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CADC MIDTERMS CRIMPRO 1 6. suspension of criminal action by reason of prejudicial question RULE 111 Section 6. Suspension by reason of prejudicial question. — A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests. (6a) Section 7. Elements of prejudicial question. — The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed. (5a) DOJ-NPS MANUAL PART III SEC. 23. Concept of prejudicial question.- A prejudicial question is one the resolution of which is a logical antecedent of the issue involved in a case and the cognizance of which pertains to another tribunal. 1 It is based on a fact distinct and separate from the crime charged but so intimately connected with it that it determines the guilt or action, it must not only appear that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. 2 SEC. 24. Elements of prejudicial question. - The essential elements of a prejudicial question are: a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; b) the resolution of such issue determines whether or not the criminal action may proceed ; 3 and c) the cognizance of the said issue pertains to another tribunal.innocence of the accused. To suspend the criminal MARELLA BOBIS VS BOBIS FACTS: • October 21, 1985, first marriage with one Maria Dulce B. Javier. Not annulled, nullified or terminated • January 25, 1996, second marriage with petitioner Imelda Marbella-Bobis • Third marriage with a certain Julia Sally Hernandez • February 25, 1998, Imelda Bobis filed bigamy • Sometime thereafter, respondent initiated a civil action for the judicial declaration of absolute nullity of his first marriage on the ground that it was celebrated without a marriage license • Petitioner argues that respondent should have first obtained a judicial declaration of nullity of his first marriage before entering into the second marriage *After petitioner sued for bigamy, it’s just when the respondent filed a declaration of absolute nullity. ISSUE: Whether or not the subsequent filing of a civil action for declaration of nullity of a previous marriage constitutes a prejudicial question to a criminal case for bigamy HELD: • A prejudicial question is one which arises in a case the resolution of which is a logical antecedent of the issue involved therein.3It 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. Its two essential elements are:7 (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed In Article 40 of the Family Code, respondent, without first having obtained the judicial declaration of nullity of the first marriage, can not be said to have validly entered into the second marriage. In the current jurisprudence, a marriage though void still needs a judicial declaration of such fact before any party can marry again; otherwise the second marriage will also be void. The reason is that, without a judicial declaration of its nullity, the first

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CADC$MIDTERMS$CRIMPRO$ 1!!6.! suspension! of! criminal! action! by! reason! of!prejudicial!question!!RULE!111!Section 6. Suspension by reason of prejudicial question. — A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests. (6a) Section 7. Elements of prejudicial question. — The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed. (5a) DOJ-NPS MANUAL

PART III SEC. 23. Concept of prejudicial question.- A prejudicial question is one the resolution of which is a logical antecedent of the issue involved in a case and the cognizance of which pertains to another tribunal.1 It is based on a fact distinct and separate from the crime charged but so intimately connected with it that it determines the guilt or action, it must not only appear that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined.2

SEC. 24. Elements of prejudicial question. - The essential elements of a prejudicial question are:

!a) the civil action involves an issue similar

or intimately related to the issue raised in the criminal action;

b) the resolution of such issue determines whether or not the criminal action may proceed ;3 and

c)! the! cognizance! of! the! said! issue! pertains! to!another! tribunal.innocence! of! the! accused.! To!suspend!the!criminal!

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

MARELLA!BOBIS!VS!BOBIS!!FACTS: • October 21, 1985, first marriage with one Maria Dulce B. Javier. Not annulled, nullified or terminated • January 25, 1996, second marriage with petitioner Imelda Marbella-Bobis • Third marriage with a certain Julia Sally Hernandez • February 25, 1998, Imelda Bobis filed bigamy • Sometime thereafter, respondent initiated a civil action for the judicial declaration of absolute nullity of his first marriage on the ground that it was celebrated without a marriage license • Petitioner argues that respondent should have first obtained a judicial declaration of nullity of his first marriage before entering into the second marriage *After petitioner sued for bigamy, it’s just when the respondent filed a declaration of absolute nullity. ISSUE: Whether or not the subsequent filing of a civil action for declaration of nullity of a previous marriage constitutes a prejudicial question to a criminal case for bigamy HELD: • A prejudicial question is one which arises in a case the resolution of which is a logical antecedent of the issue involved therein.3It 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. Its two essential elements are:7 (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed In Article 40 of the Family Code, respondent, without first having obtained the judicial declaration of nullity of the first marriage, can not be said to have validly entered into the second marriage. In the current jurisprudence, a marriage though void still needs a judicial declaration of such fact before any party can marry again; otherwise the second marriage will also be void. The reason is that, without a judicial declaration of its nullity, the first

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marriage is presumed to be subsisting. In the case at bar, respondent was for all legal intents and purposes regarded as a married man at the time he contracted his second marriage with petitioner. Any decision in the civil action for nullity would not erase the fact that respondent entered into a second marriage during the subsistence of a first marriage. Thus, a decision in the civil case is not essential to the determination of the criminal charge. It is, therefore, not a prejudicial question !!!ARK!TRAVEL!EXPRESS!VS!ABROGAR!!RATIO&DECIDENDI&Prejudicial+ question+ –+ When! the! civil! case! is! so!intimately! connected! with! the! subject! crime! that! it! is!determinative! of! the! guilt! or! innocence! of! the!respondents!in!the!criminal!cases.!!QUICK&FACTS&RTC! and!MTC! grants!Motion! to!Withdraw! Information!without!personally!determining! the!probable!cause! for!the!crime!charged.!!!FACTS&Petitioner:!Ark!Travel!Express,!Inc.!Respondents:!The!Presiding!Judge!of!the!Regional!Trial!Court!of!Makati,!Branch!150,!Hon.!Zeus!Abrogar,!Violeta!Baguio!and!Lorelei!Ira!!

• Ark$ Travel$ Express,$ Inc.$ (Ark$ Travel$ for$ brevity)$filed$with$the$City$Prosecutor$of$Makati$a$criminal$complaint$ for$ False$ Testimony$ in$ a$ Civil$ Case$against$ private$ respondents$ Violeta$ Baguio$ and$Lorelei$Ira.$

• Violeta$ Baguio$ and$ Lorelei$ Ira$ was$ accused$ as$having$given$ false$ testimony$upon$a$material$ fact$in$a$civil$complaint$for$Collection$of$sum$of$money,$torts$ and$ damages$ filed$ by$ Ark$ Travel$ Express$against$New$Filipino$Maritime$Agencies$(NFMA)$in$the$following$manner:$

o During$ trial$ of$ the$ said$ civil$ case$ in$which$one$of$the$principal$issues$was$whether$or$not$payment$of$the$claim$of$Ark$travel$has$been$ made$ by$ NFMA,$ the$ accused$maliciously$testified$that$the$claims$of$Ark$

Travel$ supported$ by$ statements$ of$accounts$ is$ baseless$ and/or$ been$ paid,$which$ accused$ very$well$ knew$ and$ ought$to$ know,$ by$ reason$ of$ accused’s$ position$as$cashier,$was$false.$

• In$a$resolution$dated$November$20,$1996,$the$City$Prosecutor$ found$probable$cause$to$ indict$private$respondents$ for$ violation$ of$ said$ law$ and$accordingly$ filed$ the$ respective$ Informations$against$each$of$them$before$the$Metropolitan$Trial$Court$(MTC).$

• In$ a$ resolution$ dated$March$ 9,$ 1998,$ Chief$ State$Prosecutor$ Jovencito$ Zuo$ reversed$ the$ City$Prosecutors’$ resolution.$ The$ prosecution$ office$ of$Makati$ then$ filed$ with$ the$ MTC$ a$ Motion$ to$Withdraw$Information.$

• However,$ on$ May$ 15,$ 1998,$ Ark$ Travel$ filed$ an$Urgent$ Petition$ for$ Automatic$ Review$ with$ the$DOJ.$ DOJ$ then$ directed$ the$ City$ Prosecutor$ to$proceed$with$the$prosecution$of$the$criminal$cases$in$ a$ resolution$ dated$ May$ 27,$ 1998.$ For$ this$reason,$ the$ MTC$ issued$ an$ Order$ denying$ the$Motion$ to$ Withdraw$ Information$ filed$ by$ the$prosecution.$

• Meanwhile,$ Baguio$ and$ Ira$ filed$ a$ Motion$ for$Reconsideration$ of$ the$ May$ 27,$ 1998$ resolution.$DOJ$ Undersecretary$ Jesus$ Zozobrado$ granted$ the$Motion$ for$ Reconsideration$ dated$ June$ 26,$ 1998,$ordering$ the$ withdrawal$ of$ the$ informations$ for$false$testimony.$

• MTC$ however,$ denied$ the$ Motion$ to$ Withdraw$Information$ in$ an$ order$ dated$ July$ 21,$ 1998.$ It$anchors$ its$ decision$ in$ the$Crespo$ vs.$Mogul$ case$where$ the$ Supreme$ Court$ held$ that$ once$ an$information$ is$ filed$ in$ court,$ such$ filing$ sets$ in$motion$ the$ criminal$ action$ against$ the$ accused$before$ the$ court,$ and$ any$ motion$ to$ dismiss$ or$withdraw$ information$ is$ always$ addressed$ to$ the$discretion$of$the$court.$The$denial$or$grant$of$any$motion$ is$ done$ by$ the$ court$ not$ out$ of$subservience$ to$ the$ secretary$ of$ justice$ but$ in$faithful$exercise$of$its$judicial$prerogative.$

• Private$ respondents$ questioned$ the$ MTC$ Orders$dated$ June$ 10,$ 1998$ and$ July$ 21,$ 1998$ with$ the$respondent$RTC$of$Makati.$

• RTC$ of$ Makati$ held$ that$ MTC$ acted$ with$ grave$

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CADC$MIDTERMS$CRIMPRO$ 3!!

abuse$of$discretion$when$ it$denied$ the$Motion$ to$Withdraw$based$solely$on$its$bare$and$ambiguous$reliance$ on$ the$ Crespo$ doctrine,$ since$ an$independent$ evaluation$ and$ assessment$ of$ the$existence$of$a$probable$cause$ is$necessary$before$such$ orders$ denying$ the$ said$ motions$ could$ be$issued.$

!ISSUE&WON! the! RTC! committed! a! grave! abuse! of! discretion!when! it! nullified! the! Orders! of! MTC! and! enjoined! the!said!court!from!hearing!the!criminal!cases!!HELD&(Supreme!Court!discussed!several!points,!but!I!will!only!include! the! issue! relevant! to! the! topic! which! is!Prejudicial!Question!)!! !! To!constitute! the!crime!of!False!Testimony! in!a!Civil!Case!under!Article!182!of!the!Revised!Penal!Code,!the!following!requisites!must!concur:!

