. o Signing of the waiver to the provisions of Art. 125, RPC. • In all criminal prosecutions, the accused shall enjoy the right to have a speedy, impartial and public trial. [1987 Constitution, Article III Sec. 14 (2)] • Remedy against denial of right: a) MTD; b) Dismiss al 2) To be informed, in a language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to confer privately with the REMEDIAL LAW REVIEWER UP LAW person arrested, detained or under custodial investigation. • If he cannot afford to have his own counsel, he must be provided with a competent and independent counsel by the investigating officer. • Assisting counsel may be any lawyer, except those: o Directly affected by the case; o Charged with conducting preliminary investigation; o Charged with the prosecution of crimes; [Sec. 3, RA 7438] H. ARRAIGNMENT AND PLEA 1. Arraignment and Plea, how made 2. When should plea of NOT GUILTY be entered 3. When may accused enter a plea of guilty to a lesser offense 4. Accused plead guilty to capital offense, what the court should do 5. Searching Inquiry 6. Improvident plea 7. Grounds for suspension of arraignment 1. Arraignment and Plea, how made 3) To be allowed visits by or conferences with: • Any member of his immediate family ("Immediate family" includes his or her spouse, fiancé or fiancée, parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward), or • Any medical doctor or • Priest or religious minister o chosen by him or by any member of his immediate family or by his counsel, or by • Any national NGO duly accredited by the Commission on Human Rights or by any international NGO duly accredited by the Office of the President. Definition • ARRAIGNMENT is the stage where the accused is formally informed of the charge against him by reading before him the information/complaint and asking him whether he pleads guilty or not guilty. [Rule 116, Sec. 1(a)] • It is the stage where the issues are joined and without which the proceedings cannot advance further or, if held, will otherwise be void. [Borja v. Mendoza (1977)] How arraignment made 1) In general • The accused must be arraigned before the court where the complaint or information was filed or assigned for trial; • It shall be made in open court by the judge or clerk by furnishing the accused with a copy of the complaint/information; • The complaint/information shall be read in the language or dialect known to him [People v. Alicando (1995)], and he shall be asked whether he pleads guilty or not guilty. • Unless a shorter period is provided by special law or SC circular, the arraignment shall be held within 30 days from the date the court acquires jurisdiction over the person of the accused o Note: The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying suspension of the arraignment shall be excluded in computing the period. [Rule 116, Sec. 1(g)] • The accused must be present at the arraignment and must personally enter his plea. 18 8 Consequences of violation of custodial rights • Failure to inform o Any arresting public officer or employee, or any investigating officer, shall suffer a fine of P6,000.00 or a penalty of imprisonment of not less than 8 years but not more than 10 years, or both. o The investigating officer who has been previously convicted of a similar offense shall suffer the penalty of perpetual absolute disqualification. Obstruction, prevention or prohibition of right to visits or conferences o Any person guilty thereof shall suffer the penalty of imprisonment of not less than 4 years nor more than 6 years and a fine of P4,000.00 Inadmissibility of evidence does not preclude conviction on other evidence • • REMEDIAL LAW REVIEWER UP LAW • NO ARRAIGNMENT IN ABSENTIA [Nolasco v. Enrile (1985)]- The presence of the accused is not only a personal right but also a public duty, irrespective of the gravity of the offense and the rank of the court. o No trial in absentia without first arraigning the accused; otherwise, judgment is null and void since (1) the issues are not joined and (2) the right to be informed of the nature and cause of accusation is violated. o The private offended party shall be required to attend at the arraignment for purposes of (1) plea-bargaining, (2) determination of civil liability and (3) other matters requiring his presence. o In case the offended party failed to appear 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. 2) If the accused is under preventive suspension • The case shall be raffled and its records transmitted to the judge to whom the case was raffled within 3 days from the filing of the information or complaint. • The accused shall be arraigned within 10 days from the date of the raffle. • After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser offense after withdrawing his plea of not guilty. No amendment of the complaint or information is necessary 4. Accused plead guilty to capital offense, what the court should do 5. Searching Inquiry Plea of guilty to a CAPITAL OFFENSE [Rule 116, Sec. 3] • The court shall conduct a searching inquiry into the voluntariness and full comprehension of the consequences of his plea and shall require the prosecution to prove his guilt and the precise degree of his culpability and the accused may present evidence in his behalf; such procedure is mandatory. Failure to observe the duties of the trial judge amounts to grave abuse of discretion. [People v. Devico (1997)] o The plea must be clear, definite and unconditional. There must be well-informed understanding and full realization of the consequences. o It must be based on a free and informed judgment. Mere warning of facing the supreme penalty of death is insufficient. o The judge must ask whether the accused was assisted by counsel during CI and PI; ask questions on age, educational attainment and socio-economic status; and ask the defense counsel WON he conferred with the accused. [People v. Nadera (2000)] Rationale: To proceed with more care where the possible punishment is in its severest form; to avoid improvident pleas of guilt. [People v. Samontanez (2000)] 2. When should plea of NOT GUILTY be entered Plea of NOT GUILTY to be entered for the accused when he either: [Rule 116, Sec. 1(c)] • Refuses to plead • Makes a qualified plea of guilty • Plea of guilty, but accused presents exculpatory evidence 3. When may accused enter a plea of guilty to a lesser offense Plea of guilty to a LESSER OFFENSE [Rule 116, Sec. 2] • 6. Improvident plea Improvident plea of guilty to a capital offense • • At arraignment, the accused, with the consent of the offended party and prosecutor, may be allowed by the trial court to plead guilty to a lesser offense which is necessarily included in the offense charged. • IMPROVIDENT PLEA - Plea without proper information as to all the circumstances affecting it; based upon a mistaken assumption or misleading information/advice. [Black’s Law Dictionary] General rule: Improvident plea should not be accepted. If accepted, it should not be held to be sufficient to sustain a conviction. [People v. De Ocampo Gonzaga (1984)]. Case is remanded to the lower court for further proceedings. REMEDIAL LAW REVIEWER UP LAW • • Exception: If the accused appears guilty beyond reasonable doubt from evidence adduced by the prosecution and defense It is a settled rule that where TC receives evidence to determine whether the accused has erred in admitting his guilt, the manner in which the plea is made loses legal significance since the conviction is based on the evidence proving the commission by the accused of the offense charged. [People v. Alborida (2001)] o TEST OF COGNITION – Complete o 18 2.9 deprivation of intelligence in committing the criminal act. It is the test adopted in this jurisdiction. TEST OF VOLITION – A total deprivation of free will. 7. Grounds for suspension of arraignment [Rule 116, Sec. 11] 1. Unsound mental condition of the accused at the time of the arraignment. • Degree of unsoundness of mind required: The accused can neither comprehend the full import of the charge nor can he give an intelligent plea. • The court shall order his mental examination and, if necessary, his confinement. • The need for suspension may be determined from physical and outward manifestations at the time of arraignment indicative of a mental disorder which the court had observed and defense counsel had called attention to. [People v. Alcalde (2002)] • An insane person within the meaning of Art. 12, RPC must be deprived completely of reason or discernment and freedom of the will at the time of committing the crime. Mere abnormality of mental faculties does not exclude imputability. [People v. Catanyag (1933)] • 3 major criteria to determine insanity: [People v. Dungo (1991)] o DELUSION TEST – Insanity is manifested by a false belief for which there is no reasonable basis and which would be incredible under the given circumstances. o IRRESISTIBLE IMPULSE TEST – The accused has lost the power to choose between right and wrong, to avoid the act in question, his free agency being at that time destroyed. o RIGHT AND WRONG TEST – A perverted condition of mental and mortal faculties as to render him incapable of distinguishing between right and wrong • Tests to determine insanity: [People v. Pascual (1993)] Prejudicial question exists • It prescinds from the idea that it would be determinative of guilt or innocence. • It may be raised during PI. If the information is filed in court, it may be raised as ground to suspend the arraignment. Pending petition for review of the resolution of the prosecutor with the DOJ or Office of the President. • The accused should file motion to suspend and to secure a ruling on his petition for review within 60 days from the filing of the petition. • Rationale: Need to observe judicial courtesy and to avoid legal complications in case the resolution would be different from the offense for which the accused was arraigned, especially if it would upgrade the offense. 3. I. MOTION TO QUASH 1. Grounds 2. Distinguish from demurrer to evidence 3. Effects of sustaining the motion to quash 4. Exception to the rule that sustaining the motion is not a bar to another prosecution 5. Double Jeopardy 6. Provisional Dismissal 1. Grounds [Rule 117, Sec. 3] (1998 Bar) The ff. grounds for MTQ are EXCLUSIVE: 1. Facts charged do not constitute an offense 2. Court trying the case has no jurisdiction over the offense charged. 3. Court trying the case has no jurisdiction over the person of the accused. REMEDIAL LAW REVIEWER UP LAW 4. Officer who filed the information had no authority to do so. 5. That it does not conform substantially to the prescribed form. 6. More than one offense is charged Exception: When a single punishment for various offenses is prescribed by law 7. Criminal action extinguished. or liability has been • The defect is not cured by failure to move to quash or by plea of guilty. The failure does not imply a waiver of the defects that go to the jurisdiction of the offense or to lack in some of the essential elements of the offense charged [Suy Sui v. People (1953)]. • 8. Averments which, if true, would constitute a legal excuse or justification. 9. 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 (Double Jeopardy Rule) Note: Absence of Preliminary investigation, lack of probable cause, and non-inclusion of an accused are not valid grounds. 1) Facts Charged do not Constitute an Offense • In all criminal cases, the accused should be informed of the nature and the cause of the accusation against him. • An information which does not charge an offense or does not allege essential elements of a crime is void. General Rule: In the MTQ, facts other than those alleged may NOT be considered by the court. o Exceptions: a. Facts already admitted by the prosecution [People vs Navarro]. b. Undisputed facts apparent from the records of the PI and not denied or admitted by the prosecutor [Salonga v. Pano (1985)]. c. Undisputed or undeniable facts that destroy the prima facie truth accorded to allegations of the information [People v. de la Rosa (1988)]. d. ROC expressly permits the investigation of facts alleged [People v. Alagao (1966)] [Rule 117, Sec. 2(f)(h), 4 & 5]. • Rationale: It would be pure technicality for the court to close its eyes to said facts, refuse to quash the information, and require trial. 2) Court has No Jurisdiction over the Offense Charged TEST: WON the facts alleged, if hypothetically admitted, would meet the essential elements of the offense, as defined by law [People vs Abad (1997)]. • That a) the missing element may be proved during the trial or that b) the prosecution has presented evidence to establish the same cannot have the effect of validating the void information or of proving an offense which does not exist [People vs Asuncion (1988)]. • Instead of dismissing the court should give prosecution an opportunity to amend the information [Rule 117, Sec. 4]. a. Should the prosecutor fail to make the amendment or should the information suffer from the same defect despite amendment, MTQ shall be granted [Rule 117, Sec. 4]. b. When the prosecutor dismisses the case, the prosecutor should file a valid information, not a petition for review for certiorari. Jurisdiction over the subject matter: The power to adjudge concerning the general question involved. Note: Law defines the offenses and penalties under the jurisdiction of a court. In criminal prosecution, place where the offense was committed not only determines venue, but is an essential element of jurisdiction [Rule 110, Sec. 19 Lopez v. City Judge (1966)]. 15; 0 • The court cannot take jurisdiction over a person charged with an offense committed outside its territory. If the evidence adduced show that offense was committed somewhere else, court should dismiss the action for want of jurisdiction [Uy vs CA (1997)]. • In private crimes, complaint of the offended party is necessary to confer authority to the court. • REMEDIAL LAW REVIEWER UP LAW • If the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred from assailing such jurisdiction on appeal. • The court had jurisdiction over the case since, for as long as he continues to evade the service of his sentence, he is deemed to continue committing the crime, and may be arrested without warrant at any place where he may be found [Parulan vs Director of Prisons (1968)]. 3) Court has no Jurisdiction over the Person of the Accused • How jurisdiction is acquired a. By arrest of the accused or his voluntary appearance in court. b. By allowing himself to be arraigned without questioning the legality of his arrest • It is waivable expressly or by implication, unlike jurisdiction over the territory and the subject matter. • When the accused files a MTQ based on this ground, he must do so only on this ground. If he raises other grounds, he is deemed to have submitted his person to the jurisdiction of the court [Sanchez v. Demetriou (1993)]. • If the accused believes his arrest to be illegal, he should move to quash the information on such ground. However, illegality of the arrest is waivable as it affects only the jurisdiction of the court over the person of the accused [People vs Meris (2000)]. • When the objection is raised, court should resolve it before conducting trial to avoid unnecessary expenditure of time and money [Mead vs Argel (1982)]. 4) Officer who Filed Information had no CA (1998)]. Otherwise, the information filed by him would be invalid and can be quashed on that ground. • Information filed in the Sandiganbayan must be signed by a graft investigating officer with prior approval of the Ombudsman. Authority to sign may be challenged if the prosecutor files the information without the approval of the Ombudsman. The Ombudsman cannot sign when information is filed in the regular courts [Uy vs Sandiganbayan (1999)]. • Election Offenses: Must be signed by duly deputized prosecutors and the legal officers of the COMELEC. • Lack of authority of the officer to is not cured by silence, acquiescence, express consent or even by amendment. 5) Complaint/Information does not Conform Substantially to the Prescribed Form The formal and substantial requirements are provided for in Rule 110, Sec. 6-12. • General Rule: Lack of substantial compliance renders the accusatory pleading nugatory. o Exception: Mere defects in matter of form may be cured by amendment.  Objections not raised are deemed waived, and the accused cannot seek affirmative relief on such ground nor raise it for the first time on appeal [People v. Garcia (1997)]. • Vague or broad allegations are generally not grounds for a MTQ. The correct remedy is to file for a bill of particulars [Rule 116, Sec. 9]. 6) More than One Offense is Charged 19 1 Authority to Do So • Authority to file and prosecute criminal cases is vested in: a. Provincial fiscals and their assistants. b. City fiscals and their assistants. c. Chief State Prosecutor and his deputies. Note: • A lawyer appointed by the DOJ Secretary may also file an information. • The prosecutor who signed the information must have territorial jurisdiction to conduct preliminary investigation of the offense [Cudia vs • General Rule: The complaint or information must charge only one offense [Rule 110, Sec. 13]. o Exception: Those cases in which existing laws prescribe a single punishment for various offenses. a. Complex and compound crimes, except where one offense was committed to conceal another. REMEDIAL LAW REVIEWER UP LAW b. An offense incidental to the gravamen of the offense charged. c. A specific crime set forth in various counts, each of which may constitute a distinct offense. The narration of the specific of the specific acts is considered a bill of particular of facts upon which the inference of guilt of the accused may be based [People vs Yap (1968)] Note: • It is waivable. The accused may be convicted of all the offenses alleged and proved if accused goes to trial without objecting to the inclusion of 2 or more separate offenses in the same information [People vs Villamor (1998)]. • It is not tantamount to duplicity of offenses. An offense is committed in different modes and is alleged to have been committed in the 2 or more modes specified [Ku Bo Lin vs CA (1992)]. • If the criminal acts are committed on different occasions, each constitutes a separate offense. 