Combination of UP and BEDA Notes
Imposable penalty – the court considers
CRIMINAL PROCEDURE
GENERAL MATTERS
A. General Matters
Criminal Procedure – is the method prescribed
by law for the apprehension and prosecution of
persons accused of any criminal offense and for
their punishment, in case of conviction.
The elements of jurisdiction in criminal cases:
(1) the nature of the offense and/or the
penalty attached thereto; and
(2) the fact that the offense has been
committed within the territorial
jurisdiction of the court.
Note: Venue is the same as Jurisdiction in
Criminal cases. It cannot be agreed upon by the
parties.
Reason: venue is jurisdictional. It determines not
only the place where the criminal action is to be
instituted, but also the court that has jurisdiction
to try and hear the case.
(a) Jurisdiction Over the Subject Matter –
this refers to the right to act or power
and authority to hear and determine
cause.
It is determined in the allegations in the
complaint or information. The
averments in the complaint or
information characterize the crime to
be prosecuted and the court before
which it must be tried.
It cannot be fixed by the will of the
parties, the court or the accused, or by
mere administrative policy of any trial.
Statute applicable – jurisdiction of a
court to try a criminal action is
determined by the law in force at the
time of the institution of the action, and
NOT the law in force at the time off the
commission of the crime.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
the penalty which may be imposed upon
the accused for the charged in the
complaint and NOT the actual penalty
imposed after the trial.
Note: Doctrine of adherence of
jurisdiction.
(b) Jurisdiction Over the Person of the
Accused – this is acquired either by:
(1) Arrest of the accused; or
(2) Voluntary Appearance or
submission of the accused to the
jurisdiction of the court.
Note: voluntary appearance of the
accused is accomplished by:
1. Filing pleadings seeking
affirmative relief.
Except: challenging the
jurisdiction of the court over
the person of the accused.
Example: (a) a motion to quash
a complaint on the ground of
lack of jurisdiction over the
person of the accused because
failure to file would be a waiver
of the defense of lack of
jurisdiction over the person; or
(b) a motion to quash a warrant
of arrest because it is the very
legality of the court process
forcing the submission of the
person of the accused that is
the very issue in the motion to
quash a warrant of arrest.
Note: Case of former DOJ
Secretary Leila Delima – the
RTC has jurisdiction over the
person of Delima since the
provision of RA 9165 expressly
provides.
2. Giving Bail.
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Combination of UP and BEDA Notes
(c) Territorial Jurisdiction – it requires that
the offense must have been committed
within the court’s jurisdiction or within
the geographical limits of the territory
over which the court presides. This is to
be determined by the facts alleged in
the complaint or information as regards
the place where the offense charged
was committed.
Note: venue in criminal cases is
jurisdictional.
Jurisdiction
Evangelista vs. People
G.R. No. 163267, May 5, 2010
Venue; Jurisdiction –In order for the courts to
acquire jurisdiction in criminal cases, the
offense should have been committed or any
one of its essential ingredients should have
taken place within the territorial jurisdiction of
the court. If the evidence adduced during the
trial shows that the offense was committed
somewhere else, the court should dismiss the
action for want of jurisdiction.
1. Distinguish jurisdiction over the subject matter
from jurisdiction over the person of the accused.
Jurisdiction over Jurisdiction over the
the subject matter person of the accused
As to the nature
It requires that the person
charged with the offense
It refers to the must have been brought
authority of the court in to its forum for trial,
to hear and determine forcibly by warrant of
a particular case. arrest of upon his
voluntary submission to
the court.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
As to how jurisdiction acquired
It may be acquired by the
It is derived from law. It consent of the accused or
can never be acquired by waiver of objections.
solely by consent of the
accused.
As to objection of the jurisdiction
It may be made at any If the accused fails to
stage of the make his objections in
proceeding, and the time.
right to make such
objection is never
waived.
2. Requisites for exercise of criminal jurisdiction.
Criminal Jurisdiction – is the authority to hear
and try a particular offense and impose the
punishment for it.
The following REQUISITES must be present
before a court can validly exercise its power to
hear and try a case:
(1) it must have jurisdiction over the
subject matter;
(2) it must have jurisdiction over the
territory where the offense was
committed; and
(3) it must have jurisdiction over the person
of the accused.
Questions of jurisdiction – the issue of
jurisdiction may be raised at any of the
proceedings, even on appeal, and is not lost by
waiver or by estoppel.
The only exception is when the factual setting is
similar to that in Tijam v. Sibonghanoy, where the
court held that a party may be barred by laches
from invoking lack of jurisdiction at a late hour
for the purpose of annulling everything done in
the case with the active participation of said
party invoking the plea of lack of jurisdiction.
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Combination of UP and BEDA Notes

3. Jurisdiction of criminal courts Outline of Criminal Jurisdiction of courts.

Determination of Jurisdiction – the jurisdiction SC –

of courts in criminal cases is determined by the
CA –
allegations of the complaint or information and
not by the findings the court may make after the SANIGANBAYAN – SG 27 and above and private
trial. individual in conspiracy with the former.
Jurisdiction is determined by the law in force at RTC – exceeding 6 yrs.
the time of the commencement of the action.
MTC – not exceeding 6 yrs.
Exception: when the jurisdiction is dependent on
the nature of the offense; and the position OMBUDSMAN –
occupied by the accused at the time of the
OPP –
commission of the offense.
APP –
An action is deemed commence upon the filing of
the complaint.

It could be BP 129 or RA 7691

Note: Jurisdiction is determined by the law in 4. When injunction may be issued to restrain
force at the time of the action. criminal prosecution.

Principle of adherence of Jurisdiction (not
absolute)
Gen. Rule: it states that once jurisdiction is
vested in the court, it shall continue to exercise
such jurisdiction until the final determination of
the case. (Continuing Jurisdiction)
Gen. Rule: Criminal prosecutions may not be
enjoined, restrained or stayed by injunction
because public interest requires that criminal
acts be immediately investigated and prosecuted
for the protection of society.
Exceptions:

It is not affected by: (1) to afford adequate protection to the

constitutional rights of the accused;
(1) a subsequent valid amendment of the
information; or (2) when necessary for the orderly
administration of justice or to avoid
(2) a newly vesting jurisdiction over such
oppression or multiplicity of actions;
proceedings in another tribunal.
(3) when there is a prejudicial question
Exceptions:
which is sub judice;
(a) expressly provides; or
(4) when the acts of the officer are without
(b) it is construed to the effect that it is or in excess of authority;
intended to operate the actions pending
(5) when the prosecution is under an
before its enactment.
invalid law, ordinance or regulation;
Note: when a newly enacted statute changing
(6) when double jeopardy is clearly
the jurisdiction of a court is given retroactive
apparent;
effect, it can divest a court of jurisdiction over
cases already pending before it which were filed (7) when the court has no jurisdiction over
before the statute came into force or became the offense;
effective.

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Combination of UP and BEDA Notes
(8) when it is a case of persecution rather
than prosecution;
(9) when the charges are manifestly false
and motivated by vengeance;
(10) when there is clearly no prima facie case
against the accused and a motion to
quash on the ground has been denied
(11) where preliminary injunction has been
issued by the SC to prevent the
threatened unlawful arrest of the
petitioner;
Additional:
(12) to prevent the use of the strong arm of
the law in an oppressive and vindictive
manner; and
(13) when preliminary investigation is
conducted hastily.
RULE 110
PROSECUTION OF OFFENSES
B. Prosecution of Offenses
1. Criminal actions, how instituted.
The institution of a criminal action generally
depends upon whether the offense is one which
requires a preliminary investigation or not.
A criminal action is commenced by the filing of a
complaint or information. The complaint may be
filed either with the MTC, when allowed, or with
a public prosecutor for purposes of conducting a
preliminary investigation (R110, Sec. 1).
Note: however, there is no more direct filing to
the court. The complaint shall be filed before the
office of the public prosecutor or ombudsman.
The OPP/Ombudsman shall be the one to issue a
resolution and file an information to the court
thereafter.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
Criminal actions shall be instituted as follows:
(1) In offenses where a preliminary
investigation is required – by filing the
complaint with the proper officer for
the purpose of conducting the requisite
preliminary investigation; or
(2) In offenses which do not require
preliminary investigation – by filing the
complaint or information directly with
the MTC or with the Office of the
Prosecutor. In Manila and other
Chartered Cities, the complaint shall be
filed with the Office of the Prosecutor,
unless otherwise provided in their
charters (Rule 110, Sec. 1).
Three – fold doctrine – public officer is criminally,
civilly and administratively liable.
Note: Preliminary Investigation – penalty of at
least 4 years, 2 months and 1 day of
imprisonment.
Effect of the filing of a criminal action on the
period of prescription of offenses – the
institution of a criminal action shall interrupt the
running of the period of prescription of the
offense charged unless otherwise provided in
special laws.
Suspension of prescriptive periods in cases
falling under the authority of the Lupon – while
the dispute is under mediation, conciliation or
arbitration, the prescriptive periods for offenses
and causes of action under existing laws shall be
interrupted upon the filing of the complaint with
the Punong Barangay. The prescriptive period
shall resume upon receipt by the complainant or
the certification of repudiation or the
certification to file action issued by the Lupon or
Pangkat Secretary. Such interruption shall not
exceed 60 days from the filing of the complaint
with the Punong Barangay (RA 7160 or LGC of
1991, Sec. 410 [c]).
Complaint – it is a sworn written statement
charging a person with an offense, subscribed by
the offended party, any peace officer, or other
public officer charged with the enforcement of
the law violated.
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Combination of UP and BEDA Notes

Note: the complaint may be filed by the offended For Non-Private Crimes – persons authorized to
party, any peace officer, or other public officer file a complaint:
charged with the enforcement of the law
(1) The offended party;
violated.
(2) Any peace officer; or
Information – it is an accusation in writing
charging a person with an offense, subscribed by (3) Other public officer charged with the
the prosecutor and filed with the court. enforcement of the law violated (R110,
Sec. 3).
Complaint Information
Persons authorized to file an information:
As to the signing party (1) City or Provincial Prosecutor and their
assistants; and
It may be signed by the It is always signed by the
offended party, any prosecuting officer. (2) Duly appointed Special Prosecutors
peace officer, or other
public officer charged (R110, Sec. 4).
with the enforcement
Remedies if the prosecutor refuses to file an
of the law violated.
information – if the resolution of the Asst.
As to necessity of oath Prosecutor is not favorable to the complainant
and dismisses the same for lack of merit, the
It need not be under oath
complainant may file an MR to the Public
since the prosecuting
It must be sworn to by officer filing it is already Prosecutor. And if the same is also denied, he
the person signing it. acting under his oath of may appeal the case to the Secretary of Justice
office. (DOJ). In case of denial of DOC Secretary, he may
go to the Office of the President or CA or SC.
As to where it is filed

It may be filed either It is always filed with the

with the office of the court.
prosecutor or with the
court.

In case of variance between the complaint filed

by the offended party and the information in
crimes against chastity, which shall prevail? The
COMPLAINT. Illustration:

2. Who may file them, crimes that cannot be R43 R45

prosecuted de officio.
OP CA SC
Gen. Rule: All criminal actions commenced by a
complaint or information shall be prosecuted
under the direction and control of the prosecutor
(R110, Sec. 5). R45 R65

Who may file complaint or information?