1. The$testimony$must$be$given$in$a$civil$case;$2. The$testimony$must$relate$to$the$issues$presented$

in$the$case;$3. The$testimony$is$false;$4. The$ testimony$ must$ be$ given$ by$ the$ defendant$

knowing$the$same$to$be$false;$and$5. Such$ testimony$must$be$malicious$and$given$with$

and$ intent$ to$ affect$ the$ issues$ presented$ in$ the$case.$

!There! is! no! doubt! that! the! first! two! requisites!

are! extant! in! this! case.! The! records! show! that! Ark!Travel!filed!a!complaint!for!collection!of!sum!of!money,!torts! and! damages! against! NFMA! and! Angelina! T.!Rivera.! In! said! civil! case,! private! respondents! were!presented! by! NFMA! as!witnesses.! They! executed! their!respective! sworn! statements! and! testified! before! the!trial! court! that! NFMA! has! no! outstanding! obligation!with!Ark!Travel!as!the!same!had!been!paid!in!full.!

!The!existence!of!the!last!three!requisites!is!quite!

dubious.!The!falsity!of!the!subject!testimonies!of!private!respondents! is!yet! to!be!established.! It! is!noted! that!at!the!time!of!the!filing!of!the!criminal!complaints,!the!civil!

case! filed! by! Ark! Travel! is! still! pending! decision.! Ark!Travel! has! yet! to! prove! the! validity! of! its! monetary!claims!and!damages!against!NFMA.! It! is!only!after! trial!that! the! RTC! can! assess! the! veracity! or! falsity! of! the!testimony!and!correspondingly!render!a!decision.!Thus,!the!civil!case!is!so!intimately!connected!with!the!subject!crime! that! it! is!determinative!of! the!guilt! or! innocence!of!the!respondents!in!the!criminal!cases.!In!other!words,!whether! or!not! the! testimonies! of! private! respondents!in!the!civil!cases!are!false!is!a!prejudicial!question.!It! is!clear! that! the! elements! of! a! prejudicial! question! are!present! as! provided! in! Section! 7,! Rule! 111! of! the!Revised!Rules!of!Criminal!Procedure,!to!wit:!

!SEC.! 7!Elements+ of+ Prejudicial+ question.! The!

elements! of! a! prejudicial! question! are:! (a)! the!previously! instituted! civil! action! involves! an! issue!similar! or! intimately! related! to! the! issue! raised! in! the!subsequent! criminal! action;! and! (b)! the! resolution! of!such! issue! determines! whether! or! not! the! criminal!action!may!proceed.!

!Section! 6,! Rule! 111! of! the! Revised! Rules! of!

Criminal!Procedures!provides:!!

SEC.! 6.!Suspension+ by+ reason+ of+ prejudicial+question.!A!petition!for!suspension!of!the!criminal!action!based!upon!the!pendency!of!a!prejudicial!question! in!a!civil!action!may!be!filed!in!the!office!of!the!prosecutor!or!the! court! conducting! the! preliminary!investigation.!When& the& criminal& action& has& been&filed&in&court& for&trial,& the&petition&to&suspend&shall&be& filed& in& the& same& criminal& action& at& any& time&before&the&prosecution&rests.!(Emphasis+supplied)!!! Hence,! pending! determination! of! the! falsity! of!the! subject! testimonies! of! private! respondents! in! the!civil! case,! the! criminal! action! for! false! testimony!must!perforce! be! suspended.! As! such,! under! the! attendant!circumstances,! although! there! is!no!motion! to! suspend!proceedings! on! the! part! of! the! private! respondents,!orderly! administration! of! justice! dictates! that! the!criminal!cases!should!be!suspended.!!!!

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PEOPLE!V!CONSING!!FACTS!!Sometime in February 1997, respondent Rafael Jose Consing, Jr. and his mother, Cecilia de la Cruz,[4] represented to Plus Builders, Inc. (PBI) that they are the true and lawful owners of a 42,443 square meter lot situated in Imus, Cavite and covered by Transfer Certificate of Title No. 687599 in the name of Cecilia de la Cruz. They further represented that they acquired said lot, which was previously covered by TCT No. 191408 from Juanito Tan Teng and Po Willie Yu. Relying on the representations of respondent and his mother, PBI purchased the questioned lot. In April 1999, PBI discovered that respondent and his mother did not have a valid title over the subject lot. PBI came to know that Juanito Tan Teng and Po Willie Yu never sold said lot to respondent and his mother and that TCT No. 191408 upon which TCT No. 687599 was based is not on file with the Register of Deeds. In August 1999, PBI was ousted from the possession of the disputed lot by Juanito Tan Teng and Po Willie Yu. Despite written and verbal demands, respondent and his mother refused to return the amount of P13,369,641.79 alleged to have been initially paid by PBI. On July 22, 1999, respondent filed with the Regional Trial Court of Pasig City, Branch 68, an action for Injunctive Relief docketed as Civil Case No. SCA 1759, against PBI, Unicapital Inc, Unicapital Realty Inc., Jaime Martires, Mariano D. Martinez, Cecilia de la Cruz and 20 other John Does.[5] Respondent sought a declaration that he was merely an agent of his mother, Cecilia de la Cruz, and therefore was not under any obligation to PBI and to the other defendants on the various transactions involving TCT No. 687599. On October 13, 1999, PBI filed against respondent and his mother a complaint for Damages and Attachment, docketed as Civil Case No. 99-95381, with Branch 12 of the Regional Trial Court of Manila.[6] Respondent filed a motion to dismiss on the ground of forum shopping and pendency of Civil Case No. SCA 1759.[7] On January 21, 2000, a criminal case for estafa through falsification of public document was filed against respondent Rafael Jose Consing, Jr. and his mother with the RTC of Imus, Cavite.[8] On April 7, 2000, respondent filed a motion to defer arraignment on the ground of prejudicial question, i.e., the pendency of Civil Case Nos. SCA 1759 and 99-95381.[9] On January 27, 2000, the trial court denied respondents motion. A motion for reconsideration thereof was likewise denied on February 27, 2001.[10] Respondent filed a petition for certiorari with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction with the Court of Appeals seeking to

enjoin the arraignment and trial of the estafa through falsification case.[11] The Court of Appeals granted respondents prayer for the issuance of a temporary restraining order in a resolution dated March 19, 2001.[12] On May 31, 2001, a decision was rendered setting aside the January 27, 2000 order of the trial court and permanently enjoining it from proceeding with the arraignment and trial of the criminal case until the civil cases for Injunctive Relief and for Damages and Attachment shall have been finally decided. Hence, the People of the Philippines, represented by the Solicitor General, filed the instant petition seeking the reversal of the May 31, 2001 decision of the Court of Appeals. ISSUE: whether or not the pendency of Civil Case Nos. SCA 1759 and 99-95381, for Injunctive Relief and for Damages and Attachment, is a prejudicial question HELD NO. A prejudicial question is defined as 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. 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. For a civil action to be considered prejudicial to a criminal case as to cause the suspension of the criminal proceedings until the final resolution of the civil action, the following requisites must be present: (1) the civil case involves facts intimately related to those upon which the criminal prosecution would be based; (2) in the resolution of the issue or issues raised in the civil action, the guilt or innocence of the accused would necessarily be determined; and (3) jurisdiction to try said question must be lodged in another tribunal.[13] If both civil and criminal cases have similar issues or the issue in one is intimately related to the issues raised in the other, then a prejudicial question would likely exist, provided the other element or characteristic is satisfied. It must appear not only that the civil case involves the same facts upon which the criminal prosecution would be based, but also that the resolution of the issues raised in the civil action would be necessarily determinative of the guilt or innocence of the accused. If the resolution of the issue in the civil action will not determine the criminal responsibility of the accused in the criminal action based on the same facts, or there is no necessity that the civil case be determined first before taking up the criminal case, therefore, the civil case does not involve a prejudicial question.

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CADC$MIDTERMS$CRIMPRO$ 5!! In the case at bar, we find no prejudicial question that would justify the suspension of the proceedings in the criminal case. The issue in Civil Case No. SCA 1759 for Injunctive Relief is whether or not respondent merely acted as an agent of his mother, Cecilia de la Cruz; while in Civil Case No. 99-95381, for Damages and Attachment, the question is whether respondent and his mother are liable to pay damages and to return the amount paid by PBI for the purchase of the disputed lot. Even if respondent is declared merely an agent of his mother in the transaction involving the sale of the questioned lot, he cannot be adjudged free from criminal liability. An agent or any person may be held liable for conspiring to falsify public documents.Hence, the determination of the issue involved in Civil Case No. SCA 1759 for Injunctive Relief is irrelevant to the guilt or innocence of the respondent in the criminal case for estafa through falsification of public!!

7. REMEDIES$AVAILABLE$

A.!amendment/substation!of!information!!RULE!110!Section 14. Amendment or substitution. — A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused. However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party. (n) If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial. (14a) !

SEC. 4. Effect of amendment of information. - In

case an information is amended, a new preliminary investigation shall be conducted if the amended charge is not related to the crime originally charged; if there is a change in the nature of the crime charged; or if the information on its face is null and void for lack of authority to file the same.

