Crimpro Ortega

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PRE-BAR REVIEW 2007REMEDIAL LAW

TRANSCRIPT OF NOTES ON

CRIMINAL PROCEDUREDEAN ORTEGA

1st step _ Commission of the crime: arrest of the

offender (warrantless arrest); Sec 15, Rule 113

2 nd step _ ilin! of the criminal complaint in the:

a)"roper #aran!a$ if %atarun!an! "am&aran!a$

procedure !o'erns

&)"roper "rosecutors office

3 rd step _ "reliminar$ inuest*in'esti!ation in the

"rosecutors office

+ th step _ ilin! of the criminal case &$ the "rosecutor

a)

&)

5 th step _ ssuance of a warrant of arrest upon

preliminar$ e-amination &$ the .ud!e (Rule 113)

/ th step _ "ostin! of &ail if the crime is &aila&le or

mere reco!ni0ance if allowed (Rule 11+)

th step _ otion to uash if !rounds therefore (Rule

11) th step _ 4rrai!nment and plea (Rule 11/)

th step _ "re6trial (Rule 11)

17 th step _ 8rial "roper

11th step _

12 th step _

13 th step _

APRIL 21, 2007

In order to make it convenient for you to have a good grasp of criminal procedure, you associate these rules withyour experience in the actual happening of criminal situations. In that, if you were given a problem which commonlyreflects what is happening now, you will know how to apply the procedure.

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The Rules are not chronologically arranged.

1st step _ Commission of the crime: arrest of the

offender (warrantless arrest); Sec 15, Rule 113 First is when a crime is committed. Either the offender is arrested or the offender was able to escape. hen theoffender is arrested, you have a warrantless arrest. There is more problem on warrantless arrests than on arrestbased on a warrant. !ecause an arrest based on a warrant naturally is issued by a court and there is adetermination of probable cause. The rule if you should know by now all arrests without a warrant are illegal exceptwhen they are done in situations where the law allows warrantless arrests would be valid.

"ence, in a situation where they arrest without a warrant, the common impression illegal. There are only threeinstances where warrantless arrests are legal. #nd these being exceptions to the general rule, they should bestrictly complied with. $ou will find these in %ection & of Rule ''(, the matter of warrantless arrests ) ) the arrest ofthe offender upon the commission of a crime.

*nder %ection & of Rule ''(, the first situation there is where an arrest is made while the person to be arrested isabout to commit a crime or has +ust committed a crime or is committing a crime in the presence of the personmaking the arrest. This being a warrantless arrest the person who may make the arrest may be a public officer or acivilian and this is what you call citien-s arrest. Regarding the first situation, the issue is on that word presence./ Ifthe arrest without a warrant was made not within the legal contemplation of presence/ of the person making thearrest, the arrest is illegal. Initially the word presence/ was applied by the %0 to the commission of a crime withinseeing distance1 then followed by a case where the situation was extended to one within hearing distance eventhough the commission of the crime was not within seeing distance because the officer who made the arrest was ona road perpendicular to the road where the crime was being committed, although he did not see the commission ofthe crime referred. Eventually, this was further applied to a case where the arrest was made on the basis of thesmell that the arresting officer had achieved involving dried mari+uana leaves. $ou must be aware of that.2E324E v. #5IT# 04#*6I3, 7R5 4)89&:;, #pril '&, '<==

Daniel Obina was a policeman on Detached Service with the ANTI-NARC0TICS Unit in Olongapo

Cit! On "#l $%&%'(%& while on a b#s to Olongapo )rom *ag#io seated on the second seat at thebac+& s#spect Anita Cla#dio boarded the same& placed a woven b#ri bag made o) plasticcontaining some vegetables at the bac+ o) the seat o) Obi,a& and too+ the seat in )ront o) him!The act o) the acc#sed o) p#tting her bag behind Obi,a aro#sed his s#spicion! In San ernando&.ampanga& he was able to go to the bag and inserted one o) his )ingers in a plastic bag locatedat the bottom o) the woven bag and smelt mari/#ana! The plastic woven bag appearing to containcamote tops on the top has a big b#ndle o) plastic o) mari/#ana at the bottom! e recogni1ed thesmell o) mari/#ana being assigned at that time to the ANTINARCOTICS Unit! e did not&however& do anthing then #ntil the reached Olongapo Cit! 2hen the acc#sed alighted )rom theb#s& Obi,a intercepted her and showed her his ID identi)ing himsel) as a policeman and told herhe will search her bag beca#se o) the s#spicion that she was carring mari/#ana inside said bag!

At the police head3#arters Investigation Section& the bag was searched in the presence o)Investigator Cpl! Tiongco& Obi,a& the acc#sed and Sgt! 4eoncio *agang! Inside the plastic bag

was )o#nd a big b#ndle o) plastic containing mari/#ana weighing abo#t one +ilo! 2itness statedthat he co#ld detect mari/#ana even be)ore the application o) chemicals beca#se o) his one earand a hal) assignment with the CANU! The mari/#ana was allegedl still )resh when con)iscated!

R#le %%5& Sec! 67a8 o) the R#les provides9 :A peace o))icer or a private person ma& witho#t awarrant& arrest a person9 ; ; ;<7a8 2hen& in his presence& the person to be arrested hascommitted& is act#all committing& or is attempting to commit an o))ense!=

>eanwhile& R#le %$?& Sec! %$ provides9 :Search incident to law)#l arrest! - A person law)#llarrested ma be searched )or dangero#s weapons or anthing which ma be #sed as proo) o) thecommission o) an o))ense& witho#t a search warrant! 7%$a8=

Appellant Cla#dio was ca#ght transporting prohibited dr#gs! Obi,a did not need a warrant to

arrest Cla#dio as the latter was ca#ght in flagrante delicto! The warrantless search being anincident to a law)#l arrest is in itsel) law)#l! There)ore& there was no in)irmit in the sei1#re o) the%!% +ilos o) mari/#ana!

Eventually, the word presence has been applied to any situation where the commission of the crime is perceived bythe senses of the person making the arrest ) whether by feeling, by smelling, by seeing, by hearing, by tasting )) ifthese could be done, the commission of the crime eventually is within the presence of the person making the arrest.

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%econd situation> make a fine distinction between an arrest made on mere suspicion and an arrest made onprobable cause. # probable cause referred to here is not the probable cause that the +udge determines in issuing asearch warrant. The probable cause referred to in the second enumeration is that which would suffice to convincean unbiased mind that a crime had been committed. This is probable cause for purposes of the officer making thearrest. #s worded, the second situation re?uires personal knowledge of the facts and circumstances that made himbelieve that the person to be arrested is the one who committed the crime. This situation will operate when a crimewas not committed in the presence of the officer making the arrest. %o this is alternative to the first situation. Eventhough the crime was not committed in the presence of the officer or the person making the arrest, if he hadpersonal knowledge of the fact that a crime was committed which is the probable cause and he has that wellfounded belief based on facts and circumstances that the person to be arrested is the one who committed thecrime, he can make the arrest without a warrant and that arrest is valid.

Third situation is rarely given in the bar because this is an arrest in hot pursuit. %o it really does not re?uire awarrant anymore. The person arrested under the third situation is one who is an escapee who escaped fromconfinement or who escaped after having been placed under arrest. The legal conse?uence under this rule is notalone limited to the validity of the arrest. This carries with it the validity of the search because when an offender isarrested without a warrant, the arresting officer generally frisks him for any concealed weapon. #nd in the process,the arresting officer may discover some contraband from the possession of the person arrested. The admissibility ofthe matter seied from the person arrested depends on the validity of the arrest.

#t this stage, the search also is without a warrant because it is instantaneous. The problem arises when theincriminatory evidence was not seied from the person of the one arrested but from within the vicinity where he wasarrested. ithin the vicinity simply means that the arresting officer had @9AA:A;9')A' 9A>9&B to go around but +ustwithin the immediate vicinity. here the arrested person is brought to his house a block away and a search wasmade in the house, that is no longer a search incident to his arrest. %o you have to understand also that awarrantless search and eventual seiure of incriminatory evidence against the person arrested depends on whetherthe search was validly made. %o relative to this, you must recall the instances where the search can no longer beconsidered as made incident to a valid arrest. The arrest may be valid but the search already went beyond thecontemplation of a search incident to a valid arrest. Relative to this also, the new rule now re?uires that anychallenge to the validity of the arrest and the same would naturally involve the admissibility of evidence obtainedduring that arrest must be made before the accused enters a plea @%ec 9:, Rule '';B.

0onventionally, what you have learned in practice court, is that ob+ections to the admissibility of the evidence is

done when the evidence is offered already. #nd that will come after trial except as to testimonial evidence when theoffer is made before the testimony is received. !ut as to ob+ect evidence or documentary evidence, these areformally offered when a party is about to rest his case.

#t that stage, ob+ection to the admissibility of evidence on account that it was not validly obtained can no longer beraised. hile it is true that the accused may have a right to move for the exclusion of the evidence or suppressionof the evidence but if it was not timely made, the right is lost. #nd you must therefore understand that in procedurallaw, the timeliness of the @9AA:A;9')A' 9;>9;B made available to a litigant is very important. The right may exist butif the same was invoked beyond the period fixed under the rules, that right is lost. This is the common cutout of barproblems. $ou may view it as one situation but actually the answer is on the other situation. That why I said inprocedure, you do not argue on the facts. $ou argue on the legalities of the steps taken in the situation. $ou cannot

+ust immediately decide that this is what you will do. $ou have to study the move that you will make. #nd that willonly come if you are familiar with these rules that come into operation in a particular situation.

5ow after this where the offender was arrested, the next thing that would come to you is whether the crimecommitted calls for a preliminary investigation or not. The pertinent provisions of law that you must consider at thisstage where an offender was arrested without a warrant are the following>

Firstly R#8;(=. $ou will recall this law re?uires the arresting officer to inform the arrested personof his constitutional rights. #nd under this law there are penal liabilities incurred by the arrestingofficer who failed to comply with what the law re?uires. !ut you have to raise this

@9AA:A;9')A'

98>'&B of the duty of the arresting officer. $ou cannot +ust arrest him as usual then put him behindbars. #lthough that is what is actually happening, for purposes of passing the bar that is illegal.%o you have to comply with what is expected under the rules. 4aw enforcers generally do notcomply with what the law re?uires. They-re after defending an arrest

@9AA:A;9')A' 98>&AB

%econdly, you have to contend with #rt '9& of the R20. This also figures in a case where thecrime involved re?uires preliminary investigation. $ou will recall under %ec : of Rule ''9 now asamended, if the person arrested has committed a crime where the rules re?uire a preliminvestigation, the arrested person should make a waiver in writing of the conditions of #rt '9& ofthe R20 if ever he wanted to avail of the benefits of a 2I. !ecause there is a time frame withinwhich the arresting officer must file a criminal case against the arrested person. *nder saidarticle, delivering the arrested person to the proper +udicial authorities re?uire the formal filing of avalid complaint before the proper court which may take cogniance thereof. 3therwise thearresting officer may answer for the crime of arbitrary detention.

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UST CIVIL LAW



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5ow also, %ec '9 of #rt III of the '<=8 0onstitution regarding the taking of any admission orstatement from the person under custodial investigation.

5ow these are the pertinent laws that you have to consider. 3f course, the re?uirement of bringing the arrestedperson to an in?uest prosecutor to determine whether he should be detained or he should be released withoutpre+udice to the offended party filing a formal criminal complaint against him. %o all of these laws should beconsidered relative to the first step in the process of criminal procedure.

2 nd step _ ilin! of the criminal complaint in the:

a)"roper #aran!a$ if %atarun!an! "am&aran!a$

procedure !o'erns

&)"roper "rosecutors office

%econd step would be the filing of the criminal complaint against the person arrested. $ou must be aware already

of the resolution made by the %upreme 0ourt in an en banc session dis)authoriing the +udges of the inferior courtsor the first)level courts from conducting preliminary investigation. %o where the crime involved calls for preliminaryinvestigation, this cannot be filed with the local court of the first level anymore. This has to be filed with theprosecutor under the prosecutor-s office of the province or the city where the crime was committed.

The criminal complaint at this stage is not the complaint discussed in Rule ''A of the Rules of 0riminal 2rocedure.This refers to any written accusation against the person arrested. %o this is not the complaint that should complywith what are provided for in Rule ''A of the Rules of 0riminal 2rocedure. The complaint referred to there is onere?uired in the so)called private crimes where the criminal complaint approximates the re?uired details of aninformation under %ec : of Rule ''A.

5ow at this stage, any written denunciation prepared either by the arresting officer or by the private offended partyyou have to consider the so)called barangay +ustice under the 470 C R# 8':A. *nder 0hapter 8 of 470, you have

there a general provision that no complaint, proceeding, action, or petition can be filed in court or any +udicial oradministrative body without the parties having attended a confrontation before a 2unong !arangay. Thiscontemplates that the crime involved is governed by the so)called barangay +ustice. From time to time, this hasbeen sub+ect of a bar problem. $ou may see that there is nothing wrong with @9AA:A;9')A9 A;>9AB that was notbrought before the barangay. *nder this law, whenever a crime carries a penalty of not exceeding one yearimprisonment or a fine not more than &AAA pesos, the same may be brought before the barangay for properconciliation or mediation. *nder this provision of the 470, the %0 has already made a rule that crimes which underthis law should be brought first before the 2unong !arangay may be sub+ect of amicable settlement. The amicablesettlement entered into at this stage extinguishes criminal liability. 3nce an amicable settlement is arrived at, nocriminal action can be thereafter prosecuted.

%o this awareness re?uires you to know when the so)called barangay +ustice will apply. #nd this will only governwhen the parties are residing in the same city or municipality, that no +uridical person is involved, and that the crimecommitted involves a private offended party. hen the crime committed does not involve a private party, there?uirement does not govern. !ut you should be aware of this re?uirement that before the case may be filed withany other authority, steps must be taken to bring the same before the concerned 2unong !arangay. This wasdecidedly re?uired to decongest the dockets from the courts. #fter all the crime could be sub+ect of settlementunder this code.

here the crime involved is not governed by the 470, the same may be filed with the 2rosecutor-s office. In remotemunicipalities where there are no municipal prosecutors, the criminal complaint is filed with the office of the 0hief of2olice. There are municipalities which are so poor that they cannot afford a municipal prosecutor. %o this is filedthrough the office of the 0hief of 2olice.

#t this +uncture, if the crime does not call for 2I, the case may be filed directly with the court of the first level C theso)called inferior courts1 and these are the Dunicipal Trial 0ourts, the Dunicipal 0ircuit Trial 0ourts, and theDetropolitan Trial 0ourts. This is the rule when the crime is within the +urisdiction of these courts and no 2I is called

for. !y now you must be aware that all crimes where the penalty prescribed is not lower than ; years, 9 months,and ' day of imprisonment are sub+ect of 2I properly invoked by the offender. #nd because, under the rules asamended, these courts are no longer allowed to conduct 2I, the criminal case should be filed with the prosecutor-soffice already.

There is this change in the procedure from what was the rule before. The rule before was if the crime wascommitted in a municipality where there was no municipal prosecutor, the criminal complaint may be filed with thelocal inferior court and the +udge thereof will conduct 2I. hen the new rule of criminal procedure lowered the

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penalty for those crimes sub+ect of 2I to ; years, 9 months, and ' day, you have crimes within the +urisdiction of theinferior courts where 2I is now re?uired.

There are municipalities in the 2hilippines where there is only one inferior court. hen there is only one inferiorcourt in a municipality, the case will be filed in that inferior court so the +udge thereof will be the one to conduct 2I.

#nd if he would find a prima facie case he cannot +ust take cogniance thereof. "e will have to elevate theresolution to the office of the provincial prosecutor. The provincial prosecutor will be the one to file the information ifwarranted. The information goes back to the +udge which conducted the 2I. This was the evil that was eradicatedunder the old rules when this was sub+ect of a complaint from an accused when the RT0 conducted the 2I. *nderthe rule before, RT0 +udges can conduct 2I when a criminal case was filed before their sala without the benefit of a2I. They conducted 2I and that finding a prima facie case proceeded to try them. %o the accused cried foul. #ndthat led to the dis)authoriation of +udges of criminal trial courts from conducting 2I.

5ow, that same evil was resurrected when the members of this committee who drafted these new rules of criminalprocedure lowered the penalty for those crimes where 2I is re?uired. That then brought about crimes within the

+urisdiction of the inferior courts because of the law expanding the +urisdiction of the inferior courts to criminal caseswhere the penalty of imprisonment is not higher than : years. #nd because of the lowering of the penalty for crimessub+ect of a 2I to only ; years, 9 months, and ' day, it created a situation where the crimes are within the

+urisdiction of the inferior courts and yet 2I may be conducted by the inferior courts. #nd that is unfair to therespondent. This is the evil created by this amendment not knowing that there is a law expanding the +urisdiction of

the inferior courts. The procedure before was simple. #ll crimes not within the +urisdiction of inferior courts but withinthe +urisdiction of the RT0 re?uire 2I. %o if the case is within the +urisdiction of inferior courts, no 2I anymore. ustfile it with the inferior court. 5ow the court may not have enough things to do. They tinker with the rules. They makethe rules worse.

%o even after this revision of year 9AAA, they created a situation where the rules are made unfair to the respondent.%o during the initial D04E lecture on this, I called the attention of these people in the 0ity of Danila about thisabsurdity. %o last year, the %upreme 0ourt en banc met and adopted an amendment to the rules dis)authoriingnow +udges of inferior courts from conducting 2I. The evil created by this amendment is that if an offended partyresides in a municipality where there is no municipal prosecutor, he has to travel to the provincial capital where theoffice of the provincial prosecutor is located and file the case there. %o, one problem after another is createdbecause they disturbed the setup that was true for several years.

This is now the rule. %o you may be reading +urisprudence which was the rule before. That is why, at this +uncture,you must be careful with the commentaries that you are reading because they may be citing decisions which maybe true under the old rules. %o you listen to what we are bringing out here not to what you may be reading whichmay not be current anymore.

%o now, the filing of the criminal complaint, if not sub+ect to the so)called barangay +ustice, can only be filed with theprosecutor-s office. udges of courts of the first level are no longer authoried to conduct 2I effective 6ecember (',9AA&. %o they have only to wind up all cases pending with them as of that date.

3 rd step _ "reliminar$ inuest*in'esti!ation in the

"rosecutors office

%o, the next step that would come is the 2I for a crime where the penalty is not lower than ; years 9 months and 'day of imprisonment.

*nder this rule, Rule ''9, when the crime committed by the arrested person calls for a 2I and the arrested personwould want to avail of the 2I, he must make a written waiver of #rt '9& of the R20. The waiver re?uired thepresence and assistance of a counsel otherwise the waiver would not be valid. 5ow, if there would be no availablecounsel, the arresting officer will have to file the criminal case without the benefit of a 2I so as to save his neck froma possible liability for arbitrary detention. For under #rt '9&, he is only allowed to hold the arrested person within '9,'=, or (: hours without a criminal complaint having been filed against the arrested person. #fter that, any furtherdetention may render him administratively and criminally liable for arbitrary detention. %o, to avoid that, you have tofile the case immediately if no waiver is done.

*nder the new rules now, %ec : of Rule ''9 as amended, before the arresting officer should file a criminalcomplaint against the arrested person, he should bring the arrested person to an in?uest prosecutor for the in?uestprosecutor to determine whether the arrested person should be kept under detention or the arrested person shouldbe released without pre+udice to a criminal complaint being filed with the prosecutor-s office so that 2I may beconducted by the prosecutor. !ut not all municipalities have an in?uest prosecutor. %o under %ec : of Rule ''9,when there is no in?uest prosecutor available, the complaint may be filed by the arresting officer supported by hisown affidavit and the affidavit of the offended party and the latter-s witnesses. "e can file this already in court.

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0orollary to this, the arrested person against whom the criminal case was filed without the benefit of a 2I is allowedonly & days after he learned of the filing of the case against him within which to ask for a 2I. The %0 ruled that this&)day period is mandatory. %o, although the case calls for a 2I, if the accused would make his motion for 2I beyondthe &)day period, the same shall be denied. $ou have here 9 conflicting premises> the right of the respondent tohave the 2I and the authority of the court to deny the same because it was invoked out of time. This is the source ofa bar problem.