DOJ

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Combination of UP and BEDA Notes
PR 15 days Petition for Review
OPP/OCP
MR 10 DAYS
APP/ACP
Note: the DOJ resolution is appealable
administratively before the Office of the
President and the decision of the OP is
appealable before the CA pursuant to Rule 43.
However, the resolution of the Secretary of
Justice may be nullified in a petition for certiorari
under Rule 65 on grounds of grave abuse of
discretion amounting to lack or in excess of
jurisdiction [Ching v. Sec. of Justice, GR No.
164317(2006)].
Note: Sec of DOJ may review, on petition or motu
proprio. The resolution of the Sec of DOJ may be
brought before SC via Rule 65.
Note: appeals to the OP from DOJ are only for
offenses punishable by reclusion perpetua, life
imprisonment or death.
Note: if the DOJ granted the petition for review,
and no information was yet filed in court, the
prosecutor may either file or refrain from filing
the information.
If the information has already been filed in court,
the DOJ may order the prosecutor to file a
petition to dismiss the case at the discretion of
the court.
If the accused filed a petition for review before
the DOJ and the case was already filed in court,
the court is bound to suspend the arraignment
for a period of not exceeding 60 days.
For Private Crimes – The following crimes must
prosecuted upon the complaint of the offended
party:
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
(1) Concubinage and adultery – the criminal
action should be initiated by the
offended spouse, who should have the
status, capacity and legal
representation at the time of the filing
of the complaint.
(2) Seduction, Abduction, and Acts of
lasciviousness – the criminal action is to
be initiated exclusively and successively
by the following persons in the following
order:
(a) By the offended woman;
(b) By the parents , grandparents or
legal/judicial guardians of the
offended woman in that successive
order, if the offended party is
incompetent of incapable of doing
so;
(c) By the State pursuant to the
Doctrine of Parens Patriae, when
the offended party dies or becomes
incapacitated before she could file
the complaint and she has no
known parents, grandparents or
guardian.
(3) Defamation imputing to a person any of
the following crimes of concubinage,
adultery, seduction, abduction or acts of
lasciviousness can be prosecuted only
by the party or parties defamed (Rule
110, Sec.5).
Pardon by the offended party –
generally, pardon must be made before
the filing of the information in court
except in cases of rape. Marriage
between the offender and the offended
party would be effective as pardon even
when the offender has already
commenced serving his sentence.
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Combination of UP and BEDA Notes
Note: The pardon shall extend to the –
co-accused/co-offenders, provided
their participations were as accomplices
and/or accessories not as principals.
3. Criminal actions, when enjoined.
Gen. Rule: Criminal prosecutions may not be
enjoined, restrained or stayed by injunction
because public interest requires that criminal
acts be immediately investigated and prosecuted
for the protection of society.
Exceptions:
(1) to afford adequate protection to the
constitutional rights of the accused;
(2) when necessary for the orderly
administration of justice or to avoid
oppression or multiplicity of actions;
(3) when there is a prejudicial question
which is sub judice;
(4) when the acts of the officer are without
or in excess of authority;
(5) when the prosecution is under an
invalid law, ordinance or regulation;
(6) when double jeopardy is clearly
apparent;
(7) when the court has no jurisdiction over
the offense;
(8) when it is a case of persecution rather
than prosecution;
(9) when the charges are manifestly false
and motivated by vengeance;
(10) when there is clearly no prima facie case
against the accused and a motion to
quash on the ground has been denied
(11) where preliminary injunction has been
issued by the SC to prevent the
threatened unlawful arrest of the
petitioner;
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
Additional:
(12) to prevent the use of the strong arm of
the law in an oppressive and vindictive
manner; and
(13) when preliminary investigation is
conducted hastily.
4. Control of prosecution.
Prosecution of criminal actions
Public Prosecutor – all criminal actions
commenced either by complaint or information
shall be prosecuted under the direction and
control of the public prosecutor (R110, Sec. 5).
Private Prosecutor – the prosecution may be
allowed to a private prosecutor upon compliance
with the ff. conditions:
(a) the public prosecutor has a heavy work
schedule, or there is no public
prosecutor assigned in the province or
city;
(b) the private prosecutor is authorized in
writing by the Chief of the Prosecutor
Office of the Regional State Prosecutor
(RSP);
(c) the authority of the private prosecutor
must be approved by the court;
(d) the private prosecutor shall continue to
prosecute the case until the end of trial
unless the authority is withdrawn or
otherwise revoked;
(e) in case of the withdrawal or revocation
of the authority of the private
prosecutor, the same must be approved
by the court.
Before the CA and SC
Gen. Rule: Only the Solicitor General may bring
or defend actions in behalf of the Republic of the
Philippines, or represent the People of the
Philippines or State in criminal proceedings
before the SC and Ca.
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Combination of UP and BEDA Notes
Except: (a) when there is denial of due process of
law to the prosecution and the State or its agents
refuse to act on the case to the prejudice of the
State and the private offended party; and (2)
when the private offended party questions the
civil aspect of a decision of a lower court.
Preliminary Investigation – The prosecutor
cannot be compelled by Mandamus to file an
information after he dismissed the complaint for
lack of merit.
Already filed cases – the prosecutor can now be
compelled to prosecute the case already filed
notwithstanding his personal convictions or
opinions. He must proceed with his duty of
presenting evidence to the court to enable the
court to arrive at its own independent judgment
as to the culpability of the accused.
Distinguish Control by the Prosecution from
Control by the Court.
Control by the Prosecution – before the case is
filed in court, the prosecution has a wide range
of discretion – discretion of whether, what and
whom to charge, the exercise depends upon a
variety of factors which are best appreciated by
prosecutors.
Control by the Court – after a case is filed in
court, any disposition of the case as to its
dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the
court. Although the prosecutor retains the
direction and control of the prosecution of
criminal cases even while the case is already in
court he cannot impose his opinion on the trial.
The determination of the case is within its
exclusive jurisdiction and competence.
RULE 110
Prosecution of Offenses
Evangelista vs. People
G.R. No. 163267, May 5, 2010
5. Sufficiency of complaint or information.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
Investigation of Prosecutor – Once an
information is filed in Court, any disposition of
the case as to its dismissal or the conviction or
acquittal of the accused rests on the discretion
of the court. The court is not dutifully bound by
such finding of the investigating prosecutor.
RULE 110
Prosecution of Offenses
Singian, Jr. vs. Sandiganbayan
706 SCRA 451 , September 30, 2013
The resolution of a demurrer to evidence
should be left to the exercise of sound judicial
discretion. A lower court’s order of denial shall
not be disturbed, that is, the appellate courts
will not review the prosecution’s evidence and
precipitately decide whether such evidence
has established the guilt of the accused beyond
a reasonable doubt, unless accused has
established that such judicial discretion has
been gravely abused, thereby amounting to a
lack or excess of jurisdiction. Mere allegations
of such abuse will not suffice.
Grave abuse of discretion is the capricious and
whimsical exercise of judgment on the part of
the public officer concerned which is
equivalent to an excess or lack of jurisdiction.
The presence or absence of the elements of the
crime is evidentiary in nature and is a matter of
defense that may be passed upon after a full-
blown trial on the merits, and the validity and
merits of a party’s defense or accusation, as
well as admissibility of testimonies and
evidence, are better ventilated during trial
proper.
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Combination of UP and BEDA Notes

Test of Sufficiency – A complaint or information officer charged with the enforcement of the law
shall be sufficient if it states the following: violated.

(1) name and surname of the accused, or Information – it is an accusation in writing

any appellation or nickname by which charging a person with an offense, subscribed by
he is known or has been known; the prosecutor and filed with the court.

(2) the designation of the offense given by Complaint Information

the statute;

(3) the acts or omissions complained of as As to the signing party

constituting the offense;
It may be signed by It is always signed by
(4) the name of the offended party; the offended party, the prosecuting officer.
any peace officer, or
(5) the approximate date of the other public officer
commission of the offense; charged with the
enforcement of the
(6) the place where the offense was
law violated.
committed; and
As to necessity of oath
(7) when an offense is committed by more
than one person, all of them shall be
included in the complaint or It need not be under
information (Rule 110, Sec.6). It must be sworn to oath since the
by the person signing prosecuting officer
Note: an accused is deemed to have waived his it. filing it is already acting
right to assail the sufficiency of the information under his oath of office.
when he voluntarily entered a plea when
arraigned and participated in the trial. Also,
objections to form cannot be made for the first As to where it is filed
time on appeal. The accused should have moved
for a Bill of Particulars for the quashal of It may be filed either It is always filed with
with the office of the the court.
information BEFORE arraignment, otherwise he
prosecutor or with
is deemed to have waived his objections to such
the court.
a defect.

Note: if real name was discovered thereafter, the As to the signing party
same shall be inserted in the complaint or It may be signed by the offended
information and record. party, any peace officer, or other
Complaint public officer charged with the
Lack of MCLE – the court shall not dismissed the
enforcement of the law violated.
case but the prosecutor shall be held
administratively liable.

Complaint – it is a sworn written statement It is always signed by the

Info
prosecuting officer.
charging a person with an offense, subscribed by
the offended party, any peace officer, or other As to necessity of oath
public officer charged with the enforcement of
the law violated. It must be sworn to by the
Complaint
person signing it.
Note: the complaint may be filed by the
offended party, any peace officer, or other public

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Combination of UP and BEDA Notes
It need not be under oath since
the prosecuting officer filing it is
Info
already acting under his oath of
office.
As to where it is filed
It may be filed either with the
Complaint office of the prosecutor or with
the court.
It is always filed with the court.
info
Note: In case of variance between complaint
filed by the offended party and information in
crimes against chastity, which shall prevail? The
COMPLAINT.
6. Designation of offense.
Requirements as to the designation of the
offense.
A complaint or information must state:
(1) the designation of the offense given by
the statute, or if there is no designation
of the offense, reference shall be made
to the section of the statute punishing
it;
(2) the statement of the acts or omissions
constituting the offense, in ordinary,
concise and particular words; and
(3) the specific qualifying and aggravating
circumstances must be stated in
ordinary and concise language Rule 110,
Sec. 8).
Inconsistency between the designation of the
offense and the allegations in the information –
the allegation shall prevail.
What controls is not the title of the information
or the designation of the offense but the actual
facts recited in the information. It is the recital of
facts of the commission of the offense not the
nomenclature of the offense that determines the
crime being charged in the information.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
Effect of the erroneous designation or failure to
make the designation of the offense – the errors
or omissions shall not affect the validity of the
information, so long as the facts alleged in the
body of the information sufficiently recite the
essential facts constituting the offense charged.
Effect when a qualifying or an ordinary
aggravating circumstance is attendant in the
offense is not specified in the information – if
they are not alleged in the information, even if
proved, they cannot be considered.
7. Cause of the accusation.
It is alleged in the complaint or information –
the acts or omissions complained of as
constituting the offense and the qualifying and
aggravating circumstances must be stated in
ordinary and concise language and not
necessarily in the language used in the statute
but in terms sufficient to enable the person of
common understanding to know what offense is
being charged as well as its qualifying and
aggravating circumstances and for the court to
pronounce judgment (Rule 110, Sec.9).
Note: an accused charged of a complex offense
can be convicted of one of the component
offenses – where a complex crime is charged and
the evidence fails to support the charge as to one
of the component offenses, the defendant can
only be convicted of the offense proven..
8. Duplicity of the offense; exception.
Rule on duplicity of offenses – duplicity of the
offense in an information or complaint means
the joinder of two or more separate and distinct
offenses in one and the same information or
complain.
Generally, a complaint or information must
charge only one offense (Rule 110, Sec.13). An
information is defective if it charges two or more
distinct or different offenses.
Rationale: the aim is to give the defendant the
necessary knowledge of the offense charged to
enable him to prepare his defense. The State
should not heap upon the defendant for two or
10
Combination of UP and BEDA Notes
more charges which might confuse him in his
defense.
Gen. Rule: it must charge only one offense.
Exceptions: the following:
(1) complex crimes;
(2) special complex crimes;
(3) continuing crimes or delito continuado;
(4) crimes susceptible of being committed
in various modes;
(5) crimes of which another offense is an
element thereof (Principle of
Absorption); and
Remedy of the accused – file a motion to quash
(R117, Sec.3 [f]). If he fails to do so, the objection
is deemed waived, in which case, the court may
convict him of as many offenses as are charged
and proved, and impose on him the penalty for
each offenses (R20, Sec.3).
9. Amendment or substitution of complaint or
information.
Concept of amendment – amendment refers to
the modification of a complaint or information by
the public prosecutor which changes its form and
substance.
Formal Amendment – the amendment is only in
form if it does not affect or alter the nature of the
offense charged.
Substantial Amendments – amendments that
are prohibited after the accused has pleaded are
amendments in substance. And the substantial
matters in the complaint or information is the
recital of facts constituting the offense charged
and determinative of the jurisdiction of the court.
All other matters are merely in form.
Illustration:
FACTS: Juan was charged with murder to which
he pleaded not guilty. After presentation of the
prosecution’s evidence, the Prosecutor moved to
amend the information to include aggravating
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
circumstances of dwelling and insult to the rank,
age and sex of the victim.
ISSUE: Is there substantial amendment?
HELD: No. The insertion of such aggravating
circumstances is a formal amendment. These
amendments do not have the effect of changing
another offense different or distinct from the
charge of murder as contained in the original
information. They relate only to the range of the
penalty that the court might impose in the event
of conviction. The amendment did not adversely
affect any substantial right of Juan.
Test to determine whether an amendment is
FORMAL or SUBSTANTIAL.
The test whether an amendment is only in form
and an accused is not prejudiced by such
amendment has been said to be whether or not
a defense under the information as it originally
stood would be equally available after the
amendment is made, and whether or not any
evidence the accused might have would be
equally applicable to the information in the one
form as in the other; if the answer is in the
affirmative, the amendment is one of form and
not of substance.
When may a complaint or information be
amended?
If made before the plea, the general rule is that
any amendment, formal or substantial, may be
done without need for leave of court. However,
when the amendment downgrades the nature of
the offense charged or excludes any of the
accused from the complaint or information, it
shall require a motion by the prosecutor, notice
to the offended party and leave of court.
If made after the plea, only formal amendments
may be made and it shall require leave of court
and such amendment should not be prejudicial
to the rights of the accused. When a fact
supervenes which changes the nature of the
crime charged in the information, or upgrades it
to a higher crime, a substantial amendment may
be made with a need for a re-arraignment of the
accused under the amended information (R110,
Sec.14).
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Combination of UP and BEDA Notes

Note: amendment as to substance after the plea Instances when an information may be
is proscribed, except when beneficial to the substituted – if it appears at any time before
accused. judgment that a mistake has been made in
charging the proper offense, the court shall
Amendment vs. Substitution
dismiss the original complaint or information
upon filing of a new one charging the proper
Amendment Substitution
offense, provided the accused shall not be placed
in double jeopardy.
As to its applicability
10. Venue of criminal actions.
It applies only to
substantial changes in Institution of criminal action
the original charge
Gen. Rule: criminal action shall be instituted in
It applies to both because a new
form and substance. complaint or the courts of the municipality or territory where
information is charged (a) the offense was committed; or (b) any of its
as a substitute for the essential ingredients occurred.
original charge.
Note: This is the principle of
As to necessity of another P.I territoriality. Venue in criminal cases is
jurisdictional.
When amendment is There is a need for
as to form, there is another PI and the Exceptions: are the following:
no need for another accused has to plead
anew to the new (1) when an offense is committed on a
preliminary
complaint. railroad train, in an aircraft, or any other
investigation.
public or private vehicle in the course of
As to applicability of rule on D.Jeopardy its trip – the criminal action may be
instituted and tried in the court or
It involves the same It presupposes that the municipality or territory where such
offense originally new information train, aircraft or other vehicle passed
charged or to an involves a different during such trip, including the place of
offense which offense which does not
departure and arrival;
necessarily includes include or is not
or is necessarily included in the original (2) when an offense is committed on board
included in the charge; hence, the a vessel in the course of its voyage – the
original charge; accused cannot claim criminal action may be instituted and
hence, substantial double jeopardy.
tried in the proper court of the first port
amendments to the of entry or of any municipality or
information after the territory through which the vessel
pleas has been taken passed during such voyage subject to
cannot be made over the generally accepted principles of
the objection of the
international law (R110, Sec.15);
accused, for if the
original information (3) felonies under Art. 2 of the RPC shall be
would be withdrawn, cognizable by the proper court where
the accused could the criminal action was first instituted.
invoke double
jeopardy. (a) Piracy – the venue of piracy, unlike
all other crimes, has no territorial
limits. It may be tried anywhere.