!!TEEHANKEE!V!MADAYAG!!Facts: On July 19, 1991 an information for the crime of frustrated murder was filed against Claudio Teehankee Jr. allegedly committed to Maureen Navarro Hultman. After the prosecution had rested its case, the petitioner moved for leave to file a demurrer to evidence, but before the motion was filed, the victim died. So, the private prosecutor filed an omnibus motion for leave of court to file the amended information. The amended information filed on October 31, 1991 charges Teehankee of murder. The trial court admitted the amended information. During the arraignment, the petitioner refused to be arraigned on the amended information contending the lack of a preliminary investigation thereon. The judge, then, ordered the plea of "not guilty" be entered for petitioner. The prosecution was ordered to present its evidence. The petitioner's counsel manifested that he did not want to take part in the proceedings because of the legal issue raised. So, the trial court appointed a counsel de officio to represent the petitioner. The petitioner now seeks, among other things, for the SC to nullify the respondent judge's admittance of the amended information, and to compel the judge to order preliminary investigation of the crime charged in the amended information. Issue: Whether or not an amended information involving a substantial amendment, without preliminary investigation, after the prosecution has rested on the original information, may legally and validly be admitted. Held: Yes. Section 14, Rule 110 of the 1985 Rules on Criminal Procedure provides: Sec. 14. Amendment. — The information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same

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can be done without prejudice to the rights of the accused. If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11, provided the accused would not be placed thereby in double jeopardy and may also require the witnesses to give bail for their appearance at the trial. A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. 11 Thus, the following have been held to be merely formal amendments, viz: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; 12 (2) an amendment which does not charge another offense different or distinct from that charged in the original one; 13 (3) additional allegations which do not alter the prosecution's theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; and (4) an amendment which does not adversely affect any substantial right of the accused, such as his right to invoke prescription. Going now to the case at bar, it is evident that frustrated murder is but a stage in the execution of the crime of murder, hence the former is necessarily included in the latter. It is indispensable that the essential element of intent to kill, as well as qualifying circumstances such as treachery or evident premeditation, be alleged in both an information for frustrated murder and for murder, thereby meaning and proving that the same material allegations are essential to the sufficiency of the informations filed for both. This is because, except for the death of the victim, the essential elements of consummated murder likewise constitute the essential ingredients to convict herein petitioner for the offense of frustrated murder. In the present case, therefore, there is an identity of offenses charged in both the original and the amended information. What is involved here is not a variance in the nature of different offenses charged, but only a change in the stage of execution of the same offense from frustrated to consummated murder. This is being the case, we hold that an amendment of the original information will suffice and, consequent thereto, the filing of the amended information for murder is proper.!!!Draculan!vs!donato!!On June 25, 1973, the Chief of Police of San Isidro, Isabela filed with the Municipal Court of the said

place, a complaint for Less Serious Physical Injuries against Florencio Miguel. The case was docketed in the said court as Criminal Case No. 63. Tried after pleading not guilty upon arraignment, accused Miguel was convicted as charged and thereafter accordingly sentenced in a decision promulgated on November 14, 1973. From the aforesaid decision, Miguel appealed to the then Court of First Instance of Isabela, where his appeal was docketed as Criminal Case No. V-351 and assigned to Branch V of the said court presided by the Honorable respondent Judge. 'The record of the said case was then transmitted and referred by the Clerk of Court to the Office of the Provincial Fiscal of Isabela Upon a review of the evidence made by the provincial fiscal's office, petitioners found that accused-appellant Miguel should have been charged with "Direct Assault Upon a Person in Authority" it appearing that Benjamin Antonio, the offended party, is a person in authority then engaged in the performance of his official duties when assaulted. In view thereof, petitioners' office, then conducted a new preliminary investigation and upon a prima facie showing that direct assault was actually the, crime committed by accused- appellant Miguel, petitioners filed with the respondent court t a Motion to Dismiss the appealed Less Serious Physical Injury case. Simultaneously, a new information for Direct Assault was filed against Miguel which was docketed as Criminal Case No. V-419 Upon receipt of the records of this assault case, respondent Judge, in an order dated December 17, 1975, directed that it be returned to the Fiscal's Office on the ground that it was prematurely filed considering that at that time, the prosecution's motion to dismiss the appeal was still pending resolution. Undaunted by such a disposition, petitioners then filed a new information which they caused to be docketed also as Criminal Case No. V-351 similar to that of the appealed less serious physical injury case, and thereafter again moved for the dismissal of the appealed case. Petitioners' motion was denied and so with their motion for reconsideration of the order of denial. Hence, the instant petition wherein it is prayed that the aforementioned orders of respondent Judge dated April 13, 1976 and May 28, 1976 be declared null and void; that respondent Judge be ordered to dismiss the appealed less serious physical injury case; and that a writ of preliminary injunction enjoining respondent from proceeding with the trial of the appealed less serious physical injury case be issued which should be made permanent after hearing on the merits.

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CADC$MIDTERMS$CRIMPRO$ 7!!The petition is devoid of merit. Consequently, its dismissal is in order. Criminal Case No. V-351 is an appeal, not an original case. It is before the Court of First Instance (now Regional Trial Court) of Isabela pursuant to the appeal interposed by accused Florencio Miguel from the decision of the Municipal Court of San Isidro convicting him of Less Serious Physical Injuries. The Court of First Instance then took cognizance of such case in the exercise of its appellate jurisdiction. And since the appeal was subsequent to the passage of Republic Act No. 6031, 3 which took effect on August 4, 1969, the appeal must now be disposed of on the basis of the evidence presented and admitted in the municipal court. No trial de novo is necessary but the parties may merely submit and/or be required to file their respective briefs or memoranda. 4 But since the proceeding before the San Isidro Municipal Court was not duly recorded because of the absence of a qualified stenographer, the court of First Instance of Isabela must now conduct a trial de novo of the case on appeal. The question therefore posed before us is—may the prosecution amend the information and/or file a new information charging an offense different from that with which accused-appellant was tried and convicted in the court below? Petitioners' answer to this query is in the affirmative, relying on Section 13 of Rule 110 of the Rules of Court, 5 which provides: Section 13. Amendment. The information or complaint may be amended, in substance or form, without leave of court, at any time before the defendant pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the defendant. If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court may dismiss the original complaint or information and order the filing of a new one charging the proper offense, provided the defendant would not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their appearance at the trial. The above section contains two parts: one authorizes the amendment of an information or complaint, in substance or form, without leave of court, at any time before the defendant pleads, and thereafter, only as to matters of form. The other provides that, if it appears at any time before judgment that a mistake has been made in charging

the proper offense, the court may dismiss the original complaint or information and order the filing of a new one charging the proper offense, provided the defendant would not be placed in double jeopardy. The amendment 6 or the filing of a new case where there had been a mistake in charging the proper offense after the dismissal of an existing one, 7 spoken of and therein provided for apply, only to an original case where no judgment has as yet been rendered. Much less does the said section apply to an appealed case such as the instant proceeding. 8 The reason is obvious and that is because the right to amend or to file a new complaint or information charging the proper offense after the dismissal of the original complaint or information, is subject to the rule on double jeopardy, which petitioners in the instant case miserably missed, In the case at bar, the original charges was that of less serious physical injuries. Whether the new charge for direct assault with less serious physical injuries is by way of amendment or through a new information is immaterial since in both instances accused's former conviction would be a bar to a subsequent prosecution for the second offense. This was the dictum laid down in the case of People vs. Bonotan 9 and which doctrine was reiterated in the recent case of Tacas vs. Cariaso 10 Thus: The charge of direct assault upon a person in authority with physical injuries contained in the fiscal's information is not included in the charge contained in the complaint of the chief of police, which is merely that of less serious physical injuries unqualified by any allegation that those injuries were inflicted upon the offended municipal councilor, admittedly a person in authority, while he was in the performance of his official duties or on the occasion thereof, a qualification essential to the offense charged in the information. The converse is no less obvious, that is, that the charge, of direct assault upon a person in authority with physical injuries as set out in the information necessarily includes the offense of less serious physical injuries charged on the complaint, specially because in both the information and the complaint, the physical injuries inflicted are alleged to have required medical assistance of a period of 14 days and incapacitated the offended party from labor for the same period of time. As proof that the offense charged in the information includes the offense charged in the complaint, conviction of the defendants of this latter offense may, without question, be had under the information if the other ingredients of the crime

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charged in said information are not proved. Hence, the defense of double jeopardy was wen taken. The order of dismissal was thus affirmed precisely or. the very same constitutional ground relied upon in this petition. 11 We find the said pronouncement "on all fours" to the instant case. Petitioners' submittal not being in accord therewith may not be sustained. But the more serious repercussion of which the petitioners appeared unmindful of, is the fact that with the withdrawal of the appeal, the old judgment of conviction is revived and the accused loses his right to a review of the evidence on appeal by way of questioning the validity of his conviction. What is sought to be dismissed is not the main case, 12 but merely the appeal which was docketed as Criminal Case No. V-351 WHEREFORE, finding the instant petition to be without merit, the same is DISMISSED. The appropriate Regional Trial Court of Isabela to which Criminal Case No. V-351 was reassigned is, therefore, hereby directed to proceed immediately with the trial of the said case until its final termination. No pronouncement as to costs.!ALMEDA!VS!VILLALUZ!!

Facts: Leonardo Almeda (alias Nardong Paa) was charged, together with five others, with the crime of qualified theft of a motor vehicle (criminal case 285-Pasay) in the Circuit Criminal Court of Pasig, Rizal, presided by Judge Onofre Villaluz. The amount of the bond recommended for the provisional release of Almeda was P15,000, and this was approved by the judge with a direction that it be posted entirely in cash. At the hearing of 18 February 1970, Almeda asked the trial court to allow him to post a surety bond in lieu of the cash bond required of him. This request was denied, and so was an oral motion for reconsideration, on the ground that the amended information imputed habitual delinquency and recidivism on the part of Almeda. At the same hearing, the city fiscal of Pasay City (Fiscal Gregorio Pineda), thru his assistant, reiterated his oral motion made at a previous hearing for amendment of the information so as to include allegations of recidivism and habitual delinquency in the particular case of Almeda. The latter vigorously objected, arguing that (a) such an amendment was premature since no copies of prior conviction could yet be presented in court, (b) the motion to amend should have been made in writing in order to enable him to object formally, and (c) the proposed amendment would place him in double jeopardy considering that he had already pleaded not guilty to the information. The trial court nevertheless granted the fiscal's motion in open court. An oral motion for reconsideration was denied. Immediately thereafter,

the assistant fiscal took hold of the original information and, then and there, entered his amendment by annotating the same on the back of the document. Almeda forthwith moved for the dismissal of the charge on the ground of double jeopardy, but this motion and a motion for reconsideration were denied in open court. Almeda filed the present special civil action for certiorari with preliminary injunction with the Supreme Court.

Issue: Whether the insistence of a cash bond, over any other surety, renders the recomended bail excessive.