5ow also, relative to this challenge to the denial of a 2I or the clarity in the conduct of a 2I, under the new rules, thesame can only be raised before arraignment and before the accused has entered a plea. %o this is one point thatyou should take note of C the irregularities which the rules allow only to be raised before arraignment. %o if theaccused was already arraigned and had entered a plea, all these rights accorded to him under the new rules arelost. 5o longer a ?uestion of whether he has these rights under the rules or not. "e may have these rights but thetime allowed by the rules for invoking these has already lapsed. These are the kinds of catches presented in barproblems in procedural law. That is why you have to know this correlatively.

+ th step _ ilin! of the criminal case &$ the "rosecutor

a)

&) In the 2I of the case, the information would have to be prepared if the prosecutor-s office finds a prima facie case.%o relative to this, the fourth step would be the filing of the information with the proper court and this would re?uireyou to know Rule ''A.

#t this +uncture, Rule ''A would now come into operation. *nder this Rule, if the crime involved cannot beprosecuted, the criminal complaint from the offended party is necessary. Filing the information alone is defective,open to a motion to ?uash. 2I would determine whether the crime involved calls for the filing also of a criminalcomplaint. That criminal complaint must be annexed to the information which shall be filed in court. Even thoughthere was a complaint filed by the offended party, if the same was not annexed to the information that was filed incourt, a motion to ?uash is in order because that complaint is re?uired to be filed in the court where the informationwas filed. This is the criminal complaint I was referring to a while ago that must conform to what you have learned inyour study of legal forms, not the criminal complaint in the first instance where the offender will be underinterrogation.

The important provisions of Rule ''A> Firstly, when the crime involved is adultery or concubinage, a complaint fromthe offended spouse only is necessary. %o if the offended spouse upon learning that the other spouse hadcommitted an act of infidelity, collapsed out of extreme anger, nobody can file a complaint anymore. This point hasbeen resolved already by the high court. The rules allow only the offended spouse and that spousal relationshipmust be existing at the time the case was filed in court.

%o in a case where the husband was a 7erman national, the wife a Filipina, the husband suspected that even afterhis marriage with his Filipino wife, the latter was still meeting with her former boyfriend. %o when he visited hisparents in 7ermany, he took the opportunity to file a petition for divorce. #nd under the national law in 7ermany, heis ?ualified and obtained a decree of divorce. ith that, he came back to the 2hilippines and he was surprised that

the boyfriend was already cohabiting with his wife in the con+ugal home. %o he filed a criminal complaint for adulteryagainst his wife there being no divorce in the 2hilippines. The wife moved to ?uash on the ground that what therules of procedure and substantive law re?uires that a complaint for adultery or concubinage may only be institutedby the offended spouse presupposes that the complainant is still married to the offender. 5ow, since in thisparticular case, the complainant is no longer a spouse when the criminal complaint was filed in court, the court willno longer ac?uire +urisdiction over the case because the complaint was not lodged by one authoried to do so. Thetrial court denied the motion to ?uash precisely because that divorce in 7ermany is not recognied here to amarriage celebrated in the 2hilippines. %o the accused brought the ?uestion to the %0. The %0 ruled that theoffended spouse means that the marriage must be still subsisting at the time the criminal complaint was filed incourt. 3therwise the court will not ac?uire +urisdiction over the crime filed. The spousal relationship must continueup to the time the criminal complaint was filed in court. The relationship was already severed by the act of thecomplainant himself, then he cannot claim that he is still a spouse.

Relative to this is a problem given in the bar about the re?uirement that in a crime of adultery and concubinage,both the offending spouse and the paramour or mistress must be made as respondents in the criminal complaint aswell as in the information that will be filed. 0ommon problem given in the bar is where the paramour or mistress isnot aware that the married man or woman was already in a state of a valid or subsisting marriage at the time of therelationship. In other words, with this rule re?uiring that such paramour or mistress be +oined @9AA:A;9')A9 ;A>&8Bsaid paramour or mistress was not aware that the other accused was already married. For purposes of establishingthat said paramour or mistress is not aware of the marriage, this is a matter of defense and this may only beproperly raised in court, not during 2I.

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It is rather absurd to accuse a woman of adultery or a man of concubinage naming her or him alone as accused. Itis senseless. There must always be two to answer for the crime. 3n the part that the paramour or mistress was notaware that the co)accused is already married it is a matter of defense that must be threshed out in the trial beforethe court. %o, in the 2I, this should not be taken up. They could be filed with the court because it is rather strangethat there will only be one accused in the case of adultery or one accused in the case of concubinage.

5ow, also important under Rule ''A is %ec : C the re?uirement to make an information and a correspondingcriminal complaint sufficient. Dore important in this connection is the re?uirement that ?ualifying and genericaggravating circumstances must now be specified in the designation of the crime and in alleging the act or omissionconstituting the offense @%ections = and < of Rule ''AB. #lthough these rules did not state that the aggravating maynot be appreciated even though proven during the trial, as long as it is not alleged in the information, our %0 wentfurther and ruled that even though the aggravating circumstance was proven during the trial, even though it wasonly generic, the court should not appreciate the same against the accused if it has not been alleged in theinformation. %o this is now the rule that you have to remember in a case. "owever, if the given facts would notdisclose that the information filed in court failed to state the aggravating circumstance, you don-t have to assumethat the same was not alleged. @9AA:A;9')A9 ;&>;&B is aware of the presumption in favor of public officer,prosecutor who filed the information, they have in their favor the presumption of regularity in the performance oftheir official duties. %o, the presumption is that they alleged it there. 6o not presume that it was not alleged unless itis so stated. It is presumed that the prosecutor complied with the rules rather than you to presume that he did notcomply with the rules.

5ow also important here, the designation of the offense by the statute or the law violated. This is where you have tobe aware that in crimes under the R20, there is always a name given to the violation and that name must be theone used. $ou are only allowed to make reference to the number of the article, section or subsection if the lawviolated did not give a designation to the crime committed. %o, although the crime of parricide is provided for in #rt9;: of the R20, the designation of the crime should not be violation of #rt 9;: of the R20./ That will be contrary towhat is re?uired to make the information sufficient. It should be parricide.

5ow, relative to this, there are crimes which are known by their street names and therefore has no recognition inthe law. $ou are not supposed to use the street name. For example, I called attention in the sub+ect of criminal lawthat this so)called #nti)"i+acking 4aw is not recognied as hi+acking. R# :9(& does not at all use the wordhi+acking./ $ou will not find it in there. %o, given a situation where the violation involved said R# :9(&, you cannotsay that the crime is hi+acking. The crime is violation of R# :9(& commonly referred to as "i+acking./ 6o not say

hi+acking because that is a street name.

$ou must have read a case where the

@9AA:A;9')A9 ;<>9&B an information which charged the accused for illegalpossession of shabu. The term shabu is a street name. $ou cannot find a provision there punishing shabu. %o,under this re?uirement of %ec :, you are bound to the designation of the crime as used in the statute. 6o not go bythe layman-s terminology. $ou are supposed to be different from the layman. 6o not follow the layman, let themfollow you.

5ow, also important here, %ec '( which is a rule against duplicity of offenses. Those of you who are with me insubstantive criminal law was called to give attention to this in correlation with #rt ;= of the R20 on complex crimes.

#n information is allowed to allege more than one offense only if the offenses so alleged are punishable only withone penalty under the law. If not, each offense must be made sub+ect of a separate information. #nd relative tothese exceptions, I told you that an information may allege more than one offense without violating the rule against

duplicity of offenses if the crimes charged was a complex crime or a compound crime or a composite crime or acontinued crime. !ecause of the significance of this in the last bar exams this was the number ' ?uestion.

#lso in the examination in remedial law, a problem on duplicity of offenses was given where two crimes werealleged in one information because they happened to be committed on the same occasion although the crimeinvolved are not complex crimes, composite crimes, continued crimes, nor compound crimes. The catch in theproblem, however, is that one of the crimes charged is not within the +urisdiction of the court where the informationwas filed. %o although here, the accused was allowed to file a motion to ?uash if the information alleges more thanone offense, yet, under the problem given, the motion to ?uash should not be grounded on duplicity of offense, notunder %ec (@fB of Rule ''8, but rather on the ground that the court has no +urisdiction over the other crime filed withthe court.

# filing of a motion to ?uash on the ground of duplicity of offenses presupposes that the offenses are within the +urisdiction of the same court. It presupposes the filing of an information which is validly within the +urisdiction of thatcourt. %o, if the offenses involved are not within the +urisdiction of that court, that is the primary basis of the motionto ?uash C that the court ad no +urisdiction over the crime. That-s what the problem given in remedial law althoughreadily you will say motion to dismiss on the ground of duplicity is in order but the ground should not be duplicity ofoffenses but that the court has no +urisdiction over the crime charged.

6uplicity or multiplicity of offenses

@9AA:A;9')A9 &&>'&B as alleged in one information does not invalidate theinformation filed. It only gives the accused the right to file a motion to ?uash. #nd if the accused would not file amotion to ?uash, the duplicity is waived. The court can proceed with the trial as though several informations were

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filed. #nd if all the crimes alleged are proven beyond reasonable doubt, the court will render one decision but in thatdecision there will be separate findings of fact and the law regarding each crime which should have been madesub+ect of a separate information. $ou have this under Rule '9A of the current Rules of 0riminal 2rocedure. #ndthe court will have to impose separate sentences for each of the crimes alleged in one and the same information.%o the duplicity does not automatically invalidate the information filed. It only gives the accused the right to movefor the ?uashal of the information.

#lso important here, %ec '; the rule on amendment. The rule before simply draws a demarcation on whether theamendment will be made before arraignment or made after arraignment and plea. !efore the accused is arraigned,amendment generally is a matter of right because issues are not yet +oined. Even in civil procedure you have therethat amendment before you file an answer may be made even without leave of court, because then without theanswer, issues are not yet +oined. In criminal cases, no answer is being filed. It is the arraignment where theaccused enters a plea. %o before the accused enters a plea, there are no issues +oined. The accused is stillpresumed to be innocent. "ence, amendment before the accused is arraigned and enters a plea is a matter ofright. #nd the amendment therefore being a matter of right, it is immaterial whether the amendment involvedmatters of substance or only matters of form.

"owever, under the new rules now, although the amendment will be made before the arraignment, or before theaccused had entered a plea, if that amendment will downgrade the crime charged in the original information soughtto be amended or the amendment would involve the exclusion of any of the accused charged in the original

information, that amendment re?uires prior leave of court. %o in these matters, amendment cannot be a matter ofright even though the amendment will be made before the accused had been arraigned and had entered a plea.This change in the rules was dictated by rampant corruption where the trial prosecutor connives with the accused todowngrade the crime originally charged or to exclude any of several accused who can afford to meet the priceasked for by the prosecutor-s office. %o the court is made to intervene. "ence, leave of court here cannot beobtained by oral motion. It re?uires a motion in writing and the offended party must be duly served with a notice ofthat motion. The rule is intended to curb the corruption and that can only be done when the court is made tointervene and the offended party if informed thereof.

5ow relative to this therefore, if the offended party was not informed, that amendment as far as the offended partyis concerned will not preclude the offended party fro re)filing the original charge against the accused. "e will only bebound if he were duly notified and yet he did not appeal or he did not file any ob+ection to the desired amendment.The court should state in its order granting or denying leave the reasons that the court considers as a basis for

denying or granting the re?uired leave.

#nd where the amendment is to be made after arraignment and the accused has already entered a plea, thatamendment will always re?uire prior leave of court. and only amendments as to matters of form may be allowed.

#mendments as to substance cannot be made anymore after the accused has already entered a plea because thatwould tantamount to a disregard of the prohibition against double +eopardy.

#nd even where the amendment may involve matters of form, if the amendment were to pre+udice the substantialrights of the accused, if that amendment would re?uire evidence in defending the accused other than what hewould have prepared in the original situation, that amendment of form should not be allowed. For instance, in acase where the accused was charged for malversation committed over a period of years, and in the information theyear referred to was '<<=, it was found out that there was a clerical error. It should not have been '<<= but '<=<.there is a discrepancy which substantially affects the right of the accused. !ecause between '<=< and '<<= is a

matter of around < years. %o the records say that the amendment will not be allowed because it would impair thesubstantial rights of the accused. #lthough the amendment is simply a matter of form.

hether the amendment is a matter of form or a matter of substance, your criterion should be whether theamendment would put the accused in double +eopardy. %o, although the amendment may be one of substance, butif the amendment would not place the accused in double +eopardy, the situation falls under that exception in %ec 8of Rule ''8where no double +eopardy will attach to the accused, that amendment is only an amendment of form.$ou do not +udge the amendment on the matters to be amended even though matters to be amended are actuallymatters of substance, if the amendment however will not place the accused in double +eopardy, +urisprudence allstate that is only an amendment of form. This has been the sub+ect of some bar problems in the past.

The classic illustration of this is the case of Teehankee vs. udge Dadayag where initially Teehankee was chargedfor frustrated murder. #fter the prosecution had already presented two witnesses, the victim suffered complicationsand she died. %o, on the next scheduled trial, prosecutor moved for a suspension of the proceeding to allow him toamend the charge from frustrated murder to consummated murder. The trial court presided by the respondentudge Dadayag granted the motion to suspend the proceedings and this allowed the prosecution to amend theinformation. %o the defense vehemently ob+ected on the ground that the amendment is a matter of substance.0onsidering that the accused had already been arraigned and two witnesses had already testified for theprosecution, amendments of substance should not be allowed anymore. iewing the nature of amendment, you willbe inclined to agree that it is an amendment affecting substance. 2enalty of frustrated murder is one which is lowerthan the penalty of consummated murder. Durder carries the penalty of reclusion perpetua to death whereas if itwere frustrated, one degree lower which is reclusion temporal only. %o by amending this, penalty goes up one

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degree higher. $ou cannot say this is an amendment of substance. !ut taking it in the legal sense, %0 ruled that itis only an amendment of form. #lthough the resolution of the high court did not elaborate on this, the ruling is welltaken because under %ec 8 of Rule ''8, you have there ( exceptions where no double +eopardy will attach to theaccused, not only when an amendment was made but even when a subse?uent information will be filed. #nd one ofthem is where a greater offense developed out of supervening facts arising from the same act or omission chargedin the original information. The %0 ruled the amendment is only a matter of form.

%o let it be noted by you that whether the amendment is a matter of substance or a matter of form does not dependon the nature of the amendment to be made. It depends simply on whether the amendment would place theaccused under double +eopardy or not. #nd to this the exceptions under %ec 8 of Rule ''8 is effective. %o youshould take note of these exceptions relative to this rule on amendment. If the accuse would not be placed underdouble +eopardy because the situation falls under the exceptions, it is only an amendment of form.

APRIL 24, 2006

ithout 2I, the +udge cannot do anything except dismiss the case and re?uire the complainant to file @9AA:A;9;)A'

AA>'AB with the public prosecutor. 6o not think that the +udge will forward the case to the office of the publicprosecutor. In procedure, there is no such thing because there must be proper filing. If you file in the wrong forum,the +udge will dismiss without pre+udice to the re)filing in the proper forum. In 2I, you have to know what are the

crimes where the offender is entitled to a 2I. !ecause although this is not part of due process, yet when there is alaw which concedes 2I to an offender, and the offender invoked that right, then a denial thereof will amount to adenial of due process of law. %o it is only for the offender not to avail of the 2I where that right is accorded to him.!ut if the offender would invoke the same, a denial thereof would be a denial that would be contrary to due processof law and therefore, would be null and void.

5ow, you must be aware of the difference between pre!"!#$r% e&$"!#$'!(# and 2I. There are some candidateswho confuse these using the two terms interchangeably. They are highly different. The distinctions between the twoare as follows>

Firstly, as regards 2E, there is a proceeding to determine the existence of probable cause for the issuanceof a warrant of arrest. This is mandated in all instances where a warrant of arrest will be issued. The courtwho would issue a warrant of arrest is mandated to determine the existence of probable cause and that

probable cause is re?uired to be determined by the +udge personally. $ou cannot +ust rely on the affidavitsof the parties and their witnesses. 5ow, that proceeding for the determination of probable causeconsidering that the law re?uires that the +udge determine this by conducting searching ?uestions isreferred to as preliminary examination. 5ow, this is a function of the +udiciary @+udicial functionB so only

+udges conduct 2E prior to the issuance of a warrant of arrest.

3n the other hand, as regards 2I> aB this is a proceeding or determination of whether there exists probablecause to hold the respondent for trial, the proceeding is determine the existence of a prima facie case andthe determination that the respondent is probably guilty thereof1 bB this is an executive function1 and cB thismay be conducted by any public officer authoried by law to do so. This is conducted by the following>

'. city prosecutors and their assistants9. provincial prosecutors and their assistants

(. state prosecutors of the 6epartment of ustice when duly designated;. ombudsman in those criminal cases within the +urisdiction of the %andiganbayan&. 2077 but only in criminal cases involving the accumulation of ill)gotten wealth, not in any other

criminal case:. the 4egal 6ivision of the 0omelec for election offenses8. the 4egal 6ivision of the !IR in criminal cases involving tax fraud in accordance with the

comprehensive tax reform program

%o you have these distinctions and bear in mind if the court will issue a warrant of arrest without any indication thatthe court had followed the re?uired 2E, the warrant of arrest may be assailed in a motion to ?uash by being null andvoid. The determination of probable cause to be conducted personally by the +udge is even provided in fundamentallaw. %ince our courts are all courts of record, this proceeding must be evidenced by transcript. %o, if in a particularcase, a warrant is issued and there is no transcript to show that the +udge had complied with the re?uirements oflaw in the determination of probable cause, that warrant of arrest may be challenged as null and void.

In a case against the late udge Daximiano #suncion who later on became +ustice of the 0#, he issued a warrant ofarrest on the basis of the certification by the public prosecutor who conducted a 2I. you must conversant with that Cthat every information where the crime charged calls for a 2I, that information in the lower part thereof reflects acertification where the public prosecutor who conducted the 2I certifies under oath what he had done in arriving atthe conclusion that the respondent is probably guilty of the crime complained of and should be held for trial. %0considered it wrong for the +udge to rely on that because what the rules and the fundamental law re?uire that thedetermination of probable cause must be by the +udge personally. "ence, the respondent +udge contended that that

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will be expecting the court to conduct another 2I, recall the parties again and their witnesses, go over the evidenceto determine the existence of that probable cause. %0 said no, that is not necessary. hat is expected of the +udgebefore issuing a warrant of arrest is to go over the records of the 2I and not merely to issue the warrant of arrest onthe basis of the information filed by the prosecutor-s office and the resolution made by the investigating prosecutor.%o where the records before the court do not include the affidavits of the parties, the counter)affidavit of therespondent, the affidavit of the witnesses and whatever evidences may have been adverted to in the resolution ofthe prosecutor, this would mean that the +udge did not conduct the re?uired in?uiry as to the existence of theprobable cause. %o as the high court called the attention of the respondent +udge that under the R02, the +udge isgiven the authority to re?uire the prosecutor to adduce additional evidence if it is convinced that there is no basis toorder the arrest of the respondent.

%o this would tell you that the mere filing of the case in court does not authorie routinarily the +udge to issue thewarrant of arrest. The high court called the attention to the provision of the rules that the warrant of arrest is issuedonly when necessary to prevent the accused from frustrating the ends of +ustice so much so that he has to be heldwhile the case is on trial. %o if the probability of flight is negative, there is no need for the court to issue a warrant ofarrest. %o also the rule has been emphasied that the liberty of the person although accused of a crime may not becapriciously curtailed. This is only authoried where there is a probability that the accused may go into hiding andthat would then frustrate the ends of +ustice. 3therwise, the accused who is presumed innocent until convicted byfinal +udgment has a right to liberty.

5ow, this would tell you what attitude you should adopt when given a problem where a warrant of arrest has +ustbeen issued for the court to ac?uire +urisdiction over the person of the accused. The court can ac?uire +urisdictionby sending merely summons. #nd if the accused would ignore the summons that is the time a warrant of arrest maybe issued. In fact, there are certain instances like under the Rule on %ummary 2rocedure which prohibits the instantissuance of a warrant of arrest. hat the court will do is simply to summon the respondent to appear on thescheduled date of hearing. #nd only if the accused would not heed that summons may the court issue a warrant ofarrest so that the accused will post the re?uired bail.

5ow, upon the filing of the information in court, I said that Rule ''A is pertinent thereto. #nd I called your attentionlast time to the particular provisions of Rule ''A which you will have to understand. e have reached so far the ruleon amendments. #nd I told you that amendment both as to form and substance is a matter of right if the accusedhad not been arraigned and had not entered a plea, yet the new Rules of 0riminal 2rocedure re?uire prior leave ofcourt in writing C you cannot make it orally C if the desired amendment would either downgrade the gravity of the

crime charged in the original information or the desired amendment would exclude any of the accused charged inthe original information.