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Combination of UP and BEDA Notes
(b) Libel – the action may be instituted
at the election of the offended or
suing party in the province or city:
(i) Where the libelous article
is printed and first
published;
(ii) If one of the offended
parties is a private
individual, where said
private individual actually
resides at the time of the
commission of the
offense;
(iii) If the offended party is a
public official, where the
latter holds office at the
time of the commission of
the offense;
(4) In cases filed under BP 22 – the criminal
action shall be filed in the place where
the check was dishonored or issued. In
case of crossed-check, in the place of
depositary or collecting bank;
(5) In exceptional circumstances – to
ensure a fair trial and impartial inquiry,
the SC shall have the power to order a
change of venue or place of trial to avoid
miscarriage of justice (Constitution
Art.VIII, Sec.5 [4]).
Transitory Offense – is one where some acts
material and essential to the crime occur in one
place and some in another, in which case, the
rule is settled that the court of either province
where nay of the essential ingredients of the
crime took place has jurisdiction to try the case,
such as estafa, malversation or abduction.
Continuing Offense – is one which, although all
the elements thereof for its consummation may
have occurred in a single place, yet by reason of
the very nature of the offense committed, the
violation of the law is deemed to be continuing,
such as kidnapping, illegal detention where the
deprivation of liberty is persistent and continuing
from one place to another and libel where the
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
libelous matter is published or circulated from
one province to another.
11. Intervention of offended party.
Gen. Rule: The offended party has the right to
intervene by counsel in the prosecution of the
criminal action, where the civil action for
recovery of civil liability is instituted in the
criminal action (R110, Sec. 16).
Note: this is still subject to the control of
the prosecutor.
Exceptions: However, the exceptions are:
(1) Where from the nature of the crime and
the law defining and punishing it, no civil
liability arises in favor of the offended
party (e.g. Treason, rebellion, espionage
and contempt);
(2) Where the offended party has waived
his right to civil indemnity;
(3) Where the offended party has expressly
reserved his right to institute a separate
civil action; or
(4) Where the offended party has already
instituted said action (R110, Sec.16).
RULE 111
PROSECUTION OF CIVIL ACTION
C. Prosecution of Civil Action
1. Rule on implied institution of civil action with
criminal action.
Gen. Rule: the civil action for the recovery of civil
liability against the offender is deemed instituted
together with the criminal action (R111, Sec.1).
Exceptions: the civil action is not deemed
instituted in the following cases:
(a) When the offended party waives the
civil action;
13
Combination of UP and BEDA Notes
(b) When the offended party reserves his
right to institute a separate civil action;
or
(c) When the offended party has already
previously instituted the civil action
prior to the criminal action (R111,
Sec.1).
Reservation of the right to institute the civil
action; when separately made – the reservation
of the right to institute separately the civil action
shall be made before the prosecution starts
presenting its evidence and under circumstances
affording the offended party a reasonable
opportunity to make such reservation R111,
Sec.11).
Reservation; when not allowed – in instances:
(a) In criminal actions for violation of BP22
(R111, Sec.1 [b]);
(b) In criminal actions falling under the
jurisdiction of the Sandiganbayan
(RA8249, Sec.4); and
(c) In tax cases.
2001 Bar – Civil aspect is deemed instituted in
criminal action for BP22.
Criminal actions are given priority over civil
actions – criminal actions take precedence over
civil actions because the criminal action involves
the life and liberty of the accused. The civil action
is just an incident of the criminal case.
2. When civil action may proceed independently.
Independent Civil Actions are those under:
(a) Fundamental rights and liberties
(Art.32);
(b) Cases of defamation, fraud and physical
injuries (Art.33);
(c) Refusal or failure by police to render aid
or protection in case to life or property
(Art.34);
(d) Quasi-delict (Art.2176 NCC).
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
They may proceed independently of the criminal
action and shall require only a preponderance of
evidence. In no case shall the offended party
recover damages twice for the same act or
omission.
RULE 111
Prosecution of Civil Action
Lim vs. Kou Co Ping
679 SCRA 114 , August 23, 2012
Prejudicial question – If the action for the civil
liability ex delicto is instituted prior to or
subsequent to the filing of the criminal action,
its proceedings are suspended until the final
outcome of the criminal action.
3. When separate civil action is suspended.
After the commencement of the criminal action,
a separate civil action which the offended party
has reserved cannot be institutes until final
judgment has been rendered in the criminal
action. If the civil action has already been
instituted before the criminal action, the civil
action shall be suspended until final judgment in
the criminal action is rendered. In such case, the
offended party has the option of consolidating
civil action with the criminal proceeding (R111,
Sec.2).
Exceptions:
(a) In cases of independent civil actions
under Articles 32, 33, 34, and 2176 of
the NCC;
(b) Where the civil action raises a
prejudicial question;
(c) Where the civil action is consolidated
with the criminal action; and
(d) When the civil action is not one
intended to enforce the civil liability
arising from the crime.
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Combination of UP and BEDA Notes

2002 Bar – General rule, the acquittal of the
accused does not necessarily exempt him form
civil liability. The accused may be acquitted but
accused may still be adjudged civilly liable.
Except, the civil action based on delict may be
deemed extinguished if there is a finding in a final
judgment in the criminal action that the act or
omission from which the civil liability may arise
did not exist (R111, Sec.2).
4. Effect of death of accused or convict on civil
action.
General Rule: The effects are as follows:
(a) If the accused dies before arraignment,
the case shall be dismissed without
prejudice to any civil action of the
offended party may file a case against
the estate of the accused;
(b) If the accused dies after arraignment
during the pendency of the criminal
action, the civil liability arising from the
delict shall be extinguished;
by the court pursuant to Sec.16 of Rule
3.
5. Prejudicial question.
Prejudicial Question – is one which arises in a
case, the resolution of which is a logical
antecedent of the issue involved therein and the
cognizance of which pertains to another tribunal.
Elements: are the following:
(a) The civil action must be instituted prior
to the criminal action;
(b) The civil action involves an issue similar
or intimately related to the issue raised
in the subsequent criminal action; and
(c) The resolution of such civil action
determines whether the criminal action
may proceed.
Note: Resolve the civil action before the criminal
action.

(c) If the accused dies during the pendency

of appeal, his civil and criminal liabilities
are extinguished; and

(d) If the accused dies after the final RULE 111

judgment, the pecuniary liabilities of the
accused are not extinguished. Claims Prosecution of Civil Action
shall be filed against the estate of the
accused under Rule 86 of the ROC. Lim vs. Kou Co Ping

Exceptions: they are the following: 679 SCRA 114 , August 23, 2012

Prejudicial question – If the action for the civil

(a) Where the civil liability is predicated on
liability ex delicto is instituted prior to or
other sources of obligations such as law,
subsequent to the filing of the criminal action,
contract, quasi-contract, and quasi- its proceedings are suspended until the final
delict, or is an independent civil action, outcome of the criminal action.
the action may be continued against the
estate of the accused after proper
substitution is made either as to the
relatives or the estate; and
Illustration:
(b) If the civil action has been reserved and
subsequently filed or such civil action FACTS: X is charged with estafa in court for
has been instituted when the accused failure to remit to Y sums of money collected by
died, such civil action will proceed and him (X) for Y in payment for goods purchased
substitution of parties shall be ordered from Y, by depositing the amounts in his (X’s)

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Combination of UP and BEDA Notes
personal bank account. X files a motion to
suspend proceedings pending resolution of a civil
case earlier filed in court by X against Y for
accounting and damages involving the amounts
subject of the criminal case.
ISSUE: As the prosecutor in the criminal case,
briefly discuss your grounds in support of your
opposition to the motion to suspend proceedings
(2000 Bar).
HELD: I will oppose the motion to suspend
proceedings on the grounds that civil case filed
by X against Y for accounting and damages does
not involve an issue which is similar or intimately
related to the issue of estafa in the criminal
action, and that the resolution of the issue for
accounting will not determine whether the
criminal action may proceed (R111, Sec.7).
Illustration:
FACTS: X allegedly sold to Y a parcel of land which
X later also sold to Z. Y brought a civil action for
nullification of the second sale and asked that the
sale made by X in his favor be declared valid. X
theorized that he never sold the property to Y
and his purported signatures appearing in the
first deed of sale were forgeries. Thereafter, an
information for estafa was filed against X based
on the same double sale that was the subject of
the civil action. X filed a Motion for Suspension of
Action in the Criminal Case, contending that the
resolution of the issue in the civil case would
necessarily be determinative of his guilt or
innocence.
ISSUE: Is the suspension of the criminal action in
order? Explain (1999 Bar).
HELD: Yes. The issue in the civil action whether X
sold the property to Y and whether his purported
signatures in the first deed of sale were forgeries,
is a prejudicial question and the resolution of
which is determinative of his guilt or innocence.
If the first sale is null and void, there would be no
double sale and X would be innocent of the
offense of estafa.
6. Rule on filing fees in civil action deemed
instituted with the criminal action.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
The outline of the rules are the following:
(a) No filing fees are required for amounts
of actual damages, except with respect
to criminal actions for violation of BP22,
in which case, the offended party shall
pay in full the filing fees based on the
face value of the check as the actual
damages;
(b) If damages, other than actual (moral,
exemplary, and other damages), are
specified in the complaint or
information, the corresponding filing
fees shall be paid;
(c) Where moral, exemplary, and other
damages are not specified in the
complaint or information (the grant and
amount thereof are left to the sound
discretion of the trial court),
corresponding filing fees need not be
paid and shall simply constitute a first
lien on the judgment awarding such
damages (R111, Sec.1).
Note: in BP 22, the amount of the check involved
is the actual damages for which no separate civil
action is allowed.
RULE 112
PRELIMINARY INVESTIGATION
D. Preliminary Investigation
Preliminary Investigation – it is an inquiry or
proceeding to determine whether there exists
sufficient ground to engender a well-founded
belief that a crime has been committed and that
the respondent is probably guilty thereof and
should be held for trial (R112, Sec.1).
Note: it is “merely inquisitorial.”
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Combination of UP and BEDA Notes
RULE 112
Preliminary Investigation
San Miguel Corp. vs. Puzon, Jr.
631 SCRA 48 , September 22, 2010
Preliminary Investigation – The determination
of the existence or absence of probable cause
lies within the discretion of the prosecuting
officers after conducting a preliminary
investigation upon complaint of an offended
party.
1. Nature of right.
The right to preliminary investigation is of a
statutory character and may be invoked only
when specifically created by statute. It is not a
fundamental right and is not among the rights
guaranteed to the accused in the bill of rights
(Statutory Right).
Right to Preliminary Investigation – it is a
statutory right. It is not a mere formal or
technical right but a substantial right. The
absence of preliminary investigation does not
affect the court’s jurisdiction over the case. Nor
do they impair the validity of the information or
otherwise render it defective; but, if there were
no PI and the defendants, before entering their
plea, invite the attention of the court to their
absence, the court, instead of dismissing the
information, should conduct it or remand the
case to the inferior court so that the preliminary
investigation may be conducted.
Waiver of Right – the right to PI is a personal right
which the accused may waive either expressly or
by implication but at all times must be
unequivocal. Mere failure of a defendant and/or
his counsel to appear during PI cannot be
construed as a waiver.
Application for bail – it shall not bar the accused
from assailing the regularity or questioning the
absence of a PI of the charge against him
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
provided that he raises the challenge before
entering his plea.
When right DEEMED waived – (1) by express
waiver or by silence; (2) failure to invoke it during
arraignment; and (3) consenting to be arraigned
and entering a plea of not guilty without invoking
the right to PI.
Note: the waiver, whether express or implied,
must be in a clear and unequivocal manner.
The right cannot be raised for the first time on
appeal.
When right NOT DEEMED waived – (1) Failure to
appear before the prosecutor during the
clarificatory hearing or when summoned, when
the right has invoked at the start of the
proceeding; or (2) when the accused filed an
application for bail and was arraigned over his
objection and the accused demand that PI be
conducted.
2. Purposes of preliminary investigation.
PI is conducted for the following purposes:
(a) To determine whether a crime has been
committed and whether there is
probable cause to believe that the
accused is guilty thereof;
(b) To preserve the evidence and keep the
witnesses within the control of the
State; and
(c) To determine the amount of bail, when
the offense is bailable.
3. Who may conduct determination of existence
of probable cause.
Probable Cause – is the existence of such facts
and circumstances as would excite the belief, in
a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person
charged was guilty for the crime for which he was
prosecuted.
Note: Establishment of probable cause needs
“only more than ‘bare suspicion,’ or ‘less than
evidence which would justify conviction.”
17
Combination of UP and BEDA Notes
Metropolitan Bank and Trust Company vs.
Reynado
627 SCRA 88, August 09, 2010
Probable cause – is defined as such facts and
circumstances that will engender a well-
founded belief that a crime has been
committed and that the respondent is
probably guilty thereof and should be held for
trial.
Public Prosecutor; Discretionary – Generally, a
public prosecutor is afforded a wide latitude of
discretion in the conduct of a preliminary
investigation. By way of exception, however,
judicial review is allowed where respondent
has clearly established that the prosecutor
committed grave abuse of discretion that is,
when he has exercised his discretion “in an
arbitrary, capricious, whimsical or despotic
manner by reason of passion or personal
hostility, patent and gross enough as to
amount to an evasion of a positive duty or
virtual refusal to perform a duty enjoined by
law.
Not part of trial – A preliminary investigation
for the purpose of determining the existence of
probable cause is “not a part of the trial”; A
finding of probable cause does not require an
inquiry into whether there is sufficient
evidence to procure a conviction.
The presence or absence of the elements of the
crime is evidentiary in nature and is a matter of
defense that may be passed upon after a full-
blown trial on the merits.
Public prosecutors, not the private
complainant, are the ones obliged to bring
forth before the law those who have
transgressed it.
The law makes it a legal duty for prosecuting
officers to file the charges against whomsoever
the evidence may show to be responsible for
the offense.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
The following may conduct a PI:
(a) Provincial or city fiscal and their
assistants;
(b) National and regional state prosecutors;
(c) Such other officers as may be
authorized by law such as: (1) COMELEC;
(2) Ombudsman; (3) PCGG; and (4) city
and provincial prosecutors (R112,
Sec.2).
The nature and extent of the authority of the
Ombudsman to conduct PI – the power to
investigate and to prosecute granted by law to
the Ombudsman is plenary and unqualified. It
pertains to any act or omission of nay public
officer or employee when such act or omission
appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction
between cases cognizable by the Sandiganbayan
and those cognizable by regular courts.
4. Resolution of investigating prosecutor.
If the investigating prosecutor finds probable
cause – he shall prepare the resolution and
information where he shall certify under oath
that:
(a) He or an authorized officer personally
examined the complainant and his
witnesses;
(b) There is reasonable ground to believe
that a crime has been committed and
the accused is probably guilty thereof;
(c) The accused was informed of the
complaint and the evidence against him;
and
(d) The accused was given an opportunity
to submit controverting evidence (R112,
Sec.4).
If the investigating prosecutor finds no probable
cause – the investigating prosecutor shall
recommend the dismissal of the case. No
18
Combination of UP and BEDA Notes