Held: Bail is "the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance." The purpose of requiring bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. The accused, as of right, is entitled to bail prior to conviction except when he is charged with a capital offense and the evidence of guilt is strong. This right is guaranteed by the Constitution, and may not be denied even where the accused has previously escaped detention, or by reason of his prior absconding. In order to safeguard the right of an accused to bail, the Constitution further provides that "excessive bail shall not be required." This is logical because the imposition of an unreasonable bail may negate the very right itself. "Where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisory powers to provide the required remedy." Herein, the amount fixed for bail, while reasonable if considered in terms of surety or property bonds, may be excessive if demanded in the form of cash. A surety or property bond does not require an actual financial outlay on the part of the bondsman or the property owner, and in the case of the bondsman the bond may be obtained by the accused upon the payment of a relatively small premium. Only the reputation or credit standing of the bondsman or the expectancy of the price at which the property can be sold, is placed in the hands of the court to guarantee the production of the body of the accused at the various proceedings leading to his conviction or acquittal. Upon the other hand, the posting of a cash bond would entail a transfer of assets into the possession of the court, and its procurement could work untold hardship on the part of the accused as to have the effect of altogether denying him his constitutional right to bail. Aside from the foregoing, the condition that the accused may have provisional liberty only upon his posting of a cash bond is abhorrent to the nature of bail and transgresses our law on the matter. The sole purpose of bail is to insure the attendance of the accused when required by the court, and there should be no suggestion of penalty on the part of the accused nor revenue on the part of the government. The

Carina Amor Claveria
Carina Amor Claveria
Carina Amor Claveria
Carina Amor Claveria
Carina Amor Claveria
Carina Amor Claveria
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CADC$MIDTERMS$CRIMPRO$ 9!!allowance of a cash bond in lieu of sureties is authorized in this jurisdiction only because our rules expressly provide for it. Were this not the case, the posting of bail by depositing cash with the court cannot be countenanced because, strictly speaking, the very nature of bail presupposes the attendance of sureties to whom the body of the prisoner can be delivered. And even where cash bail is allowed, the option to deposit cash in lieu of a surety bond primarily belongs to the accused. Thus, the trial court may not reject otherwise acceptable sureties and insist that the accused obtain his provisional liberty only thru a cash bond. The court is not without devices with which to meet the situation, considering that Almeda's past record that is the range of his career in crime weighs heavily against letting him off easily on a middling amount of bail. First, it could increase the amount of the bail bond to an appropriate level. Second, as part of the power of the court over the person of the accused and for the purpose of discouraging likely commission of other crimes by a notorious defendant while on provisional liberty, the latter could be required, as one of the conditions of his bail bond, to report in person periodically to the court and make an accounting of his movements. And third, the accused might be warned, though this warning is not essential to the requirements of due process, that under the 1973 Constitution "Trial may proceed notwithstanding his absence provided that he has been duly notified and his failure to appear is unjustified." With respect to the amount of the bail bond, the trial court is well advised to consider, inter alia, the following factors, where applicable: (1) the ability of the accused to give bail: (2) the nature of the offense; (3) the penalty for the offense charged; (4) the character and reputation of the accused; (5) the health of the accused; (6) the character and strength of the evidence; (7) the probability of the accused's appearance or non-appearance at the trial; (8) forfeiture of previous bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) whether the accused is under bond for appearance at trial in other cases. It is not amiss, at this point, to remind all courts to exercise extreme care and caution in the screening of bondsmen and sureties in regard to their reputation, solvency and promptitude. Aside from the other precautions hitherto considered useful, courts should see to it that all surety bonds are accompanied by corresponding clearances from the Office of the Insurance Commissioner. Bondsmen who cannot make good their undertakings render inutile all efforts at making the bail system work in this jurisdiction. !!!

PEOPLE!VS!CA!!In our resolution of February 25, 1976, the petition for review filed by petitioners was treated as a Special Civil Action. It seeks (1) to annul and set aside the decision and resolution, dated December 18, 1974 and July 11, 1975, respectively, of the Court of Appeals: and, (2) to sustain in toto the orders, dated January 25, 1974 and June 15, 1974, of the trial Judge which allowed the retention of the allegation of conspiracy in reference to Criminal Cases Nos. 4747 and 4748 in the informations filed in Criminal Cases Nos. 9673 and 9674; or, in the alternative, to direct the trial judge to allow the amendment of the informations in Criminal Cases Nos. 4747 and 4748 so as to include Luiz Padilla and Magsikap Ongchenco as co-accused of Sixto Ruiz and to dismiss the informations in Criminal Cases Nos. 9673 and 9674. As a result of a shooting incident at Sta. Lucia Street, Mandaluyong, Rizal, on June 5, 1971, two informations for frustrated homicide were filed against Sixto Ruiz in the Court of First Instance of Rizal on February 21, 1972. In Criminal Case No. 4747, Ernesto Bello was named as the victim, while in Criminal Case No. 4748, Rogelio Bello was the complainant. Upon arraignment, Sixto Ruiz pleaded "not guilty" to the two informations in said Criminal Cases Nos. 4747 and 4748. However, a reinvestigation of these two cases was made in the then Department of Justice, following which State Prosecutor Lilia C. Lopez filed a motion for leave of court to amend the informations on the ground that the evidence disclosed a prima facie case against Luis Padilla and Magsikap Ongchenco who acted in conspiracy with Sixto Ruiz. Sixto Ruiz filed his opposition to the motion, while Luis Padilla and Magsikap Ongchenco submitted their comment. The trial Judge denied the motion to amend the information saying that allowance of the amendment alleging conspiracy would be amending the manner of committing the crime and thereby would constitute a substantial amendment. As a consequence, State Prosecutor Lilia C. Lopez filed two new informations for frustrated homicide against Luis Padilla and Magsikap Ongchenco (Criminal Cases Nos. 9673 and 9674) alleging that the two conspired with Sixto Ruiz who was referred to as the accused in Criminal Cases Nos. 4747 and 4748. Padilla and Ongchenco moved to quash the two new informations. The motion was denied by the lower court in its order of January 25, 1974, saying: [T]he informations in the above-entitled cases state the names of the accused Luis Padilla and Magsikap Ongchenco; the offense of frustrated homicide is clearly

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designated in each information; the acts or omissions constituting the offense charged are stated in ordinary and concise language without repetition sufficient to enable a person of common understanding to know what offense is charged and for the Court to pronounce proper judgment; the names and surnames of the persons, Ernesto Bello and Rogelio Bello, against whom the offenses were committed are stated in the informations; and that both offenses were committed on or about the 5th day of June, 1971, in the Municipality of Mandaluyong, Province of Rizal, Philippines. ACCORDINGLY, the motion to quash is hereby denied for lack of merit. Likewise, Sixto Ruiz filed in said Criminal Cases Nos. 9673 and 9674 a motion to permit to quash and/or strike out the allegation of conspiracy in the two informations. The trial Judge, on June 15, 1974, ordered the striking out from the records the aforesaid motion and clarified that "the allegation of conspiracy in those cases does not alter the theory of the case, nor does it introduce innovation nor does it present alternative imputation nor is it inconsistent with the original allegations. " From these orders of the lower court, Sixto Ruiz, Luis Padilla and Magsikap Ongchenco went to the Court of Appeals on a petition for certiorari with preliminary injunction (CA G.R. No. 03146-SP) alleging that the trial Judge exceeded his jurisdiction or abused his judicial discretion in issuing the orders, dated January 25, 1974 and June 15, 1974, in Criminal Cases Nos. 9673 and 9674. The Court of Appeals rendered its decision, the dispositive portion of which reads as follows: WHEREFORE, we hold that the -respondent Judge exceeded his jurisdiction and/or abused his discretion in denying the motion of petitioner Sixto Ruiz for permission to file a motion to strike out the allegation of conspiracy in the informations filed in Criminal Cases Nos. 9673 and 9674 (CA Rollo, p. 89), in striking out from the records the motion of petitioner Sixto Ruiz to strike out the allegation of conspiracy inserted in the informations filed in Criminal Cases Nos. 9673 and 9674 (Ibid., p. 93), and in denying the motion for reconsideration filed by the petitioners, Luis Padilla and Magsikap Ongchenco (Ibid., p. 81). Accordingly, the petition for certiorari is hereby granted and the questioned orders of the respondent court dated January 25, 1974 and June 15, 1974 (Annexes K and Q, CA Rollo, pp. 76, 107) are partially annulled and set aside insofar as the petitioner Sixto Ruiz is concerned. The allegation of conspiracy implicating Sixto Ruiz and the reference to Criminal Cases Nos. 4748 and 4747 in the informations filed in Criminal Cases Nos. 9673 and 9674, respectively, are hereby ordered deleted and stricken out of the said informations and records of the said cases. The motion for reconsideration filed by herein petitioners to the foregoing decision, dated December 18, 1974 of the

Court of Appeals was denied "for lack of merit" in its resolution, dated July 11, 1975. There is merit in this special civil action. The trial Judge should have allowed the amendment in Criminal Cases Nos. 4747 and 4748 considering that the amendments sought were only formal. As aptly stated by the Solicitor General in his memorandum, "there was no change in the prosecution's theory that respondent Ruiz wilfully, unlawfully and feloniously attacked, assaulted and shot with a gun Ernesto and Rogelio Bello ... . The amendments would not have been prejudicial to him because his participation as principal in the crime charged with respondent Ruiz in the original informations, could not be prejudiced by the proposed amendments." In a case (Regala vs. CFI, 77 Phil. 684), the defendant was charged with murder. After plea, the fiscal presented an amended information wherein two other persons were included as co-accused. There was further allegation that the accused and his co-defendants had conspired and confederated together and mutually aided one another to commit the offense charged. The amended information was admitted, following which the fiscal sought the discharge of the two other co-defendants in order to utilize them as prosecution witnesses. The court granted the discharge. His appeal having been denied as well as his motion for reconsideration of the denial of the appeal, defendant filed a petition for a writ of certiorari. It was alleged that the admission of the amendment was an abuse of discretion. This Court held: La inclusion de dos acusados y la adicion de las palabras: 'by conspiring, confederating and helping one another' en la querella enmendada es una enmienda de forma. En la primera querella se acusa al recurrente de autor y en la enmendada de coautor pero su responsabilidad es la misma en ambas. El cambio solo se refiere a la forma de ejecucion del delito; pero no a la sustancia del delito mismo. La forma de ejecucion es mas bien materia de pruebas y no de algaciones, y los detalles alegados en la querella enmendada pudieron haberse probado bajo la querella original. Otherwise stated, the amendments of Criminal Cases Nos. 4747 and 4748 would not have prejudiced Ruiz whose participation as principal in the crimes charged did not change. When the incident was investigated by the fiscal's office, the respondents were Ruiz, Padilla and Ongchenco. The fiscal did not include Padilla and Ongchenco in the two informations because of "insufficiency of evidence." It was only later when Francisco Pagcalinawan testified at the reinvestigation that the participation of Padilla and Ongchenco surfaced and, as a consequence, there was the need for the amendment of the informations or the filing of new ones against the two. The fact that the trial court denied the motion of the prosecution to amend the informations in Criminal Cases Nos. 4747 and 4748 was no bar to the filing of the new