5ow, you understand that there is a basis for this because the prosecutor who conducts the 2I is generally not theprosecutor who will conduct the trial in court. %o although the investigating prosecutor may have recommended thefiling of the information for a certain crime and the persons who would be accused of the crime, before this is filed incourt it is approved by the prosecutor-s office. This is re?uired by law. %o by the time that the information is alreadyin court, that means this as already passed the re?uired approval of the prosecutor-s office.

5ow, during the trial, the trial prosecutor as control of the case. %o it happened in previous cases that the trialprosecutor was somehow corrupted by the accused or those who are interested in the ac?uittal of the accused. %o,when the gravity of the crime has been downgraded and this is done either to make it bailable or to open thepossibility of probation of the accused upon conviction. 3nce the information had been filed in court, the trial

prosecutor will have control, so he can manipulate that case. #nd this has been observed as a source of corruptionwhen the trial prosecutor negotiates with the accused and if the accused would pay a handsome amount, he will beexcluded from the information. #t that point, exclusion of the accused would imply that there is no sufficientevidence against him. %o, to plug that loophole of corruption, this amendment was made, and the eave of courtmust be in writing in the nature of a motion filed by the prosecutor which must be set for hearing. #nd the rulesre?uire that the offended party must be served with notice of that motion for leave of court because there aredecided cases where the offended party complained about the downgrading of the crime or the exclusion of anaccused who figured principally in the commission of the crime.

%o, in the current Rules of 0riminal 2rocedure, if the offended party was notified but e fails to appear in theappropriate hearing despite notice, he cannot be heard later on to complain on what the prosecution and the courtmay have allowed. $ou will notice that now even during arraignment the offended party is notified to appear incourt. %o that, in the event the accused would offer to plead guilty to a lesser offense, the offended party may beheard if he would ob+ect. 5ow, if in spite of that notice the offended party failed to appear, and the prosecutoragreed to a plea to a lesser offense, the offended party cannot later on complain and assail. !ut if the offendedparty was not notified, the plea of guilty to a lesser offense is not null and void. 3nly, the offended party is allowedto file a complaint again for the more serious crime originally charged in the information. hatever sentence hadbeen rendered against the accused for the lesser crime will simply be deducted from the sentence that may beimposed for the more serious crime. !ut as far as the arraignment is concerned or the trial is concerned, the sameis valid.

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5ow, upon the filing of the information in court having +urisdiction over the same, there are two antecedents that youmust take cogniance of>

@'B when the investigating prosecutor refuses to file the information and the result is that there is notenough evidence to warrant the prosecution but the offended party knows that these evidencesadduced during the 2I are sufficient to establish a prima facie case. hat will be the remedy of theoffended partyG The ?uestions in past bar exams on this point is this> Day the offended party file apetition for mandamus to compel the investigating prosecutor to file the case in courtG/

The answer> generally 53. The reason is because the writ of mandamus is not availing against theexercise of a discretionary function. #n investigating prosecutor does not only exercise a ministerialfunction, he exercises ?uasi)+udicial function. #nd this is not amenable to the writ of mandamus."owever, one of the instances where the writ of mandamus is proper is where a public officer neglectsor refuses to discharge a duty en+oined by law by virtue of his public position. # public prosecutor isre?uired to resolve one way or another a criminal complaint filed with him when he conducted 2I. %o, ifthe public prosecutor simply sits on the case, there is no resolution being made, that neglect or delaywill be sub+ect of mandamus. hat would be then compelled is the resolution of the case, but not theresolution of the case one way or another. That is within the discretion of the investigating publicprosecutor.

@9B here there is a resolution already against the offended party, the offended party may resort to any ofthe following remedies>

a. File a motion for reconsideration with the provincial or city prosecutor C the head of the officewho may then assign to another prosecutor a review of the resolution in ?uestion

b. File a petition for review with the office of the %ecretary of usticec. File again a criminal complaint against respondent inasmuch as this would not bring about

double +eopardy. This is done to avail of a different investigating prosecutor.d. File a criminal case against the public prosecutor pursuant to #rt 9A= on dereliction of dutye. File a civil action for damages pursuant to #rt 98, 500 against the investigating prosecutor f. File a petition with the city or provincial prosecutor that another investigating prosecutor be

assigned to handle the 2I of the case

These are the suggested list of redress that the offended party may take against a biased investigatingprosecutor.

@(B 3n the other hand, there may be a situation where the evidences adduced during the 2I are ?uiteinsufficient to establish a prima facie case. #nd here, the investigating prosecutor adopted a resolutionagainst the respondent or the filing of an information in court against the respondent C the resolutioncontaining some gratuitous or baseless statements. hat is the remedy available to the respondentGThis was asked in one of the recent bar exams. Day a respondent en+oin the filing of a criminal case incourt. In a previous ?uestion of this given in remedial law, ?uestion '> Day a petition for in+unction orprohibition be filed to stop the filing of an information in courtG/

7enerally 53, because the investigation of a criminal case is a matter of public interest. %o, all criminalcases must be brought for investigation and if necessary for filing to resolve whether indeed a crime

had been committed. "owever, there are exceptions to this. $ou may have gone across this case of!rocka vs. %ecretary Enrile. This ruling of the %0 enumerated instances where the respondent mayseek redress against the investigating prosecutor. I will advise you to go over those instances. Thereare more than 'A. hen you review, pay attention to the exceptions and not the general rule. 354$T"E EH0E2TI35#4 I44 !E #443E6 T3 2#%% T"E !#R, #56 T"E$ #RE 354$ %3 IF T"E$53 T"E EH0E2TI35%. %ome of the exceptions are>

a. here the filing of the information in court would mean making use of the strong arm of the lawin harassing the respondent

b. hen the officer filing the information has no authority to do so. In a case where the chief ofpolice who ordinarily is the prosecuting officer in a municipality @but that is only true if there isno municipal prosecutorB, the chief of police filed the criminal complaint with the DT0. Thecourt docketed the same and served the accused for arraignment. The accused filed a motionto ?uash on the ground that the officer who filed the information had no authority to do so. Thechief of police realied that he was not he who should file but the municipal prosecutor. %o, hefiled a motion to withdraw the criminal case that he filed. The DT0 denied the motion towithdraw invoking the ruling in the case of 0respo thinking that while the case is filed in court,the +udge has ac?uired exclusive +urisdiction upon the case. The %0 pointed out the filing is nulland void. The court has no authority to proceed because the officer who filed the case in courthad no authority to do so. %o, it was error for the trial +udge to deny the withdrawal of the case.Even without that withdrawal being granted, the court cannot proceed on that information

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because there was a municipal prosecutor and it is within the authority of the municipalprosecutor to file the case.

In one of the recent decisions of the %0, the 2I was conducted by the municipal trial +udge.This was before the amendment dis)authoriing courts of the first level from conducting 2I hasbeen effected. The case was filed with the RT0. The accused moved to ?uash claiming thatthe DT0 +udge had no authority to conduct the 2I. the party interested to prosecute therespondent for libel contend that since the libelous material was published and situated in thatmunicipality, the crime should be determined in that municipality. %0 ruled the filing of the caseis not valid. #nd the %0 called attention to the last paragraph of #rt (:A of the R20 which laiddown a specific rule that in cases of printed or written defamation, 2I thereof must only beconducted by the city or provincial prosecutor in the capital of the province where the crimewas committed, not necessarily in the municipality where the same was committed.

$ou take note of this. This is deemed the common rule but only true in cases of written orprinted defamation. Dore so, that last paragraph of #rt (:A because this case had not yet beengiven in the bar. $ou may be thinking all along that since it is committed in the municipality, thecriminal complaint may be investigated by the municipal prosecutor assigned there. This rulingalready settled the issue. 3nly the prosecutor-s office in the capital of the province where thesame was committed is competent to conduct the 2I by virtue of the provision of #rt (:A.

2rovisions of the R20 are of substantive nature so you must be aware of the rule that in caseof a conflict between procedural law and substantive law, substantive law shall prevail. 3n thatstrength, the %0 upheld the validity of that provision in the last paragraph of #rt (:A.

c. here a pre+udicial ?uestion is sub +udice.

$ou must know under the new Rules of 0riminal 2rocedure, that the concept of a pre+udicial?uestion now is different from the concept of a pre+udicial ?uestion before. %o you may bereading +urisprudence which were resolved under the old rule. !e careful on this point. *nderthe new rule, although a ?uestion of law or of fact may be determinative of the guilt orinnocence of the accused in a criminal case but the same was raised in a civil case, the civilcase would involve a pre+udicial ?uestion that would bring about the suspension of theproceedings in the criminal case only if the civil action was filed before the criminal action was

instituted.

!efore, as long as there is an issue raised in a civil action which is intimately related to thedetermination of the guilt or innocence of the accused in a criminal case, then that ?uestionmust be resolved by the tribunal where the civil action was filed, the criminal action may besuspended because that would bring about a pre+udicial ?uestion, regardless of whether thecriminal action was filed before or after the civil case.

5ow, that is no longer applicable. The pre+udicial ?uestion under the new rules would only berecognied if it was raised in a civil action filed before of the criminal action. The reason givenhere is that unscrupulous lawyers tried to file a civil action +ust to arrest the criminalproceedings on the ground of pre+udicial ?uestion C +ust to allow time for the accused tonegotiate and bring about the settlement of the criminal case. %o now, any civil case filed after

the criminal action has already been instituted cannot be invoked as a pre+udicial ?uestion.

5ow relative to this, common issue raised in a criminal case for bigamy is a civil action filed toannul the marriage on the ground that the consent of the accused was obtained throughduress. #ny ground that would vitiate consent would render the marriage in ?uestion invalid. %othe accused would try to show that it was not voluntary on his part to have entered into thatbigamous marriage C that he was sub+ected to duress. hether he will e answerable forbigamy or not will depend on whether the second marriage was really solemnied out ofduress. %0 ruled that in view of #rt ;A of the Family 0ode, any such civil action for theannulment of a marriage cannot be a pre+udicial ?uestion anymore to a charge for bigamybecause under said article, +udicial declaration of nullity is necessary. %o in the event that hedesires to get married, if he had entered into a former marriage, he should first initiate asummary proceeding in court for a declaration of that nullity. ithout that, no more. #nymarriage had without a previous declaration of nullity of any previous marriage is not valid asfar as invoking this to ward off a case for bigamy. %o now, there is no more pre+udicial?uestion. These are procedural. #lthough there may really be a reason to consider the formermarriage null and void ab initio, it cannot be invoked without any +udicial declaration of nullty,but for purposes only of re)marriage.

5ow, here you must have been informed of two consecutive cases> one is this case of Dercadovs. Tan where the parties entered into a marriage that was solemnied but without anapplication for a marriage license. 5ow, you know that this is a re?uisite without which the

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marriage is null and void. The parties considered the marriage as null and void because theydid not apply for a marriage license. %o they simply re)married. The man was prosecuted forbigamy. "e invoked the fact that there is no marriage to annul because there is no marriagethat took place since there is no license. %0 ruled he is liable for bigamy.

In a subse?uent case, however, this case of Durigo, the parties filed everything to comply withthe marriage except that there was no marriage ceremony. !ut they lived together. !ut then theman contracted a subse?uent marriage. %o the old wife filed a case of bigamy. %0 ruled thereis no bigamy because the marriage is null and void. There is no marriage at all because therewas no marriage ceremony conducted. "ence, #rt ;A of the Family 0ode does not applybecause that provision presupposes that there was a marriage. #bsent that public declarationmade by the parties during the marriage ceremony that they take each other as husband andwife, this ruling in the Durigo case held that they never intended to take each other as husbandand wife. %ince there is no marriage and there is nothing to annul.

!ut the point is that the ruling in Dercado vs. Tan where the marriage is null and void stands inthe same footing as this one. !ut in this later case, the %0 said no marriage because there isno such ceremony where the parties have proclaimed publicly that they take each other ashusband and wife. hen they lived together, that means that both had agreed that they will livetogether without the benefit of marriage. They only refrained from declaring that publicly. That

is the spirit of the ruling.

d. here double +eopardy is clear. The filing of a subse?uent information will bring about double +eopardy because that will be a violation of the fundamental law.

e. here the information was made on a penal law that had been ?uestioned as invalid orunconstitutional.

$ou recall this case of plunder against Erap. This was ?uestioned in the %0 asunconstitutional. #nd so the %andiganbayan cannot proceed then. To proceed would bringabout a petition for prohibition because that issue had not yet been resolved.

f. here the officer who caused the filing of the information in court acted with grave abuse of

discretion

g. hen the criminal case filed clearly shows that it is one of persecution rather than one ofprosecution

In that case filed against Diriam 6efensor)%antiago, while she was head of the !I6, she wascharged for violation of the #nti)7raft and 0orrupt 2ractices #ct. #nd in order to prevent herfrom posting bail, (9 informations were filed for the (9 applications filed by aliens for alienlegaliation stay in the 2hilippines. %o she filed a petition with the %0 to en+oin the%andiganbayan from proceeding to take cogniance of the (9 informations. 3therwise, shewould not be able to post bail for (9 counts of violations of the #nti)7raft and 0orrupt 2ractices

#ct. #nd it is here where the %0 ruled that the crime imputed to her is a continued crimebecause she must have signed the (9 applications in one sitting in the same pace and at about

the same time and all her approval therefore was purportedly a violation of the alienlegaliation law which in turn corresponds to a violation of the R20. %o the high court said onlyone information is re?uired. 5ow, this is a case where the charge was made more apersecution rather than one of prosecution. #lso, the petition for prohibition may be predicatedon the first ground, the use of the strong arm of the law against the respondent.

h. here there is no clear prima facie case and a motion to dismiss has been denied without anyplausible reason, the investigating prosecutor may be en+oined from proceeding with theprosecution.

5ow the remedy available is to file a petition for prohibition or @9AA:A;9;)A' A:>AAB a petition for reviewwith the %ecretary of ustice. This is recognied even under the new Rules of 0riminal 2rocedurewhich mandates the suspension of the arraignment. %o, under Rule '':, you see there in %ec '' that ifthere is a petition for review with the 3ffice of the 2resident or of the 3ffice of the %ecretary of ustice,the arraignment must be suspended. !ut there is a proviso there which practically made the provisioninutile.

5ow on this remedy, the common pressure there is where the investigating prosecutor filed the casealready in court. The respondent against whom the resolution was made, files a petition for review withthe 3ffice of the %ecretary of ustice. "e is allowed '& days to do so. !ut the prosecutor generallyeven knowing that there is a petition for review filed with the %ecretary of ustice pretends

@9AA:A;9;)

A' A=>'AB by filing the information in court. %o, the information in court was already filed even before

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the %ecretary of ustice had reviewed the case. 5ow, eventually the %ecretary found that there is noprima facie case. %o the %ecretary will make a resolution directing the prosecutor-s office concerned towithdraw the information filed in court.

There are so many instances of this such as accusing the respondent of estafa whereas the factswould clearly reveal that it is only a loan because there are periodic payments of specific amountsindicative that they are interest for the amount. !ut through some manipulation and connivance with theprosecutor-s office, where the money lender is in collusion, the prosecutor filed a case of estafa. 3n thebasis of that unexplained periodic payments of the same amount, the %ecretary ruled that these areindicia of a loan and therefore, the transaction is civil. %o, this resolution of the %ecretary of ustice wasforwarded to the prosecutor-s office. The prosecutor now files a motion to withdraw the information. Thepresiding +udge who was also bought denied the motion to withdraw and instead proceeded to trial.

This situation has not been categorically resolved by the %0. In that case of 0respo vs. udge4eodegario Dogul, which up to now is being cited every now and then @and you must be aware of that,if you do not know that you read itB, that although the case or the resolution of the investigatingprosecutor was raised to the %ecretary of ustice and the latter resolved to order the withdrawal of theinformation, the same cannot +ust be withdrawn without approval by the +udge of the court where theinformation was filed. %o in this case of Dogul, the +udge does not want the information to bewithdrawn. The +udge would rather look into the evidence against the accused. This is simply to honor

the rule that when the case was filed in court, the court ac?uires +urisdiction over that case. Theauthority of the prosecutor-s office in determining whether there is a prima facie case or not alreadyceases. It is now the court which has a say on what to do with the case.

The practice before that after a 2I, the information that was filed in court, through some negotiation, therespondent was able to get a favorable attitude from the prosecutor so he again filed a motion for re)investigation. !efore that motion for re)investigation may be filed with the same prosecutor-s officewhich conducted the earlier 2I, and invariably in all cases where there is this motion for re)investigationand the prosecutor-s office conducted a re)investigation, that investigation came up with a finding thatthere is no prima facie case. hereas, in the earlier resolution, the resolution was categorical that therewas a prima facie case. #nd you know what is the reason that prevailed in the prosecutor-s office tomake a complete turnaround of the earlier resolution. #nd that is why, this 0respo case, because the

+udge knew the manipulation that has been going on in the prosecutor-s office. %o the +udge stood pat

and proceeded to try the case.

The trial prosecutor did not want to prosecute because he is afraid that he might be administrativelycharged for insubordination since all the prosecutors are under the %ecretary of ustice. so the?uestion arose> who will prosecute the caseG 5obody from the prosecutor-s office would want to handlethe prosecution. The %0 suggested that the trial +udge should re?uest from the prosecutor-s office ofthe 6epartment of ustice to send a special prosecutor to undertake the prosecution of that case,where the resolution of the %ecretary of ustice calls for the withdrawal of the information but the +udgedid not want to allow a withdrawal. The high court recognied the authority of the +udge to allow themotion to withdraw or to deny the same. #nd if no state prosecutor is available or is willing to undertakethe prosecution because all of them are under the %ecretary of ustice, the %0 suggested that theprivate prosecutor should be directed by the court to handle the prosecution but the public prosecutorshould always be there. The private prosecutor cannot by himself without the public prosecutor being

present in court to conduct the trial of the case. This is how this matter has been resolved by the %0.

!ut even if the %ecretary of ustice resolves that there is no prima facie case, unless the +udge is alsoinfluenced to allow the withdrawal, the +udge may deny the same and so the respondent who is nowaccused in court will be under the same harassment. !ecause the court did not allow the withdrawal,trial will proceed.

5ow, in one of the recent cases on this, the %0 intimated although not categorically @sometimes the %0made resolutions when we do not know what the court wantedB. The %0 suggested that while it iswithin the prerogative of the trial court to deny the withdrawal of the information, that denial must besupported by substantial evidence to demonstrate that the denial was not whimsical or capricious. %o,in resolving to deny the motion to withdraw the information, the court must state reasons why the courtdid not want the withdrawal of the information. #nd that denial by the court must show that indeed thereis a prima facie case and the order of denial must sustain the facts on record that would indicate thatthere was a prima facie case. %o, this is the current resolution of the situation. This is one of the trying?uestions in the practice of law involving criminal issues.

e now go back to the filing of the information in court C the rule on where the criminal action shall be instituted,now %ec '& of Rule ''A. The general rule is that a criminal action should be instituted in the proper court of theplace where the crime was committed. This rule applies to the so)called non)continuing crime. !ut if the crime istransitory, the criminal action may be instituted before the proper court of any of the places where any of theessential ingredients of the crime took place. This applies to the so)called continuing crimes. #nd this marks the

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difference between the terms continued crime/ and continuing crime/ which is a matter of venue. !ut once thecriminal case is filed in any of such courts, the same will exclude +urisdiction of all other courts. In short, you will seethat it is only a continuing crime for as long as the criminal case is not yet filed. 3nce it if filed, no more. %o, youcannot change that anymore unless by further petition to the %0 to change the venue of the crime.

If the crime was committed on a moving motor vehicle, a railroad train, or aircraft, the criminal action may beinstituted in the proper courts of any of these places>

@'B #ny of the proper courts in the place in the point of departure.@9B #ny of the proper courts in those places where that vehicle, train, or aircraft passed in the course of

such trip.@(B #ny of the proper courts in the place in the place of arrival.

If the train was stationary, it has not yet been dispatched for a certain trip, and somebody was sleeping inside thattrain while still in the terminal, an enemy killed him there, you do not apply this rule because it is not in transit.

5ow, similarly, in a criminal case committed on board a vessel while it is in the course of voyage, not a vesselwhich is anchored, criminal action may be instituted in the proper court of any of these places>

@'B In any of the cities or municipalities or provinces through which the vessel passed in the course of such

voyage@9B In the proper court of the place of the first port of entry of that vessel in the course of that voyage.