complaint or information may be filed or
dismissed by an investigating prosecutor without
the prior written authority or approval of the
provincial or city prosecutor or the ombudsman
or his deputy.
due course. If the accused has been
arraigned “after” the filing of the
petition, any arraignment shall not bar
the Secretary of Justice from exercising
his power of review;

(f) the Secretary of Justice may reverse,

affirm or modify the appealed
5. Review.
resolution; and
The remedy of the aggrieved party from the
(g) however, the Secretary has another
resolution of the investigating prosecutor – an
option which is to order the
aggrieved party may appeal by filing a verified
reinvestigation of the case by the
petition for review with the Secretary of Justice,
investigating prosecutor or by another
and by furnishing copies thereof to the adverse
prosecutor designated to conduct the
party and the Prosecution Office issuing the
same.
appealed resolution, subject to the following
conditions: Illustration:

(a) the appeal shall be taken within 15 days R43 R45

from receipt of the resolution, or of the
denial of the motion for OP CA SC
reconsideration/reinvestigation if one
has been filed. Only one MR shall be
allowed; R45 R65
(b) unless the Secretary of Justice directs
otherwise, the appeal shall not stay the
filing of the corresponding information DOJ
in court on the basis of the finding of
probable cause in the appealed
resolution, but the appellant and
PR 15 days Petition for Review
prosecutor shall see to it that, pending
resolution of the appeal, the OPP/OCP
proceedings in court are held in
abeyance;

(c) the party filing a petition for review is MR 10 DAYS

allowed to file a motion for the
suspension of the arraignment;
(d) if the Secretary of Justice finds the same
to be patently without merit or
manifestly intended for delay, or when
the issues raised therein are too
unsubstantial to require consideration,
he may dismiss the petition outright;
(e) if an information has already been filed
and the accused has already been
arraigned “prior” to the filing of the
petition , the petition shall not be given
APP/ACP
Note: the DOJ resolution is appealable
administratively before the Office of the
President and the decision of the OP is
appealable before the CA pursuant to Rule 43.
However, the resolution of the Secretary of
Justice may be nullified in a petition for certiorari
under Rule 65 on grounds of grave abuse of
discretion amounting to lack or in excess of

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Combination of UP and BEDA Notes
jurisdiction [Ching v. Sec. of Justice, GR No.
164317(2006)].
Note: Sec of DOJ may review, on petition or motu
proprio. The resolution of the Sec of DOJ may be
brought before SC via Rule 65.
Note: appeals to the OP from DOJ are only for
offenses punishable by reclusion perpetua, life
imprisonment or death.
Note: if the DOJ granted the petition for review,
and no information was yet filed in court, the
prosecutor may either file or refrain from filing
the information.
If the information has already been filed in court,
the DOJ may order the prosecutor to file a
petition to dismiss the case at the discretion of
the court.
If the accused filed a petition for review before
the DOJ and the case was already filed in court,
the court is bound to suspend the arraignment
for a period of not exceeding 60 days.
6. When warrant of arrest may issue.
Warrant of Arrest – it is a legal process issued by
competent authority, directing the arrest of a
person or persons upon grounds stated therein.
Issuance of the warrant of arrest – if the judge,
after examining the resolution of the prosecutor
and its supporting evidence finds probable
cause, he shall issue a warrant of arrest or a
commitment order if the accused has already
been arrested pursuant to a warrant. In case of
doubt on the existence of probable cause, the
judge may order the prosecutor to present
additional evidence.
Note: PI conducted by the judge is call
preliminary examination.
7. Cases not requiring a preliminary investigation.
PI is not required in the following cases:
(a) cases in which the imposable penalty
does not exceed 4 years, 2 months and
1 day (prision correccional in its
maximum period); and
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
(b) where the accused who has been
lawfully arrested without a warrant
undergone inquest proceeding (R112,
Sec.9)
8. Remedies of accused if there was no
preliminary investigation.
An accused may:
(a) refuse to enter a plea upon arraignment
and object to further proceedings upon
such grounds;
(b) insists on a preliminary investigation;
(c) raise the lack of PI as an error on appeal;
(d) file a petition for certiorari; or
(e) file for petition for prohibition.
Note: the effect of lack of PI: (1) it does not
invalidate the information; (2) it does not affect
the jurisdiction; and (3) it does not constitute a
ground for quashing the information.
Inquest – is an informal and summary
investigation conducted by a public prosecutor in
criminal cases involving persons lawfully arrested
and detained without the benefit of a warrant of
arrest issued by the court for the purpose of
determining whether or not said persons should
remain under the custody and correspondingly
be charged in court.
RULE 113
ARREST
E. Arrest
Arrest – is the taking of a person into the custody
in order that he may be bound to answer for the
commission of an offense.
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Combination of UP and BEDA Notes
RULE 113
Arrest
Martin Villamor and Victor Bonaobra vs.
People
March 22, 2017
Section 2, Article Ill of the 1987 Constitution
requires a judicial warrant based on the
existence of probable cause before a search
and an arrest may be effected by law
enforcement agents. Without the said warrant,
a search or seizure becomes unreasonable
within the context of the Constitution and any
evidence obtained on the occasion of such
unreasonable search and seizure shall be
inadmissible in evidence for any purpose in any
proceeding.
Evidence obtained and confiscated on the
occasion of such an unreasonable search and
seizure is tainted and should be excluded for
being the proverbial fruit of the poisonous
tree."
1. Arrest, how made.
Arrest is made:
2. Arrest without warrant, when lawful.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
Under Section 5 of Rule 113 of the Rules of
Court, a lawful arrest may be effected even
without a warrant of arrest in the following
instances:
Sec. 5. Arrest without warrant; when lawful. -
A peace officer or a private person may,
without a warrant, arrest a person:
(a) When, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
offense;
(b) When an offense has in fact just been
committed, and he has probable cause to
believe based on personal knowledge of facts
or circumstances that the person to be
arrested has committed it; and
(c) When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving final
judgment or temporarily confined while his
case is pending, or has escaped while being
transferred from one confinement to another.
In cases falling under paragraphs (a) and (b)
above, the person arrested without a warrant
shall be forthwith delivered to the nearest
police station or jail and shall be proceeded
against in accordance with Section 7 of Rule
112.
In warrantless arrests made pursuant to
Section 5(a), Rule 113, two elements must
concur, namely "(a) the person to be arrested
must execute an overt act indicating that he
has just committed, is actually committing, or
is attempting to commit a crime; and (b) such
overt act is done in the presence or within the
view of the arresting officer."
(a) by an actual restraint of a person to be
arrested; or
(b) by the submission of the accused to the
custody of the person making the arrest
(R113, Sec.2).
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Combination of UP and BEDA Notes
Gen. Rule: No peace officer or person has the
power or authority to arrest anyone without a
warrant.
Exception: A peace officer or a private person
may, without warrant, arrest a person:
(a) when, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit
an offense (in flagrante delicto);
(b) when an offense has just been
committed, and he has probable cause
to believe based on his personal
knowledge of facts and circumstances
that the person to be arrested has
committed the crime (Hot pursuit);
(c) when the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is
serving final judgment or is temporarily
confined while his case is pending, or
has escaped while being transferred
from one confinement to another
(Escapee) (R113, Sec. 5);
Other lawful warrantless arrests:
(d) where a person who has been lawfully
arrested escapes or is rescued (R113,
Sec. 13);
(e) when the bondsman arrests a prisoner
out on bail for the purpose of bringing
him to court (R114, Sec. 23); and
(f) where the accused attempts to leave
the country without the permission of
the court (R114, Sec. 23).
RULE 113
Arrest
People vs. Collado
June 17, 2013
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
Warrantless Arrests; in flagrante delicto –
Section 5(a) is what is known as arrest in
flagrante delicto. For this type of warrantless
arrest to be valid, two requisites must concur:
(1) the person to be arrested must execute an
overt act indicating that he has just committed,
is actually committing, or is attempting to
commit a crime; and, (2) such overt act is done
in the presence or within the view of the
arresting officer.
A common example of an arrest in flagrante
delicto is one made after conducting a buy-
bust operation.
When to object – Assuming that irregularities
indeed attended the arrest of appellants, they
can no longer question the validity thereof as
there is no showing that they objected to the
same before their arraignment. Neither did
they take steps to quash the Informations on
such ground. They only raised this issue upon
their appeal to the appellate court. By this
omission, any objections on the legality of their
arrest are deemed to have been waived by
them.
Under Section 13, Rule 126 of the Rules of
Court, person lawfully arrested may be
searched for dangerous weapons or anything
which may have been used or constitute proof
in the commission of an offense without a
search warrant.
(g)
RULE 113
Arrest
Rebellion vs. People
623 SCRA 343, July 05, 2010:
22
Combination of UP and BEDA Notes
Illegality of Arrests – An accused is estopped
from assailing any irregularity of his arrest if he
fails to raise this issue or to move for the
quashal of the information against him on this
ground before arraignment—any objection
involving a warrant of arrest or the procedure
by which the court acquired jurisdiction over
the person of the accused must be made
before he enters his plea; otherwise, the
objection is deemed waived.
Lawful Warrantless Arrests —A lawful arrest
without a warrant may be made by a peace
officer or a private individual under any of the
following circumstances: Sec 5. Arrest without
warrant, when lawful—A peace officer or a
private person may, without a warrant, arrest
a person: (a) When, in his presence, the person
to be arrested has committed, is actually
committing or is attempting to commit an
offense; (b) When an offense has just been
committed and he has probable cause to
believe based on personal knowledge of facts
or circumstances that the person to be
arrested has committed it; and (c) When the
person to be arrested is a prisoner who has
escaped from a penal establishment or place
where he is serving final judgment or is
temporarily confined while his case is pending,
or has escaped while being transferred from
one confinement to another.
RULE 113
Arrest
People vs. Amper
620 SCRA 204 , May 05, 2010
Arrest – We have consistently ruled that an
accused is estopped from assailing the legality
of his arrest if he fails to raise this issue, or to
move for the quashal of the information
against him on this ground, which should be
made before arraignment.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
RULE 113 & 117
Arrest and Motion to Quash
People vs. Cunanan
753 SCRA 275 , March 16, 2015
Arrests; Motion to Quash – Jurisprudence is
settled that “any irregularity attending the
arrest of an accused should be timely raised in
a motion to quash the Information at any time
before arraignment, failing [in] which, he is
deemed to have waived” his right to question
the regularity of his arrest.
3. Method of arrest.
The following are the methods of arrest:
By an officer with warrant; by officer without
warrant; or by private person.
a) By officer with warrant
By an officer with a warrant – the officer shall
inform the person to be arrested of the cause of
the arrest and the fact that a warrant has been
issued for his arrest except when he flees or
forcibly resists before the officer has opportunity
to so inform him, or when the giving of such
information will imperil the arrest. The officer
need not have the warrant in his possession at
the time of the arrest, but after the arrest, if the
person arrested requires, the warrant shall be
shown to him as soon as practicable (R113, Sec.
7);
b) By officer without warrant
By an officer without a warrant – the officer shall
inform the person to be arrested of his authority
and the cause of the arrest unless the latter is
either:
(a) engaged in the commission of an
offense;
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Combination of UP and BEDA Notes
(b) is pursued immediately after its
commission; or
(c) escapes or flees, or forcibly resists
before the officer has opportunity
to so inform him, or when the giving
if such information will imperil the
arrest (R113, Sec. 8);
c) By private person
By a private person – he shall inform the person
to be arrested of the intention to arrest him and
the cause of the arrest unless the latter is either:
(a) engaged in the commission of an
offense;
(b) is pursued immediately after its
commission; or
(c) escapes or flees, or forcibly resists
before the officer has opportunity
to so inform him, or when the giving
if such information will imperil the
arrest (R113, Sec. 9).
4. Requisites of a valid warrant of arrest.
They are:
(1) it shall be issued upon probable cause
which must be personally determined
by a judge after evaluating the
resolution of the prosecutor and its
supporting documents; and
(2) the warrant must particularly describe
the person to be arrested in connection
with a specific offense of crime
(Constitution Art. III, Sec. 2).
a) Determination of probable cause for issuance
of warrant of arrest.
Probable cause for the issuance of a warrant of
arrest is the existence of such facts and
circumstances that would lead a reasonably
discreet and prudent person to believe that an
offense has been committed by the person
sought to be arrested.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
Procedure for the issuance of warrant of arrest
– the following steps must be followed in the
issuance of a warrant of arrest by a judge:
(1) the judge shall personally evaluate the
report and the supporting documents
submitted by the fiscal regarding the
existence of probable cause and on the
basis thereof, issue a warrant of arrest;
or
(2) if on the basis thereof he finds no
probable cause, he may disregard the
fiscal’s report and require the
submission of supporting affidavits of
the witnesses to aid him in arriving at a
conclusion as to the existence or
probable cause; and
(3) if the judge still finds no probable cause
despite the additional evidence, he
shall, within 10 days from its submission
or expiration of said report, dismiss the
case. When he finds probable cause, he
shall issue a warrant of arrest, or a
commitment order if the accused had
already been arrested, and hold him for
trial. However, if the judge is satisfied
that there is no necessity for placing the
accused under custody, he may issue
summons instead of a warrant of arrest
(R112, Sec. 8 (b)).
b) Distinguish between probable cause of
prosecutor from that of a judge.
The prosecutor passes upon whether there is
reasonable ground to believe that the accused is
guilty of the offense charged and should be held
for trial.
The judge, on the other hand, determines
whether the warrant of arrest should be issued
against the accused, i.e., whether there is a
necessity for placing him under immediate
custody in order not to frustrate the ends of
justice.
The first kind of preliminary investigation is
executive in nature. It is part of the prosecution’s
job.
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Combination of UP and BEDA Notes
The second kind of preliminary investigation
which more properly called preliminary
examination is judicial in nature and is lodged
with the judge.
Note: John Doe/Jane Doe Warrant of Arrest is
valid. Provided, there is descriptive personae.
RULE 114
BAIL
F. Bail
Bail – is the security given for the temporary
release of a person in custody of the law,
furnished by him or a bondsman, to guarantee
his appearance before any court as required
under the conditions set forth in the rules (R114,
Sec. 1).
Purposes:
(1) the purpose of putting up bail is to
release an accused from his
imprisonment until his conviction and
yet secure his appearance at the trial of
the case;
(2) to honor the presumption of innocence
until his guilt is proven beyond
reasonable doubt; and
(3) to enable him to prepare his defense
without being subject to punishment
prior to conviction.
Forms of bail – bail may be given in the form of:
(a) corporate surety;
(b) property bond;
(c) cash bond; or
(d) recognizance.
1. Nature
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
The right to bail is a constitutional right. Such a
right flows from the presumption of innocence in
favor of the accused who should not be subjected
to the loss of freedom as thereafter he would be
entitled to acquittal, unless his guilt be proved
beyond reasonable doubt.
Requirement of Custody
Gen. Rule: custody of the law is required in
before the curt can act on an application for bail.
Exceptions: custody is not required in cases of
witnesses posting bail:
(a) when bail is required to guarantee the
appearance of a material witness [R119,
Sec. 14];
(b) when bail is required to guarantee the
appearance of a prosecution witness in
cases where there is substitution of the
information [R110, Sec. 14].
RULE 114
Bail
People vs. Sobrepeña, Sr.
812 SCRA 145 , December 05, 2016
Section 13, Article III of the Constitution
provides: All persons, except those charged
with offenses punishable by reclusion
perpetua when evidence of guilt is strong,
shall, before conviction, be bailable by
sufficient sureties or be released on
recognizance as may be provided by law. The
right to bail shall not be impaired even when
the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be
required.
Section 7, Rule 114 of the Rules of Court states
that no person charged with a capital offense
or an offense punishable by reclusion perpetua
or life imprisonment, shall be admitted to bail
when the evidence of guilt is strong, regardless
of the stage of the criminal action.
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Combination of UP and BEDA Notes
Thus, from the above cited provisions and in
cases involving non-bailable offenses, what is
controlling is the determination of whether the
evidence of guilt is strong, which is a matter of
judicial discretion that remains with the judge.
(c)
Right to bail in Extradition Proceedings
Gen. Rule: right to bail is available only in
criminal proceedings.
Exception: only upon clear and convincing
evidence:
(1) that once granted, the applicant will not
be flight risk or will not pose danger to
the community; and
(2) that there exists especial humanitarian
and compelling circumstances.
(3) that he will comply with all the
conditions for purposes of the bail.
Note: extraditee is not entitled to notice and
hearing before the issuance of the warrant
of arrest.
Note: Bail is a matter of discretion in extradition
proceedings and in deportation proceedings
upon the Commissioner of immigration and
deportation.
2. When a matter of right; exceptions.
All persons in custody shall be admitted to bail as
a matter of right, with sufficient sureties, or
released on recognizance:
(a) before or after conviction by the MTC;
and
(b) before conviction by the RTC of an
offense not punishable by reclusion
perpetua, life imprisonment or death
(R114, Sec.4).
3. When a matter of discretion.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
Bail is a matter of discretion where the imposable
penalty is death, reclusion perpetua or life
imprisonment in the following cases:
(a) after conviction by the RTC (R114,
Sec.5); and
(b) before conviction and the evidence of
guilt is not strong.
Bail is neither a matter of right nor discretion in
the following cases:
(a) where the impossible penalty is death,
reclusion perpetua or life
imprisonment;
(1) after conviction (conviction is due
to strong evidence of guilt);
(2) evidence of guilt is strong; and
(3) even where the actual conviction is
for a lower penalty; and
(b) where the penalty imposes by the RTC is
more than 6 years of imprisonment and
any of the 6 circumstances enumerated
un R114, Se. 5, par. 3 is present.
RULE 114
Bail
Balanay vs. Adalim-White
778 SCRA 1 , January 11, 2016
Bail hearing is necessary even if the
prosecution does not interpose any objection
or leaves the application for bail to the sound
discretion of the court.
A grant of bail does not prevent the trial court,
as the trier of facts, from making a final
assessment of the evidence after full trial on
the merits. It is not an uncommon occurrence
that an accused person granted bail is
convicted in due course.
(c)
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Combination of UP and BEDA Notes