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CADC$MIDTERMS$CRIMPRO$ 11!!informations. The allegation in Criminal Cases Nos. 9673 and 9674 filed against Luis Padilla and Magsikap Ongchenco that the two conspired and confederated with Sixto Ruiz merely describe the fact that the latter was already charged with the same offense. It is only a reference to the two cases already filed against Ruiz wherein he alone stands as the defendant. It does not make Ruiz a co-defendant of Padilla and Ongchenco in the two new informations. It is incorrect to say that the allegation of conspiracy in Criminal Cases Nos. 9673 and 9674 include Ruiz as a defendant in the said cases. In fact, and as aptly observed by the petitioners, the lower court did not order the arrest of Sixto Ruiz in Criminal Cases Nos. 9673 and 9674. Padilla and Ongchenco were the only ones against whom warrants were issued; nor was he arraigned in said cases. Padilla and Ongchenco were the only ones arraigned and they pleaded not guilty. Thus, inasmuch as Ruiz is not a defendant in Criminal Cases Nos. 9673 and 9674, he can not file a motion to quash the same. He has no personality or standing in said cases and, therefore, it was improper for him to have filed the motion to quash. ACCORDINGLY, the decision and resolution, dated December 18, 1974 and July 11, 1975, respectively, of the Court of Appeals are hereby SET ASIDE. Furthermore, the orders of the lower court, dated January 25, 1974 and June 15, 1974, allowing the retention of the allegation of conspiracy and the reference to Criminal Cases Nos. 4747 and 4748 in the informations filed in Criminal Cases Nos. 9673 and 9674, are SUSTAINED. SO ORDERED.!!B.!MOTION!TO!QUASH!!RULE!117!Section 1. Time to move to quash. — At any time before entering his plea, the accused may move to quash the complaint or information. (1) Section 2. Form and contents. — The motion to quash shall be in writing, signed by the accused or his counsel and shall distinctly specify its factual and legal grounds. The court shall consider no ground other than those stated in the motion, except lack of jurisdiction over the offense charged. (2a) Section 3. Grounds. — The accused may move to quash the complaint or information on any of the following grounds: (a) That the facts charged do not constitute an offense; (b) That the court trying the case has no jurisdiction over the offense charged; (c) That the court trying the case has no jurisdiction

over the person of the accused; (d) That the officer who filed the information had no authority to do so; (e) That it does not conform substantially to the prescribed form; (f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law; (g) That the criminal action or liability has been extinguished; (h) That it contains averments which, if true, would constitute a legal excuse or justification; and (i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was dismissed or otherwise terminated without his express consent. (3a) Section 4. Amendment of the complaint or information. — If the motion to quash is based on an alleged defect of the complaint or information which can be cured by amendment, the court shall order that an amendment be made. (4a) If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make the amendment, or the complaint or information still suffers from the same defect despite the amendment. (n) Section 5. Effect of sustaining the motion to quash. — If the motion to quash is sustained, the court may order that another complaint or information be filed except as provided in section 6 of this rule. If the order is made, the accused, if in custody, shall not be discharged unless admitted to bail. If no order is made or if having been made, 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, the accused, if in custody, shall be discharged unless he is also in custody for another charge. (5a) Section 6. Order sustaining the motion to quash not a bar to another prosecution; exception. — An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in section 3 (g) and (i) of this Rule. (6a) Section 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a

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conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. However, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following instances: (a) the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; (b) the facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; or (c) the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party except as provided in section 1 (f) of Rule 116. In any of the foregoing cases, where the accused satisfies or serves in whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense. (7a) Section 8. Provisional dismissal. — A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party. The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived. (n) Section 9. Failure to move to quash or to allege any ground therefor. — The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections based on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this Rule. (8) !RULE!119!Section 19. When mistake has been made in charging the proper offense. — When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the

offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. (11a) !CRUZ!V!CA!!Petitioner Teodoro D. Cruz, Jr. raises procedural issues in this petition to review the decision of the respondent Court of Appeals in C.A.-G.R. SP No. 11771 dated April 29, 1988, and its resolution of June 6, 1988, denying his motion for reconsideration. The petitioner was charged before the Regional Trial Court of Makati, along with several others, in four separate informations for estafa thru falsification of public documents. It was alleged that the petitioner, together with Melania Guerrero, who produced a special power of attorney claimed establish have been executed by the late Clemente Guerrero, had conspired with their co-accused in selling some properties of the decedent to the widow's sister, Luz Andico, through fictitious deeds of sale notarized by the petitioner sometime in November and December of 1980. Upon arraignment on June 1, 1984, the petitioner and his co-accused entered a plea of not guilty. Subsequently, the petitioner filed a motion to dismiss on the ground that the four informations "(did) not charge an offense." At the hearing on this motion, the petitioner submitted testimonial and documentary evidence which was not refuted by the prosecution. For its part, the prosecution submitted no evidence at an but later moved to deny the motion. The motion to dismiss-to was eventually denied by the trial court, 1 as so was the subsequent motion for reconsideration. 2 The petitioner questioned the denial of the motions before this Court, which referred the case to the Court of Appeals. On April 29, 1988, the respondent courts 3 dismissed the petition, holding inter alia as follows: Petitioner unabashedly admits that the motion to dismiss in the instant criminal cases was filed after the arraignment so that the cases could not be refiled again considering the principle of double jeopardy. But this precisely begs the issue. The respondent Court, then presided over by Judge Madayag, cited as ground of the denial of the motion to dismiss –– to avoid technicalities that may arise later. This is interrelated to the first ground in the denial –– interest of substantial justice that the prosecution could adduce evidence during the trial. Thus, to hold otherwise is to sanction a shrewd maneuver by petitioner wherein he files a motion to

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CADC$MIDTERMS$CRIMPRO$ 13!!quasi/dismiss after arraignment, presents his evidence supporting his ground therefor, and without the State being able to present its evidence in chief. Under the circumstances, what is needed is a full-blown hearing. x x x x x x x x x Moreover, assuming that the procedure pursued by the petitioner in outright presenting his evidence in support of his motion to dismiss, although the prosecution has not as yet presented its evidence in chief is sanctioned by the Rules, still the respondent Court, under the circumstances, did not abuse its discretion in denying the motion to dismiss and subsequently, the motion for reconsideration. Respondent Court must have been not convinced of the evidence presented, hence, its judicial prerogative to deny the dismissal of the charges. What is essential and important is for the petitioner to show by his own evidence that the documents, subject of the charges, were prepared and notarized by him clearly prior to the death of Clemente Guerrero on June 24, 1980 and not simply prior to the months of November and December, 1980 when the offense was committed, as alleged in the Information because each Information may be amended as regards the date of the commission of the offense without impairing the rights of the petitioner (People v. Gerardo Rivera, et al., 33 SCRA 746). The amendment will only be a matter of form and will not "affect the nature and essence of the crime as only charged." The petitioner is now before us on certiorari and faults the above-quoted decision on the following grounds: (1) The court proceedings on petitioner's motion to dismiss are clearly sanctioned by law and jurisprudence. (2) The prosecution is in estoppel to question said proceedings. (3) The informations do not charge an offense. (4) There exists a variance between the allegations in the information and the evidence presented in the motion to dismiss. (5) The documents were notarized on their stated dates. (6) Substantial justice demands the dismissal of the informations filed against herein petitioner. The petition must fail. It is axiomatic that a complaint or information must state every single fact necessary to constitute the offense charged; otherwise, a motion to dismiss/quash on the ground that it charges no offense may be properly sustained. The fundamental test in considering a motion to quash on this ground is whether the facts alleged, if hypothetically admitted, will establish the essential elements of the offense as defined in the law. 4 Contrary to the petitioner's contention, a reading of the informations will disclose that the essential elements of the offense charged are sufficiently alleged. It is not

proper therefore to resolve the charges at the very outset, in a preliminary hearing only and without the benefit of a full-blown trial. The issues require a fuller examination. Given the circumstances of this case, we feel it would be unfair to shut off the prosecution at this stage of the proceedings and to dismiss the informations of the basis only of the petitioner's evidence, such as it is. It is clear that the trial judge did not commit grave abuse of discretion when he denied the motion to dismiss on the grounds that "(a) interest of substantial justice that the prosecution could adduce evidence during the trial; and (b) to avoid technicalities that may arise later." 5 On the contrary, his action was authorized under U.S. v. Barredo, 6 where this Court said: Upon a motion of the provincial fiscal to dismiss a complaint upon which an accused person has been remanded for trial by a justice of the peace, it rests in the sound discretion of the judge whether to accede to such motion or not. Ordinarily, of course, he will dismiss the action in accordance with the suggestion of an experienced fiscal who has personally investigated the facts. But if has personally investigated the facts. But if he is not satisfied with the reason assigned by the fiscal, or if it appears to him from the record of the proceedings in the court of the justice of the peace, or as a result of information furnished by the private prosecutor, or otherwise, that the case should not be dismissed, he may deny the motion. Indeed, as pointed out by the Solicitor General, this denial was proper because the petitioner failed to controvert in his motion to dismiss the following substantial circumstances alleged in the affidavit complaint: (1) That the vendee, Luz Andico (sister of the accused Melania Guerrero), has no visible means to purchase said properties; (2) That the capital gains taxes for the alleged sales were paid only in December 1980, when it should have been paid within 30 days from the date of the sale (National Internal Revenue Code); (3) That the Deeds of Sale were presented for registration to the registries concerned only in November and December, 1980; (4) That the antedating of the documents was made possible by the fact that notary public Teodoro B. Cruz, Jr. (herein petitioner) as late as March, 1981 had not submitted his notarial report together with the copies of the documents he notarized for 1980. The petitioner's contention that the questioned transactions were already in existence before the months of November and December 1980, when they were supposedly falsified, is a matter of defense best