$ou will notice that the point of departure in the case of a crime committed on board a vessel is not included. %o, ifthe vessel or an inter)island vessel bound for 0ebu, while at the 5orth "arbor in Danila when the vessel was aboutto sail, already moving, and somebody was killed there, you do not apply this rule. 2oint of departure is not includedwhen the vessel is already sailing. !ut when the vessel is still stationary and has not yet begun to sail, then theprosecution will be in Danila.

"ere is a case where the inter)island vessel already left the 5orth "arbor in Danila and while it was already underway, the pursers started checking the tickets of the passengers. They came upon one who boarded the vesselwithout any ticket at all C a stowaway. #t that time, the vessel was already within the vicinity of the territorial

+urisdiction of Dindoro. The pursers or steward of the vessel bodily seied the stowaway and threw him overboard

and drowned. hen the vessel reached its port of entry in 4eyte, the relatives were expecting this passenger tocome down the vessel but never showed up. %o the relatives started investigating and there were passengers whosaw that there was somebody thrown out of the vessel. %o, a radio message was sent to Dindoro and this wasconfirmed that there was a dead body found bloated on the island of Dindoro. The relatives went to Dindoro toidentify the body. They filed a case in the RT0 in 4eyte. The accused stewards or pursers moved to ?uash thecriminal case claiming that since it is established that the crime was committed within the province of Dindoro,criminal prosecution must be in Dindoro, not in 4eyte. !ut the prosecutor cited this provision that in case of a crimecommitted on board a vessel in the course of its voyage, one of the alternative venues is in the proper court of theplace of the first port of entry of that vessel in the course of that voyage. #nd that first port of entry was in 4eyte. %othe trial court denied the motion to ?uash and this was raised to the %0.

The %0 ruled that the crime must be prosecuted in the place where it was committed is the general rule. It is notapplicable to a crime committed n board a moving vehicle or on board a vessel in the course of its voyage. Even

though the particular territorial +urisdiction where the crime was committed may be identified, for as long as thecrime was committed in a moving motor vehicle or in a sailing vessel, it will be the rule pertinent to a moving vehicleor a vessel in the course of its voyage that would govern. #nd under this subsection c of %ec '&, in the case of acrime committed on board a vessel in the course of her voyage, criminal action may be instituted in the proper courtof any of the places where the vessel passed through in the course of its voyage or in the proper court of the placeof the first port of entry of that vessel. 5o reference is made to the particular territory where the crime could beidentified as having been committed. This has not yet been given in the bar.

5ow, with the filing of the information in the court, there is the implied institution of the civil action arising from thecrime. !ut there are exceptions there. %o you pay attention to the exceptions>

@'B where the offended party renounced recovery of the civil liability1 or@9B where the offended party already had filed a separate civil action ahead of the filing of the criminal

action1 or@(B where he reserved expressly the filing a separate civil action.

5ow, what is important here is where the civil action mandatorily goes with the criminal action. In other words, nocivil action is allowed. 5ow, this is true under !2 99 where the new rule does not allow a reservation. The civilaction will go with the criminal action. 5ow also in the %andiganbayan, under the rules of this court, no reservationfor the filing of a separate civil action is allowed. %o, in these cases, the recovery of the civil indemnity arising fromthe crime is always part of the criminal prosecution. There is, therefore, a need for a private prosecutor. 2rivateprosecutor undertakes to safeguard the private interests of the offended party. 5ow, where the offended partyproceeded with the trial without any private prosecutor, the public prosecutor will +ust present evidence and it-s up to

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the court to rule what amount of indemnity may be awarded. It does not follow, however, that because there was noprivate prosecutor that the court will not award any civil indemnity. #s long as the recovery of the civil indemnitygoes with the criminal action, the trial court must make a final resolution as to the civil liability of the accused. !utthis is only true if the accused would be convicted. The basis of civil liability in criminal cases is premised oncriminal liability. 6o not forget #rt 'AA of the R20 that the civil liability arises from criminal liability C without criminalliability, there is no civil liability.

%ignificantly, under the former Rules of 0riminal 2rocedure, all damages arising from the act or omission chargedare recoverable in that civil action. #nd the offended party is even precluded from filing another civil action for therecovery of another civil liability ) all kinds of civil liability arising from the act.

5ow, the rule uses offense/, not act/ C hence, all civil liability arising from the crimes is now deemed instituted. %o,this has not foreclosed the right of the offended party to file a separate civil action where the law authories underthe 500 the filing of a separate civil action. %o now, you have that situation in the 500 where a separate civilaction may proceed independently of the criminal action. $ou take note of that change again.

It may be observed by you during your study of criminal procedure that the rules are being sub+ect ofexperimenting. They change it every time they feel. %ometimes for no reason at all, they +ust change it. hat youmay be reading now under the old decisions may not +ibe with the current Rules of 0riminal 2rocedure. !e onguard on this. 2rimarily, read the rules. hatever you read that may not be consistent or compatible with these

rules, you consider it as already displaced. 6o not believe everything that you read there. %ome of thesecommentaries still carry those decisions which have already been abrogated.

5ow, with the filing of the information in court, next step is the issuance of the warrant of arrest.

5 th step _ ssuance of a warrant of arrest upon

preliminar$ e-amination &$ the .ud!e (Rule 113)

5ow, relative to this, 2E must be conducted by the court which will issue the warrant of arrest. This is the onlyimportant aspect of the rule on arrest. The more important here is arrest without a warrant and we have coveredthat up in the first session. There is no important problem arising from an arrest done by virtue of a warrant of arrest

because a warrant of arrest is issued by the court. #nd the court are presumed to have issued a warrant acting withregularity. The presumption is that the court conducted 2E. %o, unless it would be shown that the court did notreally conduct 2E for there is no transcript at all that would indicate that a proceeding to that effect was conducted,then a motion to ?uash the warrant of arrest would be proper.

If the warrant of arrest was null and void and pursuant to that warrant, a search was made on the person arrested,that search which may yield incriminatory evidence against the person arrested will not be admissible in evidence.here the search was made incident to an invalid arrest, whether by virtue of a warrant that is null and void or byvirtue of a warrantless arrest, any incriminatory evidence against the person arrested is not admissible in evidence.They are regarded as the fruit of the poisonous tree. If there is anybody who should honor the mandate of thefundamental law, I suppose it should be the public officers who are entrusted with the enforcement of the law."owever, although such incriminatory evidence is not admissible against the person arrested, the timeliness ofassailing the evidence must be observed. #nd I mentioned to you before that under the rules now, this must be

assailed before the accused would enter a plea.

%o what does this meanG # motion should be filed by the defense counsel for the suppression of any of thoseincriminatory matters that were taken from the accused incident to the invalid arrest. %o if that motion was not filedand that matter was introduced during the trial, marked accordingly for identification purposes as evidence duringthe trial. hen the prosecution is about to rest its case, it will make an offer of this evidence. The rule that theob+ection must be raised at the time the evidence is being offered as a rule of evidence, does not apply to thisspecific situation because you have a special law here that the non)admissibility of the evidence must be raisedbefore the accused was arraigned and had entered a plea. 6o not miss this point. 6o not apply the general rule ofevidence where the ob+ection should be raised when the evidence is offered.

In a criminal case, the issue for the admissibility of any evidence obtained incident to an arrest whether by virtue ofa void warrant or a warrantless arrest must be raised had entered a plea. This is one point that you should not

overlook.

I call your attention to %ec 9: of Rule '';, under the rule on bail. $ou take note of that section. It is a new rule. !utthat was the rule in fact in '<('. That was the rule involved in the case of 2eople vs. @9AA:A;9;)A9 ;<>'&B nowagain reiterated after so many experiences C trial and error method C the high court realied that that is the betterrule ) the rule prevailing even before you were born. That-s why it-s very hard for you to follow this rule, indicativethat these people have nothing to do. #t one time they changed the rule that there is no need for a reservation.hen a criminal action is filed there is no need for a reservation of the civil action. This particular provision of lawhas been changed three times already. 5ow we are back to the necessity of making a reservation.

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*nderstand what is meant by recogniance. hen is bail a matter of right or discretionG #nd under %ec & of Rule'';, you underscore there a new provision that in the case where the accused was charged for a non)bailableoffense but the trial court after trial found him liable for a bailable offense, any application for bail can be filed andresolved only in the appellate court.

APRIL 26, 2006

%ome of the provisions of the rules are for the court to apply. $ou need only be selective of what a lawyerencounters under that particular step which the lawyer is re?uired to observe or comply with. It may be fatal to thecontinuation of his case.

5ow, yesterday, we have taken up motion to ?uash. I said the tendency should be to deny the motion to ?uash andorder the prosecution to amend if the ground for the motion to ?uash ca be corrected by mere amendment. This isthe attitude because after all, even if the motion to ?uash will be granted, the prosecution can re)file the informationand there will be no double +eopardy.

"owever, I mentioned to you two grounds where the court will have no choice except to grant the motion to ?uashand that will be the end of the proceedings. #nd these are>

@'B when the criminal action or liability is already extinguished so there is no basis to prosecute

@9B when the accused would be placed under double +eopardy. %o this means that he has been previouslyac?uitted or previously convicted or the case against him has been terminated without his express consent.This will include not only the same crime but even those necessarily included therein. I told you under Rule''8, the most important here is the re?uisites of double +eopardy and the exceptions thereto where nodouble +eopardy will attach.

%ignificantly, in the second situation where no +eopardy will attach ) where the graver offense became known to theprosecutor after the original information was already filed, the new rules re?uire that this exception will arise only ifthe graver offense became known to the prosecutor after the accused was already arraigned in the originalinformation. The rule before was different. It is enough that the prosecution learned of the graver offense after theoriginal information was already filed. The present rule is better and this is more in keeping with the protection ofdouble +eopardy. This means to say that if the prosecutor gets to know that a graver offense developed as aconse?uence of the original offense, the prosecutor should not proceed with the arraignment of the accused. !efore

such arraignment, the prosecutor should see to it that an amended information will be filed. %o tat there will be nodiscussion about double +eopardy or otherwise. #nd if it is shown that the prosecutor already learned that a graveroffense developed even before the accused was arraigned, if he allowed the accused to be arraigned on theoriginal information, the accused can no longer be made answerable for the graver offense that developed beforehe was arraigned because now the exception is limited only to the graver offense that became known to theprosecutor after the accused was orderly arraigned.

%o if the accused had not yet been arraigned the implementation of the new rule that the prosecutor should notallow the arraignment to proceed but in turn move for the suspension of the arraignment to allow him to amend soas to obviate any discussion about double +eopardy. In other words, that second exception to the rule on double

+eopardy had been constricted or limited under this current revised Rules of 0riminal 2rocedure. 6o not think thatthe new rules remain the same as the old one. There is that significant change.

5ow, on the arraignment and plea, under the current rules, the accused must be present in court during thearraignment and the accusation shall be read to him in person. !efore, the arraignment may be done even in thepresence of the defense counsel only provided that the defense counsel would manifest to the court that he hadalready informed the accused fully well about the accusation and the accused after having learned therefor waivesthe reading of the information 5ow, there is no room for such waiver anymore because the prevailing Rules of0riminal 2rocedure now re?uire the accuse to be present in court during the arraignment and that the informationbe read to him in a language known and understood by him.

#nd the plea thereto must come from his own mouth, not from the mouth of the lawyer or anybody else. This ismade strict because you must bear in mind the right granted by the 0onstitution that a person accused of a crimemust be informed of the nature and the cause of the accusation against him is complied with during thearraignment. %o, if the arraignment was defective there would be a failure of compliance with this 0onstitutionalre?uirement that the accused be informed of the nature and cause of the accusation against him and proceedingthereafter would be invalid because it would imply that the accused was made to face trial without knowing thenature and the cause of the crime for which he has been charged. #nd that is why the new rule has been changedto make it more stringent and responsive to this 0onstitutional re?uirement.

It is not enough that the information be read to the accused. The rule re?uires it must be read to him in a languageknown to him and in a language understood by him. %o, although the accused knows English, if he cannot know the@9AA:A;9:)A' 'A>;&B English in which the information was formulated, the accusation must be translated to adialect understood by him. #nd this is the duty of the court to see to it that in the arraignment, the accused is fullyinformed of the nature of the accusation against him and that he fully understood the same. #nd not +ust an

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ordinary reading of the information. The court will have to ask the accused in his arraignment what he understood inthe English language, what is the language or the dialect he is familiar with. #nd if the accused manifested that hedoes not know so much the English language, it is the duty of the court to secure one who would translate theinformation to the dialect understood by the accused. This is a pivotal point on the validity of the proceedings that@9AA:A;9:)A' '9>'AB thereafter.

ust to show you the importance of this> in a case where the accused committed a crime while he was alreadyserving his sentence, he is a ?uasi)recidivist. In fact the accused had previous criminal records and previoussentences already served. In short, he is familiar with the procedure during the arraignment. %o, when theinformation was to be read to him and he entered a plea of guilty, the court informed him that before the crime wascommitted, while he was serving sentence, the law re?uires that the penalty to be imposed if he would be provenguilty would be the maximum C death, because it was a case for murder. 6espite the effort of the +udge explainingto the accused the implications of his plea of guilty and the conse?uence that would follow, the accused, like apolitician, was looking around the gallery smiling as though he is campaigning. %o the court called his attention. "ekept on smiling and scratching his head. %o the +udge was peeved and the +udge directed the court stenographer toput into the record that even with the clarification being made by the court, the accused was always smiling )indicative that he is a cold)blooded offender who does not seem to have any remorse because the crime charged isa capital offense. %o, eventually, the court rendered a sentence imposing the death penalty. The case automaticallyreached the high court. #nd the high court read the transcript of the arraignment to make sure that there iscompliance with what is re?uired to inform the accused of the accusation against him. #nd the high court noticed

there the transcript as dictated by the +udge making it of record that the accused was always smiling. Even whenthe +udge was explaining, the accused didn-t seem to mind at all. "e was always smiling looking around the galleryfor some supporters. 5ow, with that note, the %0 nullified the plea and re?uired the trial court to enter a plea of notguilty and proceed with the trial with dispatch. The reason as presented in the minute resolution of the %0, that theaccused verily did not understand the nature and conse?uences of his plea because if he understood this, hecannot afford to smile anymore. %o that smile which was even made of record was capitalied by the %0 asindicative that the accused does not understand because if he understood, he cannot afford to smile anymore. #nysuch indication would invalidate the arraignment and instead a plea of not guilty would be entered. The court mustproceed with the trial.

5ow, because of this case, the rule has been changed and this was to conform with the +urisprudence laid down bythe high court in some cases. In that landmark case of 2eople vs. 0amay, the %0 laid down mandatoryre?uirements when an accused is being arraigned for a capital offense. This is now embodied in the rules itself but

@9AA:A;9:)A' '=>9&B. There are three mandatory re?uirements>@'B the court must conduct searching in?uiry into the voluntariness of the plea and the full comprehension

thereof by the accused@9B the court should re?uire the prosecution to adduce evidence of the guilt of the accused ) establish his

precise culpability@(B the court should ask the accused if he wanted also to adduce evidence and if the accuse so desires, the

court must allow him to present evidence.

This has been reiterated in all cases where the accused was charged for a capital offense and on arraignment, theaccused entered a plea of guilty. In one of the recent decisions of the %0, the connotation of searching in?uiry/was clarified. #nd the high court said if the rules upon the court

@9AA:A;9:)A' 9'>9AB to in?uire into the

@9AA:A;9:)

A' 9'>9=B circumstances of the accused where he studied, to find out his frame of mind, how he was arrested, howhe was incarcerated. #nd the %0 said many of these offenders enter a plea of guilty out of desperation because

they do not want to stay any longer inside the +ail. The court should in?uire how he is treated in +ail because his pleaguilty may be in a way coerced by those who are inside the +ail where he

@9AA:A;9:)A' 99>9:B. The reason

@9AA:A;9:)A' 99>(;B to decide death rather than continue living. %o, if the reason given is not really convincing, thecourt should to accept that plea. The court should enter a plea of not guilty and proceed with the trial of the case.This is the prudence that is dictated by the conduct of the so)called searching in?uiry. %o, if the +udge asks him> youare entering a plea of guilty so that means you are willing to face the death penaltyG #nd the accused replies> Icannot stand the nagging of my wife anymore. That is not a convincing reason to declare the death penalty. %o thecourt will enter a plea of not guilty and schedule the case for trial. This is one case dictated by the term searchingin?uiry/ to find whether there is really that substantial reason for the accused to go against his instinct of self)preservation. %o this is abnormal for a man, instead of fighting for his life, would be the one to decide that his life beended.

%o, only when the court finds that there is really enough reason for him to decide this, will the court accept the plea.!ut even then, the second re?uirement that the court must comply C re?uire the prosecution to adduce evidence toshow that he is really guilty, that he is not only being burned out. #nd that evidence is need to establish the precisedegree of culpability of the accused.

In a case where the crime involved is not a capital offense, the rules, you should know, uses the words mayre?uire evidence to be presented/. !ut if it were a capital offense, the provision uses the general mandatory termshall/ to emphasie that this is mandatory. In a case where the accused was charged for homicide because thepenalty for this crime is divisible, the court wanted to be guided as to the proper periods the penalty should beimposed. %o, it then re?uired the prosecutor to adduce evidence despite the fact that the accused already entered a

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plea of guilty beyond the explanation made by the court. #fter the prosecution had presented evidence on thecircumstances that led to the killing, the court asked the accused if he also wanted to say something. #nd theaccused said yes so he was made to take the witness stand. 5ow, while there, the accused narrated the bad bloodthat the victim had been harboring against him. #nd that he had acted in a sort of self)defense. 5ow, after that thecourt ordered the case submitted for decision. #nd eventually, the court rendered a +udgment of ac?uittal over andabove the plea of guilty on record. %o the prosecution ?uestioned the validity of that +udgment of ac?uittal beforethe %0. The accused moved to dismiss the petition before the high court claiming that since the +udgment is one ofac?uittal it is immediately executory and therefore a review thereof would place the accused in double +eopardy.The %0 took exception to this that that is so only if the court rendered the +udgment within the exercise of its

+urisdiction. here the accused entered a plea of guilty, the court could not simply render a +udgment of ac?uittal.That +udgment must proceed from a trial. %o since the decision ac?uitting the accused was null and void for havingbeen rendered without or in excess of +urisdiction, the %0 re?uired the trial court to reinstate the case and proceedto trial. #nd here it said that not only the accused has a right to due process. Even the %tate has a right to dueprocess. #nd therefore, before any such ac?uittal should be rendered, the court should have heard the prosecution@9AA:A;9:)A' 9<>;AB.

5ow this would tell you that if the accused entered a plea of guilty, the court cannot render a +udgment of ac?uittal.This is incompatible with the admission of guilt. 5ow, if there would be a proviso to hold the accused not criminallyliable, %0 said that the earlier plea of guilty should be withdrawn and replaced with a plea of not guilty. !ut for aslong as that plea of guilty is on record, the court cannot simply render a +udgment of ac?uittal because that plea of

guilty by itself is already an admission that a crime had been committed.

In a later case, however, Dendoa vs. 0#, @the earlier case is the one of 2eople vs. !alikasanB, there were two whowere accused for a crime. 3ne of the two on arraignment entered a plea of guilty. The other one entered a plea ofnot guilty. The court instead of imposing the penalty on the accused who entered a plea of guilty set the case fortrial. The prosecutor did not manifest on record that the trial is in respect of the accused who entered a plea of notguilty. %o what appears is that the case as a whole was placed on trial. %o the two accused were brought to courtincluding the one who entered a plea of guilty. The trial ended with the ac?uittal of both accused. %o theprosecution following this ruling in the !alikasan case assailed the validity of the +udgment ac?uitting even theaccused who already entered a plea of guilty. The high court said there is no rule nor law which prohibits a courtfrom ac?uitting an accused +ust because the accused had entered a plea of guilty. #s long as a trial of the caseproceeded and was conducted, if the evidence adduced in the trial would indicate that it is not the accused whocommitted the crime or that the evidence against the accused does not meet the standard of proof beyond

reasonable doubt, the court may acknowledge it by sentencing the accused for the crime where the evidenceshowed that it is not the accused who committed the same +ust because the accused had earlier entered a plea ofguilty. The fact that the evidence would convince the court that the accused should not be made criminally liablewould suggest that the plea of guilty was improvidently made by the accused. #nd this is sometimes brought aboutby the promise of the defense counsel especially so if he was a counsel de officio,

@9AA:A;9:)A' (&>AAB where hewould re?uire the accused to admit and lure the accused to a lesser penalty if he would admit.