Denial of bail – in the following are bail negating (c) when the accused the accused has
circumstances: waived his writing the right to appeal; or

Recidivist, quasi-recidivist, habitual delinquent or (d) the accused applied for probation.
he committed the offense in the state of
Sec. 24, Rule 114 ROC vs. Probation Law –
reiteraccion or habituality or he escaped from
application for probation allows bail on
penal establishment or he has evaded his service
probation. Applicant has already been removed
of his sentence or violate his conditional pardon,
from the rules of court (PD 968).
parole or if he is a flight risk or he may commit
another offense. 4. Hearing of application for bail in capital
offenses.
Where to file bail – in the following cases:
Capital Offense – is one which, under the law
(a) in the court where the case is pending;
existing at the time of its commission and of the
or
application for admission to bail, may be
(b) in the absence or unavailability of the punished with death (R114, Sec.6).
judge of that court, you may file it with
General rule: capital offense or those punishable
the RTC, MeTC or MTC of the City or
by reclusion perpetua. Life imprisonment or
Province.
death are not bailable when evidence of guilt is
(c) If you are arrested in a place other than strong.
the place where your case is pending –
Except: when evidence of guilt is NOT strong.
RTC of the said place where you are
arrested. Requirement of hearing in capital offenses – a
summary hearing shall be held in order for the
Note: filing is not a question of jurisdiction, but
prosecution to show that evidence of guilt of the
as to the availability of the judge.
applicant for bail is indeed strong (R114, Sec. 8).
Bail; when not available – right to bail is also not
Note: the primary objective of bail is to ensure
available:
that the accused appears at trial.
(1) After a judgment of conviction has
Note: it is not allowed that prosecution offers no
become final;
objection. The burden is on the prosecution to
Note: if he applied for probation before prove that the evidence is strong. Hearing is
finality, he may be allowed temporary mandatory to prove that the evidence of guilt is
liberty under his bail. strong.

(2) After the accused has commenced to Minors charged with capital offense – a minor if
serve his sentence [R114, Sec. 24]; and convicted, would entitle him to a penalty next
lower than that prescribed by law, he is entitled
(3) To military personnel who is an accused
to bail regardless of whether the evidence of guilt
under general court martial.
is strong.
Judgment of conviction becomes final; no bail –
5. Guidelines in fixing amount of bail.
4 ways:
Application for bail shall fix a reasonable amount
(a) after the expiration of 15 days from
of bail considering, but not limited to, the
promulgation or notice of judgment;
following factors:
(b) after or when the sentence has been
(1) financial ability of the accused to give
partially or totally served;
bail;