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examined during the trial rather than in the preliminary hearing on his motion to dismiss. The prosecution should be given ample opportunity to prove the allegations in the informations at the appropriate time, and that is the trial itself. The proper time to offer it, following the normal procedure prescribed in Rule 119, Section 3 of the Rules of Court, is after the prosecution shall have presented its pay evidence during the trial. This is in accord ,with People v.Cadabis, 7 where this Court held: Save where the Rules expressly permit the investigation of facts alleged in a motion to quash, the general principle is that in the hearing of such motion only such facts as are alleged in the information, and those admitted by the fiscal, should be taken into account in the resolution thereof. Matters of defense can not be produced during the hearing of such motions, except where the rules expressly permit, such as extinction of criminal liability, prescription and former jeopardy. (Emphasis supplied). But we do not agree with the ruling of the respondent court that the motion to quash should have been filed before the petitioner and his co-accused were arraigned, conformably to Section 1 of Rule 117 of the Rules of Court, which provides: Sec. 1. Time to move to quash. –– At any time before entering his plea, the accused may move to quash the complaint or information. It is true that a person who does not move to quash a complaint or information until after he has pleaded is deemed to have waived all objections then available which are grounds of a motion to quash. 8 However, this is subject to exception. By express provision of Sec. 8 of the same rule, failure to assert certain grounds in a motion to quash filed prior to the plea does not operate as a waiver of the right to invoke them later. Even after arraignment, a motion to dismiss the information may be filed if it is based on the ground that: (a) the information charges no penalty or the offense has been extinguished; and (d) that double jeopardy has attached. The petitioner contends that the prosecution is now estopped from questioning the motion to dismiss, having participated without objection in the hearing thereof and not having controverted the evidence adduced by the movant at that time. This is untenable. Estoppel does not he against the government because of the supposedly mistaken acts or omissions of its agents. As we declared in People v. Castañeda, 9 "there is the long familiar rule that erroneous application and enforcement of the law by public officers do not block subsequent correct application of the statute and that the government is never estopped by mistake or error on the part of its agents." It remains to observe that an order denying a motion to quash is interlocutory and therefore not appealable, nor can it be the subject of a petition for certiorari. Such

order may only be reviewed in the ordinary course of law by an appeal from the judgment after trial. The petitioner should have proceeded with the trial of the case in the court below, without prejudice to his right, if final judgment is rendered against him, to raise the same question before the proper appellate court. The procedure was well defined in Acharon v. Purisima, 10 thus: . . . Moreover, when the motion to quash filed by Acharon to nullify the criminal cases filed against him was denied by the Municipal Court of General Santos his remedy was not to file a petition for certiorari but to go to trial without prejudice on his part to reiterate the special defenses he had invoked in his motion and, if, after trial on the merits, an adverse decision is rendered, to appeal therefrom in the manner authorized by law. This is the procedure that he should have followed as authorized by law and precedents. Instead, he took the usual step of filing a writ of certiorari before the Court of First Instance which in our opinion is unwarranted it being contrary to the usual course of law. Where it is clear that the information does not really charge an offense, the case against the accused must be dropped immediately instead of subjecting him to the anxiety and inconvenience of a useless trial. The accused is entitled to such consideration.1âwphi1 And indeed, even the prosecution will benefit from such a dismissal because it can then file a corrected information provided the accused had not yet pleaded and jeopardy has not yet attached. There is no point in proceeding under a defective information that can never be the basis of a valid conviction.1âwphi1 But such is not the situation in the case at bar. As already observed, the challenged informations are not insufficient on their face and neither did the evidence presented at the preliminary hearing justify their dismissal even before the trial had commenced. If "substantial justice" is to be accorded by this Court, as the petitioner insists, then the step it must take is to sustain the denial of the motion to dismiss and allow the criminal cases to follow their normal course. That is what we rule now. WHEREFORE, the petition is DENIED. Criminal Cases Nos. 7332, 7333, 7334 and 7335 are remanded to the Regional Trial Court of Makati, Branch 145, for further proceedings. Costs against the petitioner. SO ORDERED.!!C.!Bill!of!Particulars!!RULE! 116! Section 9. Bill of particulars. — The accused may, before arraignment, move for a bill of particulars to enable him properly to plead and to prepare for trial. The motion shall specify the alleged defects of the complaint or information and the details desired. (10a)

Carina Amor Claveria
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CADC$MIDTERMS$CRIMPRO$ 15!! D. PROVISIONAL REMEDIES RULE 127 Section 1. Availability of provisional remedies. — The 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. (1a) Section 2. Attachment. — When the civil action is properly instituted in the criminal action as provided in Rule 111, 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: (a) When the accused is about to abscond from the Philippines; (b) 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 officer, officer of a corporation, 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; (c) When the accused has concealed, removed, or disposed of his property, or is about to do so; and a) When the accused resides outside the Philippines. (2a) RULE 57 Preliminary Attachment Section 1. Grounds upon which attachment may issue. — At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may have the property of the adverse party attached as security for the satisfaction of any judgment that may be recovered in the following cases: (a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart from the Philippines with intent to defraud his creditors; (b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public officer, or an officer of a corporation, or an 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; (c) In an action to recover the possession of

property unjustly or fraudulently taken, detained or converted, when the property, or any part thereof, has been concealed, removed, or disposed of to prevent its being found or taken by the applicant or an authorized person; (d) In an action against a party who has been guilty of a fraud in contracting the debt or incurring the obligation upon which the action is brought, or in the performance thereof; (e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to defraud his creditors; or (f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may be served by publication. (1a) Section 2. Issuance and contents of order. — An order of attachment may be issued either ex parte or upon motion with notice and hearing by the court in which the action is pending, or by the Court of Appeals or the Supreme Court, and must require the sheriff of the court to attach so much of the property in the Philippines of the party against whom it is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unless such party makes deposit or gives a bond as hereinafter provided in an amount equal to that fixed in the order, which may be the amount sufficient to satisfy the applicant's demand or the value of the property to be attached as stated by the applicant, exclusive of costs. Several writs may be issued at the same time to the sheriffs of the courts of different judicial regions. (2a) Section 3. Affidavit and bond required. — An order of attachment shall be granted only when it appears by the affidavit of the applicant, or of some other person who personally knows the facts, that a sufficient cause of action exists, that the case is one of those mentioned in section 1 hereof, that there is no other sufficient security for the claim sought to be enforced by the action, and that the amount due to the applicant, or the value of the property the possession of which he is entitled to recover, is as much as the sum for which the order is granted above all legal counterclaims. The affidavit, and the bond required by the next succeeding section, must be duly filed with the court before the order issues. (3a) Section 4. Condition of applicant's bond. — The party applying for the order must thereafter give a bond executed to the adverse party in the amount fixed by the court in its order granting the issuance of the writ, conditioned that the latter will pay all the costs which may be adjudged to the adverse party

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and all damages which he may sustain by reason of the attachment, if the court shall finally adjudge that the applicant was not entitled thereto. (4a) Section 5. Manner of attaching property. — The sheriff enforcing the writ shall without delay and with all reasonable diligence attach, to await judgment and execution in the action, only so much of the property in the Philippines of the party against whom the writ is issued, not exempt from execution, as may be sufficient to satisfy the applicant's demand, unless the former makes a deposit with the court from which the writ is issued, or gives a counter-bond executed to the applicant, in an amount equal to the bond fixed by the court in the order of attachment or to the value of the property to be attached, exclusive of costs. No levy on attachment pursuant to the writ issued under section 2 hereof shall be enforced unless it is preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint, the application for attachment the applicant's affidavit and bond, and the order and writ of attachment, on the defendant within the Philippines. The requirement of prior or contemporaneous service of summons shall not apply where the summons could not be served personally or by substituted service despite diligent efforts, or the defendant is a resident of the Philippines temporarily absent therefrom, or the defendant is a non-resident of the Philippines, or the action is one in rem or quasi in rem. (5a) Section 6. Sheriff's return. — After enforcing the writ, the sheriff must likewise without delay make a return thereon to the court from which the writ issued, with a full statement of his proceedings under the writ and a complete inventory of the property attached, together with any counter-bond given by the party against whom attachment is issued, and serve copies thereof on the applicant. (6a) Section 7. Attachment of real and personal property; recording thereof. — Real and personal property shall be attached by the sheriff executing the writ in the following manner: (a) Real property, or growing crops thereon, or any interest therein, standing upon the record of the registry of deeds of the province in the name of the party against whom attachment is issued, or not appearing at all upon such records, or belonging to the party against whom attachment is issued and held by any other person, or standing on the records of the registry of deeds in the name of any other person, by filing with the registry of deeds a copy of the order, together with a description of the property attached, and a notice that it is attached,

or that such real property and any interest therein held by or standing in the name of such other person are attached, and by leaving a copy of such order, description, and notice with the occupant of the property, if any, or with such other person or his agent if found within the province. Where the property has been brought under the operation of either the Land Registration Act or the Property Registration Decree, the notice shall contain a reference to the number of the certificate of title, the volume and page in the registration book where the certificate is registered, and the registered owner or owners thereof. The registrar of deeds must index attachments filed under this section in the names of the applicant, the adverse party, or the person by whom the property is held or in whose name it stands in the records. If the attachment is not claimed on the entire area of the land covered by the certificate of title, a description sufficiently accurate for the identification of the land or interest to be affected shall be included in the registration of such attachment; (b) Personal property capable of manual delivery, by taking and safely keeping it in his custody, after issuing the corresponding receipt therefor. (c) Stocks or shares, or an interest in stocks or shares, of any corporation or company, by leaving with the president or managing agent thereof, a copy of the writ, and a notice stating that the stock or interest of the party against whom the attachment is issued is attached in pursuance of such writ; (d) Debts and credits, including bank deposits, financial interest, royalties, commissions and other personal property not capable of manual delivery, by leaving with the person owing such debts, or having in his possession or under his control, such credits or other personal property, or with his agent, a copy of the writ, and notice that the debts owing by him to the party against whom attachment is issued, and the credits and other personal property in his possession, or under his control, belonging to said party, are attached in pursuance of such writ; (e) The interest of the party against whom attachment is issued in property belonging to the estate of the decedent, whether as heir, legatee, or devisee, by serving the executor or administrator or other personal representative of the decedent with a copy of the writ and notice that said interest is attached. A copy of said writ of attachment and of said notice shall also be filed in the office of the clerk of the court in which said estate is being settled and served upon the heir, legatee or devisee concerned. If the property sought to be attached is in custodia legis, a copy of the writ of attachment shall be filed