The difference between the Dendoa case and the earlier case of !alikasan> in the case of Dendoa, trialproceeded but in the case of !alikasan, there was no trial. The evidence adduced by the prosecution was only todetermine the circumstance to guide the court in the imposition of the penalty. %o there is no premise to warrant thefinding of the court that the guilt of the accused was not established beyond reasonable doubt. %o this you shouldknow. $ou may come across these two cases and then you may be led to believe that these two rulings areinconsistent. They are not. The variance lies in the fact that in the earlier case of !alikasan, there was no trial

conducted. 5o evidence was received to assess the guilt of the accused. hereas in the Dendoa case, trialproceeded. The parties adduced evidence establishing their respective positions.

#n accused on arraignment may offer to plead guilty to a lesser offense provided that the lesser offense isnecessarily included in the crime charged. #t one time, the rule on availment was so changed that even when theaccused would offer a plea of guilty to a lesser offense which is not necessarily included in the crime charged, therule allows the court to accept that plea for a lesser offense, even if the lesser offense is not necessarily included inwhat is charged. That only showed that these supposed experts who framed the rules are only experimenting. "owcan you convict a person for a crime for which he is not chargedG *nder that rule before, one who is charged ofrape can be convicted for slight physical in+uries.

This only shows the mentality of some of those lawyers who we have placed in the %0. %ome of their rules arechildish. Imagine the 0hief ustice claiming that the law is unconstitutional. *nthinkable. Especially whenEchegaray was already put to death under that law. Even if it was the facts, he should be coy about it. "e may sayit if he is already gone, not when he-s there. 0hildish. ust like the %ecretary of ustice. "e keeps on saying andsaying something when he is wrong legally. It is not only a display of lack of +udicial knowledge. It is also a displayof lack of common sense. I wanted to believe that I was +ust dreaming. The 0hief ustice uttering that. "e is a goodfriend of mine. !ut I-m beginning to feel that I was wrong. I cannot believe what I was hearing. I would rather thinkthat I was dreaming.

!efore the court can accept a plea to a lesser offense, this must be with the conformity of the prosecutor and theoffended party. That is why, the offended party should be notified of the arraignment and he should appear during

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and unbelievably, the +ustice was citing default. Default is only true in pre-trial in civil cases . %o it is really notonly disappointing but utterly disgusting that we have supposed magistrates who do not even know the law. hatkind of +ustice do we expect from themG "e was citing the rule on default that the failure of the counsel to appear atthe pre)trial is also default citing several rules there. !ut all those cases are civil cases, not criminal cases.

5ow, this is said to be mandatory precisely because the trial court like I civil cases is re?uired to issue a pre)trialorder reciting what were already threshed out during the pre)trial conference and what remains to be taken upduring the trial. In criminal cases, there is no requirement of pre-trial brief ! %o do not commit that mistake. Thisis only re?uired in civil cases. 5ever overlook that in a criminal case, the accused has a right to remain silent. "ecannot be expected to reveal his position in the same manner that a defendant in a civil case is re?uired to do so.That is why in criminal cases, the accused is not re?uired to file a responsive pleading. That is his right C to keepsilent. #nd even if you will not say something, you cannot be beholden C there is no such rule.

5ow significantly, under %ec 9 of the rule on pre)trial, all agreements or admissions made - so stipulations offact - during the pre-trial conference is required to be signed not only by the lawyer of the accused and the

prosecutor but also by the accused himself . This is precisely because of the thrust of such stipulation of facts asviolative of the constitutional right against self)incrimination. If there is any statement or admission there it must atleast show that the accused was fully aware thereof, that he is not merely being made to make the statementagainst his right of being protected against self)incrimination. #nd so it is provided there and re?uires any suchadmission or statement made is not admissible into evidence. %o, although there was a stipulation of facts entered

into during the pre)trial conference, if when the accused is being made to sign he des not want to sign, he cannotbe compelled. Then that agreement or statement even if signed by counsel is not admissible in evidence. This isthe thrust of that %ec 9 of Rule ''=. Take note of that.

"owever, this is true only during the pre)trial conference which is mandatory and therefore even if the accused isnot willing to attend the pre)trial, he is compelled t attend the pre)trial. !ut whatever was taken up in the pre)trialcannot be taken against him unless he has signified his conformity by signing them. If there was any stipulationmade by a lawyer not during the pre)trial but already at the initial trial even without the conformity of the accused,the ruling of the %0 is clear> the lawyer is the attorney)in)fact of the client. There is no rule that would re?uire thatany statement by the lawyer made in the course of the trial must be attested by the client.

%o if let us say, after the pre)trial conference, the court is re?uired to issue a pre)trial order to define the course ofaction that the trial would pursue. In the initial hearing, the prosecutor confronted the defense counsel with certain

documents where he will have to subpoena the bank representative to verify on the authenticity of these bankrecords. !ut the prosecutor offered to the defense counsel that he would not present the bank representativeanymore if the defense counsel would admit that these bank records are authentic. %o the defense counsel, findingno room to deny, admitted. %o this is noted. Eventually, this was used in the +udgment rendered by the court for aviolation of !2 99. # new counsel engaged by the accused challenged this claiming that since it does not have theconformity of the accused, it is not admissible in evidence. The %0 ruled that re?uirement is true only during thepre)trial conference but not those stipulations entered into by the defense counsel in the course of the trial. %o,draw that distinction. The re?uirement that there must be conformity of the accused only refers to statements orstipulations made during the pre)trial conference which is re?uired to be in writing and signed not only by theprosecutor and the defense counsel but also by the accused himself.

ust like in a civil case, the trial court in the criminal case is re?uired to issue a pre)trial order reciting what you havetaken up during the pre)trial conference C the evidences authenticated, the exhibits marked. %o, the trial will be

limited only to those matters which were not threshed out during the pre)trial. That pre)trial order, therefore, isconclusive upon the parties if they do not make any exceptions thereto before the trial began. %o if in the pre)trialorder, the court stated there the documentary evidences adduced by the parties during the pre)trial conference, andthe court says there Exhibit # admitted, Exhibit ! admitted, then actually the stenographer committed an errorreflecting there in the record that Exhibit 0 admitted/ by the accused whereas that was not admitted but the pre)trial order stated among those admitted exhibits that it exists, if the defense counsel would enter into trial withoutcalling the attention of the court that that exhibit was not admitted, he cannot thereafter claim that that exhibit wasnot admitted. This report also the pre)trial order. That is why the rules re?uire the court should recite in that pre)trialorder what were taken up during the pre)trial conference. %o if there is anybody who would take exception withwhat is reflected there, he should do this before the trial has begun. 3therwise, he will be considered waivedwhatever error is committed there.

%o after the pr)trial would come the trial proper. That would be the next step.

17 th step _ 8rial "roper

*nder the rule on trial, the only important matters here are>

Firstly, you will note the re?uirement that a motion to postpone is now required to be under oath .

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5ow there-s the rule regarding the utiliing of one of several accused to testify as a witness for the government Cthe so)called %tate itness Rule. now the mechanics of this.

*nlike before, where it is strictly incumbent upon the prosecutor to determine who among the accused may bedropped so that his testimony may be offered for the %tate against his co)accused. "e is in a way a udas to theother accused. In order that he may not change his mind @9AA:A;9:)A9 ';>'&B after he is dropped, the rules re?uirethat the expected testimony must be reduced into an affidavit form, an oath. #nd the motion to drop him must be inwriting and this will be submitted to the court for the court to determine whether the testimony is really necessary forthe proper prosecution of the offense ) whether the testimony to be given is really of such substance that withoutwhich the other accused would not possibly be convicted. This is re?uired now precisely to obviate corruption thatthe prosecutor may choose one of the accused who can afford to pay then move to utilie him as a witness for the%tate. %o he will be dropped from the information.

There are five conditions that must be met before the court would approve a motion to drop one of several accusedto be utilied as a witness before the %tate. It is therefore the responsibility of the court if the five conditions statedin the rules that the accused who was dropped to be utilied as a witness for the %tate does not really meet theconditions re?uired. !ut even if that were so, the accused cannot be re)accused without going against the rule ondouble +eopardy. Everytime now that the accused who was dropped appears to be the most guilty, it is the trialcourt who is to blame for approving that that accused be dropped and utilied as a witness for the %tate. 3nce he-sdropped without any error on his part, without any shortcoming on his part, will already bring about double +eopardy

to protect him. The protection of double +eopardy will not attach to him if he would not testify in accordance withwhat he made the prosecutor believed would be the tenor of his testimony. That is why there is that affidavit. %o ifhe would go against that, he will be prosecuted for per+ury. It is to be made in affidavit form so that it would besworn to. #s long as the accused who was dropped is willing to testify for the %tate and he is ready to testify, andthe prosecution finding no need to make him testify, he is already protected by the rule against double +eopardy. Inother words, it is not really indispensable that such accused should testify against his co)accused.

here there are five accused and one of them was dropped from the information as originally charged, all the fiveaccused entered a plea of not guilty so trial will follow. !ut the prosecutor realied that he did not have enoughevidence to bring about the conviction of the accused so he negotiated with one of them to be utilied as a witnessfor the %tate. Eventually, this was granted by the court. so, on the date of the scheduled trial, the prosecutormanifested that he is ready and called on the accused who was dropped to testify on the witness stand. The otheraccused felt that they had no chance anymore. %o the defense counsel rose and told the court that his clients are

withdrawing their plea of not guilty and substituting with a plea of guilty. The accused who will be utilied as awitness for the %tate will not testify anymore. The court would tell him, you are excused./ 5ow, that does not meanthat the protection against double +eopardy will not attach. #s long as he is willing and ready to testify, he isprotected by the rule against double +eopardy.

3n the other hand, if the court which is to approve the dropping of that accused denied the motion to drop him andutilie him as a witness for the %tate the affidavit that he had executed and made known to the prosecution how thecrime was committed, cannot be used as evidence in that criminal case. %o, it is not only inadmissible in evidence,it cannot be used even for reference because it was obtained in violation of his right against self incrimination.

*nder the rules, the right of the accused will already come into play even at the arraignment stage. %o, you have inRule ''& the rights of the accused during the trial. 3f these rights of the accused, the more significant is the rightagainst self)incrimination. #lso the right to be confronted by witnesses against him. These are the two rights that

have been made sub+ect of bar problems. %o, read about this. 3n this right against self)incrimination, you musthave heard that the moment a ?uestion is asked on a matter where the accused would invoke the right against self)incrimination, at the outset, the accused should refuse to testify. This should not be confused with the right toremain silent. The right to remain silent allows the accused not to assume the witness stand and testify. If he doesnot like, he cannot be compelled to testify for that would violate his right to remain silent. !ut if the accused hasalready taken the witness stand and a ?uestion is asked of him, he may still invoke his right against self)incrimination. #lthough the right to remain silent is waived by his assuming the witness stand, the right against self)incrimination is not waived. !ecause the right against self)incrimination must be invoked by him when a ?uestionwhich would bring about incriminatory answers is asked of him. !ut I said, at the outset, the accused who has takenthe witness stand should already refuse to answer. If he answered, the right against self)incrimination is waived.

For instance, the accused is charged for forgery, and he falsified the signature of the offended party, when he wastestifying on direct examination, his lawyer asked him> I-m showing to you this document which is purportedlyfalsified. There is a signature here, is this your signatureG/ The moment he answers 53, the right against self)incrimination is waived. !ecause when he gives an answer on that ?uestion, the prosecution will ac?uireopportunity also to show that his answer is a lie. %o even at that point he should say> I refuse to answer on theground that my answer may incriminate me./ !ut if he answered that and on cross examination the prosecutionwould re?uire him> 0an you please provide us with a specimen of your handwritingG/ now he can no longer say> itmight incriminate me so I refuse./ !ecause when he denied that signature he waived his right against self)incrimination. $ou must have learned this, the right against self)incrimination is revoked and the moment it iswaived, further ?uestions may be asked. For the right against self)incrimination is limited only to a matter that wouldbring about penal liability, not civil liability.

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Initially, these were limited only to verbal or oral examination. !ut eventually, the criterion is this> if the accusedwould in effect be made to appreciate evidence that could be used against him, it is covered by the right againstself)incrimination. !ut if the evidence already existed, and the ?uestion is only for the accused to confirm or denythe evidence, the right against self)incrimination does not apply anymore. %o if the accused was charged for forginga signature, there is no specimen signature for which the forgery may be examined and comparison be made, so itwas asked> will you give us a specimen of your signatureG/ "e will be re?uiring to bring about evidence which doesnot exist. That is covered by the right against self)incrimination. %o he may invoke the right unless he has alreadywaived them. !ut if a woman is charged of adultery but the husband who is sterile, so the court re?uired that theaccused be sub+ected to medical examination to find out if she is pregnant, she cannot invoke the right against self)incrimination because that does not apply to that. The evidence is already there. The right against self)incriminationis against re?uiring the accused to fabricate or manufacture evidence that later on may be used against him. !ut ifthe evidence is already there, he is only re?uired to come out with the evidence, the +urisprudence here is that whatis re?uired is only a mechanical act and the rule against self)incrimination does not apply there. The rule againstself)incrimination covers only those that would involve the use of the intellectual faculty of the accused C that whichis brought into existence without his consciousness of making the same. This is the common type of problem givenin the bar. 6istinction when the right governs and when it does not govern.

5ow in the matter of being confronted by witnesses against him, the use of depositions is an exception. !ut that isonly true if the accused is given the opportunity to cross)examine the deponent. 3therwise, it is not admissible.

These are the ones that you should understand.

#nother important point in this stage of a trial is demurrer to evidence. $ou again compare this with demurrer toevidence in civil cases. This comparison had been sub+ect of bar ?uestions already several times so you must knowthe peculiarities of demurrer to evidence in civil cases and criminal cases. For one thing, in civil cases wheredemurrer to evidence is granted, the plaintiff can appeal. !ut in criminal cases when the demurrer was granted, theprosecution cannot appeal because the would bring about a dismissal which will then operate as an ac?uittal.

%o, tomorrow we will be taking up the rule on +udgment, the remedies available to the accused under an adverse +udgment, a +udgment of conviction. Then we will take up the rule on summary procedure in criminal cases.

APRIL 27, 2006

I lectured yesterday on the rule on the motion to drop one of several accused or some of several accused to beutilied as a witness for the prosecution. This is done before trial begins. #nother important fact of this rule on trialis the demurrer to evidence.

5ow, yesterday I told you that you should have a clear distinction between demurrer to evidence in civil cases anddemurrer to evidence in criminal cases. # demurrer to the evidence is nothing but a motion to dismiss the case onthe sole ground of insufficiency of the evidence presented so as to re?uire the accused to present evidence andproceed further to trial. %o in lieu of presenting defense evidence if after all the burden to prove the crime has notbeen achieved, the rules allow the accused, or in civil cases the defendant, to move for the dismissal of the case onthe ground that the plaintiff or the prosecution had not reached the re?uired ?uantum of evidence to hold theaccused for further trial. $ou will note on demurrer on criminal cases is more strict than demurrer in civil cases. Incriminal cases, if demurrer was filed without prior leave of court thereby, the accused waives his right to presentdefense evidence. The case would be then submitted already for +udgment. In short, the accused will forfeit his right

to present defense evidence.

3n the other hand, in a civil case, there is no re?uirement of prior leave of court in filing a demurrer. The defendantas he may file the proper pleading may file a demurrer to the evidence. #nd even if the defendant in the civil casedid not file any leave of court, filing of the demurrer will not amount to a waiver of his right to present defenseevidence. "ence, if the demurrer was denied in a civil case, the defendant can still adduce evidence in his defense.!ut in a criminal case, if the accused filed a demurrer without prior leave of court, and that demurrer was denied,the accused loses his right to adduce evidence in his defense.

This should not be the case because this formulation of the rules actually goes against the fundamentalpresumption of innocence. The accused should be given all the chance to show that he should not be held liable forthe crime charged. %o if they will make the rule on demurrer strict, it should be in civil cases, not in criminal cases.!ecause for as long as the accused has not yet been convicted by final +udgment, in law he is presumed to beinnocent. !ut I cannot understand why the %0 is tolerating this. %o that means their sense of +ustice is misplaced.

5ow more than this, a criminal case has a period for filing a demurrer that is defined and unextendible. There is nosuch period in demurrer in civil actions. %o the defendant has more leeway in availing of this rule than that of theaccused in a criminal case.

In a civil case, however, if the demurrer was granted, the court will have to dismiss the civil action because theplaintiff is not entitled as a matter of law for the relief prayed for. !ut the plaintiff may appeal the court order grantingthe demurrer because that court order is tantamount to an ad+udication on the merits. It is not interlocutory. In a

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criminal case however, the accused, if the demurrer was granted would in effect be ac?uitted. #nd the ac?uittalgenerally as long as the same was ordered by the court of competent +urisdiction, the same is immediately final andexecutory. It is not appealable anymore. 3therwise, the accused will be placed in double +eopardy.

In a civil action, if the defendant succeeded in his demurrer and the court granted the demurrer and dismissed thecomplaint, if the plaintiff would appeal, and the appellate court would find that the evidence adduced by the plaintiffis sufficient for the relief prayed for, the appellate court would simply render +udgment in favor of the plaintiff. Therecords of the appealed case would no longer be remanded to the trial court for the trial court to receive theevidence of the defendant. %o if this happens, in a civil action, the defendant also loses his opportunity to presentdefense evidence. !ut if the plaintiff would not appeal the order of dismissal in a demurrer, that would be the end ofit. Te defendant then succeeds.

*nder the Rules of 0riminal 2rocedure now, the accused is allowed only & days after the prosecution has rested itscase within which to file a motion for leave for filing a demurrer. That &)day period is unextendible. %o, if after the &)day period, the accused still files a motion for leave, that motion for leave will attain the character of a mere piece ofpaper. The court should not act on that anymore. 5ow if the prosecution may desire to oppose the motion for leavepreparatory to the court allowing the accused to file a demurrer, the prosecution also is given an unextendibleperiod of & days after receiving a copy of the motion for leave of court filed by the accused. In other words, motionfor leave of court to file a demurrer cannot be submitted ex)parte because the prosecution is also given that right tofile an opposition. %o he is accorded the right to be heard. If the trial court would grant leave, the accused is given

'A days after receiving the court order granting him leave of court to file a demurrer. The 'A)day period is alsounextendible. The prosecution if it would want to oppose the demurrer or make a re+oinder to the demurrer, is alsogiven an unextendible period of 'A days within which to file his re+oinder to the demurrer.

here the accused files the demurrer without prior leave of court, the &)day period for filing the motion for leavebecomes irrelevant. %o the accused may +ust file to the court, but in any event that filing of the demurrer should notgo beyond 'A days. #fter the prosecution rested its case and if that &)day period allowing him to file a motion forleave, and if he does not file the motion for leave and instead he went directly to the demurrer, he has to observethe 'A)day period. "e cannot anymore try to file a demurrer like one who has obtained prior leave. In other words,this cannot be that one who did not file a motion for leave of court would have a longer period for filing his demurrer.

The rules also allow the trial court that discretion to dismiss the criminal case motu propio even without a demurrerif after all it is clear that there is really no sufficient evidence to hold the accused for trial. !ut the rule re?uires that

before the court may motu propio dismiss the case because of insufficiency of evidence, the court must first hearthe prosecution regarding the matter. #nd if there would be a necessity for the prosecution to adduce furtherevidence, the court will allow the prosecution to do so provided the prosecution will file the proper motion also forleave to be allowed to present further evidence. In such a case, the court should not +ust dismiss the criminal casebecause once it is dismissed, it may bring about double +eopardy already so much so that the accused may not beindicted again.

%o we now move on to the next step.

11th step _ the court renders .ud!ment9

#fter trial, the case is submitted for decision, it is now incumbent upon the court to render +udgment. 0omparatively

as in a civil action, here there is no such relief as +udgment on the pleadings or summary +udgment. "ere, after thecase is submitted for decision, the court will have to render +udgment. !y now, you must have a clear idea of thedifference between a +udgment and a mere order. %o you will know whether it is interlocutory or not. There aresome orders however which partake the character of a +udgment when it disposes the case without furtherproceedings in the trial court. For example, in civil actions where the defendant would file a motion to dismiss andthe court granted this on the ground of insufficiency of evidence, the court will issue an order but that order amountsto an ad+udication on the merits. "ence it is not interlocutory anymore.