7) Criminal Action Extinguished or Liability has been Complete upon its delivery Only upon the acceptance since accused may view liability less onerous than the terms Amnesty Pardon Grant of executive Private official act the Grant by the President with concurrence of majority of Congress Public act Court must take judicial notice [People v. Vera (1990)] Usually for those subject to trial but have not yet been convicted, but can also be available even after institution of the criminal action and sometimes after conviction Looks backward – abolishes offense itself; completely extinguishes the penalty and all its effects [People v. Vera (1990)] Granted to all persons guilty of a crime (generally, political cases like rebellion, sedition, treason), and often conditioned upon their return to obedience and duty within a prescribed time though Must be pleaded and proved Granted after conviction Looks forward – releases from consequences of conviction How criminal liability is extinguished a. Death of the accused Liability for pecuniary penalties is extinguished only if death occurs before final judgment. b. Service of Sentence Execution must be by virtue of a final judgment and in the form prescribed by law. c. Amnesty d. Absolute pardon e. f. g. Prescription of the crime Prescription of the penalty Pardon in private offenses Extended to pardoned defendant alone and to no other Prescription of the Crime • Note: • Enjoyment of an accrued right cannot forever be left on a precarious balance [People vs Reyes (1989)]. • Protection from prosecution under a statute of limitation is a substantive right [People vs Sandiganbayan (1992)]. • Absolute pardon Conditional pardon Definiti on: It is the loss or waiver by the state of its right to prosecu te a crime [People vs Castor (1954)]. Compu tation of REMEDIAL LAW REVIEWER UP LAW Period [Art 9, RPC] 1. Commencement: From the day on which the crime is discovered by the offended party, the authorities or their agents. 2. Interruption: Upon the filing of the complaint or information o o 2 mos. – Light offenses When the penalty fixed is a compound one, the highest penalty shall be made the basis of the application of letters a-c Prescription of the Penalty • • • General Rule: Includes complaint filed with the proper officer for PI. o Exception: Period for offenses penalized by special laws and ordinances is interrupted only by filing in court. o Commences to run again: When proceedings terminate without the accused being convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him. • Prescription shall not run when the offender is absent from the Philippines. • Manner of computing time: o 1 yr = 365 days o 1 month = 30 days, unless specified o 1 day = 24 hours o Nights = sunrise to sunset o First day shall be excluded, while last day included o The rule that if the last day falls on a Sunday or a holiday, the act can still be done the following day does NOT apply to the computation of the period of prescription of a crime. Information concerning said felony cannot be filed anymore on the next working day as the offense has by then already prescribed. Definition: It is the loss or waiver by the State of its right to demand service of the penalty imposed. When and penalties prescribe: [Art 92, RPC] o 20 yrs – Death and Reclusion Perpetua o 15 yrs – Other afflictive penalties o 10 yrs – Correctional penalties, except Arresto Mayor which prescribes in 5 yrs o 1 yr – light penalties • • Act No. 3326 governs period of prescription for violation of special laws. Where the accused is found to have committed a lesser offense included in the offense charged, he cannot be convicted of the lesser offense if it has already prescribed [Magat vs People (1991)]. • 19 2 Computation of period: [Art 91, RPC] 1. Commencement : From the date when the culprit should evade the service of his sentence. 2. Interruption: If the defendant should give himself up, be captured, should go to some foreign country with which this Government has no extradition treaty, or should commit another crime before the expiration of the period. • Prescription of a continuing crime: It is counted from the latest or last act constituting the series of acts continuing the single crime [People vs Castaneda (1990)]. • o o o Prescription Periods: [Art 90, RPC] o 20 yrs – Death and Reclusion Perpetua o 15 yrs – Other afflictive penalties 10 yrs. – Correctional penalties; except Arresto Mayor, which prescribes in 5 yrs. 1 yr. – Libel and similar offenses; 6 mos. – Oral defamation and slander by deed Pardon In Private Offenses (seduction, abduction, acts of lasciviousness, rape) • It extinguishes the criminal action or remits the penalty already imposed. REMEDIAL LAW REVIEWER UP LAW • General Rule: Pardon should be given before the filing of the information o Exception: Marriage between the offended woman and the offender [Art 344, RPC; People vs Lualhati (1989)]. • Applicable to co-principals, accomplices and accessories. o If the victim is a minor: Pardon of offended party and of both parents is required [People vs de la Cruz (1993)]. 8) Contains Averments Which, if True, Would e) • Requisites: o Evil sought to be avoided actually exists; o Injury feared greater than that done to avoid; o No other practical and less harmful means. Fulfillment of a duty or lawful exercise of a right or office f) Obedience to an order issued by a superior for some lawful purpose Exempting Circumstances [Art 12, RPC] Constitute a Legal Excuse or Justification Justifying Circumstances [Art 11, RPC] a) rights • Acts in defense of his person or Requisites: o Unlawful aggression; o Reasonable necessity of means employed; o Lack of sufficient provocation. a) Imbecile or Insane • b) c) yrs Exception: Insane acting during a lucid interval Person under 9 yrs old Person over 9 yrs and under 15 • d) Exception: If he acted with discernment Causes injury by mere accident, b) Acts in defense of the person or rights of his • Spouse; • Ascendants; • Descendants; • Legitimate/natural/adopted brothers or sisters; • Relatives by affinity in the same degrees; • Relatives by consanguinity within the 4th civil degree. o Provided: That unlawful aggression and reasonable necessity of means employed are present. In case provocation was given by the person attacked, that the one making the defense had no part. c) Acts in defense of the person or without fault or intention, while performing a lawful act with due care e) force Under compulsion of irresistible 19 3 f) Under impulse of uncontrollable fear or greater injury g) Fails to perform an act required by law when prevented by some lawful insuperable cause 2. Distinguish from demurrer to evidence MTQ Filed before entering plea Does not go into the merits of the case Demurrer to Evidence Filed after the prosecution has rested its case Based upon the inadequacy of the evidence adduced by the prosecution rights of a stranger: • Provided: 1) That unlawful aggression and reasonable necessity of means employed are present and that 2) the person defending should not be induced by revenge or resentment or other evil motive. d) Act which causes damage to avoid evil or injury 3. Effects of sustaining the motion to quash Court order sustaining motion • General Rule: Court may order that another complaint or information be filed [Rule 117, Sec. 5]. o Exception: If MTQ was based on the ff: REMEDIAL LAW REVIEWER UP LAW 1. Criminal action or liability has been extinguished 2. Double jeopardy Proper remedy: appeal after the trial Proper remedy: appeal the order 4. Exception to the rule that sustaining the motion • General Rule: If in custody, the accused shall not be discharged unless admitted to bail [Rule 117, Sec. 5]. The order must state either release of the accused or cancellation of his bond. o Exception: When there is no order sustaining the motion is made OR if there is one, no new information is filed within the time specified in the order or within such further time as the court may allow for good cause. is not a bar to another prosecution General Rule: It will not be a bar to another prosecution for the same offense [Rule 117, Sec. 6] Exception: If the ground for the quashal is either: 1. The criminal action or liability has been extinguished. 2. The accused has been previously convicted, or in jeopardy of being convicted, or acquitted of the offense charged. 5. Double Jeopardy Rule of Double Jeopardy When a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the express consent of the accused, the latter cannot again be charged with the same or identical offense [Rule 117, Sec. 3(i)]. Kinds of Double Jeopardy [Art III, Sec. 21, Consti]  Exception to the exception: If he is also in custody for another charge. • Better approach if the ground was that the court has no jurisdiction over the subject matter: The court should not quash the complaint or information. Instead, it should remand or forward the case to the proper court. Remedies of the prosecution • General Rule: To amend the information to correct the defects if the TC makes the order, and thereafter prosecute on the basis of the amended information [Rule 117, Sec. 4] o Exception: Prosecution is precluded where the ground for the quashal would bar another prosecution for the same offense. • Prosecution may appeal from the order of quashal to the appellate court. • If the information was quashed because it did not allege the elements of the offense, but the facts so alleged constitute another offense under a specific statute, the prosecution may file a complaint for such specific offense where dismissal is made prior to arraignment and on MTQ [People vs Purisima (1978)]. Order denying MTQ Interlocutory Not appealable absent a showing of GAD Order granting MTQ Final order Immediately appealable but subject to rules on double jeopardy Disposes of the case upon its merits 1. No person shall be put twice in jeopardy for the SAME OFFENSE. 2. When an act punished by a law and an ordinance, conviction or acquittal under either shall be a bar to another prosecution to another prosecution for the SAME ACT. Same Offense • The offenses are penalized either by different sections of the same law or by different statutes. • Must examine the essential elements of each: o Test: WON evidence that proves one offense would likewise prove the other [People vs Ramos (1961)]. • It is not necessary to have absolute identity [People vs Relova (1987)]. Same Act • Does not dispose of the case upon its merits An offense penalized by ordinance is, by definition, different from an offense penalized under a statute. Hence, they would never constitute double jeopardy. However, the second sentence of the constitutional protection was precisely intended REMEDIAL LAW REVIEWER UP LAW to extend to situations not covered by the first sentence. Although the prior offense charged under an ordinance be different from the offense charged under a national statute, the constitutional protection is available provided that both arise from the same act or set of acts [People vs Relova (1987)]. • Liability is produced both under an ordinance and a national statute. Note: Where there are two different laws or articles of the same code that define two crimes, prior jeopardy as to one is NOT an obstacle to a prosecution of the other when each crime involves some important act which is not an essential element of the other [Loney vs People (2006); People vs Doriquez (1968)]. Requisites for 1st Jeopardy to Attach 1. A valid complaint or information • Sufficient in form and substance to sustain a conviction 2. The court had jurisdiction 3. A valid arraignment 4. A valid plea 5. Conviction, acquittal of the accused OR case was dismissed without his express consent Note: • Dismissal Dismissal vs. Acquittal Acquittal Always based on the merits. Defendant is acquitted because his guilt wasn’t proven beyond reasonable doubt. Double attaches jeopardy always Does not decide the case on the merits. Does not determine innocence or guilt Double jeopardy will 4 not always attach 19 Requisites to Raise Double Jeopardy 1. First jeopardy must have attached. 2. First jeopardy must have been terminated. 3. Second jeopardy must be a) for the same offense or b) the second offense necessarily includes or is necessarily included in the offense charged in the first information or c) is an attempt or frustration thereof. Note: • The discharge of a defendant on a preliminary investigation is NOT such an adjudication in his favour as will bar a subsequent prosecution for the offense. This is because a preliminary investigation is not a trial and does not have for its object that of determining definitely the guilt of the accused. Furthermore, the accused has not yet been arraigned. • Exception: A dictated, coerced and scripted verdict of acquittal is a void judgment. It neither binds nor bars anyone [Galman v. Sandiganbayan (1986)]. • • “Without express consent”: It refers only to dismissal or termination of the case. It does NOT refer to the conviction or acquittal [People v. Labatete (1960)]. • • If consent is not express, dismissal will be regarded as final – i.e. with prejudice to refiling [Caes v. IAC (1989)]. Exception: Dismissal has the effect of acquittal even with the consent of the accused when predicated on (1) insufficiency of the prosecution’s evidence or (2) denial of the right to a speedy trial [Alamario v. CA (2001)]. • Dismissal = Acquittal a) Demurrer to evidence b) Dismissal due to violation of right to speedy trial (even if dismissal was upon motion of the accused or with his express consent) Tests for determining whether the two offenses are identical: There is IDENTITY between the two offense not only when the second offense is exactly the same as the first, but also when the second offense is an attempt to or frustration of or is necessarily included in the offense charged in the first information • Exception to the Identity Rule: 1. The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge. 2. The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information. 3. The plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party EXCEPT when offended party failed to appear during such arraignment. REMEDIAL LAW REVIEWER UP LAW When there is NO double jeopardy imprudence [People v. City Court of Manila (1983)]. 1. Private offended party appeals the civil aspect of the case [Manantan vs CA (2001)]. 8. 2. Conviction of a crime under a special law (malum prohibitum) which also constitutes an offense under the RPC is not a bar to the prosecution under the RPC (malum in se) [People vs Sanchez (1998)]. In a continuing offense, only one crime is committed. Where 2 informations arose from the same transaction, the 2nd case CANNOT prosper [Mallari vs People (1988)]. 9. 3. Two informations are filed charging the accused with two different offenses having different elements though arising from the act (eg. estafa and BP 22) [Ching vs CA (1990)]. General Rule: Prosecution cannot file an appeal or a motion for reconsideration after jeopardy has attached to increase the imposed penalty [US vs Kepner (1904)]. • 4. Prosecutor may revive and reinstate case without filing a new information when the information is provisionally dismissed with the conformity of the accused after arraignment and initial presentation prosecution evidence has started since the order of provisional dismissal has not yet become final [Lauchengco vs CA (1979)]. Exception: If the purpose is to decrease the penalty wrongfully imposed, it is beneficial to the accused and there is no reason to complain. 6. Provisional Dismissal • 5. • Dismissal of the case was declared null and void [People vs Mogol (1984)]. Where an order dismissing a case is not on the merits, it cannot bar as res judicata a subsequent case based on the same offense. The dismissal being null and void, the proceeding before the TC may not be said to have been lawfully terminated [People vs Gorospe (1984)]. Definition: A case is dismissed without prejudice to its being refilled or revived. • General Rule: Cases are provisionally dismissed where there has already been arraignment and accused consented to a provisional dismissal. o Exception: If dismissal was due to a demurrer to evidence. When dismissal becomes permanent • 1 year after issuance of the order without the case having been revived or offenses punishable: [Rule 117, Sec. 8] 1. By imprisonment not exceeding 6 yrs 2. By fine of any amount 3. By both • 2 yrs after issuance of the order without the case having been revived for offense punishable by imprisonment of more than 6 yrs. Note: • 1. 2. 19 6. Petition for certiorari filed by the prosecutor to correct the penalty which should be lower than that imposed by the TC – it is favorable to the accused [People vs Lee Jr (1984)]. 7. Filing of the 2nd information where a new fact supervened (eg. the injured party dies from the injuries after conviction). [1997, 2005 Bar] • Where there is no supervening event after arraignment and conviction: o If the 1st charge was based on findings of a physician, and a 2nd information was filed charging a more serious crime based on the findings of another physician [People v. Buling (1960)]. o If the victim died 2 days prior to arraignment of the accused who pleaded guilty to an information for serious physical injuries thru reckless imprudence – he can no longer be charged with homicide thru reckless How to revive a case: Refiling of the information Filing of a new information for the same offense or one necessarily included in the 5 original offense charged. • Periods for reinstatement or revival 1. 1 yr for offenses punishable by imprisonment not exceeding 6 yrs 2. 