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CADC$MIDTERMS$CRIMPRO$ 17!!with the proper court or quasi-judicial agency, and notice of the attachment served upon the custodian of such property. (7a) Section 8. Effect of attachment of debts, credits and all other similar personal property. — All persons having in their possession or under their control any credits or other similar personal property belonging to the party against whom attachment is issued, or owing any debts to him, at the time of service upon them of the copy of the writ of attachment and notice as provided in the last preceding section, shall be liable to the applicant for the amount of such credits, debts or other similar personal property, until the attachment is discharged, or any judgment recovered by him is satisfied, unless such property is delivered or transferred, or such debts are paid, to the clerk, sheriff, or other proper officer of the court issuing the attachment. (8a) Section 9. Effect of attachment of interests in property belonging to the estate of a decedent. — The attachment of the interest of an heir, legatee, or devisee in the property belonging to the estate of a decedent shall not impair the powers of the executor, administrator, or other personal representative of the decedent over such property for the purpose of administration. Such personal representative, however, shall report the attachment to the court when any petition for distribution is filed, and in the order made upon such petition, distribution may be awarded to such heir, legatee or devisee, but the property attached shall be ordered delivered to the sheriff making the levy, subject to the claim of such heir, legatee, or devisee, or any person claiming under him. (9a) Section 10. Examination of party whose property is attached and persons indebted to him or controlling his property; delivery of property to sheriff. — Any person owing debts to the party whose property is attached or having in his possession or under his control any credit or other personal property belonging to such party, may be required to attend before the court in which the action is pending, or before a commissioner appointed by the court, and be examined on oath respecting the same. The party whose property is attached may also be required to attend for the purpose of giving information respecting his property, and may be examined on oath. The court may, after such examination, order personal property capable of manual delivery belonging to him, in the possession of the person so required to attend before the court, to be delivered to the clerk of the court or sheriff on

such terms as may be just, having reference to any lien thereon or claim against the same, to await the judgment in the action. (10a) Section 11. When attached property may be sold after levy on attachment and before entry of judgment. — Whenever it shall be made to appear to the court in which the action is pending, upon hearing with notice to both parties, that the property attached is perishable, or that the interests of all the parties to the action will be subserved by the sale thereof, the court may order such property to be sold at public auction in such manner as it may direct, and the proceeds of such sale to be deposited in court to abide the judgment in the action. (11a) Section 12. Discharge of attachment upon giving counter-bond. — After a writ of attachment has been enforced, the party whose property has been attached, or the person appearing on his behalf, may move for the discharge of the attachment wholly or in part on the security given. The court shall, after due notice and hearing, order the discharge of the attachment if the movant makes a cash deposit, or files a counter-bond executed to the attaching party with the clerk of the court where the application is made, in an amount equal to that fixed by the court in the order of attachment, exclusive of costs. But if the attachment is sought to be discharged with respect to a particular property, the counter-bond shall be equal to the value of that property as determined by the court. In either case, the cash deposit or the counter-bond shall secure the payment of any judgment that the attaching party may recover in the action. A notice of the deposit shall forthwith be served on the attaching party. Upon the discharge of an attachment in accordance with the provisions of this section, the property attached, or the proceeds of any sale thereof, shall be delivered to the party making the deposit or giving the counter-bond, or to the person appearing on his behalf, the deposit or counter-bond aforesaid standing in place of the property so released. Should such counter-bond for any reason be found to be or become insufficient, and the party furnishing the same fail to file an additional counter-bond, the attaching party may apply for a new order of attachment. (12a) Section 13. Discharge of attachment on other grounds. — The party whose property has been ordered attached may file a motion with the court in which he action is pending, before or after levy or even after the release of the attached property, for an order to set aside or discharge the attachment

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on the ground that the same was improperly or irregularly issued or enforced, or that the bond is insufficient. If the attachment is excessive, the discharge shall be limited to the excess. If the motion be made on affidavits on the part of the movant but not otherwise, the attaching party may oppose the motion by counter-affidavits or other evidence in addition to that on which the attachment was made. After due notice and hearing, the court shall order the setting aside or the corresponding discharge of the attachment if it appears that it was improperly or irregularly issued or enforced, or that the bond is insufficient, or that the attachment is excessive, and the defect is not cured forthwith. (13a) Section 14. Proceedings where property claimed by third person. — If the property attached is claimed by any person other than the party against whom attachment had been issued or his agent, and such person makes an affidavit of his title thereto, or right to the possession thereof, stating the grounds of such right or title, and serves such affidavit upon the sheriff while the latter has possession of the attached property, and a copy thereof upon the attaching party, the sheriff shall not be bound to keep the property under attachment, unless the attaching party or his agent, on demand of the sheriff, shall file a bond approved by the court to indemnify the third-party claimant in a sum not less than the value of the property levied upon. In case of disagreement as to such value, the same shall be decided by the court issuing the writ of attachment. No claim for damages for the taking or keeping of the property may be enforced against the bond unless the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The sheriff shall not be liable for damages for the taking or keeping of such property to any such third-party claimant, if such bond shall be filed. Nothing herein contained shall prevent such claimant or any third person from vindicating his claim to the property, or prevent the attaching party from claiming damages against a third-party claimant who filed a frivolous or plainly spurious claim, in the same or a separate action. When the writ of attachment is issued in favor of the Republic of the Philippines, or any officer duly representing it, the filing of such bond shall not be required, and in case the sheriff is sued for damages as a result of the attachment, he shall be represented by the Solicitor General, and if held liable therefor, the actual damages adjudged by the court shall be paid by the National Treasurer out of the funds to be appropriated for the purpose. (14a) Section 15. Satisfaction of judgment out of

property attached, return of sheriff. — If judgment be recovered by the attaching party and execution issue thereon, the sheriff may cause the judgment to be satisfied out of the property attached, if it be sufficient for that purpose in the following manner: (a) By paying to the judgment obligee the proceeds of all sales of perishable or other property sold in pursuance of the order of the court, or so much as shall be necessary to satisfy the judgment; (b) If any balance remains due, by selling so much of the property, real or personal, as may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff's hands, or in those the clerk of the court; (c) By collecting from all persons having in their possession credits belonging to the judgment obligor, or owing debts to the latter at the time of the attachment of such credits or debts, the amount of such credits and debts as determined by the court in the action, and stated in the judgment, and paying the proceeds of such collection over to the judgment obligee. The sheriff shall forthwith make a return in writing to the court of his proceedings under this section and furnish the parties with copies thereof. (15a) Section 16. Balance due collected upon an execution; excess delivered to judgment obligor. — If after realizing upon all the property attached, including the proceeds of any debts or credits collected, and applying the proceeds to the satisfaction of the judgment less the expenses of proceedings upon the judgment any balance shall remain due, the sheriff must proceed to collect such balance as upon ordinary execution. Whenever the judgment shall have been paid, the sheriff, upon reasonable demand, must return to the judgment obligor the attached property remaining in his hands, and any proceeds of the sale of the property attached not applied to the judgment. (16a) Section 17. Recovery upon the counter-bond. — When the judgment has become executory, the surety or sureties on any counter-bond given pursuant to the provisions of this Rule to secure the payment of the judgment shall become charged on such counter-bond and bound to pay the judgment obligee upon demand the amount due under the judgment, which amount may be recovered from such surety or sureties after notice and summary hearing in the same action. (17a) Section 18. Disposition of money deposited. — Where the party against whom attachment had been issued has deposited money instead of giving counter-bond, it shall be applied under the direction of the court to the satisfaction of any judgment rendered in favor of the attaching party, and after satisfying the judgment the balance shall be

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CADC$MIDTERMS$CRIMPRO$ 19!!refunded to the depositor or his assignee. If the judgment is in favor of the party against whom attachment was issued, the whole sum deposited must be refunded to him or his assignee. (18a) Section 19. Disposition of attached property where judgment is for party against whom attachment was issued. — If judgment be rendered against the attaching party, all the proceeds of sales and money collected or received by the sheriff, under the order of attachment, and all property attached remaining in any such officer's hands, shall be delivered to the party against whom attachment was issued, and the order of attachment discharged. (19a) Section 20. Claim for damages on account of improper, irregular or excessive attachment. — An application for damages on account of improper, irregular or excessive attachment must be filed before the trial or before appeal is perfected or before the judgment becomes executory, with due notice to the attaching party and his surety or sureties setting forth the facts showing his right to damages and the amount thereof. Such damages may be awarded only after proper hearing and shall be included in the judgment on the main case. If the judgment of the appellate court be favorable to the party against whom the attachment was issued he must claim damages sustained during the pendency of the appeal by filing an application in the appellate court, with notice to the party in whose favor the attachment was issued or his surety or sureties, before the judgment of the appellate court becomes executory. The appellate court may allow the application to be heard and decided by the trial court. Nothing herein contained shall prevent the party against whom the attachment was issued from recovering in the same action the damages awarded to him from any property of the attaching party not exempt from execution should the bond or deposit given by the latter be insufficient or fail to fully satisfy the award. (20a) RULE 58 Preliminary Injunction Section 1. Preliminary injunction defined; classes. — A preliminary injunction is an order granted at any stage of an action or proceeding prior to the judgment or final order, requiring a party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a particular act or acts, in which case it shall be

known as a preliminary mandatory injunction. (1a) Section 2. Who may grant preliminary injunction. — A preliminary injunction may be granted by the court where the action or proceeding is pending. If the action or proceeding is pending in the Court of Appeals or in the Supreme Court, it may be issued by said court or any member thereof. (2a) Section 3. Grounds for issuance of preliminary injunction. — A preliminary injunction may be granted when it is established: (a) That the applicant is entitled to the relief demanded, and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of, or in requiring the performance of an act or acts either for a limited period or perpetually; (b) That the commission, continuance or non-performance of the act or acts complained of during the litigation would probably work injustice to the applicant; or (c) That a party, court, agency or a person is doing, threatening, or is attempting to do, or is procuring or suffering to be done some act or acts probably in violation of the rights of the applicant respecting the subject of the action or proceeding, and tending to render the judgment ineffectual. (3a) Section 4. Verified application and bond for preliminary injunction or temporary restraining order. — A preliminary injunction or temporary restraining order may be granted only when: (a) The application in the action or proceeding is verified, and shows facts entitling the applicant to the relief demanded; and (b) Unless exempted by the court the applicant files with the court where the action or proceeding is pending, a bond executed to the party or person enjoined, in an amount to be fixed by the court, to the effect that the applicant will pay to such party or person all damages which he may sustain by reason of the injunction or temporary restraining order if the court should finally decide that the applicant was not entitled thereto. Upon approval of the requisite bond, a writ of preliminary injunction shall be issued. (4a) (c) When an application for a writ of preliminary injunction or a temporary restraining order is included in a complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall be raffled only after notice to and in the presence of the adverse party or the person to be enjoined. In any event, such notice shall be preceded, or contemporaneously accompanied, by service of summons, together with a copy of the complaint or

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initiatory pleading and the applicant's affidavit and bond, upon the adverse party in the Philippines. However, where the summons could not be served personally or by substituted service despite diligent efforts, or the adverse party is a resident of the Philippines temporarily absent therefrom or is a nonresident thereof, the requirement of prior or contemporaneous service of summons shall not apply. (d) The application for a temporary restraining order shall thereafter be acted upon only after all parties are heard in a summary hearing which shall be conducted within twenty-four (24) hours after the sheriff's return of service and/or the records are received by the branch selected by raffle and to which the records shall be transmitted immediately. Section 5. Preliminary injunction not granted without notice; exception. — No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. Within the said twenty-day period, the court must order said party or person to show cause, at a specified time and place, why the injunction should not be granted, determine within the same period whether or not the preliminary injunction shall be granted, and accordingly issue the corresponding order. (Bar Matter No. 803, 17 February 1998) However, and subject to the provisions of the preceding sections, if the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive judge of a multiple-sala court or the presiding judge of a single sala court may issue ex parte a temporary restraining order effective for only seventy-two (72) hours from issuance but he shall immediately comply with the provisions of the next preceding section as to service of summons and the documents to be served therewith. Thereafter, within the aforesaid seventy-two (72) hours, the judge before whom the case is pending shall conduct a summary hearing to determine whether the temporary restraining order shall be extended until the application for preliminary injunction can be heard. In no case shall the total period of effectivity of the temporary restraining order exceed twenty (20) days, including the original seventy-two hours provided herein.