Ina criminal case, where the trial court denies the demurrer, the case is deemed submitted for decision. That denialis only interlocutory because the court has yet something to do in acting on the case. %o if the accused would?uestion the denial of the demurrer, filing a petition for certiorari, this generally would be an error because theproper remedy would be to wait for the trial court to render +udgment then. If he is against that +udgment, thatmeans the step taken by the accused would be directed to either filing a motion for reconsideration, a motion for

new trial, or the accused may appeal the +udgment. !ut not the court order denying the demurrer. This is onlyinterlocutory.

In a criminal case, the rules re?uire a distinction between a +udgment which is one of ac?uittal and a +udgmentwhich s one of conviction. # +udgment which is one of conviction must specify>

Firstly, the legal designation or violation of the crime for which +udgment is rendered against the accused.

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%econdly, the participation of the accused, if there are more than one accused. The +udgment must specifywho would be penalied as the principal, who would be the accomplice, who would be the accessorybecause the evidence against each determines whether which should be liable as the principal, or liableonly as an accomplice, or liable as an accessory. here there is, however, an established conspiracy, thisspecific re?uirement may simply be generally addressed in the +udgment. There is no need to make adetailed specification why one is a principal, the other an accomplice, and the other an accessory. This isbecause when there is a conspiracy, criminal liability is collective. The act of one is deemed the act of all.

5ow, also the penalty to be imposed. This is because as you must have learned in criminal law, theaccused cannot be made to suffer a penalty not expressly stated in the sentence except where the penaltyis an accessory penalty only which would follow the principal penalty imposed in the sentence by operationof law.

#nd lastly, the court must make an award of the civil liability where the accused is convicted if he hasincurred liability for indemnifying the offended party. This however, shall be absent in the +udgment if theoffended party reserved the right to file a separate civil action, or the offended party already filed a separatecivil action. In this case, the +udgment will state that there is no finding as to the civil liability because theoffended party reserved the recovery of indemnity for damages out of the commission of the crime.

#ll these four re?uirements in a +udgment of conviction are actually a matter of common sense and understanding.

The +udgment will not be complete without these details being imposed in the +udgment.

If it were a +udgment of ac?uittal although the +udgment becomes immediately final and executory, as long as thecourt which rendered the same assumes competent +urisdiction over the case. The rules re?uire also that the

+udgment should state whether the ac?uittal was simply because there is really no evidence to hold the accusedanswerable for the crime charged or the +udgment should also disclose whether the ac?uittal is only on the groundthat the crime was not proved beyond reasonable doubt. This is for purposes of appeal so the appellate court willknow what to do about the appealed case. In both cases, however, the court should state also whether the factsfrom which civil liability arises exists or not.

%o where the accused were ac?uitted because they-re not the ones who committed the crime as shown by theevidence, the +udge need not state that no civil liability will attach to them because they are not in any wayconnected with the cases which then brought about the commission of the crime.

5ow here you will notice ancilliary to the rule on duplicity of offenses in one information, that if the informationcharges more than one offense, and the accused did not file a motion to ?uash on that ground, I told you that thecase will proceed as if as many information as there are separate crimes included in one information were filed.The duplicity or multiplicity of that information can be proceeded with. %o the court may render +udgment imposingsentence separately for each of those crimes which have been improperly +oined in the information. 5ow, you knowthe rule re?uires that there must be separate findings of fact and of the law for every crime which has been +oined inone information but which in law deserves a penalty separate from the other penalties. It is only when the lawimposes one penalty only for the so many crimes that were +oined in one information that there is no need to makeseparate findings of fact and of law.

In a civil action +udgments are merely rendered. They are not promulgated. In a criminal action, you must know bynow that +udgments are not only rendered, but moreover they are promulgated. 2romulgation of the +udgment in

criminal cases is significant and crucial. In a civil action, as long as the +udge who rendered the +udgment was still a +udge at the time the +udgment was rendered even though thereafter he died or he simply ended as a +udge, the +udgment rendered is already valid. In a criminal case, although the +udgment was rendered, if the court @9AA:A;98)

A' 98>(AB promulgated, the +udge who rendered the same died or retired, the +udgment rendered becomes a merescrap of paper. It cannot be promulgated anymore. That promulgation must be made when the +udge who renderedthe +udgment is still a +udge. "e may have been transferred to a different station, as long as it is in a court of thesame level, the +udgment rendered by him may still be promulgated. hen he is no longer a +udge, the +udgment herendered cannot be promulgated anymore. #nother +udge who will replace him will be the one who will render a

+udgment, although he may simply copy the +udgment made by the former +udge, and it will promulgated under hisname.

Rendition of the +udgment, you must understand, explains when the +udgment is already complete, signed by the +udge and this was delivered to the clerk of court for recording in the book of +udgments. #s of the time this wasdelivered, the +udgment is deemed recorded although actually the clerk of court who has so many +obs to do maynot record it on the same day. !ut that delivery to him for recording marks already the rendition of the +udgment.

#nd after delivery to the clerk of court, on his way home the +udge met an accident and he died, the +udgment isdeemed rendered. In a civil case, it is valid. In a criminal case, it will cease to have force and effect because it issaid in a criminal case, +udgments are not only rendered, they are furthermore promulgated.

2romulgation of the +udgment is defined under Rule '9A that by reading the +udgment in open court to the accusedand giving him or his counsel a copy thereof. The rules provide, however, that if the +udgment to be promulgatedinvolves only a light offense, promulgation thereof may be made even in the absence of the accused with his

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counsel or only representative being present. The rule in this point, you will notice, is rather awkward because onarraignment, the arraignment cannot be done except to the accused in person. #nd at that point, the accused is notbeing punished. hereas in this case, where the +udgment is already rendered, even if the court rendered a

+udgment of conviction, it can be promulgated in the absence of the accused, which is rather inconsistent. The oldrule before allows promulgation of the +udgment in the presence of the lawyer only if the +udgment imposes only afine, because the penalty can be a fine. !ut if it were one of conviction involving imprisonment, the lawyer cannotoblige that. %o the accused must be there. !ut now, strangely, there is no reason why he should now be allowednot to be there.

@9AA:A;98)A' (9>(AB

The new rules now allow promulgation of the +udgment in absentia. *nlike before where upon promulgation of the +udgment, if the accused for no +ustifiable reason failed to appear, the promulgation of the +udgment would besuspended until the accused is arrested. 5ow, under the new rules, even if the accused had become a fugitive from

+ustice, a +udgment rendered against him shall be promulgated. 5ow, this you should know how is promulgation of a +udgment in absentia done. !ecause once the +udgment is properly promulgated, the '&)day period for the finality ofthat +udgment will already commence to run. !ut if the promulgation is not validly done, that '&)day period will notrun. That +udgment will not become final and executory.

There are two situations implied from the provision of promulgation of +udgment in absentia>

3ne, when the accused was tried in absentia. %o, from the very beginning he has not been appearing incourt. %o when that point is reached when the +udgment is rendered and that +udgment is to bepromulgated, the accused is not represented by counsel because he had been tried in absentia. Tocomplete the promulgation of +udgment in absentia, copies thereof will be sent to the last known residentialor business address of the accused. The counsel is not included there.

!ut if the accused was not tried in absentia, it is only during the promulgation of the +udgment that theaccused did not appear, then that means there is a counsel on record during the trial. "ence, as long asthere is that counsel on record, notice of that +udgment rendered, copies thereof will be sent to the lastoffice address of his counsel.

It is only when there is no counsel that the promulgation in absentia will be completed by sending a copy of

+udgment to the last known address of the accused. $ou know that if the party has a counsel, notice can beserved upon the counsel.

#fter the +udgment is promulgated, there is still the '&)day period before that +udgment may become final andexecutory. *nder the new rules, that '&)day period would be no longer proper because the accused would lose theremedies against the +udgment against him. %o the '&)day period becomes irrelevant after all he cannot invoke anyof the remedies which under the rules he should invoke within the '&)day period. %o that '&)day period for finalitywill ac?uire significance only in such a case where the +udgment was promulgated in absentia if the accusedsurrendered before the expiration of the '&)day period or the accused was arrested and he may desire to avail ofthe remedies provided under the rules against +udgments of conviction. If he so desires to regain his standing ofavailing or invoking those remedies, he may file a motion for leave of court to allow him to avail of those remedies.!ut in that motion he must explain satisfactorily why he did not appear during the scheduled date of theproclamation of +udgment. If the court finds the explanation warranted or meritorious, the court will grant him. 5ow,

you take note of the rule here. If the trial court which rendered the +udgment granted leave of court to the accusedwehre the promulgation was done in absentia, the accused will ac?uire a new period of '& days within which topursue whatever remedy is available to him against the +udgment of conviction under the Rules of 0riminal2rocedure.

In other words, if the +udgment was promulgated in absentia, the '&)day period will already commence to run butfrom the time the promulgation is completed. That promulgation is not completed by mere delivering a copy of the

+udgment to the clerk of court and recorded in criminal dockets. The recording thereof does not completepromulgation. There must be the mailing of the copy of the +udgment to the last office address of the lawyer or tothe last known address of the accused. That is an essential part of the promulgation in absentia. %o after that hasbeen met, the '&)day period will already commence to run. !ecause the +udgment has already been promulgated.5ow, let us say that & days after promulgation is legally effected, the accused runs. %o there are still 'A remainingdays. In some other rules of procedure, the movant will only have the remaining unexpired period for perfecting theappeal or for taking whatever remedy will be available to him under the rules. !ut in this particular case, the older'&)day period is vacated. "e is given another '& days. %o if he surrenders on the '& th day, he can have a right toperfect the appeal not only within ' day, he will have another '& days. $ou take note of this. This is a departurefrom the other rules on this point, where the period for appeal is not vacated but only interrupted. !ut here you willnotice, the period for perfection of the remedy is vacated. "e is granted a new period of '& days to run for the timehe received the court order granting him leave to avail of said remedies. %o this is an important point.

# +udgment in a criminal case generally becomes final after the expiration of the '& day period for appeal. 5ow thisis so if there was no motion for reconsideration, motion for new trial that was filed. If the motion for reconsideration

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or new trial was filed, that motion will only interrupt the running of the '&)day period. If that motion is denied, theaccused will only have the balance of the '&)day period. #nd this is what I have re?uested you to take not of therule where the accused filed a motion for leave to be allowed to avail of the remedies. In other words, one who wasabsent during the promulgation of the +udgment would be better situated than the one who was present. %o you seehere that the rule is weird. It punishes one who was there when the +udgment was promulgated. That is why strangethings like this you should take note of. 3nly the exceptional are allowed to become lawyers. %o you should knowthe exceptions. 5ot the general rule. If you belong to the general rule, you belong to the laymen.

5ow, secondly, a +udgment @in favor GB of the accused becomes final and executory if the accused would alreadyexecute a written waiver of his right to appeal. %o if on the promulgation of the sentence the accused was present,now the lawyer manifested in behalf of the accused that the accused is no longer appealing the case, from that timeon the +udgment becomes final and executory. The accused will be made to sign on a notation made on the side ofthe +udgment that he is not going to appeal the same anymore. #nd the signature thereof will be attested also bythe signature of the defense counsel. %o from that time on, the sentence will begin to run and he will be consideredto have served after serving the sentence already. If later on he changed his mind, he cannot anymore revive the

+udgment as still appealable because it had become final and executory. The court will not have any +urisdiction tochange that anymore unless the proper remedies available under the rules are resorted to.

#lso, when the accused commences to serve the sentence partially or totally1 you may be thinking how could theaccused serve his sentence partially or totally, unless he had already been released from the penal @9AA:A;98)A'

;<>'AB, this contemplates of a conviction where a fine is imposed. %o, if the penalty is merely a fine and theaccused immediately paid the fine, the +udgment being immediately final and executory, it is already servedbecause the fine is already paid. If the +udgment imposes a prison term and a fine, and the accused paid the fine,then you have a partial execution of the +udgment. "e cannot ?uestion anymore that +udgment even in respect ofthe prison term.

In one case, the accused was prosecuted for violation of an ordinance in the 0ity of Danila ) that of drinkingalcoholic drinks in public places. "e was drinking on the sidewalk. The ordinance imposes a penalty ofimprisonment and fine. !ut the +udgment of the trial court which was then DT0 only imposed a sentence of a fine.%o when the sentence was promulgated, the lawyer of the accused immediately paid the fine. The clerk of courtwhispered to the +udge informing him that the sentence was wrong because under the ordinance, the penalty is aprison term of not less than 'A days and a fine. %o the +udge ordered the clerk of court to get the copy of theordinance. #nd at the same time he ordered the bailiff to call the accused because the accused together with his

counsel was so fast leaving the court room. 5ow despite the re?uest of the bailiff for the lawyer and the accused tocome back, they did not. The court rendered another +udgment and scheduled it for another promulgation. This wasassailed. The high court said null and void. !ecause after that +udgment had been satisfied, the court had no more

+urisdiction on the case. %o the rendition of any +udgment thereafter is an act in futility.

5ow, this is the conse?uence when the accused has served the sentence totally or partially. If it purely animposition of fine and the accused paid the fine in full, the sentence is fully satisfied. If it were a prison term and fineand the accused paid the fine, that +udgment immediately becomes executory. %o as far as the prison term isconcerned, he cannot ?uestion that anymore. If he will ?uestion the prison term, he should not pay the fine. If heshould pay the fine, that +udgment becomes final and executory.

5ow lastly, you have now the case where the accused, after promulgation, has filed an application for probation. %othat would mean he already accede to the +udgment of conviction. 5ow you must get this clear. The finality of the

+udgment in a criminal case does not necessarily bring with it the finality of the civil aspect of the case. %o even ifthe accused made a waiver in writing of his right to appeal, that will make the +udgment final and executory onlyinsofar as the criminal aspect thereof is concerned. Insofar as the civil aspect is concerned, it will re?uire a period of'& days before it would become final and executory. %o if the offended party is not satisfied with the award of thecourt, so the offended party filed a motion for reconsideration, the accused on the other hand upon promulgationmade a written waiver of his right to appeal attested by his defense counsel, the +udgment becomes final andexecutory. This does not mean that the motion for reconsideration filed by the offended party may no longer beacted upon by the court. #s far as the civil liability is concerned the +udgment will become final and executory onlyafter the lapse of '& days regardless of whatever action the accused may have taken which rendered the samefinal and executory. %o, even if the +udgment has become final and executory, if the offended party was notsatisfied with the award of the court, filed a motion for reconsideration, the trial court denied the same, he may stillappeal the +udgment insofar as the civil aspect is concerned, insofar as the civil liability provided by the court isconcerned. 3n appeal, however, he will make reference only to the criminal docket of the case ) that number ) butnot the name 2eople of the 2hilippines anymore. It will be his name that will appear there because he will beappealing as a private party already. %o the name of the 2eople of the 2hilippines will appear only insofar as thecriminal aspect is concerned.

This was the sub+ect of a bar problem> Day the offended party appeal a +udgment in a criminal caseG In an earlierruling, the %0 said you cannot appeal. In a subse?uent ruling, the %0 said yes you can appeal. The prosecutioninvoked the earlier ruling why in this case, the offended party was allowed to appeal. The high court pointed out thedistinction. In the earlier case, there was no civil liability involved in the +udgment in the criminal case because theoffended party in that earlier case reserved the filing of a separate civil action. %o he has no more interest in the

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criminal proceedings. !ut in the subse?uent case, 2eople v. !inas@GB, civil liability arising from the crime isinstituted with the criminal case. The %0 clarified that as long as the offended party has a private interest in the

+udgment, he can appeal that aspect of the +udgment insofar as his private interest is involved. !ut not in the nameof the 2eople of the 2hilippines anymore. It must be in his own name. The case will only be identified by thecriminal docket number assigned to it in the trial court. This was also the sub+ect of a bar problem while the lateustice 0ecilia Duno)2alma was the examiner in remedial law.

%o it is clear> finality of the +udgment in the criminal case does not necessarily mean finality of that +udgment insofaras the civil liability is concerned. 0ivil liability will become final only after the lapse of '& days. 3rdinarily, you willsay

@9AA:A;98)A' A'>A'>AAB filing of the motion for reconsideration, motion for new trial, the +udgment is alreadyfinal and executory. This is not true in a criminal case where two interests are involved C public interest insofar asthe criminal liability is concerned, private interest insofar as the offended party is concerned. %o there are twointerested parties here. That is why in criminal law, pardon by the offended party does not carry with it the extinctionof the criminal liability. #lso, pardon by the 0hief executive cannot carry with it extinction of the civil liability. Theseare two separate interests. The interest of one does not involve the interest of the other. 7et this clear.

5ow, remedies against a +udgment considered adverse by the accused.

First, motion for reconsideration. Important aspect that you should know here, unlike in a civil action where thegrounds for filing a DR are specified, @you must have known this under Rule (8, the grounds for DR are stated

there> +udgment awards excessive damages, +udgment is not borne by the evidence on record, thirdly the +udgmentis contrary to lawB, if the DR in a civil action is not based on any of these grounds, it is deemed to be pro forma. #pro forma motion does not interrupt nor suspend the running of the '&)day period for the finality of the +udgment. 5osince there are no such grounds specified against +udgments in a criminal case, the pro forma rule does not applyto DR filed in a criminal case. %o do not invoke the prop forma rule in DR of the +udgment rendered in a criminalaction. There is no such thing. 5ow, here, the movant is allowed to file as many DR-s as he wants to file even if thegrounds are trivial. It will stop the running of the period to appeal. 5ow the accused will have the balance if themotion is denied. In a civil action, you cannot do that. $ou are only allowed one. $ou must have leaned in civilprocedure, you cannot file more than one DR. #ny subse?uent DR is merely a scrap of paper. !ut not in a criminalcase. %o here the accused is allowed leeway to show that he does not deserve to be convicted. $et, in a demurrerto the evidence the accused is being dealt strictly. The rule is incompatible.

Then,another remedy C Dotion for 5ew Trial. The remedy of the motion which is errors and irregularities pre+udicial

to the substantial rights of the accused is almost identical to that in a civil action. #nd secondly, newly discoveredevidence, also true to a civil action. The same re?uirement attends here C for evidence to be considered newlydiscovered, it is not enough that it could not have been discovered and produced during the trial despite theexercise of due diligence, but moreover the newly discovered evidence must have such probative value that itwould probably bring about a different +udgment if the same shall be allowed. It is this characteristic of the newlydiscovered evidence that would +ustify a motion for new trial. %o although the evidence was really newly discoveredas a matter of fact but if that evidence is simply corroborative, then the probative value is such that it cannot changethe +udgment already rendered. Even though it was newly discovered in a factual sense, the motion for new trialshould be denied because it would be only a waste of time.

The next remedy is appeal. In the hierarchy of courts, you have the first level courts C Dunicipal Trial 0ourts,Dunicipal 0ircuit Trial 0ourt, and the Detropolitan Trial 0ourt, +udgments of these court in criminal cases areappealable only to the Regional Trial 0ourt or if these would involve public officers charged of a crime committed in

the exercise of their duties, if these would be within the +urisdiction of the %andiganbayan, the appeal will be to the%andiganbayan. $ou must have already known that the %andiganbayan has appellate +urisdiction also. If the caseinvolved a +udgment of the RT0, appeal thereof in the exercise of its original +urisdiction will be to the 0# if only?uestions of facts will be raised or facts and law. !ut if only ?uestions of law will be raised, the appeal from such

+udgment rendered by the RT0 in original cases shall be to the %0. here the RT0 rendered +udgment on anappealed case from the courts of the first level, that +udgment of the RT0 is no longer a +udgment in an originalappeal because you already have an appeal from the courts of the first level to the RT0. %o any further appeal fromthat +udgment which the RT0 rendered on a case appealed to it from the courts of the first level will already be byway of petition for review. If it would involve ?uestions of facts or ?uestions of facts and law, petition will be to the0#. If it would raise only ?uestions of law, petition for review on certiorari will be to the %0. #ppeals in criminalcases therefore may be ordinary appeals or it may be an appeal by petition for review or it may be an appeal bypetition for review on certiorari.