2 yrs for offenses punishable by imprisonment exceeding 6 yrs • The State may revive beyond the periods provided there is a justifiable necessity for the delay. REMEDIAL LAW REVIEWER UP LAW • The Court is not mandated to apply Sec. 8 retroactively simply because it is favorable to the accused. The time-bar under the new rule was fixed for the benefit of the State and the accused, and not for the accused only [People vs Lacson (2003)]. Requisite procedure [Rule 117, Sec. 8] • Motion can be made: 1. By the prosecution, with the express conformity of the accused 2. By the accused 3. By both • Requisites for Provisional Dismissal: 1. Consent of the prosecutor 2. Consent of the accused 3. Notice to the offended party 6. Other matters that will promote a fair and expeditious trial of the civil and criminal aspects of the case 2. What the court should do when prosecution and offended party agree to the plea offered by the accused Form • General Rule: Court approval is required. o Exception: Agreements not covering J. PRE-TRIAL 1. Matters to be considered during pre-trial 2. What the court should do when prosecution and offended party agree to the plea offered by the accused 3. Pre-trial agreement 4. Non-appearance during pre-trial 5. Pre-trial order 6. Referral of some cases for Court Annexed Mediation and Judicial Dispute Resolution 2. 1. Matters to be considered during pre-trial Section 1. Pre-trial; mandatory in criminal cases Pre-trial is MANDATORY in all criminal cases. The court shall after arraignment and within 30 days from the time the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for by law, order a pre-trial. Its main objective is to achieve an expeditious resolution of the case. Things considered during pre-trial 1. Plea bargaining 2. Stipulation of facts 3. Marking for identification of evidence 4. Waiver of objections to admissibility of evidence 5. Modification of the order of trial if the accused admits the charge but interposes a lawful defense (reverse trial) matters referred to in Rule 118, Sec. 1 [SC A.M. No. 03-1-09-SC 2004]. • Required form of pre-trial agreement 1. Must be in writing 2. Signed by the accused 3. Signed by the counsel • It must be reduced into writing and signed by the accused and counsel. Otherwise, it cannot be used against the accused (i.e. inadmissible in evidence). The constitutional right to present evidence is waived expressly. • Purpose for signature requirement: [People vs Uy (2000)] 1. To safeguard the rights of the accused against improvident or unauthorized agreements or admissions which his counsel may have entered into without his knowledge. 2. To eliminate any doubt on the conformity of the accused to the facts agreed upon. Effect • Once the stipulations are reduced into writing and signed by the parties and their counsels, they become binding on the parties who made them. They become judicial admissions of the fact or facts stipulated (2008 Bar) • Even if placed at a disadvantageous position, a party may not be allowed to rescind them unilaterally; it must assume the consequences of the disadvantage [Bayas vs Sandiganbayan (2002)]. 19 6 3. Pre-trial agreement Coverage [Rule 118, Sec. 1] The court shall order pre-trial in ALL criminal cases cognizable by the Sandiganbayan, RTC and MTC or MTCC or MCTC or MeTC REMEDIAL LAW REVIEWER UP LAW Period [Rule 118, Sec. 1] o This is no longer prohibited in criminal • General Rule: After arraignment and within 30 days from the time the court acquires jurisdiction over the person of the accused. o Exception: If a shorter period is provided by special or SC circulars. Purposes [Rule 118, Sec. 1] a) Plea bargaining b) Stipulation of facts c) Marking for identification of evidence d) Waiver of objections to admissibility of evidence e) Modification of the order of trial if accused admits the charge but interposes a lawful defense f) Other matters that will promote a fair and expeditious trial of the civil and criminal aspects of the case Note: • Plea bargaining cases [People vs Hernandez (1996)]. o However, in a case of rape with the allegation that victim is below 12 yrs of age which qualifies said crime and increases its penalty to death, nothing short of proof beyond reasonable doubt of every fact necessary to constitute the elements of the crime must be established. Said facts and circumstances cannot be subject of stipulation [People vs Sitao (2002)]. • Marking for identification of the evidence of parties Proffer of exhibits is not allowed. It ought to be done at the time a party closes the presentation of evidence. 4. Non-appearance during pre-trial [Rule 118, Sec. 3] • If counsel for the accused or the prosecutor 1) does not appear at the pre-trial conference and 2) does not offer an acceptable excuse, the court may impose proper sanctions or penalties (reprimand, fine or imprisonment). • Rationale: to enforce the mandatory requirement of pre-trial in criminal cases [Rule 118, Sec. 1]. Note: Accused is not included because his constitutional right to remain silent may be violated. The accused is not required to attend (unless required by the court) and is merely required to sign the written agreement arrived at in the pre-trial conference if he agrees to the contents of such 5. Pre-trial order [Rule 118, Sec. 4] When issued • Issued by the court after the pre-trial conference. • Judgment of acquittal based on pre-trial despite disputed documents and issues of fact amounts to grave error and renders the judgment void [People vs Santiago (1989)]. Contents a) Actions taken; b) Facts stipulated; c) Evidence marked o Definition: It is the process in criminal process whereby the 1) accused, 2) offended party, and the 3) prosecution work out a mutually satisfactory disposition of the case subject to court approval [See also DOJ Circular No. 35 (June 31, 1990), as amended by Circular No. 55 for the guidelines on plea bargaining as well as note on Rule 116]. o It usually involves the defendant’s pleading guilty to a lesser offense or to one or some of the counts of a multi-count indictment in return for a lighter sentence than that for the graver charge [People vs Villarama (1989)]. o The conviction of the accused of the lesser offense precludes the filing and prosecution of the offense originally charged in the information, except when the plea of guilty to a lesser offense is without the consent of the offended party and the prosecutor [People vs De Luna (1989)]. o When not allowed: Section 23 of RA9165 (Comprehensive Dangerous Drugs Act of 2002) says that “any person charged under any provision of this Act regardless of imposable penalty shall not be allowed to avail of the provision on plea-bargaining.” • Stipulation of facts REMEDIAL LAW REVIEWER UP LAW Effect a) b) of c) Binds the Parties • The accused must move to correct any mistake or modify the pre-trial order. Otherwise, it will be deemed to have waived and be barred from questioning • The procedure is substantially the same in civil cases, except that any modification of the pre-trial order in civil cases must be made before the trial. No such limitation is provided for in criminal cases (1997 Bar). Limits the trial to those matters not disposed Control the course of the action during trial • Exception: If modified by the court to prevent manifest injustice. K. TRIAL 1. Instances when presence of accused is required by law 2. Requisite before trial can be suspended on account of absence of witness 3. Trial in Absentia 4. Remedy when accused is not brought to trial 7 within the prescribed period 5. Requisites for discharge of accused to become a state witness 6. Effects of Discharge of accused as state witness 7. Demurrer to Evidence 19 6. Referral of some cases for Court Annexed Mediation and Judicial Dispute Resolution A.M. No. 03-1-09-SC RE: PROPOSED RULE ON GUIDELINES TO BE OBSERVED BY TRIAL COURT JUDGES AND CLERKS OF COURT IN THE CONDUCT OF PRETRIAL AND USE OF DEPOSITION-DISCOVERY MEASURES RESOLUTION CRIMINAL CASES After the arraignment, the court shall forthwith set the pre-trial conference within thirty days from the date of arraignment, and issue an order: (a) Requiring the private offended party to appear thereat for purposes of plea-bargaining except for violations of the Comprehensive Dangerous Drugs Act of 2002, and for other matters requiring his presence; (b) Referring the case to the Branch COC, if warranted, for a preliminary conference to be set at least three days prior to the pre-trial to mark the documents or exhibits to be presented by the parties and copies thereof to be attached to the records after comparison and to consider other matters as may aid in its prompt disposition; and (c) Informing the parties that no evidence shall be allowed to be presented and offered during the trial other than those identified and marked during the pre-trial except when allowed by the court for good cause shown. In mediatable cases, the judge shall refer the parties and their counsel to the PMC unit for purposes of mediation if available. Presence is mandatory: a. For purposes of identification; b. At arraignment; [Rule 116, Sec. 1(b)] c. At the promulgation of judgment; • Exception: If the conviction is for a light offense. [Rule 120, Sec. 6] d. [Rule 119, Sec. 15] When it satisfactorily appears that a witness for the prosecution is too sick or infirm to appear at the trial as directed by the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial. Failure or refusal of the accused to attend the examination after notice shall be considered a waiver. The statement taken may be admitted in behalf of or against the accused. 2. Requisite before trial can be suspended on account of absence of witness Absence or unavailability of an essential witness • “Absent” means that his whereabouts are unknown or cannot be determined by due diligence. 1. Instances when presence of accused is required by law REMEDIAL LAW REVIEWER UP LAW • “Unavailable” means that his whereabouts are known but presence for trial cannot be obtained by due diligence. Allows new suit for the same cause of action 3. Trial in Absentia (1998 Bar) Requisites: 1. Accused has been arraigned; 2. He was duly notified of trial; 3. His failure to appear is unjustified. Purpose: To speed up disposition of cases. General rule: The right to be present at one’s trial may be waived. • Exceptions: At certain stages: [Lavides v. CA (2000)] o Arraignment and plea o Promulgation of sentence, unless for light offense o During trial whenever necessary for ID purposes Imports contemplation of further proceedings, and when they appear in an order or decree, it shows that the judicial act is not intended to be res judicata of the merits Terminates the case reserving, however, to the plaintiff the right to file a new complaint which, if filed, is entirely new and different from the case which was dismissed Adjudication on the merits, and final disposition, barring the right to bring or maintain an action on the same claim or cause Is res judicata as to every matter litigated  Exception to the exception: If the accused unqualifiedly admits in open court after arraignment that he is the person named as the defendant in the case on trial. 4. Remedy when accused is not brought to trial within the prescribed period Effect of delay [Rule 119, Sec. 9] • On motion of the accused, information may be dismissed on the ground of denial of his right to speedy trial (2007 Bar). Must be raised prior to trial otherwise considered a waiver of the right to dismiss under this section. Subject to the rules on double jeopardy. Hence, if with prejudice, the case cannot be revived anymore. Burden of Proof o The accused has the burden of proving the ground of denial of right to speedy trial for the motion. o The prosecution has the burden of going forward with the evidence to establish the exclusion of time under Rule 119, Sec. 3. Dismissal without prejudice Dismissal with prejudice 5. Requisites for discharge of accused to become a state witness Discharge of a co-accused • General rule: It is the duty of the prosecutor to include all the accused in the complaint/information. o Exception: Prosecutor may ask the court to discharge one of them after complying with the conditions prescribed by law. [Rule 119, Sec. 17] o This applies only when the information has already been filed in court. • • Requisites [Rule 119, Sec. 17] • (1) Two or more persons are jointly charged with the commission of any offense. (2) Petition for discharge is filed before the defense has offered its evidence. [People v. 19 8 Aniňon (1988)] (3) Hearing in support of the discharge. o Prosecution to present evidence. o Sworn statement of each proposed state witness. (4) The court is satisfied of the ff: (a) Absolute necessity for the testimony;  He alone has the knowledge of the crime, and not when his testimony REMEDIAL LAW REVIEWER UP LAW would simply corroborate or strengthen the evidence in the hands of the prosecution. [Flores v. Sandiganbayan (1983)] • true or not, to make out a case or sustain the issue. [Gutib v. CA (1999)] Purpose: In light of the constitutional right to be presumed innocent and of the privilege against self-incrimination [Goldstein, 1960] for the accused to test the sufficiency of prosecution’s evidence before presenting his defense. There is no material difference between the Motion to Acquit of the accused before the TC and the demurrer to evidence. The only difference: If the MTD is ordered, it is tantamount to an acquittal, but the order of denial of the demurrer to evidence is not reviewable by appeal or certiorari before judgment. Purpose: to prevent the filing of demurrer based on frivolous and flimsy grounds. The new rule recognizes criminal cases in which presentation of defense evidence will only entail a waste of time.  E.g. When there is a conspiracy and the crime is committed clandestinely, the discharge of a conspirator is necessary to testify against the other conspirator. [Chua v. CA (1996)] (b) There is no other direct evidence available for the proper prosecution of the offense, except the testimony; (c) The testimony can be substantially corroborated in its material points; (d) Accused does not appear to be the most guilty;  Gravity or nature of acts he committed are compared to those of his co-accused.  Not merely the fact that in law the same penalty is imposable on all. (e) Accused has not, at any time, been convicted of any offense involving moral turpitude 6. Effects of Discharge of accused as state witness Effect of discharge • General rule: The order of discharge shall: [Rule 119, Sec. 18] o Amount to an acquittal of the discharged accused; o Bar future prosecutions for the same offense. • • • How initiated [Rule 119, Sec. 23] • Court motu proprio, after giving the prosecution the opportunity to be heard; • Upon demurrer to evidence filed by the accused: o With leave of court; o Without leave of court. Motion for leave to file demurrer [Rule 119, Sec. 23] • It must specifically state its grounds. • It must be filed within a non-extendible period of 5 days after the prosecution rests. Prosecution may then oppose within a non-extendible period of 5 days from receipt. • If leave of court granted, demurrer must be filed within a non-extendible period of 10 days from notice. Prosecution may oppose within a similar period from its receipt. Effect of granting motion for leave to file demurrer • The court may dismiss the action on the ground of insufficiency of evidence. [Rule 119, Sec. 23] • Sufficient evidence for frustrating a demurrer is evidence that proves: [Gutib v. CA (1999)] o Commission; o Precise degree of participation. 19 9  Exception: If the accused fails/refuses to testify against his coaccused in accordance with his sworn statement constituting the basis for his discharge. • Any error in asking for and in granting the discharge cannot deprive the discharged of the acquittal and the constitutional guaranty against double jeopardy. [People v. Verceles (2002)] Subsequent amendment of the information does not affect discharge. [People v. Taruc (1962)] • 7. Demurrer to Evidence (1998, 2001, 2004 Bar)  • Definition: Objection by one of the parties to the effect that the evidence which his adversary produced is insufficient in point of law, whether E.g. Proof of the possession of recently stolen goods taken together with proof of the commission of the theft, may be and generally will be sufficient to establish the guilt of the accused, if REMEDIAL LAW REVIEWER UP LAW there is nothing in the doubt as to the guilty possession, though presumption to that Catimbang (1916)] record to raise a character of the there is no effect. [U.S. v. L. JUDGMENT 1. Requisites of a judgment 2. Contents of Judgment 3. Promulgation of judgment; instances of promulgation of judgment in absentia 4. When does judgment become final (four instances) 1. Requisites of a judgment Form [Rule 120, Sec. 1] • Written in official language. o If given verbally, it is incomplete. It does not have an effect before it was actually reduced to writing and signed by the judge. [People v. Catolico (1972)] A verbal order dismissing the case Effect of denial of motion for leave to file demurrer • Order denying the motion for leave or order denying the demurrer itself, is not reviewable by appeal or by certiorari before judgment. [Rule 119, Sec. 23] • It is interlocutory, but it may be assigned as error and reviewed in the appeal that may be taken from the decision on the merits [Cruz v. People (1999)] Right of the accused to present evidence after demurrer is denied [Rule 119, Sec. 23] Filed w/ leave of court May adduce evidence in his defense Purpose of obtaining leave of court: To determine WON demurrer was filed merely to stall the proceedings Filed w/o leave of court Waives the right to present evidence Submits the case for judgment on the basis of the evidence for the prosecution o If there are 2 or more accused and only one presents a demurrer without leave of court. General rule: The court may defer resolution until decision is rendered on the other accused Exception: If it can be shown from the decision that the resolution on the demurrer was rendered not only on the basis of the prosecution’s evidence but also on the evidence adduced by his coaccused • can be rescinded without prejudicing the rights of the accused – No double jeopardy arises. [Abaya v. Garcia (1988)] o The remedy for a verbal judgment is to appeal or file a petition for mandamus to compel the court to put the decision in writing. Personally and directly prepared by the judge. o Every decision must state distinctly and clearly the factual and legal basis therefore. [Art. 8, Sec. 6, Consti] Judges must nonetheless be allowed to synthesize and simplify their decisions considering the heavy load of trial judges for as long as there is compliance with minimum essence of factual and legal bases. o Implied leave of court is no longer sufficient and prevents accused from presenting evidence [e.g. accused files motion with reservation to present evidence in case motion is denied]  He may quote from narration of facts by the OSG in his brief or memoranda of both parties and adopt the same as his own. [Hernandez v. CA (1993)] Common sense dictates that he be given complete liberty to express his opinion, unrestrained by any fear that a higher court might call down. [People v. Meneses (1998)] Signed by the judge.  • REMEDIAL LAW REVIEWER UP LAW o o The judge who presided over the entire trial would be in a better position to ascertain the truth or falsity of the testimonies. But the judge who only took over can • render a valid decision by relying on the transcript. It does not violate due process. [People v. Badon (1999)] Contains clearly and distinctly a statement of facts proved and the law upon which judgment is based. o There is sufficient compliance if the decision summarizes the evidence of both parties, synthesizes the findings and concisely narrates how the offense was committed. o Failure on the part of the TC to make a finding of facts is a revocable error. o There is no law that requires a specific finding of facts with respect to the evidence for the defense. [Reyes v. People (2006)] Judge who penned the decision need not be the one who heard the case • The fact alone that the judge who heard the evidence was not the one who rendered the judgment but merely relied on the record of the case does not render his judgment erroneous or irregular. • The Court generally will not find any misapprehension of facts as it can be fairly assumed under the principle of regularity of performance of duties of public officers that the transcript of stenographic notes were thoroughly scrutinized and evaluated by the judge himself. [Concepcion v. Court of Appeals (2000)] The judgment of conviction shall state: (1) The legal qualification of the offense constituted by the acts committed by the accused and the aggravating/mitigating circumstances which attended its commission. • If a decision does not contain a dispositive portion but the last two paragraphs embody the court’s conclusions, then the decision is valid. [People v. Valeriano (1993)] • TC should express not only its conclusion but also the provision of the law violated for 20 the purpose of informing the accused of the 0 nature of the crime and the law penalizing the same. • No need to state the particular paragraph and article in the RPC, so long as the offense is clearly understood from the facts. • Mere failure to specify the particular provision of law does not invalidate the decision, if it did actually apply the proper provision. (2) The participation of the accused in the offense, whether as principal, accomplice or accessory after the fact. • The penalty imposed upon the accused. (3) Penalty should not be imposed in the alternative. There should be no doubt as to the offense committed and the penalty for it. (4) The civil liability or damages caused by his wrongful act/omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved/waived. • PROOF BEYOND REASONABLE DOUBT – Degree of proof which produces conviction in an unprejudiced mind. [People v. Bacalzo (1991)] 2. Contents of Judgment Contents of judgment (1) Legal qualification of the offence • Acts/omissions that constituted the offence; • Aggravating/mitigating circumstances if any. (2) Participation (3) Penalty (4) Civil liability, if any 1) Conviction Judgment for two or more offenses • General rule: Complaint/information must charge only one offense. o Exception: Cases in which existing laws prescribe a single punishment for various offenses. • General rule: Duplicitous information is subject to a motion to quash. o Exception: Defect is waived when accused fails to move for quashal. • THUS, where the accused fails to object to 2 or more offenses charged in a single information / REMEDIAL LAW REVIEWER UP LAW complain before trial [Rule 120, Sec. 3], the court may: o Convict him of as many offenses as are charged and proved; and  Exception: One of the offenses has been a necessary means for committing the other offense and where both have been the result of a single act. o Impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense.  Exception: Maximum duration of offense: Follow the three-fold rule on the service of penalty. Judgment in case of variance between allegation and proof When an offense includes or is included in another [Rule 120, Sec. 5] • The offense charged necessarily includes the offense proved when some of the essential elements/ingredients of the former, as alleged in the complaint/information, constitute the latter. •An offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter. •Effect o The accused shall be convicted of: [Rule 120, Sec. 4] 1) The offense proved which is included in the offense charged; or 2) The offense charged which is included in the offense proved The right to be informed of the charges • General rule: The defendant can be convicted only of the crime with which he is charged. o Rationale: He has the right to be informed of the nature of the offense with which he is charged before he is put on trial. [People v. Guevarra] However, minor variance between the information and the evidence:  Does not alter the nature of the offense;  Does not determine or qualify the crime or penalty;  Cannot be ground for acquittal. Exception: He can be convicted of an offense proved provided it is included in the charge, or of an offense charged which is included in that which is proved. [Rule 120, Sec. 4]  The accused can be convicted of an offense only when it is both charged and proven.  The mere fact that the evidence presented would indicate that a lesser offense outside the court’s jurisdiction was committed does not deprive the court of its jurisdiction, which had vested in it under the allegations in the information. o o • has not been violated because where an accused is charged with a specific crime, he is duly informed also of lesser crimes/offenses included therein. [People v. Villamar (1998)] o Where a complex crime is charged and the evidence fails to support the charge as to one of the component offenses, the accused can be convicted of the one which is proven. State liability for unjust conviction o The DOJ Board of Claims is authorized to receive/evaluate/process/invest igate claims of victims of unjust imprisonment/detention and victims of violent crimes. [RA 7309] o Requirements for compensation: Unjust accusation; Unjust conviction; It is the same as knowingly rendering an unjust judgment - It is contrary to law or is not supported by the evidence and the same is made with conscious and deliberate intent to do an injustice. [Art. 204, RPC] Unjust imprisonment. o 1) 2)  - Exception to the exception: Where there are facts that supervened after the filing of the information which change the nature of the offense. 20 1 3) 2) Acquittal • Definition: A finding of not guilty based on the merits, either: REMEDIAL LAW REVIEWER UP LAW o o The evidence does not show that his guilt is beyond reasonable doubt; or A dismissal of the case after the prosecution has rested its case and upon motion of the accused on the ground that the evidence fails to show beyond doubt that accused is guilty. • Acquittal based on reasonable ground does not bar a separate civil action based on quasi-delict. [Lontoc v. MD Transit (1988)] Court may hold accused civilly liable even when it acquits him. Acquittal extinguishes civil liability only when the judgment includes a declaration that the facts from which the civil liability might arise did not exist. o The court may nonetheless hold the accused civilly liable in favor of the offended party, or it may deny the award of civil damages expressly or impliedly by being silent on the matter. o The losing party may appeal the ruling on the civil liability, as in any other ordinary appeal, in his name and not in the name of the People • Judge acquitting an accused cannot punish him at the same time Promulgation of judgment; instances of • • REASONABLE DOUBT – Doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest upon the certainty of guilt. • Rationale: It is always better to err in acquitting than in punishing. [People v. Lizada (1993)] • Distinction between acquittal and dismissal of case Acquittal [Rule 120] Decision on the merits based on a finding that the accused is not guilty • Dismissal [Rule 117] Not on the merits and no finding of guilt is made 3. Terminates the case promulgation of judgment in absentia (1997 Bar) The judgment shall state whether: 1) The evidence of the prosecution absolutely failed to prove the guilt of the accused; or 2) It merely failed to prove his guilt beyond reasonable doubt. o #2 does not extinguish the civil liability arising from his acts, since the civil liability arose not from a crime but from the damage caused by such acts, which can be proven by a lower quantum of evidence. • General rule: The court has authority to express disapproval of certain acts even if judgment is for acquittal. o Exception: The court is not permitted to censure the accused in a judgment for acquittal – no matter how light, a censure is still a punishment. o No court has the power to mete out punishment. A finding of guilt must precede the punishment. o This reprehension, however, must be relevant to the issue in the case. If irrelevant/impertinent, they should be stricken out or expunged from the record like any other extraneous matters. [People v. Meneses (1998)] • • Promulgation: An official proclamation or announcement of judgment or order. • Two things are essential and necessary for the valid promulgation of a court decision: 1. There must be a judge or judges legally appointed or elected and actually acting either de jure or de facto, and 2. The said judgment must be duly signed and promulgated during the incumbency of the judge who signed it. [Miguel v Municipal Trial Court (1986)] Judgment/sentence does not become a judgment/sentence in law until: 1) Read and announced to the defendant; or Has become a part of the record of the court. [US v. CFI of Manila, 24 Phil 321] Where there is no promulgation of judgment, no right to appeal accrues. Notice for Promulgation o Clerk of Court gives notice to accused personally or through bondsman or warden and counsel. o If the accused jumps bail or escapes from prison and was tried in absentia, notice will be served in last known address. [Rule 120, Sec. 6] 20 2 2) • • REMEDIAL LAW REVIEWER UP LAW • Sin perjuico judgment: Judgment without a statement of facts. [Dizon v. Lopez (1997)] o Merely reading the dispositive portion of the decision is not sufficient. o Judgment must state the facts and the law on which it is based. o While SC has expressed approval of the practice of some judges withholding the dispositive portion from their opinions until the very last moment of promulgation in order to prevent leakage, such refers to the preparation of the decision and not to promulgation. o There is no more reason to keep it a secret at the stage of promulgation. a. Promulgation where judge is absent [Rule 120, Sec. 6] The judgment may be promulgated by the clerk of court when the judge is absent or outside the province or city. b. Presence of accused required; exception [Rule 120, Sec. 6] leave of court to avail of these remedies. He shall state the reasons for his absence. o If he proves his absence was for a justifiable cause, shall be allowed to avail of the remedies within 15 days from notice. • Promulgation when accused is confined/detained in another city o It will be done in the RTC who has jurisdiction over the place of confinement. • Failure to appear at the scheduled date of promulgation o Promulgation is made by recording the judgment in the criminal docket and serving a copy at the accused’s last known address or through counsel. • Promulgation date where judge no longer a judge is void. o If at the time of the promulgation, the judge penning the decision has ceased being a judge of the court, the decision would not be an act of the court. [People v. Dimalanta] Promulgation thereby a succeeding judge produces no legal effect since it cannot restore validity to a document already void. o • General rule: Presence of the accused is mandatory. o Exception: convictions for light offenses Conviction for light offense Promulgation in absentia He may appear through counsel/representative To prevent subversion of judicial process and enable enforcement of civil liability No appeal necessary; judgment is final and executory - Note the old rule that presence of the accused during promulgation of judgment is required only in case of conviction 4. When does judgment become final (four instances) [Rule 120, Sec. 7] Judgment becomes final: 1) After the lapse of the period for perfecting an appeal; 2) When the sentence has been partially/totally satisfied or served; or 3) The accused has expressly waived in writing his right to appeal, 4) When the accused applies for probation, and thereby waives right to appeal. [Regalado] o Exception: cases where death penalty was imposed—automatic review; judgment does not become final after the promulgation and by the TC’s issuance of a commitment order. Verdict of acquittal • If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in the ROC against the judgment and the court shall order his arrest. o However, within 15 days from promulgation of judgment, he can surrender and file a motion for REMEDIAL LAW REVIEWER UP LAW • Before the judgment becomes final, TC has plenary power to make, either on motion or motu proprio, such amendment or alterations as it may deem best, within the frame of law, to promote the ends of justice. • After finality, TC is divested of authority to amend/alter the judgment, except to correct clerical errors. When judgment of acquittal becomes final • It is immediately final and executory. • The State may not seek its review without placing the accused in double jeopardy. • Errors of law or fact in the judgment, which requires no further proceedings. [Rule 121, Sec. 3] Rationale: To afford the TC the opportunity to correct its own mistakes and to avoid unnecessary appeals. 3. Requisites before a new trial may be granted on ground of newly discovered evidence • Requisites: That the evidence - [Jose v. CA (1997)] a) Was discovered after the trial; b) Could not have been discovered and produced at the trial even with the exercise of reasonable diligence. [US v. Pico (1982)] o Burden of proving this is on the M. NEW TRIAL OR RECONSIDERATION 1. Grounds for New Trial 2. Grounds for Reconsideration 3. Requisites before a new trial may be granted on ground of newly discovered evidence 4. Effects of granting a new trial or reconsideration 5. Application of Neypes Doctrine in Criminal Cases 1. Grounds for New Trial [Rule 121, Sec. 2] • That errors of law or irregularities prejudicial to the substantial rights of the accused have been committed during the trial; accused. [US v. Torrente (1922)] c) Is material, not merely cumulative/corroborative/impeaching; and d) Is of such weight that it would probably change the judgment if admitted. o It must be of weighty influence and will affect the result of the trial. [People v. Alfaro (2003)] • 20 3 ○ General rule: Error of the defense counsel in the conduct of the trial is neither an error of law nor an irregularity. • Exception: Acquittal would in all probability have followed the introduction of certain testimony which was not submitted at the trial under improper or injudicious advice of incompetent counsel. ○ Irregularities must be with such seriousness as to affect prejudicially the substantial rights of the accused. That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probably change the judgment.  