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Combination of UP and BEDA Notes
(2) nature and circumstances of the
offense;
(3) penalty for the offense charged;
(4) character and reputation of the
accused;
(5) age and health of the accused;
(6) weight of evidence against the accused;
(7) probability of the accused appearing at
the trial;
(8) forfeiture of other bail;
(9) the fact that the accused was a fugitive
from justice when arrested; and
(10) pendency of other cases when the
accused is on bail (R114, Sec. 9).
6. Bail when not required.
Bail is not required in the following instances:
(1) a person who has been in custody for a
period equal to or more than the
possible maximum imprisonment
prescribed for the offense charged.,
without prejudice to the continuation of
the trial or the proceedings on appeal;
(2) a person accused of an offense with a
maximum penalty of destierro shall be
released after 30 days of preventive
imprisonment;
(3) a person in custody for a period equal to
or more than the minimum of the
principal penalty prescribed for the
offense charged shall be released on a
reduced bail or on his own
recognizance, at the discretion of the
court (R114, Sec. 16);
(4) when the offense charged is a violation
of an ordinance, light felony or a
criminal offense, the impossible penalty
wherefore does not exceed 6 months of
imprisonment and/or fine of P2,000
under RA 6036 where said person has
established that he is unable to post the
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
required cash or bail bond. Instead of
bail, he shall be required to sign in the
presence of 2 witnesses of good
standing in the community;
(5) where the accused has applied for
probation and before the same has
been resolved but no bail was filed or
the accused is incapable of filing one, in
which case he may be released on
recognizance; and
(6) in case of a youthful offender held for
physical or mental examination, trial or
appeal, if unable to furnish bail and
under the circumstances under PD 603
as amended.
Bail is nonetheless required:
(1) when the accused was caught
committing the offense in flagrante;
(2) when accused confesses to the
commission of the offense unless he
later repudiates the same in a sworn
statement or in open court as having
been extracted through force or
intimidation;
(3) when accused is found to have
previously escaped legal confinement,
evaded sentence, or jumped bail;
(4) when accused is found to have
violated sec. 2, RA 6036, which
provides that the violation of the
accused of the sworn statement
(required instead of bail) shall justify
the court to order his immediate
arrest, if the failure of the accused to
report is not justified;
(5) accused is a recidivist or habitual
delinquent or has been previously
convicted for an offense to which the
law or ordinance attaches an equal or
greater penalty or for two or more
offenses to which it attaches a lighter
penalty;
28
Combination of UP and BEDA Notes
(6) accused committed the offense while
on parole or under conditional
pardon; or
(7) accused has been previously been
pardoned for violation of
municipal/city ordinance for at least
two times.
7. Increase or reduction of bail.
Bail may be increased or decreased – the court
upon good cause wither increase or decrease the
amount of bail (R114, Sec. 20).
Increased bail – the accused maybe committed
to custody if he does not give bail in the increased
amount within a reasonable period of time
[R114, Sec. 20].
Reduced bail – a person in custody for a period
equal to or more than the minimum of the
principal penalty prescribed for the offense
charged may be released on a reduced bail bond
[R 114, Sec. 16].
8. Forfeiture and cancellation of bail.
If the accused fails to appear in person as
required by the court or the rules, his bail shall be
declared forfeited. An order of forfeiture of the
bail bond is conditional and interlocutory, there
being something more to be done. The
bondsmen are allowed within 30 days from an
order of forfeiture to produce the body of the
accused or give reasons for his non-production
and explain why the accused did not appear
before the court when first required to do so.
Failing in these two requirements, a judgment
shall be rendered against the bondsmen, jointly
and severally, for the amount of bail.
The court shall issue an order of forfeiture,
wherein:
(1) the provisional liberty of the accused
due to the bail bond shall be revoked;
and
(2) it shall require the bondsmen to
produce the principal.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
Within 30 days from an order of forfeiture:
(a) produce the body of the accused or give
reasons for his non-production; and
(b) explain why the accused did not appear
before the court when first required to
do so.
Failing in these two requirements, a judgment
shall be rendered against the bondsmen, jointly
and severally, for the amount of bail.
Cancellation of the bond; when – bail may be
cancelled by application of the bondsmen with
due notice to the prosecutor, upon surrender of
the accused or proof of his death. The bail may
also be deemed automatically cancelled upon
acquittal of the accused, dismissal of the case or
execution of judgment of conviction (R114, Sec.
22).
In case of denial of the application for
cancellation of bail – the order of court denying
it could be appealed from, for if such order is not
appealable, it would become final, without
ulterior remedy, and would work irreparable
injury to the petitioner.
Jumped bail; Illustration:
Trial in absentia – the accused shall be arraigned.
FACTS: Accused has posted bail – before
arraignment – then he jumped bail
HELD: the court cannot dismiss the case – the
court has only lost jurisdiction over the person of
the accused and not over the case.
Posted bail before Issuance of warrant – FACTS:
Accused has posted of bail in other court before
the issuance of the warrant of arrest by another
court – then he asked for judicial determination
of probable cause before the judge where the
case was actually pending (another court).
The prosecution state that the accused has
waived his right for the judicial determination of
probable cause. Renders the case moot and
academic for posting the bail.
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Combination of UP and BEDA Notes
HELD: SC states that there must be a clear and
convincing proof that petitioner has an actual
intention to relinquish his right to question the
existence of probable cause.
He posted bail only to prevent his arrest.
“Imperative necessity.”
9. Application not a bar to objections in illegal
arrest, lack of or irregular preliminary
investigation.
The objections in illegal arrest must be raised
before the accused enters his plea; otherwise,
they shall be deemed waived.
Remedies available to the accused – the accused
may file a:
(a) motion to quash under Rule 117 if the
ground is irregularity of his arrest or
irregularity of the warrant of arrest;
(b) motion for preliminary investigation or
reinvestigation, if the ground is lack or
irregularity in the conduct of the
preliminary investigation.
RULE 114
Bail
People vs. Brita
741 SCRA 494 , November 24, 2014
A grant of bail does not prevent the trial court,
as the trier of facts, from making a final
assessment of the evidence after full trial on
the merits.
It is not an uncommon occurrence that an
accused person granted bail is convicted in due
course.
(c)
10. Hold departure order and Bureau of
Immigration watch list.
The accused may be prohibited from leaving the
country during the pendency of his case. If the
accused released on bail attempts to depart from
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
the Philippines without the permission of the
court where his case is pending, he may be re-
arrested without warrant [R114, Sec. 23].
Who may issue – an HDO may be issued either
by the RTCs or by the DOJ.
Issuance of RTC; in what cases – shall pertain to
criminal cases falling within their exclusive
jurisdiction, pursuant to SC Circular 39-97.
As to those pending in the MTC as well as those
under preliminary investigation, the DOJ
promulgated DOJ circular No. 41 governing the
issuance of HDO, Watch-list Oder, and Allow
Departure Orders.
Issuance of the DOJ; when – an HDO may be
issued by the DOJ in the following cases:
(1) against an accused irrespective of
nationality, in criminal cases falling
within the jurisdiction of courts below
the RTCs;
(2) against the alien whose presence is
required either as a defendant,
respondent or witness in a civil or labor
cases pending litigation, or any case
before an administrative agency; or
(3) against any person, motu proprio, or
upon the requires of the head of the
department of government; the head of
a constitutional body or commission;
the Chief Justice of the SC for the
judiciary; the Senate Speaker or the
House Speaker for the legislature, when
the adverse party is a government or
any of its agencies or instrumentalities,
or in the interest of national security,
public safety or public health.
Sec of DOJ; Watch List Order – in the following
circumstances:
(1) against the accused, irrespective of
nationality, in criminal cases pending
trial before the RTC;
(2) against the respondent, irrespective of
nationality, in criminal cases pending
preliminary investigation, petition for
30
Combination of UP and BEDA Notes
review, or MR before the DOJ or nay of
its provincial or city prosecution offices;
and
(3) against any person, either motu
proprio, or upon the request if any
government agency, including
commissions, task forces or similar
entities created by the Office of the
President, pursuant to RA 9208 (Anti-
Trafficking In Persons Act of 2003)
and/or in connection with any
investigation being conducted by it, or
in the interest of national security,
public safety or public health.
RULE 115
RIGHTS OF THE ACCUSED
Rights of the accused –
Bantay bayan – considered as police since the
latter is a person in authority.
Miranda doctrine –
Note: if the computer is owned by the
government, the doctrine of fruit of poisonous
tree shall not apply.
RULE 116
ARRAIGNMENT AND PLEA
G. Arraignment and Plea
Arraignment – is that stage of criminal
proceedings where the complaint or information
is read to the accused in open court and in a
language or dialect known to him and furnishing
him a copy thereof.
Purpose – the constitutional rights of the
accused to be informed of the nature of the
accusation against him is implemented and
observed.
Note: the accused shall be arraigned in the court
where the complaint or information was filed or
assigned for trial.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
Plea – it pertains to the matter which the
accused, on his arraignment, alleges answer to
the charge against him.
It is a formal response of the accused required
after the complaint or information has been read
to him. It is a brief answer to the accusation by
declaring in open court either the words “guilty”
or “not guilty.”
General Rule: arraignment must be made before
the start of the trial or before the prosecution
presents its case.
Exception: arraignment which was made after
the prosecution rested its case was considered a
non-prejudicial error because:
(a) counsel of the accused failed to object
lack of arraignment during trial; and
(b) counsel of the accused had full
opportunity to cross-examine the
witnesses.
In other words, there was no need for
arraignment as the act of the accused of
participating in the trial implies the he
understood the nature and cause of accusation
against him.
1. Arraignment and plea, how made.
Arraignment and plea shall be made:
(1) in open court where the complaint or
information has been filed or assigned
for trial
Note: there can be closed door trial in
cases of Rape or Child abuse;
(2) by the judge or clerk of court;
(3) by furnishing the accused with a copy of
the complaint or information;
(4) reading in a language or dialect known
to the accused;
(5) asking the accused whether he pleads
guilty or not guilty;
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Combination of UP and BEDA Notes
(6) the accused must be present during
arraignment and must personally enter
his plea
Note: counsel cannot enter plea for
accused;
(7) both arraignment and plea shall be
made on record but failure to enter of
record shall not affect the validity of the
proceedings [R116, Sec. 1 (a-b)].
2. When should plea of not guilty be entered.
A plea of NOT GUILTY should be entered in the
following circumstances:
(a) when the accused so pleads;
(b) when the accused refuses to make a
plea;
(c) when the accused makes a
conditional plea of guilt;
(d) when in admitting the act charged, he
sets up matters of defense or with
lawful justification; or
(e) when the plea is indefinite or
ambiguous.
Conditional plea of guilty – it is a plea entered by
the accused subject to the proviso that a certain
penalty be imposed upon him. It is equivalent to
a plea of not guilty.
3. When may accused enter a plea of guilty to a
lesser offense.
The requisites are:
(a) the lesser offense is necessarily included
in the offense charged;
(b) the plea must be with the consent of
both the offended party and the
prosecutor, except when the offended
party fails to appear despite due notice.
During Arraignment – at arraignment, the
accused, with the consent of the offended party
and prosecutor, may be allowed by the trial court
to plead guilty to a lesser offense which is
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
necessarily included in the offense charged
[R116, Sec. 2].
After Arraignment But Before Trial – the accused
may still be allowed to enter his plea of guilty to
a lesser offense after withdrawing his plea of not
guilty. No amendment of the complaint or
information is necessary [R116, Sec. 2].
After Trial Has Begun – a plea of guilty to a lesser
offense after the prosecution rests its case is
allowed only when the prosecution does not
have sufficient evidence to establish guilt for the
crime charged [People v. Villarama (1992)].
Note: the SC held that plea of guilty to a lesser
offense may be considered during the trial
proper even after the prosecution has presented
its evidence and rested its case. Thus, it is
immaterial that plea bargaining was not made
during the pre-trial stage or that it was made
after the prosecution presented several
witnesses [Daan v. Sandiganbayan (2008)].
Effect if without consent – the conviction of the
accused to the lesser offense is not a bar to
another prosecution for an offense which
necessarily includes the offense charged in the
former information.
4. Accused pleads guilty to capital offense, what
the court should do.
When the accused pleads guilty to a capital
offense, the court should:
(a) conduct a searching inquiry into the
voluntariness and full comprehension of
the consequences of the plea;
(b) require the prosecution to present
evidence to prove the guilt and precise
degree of culpability of the accused; and
(c) ask the accused if he desires to present
evidence in his behalf and allow him to
do so if he desires [R116, Sec. 3].
5. Searching inquiry.
Searching inquiry – the procedure in Sec. 3, Rule
116, when the accused pleads guilty to a capital
offense, is mandatory.
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Combination of UP and BEDA Notes
The plea must be clear, definite and
unconditional. It must be based on a free and
informed judgment.
The judge must ask whether the accused was
assisted by counsel during custodial investigation
and PI; ask questions on age, educational
attainment and socio-economic status; and ask
the defense counsel whether or not he conferred
with the accused.
6. Improvident plea.
Improvident plea – it is a plea of guilty made
without proper advice, or recklessly entered by
the accused without comprehending its
seriousness and consequences.
Gen rule: an improvident plea should not be
accepted. If accepted, it should not be held
sufficient to sustain a conviction.
Except: if the accused appears guilty beyond
reasonable doubt from the evidence adduces by
the prosecution and defense.
7. Grounds for suspension of arraignment.
The arraignment shall be suspended upon
motion by the proper party in the following
cases:
(1) the accused appears to be suffering
from an UNSOUND MENAL CONDITION
which effectively renders him unable to
fully understand the charge against him
and to plead intelligently thereto;
(2) there exists a valid prejudicial question;
(3) a petition for review of the resolution of
the prosecutor is pending at the DOJ or
the Office of the President; provided
that the period of suspension shall not
exceed 60 days counted from the filing
of the petition; and
(4) there are pending incidents such as:
a. Motion to Quash;
b. Motion for inhibition; or
c. Motion for Bill of Particulars.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
There are two tests to determine insanity:
(1) Test of Cognition – which requires
complete deprivation of intelligence;
and
(2) Test of Volition – which requires a total
deprivation of free will.
Bill of particulars – the accused may, before
arraignment, move for a bill of particulars to
enable him properly to plead and prepare for
trial. The motion shall specify the alleged defects
of the complaint or information and the details
desired [R116, Sec. 9].
RULE 117
MOTION TO QUASH
H. Motion to Quash
Motion to quash – is a motion filed by the
accused seeking the dismissal of the information
before entering his plea wherein he
hypothetically admits the facts alleged in the
information, and no facts contrary to those
alleged or facts which do not appear on the face
thereof can be considered by the court in
resolving it.
Note: The test in determining the sufficiency of
the material averments in an information is
whether or not the facts alleged therein, which
are hypothetically admitted, would establish the
essential elements of the crime defined by law.
Gen Rule: other facts such as matters of defense,
which are not in the information, should not be
considered.
Exceptions: when the grounds invoked to quash
the information are:
(1) Extinction of criminal liability;
(2) Prescription; and
(3) Former jeopardy.
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Combination of UP and BEDA Notes
Time to move to quash – as a rule, it can be filed
at any time before entering his plea, the accused
may move to quash the complaint or information
[R117, Sec. 1].
Exceptions: when the grounds relied upon the
motion are: (FLED) memorize
(a) Failure to charge an offense;
(b) Lack of jurisdiction over the offense
charged;
(c) Extinction of the offense or penalty; or
(d) Double jeopardy.
RULE 117
Motion to Quash
People vs. Cunanan
753 SCRA 275 , March 16, 2015
Arrests; Motion to Quash – Jurisprudence is
settled that “any irregularity attending the
arrest of an accused should be timely raised in
a motion to quash the Information at any time
before arraignment, failing [in] which, he is
deemed to have waived” his right to question
the regularity of his arrest.
(e)
Form and content – it must be:
(a) in writing;
(b) signed by the accused or his counsel;
and
(c) distinctly specify the factual and legal
grounds [R117, Sec.2].
Omnibus Motion Rule – a motion attacking a
pleading, order, judgment, or proceeding shall
include all objections then available, and all
objections not so included shall be deemed
waived.
1. Grounds.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
The following grounds for Motion to Quash are
exclusive: memorize
(1) that the facts charged do not constitute
an offense;
(2) that the court trying the case has no
jurisdiction over the offense charged;
(3) that the court trying the case has no
jurisdiction over the person of the
accused;
(4) that the officer who filed the
information had no authority to do so;
(5) that the information does not conform
substantially to the prescribed form;
(6) that more than one offense is charged,
except when a single punishment for
various offenses is prescribed by law;
(7) that the criminal action or liability has
been extinguished;
(8) that it contains averments which, if true,
would constitute a legal excuse or
justification; and
(9) that the accused has been previously
convicted or acquitted of the offense
charged, or the case against him was
dismissed or otherwise terminated
without his express consent [R117, Sec.
3].
Note: although the rule is that grounds not
asserted in the motion to quash are waived, the
following objections are not subject to waiver:
(a) facts charged do not constitute an
offense;
(b) court trying the case has no jurisdiction
over the offense charged;
(c) criminal action or liability has been
extinguished; and
(d) double jeopardy.
Gen Rule: the court cannot motu propio quash
an information.
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Combination of UP and BEDA Notes

Except: on the ground of lack of jurisdiction over Grant does not Grant is deemed an
the offense charged, a trial court cannot motu necessarily follow a acquittal and would
propio quash an information. dismissal. The court prejudice the filing of
may order the filing of another information
2. Distinguish from demurrer to evidence.
a new complaint or or appeal by the
information because prosecution.
Motion to Quash Demurrer to an order sustaining
Evidence the motion is
When filed generally not a bar to
another prosecution.
Filed before entering Filed after the
plea. prosecution has
As to effect if denied
rested its case.
The case will proceed. If with leave a court,
Basis for grant or denial
the accused may still
Does not go into the Based upon present its evidence. If
merits of the case but inadequacy of the without prior leave,
is anchored on evidence adduced by he loses the right to
matters not directly the prosecution in present evidence.
related to the support of the
question of guilt or accusation. Remedy
innocence of the
Rule 65: Certiorari or The denial is not
accused.
prohibition if the appealable.
Grounds court acted without or
in excess or
The grounds may be Ground is jurisdiction or with
based on the matters insufficiency of grave abuse of
found on the face of evidence to convict. discretion.
the complaint or
information as when it
is alleged that the
facts do not constitute
an offense. RULE 117

Necessity of leave Motion to Quash

Rule 177: no need for Rule 119: either with Soriano vs. People
leave of court. leave or without leave
611 SCRA 191 , February 01, 2010
of court.
We further held that since the offenses for
Effect of grant which Soriano was charged were public crimes,
authority holds that it can be initiated by “any
competent person” with personal knowledge
of the acts committed by the offender. Thus,
the witnesses who executed the affidavits
clearly fell within the purview of “any
competent person” who may institute the
complaint for a public crime.