In ordinary appeal, the appeal is perfected by simply filing a notice of appeal with the court which rendered the +udgment being appealed from. # copy of the notice must be served to the prosecution which is the adverse party. #lthough generally, the appeal can only be taken by the accused from a +udgment of conviction, there is no rule thatprohibits the %tate through the prosecution to appeal also the +udgment of the trial court. !ut that appeal by theprosecution is ?ualified by limitation that it can only be allowed when the accused would not be placed in double

+eopardy. This arises when the trial court assumes +urisdiction over a crime which is beyond its +urisdiction or ofwhich it has no +urisdiction. here the court assumes +urisdiction over a crime where the accused is a minor thenrendered a +udgment of ac?uittal, the prosecution can appeal because the criminal case must be with the familycourts, the +udgment rendered by that trial court is null and void so the ac?uittal also is null and void. The ac?uittal

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being null and void, it cannot give rise to double +eopardy. In such a case, there will be no double +eopardy, thesame can appeal to ?uestion the validity of the ac?uittal but not to ?uestion the evidence on which the ac?uittal wasmade because there the accused would be tantamount to being re)tried again and that is double +eopardy.

hen the appeal is simply an ordinary appeal, notice of appeal and a copy of the notice will be served on theoffended party, the appeal will be thereby perfected. There is no need for an appeal bond to perfect the appeal. butyou must understand the bail bond for the provisional liberty of the accused while the case was on trial is good onlywhen the case was with the trial court. after the trial court had already rendered +udgment and the same isappealed, a new bailbond for the appellate court will have to be applied for. %o relative to this, you have thismodification I called your attention to in %ec & of Rule ''; on !ail which also you will now find in %ec : of the Ruleon udgment that if the accused were charged for a non)bailable offense but the +udgment rendered by the trialcourt found him liable for a bailable offense, the application for bail should be filed and resolved by the appellatecourt. It is no longer the trial court who will accept the bailbond for the appeal. It will be the appellate court which willnow fix the amount of the bailbond if the accused would want to en+oy continued provisional liberty while the case isbeing resolved on appeal. The accused may re?uest the court to allow him to continue on the original bailbond.That is within the discretion of the appellate court.

In a criminal case within the original +urisdiction of the criminal trial court, where the penalty is not reclusionperpetua, life imprisonment, or death, the appeal shall ordinarily be to the 0ourt of #ppeals. It is an ordinary appeal.%o only notice of appeal because that is an original appeal. !ut if the 0# affirms that conviction against the

accused, further appeal may be taken to the %0. That is no longer an original appeal. It is an appeal from anappealed case. "ence it will be by petition for review on certiorari already.

The distinction between an appeal which is by mere filing a notice of appeal and an appeal that re?uires a petitionis that if it were an ordinary appeal, the moment the appeal is perfected, that appeal will take its due course. Theappellant is only re?uired to comply with the re?uirements of perfecting the appeal and that appeal will be given duecourse. It will then proceed for review unless the appeal is dismissed because the appellant fled from the country,or the appellant escaped from confinement, or the appellant +umped bail, then the appeal will be dismissed.

!ut in a case where the appeal is by petition, this is addressed to the discretion of the appellate court. It will notsimply take its due course. Even if all the re?uirements thereof have been complied with, if that appellate court findsthat there is no substantial issue raised in the petition, the appellate court may simply deny the petition in a minuteresolution. This is the difference between the two appeals. %o although, in an ordinary appeal the appellant will

simply serve notice of appeal, indicating the court where the appeal will be taken, indicating the reason for theappeal, in a petition for review more so a petition for certiorari, the appellant must state strong reason why theappellate court-s +urisdiction is being invoked. 3therwise, the appellate courts especially now when their docketsare so clogged are more inclined to dismiss the petition. This is the significant point of distinction.

*nder the rule now, when the crime is punishable by life imprisonment, reclusion perpetua or death, the appealshall be to the %upreme 0ourt. %o this will be by petition for review if it were already a subse?uent appeal. !utsince this is an original appeal, it will be merely by filing a notice of appeal, serving the adverse party a copy of thatnotice of appeal.

#nd you must be informed of the ruling of the %upreme 0ourt in this case of 2eople vs. Efren Dateo where the%upreme 0ourt through ustice itug had resolved that criminal cases where the trial court imposed the deathpenalty should undergo intermediate review by the 0ourt of #ppeals because findings of facts are left to the 0ourt

of #ppeals. The %upreme 0ourt is only limited to findings on ?uestions of law. 5ow, it does not mean that those +udgments imposing the death penalty are now appealable to the 0ourt of #ppeals. This will be a violation of the0onstitution. The duty, not +ust the prerogative, is imposed by the fundamental law that the %upreme 0ourt shouldreview all sentences imposing the death penalty. !ut for purposes of application of the facts that may bring aboutthe culpability of the accused who had been sentenced to death, this review of the facts is considered by the%upreme 0ourt to be better achieved in the 0ourt of #ppeals. In a way, the %upreme 0ourt recognied that the0ourt of #ppeals is in a better position to review the facts considering that the %upreme 0ourt is more familiar witha review of the law only. %o this elevation of the +udgment to the 0ourt of #ppeals is only by intermediate review,not appeal. It is only for intermediate review. #nd it is for review of the facts since the %upreme 0ourt is betterprepared not in the appreciation of facts but in the appreciation of the law.

5ow if the 0ourt of #ppeals would find that the imposition of the death penalty is proper, the 0ourt of #ppeals willalready prepare the +udgment but that +udgment will not be rendered. It will be elevated to the %upreme 0ourt. The%upreme 0ourt will be the one to render the +udgment when the +ustices will review the +udgment imposing thedeath penalty. %o ultimately, the constitutional provision which makes it the duty of the high court to review

+udgments imposing the death penalty is also achieved.

5ow, this does not include +udgments imposing life imprisonment or reclusion perpetua. This does not re?uireautomatic review. #ppeals of this +udgments imposing life imprisonment or reclusion perpetua are within the

+urisdiction of the %upreme 0ourt, not within the +urisdiction of the 0ourt of #ppeals. %o the appeal of these caseswill still mean to the %upreme 0ourt which has the discretion to relegate this to the 0ourt of #ppeals for review ofthe facts. The Dateo ruling is only on the imposition of the death penalty. #nd that is not by way of appeal but only

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by way of review of the facts. If in that review, the 0ourt of #ppeals will find that the proper penalty will not be deathbut reclusion perpetua, the 0ourt of #ppeals is now authoried to proceed with the +udgment that lowers the penaltyto reclusion perpetua. In effect, the 0ourt of #ppeals is considered the authority to render +udgments where thepenalty is reclusion perpetua.

This ruling in the case of Dateo was adopted because the %upreme 0ourt can no longer cope with the casesmounting in its docket because the members of the high court are also engaged in socialiing rather than spendingtheir time more on resolving cases. #nd some of them are not really mature enough to write the decision within theshort span of time expected of them. That is why the limitation of <A days to prepare a decision was ruled by the%upreme 0ourt as not applicable to it. They cannot finish the decision in <A days.

5ow that there is a move that the death penalty would again be abolished, it is already futile to be going over thesecases where the death penalty is to be reviewed because now the attitude is to commute all this to the lesserpenalty, reclusion perpetua, and they are rushing the law that would abolish the death penalty. hat you shouldprepare for is a short discussion of the merits of the move to abolish the death penalty. hen there was this moveof re)imposing the death penalty, bar candidates were asked to give their views in not more than '&A words,whether they favor the imposition of the death penalty. Dany of those from sectarian institutions argued not on thesocial utility of the penalty but more on the moral side that only the #lmighty had the right to take away life. It shouldnot be on that basis. It should be on the social utility of the penalty. #fter all, it does not follow that if the courtsentenced the offender to death that what happens next is that he will be put to death. The death penalty law is

there only to terrify criminally inclined people from committing heinous crimes. It is only a shadow. It is better thatthe shadow is there than there is no shadow at all. !ecause at least those who are criminally)minded would make asecond thought of committing those crimes for which the death penalty is prescribed. If you remove that, they willhave no second thoughts anymore of committing heinous crimes because there is no death penalty. This is theproper aspect to discuss in an examination that would involve the profession of law C social utility that when it isthere that one who would violate the law where that is prescribed as the penalty, they should be put to death. Theycan make it as a matter of policy not to bring about the execution of the death penalty if the offender did not also killthe offended party. !ut when the offender had killed the offended party, especially children for no reason at all theyare killed, they are raped, definitely the offender forfeits his right to live in a civilied society. If they do not want toput him to death, he should be thrown in an island where he can live by himself. "e cannot kill anybody there. !utnot to keep him within the midst of civilied people.

5ow what I resent is that no less than the 0hief ustice of the %0 was claiming that the law is unconstitutional.

*nspeakable.

%o what is left for us is the Rule on %ummary 2rocedure. e will discuss this tomorrow.

This matter of appeal, the important aspect here is that where there are several accused ) some appeal the +udgment others did not ) the outcome of the appeal will not affect those who did not appeal unless the +udgmentrendered by the appellate court is also beneficial to them provided that the basis of the +udgment on appeal is notpersonal only to those who appealed.

%o if the +udgment of the appellate court is one of ac?uittal of those who appealed because they were found to behaving participated without known damages, that cannot automatically be invoked by those who did not appeal. !utif the +udgment is one of ac?uittal on the ground that the law punishing the act is already repealed, then everybodycan benefit from such ac?uittal. This is the important aspect that you should know.

#s far as the appellant +umping bail or escaping from confinement or leaving the 2hilippines is concerned, thiswould bring the dismissal of the appeal except when the appeal involves the capital punishment. Insofar asreviewing a +udgment that imposed the capital punishment, this is a duty imposed by the fundamental law. Theescape of the accused did not relieve the %upreme 0ourt of the duty reposed on it by the 0onstitution.

%o although the accused who was sentenced to death, while under confinement on the death row managed toescape, ordinarily that escape will bring about the dismissal of the appeal. !ut not in a +udgment where the deathpenalty is imposed. %o under the present setup, the 0ourt of #ppeals will still go over the review of the facts todetermine whether the death penalty is deserved or not. This is an exception to the rule that where the appellantwould evade the confinement, +ump bail, or otherwise leave the country, the appeal will be dismissed. That does notapply to a case where the penalty imposed is the death penalty. The +udgment will not become final and executoryuntil affirmed by the %upreme 0ourt. %o this you should not overlook.

APRIL 2), 2006

Rule on %ummary 2rocedure

If the municipality does not have an office of the prosecutor, the case may be filed in court on the basis of acomplaint. In those municipalities where there are no municipal prosecutors, generally the chief of police is the onewho undertakes the filing of the case in court. now you know that if the case is filed in court not by an officiallydesignated prosecutor, the filing can only be by complaint. The information can only be filed by public officers who

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are public prosecutors. %o in those places where there are public prosecutors, the complaint by the offended partywill be filed with the prosecutor-s office. It is the prosecutor who would file an information in court. This nowcontemplates of cases where no 2I is to be conducted because as I-ve told you before the +udges of the courts ofthe first level are no longer authoried to conduct 2I. #nd so if the case would call for a 2I, under the amended Rule''9, the case will have to be filed with the prosecutor-s office.

5ow where the criminal case was filed in court on the basis of a criminal complaint, not an information, the court isgiven the authority to dismiss the case motu propio, if a court finds any ground that in law would warrant a dismissalof the case. !ut if the criminal case was initiated by information, considering that an information was filed by apublic officer whose specific duty is to undertake prosecution, that prosecutor has in his favor a presumption ofregularity in the performance of his official duties. #nd therefore prima facie the information is considered to be withmerit. The court cannot summarily dismiss the same. Instead, the court will have to issue an order re?uiring theaccused to submit counter)affidavits. 5ow this is so because whether the action is commenced by complaint or byinformation, the affidavit of the offended party and his witnesses must be annexed to the complaint or theinformation. for purposes of filing the same, the number of accused will determine the number of copies of thecomplaint and the affidavits of the complainant and the witnesses to be annexed plus two copies for purposes offiling with the court and record of the court. If there were three accused, the offended party will have to file fivecopies, two for the court, three for the other party and of course he has to have his own file copy. In other words,filing one copy alone would not be valid.

If the court upon receipt of the counter)affidavit of the accused and his witnesses would find that there is really nomeritorious cases whether the criminal action was commenced by information or by complaint, the court is givenalso the authority to dismiss the same. !ut the dismissal is without pre+udice. That means no double +eopardy willattach because at this +uncture, the accused is not yet arraigned. The accused is allowed 'A days after receipt ofnotice to file counter)affidavits, to submit the same. #nd the offended party or the prosecution is also allowedanother 'A days within which to file reply affidavits. The affidavits contemplated here should be executed only byaffiants who had personal knowledge of the facts stated therein which would ?ualify them to be witnesses in courtfor those facts alleged in the affidavit as though they are testifying in court. %o if the affidavit contained matterswhich are not of personal knowledge of the affiant, it would therefore be hearsay in nature. The affidavit may bestricken out. #nd the case may be dismissed. #nd if it could be determined that the party or the witness filing theaffidavit had consciously violated this re?uirement, sanctions may be imposed by the court. The affidavit takes theplace of the testimony of the affiant before the court. 7enerally in cases governed by the rule in summaryprocedure, there is no trial conducted anymore except on rebuttal or sur)rebuttal if this was still necessary. %o this

is not +ust any affidavit to support a criminal complaint where the rule on summary procedure is the governing rule.

If the court finds that there is merit in the complaint or information filed, there is really a +usticiable issue, the courtwill set the case for arraignment and trial. !ut you will notice that in this procedure, the court does not issue awarrant of arrest because in those criminal cases governed by the rule on summary procedure, the courts areadmonished not to issue warrants of arrest but only notice of the proceedings or in the nature of summons. #ndonly when the party is so notified and he failed to appear despite receipt of the notice, then the court can issue awarrant of his arrest to re?uire him to post bail before he would be released or to re?uire him to execute arecogniance to assure that he will appear in all subse?uent proceedings.

3n the date that the accused was arraigned, and so the case will proceed to the trial stage, the rule re?uires thecourt to first conduct a preliminary conference between or among the parties. The preliminary conference is in theessence of pre)trial, where the issues are simplified, matters which are unnecessary for purposes of resolving the

case are dispensed with. #nd so, the issues are defined and that will be the one which will be brought out andsupported by the respective parties during the trial. If, however, at the pre)trial conference any of the parties C theaccused and the prosecution C might state that he wanted to file further affidavits to rebut or rebuke what may havebeen brought out during the preliminary conference, such party shall be allowed ( days within which to file thesesupplemental pleadings and the adverse party is also given a similar period of ( days within which to file a reply.This is the affidavit filed after preliminary conference. 6o not mistake this for the affidavits in civil cases. This is forcriminal cases.

# court will proceed with the trial taking the affidavit filed by the complainant and his witnesses as the directexamination. %o the defense will only conduct cross examination. Thereafter, the witness examined may besub+ected to further re)direct examination to bring out what may be submitted by way of rebukation or controvertionof what was disclosed during the cross examination. This does not call for an affidavit anymore because this isdone already In the courts of the supposed trial. Thereafter, the accused will be the one cross examined on thebasis of the affidavit he presented and also his witnesses. Thereafter the case will be deemed submitted already fordecision.

# court generally is admonished to decide the case within '& days. If, however, any of the parties re?uested to beallowed to file additional affidavits for the clarification of what might have been raised during the preliminaryconference, the court is allowed (A days within which to decide the case. 5ow, here you will also observe what isre?uired in pre)trial in criminal cases governed by the ordinary rules of criminal procedure. That any stipulation offact or admissions entered into during the preliminary conference will not be admissible in evidence unless it is

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signed by the defense counsel and the accused himself. #ll such admissions are therefore to be reduced to writingfor otherwise, they cannot be taken as part of the evidence of the party concerned.

It is important that you should know what are the prohibited pleadings. 5ow, these prohibited pleadings however,are true only when the case is still in the court of the first level court. The moment the decision is appealed to theRT0, this prohibition on what motions or pleadings should not be filed will not govern anymore. %pecifically incriminal cases, a motion to ?uash is not allowed except on two grounds> one, when the court has no +urisdictionover the sub+ect of the offense, and two, where the re?uired referral to the barangay as re?uired by the 470 forconciliation or mediation has not been followed. The dismissal at this stage shall be without pre+udice or otherwisewould not be the basis for double +eopardy. 5ow also, although in criminal cases the defense is also allowed tomove for a bill of particulars before arraignment, here that opportunity to obtain particularity of the matters allegedin the complaint or information is not allowed. # motion for bill of particulars is not allowed here. 5ow also,memoranda which ordinarily takes the place of argument of the parties before the case is decided, is not allowed.6ilatory motion for postponement is not allowed. 2etition for certiorari, prohibition or mandamus against aninterlocutory order of the court is also not allowed. If any of these prohibited pleadings was filed the court maysimply ignore the same. hen a prohibited pleading is filed, the same will only partake the nature of a mere scrapof paper. %o the court can simply consider it as part of what are the papers presented in court but the court shouldnot give any value to what is asserted therein.

#ny unfavorable +udgment rendered under this rule may simply be ?uestioned through an appeal. 5o other way.

The appeal will proceed as any ordinary criminal case that was raised on appeal. The rule on summary procedurewill not govern anymore. %o the rule on summary procedure always is when the case is within the inferior courts orcourts of the first level. hen the case is elevated on appeal and leaves the courts of the first level, the rule onsummary procedure stops there. #ll other remedies available in an ordinary case may then be resorted to when thecase is already before the RT0.

The only thing that is important in the rule on summary procedure is this matter of giving the court that discretion todismiss the case motu propio. #nd the prosecution may re)file it because there is no double +eopardy. 5ow also,insofar as the rules of procedure governing ordinary criminal cases are concerned, that is not inconsistent with therule on summary procedure, the same will also apply here. %o the rule on bail will apply here. There is noprohibition of filing an application for bail if eventually the court ordered the arrest of the accused and the accusedwanted to avail of provisional liberty. Initially however, this is beside the point because in a case governed by therule on summary procedure, issuance of a warrant of arrest is initially not allowed. It will only be authoried if the

party summoned to appear in court repeatedly disregarded the court notice for him to appear. %o the only way toobtain his appearance is by ordering his arrest and he cannot be discharged until he comply with what the courtmay re?uire of his appearance. %o he may remain under detention. 5ow, in such a case, he may apply for bail. #ndhere, bail is a matter of right. #s a matter of fact, you learned that one of the instances where provisional libertymay be obtained through a recogniance is when the criminal case is governed by the rule of summary procedure.

5ow, these are the aspects that you only need to be aware of. The problem given in the bar does not specify thatthe case is governed by the rule on summary procedure. It is up to you to be on guard on that. %o you will knowhow the procedure will go, the steps that shall be undertaken. In that way you are made conscious that the case isone not sub+ect to the ordinary rules of procedure. %o do not make the mistake of invoking a remedy which is notallowed under the rule of summary procedure. !ecause that would mean your answer is wrong. !ecause you areinvoking or adopting a procedure which is not applicable to the situation needed. %o that is the first thing that youmust be aware of before you apply or invoke any of the rules of criminal procedure which govern ordinary criminal

cases.

5ow we will take up the rules on search and seiure C Rule '9:. This is also regulatory to the constitutionalguarantee that every citien has a right to be secure from unreasonable searches and seiures in his house, in hisperson, and in his personal effects. 3n this constitutional mandate, the general premise> any search without awarrant is prima facie unlawful. In the same way that an arrest without a warrant is prima facie unlawful. It wouldonly be valid if it was done in any of the cases where the law allows it to be done. In the case of an arrest,specifically under %ec & of Rule ''(. 5ow in the case of search and seiure, the instances where a warrantlesssearch and seiure are valid are made @9AA:A;98)A' ('>(AB in +urisprudence.

There are currently : recognied exceptions.

Firstly, when the search and eventual seiure was made incident to a valid arrest.

%econd, when the search was made on an aircraft, a vessel, or a motor vehicle about to sail or about tomove away.

Third, when it is a consented search.

Fourth, when it is a customs search. This situation however is not applicable as an exception when thesearch will be conducted already in the residence of the offended party. # customs search is only allowed ifcarried out in the nature of hot pursuit. !ut when the same would involve a search of the dwelling there is

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no more +ustification to carry out the search without a warrant because in such a case, the officers whowould effect a customs search already had ample time to obtain a search warrant.

Then, you have a next situation a warrantless seiure @not a searchB of those contraband per se which arein plain view of the officer making the seiure. This is what brought about the so)called plainview doctrine.

#nd lastly, added also here, a search and seiure on the occasion of a stop and frisk rule. $ou must haveknown by now that this instance where law enforcers are allowed to stop a citien, sub+ect him to outsidefrisking, is what has been otherwise referred to as the Terry %earch Rule. hen this was asked in the bar,that was the term used> what is the Terry %earch RuleG %ometimes the examiner makes use of termsadopted by the *% court in particular situations and not the term of which you are accustomed to in ourlocal +urisprudence. %o you must be also knowledgeable of the counterpart in common law. 3therwise youmay fail to get it correctly whereas all the while you know what it is about only you do not know the name bywhich it is called.