Exceptions: o “Interest of justice” as gauge for introduction of new evidence  In People v. Almendras (2003), the court ruled a motion for a new trial may be granted on a ground not specifically provided in the rules, provided that it is sought in the interest of justice. In the case, the relief of a new trial was granted to a client who has suffered by reason of his/her counsel’s gross mistake and negligence. o When there is variance in 2 reports  In People v. del Mundo (1996), the court allowed the presentation in a new trial of a police report, not new, and which could have been discovered with due diligence, because the evidence contained in such was at such variance with the health officer’s report at trial, that its contents raised doubts to the guilt of the accused. trial or 4. Effects of granting a new reconsideration [Rule 121, Sec. 6] • In all cases: 2. Grounds for Reconsideration REMEDIAL LAW REVIEWER UP LAW The original judgment set aside or vacated; o A new judgment is rendered accordingly. o Specific effects when granted upon different grounds: Ground Errors of law or irregularities committed during the trial Effect All proceedings and evidence affected shall be set aside and taken anew If error or irregularity goes into the jurisdiction, entire proceeding is void and must be set aside Newlydiscovered evidence Evidence already adduced shall stand and the newlydiscovered and such other evidence shall be taken and considered together with the evidence already in the record Allow introduction of other such evidence in the interest of justice Court may Allow introduction of additional evidence in the interest of justice o petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasijudicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court. (Neypes v. CA, 2005) N. APPEAL 1. Effect of an Appeal 2. Where to appeal 3. How appeal taken 4. Effect of appeal by any of several accused 5. Grounds for dismissal of appeal 1. Effect of an Appeal An appeal in a criminal proceeding throws the whole case open for review and it becomes the duty of the appellate court to correct an error as may be found in the appealed judgment, WON it is made the subject of assignment of errors. [People v. Calayca (1999)] 2. Where to appeal [Rule 122, Sec. 2] Appeal in The RTC For cases decided by MTC/MeTC/MCTC 20 4 The Sandiganbayan The CA RTC or MTC/MeTC/MCTC (if it is government duty-related - i.e. filed under EO 1, 2, 4 and 14-A) RTC (if it involves questions of fact and of law) Remedy against GAD in granting MNT/MFR: Certiorari or prohibition. • Otherwise, prosecution may no longer have opportunity to question the order if accused is acquitted after new trial is conducted (because there will be double jeopardy). [Luciano v. Estrella (1970)] 5. Application of Neypes Doctrine in Criminal Cases Fresh Period to Appeal after Denial of MNT/MR. Henceforth, this “fresh period rule” shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on REMEDIAL LAW REVIEWER UP LAW The SC RTC a) If it involves questions of law only b) If it involves constitutionality or validity of any treaty/law/ordinance/EO/ regulation or the jurisdiction of the inferior court c) In criminal cases involving offenses for which the penalty imposed is death or life imprisonment d) Other offenses, which, although not so punished, arose out of the same occurence or which may have been committed by the accused on the same occasion, as that giving rise to the more serious offense CA or Sandiganbayan the expiration of the period to file the same, the RTC shall decide the case on the basis of the entire record of the case and of such memoranda/briefs as may have been filed. [Rule 123, Sec. 1] • General rule: The procedure to be observed in the MeTC/MTC/MCTC shall be the same as that in the RTC. o Exceptions: 1) Where a particular provision applies only to either of said courts; 2) Criminal cases governed by the Revised Rules on Summary Procedure. • The SC Offenses falling under the MTC/MCTC’s Jurisdiction: [Salcedo v. Nobles-Bans (1985)] o Notwithstanding the uniform procedure rule, if the offense falls under the jurisdiction of the MTC/MCTC, complaint/information may be filed directly with said courts or with the City Prosecutor’s Office. • 3. How appeal taken [Rule 122, Sec. 9] Transmission of record to RTC Within 5 days from perfection of the appeal, the clerk of court shall transmit the original record to the appropriate RTC. Notification of parties Upon receipt of the complete record, TSN and evidence of the case, the RTC clerk of court shall notify the parties of such fact. Submission of memoranda/briefs Within 15 days from receipt of said notice, the parties may submit memoranda/briefs, or may be required by the RTC to do so. Decision After submission of such memoranda/briefs or upon Offenses falling under the MeTC’s Jurisdiction: [Salcedo v. Nobles-Bans (1985)] o In Metro Manila and other chartered cities, the complaint may be filed only with the Office of the City Prosecutor o If the case is directly filed with the court, the case should not be dismissed. The court should just refer it to the City Prosecutor for the filing of the corresponding information. • Cases governed by the Revised Rules on Summary Procedure: a) Violations of traffic laws/ rules/ regulations; b) Violations of the rental law; c) Violations of municipal/city ordinances; d) Violations of BP 22; e) All other criminal cases where the penalty is imprisonment not exceeding 6 months or a fine not exceeding P1,000 or both, irrespective of other imposable penalties (accessory or otherwise) or of the civil liability arising from it. REMEDIAL LAW REVIEWER UP LAW • However, in offenses involving damage to property through criminal negligence where imposable fine does not exceed P 10,000, the Uniform Procedure Rule shall govern (i.e. it is not governed by Revised Rules on Summary Procedure). • Revised Rules on Summary Procedure also does not apply to criminal cases where the offense charged is necessarily related to another criminal case subject to the ordinary procedure. The Revised Rules on Summary Procedure i. COMMENCEMENT OF ACTION [SEC. 11] • The filing of the criminal case shall be either by complaint or by information. o However, in Metropolitan Manila and in chartered cities, commencement shall be only by information. Exception: When the offense cannot be prosecuted de oficio. • The complaint/information shall be accompanied by the affidavits of the complaint and of his witnesses. o No. of copies = [ No. of accused + 2 copies for the court’s files] o If the required no. of copies is not complied with within 5 days from date of filing, the case may be dismissed. ii. • REFERRAL TO LUPON [SEC. 18] If the case requires referral to the Lupong Tagapamayapa under PD 1508 and this is not complied with, it shall be dismissed without prejudice. The case may be revived only after compliance with the requirement. Exception: Criminal cases of warrantless arrest. complainant/prosecutor) not later than 10 days from receipt of order. o The prosecution may file reply affidavits within 10 days after receipt of the counteraffidavits. iv. PROHIBITED [SEC. 19] (1) o a) b) PLEADINGS AND MOTIONS 20 (2) 5 (3) MTD; Exception: On grounds of either: LOJ over subject matter; Failure to refer to Lupon. Motion for BOP; MNT/MFR or motion for re-opening of trial; (4) Petition for relief from judgment; (5) Motion for extension to file; (6) Memoranda; (7) Petition for certiorari/mandamus/prohibition against any interlocutory order; (8) Motion to declare defendant in default; (9) Dilatory motions for postponement; (10) Reply; (11) 3rd-party complaints; (12) Interventions. v. ARRAIGNMENT [SEC. 13] • After consideration of the complaint/information and the affidavits, if the court finds no cause/ground to hold the accused for trial, it shall order the dismissal of the case; otherwise, the court shall set the case for arraignment and trial. • If the accused is in custody for the crime charged, he shall be immediately arraigned. If he enters a plea of guilty, he shall forthwith be sentenced. vi. PRELIMINARY CONFERENCE [SEC. 14] • Before conducting the trial, the court shall call the parties to a preliminary conference for: (1) Stipulation of facts; o Refusal/failure to stipulate shall not prejudice the accused. (2) Plea bargaining; o No admission by the accused shall be used against him unless reduced to writing and signed by the accused and his counsel. • iii. COURT’S DUTY [SEC. 12] • If commenced by complaint: o Based on the compliant/ affidavits/ evidence, the court may dismiss the case outright for being patently without basis/merit and order the release of the accused (if in custody). • If commenced by information or if not dismissed according to #1: o The court shall order the accused to submit his counter-affidavit and the affidavits of his witnesses as well as any evidence on his behalf (with copies served on the REMEDIAL LAW REVIEWER UP LAW (3) Other matters to clarify the issues and to ensure a speedy disposition of the case. vii. TRIAL [SEC. 15] • The submitted affidavits will be the direct testimonies of the witnesses/affiants. They shall be subject to cross, re-direct and re-cross examinations. • If the affiant fails to testify, his affidavit will not be considered as competent evidence for the party presenting his affidavit. However, the adverse party may utilize his affidavit for any purpose. • A witness cannot testify unless his affidavit was previously submitted to the court according to Sec. 12. o Exception: On rebuttal or surrebuttal. • If a party wishes to present additional affidavits/counter-affidavits, he should so manifest (and his purpose) during the preliminary conference. • If the court allows the additional affidavits/counter-affidavits, they shall be submitted to the court and served on the adverse party within 3 days from the termination of the preliminary conference. • If it is the prosecution who submits additional affidavits, the defense may file counter-affidavits thereto (copy furnished the prosecution) within 3 days from service. viii. ARREST OF THE ACCUSED [SEC. 16] • The court shall not order the arrest of the accused. o Exception: For failure to appear whenever required. • Release of the accused shall be by bail or on recognizance. ix. JUDGMENT [SEC. 17] If trial was conducted, the court shall promulgate judgment within 30 days from termination of trial. x. APPEAL [SEC. 21] Judgment may be appealed to RTC per Sec. 22, BP 129. Procedure in the CA Parties and title [Rule 124, Sec. 1] • In all criminal cases appealed to the CA: o APPELLANT – The party appealing; o APPELLEE – The party adverse to the appellant. • The title of the case shall remain as it was in the court of origin (i.e. People v. John Doe). Appointment of counsel de oficio [Rule 124, Sec. 2] The counsel de oficio cannot dismiss the appeal without the consent of his client [US v. Lafuente (1918)] or admit findings of fact by the TC [People v. Isaac (1952)]. Brief for appellant [Rule 124, Sec. 3] • Appellant shall file 7 copies of his brief with the clerk of court, accompanied by proof of service of 2 copies on the appellee. • It shall be filed within 30 days from receipt by the appellant (his counsel) of the CA clerk of court’s notice that the evidence is already attached to the record. • Purpose: To show grounds for reversal of judgment and to point out the errors/irregularities in the lower court’s proceedings. Brief for appellee [Rule 124, Sec. 4] • Appellee shall file 7 copies of his brief with the clerk of court, accompanied by proof of service of 2 copies on the appellant. • It shall be filed within 30 days from receipt of the appellant’s brief. • Purpose: To meet/refute the appellant’s submissions. Reply to appelle’s brief [Rule 124, Sec. 4] • Appellant may (i.e. optional) file a reply brief covering matters raised in the appellee’s brief but not in the brief of the appellant. • It must be filed within 20 days from receipt of the appellee’s brief. Extension of time for filing briefs 20 [Rule 124, Sec. 5] 6 • General rule: Extension of time for the filing of briefs is not allowed o Exception: for good and sufficient cause REMEDIAL LAW REVIEWER UP LAW • It is sought through a motion for extension, which must be filed before the expiration of the time sought to be extended. • • Grant of extension rests on the court’s discretion. [Piedad v. Batuyong (1974)] Court may grant as many extensions as may be asked. [Gregorio v. CA (1976) ] Form of briefs [Rule 124, Sec. 6] • Briefs shall be printed/encoded/ typewritten, in double space, on legal size good quality unglazed paper, 330mm in length by 216mm in width. • Mimeographed copies are not allowed. Contents of brief The briefs in criminal cases shall have the same contents as provided in Rule 44, Sec. 13-14. [Rule 124, Sec. 7] i. APPELLANT’S BRIEF: [RULE 44, SEC. 13] a) SUBJECT INDEX – Digest of the arguments and page references, and a table of: (1) cases alphabetically arranged; and (2) books and statutes cited, with references to the pages where they are cited. b) ASSIGNMENT OF ERRORS – Errors urged separately, distinctly and concisely; stated without repetition and numbered consecutively. c) STATEMENT OF THE CASE – Clear and concise statement of the nature of the action, a summary of the proceedings, the appealed court rulings and orders, the nature of the judgment and any other matters necessary to an understanding of the nature of the controversy, with page references to the record. d) STATEMENT OF FACTS – Clear and concise narrative statement of the facts admitted by both parties and of those in controversy, together with the substance of the related proof, in sufficient detail to make it clearly intelligible and with page references to the record. e) ISSUES – Clear and concise statement of issues of fact/law submitted to the court for its judgment. f) ARGUMENTS – Appellant’s arguments on each assignment of error, with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. g) RELIEF – Specification of the order/judgment which the appellant seeks. In cases not brought up by record on appeal, the appellant’s brief shall contain (as an appendix) a copy of the judgment or final order appealed from. h) Attachment: Certified true copy of the decision or final order appealed from. [Rule 124, Sec. 7] ii. APPELLEE’S BRIEF: [RULE 44, SEC. 14] a) Subject index. b) STATEMENT OF FACTS – Statement that appellee accepts the statement of facts in the appellant’s brief; or COUNTER-STATEMENT OF FACTS – Points out the insufficiencies/inaccuracies appellee believes to exist in the appellant’s statement of facts, with references to the supporting pages of the record. Matters in the appellant’s statement of facts should not be repeated. c) ARGUMENTS – Appellee’s arguments on each assignment of error, with page references to the record. The authorities relied upon shall be cited by the page of the report at which the case begins and the page of the report on which the citation is found. i. Dismissal of appeal for abandonment or failure to prosecute [Rule 124, Sec. 8] Grounds: • Appellant fails to file his brief within the prescribed time; Exception: Where the appellant is represented by a counsel de oficio. o If failure to file brief on time is the ground, appellant must be given notice to give him opportunity to reason out why his appeal should not be dismissed.  However, dismissal is proper despite lack of notice: a) If appellant has filed a MFR or motion to set aside the order dismissing the appeal, in which he stated the reason why he failed to file his brief on time and the appellate court denied the motion 20 7 REMEDIAL LAW REVIEWER UP LAW after considering reason. [Baradi v. People (1948)] b) If appeal was dismissed without notice but appellant took no steps to have the appeal reinstated. Such action amounts to abandonment. [Salvador v. Reyes (1949)] • If the appellant escapes from prison/confinement, jumps bail or flees to a foreign country during the pendency of the appeal. o Rationale: Escape of appellant during the pendency of the appeal implies a withdrawal of the appeal. Hence, judgment of the TC becomes final. [US v. Ravidas (1905)] Likewise, when accused flees after the • The accused need not be present in court during the hearing of the appeal. o Proceedings on appeal will not be stayed in a criminal case on account of the absence of the accused as his presence is not necessary at said hearing. [US v. Lewis] Reversal / modification of judgment on appeal [Rule 124, Sec. 10] • General rule: No judgment shall be reversed/modified. o Exception: When the CA, after an examination of the record and of the parties’ evidence, is of the opinion that error was committed and such error injuriously affected the appellant’s substantial rights. • When it involves credibility of witnesses, appellate courts will not generally disturb the TC’s findings. o case has been submitted for decision, he is deemed to have waived his right to appeal. [People v. Ang Gioc (1941)]  Exception: Appeal will not be dismissed despite escape: a) In one exceptional case, the appellant took advantage of a mass jailbreak (because, according to his counsel de oficio he was innocent and wanted to elude an unjust punishment) but was recaptured 2 hours after, the SC said circumstances were not sufficient to justify dismissal of the appeal. [People v. Valencia (1949)] b) If there was absolutely no evidence against the accused as found by the appellate court, he should be acquitted in order to prevent an injustice by technicalities. [People v. Buenaventura (1994)] c) In case of automatic review. [People v. Cornelio (1971)] • CA may dismiss the appeal upon appellee’s motion or motu proprio. Prompt disposition of appeal [Rule 124, Sec. 9] • Appeals of accused who are under detention are given precedence in their disposition over other appeals. • The CA shall hear and decide the appeal at the earliest practicable time with due regard to the parties’ rights. • Rationale: The TC is in a better position to decide the question, having seen and heard the witnesses themselves. [People v. Cabiling (1976)] Scope of CA’s judgment [Rule 124, Sec. 11] The CA may: 1) Reverse/affirm/modify the judgment; 2) Increase/reduce the penalty imposed by the TC; 3) Remand the case to the RTC for new trial or retrial; 4) Dismiss the case. o When the accused appeals from the sentence of the TC, he waives the constitutional safeguard against double jeopardy and throws the whole case open to the review of the appellate court, which is then called upon to render such judgment as law and justice dictate, WON favorable to the accused and WON made the subject of assignment of errors. [Ko Bu Lin v. CA (1982)] CA’s power to receive evidence [Rule 124, Sec. 12] • The CA has power to try cases and conduct hearings, receive evidence and perform any and REMEDIAL LAW REVIEWER UP LAW all acts necessary to resolve factual issues in cases: 1) Falling within its original jurisdiction; 2) Involving claims for damages arising from provisional remedies; 3) Where the court grants a new trial based only on the ground of newlydiscovered evidence. • CA’s trials and hearings must be continuous and completed within 3 months, unless extended by the Chief Justice. Quorum in the CA [Sec. 11, BP 129] • 3 CA Justices constitute a quorum for the sessions of a division. • The unanimous vote of the 3 Justices of a division is necessary for the pronouncement of a judgment or final resolution • Decision is reached through a consultation before the writing of the opinion by a member of the division. • If there is lack of unanimity, the Presiding Justice shall direct the CA raffle committee to designate 2 additional Justices to sit temporarily with them. They shall then form a special division of 5 members. (3) The concurrence of a majority of that special division is necessary for the pronouncement of a judgment or final resolution. (4) Designation of the additional Justices shall be made strictly by raffle and rotation among all other CA Justices. Certification or appeal of cases to the SC [Rule 124, Sec. 13] 1) If the CA finds that death penalty should be imposed: • AUTOMATIC REVIEW – CA shall render judgment but refrain from making an entry of judgment. It shall then certify the case and elevate its entire record to the SC for review. The accused does not have to do anything. Note: Death penalty has been abolished. 