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Combination of UP and BEDA Notes
It is settled that in considering a motion to
quash on the ground that the facts charged do
not constitute an offense, the test is “whether
the facts alleged, if hypothetically admitted,
would establish the essential elements of the
offense charged as defined by law.
A special civil action for certiorari is not the
proper remedy to assail the denial of a motion
to quash an information.
Note: no double jeopardy in motion to quash
since there is no arraignment yet. The remedy is
certiorari under Rule 65 when there the judge
acted with grave abuse of discretion amounting
to lack or in excess of jurisdiction in the denial of
the motion to quash.
Nolle Prosequi – is a dismissal of the criminal
case by the government before the accused is
placed on trial and before he is called to plead,
with the approval of the court in the exercise of
its judicial discretion. It is not an acquittal; it is
not a final disposition of the case; and it does not
bar a subsequent prosecution for the same
offense.
3. Effects of sustaining the motion to quash.
(a) filing another complaint or
information;
Gen Rule: court may order that another
complaint or information be filed [R117,
Sec. 5].
Except: if MTQ was based on the ff:
(1) criminal action or liability has been
extinguished [Sec. 3 (g)]; or
(2) double jeopardy [Sec. 3 (i)].
(b) discharge of the accused;
Gen Rule: if in custody, the accused shall
not be discharged unless admitted to
bail [R117, Sec. 5]. The order granting
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
MTQ must state either release of the
accused or cancellation of his bond.
Except: when there is no order to file
another complaint or information or, if
there is one, when no new information
is filed within the time specified in the
order within such further time as the
court may allow for good cause, the
accused shall be discharged unless he is
also in custody for another charge
[Sec.5].
(c) remedies of the prosecution.
Gen Rule: the prosecution may amend
the information to correct the defects if
the trial court makes the order, and
thereafter prosecute on the basis of the
amended information [R117, Sec. 4].
4. Exception to the rule that sustaining the
motion is not a bar to another prosecution.
Rule 117, Sec. 6 – an order sustaining the motion
to quash is NOT a bar to another prosecution for
the same offense UNLESS the motion was based
on the grounds specified in sec. 3 (g) and (i) of
this rule, to wit:
(a) criminal action or liability has been
extinguished; or
(b) double jeopardy.
5. Double jeopardy.
Double jeopardy – means that when a person is
charged with an offense and the case is
terminated either by acquittal or conviction or in
any other manner without the express consent of
the accused, the latter cannot again be charged
with the same or identical offense.
Kinds:
(a) no person shall be put twice in jeopardy
for the same offense; and
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Combination of UP and BEDA Notes
(b) when an act is punished by a law and an
ordinance, conviction or acquittal under
either shall be a bar to another for the
same act [ Art. III, Sec. 21 Constitution].
Requisites: (CPJ)
(a) the complaint or information or other
formal charge was sufficient in form and
substance to sustain conviction and the
court had jurisdiction;
(b) the accused had been arraigned and
entered a valid plea; and
(c) there was a final judgment of conviction
or acquittal or the case was dismissed
without the express consent of the
accused.
Requisites to raise double jeopardy:
(1) first jeopardy must have attached;
(2) first jeopardy must have been validly
terminated; and
(3) second jeopardy must be for the same
offense and the second offense includes
or is necessarily included in the offense
charged in the first information or is an
attempt to commit the same or a
frustration thereof.
Note: by way of exception to the rule upon
conviction for the first offense charged:
(a) the graver offense developed due to
supervening facts arising from the same
act or omission constituting the former
charge;
(b) the facts constituting the graver charge
became known or were discovered only
after a plea was entered in the former
complaint or information; or
(c) the plea of guilty to the lesser offense
was made without the consent of the
prosecutor and the offended party;
except when the offended party failed
to appear during the arraignment
[R117, Sec. 7].
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
RULE 117
Motion to Quash
People vs. Go
732 SCRA 216, August 6, 2014
The grant of a demurrer to evidence amounts
to an acquittal and cannot be appealed
because it would place the accused in double
jeopardy.
The party questioning the acquittal of an
accused should be able to clearly establish that
the trial court blatantly abused its discretion
such that it was deprived of its authority to
dispense justice.
(d)
Acquittal – is always based on the merits, that is,
the defendant is acquitted because the evidence
does not show defendant’s guilt beyond
reasonable doubt.
Dismissal – does not decide the case on the
merits or that the defendant is not guilty.
6. Provisional dismissal.
Provisional dismissal – is dismissal without
prejudice to its being refiled or revived.
Note: provisional dismissal cannot be used for
invoking double jeopardy because the dismissal
is with the express consent of the accused.
Requisites:
(1) there must be a motion by the
prosecution with the express
conformity of the accused, or by the
accused himself, or by both the
prosecution and the accused for a
provisional dismissal of the case;
(2) the offended party is notified of the
motion for a provisional dismissal of
the case;
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Combination of UP and BEDA Notes
(3) the court issues an order granting the
motion and dismissing the case
provisionally; and
(4) the public prosecutor is served with a
copy of the order of provisional
dismissal of the case.
The provisional dismissal becomes permanent:
(a) the case is not revived within 1 year
after the issuance of the order of the
provisional dismissal with respect to the
offenses punishable by imprisonment
not exceeding 6 years or a fine of any
amount or both; or
(b) the case is not revived within 2 years
after the issuance of the order of
provisional dismissal with respect to
offenses punishable by imprisonment of
more than 6 years [R117, Sec. 8].
RULE 118
PRE - TRIAL
I. Pre-trial
Objective: its main objective is to achieve an
expeditious resolution of the case.
Pre-trial; mandatory – it is mandatory in all
criminal cases cognizable by the Sandiganbayan,
RTC, MTC [R118, Sec. 1].
Judicial Affidavit Rule
Application of rule to criminal actions (Sec. 9):
this rule shall apply to all criminal actions:
(a) where the maximum of the imposable
penalty does not exceed 6 years;
(b) where the accused agrees to the use of
judicial affidavits, irrespective of the
penalty involved; or
(c) with respect to the civil aspect of the
actions, whatever the penalties involved
are.
Judaf by the prosecution – not later than 5 days
before the pre-trial.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
Judaf by the accused – he shall have the option
to submit a judicial affidavit within 10 days from
receipt thereof.
Note: this affidavits shall serve as direct-
testimonies of the accused and his witnesses
when they appear before the court to testify.
In case of conflict – the testimonies of the
accused and his witnesses made in court shall
prevail over the judicial affidavits that they were
made.
Note: this judicial affidavit rule has no binding
effect with the Senate in its legislative inquiry.
1. Matters to be considered during pre-trial.
The following matters are considered:
(1) plea bargaining;
(2) stipulation of facts;
(3) marking for identification of evidence;
(4) waiver of objections to admissibility of
evidence;
(5) modification of the order of trial if
accused admits the charge but
interposes a lawful defense (reverse
trial);
(6) other matters that will promote a fair
and expeditious trial of the civil and
criminal aspects of the case.
2. What the court should do when prosecution
and offended party agree to the plea offered by
the accused.
Plea bargaining – it is the process in criminal
procedure whereby the accused, offended party,
and the prosecution workout a mutually
satisfactory disposition of the case subject to
court approval.
It usually involved the defendant’s pleading
guilty to a lesser offense or to only one or some
of the counts of multi-count indictment in return
for a lighter sentence than that possible for grave
charge.
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Combination of UP and BEDA Notes

Note: if the victim in rape case is a minor below
12 years of age, the stipulation shall serve as an
aggravating circumstance.
If plea bargaining is agreed upon, the court
shall:
(2) limit the trial to those matters not
disposed of; and
(3) control the course of the action during
trial, except if modified by the court to
prevent manifest injustice.

(a) issue an order to that effect; 6. Referral of some cases for court annexed
mediation and judicial dispute resolution.
(b) proceed to receive evidence on the civil
aspect of the case; and They are the following:

(c) renders and promulgate judgment of (1) all civil cases and the civil liability of
conviction, including the civil liability or criminal cases covered by the RULE ON
damages duly established by the SUMMARY PROCEDURE, including the
evidence. civil liability for violation of BP 22,
except those which by law may not be
3. Pre-trial agreement.
compromised;
All agreements or admissions made or entered
(2) all civil and criminal cases filed with a
into during the pre-trial conference shall be
certificate to file action issued by the
reduced to writing and signed by the accused and
PUNONG BRGY. OR THE PANGKAT NG
counsel; otherwise the same shall not be used in
TAGAPAGSUNDO under the Revised
evidence against the accused [R118, Sec. 2].
Katarungan Pambarangay;
4. Non-appearance during pre-trial.
(3) the civil aspect of quasi – offenses under
If the counsel for the accused or the prosecutor the RPC;
does not appear in the pre-trial conference, the
(4) the civil aspect of less grave felonies
court may impose the proper sanctions or
punishable by correctional penalties not
penalties, if the counsel or prosecutor absent
exceeding 6 years of imprisonment,
does not offer an acceptable excuse for his lack
when the offended party is a private
of cooperation [R118, Sec. 3].
person; and
5. Pre-trial order.
(5) the civil aspect of estafa, theft, and libel.
It is an order issued by the court within 10 days
The following shall NOT be referred:
after the termination of the pre-trial, reciting the
actions taken, the facts stipulated, the (1) other criminal cases not covered by the
admissions made, the evidence marked, the aforementioned; or
number of witnesses to be presented and the
(2) all cases under RA 9262 (VAWC).
schedule of the trial. Such order shall bind the
However, if the parties to this case
parties, limit the trial to matters not disposed of
inform the court of their agreement to
and control the course of action during the trial,
submit to mediation, they shall
unless modified by the court to prevent manifest
accordingly be referred.
injustice [R118, Sec. 4].