In the event that the application for preliminary injunction is denied or not resolved within the said period, the temporary restraining order is deemed, automatically vacated. The effectivity of a temporary restraining order is not extendible without need of any judicial declaration to that effect and no court shall have authority to extend or renew the same on the same ground for which it was issued. However, if issued by the Court of Appeals or a member thereof, the temporary restraining order shall be effective for sixty (60) days from service on the party or person sought to be enjoined. A restraining, order issued by the Supreme Court or a member thereof shall be effective until further orders. (5a) Section 6. Grounds for objection to, or for motion of dissolution of, injunction or restraining order. — The application for injunction or restraining order may be denied, upon a showing of its insufficiency. The injunction or restraining order may also be denied, or, if granted, may be dissolved, on other grounds upon affidavits of the party or person enjoined, which may be opposed by the applicant also by affidavits. It may further be denied, or if granted, may be dissolved, if it appears after hearing that although the applicant is entitled to the injunction or restraining order, the issuance or continuance thereof, as the case may be, would cause irreparable damage to the party or person enjoined while the applicant can be fully compensated for such damages as he may suffer, and the former files a bond in an amount fixed by the court conditioned that he will pay all damages which the applicant may suffer by the denial or the dissolution of the injunction or restraining order. If it appears that the extent of the preliminary injunction or restraining order granted is too great, it may be modified. (6a) Section 7. Service of copies of bonds; effect of disapproval of same. — The party filing a bond in accordance with the provisions of this Rule shall forthwith serve a copy of such bond on the other party, who may except to the sufficiency of the bond, or of the surety or sureties thereon. If the applicant's bond is found to be insufficient in amount, or if the surety or sureties thereon fail to justify, and a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith the injunction shall be dissolved. If the bond of the adverse party is found to be insufficient in amount, or the surety or sureties thereon fail to justify a bond sufficient in amount with sufficient sureties approved after justification is not filed forthwith, the injunction shall be granted or restored, as the case may be. (8a)

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CADC$MIDTERMS$CRIMPRO$ 21!!Section 8. Judgment to include damages against party and sureties. — At the trial, the amount of damages to be awarded to either party, upon the bond of the adverse party, shall be claimed, ascertained, and awarded under the same procedure prescribed in section 20 of Rule 57. (9a) Section 9. When final injunction granted. — If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined the court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the act or acts of confirming the preliminary mandatory injunction. (10a) B. CIVIL ASPECT 1. GENERALLY RULE 111 Section 1. Institution of criminal and civil actions. — (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. 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. When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees thereof shall constitute a first lien on the judgment awarding such damages. Where the amount of damages, other than actual, is specified in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court. Except as otherwise provided in these Rules, no filing fees shall be required for actual damages. No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. (1a) (b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed.

Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment. Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions. (cir. 57-97) RJCL Section 12. Prosecution of Civil Action. – When a criminal action is instituted against a juvenile in conflict with the law, the action for recovery of civil liability arising from the offense charged shall be governed by Rule 111 of the Revised Rules of Criminal Procedure. !2.!SUSPENSION!OF!SEPARATE!CIVIL!ACTION!Section 2. When separate civil action is suspended. — After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action. If the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action without prejudice to the right of the prosecution to cross-examine the witnesses presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil actions shall be tried and decided jointly.

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During the pendency of the criminal action, the running of the period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled. (n) The extinction of the penal action does not carry with it extinction of the civil action. However, the civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist. (2a) Section 6. Suspension by reason of prejudicial question. — A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests. (6a) Section 7. Elements of prejudicial question. — The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed. (5a) 3. INDEPENDENT CIVIL ACTION RULE 111 Section 3. When civil action may proceeded independently. — In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action. (3a) 4. EFFECT OF DEATH ON CIVIL ACTION Section 4. Effect of death on civil actions. — The death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the independent civil action instituted under section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case may be. The heirs of the accused may be substituted for the deceased without requiring the appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs.

The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in these rules for prosecuting claims against the estate of the deceased. If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil action the offended party may file against the estate of the deceased. (n)

6. EFFECT OF JUDGMENT IN CIVIL ACTION

ON CRIMINAL ACTION

RULE 111 Section 5. Judgment in civil action not a bar. — A final judgment rendered in a civil action absolving the defendant from civil liability is not a bar to a criminal action against the defendant for the same act or omission subject of the civil action. (4a) RPC

Chapter One PERSON CIVILLY LIABLE FOR FELONIES Article 100. Civil liability of a person guilty of felony. - Every person criminally liable for a felony is also civilly liable. Article 101. Rules regarding civil liability in certain cases. - The exemption from criminal liability established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and in subdivision 4 of Article 11 of this Code does not include exemption from civil liability, which shall be enforced subject to the following rules: First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability for acts committed by an imbecile or insane person, and by a person under nine years of age, or by one over nine but under fifteen years of age, who has acted without discernment, shall devolve upon those having such person under their legal authority or control, unless it appears that there was no fault or negligence on their part. Should there be no person having such insane, imbecile or minor under his authority, legal guardianship or control, or if such person be insolvent, said insane, imbecile, or minor shall respond with their own property, excepting property exempt from execution, in accordance with the civil law. Second. In cases falling within subdivision 4 of Article 11, the persons for whose benefit the harm has been prevented shall be civilly liable in

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CADC$MIDTERMS$CRIMPRO$ 23!!proportion to the benefit which they may have received. The courts shall determine, in sound discretion, the proportionate amount for which each one shall be liable. When the respective shares cannot be equitably determined, even approximately, or when the liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all events, whenever the damages have been caused with the consent of the authorities or their agents, indemnification shall be made in the manner prescribed by special laws or regulations. Third. In cases falling within subdivisions 5 and 6 of Article 12, the persons using violence or causing the fears shall be primarily liable and secondarily, or, if there be no such persons, those doing the act shall be liable, saving always to the latter that part of their property exempt from execution. Article 102. Subsidiary civil liability of innkeepers, tavernkeepers and proprietors of establishments. - In default of the persons criminally liable, innkeepers, tavernkeepers, and any other persons or corporations shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulation shall have been committed by them or their employees. Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within their houses from guests lodging therein, or for the payment of the value thereof, provided that such guests shall have notified in advance the innkeeper himself, or the person representing him, of the deposit of such goods within the inn; and shall furthermore have followed the directions which such innkeeper or his representative may have given them with respect to the care and vigilance over such goods. No liability shall attach in case of robbery with violence against or intimidation of persons unless committed by the innkeeper's employees. Article 103. Subsidiary civil liability of other persons. - The subsidiary liability established in the next preceding article shall also apply to employers, teachers, persons, and corporations engaged in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties. Chapter Two WHAT CIVIL LIABILITY INCLUDES Article 104. What is included in civil liability. - The civil liability established in Articles 100, 101, 102, and 103 of this Code includes:

1. Restitution; 2. Reparation of the damage caused; 3. Indemnification for consequential damages. Article 105. Restitution; How made. - The restitution of the thing itself must be made whenever possible, with allowance for any deterioration, or diminution of value as determined by the court. The thing itself shall be restored, even though it be found in the possession of a third person who has acquired it by lawful means, saving to the latter his action against the proper person, who may be liable to him. This provision is not applicable in cases in which the thing has been acquired by the third person in the manner and under the requirements which, by law, bar an action for its recovery. Article 106. Reparation; How made. - The court shall determine the amount of damage, taking into consideration the price of the thing, whenever possible, and its special sentimental value to the injured party, and reparation shall be made accordingly. Article 107. Indemnification; What is included. - Indemnification for consequential damages shall include not only those caused the injured party, but also those suffered by his family or by a third person by reason of the crime. Article 108. Obligation to make restoration, reparation for damages, or indemnification for consequential damages and actions to demand the same; Upon whom it devolves. - The obligation to make restoration or reparation for damages and indemnification for consequential damages devolves upon the heirs of the person liable. The action to demand restoration, reparation, and indemnification likewise descends to the heirs of the person injured. Article 109. Share of each person civilly liable. - If there are two or more persons civilly liable for a felony, the courts shall determine the amount for which each must respond. Article 110. Several and subsidiary liability of principals, accomplices and accessories of a felony; Preference in payment. - Notwithstanding the provisions of the next preceding article, the principals, accomplices, and accessories, each within their respective class, shall be liable severally (in solidum) among themselves for their quotas, and subsidiaries for those of the other persons liable. The subsidiary liability shall be enforced, first against the property of the principals; next, against

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that of the accomplices, and, lastly, against that of the accessories. Whenever the liability in solidum or the subsidiary liability has been enforced, the person by whom payment has been made shall have a right of action against the others for the amount of their respective shares. Article 111. Obligation to make restitution in certain cases. - Any person who has participated gratuitously in the proceeds of a felony shall be bound to make restitution in an amount equivalent to the extent of such participation. Chapter Three EXTINCTION AND SURVIVAL OF CIVIL LIABILITY Article 112. Extinction of civil liability. - Civil liability established in Articles 100, 101, 102, and 103 of this Code shall be extinguished in the same manner as obligations, in accordance with the provisions of the Civil Law. Article 113. Obligation to satisfy civil liability. - Except in case of extinction of his civil liability as provided in the next preceding article the offender shall continue to be obliged to satisfy the civil liability resulting from the crime committed by him, notwithstanding the fact that he has served his sentence consisting of deprivation of liberty or other rights, or has not been required to serve the same by reason of amnesty, pardon, commutation of sentence or any other reason. !CIVIL!CODE!!Article 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious. If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground. Article 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion; (2) Freedom of speech; (3) Freedom to write for the press or to maintain a periodical publication;

(4) Freedom from arbitrary or illegal detention; (5) Freedom of suffrage; (6) The right against deprivation of property without due process of law; (7) The right to a just compensation when private property is taken for public use; (8) The right to the equal protection of the laws; (9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; (10) The liberty of abode and of changing the same; (11) The privacy of communication and correspondence; (12) The right to become a member of associations or societies for purposes not contrary to law; (13) The right to take part in a peaceable assembly to petition the Government for redress of grievances; (14) The right to be a free from involuntary servitude in any form; (15) The right of the accused against excessive bail; (16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; (17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; (18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (19) Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. Article 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely

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CADC$MIDTERMS$CRIMPRO$ 25!!separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. Article 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. (1902a)!