2) If the judgment also imposes a lesser penalty for offenses committed on the same occasion or which arose from the same occurrence that gave rise to the more severe offense for which death is imposed, and the accused appeals: • The appeal shall be automatically included in the case certified for review in the SC 3) If the CA imposes reclusion perpetua, life imprisonment or a lesser penalty: • It shall render and enter judgment imposing such penalty. • Appeal here is not automatic. The accused has to file a notice of appeal with the CA. Judgment transmitted and filed in TC o When the CA’s entry of judgment is issued, a certified true copy of the judgment shall be attached to the original record. These shall be remanded to the clerk of the court from which the appeal was taken. [Rule 124, Sec. 17] This copy of the entry serves as the formal notice to the court from which the appeal was taken of the disposition of the case in the appellate court, so that the judgment may be executed and/or placed or noted in the proper file. o 20 8 MNT during the pendency of appeal in the CA [Rule 124, Sec. 14] • Appellant may file MNT on the ground of newly discovered evidence material to his defense any time: o After the appeal from the lower court has been perfected, but o Before the CA judgment convicting him becomes final. • The motion shall conform to Rule 121, Sec. 4. • If the CA grants a MNT, it may either: [Rule 124, Sec. 15] 1) Conduct the hearing and receive evidence; 2) Refer the trial to the court of origin. MFR of CA judgment [Rule 124, Sec. 16] • MFR may be filed within 15 days from notice of the CA judgment or final order, with copies served on the adverse party. • The mittimus shall be stayed during the MFR’s pendency. • REMEDIAL LAW REVIEWER UP LAW o General rule: No party shall be allowed a 2nd MFR of a judgment or final order. [Sec. 11, BP 129] Exception: Where the 1st MFR resulted in a reversal or substantial modification of the original decision or final resolution. In this case, the party adversely affected by the reversal/modification may himself file a MFR of the latest judgment of the court, because with respect to him, said motion is a first pleading of that nature. ii. • • o When the RTC judgment upon the accused imposes death penalty. [Rule 122, Sec. 10] o When the RTC decision is appealed to CA and the latter is of the opinion that the penalty imposed should be death or life imprisonment. CA judgment is imposed but no entry of judgment is made; instead, the case is certified and the entire record is elevated to the SC for review. [Rule 124, Sec. 13] ORDINARY APPEAL When available: o When the penalty imposed by the RTC is life imprisonment, decision is appealable directly to the SC by filing a notice of appeal with the RTC. [Rule 122, Sec. 3] o When an accused was charged with 2 or more offenses committed on the same occasion or arising out of the same occurrence, and in one of those 2 cases, he was sentenced to life imprisonment or death penalty, the appeal with respect to the others, though punished with a lesser penalty, is to the SC. [Rule 122, Sec. 3] o When the penalty of reclusion perpetua or death is imposed on some of the defendants and a lesser penalty on the other co-defendants, on account of their varying degree of participation in the commission of the offense or due to the presence of modifying circumstances, in which case the decision on the non-life convicts is directly appealable to the SC. [People v. Carino] o In these cases, the SC reviews not only errors of law but also the findings of fact by the TC. iii. PETITION FOR REVIEW ON CERTIORARI • When available: o When constitutionality/validity of any treaty, executive agreement, law, ordinance or executive order or regulation is in question. o When validity of law is questioned by an accused convicted under it by the TC, the Applicable civil procedure rules [Rule 124, Sec. 18] o Provisions of Rules 42, 44-46 and 48-56 relating to procedure in the CA and the SC in original and appealed civil cases, shall be applied to criminal cases insofar as they are applicable and not inconsistent with the provision of this Rule. Procedure In The SC Uniform procedure [Rule 125, Sec. 1] • General rule: The procedure in the SC in original and in appealed cases shall be the same as in the CA. o Exception: If the Constitution or law provides otherwise. What the SC may do on review 20 9 • In a criminal case, an appeal to the SC throws open the whole case for review and it becomes its duty to correct such errors as may be found in the judgment appealed from, WON they were assigned as errors. [People v. Olfindo (1924)] • • It may examine the judgment as to the qualification of the crime and the degree of the penalty imposed. [Macali v. Revilla (1926)] It may also assess and award civil indemnity. [Quemel v. CA (1946)] Ways by which a case may reach the SC i. AUTOMATIC REVIEW • It is not a matter of right on the part of the accused, but a matter of law. • • Hence, the escape of the accused does not relieve the SC of the burden of automatically reviewing the case. [US v. Laguna (1910)] When available: REMEDIAL LAW REVIEWER UP LAW • o SC cannot review the evidence or pass upon any other question of law which may appear on the record, but will only confine itself to the question of the in/validity of that law. [Trinidad v. Sweeney (1904)] o When the jurisdiction of any inferior court is in issue. o When only an error or question of law is involved. o On decisions of the CA and the Sandiganbayan. o As a rule, review here is limited to errors of law. General rule: Certiorari is used to correct only errors of jurisdiction and not errors of judgment of an inferior court. For errors of judgment, ordinary appeal is available. Exception: Cases where certiorari is granted despite existence of the remedy of appeal: 1. Where public welfare and advancement of public policy so dictate. 2. Where the broader interests of justice so require. 3. Where the orders complained of were found to be completely null and void. 4. Where appeal was not considered as the appropriate remedy. Review of CA decisions The procedure for the review by the SC of CA decisions on criminal shall be the same as in civil cases. [Rule 125, Sec. 2] • General rule: The SC’s appellate jurisdiction in cases brought to it from the CA is limited to reviewing and revising the errors of law incurred by the latter. o The CA’s findings of fact are final. o If an appeal in the SC involves questions of facts, the SC has no jurisdiction and should dismiss appeal. [Guico v. Mayuga (1963)] Exception: [Vargas v. CA; Napolis v. CA (1972)]  When the conclusion is a finding founded entirely on speculations/surmises/conjectures;  When the inference made is manifestly mistaken/absurd/impossible;  When there is GAD;  When the judgment is based on a misapprehension of facts;  When the findings of facts are conflicting;  When the CA, in making its findings, went beyond the issues of the case and the same are contrary to the admissions of both appellant and appellee. Decisions if opinion is equally divided [Rule 125, Sec. 3] • When the SC en banc is equally divided in opinion or the necessary majority cannot be had on WON to acquit the appellant, the case shall again be deliberated upon. o If no decision is reached after redeliberation, the lower court’s judgment of conviction shall be reversed and the accused is acquitted. • If case is decided by a division of the SC whose members are equally divided, the case shall be heard and decided by the SC en banc. Constitutional provisions on SC composition [Art. 8, Sec. 4, Consti] • SC Composition: 1 Chief Justice + 14 Associate Justices. • o Failure to specify appellate court Failure of appellant to specify in his notice of appeal the court to which the appeal is being made is not fatal. [RA 296] Erroneous choice / mode of appeal • In the case of People v. Resuello (1969), the contention of the adverse party that the ordinary appeal filed by appellant shall be dismissed because the proper remedy is petition for review on certiorari (only questions of law were involved) was rejected. • The SC said that in cases similarly situated, and as long as the steps formally required for the perfection of an appeal were taken in due time, appeal may be given due course, without prejudice to requiring the appellant to file the necessary petition for review on certiorari which is also a form of appeal. • 21 0 SC may sit en banc or (in its discretion) in divisions of 3, 5 or 7 members. • No doctrine or principle of law laid down by the SC in a decision rendered en banc or in division may be modified/reversed. REMEDIAL LAW REVIEWER UP LAW 4. Effect of appeal by any of several accused [Rule 122, Sec. 11] ground of lack of it, the order of dismissal is unappealable. [People v. Duran (1960)] • • General rule: An appeal taken by one or more of several accused shall not affect those who did not appeal. o As to the appealing party, the execution of judgment appealed from is stayed upon the perfection of the appeal. o As to the co-accused who did not appeal, the judgment of the TC insofar as it relates to him becomes final and the appellate court has no power to interfere with it. [Salvatierra v. CA (1996)] Exception: Insofar as the judgment of An appeal by the People will not lie if the purpose is to correct the penalty imposed by the trial court or to include in a judgment a penalty erroneously omitted. [People v. Paet (1956)] • The preclusion against appeal by the State from judgments or final orders having the effect of acquittal, applies even though accused did not raise question of jeopardy. [People v. Ferrer (1956)] o O. SEARCH AND SEIZURE 1. Nature of search warrant 2. Distinguish from warrant of arrest 3. Application for search warrant, where filed 4. Probable Cause 5. Personal examination by judge of the applicant and witnesses 6. Particularity of place to be searched and things to be seized 7. Personal property to be seized 8. Exceptions to search warrant requirement 9. Remedies from unlawful search and seizure 1. Nature of search warrant Concept Definition the appellate court is favorable and applicable to those who did not appeal or who withdrew his appeal. [People v. Escano] • The appeal of the offended party from the civil aspect shall not affect the criminal aspect of the judgment or order appealed from. 5. Grounds for dismissal of appeal When appeal by the people will not lie • The People/State cannot appeal when it will put the accused in double jeopardy. • The constitutional mandate against double jeopardy prohibits not only a subsequent prosecution in a new and independent cause but extends also to appeal in the same case by the prosecution after jeopardy had attached. [Republic v. CA] • The prosecution cannot appeal from a judgment of acquittal o Rationale: A verdict of that nature is immediately final and to try on the merits, even in an appellate court, places the accused in double jeopardy. [Central Bank v. CA (1989)] • • • Dismissal of case upon filing of demurrer by the accused was held to be final even though based on erroneous interpretation of the law. Hence, an appeal therefrom by the prosecution would constitute double jeopardy. [US v. Kilayko (1916)] It is an order in writing; issued in the name of the People of the Philippines; signed by a judge; and directed to a peace officer, commanding him to search for personal property described in the warrant and bring it before the court. [Rule 126, Sec. 1] If it is without the judge’s signature: it is fatally defective. Nature of a Search Warrant • A search warrant is in the nature of a criminal process akin to a writ of discovery [Malaloan v. CA (1994)] Where the TC has jurisdiction but mistakenly dismisses the complaint/information on the REMEDIAL LAW REVIEWER UP LAW Constitutional Safeguard Unreasonable Search and Seizures against which the search and seizure was made, the place or thing searched, and the character of the articles procured [Rodriguez v. Villamiel (1937)] Constitutional Protection is Against Public Officers’ Acts, Not Private Persons • o o Rule 126 is an implementation of Art. 3, Sec. 2 of the Constitution. The right of the people to be secure in their persons/houses/papers/effects against unreasonable searches and seizures of whatever nature or for any purpose shall not be violated. No search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after the examination under oath/affirmation of the complaint and the witness he may produce, and particularly describing the place to be searched, and the things/persons to be seized. [Art. 3, Sec. 2, Consti] The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety/order requires otherwise, as prescribed by law. [Art. 3, Sec. 3, Consti] Rationale o What is sought to be guarded is man’s prerogative to choose who is allowed entry to his residence. His privacy must not be disturbed by the government except in cases of overriding social need, and then only under the stringent procedural safeguards. [Villanueva v. Querubin (1972)] A man’s house is his castle. • • o • • • People v. Marti (1991); also People v. Bangcarawan (2002): Search and seizure clauses are restraints upon the government and its agents, not upon private individuals. The Fourth amendment and the case law applying it do not require exclusion of evidence obtained through a search by a private person. Rather, the amendment only proscribes government actions. In the case at bar, the evidence was primarily discovered by a private person, acting in a private capacity and without the intervention and participation of state authorities. The private person made an inspection as part of a reasonable standard operating procedure/a precautionary measure before delivery of packages to the Bureau of Customs. The mere presence of the NBI agents did not convert the reasonable search into a warrantless search and seizure proscribed by the constitution. However, if the private person is acting upon orders of government officials, the principle of agency applies, because in fact such private person is acting in the interest of government, and is therefore subject to the prohibition against unreasonable searches and seizures. General rule: Search of property is o • • • However, he may not use his castle as a citadel for aggression against his neighbors, nor can he within its walls create such disorders as to affect their peace. [US v. Vallejo (1908)] This constitutional guarantee is NOT a blanket prohibition against ALL searches and seizures. It operates only against “unreasonable” searches and seizures. What constitutes a reasonable or unreasonable search or seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstances involved, including the purpose of the search, the presence or absence of probable cause, the manner in 21 unreasonable unless it has been authorized by a 1 o valid search warrant. Exceptions: Valid warrantless searches. 2. Distinguish from warrant of arrest Search Warrant Will be issued only upon probable cause in connection with one specific offense to be determined by the judge or such other responsible officers authorized by law Warrant of Arrest The witness must be examined personally by the judge REMEDIAL LAW REVIEWER UP LAW Examination under or affirmation of complaint and witnesses he produce oath the the may Examination under oath must be Search guidelines under Circular No. 19, s. 1987 • All applications for search warrants relating to violations of: o Anti-Subversion Act; o Crimes against public order as defined in the RPC; o Illegal possession of firearms and/or ammunition; and o Violations of the Dangerous Drugs Act of 1972, as amended, shall no longer be raffled and shall immediately be taken cognizance of and acted upon by the Executive Judge of the Regional Trial Court, Metropolitan Trial Court, and Municipal Trial Court under whose jurisdiction the place to be searched is located. • In the absence of the Executive Judge, the ViceExecutive Judge shall take cognizance of and personally act on the same. In the absence of the Executive Judge or Vice-Executive Judge, the application may be taken cognizance of and acted upon by any judge of the Court where the application is filed. • Applications filed after office hours, during Saturdays, Sundays and holidays, shall likewise be taken cognizance of and acted upon by any judge of the court having jurisdiction of the place to be searched, but in such cases the applicant shall certify and state the facts under oath, to the satisfaction of the judge, and its issuance is urgent. • Any judge acting on such application shall immediately and without delay personally conduct the examination of the applicant and his witnesses to prevent the possible leakage of information. He shall observe the procedures, safeguards, and guidelines for the issuance of search warrants provided for in this Court's Administrative Circular No. 13, dated October 1, 1985. Substance of application • Requisites for issuing search warrant A SW shall not issue except: a. Upon probable cause in connection with one specific offense b. To be determined personally by the judge c. after examination under oath or affirmation of the complainant Particularly describing the place to be searched and the things to be seized Examination must be reduced to writing in the form of searching questions and answers 3. Application for search warrant, where filed Application Where filed • Any court within whose territorial jurisdiction a crime was committed. • For compelling reasons stated in the application: o If the place of the commission of the crime is known, any court within the judicial region where the crime was committed. o Any court within the judicial region where the warrant shall be enforced. • However, if the criminal action has already been filed, the application shall only be made in the court where the criminal action is pending Exception: Malaloan v. CA (1994) subject to R126, Sec. 1 21 2 • • • Malaloan Ruling: if a case has not yet been filed, it may be filed in a court with a territorial jurisdiction other than that where the illegal articles sought to be seized are located. This is aside from the consideration that a criminal action may be filed in different venues under the rules for continuing crimes, or where different trial courts have concurrent original jurisdiction over the same criminal offense. Malaloan ruling may be applicable: o when the crime is found to