3f these instances, the +ustification for these exceptions is that under the circumstances the opportunity to makethe search is instantaneous and there is no more ample time for the officer who would make the search to go t courtand apply for a search warrant. $ou must have read the landmark cases on this point ) 2eople v. 0anolide@GB,2eople v. #minuddin C that although the contraband was transported through a moving vessel but because thesame was intercepted already at the port of entry and it took almost two days for that interisland vessel to travel

from the north harbor to Iloilo, the law enforcers in Iloilo who simply clamped on the offender upon coming down thevessel, that seiure and arrest was proceeded by the court to be unlawful. The %0 ruled the officer who made thesearch had ample time to go to court during all the time that the vessel was at sea and has not yet arrived at thatport since he already received a radio message from Danila 5orth "arbor to be on watch for this person who isreportedly carrying dangerous drugs. The fact that they had that opportunity but they did not comply with there?uirement of obtaining a search warrant will not +ustify the search and seiure done by them without a warrant.The +ustification for making this warrantless search and seiure is only when the officer who carry this out had nomore time to go to court and apply for a search warrant. %o otherwise, they should have done it in accordance withlaw. The public officers who are the enforcers should be the first one to respect what the law re?uires. %o theycannot get away with that. %o the high court ruled that the contraband that was obtained was not admissible inevidence because they were the product of an illegal seiure.

3n this incident that brought about the seiure of an ob+ect under plain view, you must be on guard as to the

re?uisite that would bring a situation under that plain view rule. It is not enough that the officer who made theseiure saw the contraband. The case primarily re?uires that the law enforcer or peace officer who saw thecontraband must be at that place legitimately. %o if they were at that place illegally, the plain view rule will notoperate anymore. From the very beginning they are there unlawfully. %o even if the peace officers or law enforcerswere present at that place lawfully, the plain view rule excludes any effort taken by the officer to make a search.hat is contemplated here is that the officers caught a glimpse of the contraband inadvertently without any act ofmaking a search. %o if the peace officer entered a house and started looking under the furniture there, plain viewrule ceases to operate. #lso, the rule contemplates of ob+ects which are per se contraband. That means withoutinspecting the circumstance of facts about the ob+ect, it is considered contraband.

For this purpose, a firearm is not considered per se a contraband. %o seiure of a firearm under the so)called plainview doctrine according to the high court is not a valid seiure. %o even if the firearm seied turned out to bewithout a covering license, the same is not admissible in evidence. hat makes the possession of the firearm

unlawful is the lack of the license to possess the same or a permit to carry the same. The officer who had made theseiure must know beforehand that the possessor had no authority to possess the firearm or the firearm is not onewhich may be legitimately possessed, like high)caliber firearms which are not really weapons of defense. 3ne whopossesses that even upon seeing the firearm, the same may be the sub+ect of a plain view seiure.

5ow these are the things that you should consider in relation to this rule on search and seiure. $ou will noticeunder this rule, +ust like in the issuance of a warrant of arrest, before the court may issue the search warrant, he isre?uired to conduct a preliminary examination, conduct searching in?uiry to determine the existence of probablecause under oath by the party applying for the search warrant and the witnesses that he may produce and someother document that may establish the necessity for issuing the warrant. #nd also here, it is re?uired that thedetermination of probable cause is reposed on the +udge personally. %o if he will +ust issue a search warrant on thebasis of affidavits of third parties, even though there are affidavits by the applicant of the warrant and the witnesses,the +udge on his own is re?uired to ask searching ?uestions. #nd the answer must be in writing. 5ow this must be inthe transcript of the proceedings undertaken during the determination of probable cause. If the warrant was issuedwithout complying with this, the warrant is invalid. #ny ob+ect or thing obtained on the basis thereof is notadmissible in evidence. !ut that must be properly and seasonably ob+ected to.

I will invite your attention to the new rule that if the incriminatory matter that was seied was made during awarrantless arrest, the seiure becomes unlawful if the warrantless arrest is also unlawful. !ut the unlawfulcharacter of the seiure must be raised before the accused enters a plea on arraignment. This rule on search andseiure tells you that the inadmissibility of the ob+ect or thing illegally seied as evidence may be raised in a motionto suppress the evidence or in a motion to ?uash the search warrant. 3riginally, as ruled in the case of Dalaloan v.

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0#, this is an important case you should have read this. This is the landmark case on this that brought about thenew provisions of the rule on search and seiure. "ere, the remedy undertaken is a motion to ?uash the searchwarrant. The motion must be filed with the court which issued the search warrant. If the remedy availed of was amotion to suppress the admission in evidence of the ob+ect that was seied, that motion should be filed with thecourt where the criminal action is filed. #nd under the Dalaloan ruling, these remedies are exclusive of each other."ence, when one remedy is invoked, the other remedy in effect is already renounced.

The new rule changed this. The new rule allows both motion to ?uash the warrant and the motion to suppress theevidence may be availed of without waiving the other remedy. #nd this must be availed of in the court where thecriminal case is filed. !ut if at the time the seiure was made on the basis of the warrant there was yet no case filedin court, the motion to ?uash should be filed with the court which issued this warrant but that court is allowed toresolve the motion only for as long as there is no criminal case yet filed with the proper court. The moment there isalready a criminal case filed and the court which issued the search warrant has not yet resolved the motion, thatmotion will now be resolved by the court where the criminal case is filed.

The background of this rule that you find here was explained in that Dalaloan case where the search warrant wasobtained by the law enforcers from the RT0 in 0aloocan 0ity whereas the place to be searched was at Fairview,J0. #nd for the alleged violation at that place, it is the RT0 of J0 that has +urisdiction and therefore regularly theapplication for search warrant must be filed with the RT0 in J0. This became an issue on the validity of the searchwarrant issued by the RT0 in 0aloocan 0ity. hereas the crime of which the search warrant was issued was

allegedly being committed in J0 and therefore it should be the RT0 of J0 that should act on these matters. Thelaw enforcers who filed the application in 0aloocan 0ity explained that his place at Fairview had been under theirsurveillance and everytime they would apply for a search warrant in the proper court in J0, by the time they arriveat the place, the place is clean as though no activity had been conducted there. #nd @9AA:A;98)A' &&>AAB hadbeen attempting this ; times already based on the report of the surveillance team. !ut everytime they arrive at theplace, it is clean as if there was no human activity there. %o they sensed that there was a tie up between somecourt personnel in the RT0 of J0 and these offenders that even before they would receive the warrant to searchthe place the offenders were already tipped off by somebody in the court in J0 about the impending raids andsearch and seiure to be conducted. #nd so they applied this in 0aloocan 0ity to evade the unholy alliancebetween the court personnel and the offenders who are involved. #nd verily, when they acted on the basis of thatsearch warrant, they found so many firearms and documents at the place because the offenders were caught red)handed. # motion to ?uash the warrant was made because the argument was that the court which issued thewarrant has no +urisdiction to issue the same.

It is here where there was that divided opinion on the high court as to the validity of the warrant and the legality ofthe seiure carried out by virtue of that warrant. *ltimately, a number of +ustices who voted for the validity of thewarrant and the legality of the seiure ruled that a warrant is only a court process. #s such, it does not know of anylimitation as to +urisdiction. It may only be ?uestioned on the premise of a grave abuse of discretion and that willonly be so when there is no compelling reason for the court at that place outside of where the crime beingcommitted took up the application. 5ow here there is that compelling reason. #nd that is why you now have thisalternative rule C that when there is yet no case filed in court, an application for search warrant generally should befiled with the court exercising territorial +urisdiction over that place where the crime is supposedly being committed.

If the warrant leaves blank the period when it should be implemented, the ruling is to the effect that the searchwarrant is null and void. The court may only authorie a search warrant to be implemented at any time of day ornight if the affidavit executed by the interested party and determined as probable cause for the issuance of the

warrant would reveal that the ob+ect of the person sub+ect of the search can only be found at that place where thewarrant is to be implemented at nighttime. In other words, there must be a specific directive in the said warrantauthoriing the officer to implement the same to carry it out at any time of the day or night. %ilent on that, the officerwho will implement the warrant cannot carry it out at night.

Relative to this, you should know that a search warrant may issue only for one offense and that must beparticularied. %o if the search warrant for a supposed violation which are alleged in general terms withoutparticulariing, the ruling on this is that the warrant is invalid. It violates the legal re?uirement that a search warrantshould issue only for one offense and should particularly describe the place to be searched and the ob+ect to beseied. # search warrant which fails in this is what has been referred to as a general warrant. # general warrant isinvalid. If it does not describe the ob+ect to be seied, the place where it shall be

@9AA:A;9=)A9 A(>(AB, that istantamount to making a search without a warrant. It would then be an unreasonable search and seiure.

here the documents sub+ect of seiure, however, are not particularly described but the specific provision of lawwhere such documents are considered illegal have been referred to, or documents in violation of %ec 99 of the newinternal revenue code, the %0 ruled that reference to the particular provision of law where such documents areviolative of or constitutes a violation of law and the reference to the particular provision of law violated by suchdocuments is enough to describe what are the documents to be sub+ect of seiure. 5ow in such a case, thespecification of the provision of law under which the possession of those documents are considered illegal wasruled to be enough compliance with the rule of particularity on the ob+ect that would be seied.

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# general warrant is not allowed. It is tantamount to allowing the officer to implement the warrant with authority tochoose what they want to seie and place or places that may be searched. $ou must have learned that if thewarrant was addressed to a particular place but when the officer arrived at that place, the place is a compoundwhere there is a house there and a warehouse at the back. The officer implemented the warrant on the warehouse.hen they did not find the contraband there, they moved on to the house which was both at the compound bearingthat address which conformed to the address given in the search warrant. The %0 declared the search illegal. Thelack of particularity as to the premises to be searched rendered the warrant invalid. The officers who implement thesearch warrant has no discretion at all to construe what may be contemplated in the search warrant. To allow themthat discretion would practically defeat the re?uirement of law for that warrant. The warrant becomes merely a coverup for a search and seiure which is in violation of law.

%o if there would be anything in the search warrant that would be incompatible with the implementation thereof onthe basis of what is revealed by the physical facts confronting the officer to implement the same, that officer has noauthority to resort to his own discretion on what premises to search and what ob+ect to seie. "e is re?uired to goback to the court which issued that warrant, inform the court of this uncertainty. 3nly the court can resolve that, andthe court is precisely called upon to determine probable cause against whom or against which structure that searchwarrant will be directed. 3therwise, the officer who would make the search may be held liable for violation ofdomicile because that warrant would be invalid. It is tantamount to making a search without a warrant.

The rule tells you ( classes of things that may be sub+ect of search and seiure> you have there the things which

are the ob+ect of a crime1 things which are stolen or embeled or possessed as fruits of a crime1 things which areto be used or being used as instrument of a crime. 7iven a situation where the thing or ob+ect that was seied doesnot come under any of these, the officer who seied the same has no authority to do so. %o that ob+ect or thingmust be returned unless it is per se a contraband. # seiure made of an ob+ect which is not specified in the searchwarrant is not covered by the warrant anymore. %o if it had been done, the officer has no right to possess the sameunless that thing or ob+ect is per se illegal in which case the government has a right to forfeit the same. !ut it is notadmissible in evidence.

%o in a case where a passenger who was to depart for abroad upon passing the scanning machine was found to becarrying some dangerous drugs in her underwear, the lady appears to be pregnant, the @9AA:A;9=)A9 'A>AAB. #ndthey felt that it was so hard. %o they suspected that it is not really indicative of pregnancy. %o they led her to aprivate area, a room, in the airport where she was told to undress. #nd they found some packages of dangerousdrugs around her waist and concealed under her underwear. %o they confiscated not only this but even her

handbag and they would not return it which includes her passport. The argument was that the passport had to beconfiscated because she might be able to depart if in case

@9AA:A;9=)A9 '(>;AB would be filed against her and shewould be able to post bail. %o they confiscated the passport. # petition was filed with the %0 to direct thesecustoms authorities to return the handbag because there is nothing in the handbag that contain contraband. #ndthere is also her documents of travel and the passport. The argument of the government was that the passport wasissued by a government entity and if the passport is being used in connection with a travel that was illegal becauseit would be in the nature of smuggling, the 6F# had the governmental authority to cancel that. The %0 directed therespondent to return this. For as long as she had not been properly proceeded against, only those ob+ects specifiedunder Rule '9: may be the sub+ect of search and seiure. %o the high court itemied these three. 3utside of these,any thing or ob+ect cannot be sub+ect of search and seiure. It violates the constitutional right of the offended party.

5ow relative to this, the contraband that was seied from the lady passenger was challenged as inadmissible inevidence purportedly it was not obtained on the basis of a search warrant. #nd that search without a warrant does

not come under any of the exceptions where a warrantless search and seiure is valid. In this case, the case of2eople v. 4eila ohnson, the high court made an additional exception there, where a citien may be searchedwithout a search warrant ) a situation where a citien entered any place where security is the paramount controllingfactor. %o doing, he thereby submits himself to a possible search which by the nature of the place is an exception tothe protection of the constitution. %o if he did not want to be searched, he should not go to that place. #nd one ofthese is the departure area in the airport preparatory to boarding an aircraft. %o that is an additional situation wherea warrantless search is valid C when it is done in a place where the security of the premises is the paramount factorre?uired to be observed at the place.

This was submitted as parallel to a situation where a civilian would enter premises where defense materials of the #F2 are being held. #ny search done without a warrant is valid because of the nature of the place which re?uiressecurity. %o you take note of this situation because in the ruling in that case, this is now recognied as notcontemplated under the provision of the constitution re?uiring a prior search warrant. The premise there whichvalidates the warrantless search is that the fellow is there of his own volition. If he does not want to be sub+ect tothe routinary checkup, he should not be there. 5ow, you may add this to the instances where warrantless search isvalid and therefore whatever contraband may have been seied may be utilied as evidence in a criminal case isadmissible although obtained without a search warrant.

5ow regarding this warrantless search and seiure made on checkpoints established by the government. %incethese checkpoints are not there precisely to check people who have committed a crime, but they are only thereprecisely to check and maintain security to those who passed there, the officers who are manning the checkpointsare not allowed to insert any part of their body inside the vehicle. hat is authoried by that checkpoint is only an

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ocular inspection and not a search. 3therwise, there should be probable cause such as when there was a radiomessage received by those manning the checkpoint that a certain vehicle bearing that license plate numberparticularly describing the vehicle, the color of it, is to pass that checkpoint and this vehicle figured in thecommission of a crime. That is probable cause to authorie a search. !ut otherwise, the fact that there is thatcheckpoint only authories ocular viewing of the ob+ect unless the officers have probable cause to authorie them tomake a warrantless search. In the absence of probable cause, if the officer manning the checkpoint would re?uirethe passenger to get out of the vehicle, then they start examining the inside of the vehicle, even if they obtaindangerous drugs, the same at most may only be confiscated but not used as evidence against those who were onboard the vehicle. The contrary is true if these officers who conducted this search had probable cause to make thesearch before they came upon the vehicle carrying the contraband. In other words, you center your reaction onwhether the search is valid or not, whether the evidence obtained is admissible or not, on that point C no probablecause, only ocular inspection. #nd ocular inspection has been construed by the high court consistently that no partof the body of the officer making the search should be inserted in the vehicle. %o where the officer inserted his headinside the window looking around and saw the contraband there, so he took this, that seiure would be illegalunless there is an antecedent probable cause. !ecause that will already be a search and that search will be illegal ifconducted without probable cause.

5ow relative to this re?uirement of probable cause, one of the exceptions to this warrantless seiure which is validis a seiure made pursuant to the so)called Terry %earch Rule. This rule is no more than the stop and frisk rulewhere law enforcers may stoop a civilian and frisk him for dangerous weapons. If in the course of the frisking, the

officer came upon a contraband, the person sub+ected to that stop and frisk rule may be prosecuted and thecontraband obtained in the course of the making of the frisking is admissible in evidence. 6o not look fr probablecause. The re?uirement of probable cause does not apply to the stop and frisk rule. The stop and frisk rule is basednot on probable cause but on the experience and training of the officer who would conduct this to deter thecommission of a crime. For instance, if the officer who made this stop and frisk action was a narcotic agent, and hisexplanation was that he sensed that the fellow whom he stopped and frisked for any weapon was under theinfluence of dangerous drugs ) the manner he was walking, the appearance of his face and his eyes ) this would

+ustify his act of stopping the same because by his training and experience e is familiar with offenders who areunder the influence of dangerous drugs. #nd in that situation, the resort to this search is considered to be onesimilar to a search in flagrante. !ut under the stop and frisk rule, the officer is not allowed to dig into the pocket ofthe person who was stopped to be frisked. hat is authoried is only the outside feeling of the clothing, not theexamination of the pocket, only the external feeling of the clothing of the sub+ect because the stop and frisk rule sonly fact finding whether the person who was stopped and frisked is carrying any dangerous weapon that may

place the life of the law enforcer and people around him in a risky situation.

3n the other hand, if an ordinary policeman would stop a civilian and frisk him, this is illegal. The authority to stop acitien and frisk him is warranted if the officer acted in the premises is one who is trained and experienced to detect@9AA:A;9=)A9 (9>A&B be sub+ect to frisking. 7iven a situation therefore where the law enforcer stopped a certaincitien and frisked him, there may be no probable cause, it may suggest a mere suspicion, then you look into the?ualification of the law enforcer who is doing so C whether by training or experience, he has that expertise to detectone who has committed a crime or is about to commit a crime or has +ust committed a crime. This is the +ustificationif the officer who conducted this is specially ?ualified by training or by experience to detect that situation. It is thiscircumstance that takes the place of probable cause. #nd so this was the sub+ect f that bar ?uestion re?uiring thecandidate to explain what is the Terry %earch Rule, which is no other than that of stopping a citien and friskinghim. !ut the Terry %earch Rule does not cover the officers digging into the pockets of the person being frisked. It isonly the outside clothing that is being felt to determine whether the person being frisked is carrying anything being

used therefore. Those of you who travel even in domestic airlines, when you pass that scanner, there is always thatofficer there inside who frisks you down to your legs. 5ow if they felt something there, they cannot insert their handsthere. They have to tell you to bring it out. It does not include any inserting any part of the body of the officer who isauthoried to make the frisking.

5ow these are the aspects given in bar problems on search and seiure. The impact is on the admissibility of theevidence obtained under an invalid search and so that is crucial to every lawyer to know whether the seiure isvalid because this is commonly raised by defense counsel challenging the admissibility of the evidence. !ut I havebeen emphasiing to you to know whether that evidence would have been challenged before the accused wasarraigned because if the opportunity to ob+ect to the evidence was from the very beginning even before e wasarraigned, a motion to suppress must be filed before the accused enters a plea. 3therwise, even if it was illegallyobtained, a belated ob+ection may not be entertained anymore. %o what would be inadmissible in evidence wouldbecome admissible because of this provision that any challenge thereto may only be made before arraignment andthe accused enters a plea. The timeliness of the challenge or ob+ection should not be overlooked by you.

%o we have come to the end of this.

I will not believe that you know everything about criminal procedure. 3nly these are relevant sub+ects of bar examsin remedial law. In remedial law, criminal procedure is given in the apportionment of the ?uestions for the barexams up to '&K, unless the examiner is inclined on criminal procedure, sometimes ma+ority of the situations givenis there on criminal cases and therefore criminal procedure. !ut ordinarily the bulk of remedial law is on civilprocedure and on special civil actions, then evidence.

leo henry rob

UST CIVIL LAW



Page 37 of 37

%o your silence would imply that you have learned enough. I hope it is not the other way. %o at this end I can say7336 4*0. D#$ 736 !4E%% $3* #44.

*(+r $!+re (+. "e$# "% $!+re/ A#. e# '$' '!"e ("e e# 'ere $re "(re +#3er $"(# %(+'$# '(e ( +ee., !' ! $ +e'!(# '( "e '$' !' ! '!"e '( re'!re/ S( I ! re'!re $re$.%/

I am here because I feel I can help young people become lawyers. If I fail that means I should withdraw already.Daybe I have become out of time.

%o good day to all of you. e will meet again on criminal law. !ut as long as I-m around you are free to askwhatever situation you may think about. !ut do not imagine those situations which are true only in the case of the

#rabian 5ights. 6o not imagine of weird situations. $ou are only clogging your mind with things which will not beasked. $ou think of situations that are probable ?uestions in the bar.

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