have been committed in a particular place WITHIN the judicial region o where a particular court, by reason of its territorial area, has jurisdiction o and where prosecutor, who filed the complaint or information in said court, has territorial jurisdiction different from the court within the same judicial region which actually issued the warrant REMEDIAL LAW REVIEWER UP LAW • • • • • • • and the witness he may produce d. particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. [Rule 126, Sec. 4] Absence of requisites will cause nullification of SW If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause (PC) to believe that they exist, he shall issue the SW. [Rule 126, Sec. 6] In issuing or not issuing SWs, judges act according to the evidence presented to them, and orders of the judge on the matter are not final and do not constitute res judicata. Denial of SW on ground of insufficiency of deposition is not a bar to further proceedings. Issuance of SW is not res judicata as to the right to the SW. [Cruz v. Dinglasan (1949)] Courts have declared invalid SW that did not comply with these requisites. [Lim v. de Leon (1975)] A court’s disregard for the requirements constitutes grave abuse of discretion which may be remedied by certiorari under Rule 65. o Name of person against whom it is directed; o Offense for which it was issued; o The place to be searched and o The description of the specific things to be seized; o A directive to law enforcement officers to search and seize; o And for them to bring in court the things seized; o Signature of the judge issuing it. Validity of search warrant Period of validity – 10 days from its date. Thereafter, it shall be void. [Rule 126, Sec. 10] Service of search warrant • Right to break door or window to effect search • The officer, if refused admittance to the place of directed search after giving notice of his purpose and authority, may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant to liberate himself or any person lawfully aiding him when unlawfully detained therein. [Rule 126, Sec. 7] Search of house, room, or premise, to be made in Issuance and form of search warrant • It is an order in writing; issued in the name of the People of the Philippines; signed by a judge; and directed to a peace officer, commanding him to search for personal property described in the warrant and bring it before the court. [Rule 126, Sec. 1] • A search warrant shall not issue except upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witness he may produce, and particularly describing the place to be searched and the things to be seized which may be anywhere in the Philippines. [Rule 126, Sec. 4] • If the judge is satisfied of the existence of facts upon which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant, which must be substantially in the form prescribed by these Rules.[Rule 126, Sec. 6] • SW must be in writing and contain: presence of two witnesses No search of a house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. [Rule 126, Sec. 8] Time of making search • The warrant must direct that it be served in the day time, unless the affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction may be inserted that it be served at any time of the day or night. [Rule 126, Sec. 9] • A SW violates Rule 126, Sec. 9 if the time for making the search is left blank, thus enabling the officers to conduct the search in the evening of the appointed search. [Asian Surety v. Herrera] • Where a search is to be made during the night time, the authority for executing the same at that time should appear in the directive on the face of the SW. [Asian Surety v. Herrera] REMEDIAL LAW REVIEWER UP LAW Post-service • Receipt of property seized The officer seizing the property under the warrant must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property. [Rule 126, Sec. 11] How receipt is given If lawful occupant was present If he was not present The officer seizing the property under the SW must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made The officer seizing the property under the SW must, in the presence of at least 2 witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property RE: REQUEST OF POLICE DIRECTOR 21 GENERAL AVELINO I. RAZON FOR AUTHORITY TO DELEGATE THE ENDORSEMENT APPLICATION FOR SEARCH WARRANT A.M. No. 08-4-4-SC The request of P/Dir. Gen. Jesus A. Verzosa for leave to delegate to the Director [for Investigation and Detective Management], PNP, the authority to endorse applications for search warrants to be filed before the RTCs of Manila and Quezon City, is hereby GRANTED in accordance with Sec. 12, Chapter V of A.M. No. 038-02-SC, as it is hereinafter amended; and (2) Sec. 12, Chapter V of the Guidelines on the Selection and Appointment of Executive Judges and Defining their Powers, Prerogatives and Duties, as embodied in A.M. No. 03-8-02-SC, as approved by the Court in its Resolution of 27 January 2004, is hereby AMENDED to read as follows: SEC. 12. Issuance of search warrants in special criminal cases by the Regional Trial Courts of Manila and Quezon City. – The Executive Judges and, whenever they are on official leave of absence or are not physically present in the station, the Vice-Executive Judges of the RTCs of Manila and Quezon City shall have authority to act on applications filed by the National Bureau of Investigation (NBI), the Philippine National Police (PNP) and the Anti-Crime Task Force (ACTAF), for search warrants involving heinous crimes, illegal gambling, illegal possession of firearms and ammunitions as well as violations of the Comprehensive Dangerous Drugs Act of 2002, the Intellectual Property Code, the Anti-Money Laundering Act of 2001, the Tariff and Customs Code, as amended, and other relevant laws that may hereafter be enacted by Congress, and included herein by the Supreme Court. The applications shall be endorsed by the heads of such agencies or their respective duly authorized officials and shall particularly describe therein the places to be searched and/or the property or things to be seized as prescribed in the Rules of Court. The Executive Judges and ViceExecutive Judges concerned shall issue the 3 OF Delivery of property and inventory thereof to court • The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath [Rule 126, Sec. 12]. • Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made, and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was made. • If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complied with and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has been complied with. • The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge. • A violation of this section shall constitute contempt of court. • Goods seized remain under the court’s custody until institution of the appropriate criminal action with the proper court. [Tenorio v. CA] REMEDIAL LAW REVIEWER UP LAW warrants, if justified, which may be served outside the territorial jurisdiction of the said courts. The Executive Judges and the authorized Judges shall keep a special docket book listing names of Judges to whom the applications are assigned, the details of the applications and the results of the searches and seizures made pursuant to the warrants issued. This Section shall be an exception to Section 2 of Rule 126 of the Rules of Court. (Emphasis supplied.) This amendment shall apply to all current, as well as succeeding heads of the PNP, NBI, and ACTAF of the AFP. It shall take effect on 20 July 2009 and shall be published in a newspaper of general circulation in the Philippines not later than 5 July 2009. 4. Probable Cause Generally • Issued upon probable cause Probable cause – such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed, and that objects sought in connection with the offense are in the place sought to be searched. o This probable cause must be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. Probable cause justifying warrantless arrest and warrantless search • Probable cause justifying warrantless arrest and warrantless search Definition: Such facts and circumstances which could lead a reasonable, discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. o This implies probability of guilt and requires more than bare suspicion but less than evidence which would justify conviction. It is not determined by a fixed formula but is resolved according to the facts of each case. 5. Personal examination by judge of the applicant and witnesses Determined by judge himself In the form of searching questions and answers, in writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. [Rule 126, Sec. 5] • SEARCHING QUESTIONS AND ANSWERS: o Such questions as have the tendency to show the commission of a crime and perpetrator thereof. [Luna v. Plaza (1968)] In search cases, the application must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity and the items will be found in the place to be searched. A search warrant issued by a judge who did not ask searching questions but only leading ones and in a general manner is invalid. o o Judge must examine under oath or affirmation the complainant and the witness he may produce In21 form of searching questions and answers, in the 4 writing and under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted. [Rule 126, Sec. 5] A warrant not based on personal knowledge is void. • Examination under oath: o OATH — Includes any form of attestation by which a party signifies that he is bound in conscience to perform an act faithfully and truthfully. REMEDIAL LAW REVIEWER UP LAW o The oath required must refer to the truth of facts within the personal knowledge of the petitioner/witness, because the purpose thereof is to convince the committing magistrate of the existence of PC. [Alvarez v. CFI (1937)] Mere affidavits of the complainant/witnesses are not sufficient. The law requires depositions. [Prudente v. Judge Dayrit (1989)] 6. Particularity of place to be searched and things to be seized Warrant issued must particularly describe the place to be searched and the persons to be seized • DESCRIPTION OF PLACE Description of place to be searched is sufficient if the officer with the SW can, with reasonable efforts, ascertain and identify the place intended. [People v. Veloso (1925)] o An apparent typographical error will not necessarily invalidate the SW, as long as the application contains the correct address. [Burgos v. Chief of Staff (1984)] • TEST OF PARTICULARITY o That the executing officer’s prior knowledge as to the place intended in the SW is relevant. o This would seem especially true where the executing officer is the affiant on whose affidavit the SW had issued, and when he knows that the judge who issued the SW intended the building described in the affidavit. o And it has also been said that the executing officer may look to the affidavit in the official court file to resolve an ambiguity in the SW as to the place to be searched. [Burgos v. Chief of Staff (1984)] Particularity Search warrant must be for only one specific offense o Instances of invalid examination The complainant’s application for SW and the witness’ printed-form deposition were subscribed and sworn to before the judge, but the latter did not ask either of the two any questions, the answer to which could possibly be the basis for determining WON there was PC. It cannot be said that the judge personally conducted the personal examination required. [Bache v. Ruiz (1971)] • In reading of the transcribed notes of the deposition of the applicant and his witnesses taken by the clerk of court, the judge was not able to observe the deponent’s demeanor nor to propound initial and follow-up questions. [Bache v. Ruiz (1971)] • Where judge issuing the SW acted solely on the basis of the affidavits of the complainant and his witnesses, which were sworn to before another judge, without personally asking the witnesses questions. [Doce v. CFI (1968)] Instances of valid examination The validity of the SW and the affidavits is not impaired by the fact that they are pre-typewritten by law enforcement agents, as long as they are subscribed and sworn to before the judge. • In Luna v. Plaza (1974) (regarding warrants of arrests, but applicable by analogy), the SC said that the law is complied with where the judge adopts as his own personal examination the questions asked by the police investigator, as appearing in the written sworn statements, which the judge read again to the witnesses, whether said answers were his, and whether said answers were true, to which the witnesses replied in the affirmative, there being no prohibition to the contrary. 21 5 • • • General rule: The offense alleged must be specific as to enable the judge to find the existence of a probable cause. Definite provisions of the allegedly violated laws must be referred to. No SW shall issue for more than one specific offense. [RPC] Otherwise, warrant is void. REMEDIAL LAW REVIEWER UP LAW • The fact that the SW does not specify the specific offense does not render it a general warrant. What is important is the application for SW states the specific offense deemed to have been violated by the person against whom the search warrant is addressed. Scatter-shot warrant – one which allows search for more than one specific offense and is null and void, violative of the Constitution. A SW issued for an “illegal traffic of narcotics and contraband” is fatally defective. The latter is a generic term covering all goods exported from or imported in the country contrary to applicable statutes. Necessarily then, more than one offense could arise from the activity designated as illegal traffic of narcotics and contraband. [Castro v. Pabalan (1976)] Exception: In [People v. Marcos (1990)], the SW was declared valid despite lack of mention of specific offense because the application stated that the owner of the grocery store against whom warrant was directed, had in his possession unadulterated stocks in violation of the provisions Art. 188 and 199, RPC, which are closely allied articles as the punishable acts defined in one of them can be considered as including or is necessarily included in the other. • • • • SWs authorizing the seizure of books of accounts and records “showing all the business transactions” of certain persons, regardless of whether the transactions were legal or illegal, are general warrants prohibited by law. [Stonehill v. Diokno (1967)] • Likewise, a description of things to be seized as “subversive documents, propaganda materials, FAs, printing paraphernalia and all other subversive materials” hardly provided a definite guideline to the executing officers. [Dizon v. Hon. Castro] • And where the language used is too allembracing as to include all the paraphernalia of petitioner in the operation of its business, the SW is constitutionally objectionable [Columbia Pictures v. Flores (1993)] • Exceptions: o But where, by the nature of the goods to be seized, their description must be rather general, it is not required that a technical description be given, for this would mean that no SW could issue. [People v. Rubio (1932)] The general description of the documents listed in the SW does not render the SW void if the SW is severable, and those items not particularly described may be cut off without destroying the whole SW. [Uy v. BIR (2001)] 7. Personal property to be seized What may be seized [Rule 126, Sec. 3] • Personal property subject of the offense. • Personal property stolen/embezzled and other proceeds/fruits of the offense. • Personal property used or intended to be used as the means of committing an offense. 8. Exceptions to search warrant requirement a. Search incidental to lawful arrest Warrantless searches allowed as incident of lawful arrest o Things to be seized must be particularly described • The SW must not suffer from generality. Otherwise, the search and seizure of the items in the implementation of such SW is illegal and the items seized are inadmissible in evidence. (Section 2 Article 3 sets the constitutional requirement.) • Personal property only. SW does not issue for seizure of immovable properties. • Ownership of the property seized is immaterial. It is sufficient that the person against whom SW is directed has control/possession of the property. [Burgos v. Chief of Staff (1984)] • Purpose: To limit the things to be seized to those (and only those) particularly described in the SW, leaving the officers no discretion regarding what articles they shall seize, to the end that unreasonable searches and seizures may not be made and that abuses may not be committed. [Uy Kheytin v. Villareal (1920)] • General rule: Things to be seized must be described particularly. General search warrants are not allowed. REMEDIAL LAW REVIEWER UP LAW • Generally, Rule 126, Sec. 13, as illustrated by jurisprudence • A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant. [Rule 126, Sec. 13] • The rule assumes that the arrest is legal. If the arrest is illegal, then the search is illegal and as a result, the things seized are inadmissible as evidence. • The search is confined to his person, but as an incident of an arrest, the place or premises where the arrest was made can also be searched without a search warrant. The extent and reasonableness of the search must be decided on its own facts and circumstances. [Nolasco v. Paño (1985); note: the MR was partially granted in 1987 and held that the arrest was unlawful, thus the search was likewise unlawful.] o An officer making an arrest may take from the person arrested any money or property found upon his person which was used in the commission of the crime or was the fruit of the crime or which might furnish the prisoner with the means of committing violence or of escaping or which may be used as evidence in the trial of the case. [People v. Musa (1997)] In People v. Leangsiri (1996), the accused were lawfully arrested in Rm 504 of a hotel and a warrantless search was conducted in Rm 413. The search was held to be illegal. In Chimel v. California (1969), the US SC said that there is no justification for searching through all of the desks drawers or other closed and concealed areas in the room where arrest was made. SW was needed. When one is legally arrested for an offense, whatever is found in his possession/control may be seized and used in o evidence against him. [Alvero v. Dizon (1946)] Where the arrest was illegal, then search and seizure incidental thereto are also illegal. [People v. Aruta (1998)] Where a search is first undertaken, and an arrest was effected based on evidence produced by such search, both search and arrest are illegal. [Lui v. Matillano (2004)] o b. Consented Search Consented warrantless search • Rationale: Right of privacy may be waived. When one voluntarily submits to a search or consents to have it made of his person/premises, he is precluded from later complaining thereof.[People v. Kagui Malasugui 21 (1936)] 6 • When is consented search reasonable: Only if kept within the bounds of the actual consent. o A person’s consent may limit the extent/scope of a warrantless search in the same way that the specifications of a warrant limit the search pursuant thereto. o Officers may not use a person’s limited consent to get inside his home and conduct a general search. o The US SC said that a search for a stolen TV set cannot extend to search of an individual’s other papers and documents. • On the other hand, where there is a nexus between the crime for which the evidence is sought and the item that is seized, there is no abuse of the consent to a search. • o o c. Search of moving vehicle Search of moving vehicle • Rationale: Peace officers may lawfully conduct searches of moving vehicles without need of a warrant as it is impracticable to secure a judicial warrant before searching a vehicle since it can be quickly moved out of the locality or jurisdiction in which the warrant may be sought. o REMEDIAL LAW REVIEWER UP LAW • However, these searches would be limited to visual inspection and the vehicles or their occupants cannot be subjected to physical or body searches, except where there is probable cause to believe that the occupant is a law offender or the contents of the vehicles are instruments or proceeds of some criminal offense. • Search and seizure without warrant of vessel and aircrafts for violation of customs laws has been a traditional exception to the requirement of SW. [Roldan v. Hon. Arca (1975)] • Nonetheless, in all cases falling under this category, there must be a showing of a PC of a violation of the law. [Caroll v. US (1924)] • Where a vehicle is stopped and subjected to an extensive search, the warrantless search is valid only as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality/evidence pertaining to a crime, in the vehicle to be searched. [People v. CFI (1980)] d. Check points; body checks in airport Searches conducted in checkpoints [People v. Vinecario (2004)] • They are valid as long as they are warranted by the exigencies of public order and conducted in a way least intrusive to motorists. • The vehicle is neither searched nor its occupants subjected to a body search (i.e. inspection of the vehicle is limited to a visual search). e. Plain view situation Plain view doctrine (2008 Bar) • Rationale: Authorities do not consider a mere observation of what is in plain view, a search. Thus, objects falling in the plain view of a police officer who has a right to be in the position to have that view are not products of a search, may be seized and may be introduced in evidence. [Harris v. US (1968)] • Requisites (PIA): [People v. Valdez (1999), People v. Salanguit (2001)] o A Prior valid intrusion i.e., based on the valid warrantless arrest in which the police are o legally present in the pursuit of their official duties; Evidence was Inadvertently discovered by the police who have a right to be where they are; Evidence must be immediately apparently o illegal (i.e., drug paraphernalia); o Plain view justified mere seizure of evidence without further search. • Limitations: [People v. Musa (1993)] o It may not be used to launch unbridled searches and indiscriminate seizures. o Does not extend to a general exploratory search made solely to find evidence of defendant’s guilt. • The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. • Even if an object is in plain view, before it can be seized without a SW, its incriminating nature must first be apparent. • Where police officers are on the premises pursuant to a valid consent to a search, an item falling into their plain view may properly be seized even if the item is not connected with their purpose in entering. f. Stop and Frisk situation STOP AND FRISK — A limited protective search of outer clothing for weapon. [Malacat v. CA (1997)] • Where a police officer observes unusual conduct, which leads him reasonably to conclude in the light of his experience that criminal activity may be afoot, and that a person with whom he is dealing may be armed and presently dangerous, 21 7 • where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiry, and where nothing in the initial stage of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of outer clothing of such persons in an attempt to discover REMEDIAL LAW REVIEWER UP LAW weapons which might be used to assault him. [Terry v. Ohio (1968)] • Under this theory, PC is not required to conduct a “stop and frisk” but, nevertheless, mere suspicion/hunch will not validate a “stop and frisk”. • A genuine reason must exist, in light of the police officer’s experience and surrounding condition, to warrant the belief that the person has weapons concealed about him. g. Enforcement of Custom Laws Customs search • For the enforcement of customs duties and tariff laws, the Collector of Customs is authorized to effect searches and seizure. [General Travel Services v. David (1966)] • The Tariff Code authorizes customs officers to: o Enter, pass through or search any land, enclosure, warehouse; o Inspect/search/examine any vessel/aircraft and any trunk/package/box/envelope or any person on board, or stop and examine any vehicle/beast/person suspected of holding/conveying any dutiable/prohibited article introduced into the Philippines contrary to law. • General rule: The Tariff and Customs Code does not require a warrant for such searches. • Exception: In the search of a dwelling house, SW is required. Exigent and emergency circumstances Who may avail of remedies • SW’s illegality may be contested only by the party whose rights have been impaired thereby. It cannot be availed by 3rd parties. [Lim v. Ponce de Leon (1975)] • Hence, when a corporation’s documents were seized, the corporate officers cannot question the legality of the search as their personalities are separate and distinct from that of the corporation. [Stonehill v. Diokno (1967)] Remedies • Employ any means to prevent the search. o Without a SW, the officer cannot insist on entering a citizen’s premises. If he does so, he becomes an ordinary intruder. o The person to be searched may resist the search and employ any means necessary to prevent it, without incurring any criminal liability. [People v. Chan Fook (1921)] • File criminal action against officer. A public officer/employee who procures a SW without just cause is criminally liable under Art. 129, RPC (Search warrants maliciously obtained and abuse in the service of those legally obtained). • File a Motion to Quash the illegal SW. o This remedy is employed if search is not yet conducted. o General rule: The motion must be filed before the sala of the judge who issued it. Only the court that issued the SW may order revocation of SW or release of things seized. [Pagkalinawan v. Gomez (1967)] o Exception: Where the SW is issued by one court and the criminal action based on the results of the search is afterwards filed in another court, the motion may be filed in either court. [People v. CA (1999)] o What may be raised in the MTQ:  Existence or non-existence of probable cause at the time of issuance of the SW;  Compliance with procedural and substantial requisites. Matters of defense are to be raised in the criminal action. [DOH v. Sy Chi Siong (1989)] • File a motion to return seized things. • Example: There was a prevailing general chaos and disorder because of an ongoing coup, and the raid of the office/building was precipitated by intelligence report that said office was being used as HQ by the RAM. Also, the surveillance team before the raid was fired upon by the people inside. • The raiding team had no opportunity to apply for warrant as the court then was closed. There was urgency and exigency that warrant was lawfully dispensed with. [People v. de Gracia (1994)] 9. Remedies from unlawful search and seizure REMEDIAL LAW REVIEWER UP LAW o This is the remedy used if the search was already conducted and goods were seized as a consequence thereof. o Where the motion will be filed follows the same rules as 2(c) above. • Motion to quash a search warrant or to suppress evidence (2005, 2007 Bar) • DISPOSITION OF ILLEGALLY SEIZED PROPERTY o General rule: Goods seized by virtue of an illegal warrant must be returned [Castro v. Pabalan (1976)] Exception: If possession of the things seized is prohibited by law, they shouldn’t be returned. However, where the accused obtained goods from another through payment of bouncing checks and thereafter sold said goods to a buyer in good faith, but said goods were taken from the purchaser with the use of a SW although the criminal case for estafa against the accused was still pending, the goods should be returned to the buyer. The buyer is entitled to possession of goods until restitution is ordered by the court in the criminal case. [Yu v. Honrado (1980)] of immunity against unreasonable o o Rule 126, Sec. 14 If criminal action has been filed If no criminal action has been instituted If no criminal action is filed and motion is first filed with the court that issued the SW, but it failed to resolve the motion and a criminal case is subsequently filed in another court Where to file Court where the action has been instituted Court that issued SW Court where the subsequent criminal action has been instituted 21 8 Waiver • Grounds for a Motion to Quash [Bache & Co. v. Ruiz (1971)] o No personal examination by the judge o More than one specific offense o No particular description • Who may file o Person injured o Person searched o Owner of the property • An accused may file a Motion to Suppress Evidence if he is not among the persons who can file a Motion to Quash. Effect of failure to quash warrant • Where no MTQ the search warrant was filed in or resolved by the issuing court, the interested party may move in the court where the criminal case is pending for the suppression of the personal property seized IF the same is offered therein as evidence (REGALADO). • The MTQ a search warrant and Motion to Suppress Evidence are alternative, not cumulative remedies. Effects of illegal search • Illegally seized evidence may not be admitted in evidence in any proceeding. [Art. 3, Sec. 2, 1987 Consti] searches and seizure [Pasion v. Locsin (1938)] • The constitutional immunity against unreasonable searches and seizure is a personal right that may be waived expressly/impliedly. • Waiver cannot be made just by anyone, except the person whose right is being invaded or one who is expressly authorized to do so in his behalf. • Requisites of a valid waiver: o It must appear that the right exists; o That the person involved had knowledge, (actual or constructive) of the existence of such right; o That the person had an actual intention to relinquish the right. • Criminal Liability o Violation of the following:     o Violation of domicile (RPC Art. 128) SW maliciously obtained (Art. 129) Searching domicile without witnesses (Art. 130) Unjust interlocutory order (Art. 206) Grounds:  Against public officer or REMEDIAL LAW REVIEWER UP LAW employer: Entering without authority; against the will; refuses to leave SW procured without just cause or if with just cause, exceeds is authority or use of unnecessary severity Without required witnesses  Against judge For knowingly rendering an unjust interlocutory order Inexcusable negligence or ignorance • Civil Liabilities o Violation of the following:  Violation of rights and liberties (Art. 32, CC)  Malicious prosecution and acts referred to Art. 32. (Art. 2218, CC) o Malice or bad faith is not required o Not only official actions, but makes all persons who are responsible for the violation liable for damages [MHP Garments v. CA (1994)] writs that do not go into the merits of the case [Ramcar Inc vs. de Leon]. • Not available when: 1. Criminal action carries with it no civil liability 2. Offended party has reserved the civil claim 3. Offended party has waived the civil claim 4. Offended party has already instituted a separate civil action 2. Kinds of provisional remedies Attachment 1) When proper [Rule 127, Sec. 2] • When the civil action is properly instituted in the criminal action, the offended party may have the property of the accused attached as security for the satisfaction of any judgment that may be recovered from the accused in the following cases: 1. When the accused is about to abscond from the Philippines 2. When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or converted to the use of the accused who is a public/corporate officer, attorney, factor, broker, agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for a willful violation of duty 3. When the accused has concealed, removed or disposed of his property, or is about to do so 4. When the accused resides outside the Philippines Issuance and implementation of the writ [Gonzalez v. State Properties (2001)] When Issuance of writ May be done before acquisition of jurisdiction over the accused; may be ex-parte Only after acquisition of jurisdiction P. PROVISIONAL REMEDIES 1. Nature 2. Kinds of provisional remedies 1. Nature • Provisional remedies in civil actions, insofar as they are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action [Rule 127, Sec. 1] • Where the civil action has actually been instituted, or proceeded independently if the criminal action, these provisional remedies cannot be availed of in the criminal action but may be applied for in the separate civil action (Regalado). • If the civil action is suspended on account of filing of the criminal action: The court with which the civil case is filed is not thereby deprived of its authority to issue auxiliary 2) Enforcement of writ 21 9 APPENDIX 1: AVAILABILITY OF BAIL AVAILABLE as a AVAILABLE as a MATTER NOT AVAILABLE REMEDIAL LAW REVIEWER UP LAW MATTER OF RIGHT Before or after conviction by the MetTC, MTC, or MCTC (114.4) OF DISCRETION After conviction by the RTC imposing a penalty of imprisonment which does not exceed 6 years (114.5) If the accused is charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment, and the evidence of guilt is strong (114.7) After conviction by the RTC where a penalty of imprisonment exceeding 6 years but not more than 20 years is imposed and any of the ff. circumstances in sec. 5 is present: 1) Recidivism, quasi-recidivism, habitual delinquency, commission of crime aggravated by circumstance of reiteration; 2) Previously escaped from legal confinement, evasion of sentence or violation of conditions of bail without valid justification; 3) Commission of offense while under probation, parole or conditional pardon; 4) Probability of flight; 5) Undue risk that he may commit another crime during the pendency of appeal. (114.5) 6) Any other circumstances as may be present and proved Before conviction by the RTC wheter in the exercise of its original or appellate jurisdiction (114.4) After conviction by the RTC where a penalty of imprisonment exceeding 6 years but not more than 20 years is imposed and not one of the circumstances in sec. 5 is present, or any other similar circumstances (114.5) 22 0 If, prior to the judgment becoming final or before the accused serves his sentence, the accused applies for probation as allowed by law, he may be admitted to bail or released on recognizance (114.24) After judgment has become final or the accused has commenced to serve his sentence (114.24) REMEDIAL LAW REVIEWER UP LAW APPENDIX 2: MODES OF REVIEW Ordinary appeal Available after any judgment or final order Petition for Review Available only when the petition shows prima facie that the lower court has committed an error of fact or law that will warrant the reversal/modification of the decision or final order sought to be reviewed. Petition for Review on Certiorari • General Rule: Available only when issues of law are involved; findings of fact being deemed conceded by the appellant. • Exception: SC reviews questions both of fact and of law in cases decided by the RTC: [RA 296] o Where the penalty imposed is life imprisonment; o Which involve other offenses committed on the same occasion or arising out of the same occurrence that gave rise to the more serious offense for which the penalty of death or life imprisonment is imposed. Not a matter of right • Appeal by PFRC from the decision or final order of the RTC/CA may be taken by filing the petition within 15 days from notice of judgment or of the denial of MFR filed in due time. • Copy must be served on the court whose judgment or final order is sought to be reviewed. • If no record of appeal has been filed in the CA, the SC clerk of court, upon admission of the petition, shall demand from the CA the elevation of the whole record of the case. [Rule 45, Sec. 2] • Provision above governs procedure of appeal from RTC or Sandiganbayan to the SC. 22 1 Matter of right • By filing a notice of appeal with the court that rendered the judgment and serving a copy on the adverse party. • NOTICE OF APPEAL – Written notice of intention to take appeal. A mere verbal notice of an intention to appeal expressed by the accused, does not perfect an appeal. [People v. Natividad (1936)] • When no notice of appeal is given in writing or no record that any was given, the cause will be stricken from the court calendar since there was no appeal. [US v. Tenorio (1917)] • But when the accused manifests or gives notice of his intention to appeal in open court and files a bond for his provisional release within 15 days Not a matter of right REMEDIAL LAW REVIEWER UP LAW from the promulgation of the decision against him, he may be considered as having perfected his appeal. [People v. Agasang (1956)] -End of Criminal Procedure-