Purposes:

(1) bind the parties to issues raised therein;

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Combination of UP and BEDA Notes
RULE 119
TRIAL
J. Trial
1. Instances when presence of accused is
required by law.
The presence of accused is required only:
(a) during arraignment;
(b) during trial, when ordered by the court
for the purpose of his identification; and
(c) in the promulgation of the sentence
EXCEPT when the conviction is for light
offense, in which case, it may be
pronounced in the presence of his
counsel or a representative.
2. Requisites before trial can be suspended on
account of absence of witness.
Requisites:
(a) the witness must be either absent or
unavailable; and
(b) the absent or unavailable witness must
be essential.
Absent – means that his whereabouts are
unknown or cannot be determined by due
diligence [R119, Sec. 3 (b)].
Unavailable – means that his whereabouts are
known but presence for trial cannot be obtained
by due diligence [R119, Sec. 3 (b)].
Effect of absence of witness – the period of delay
res
3. Trial in absentia.
Trial in absentia – the absence of the accused
without any justifiable excuse at the trial on a
particular date of which he had notice shall be
considered a waiver of his right to be present
during that trial. When an accused under custody
had been notified of the date of the trial and
escapes, he shall be deemed to have waived his
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
right to be present on said date and all
subsequent trial dates until custody is regained.
Trial shall thus proceed in his absence [R115, Sec.
1 (c)].
Requisites:
(1) accused has been arraigned;
(2) he was duly notified of trial; and
(3) his failure to appear is unjustified.
4. Remedy when accused is not brought to trial
within the prescribed period.
The remedy of the accused is to file a motion to
dismiss the information on the ground of denial
of his right to speedy trial. Failure of the accused
to move for dismissal prior to trial shall constitute
a waiver of his right to dismiss. The dismissal shall
be subject to the rules on double jeopardy [R119,
Sec. 9].
Note: the accused has the burden of proving the
ground of denial of right to speedy trial for the
motion.
5. Requisites for discharge of accused to become
a state witness.
Requisites:
(1) two or more persons are jointly charged
with a commission of an offense;
(2) the prosecution files a motion to
discharge one or more, but not all, of
the accused to be discharged with their
consent;
(3) prosecution shall present evidence and
sworn statement of the proposed
accused to be discharged as a state
witness; and
(4) court shall ascertain whether the
conditions below are present.
Conditions:
(a) absolute necessity for the testimony of
the accused whose discharge is
requested;
40
Combination of UP and BEDA Notes
(b) no other direct evidence available for
the prosecution, except the testimony
of the said accused;
(c) testimony can be substantially
corroborated in its material points;
(d) the accused does not appear to be the
most guilty; and
(e) the accused has not at any time been
convicted if any offense involving moral
turpitude [R119, Sec. 17].
Absolute necessity – means that he alone has
knowledge of the crime, and not when his
testimony would simply corroborate or
otherwise strengthen the evidence in the hands
of the prosecution.
Moral turpitude – it has been defined as
everything which is done contrary to justice,
modesty, or good morals; and act of baseness,
vileness, or depravity in the private and social
duties which a man owes his fellowmen or to
society in general.
6. Effects of discharge of accused as state
witness.
Gen Rule: the order of discharge shall (1) amount
to an acquittal of the discharged accused; and (2)
bar future prosecutions for the same offense
[R119, Sec. 18].
Exception: if the accused fails/refuses to testify
against his co-accused in accordance with his
sworn statement constituting the basis for his
discharge, these effects do not set in.
In addition to the effect, (3) the evidence
adduced in support of the discharge shall
automatically form part of the trial.
7. Demurrer to evidence.
Demurrer to evidence – is a motion to dismiss
based on insufficiency of evidence.
Singian, Jr. vs. Sandiganbayan
706 SCRA 451 , September 30, 2013
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
Demurrer to Evidence – A demurrer to the
evidence is an objection by one of the parties
in an action, to the effect that the evidence
which his adversary produced is insufficient in
point of law, whether true or not, to make out
a case or sustain the issue.
To be considered sufficient therefore, the
evidence must prove: (a) the commission of
the crime, and (b) the precise degree of
participation therein by the accused.
RULE 119
Trial
People vs. Go
732 SCRA 216, August 6, 2014
Demurrer to the evidence is “an objection by
one of the parties in an action, to the effect
that the evidence which his adversary
produced is insufficient in point of law,
whether true or not, to make out a case or
sustain the issue.
The grant of a demurrer to evidence amounts
to an acquittal and cannot be appealed
because it would place the accused in double
jeopardy.
The party questioning the acquittal of an
accused should be able to clearly establish that
the trial court blatantly abused its discretion
such that it was deprived of its authority to
dispense justice.
A void judgment or order has no legal and
binding effect, force or efficacy for any
purpose. In contemplation of law, it is
nonexistent.
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Combination of UP and BEDA Notes
The granting of a demurrer to evidence should
be exercised with caution, taking into
consideration not only the rights of the
accused, but also the right of the private
offended party to be vindicated of the
wrongdoing done against him, for if it is
granted, the accused is acquitted and the
private complainant is generally left with no
more remedy.
RULE 119
Trial
People vs. Sandiganbayan
645 SCRA 726 , March 21, 2011
In criminal cases, the grant of a demurrer is
tantamount to an acquittal and the dismissal
order may not be appealed because this would
place the accused in double jeopardy;
Although the dismissal order is not subject to
appeal, it is still reviewable but only through
certiorari under Rule 65 of the Rules of Court.
When a motion may be made – the motion for
demurrer to evidence may be made after the
prosecution has rested its case and the motion
may be with or without leave of court.
Effect if with leave of court – the accused still has
the right to present evidence in his defense in
case of denial of the demurrer to evidence.
Effect if without leave of court – the accused
would be deemed to have waived the right to
present evidence and to have submitted the case
for decision on the basis of the prosecution’s
evidence.
Remedy – the order granting the accused‘s
demurrer to evidence amounts to an acquittal. It
is not reviewable by appeal or certiorari before
judgment as a rule.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
However, certiorari under Rule 65 may be availed
of when there was grave abuse of discretion or
excess or jurisdiction or oppressive exercise of
judicial authority of the trial court in dismissing a
criminal case by granting the accused’s demurrer
to evidence.
RULE 119
Trial
Singian, Jr. vs. Sandiganbayan
706 SCRA 451 , September 30, 2013
Resolution not reviewable – The resolution of
a demurrer to evidence should be left to the
exercise of sound judicial discretion. A lower
court’s order of denial shall not be disturbed,
that is, the appellate courts will not review the
prosecution’s evidence and precipitately
decide whether such evidence has established
the guilt of the accused beyond a reasonable
doubt, unless accused has established that
such judicial discretion has been gravely
abused, thereby amounting to a lack or excess
of jurisdiction. Mere allegations of such abuse
will not suffice.
Grave Abuse of Discretion – is the capricious
and whimsical exercise of judgment on the part
of the public officer concerned which is
equivalent to an excess or lack of jurisdiction.
RULE 120
JUDGMENT
K. Judgment
Judgment – is the adjudication by the court that
the accused is guilty or not guilty of the offense
42
Combination of UP and BEDA Notes
charged and the imposition on him of the proper
penalty and civil liability, if any [R120, Sec. 1].
1. Requisites of a judgment.
The judgment should have the following form:
(a) it must be written in the official
language;
(b) it must be personally and directly
prepared by the judge; and
(c) it must contain clearly and distinctly a
statement of the facts and the law upon
which it is based [R120, Sec. 1].
Remedies if judgment is not put in writing – to
file a petition for mandamus to compel the judge
to put in writing the decision of the court.
Judgment rendered by the judge who did not
hear the case – the fact that the trial judge who
rendered judgment was not the one who had the
occasion to observe the demeanor of the
witnesses during trial, but merely relied on the
records of the case, does not render the
judgment erroneous, especially where the
evidence on record is sufficient to support its
conclusion.
2. Contents of judgment.
The judgment of conviction shall state:
(1) legal qualification of the offense
constituted by the acts committed by
the accused;
(2) aggravating or mitigating
circumstances attending its
commission;
(3) participation of the accused, whether
as principal, accomplice or accessory;
(4) penalty imposed upon the accused;
and
(5) civil liability or damages caused by the
wrongful act or omission, unless a
separate civil action has been reserved
or waived.
The judgment of acquittal shall state:
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
(1) whether the evidence of the
prosecution absolutely failed to prove
the guilt of the accused; or
(2) merely failed to prove his guilt beyond
reasonable doubt.
In either case, the judgment shall determine
if the act or omission complained from which
the civil liability might arise did not exist
[R120, Sec. 2].
RULE 120
Judgment
Abellana vs. People
655 SCRA 683 , August 17, 2011
It is an established rule in criminal procedure
that a judgment of acquittal shall state
whether the evidence of the prosecution
absolutely failed to prove the guilt of the
accused or merely failed to prove his guilt
beyond reasonable doubt. In either case, the
judgment shall determine if the act or omission
from which the civil liability might arise did not
exist.
Variance between the offense charged and the
offense proved – as long as the court has
jurisdiction, the conviction should always be for
the lesser offense.
3. Promulgation of judgment; instances of
promulgation of judgment in absentia.
Promulgation of judgment – consists of reading
the judgment or sentence in the presence of the
accused and any judge of the court rendering the
judgment.
Gen Rule – presence of the accused is mandatory
in the promulgation of judgment.
Exceptions: (1) when the judgment is for a light
offense, in which case, the accused’s counsel or
representative may appear for him; and (2) when
despite due notice to the accused or his
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Combination of UP and BEDA Notes
bondsman or warden and counsel, the accused
failed to appear at the promulgation of the
decision.
RULE 120
Judgment
Almuete vs. People
693 SCRA 167 , March 12, 2013:
The practice of requiring convicts to appear
before the trial courts for promulgation of the
affirmance or modification by the Supreme
Court or the Court of Appeals of judgments of
conviction in criminal cases is no longer
allowed.
Doctrine of Immutability of judgment – A final
judgment may no longer be altered, amended
or modified, even if the alteration, amendment
or modification is meant to correct what is
perceived to be an erroneous conclusion of
fact or law and regardless of what court, be it
the highest court of the land, rendered it.
Note: In case of clerical errors in the decision, the
doctrine of immutability of judgment has no
application.
The following elements should be considered:
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
This Court is not unaware of the rule that “a
final judgment may no longer be altered,
amended or modified, even if the alteration,
amendment or modification is meant to
correct what is perceived to be an erroneous
conclusion of fact or law and regardless of
what court, be it the highest court of the land,
rendered it.” However, this Court has
suspended the application of this rule based on
certain recognized exceptions, viz.: Aside from
matters of life, liberty, honor or property which
would warrant the suspension of the Rules of
the most mandatory character and an
examination and review by the appellate court
of the lower court’s findings of fact, the other
elements that should be considered are the
following: (a) the existence of special or
compelling circumstances, (b) the merits of the
case, (c) a cause not entirely attributable to the
fault or negligence of the party favored by the
suspension of the rules, (d) a lack of any
showing that the review sought is merely
frivolous and dilatory, and (e) the other party
will not be unjustly prejudiced thereby.
(a) the existence of special or compelling
circumstances;
(b) the merits of the case;
(c) a cause not entirely attributable to
the fault or negligence of the party
favored by the suspension of the
rules;
(d) a lack of any showing that the review
sought is merely frivolous and
dilatory; and
(e) the other party will not be unjustly
prejudiced thereby.
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Combination of UP and BEDA Notes
Essential elements for the validity of judgment:
(1) the judgment shall be recorded in the criminal
docket; and (2) that a copy thereof shall be
served upon the accused in his last known
address or to his counsel.
4. When does judgment become final.
The judgment shall become final:
(1) after the lapse of the period for
perfecting an appeal;
(2) when the sentence has been
partially/totally satisfied or served;
(3) the accused has expressly waived in
writing his right to appeal; or
(4) when the accused applies for
probation, and thereby waives right to
appeal.
Note: judgment also becomes final when
judgment is an acquittal.
RULE 121
NEW TRIAL OR RECONSIDERATION
L. New Trial or Reconsideration
1. Grounds for new trial.
The grounds for a new trial are the ff:
(a) errors of law or irregularities prejudicial
to the substantial rights of the accused
have been committed during trial;
(b) new and material evidence discovered;
or
(c) other grounds which the court may
determine in the exercise of its
discretion.
New and material evidence – that such evidence
could not have been discovered and produced at
the trial even with the exercise of reasonable
diligence. The said evidence would probably
change the judgment if admitted.
2. Grounds for reconsideration.
The grounds for MR:
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
(a) errors of law in the judgment which
requires no further proceedings; or
(b) errors of fact in the judgment which is
also requires no further proceedings.
3. Requisites before a new trial may be granted
on ground of newly-discovered evidence.
The requisites are the following:
(a) that the evidence was discovered after
trial;
(b) that such evidence could not have been
discovered and produced at the trial
even with the exercise of reasonable
diligence;
(c) that it is material, not merely
cumulative, corroborative or
impeaching; and
(d) the evidence is of such weight that it
would probably change the judgment if
admitted.
4. Effects of granting new trial or
reconsideration.
The grant of MNT or MR does not result to an
acquittal. The effects are:
(a) when a new trial is granted on the
ground of errors of law or irregularities
committed during the trial, all
proceedings and evidence not affected
by the commission of such errors and
irregularities shall stand, but those
affected thereby shall be set aside and
the case will be tried anew as if no
previous trial and been held;
(b) when a new trial is granted on the
ground of newly discovered evidence,
the evidence already taken shall stand,
and the newly discovered and such
other evidence as the court may, in the
interest of justice, allow to be
introduced, shall be taken and
considered together with the evidence
already in the record; and
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Combination of UP and BEDA Notes
(c) in all cases, when the court grants new
trial or reconsideration, the original
judgment shall be set aside and a new
judgment rendered accordingly.
5. Application of Neypes doctrine in criminal
cases.
FRESH PERIOD RULE – a party may appeal for a
fresh period of 15 days from receipt or notice of
the denial of a motion for reconsideration or for
new trial [Neypes v. CA].
This rule shall also apply:
(a) Rule 40 – appeals from MTC to RTC;
(b) Rule 42 – on petitions for review from
RTC to CA;
(c) Rule 43 – on appeals from quasi –
judicial agencies to CA; and
(d) Rule 45 – appeal by certiorari to SC.
The fresh period rule enunciated in Neypes also
applies to criminal actions, particularly to Sec. 6
of Rule 122 [Yu v. Tatad].
RULE 122
APPEAL
M. Appeal
Concept of appeal – any party may appeal from
a judgment or final order, unless the accused will
be placed in double jeopardy.
RULE 122
Appeal
Tanenggee vs. People
699 SCRA 639 , June 26, 2013
Custodial interrogation means any questioning
initiated by law enforcement authorities after
a person is taken into custody or otherwise
deprived of his freedom of action in any
significant manner.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
A rule of long standing in this jurisdiction is that
findings of a trial court, when affirmed by the
Court of Appeals, are accorded great weight
and respect. Absent any reason to deviate from
the said findings, as in this case, the same
should be deemed conclusive and binding to
this Court.
RULE 122
Appeal
People vs. Banig
679 SCRA 133 , August 23, 2012
True, the finality of acquittal rule is not one
without exception as when the trial court
commits grave abuse of discretion amounting
to lack or excess of jurisdiction.
A judgment of acquittal is final and is no longer
reviewable. As we have previously held in
People v. Court of Appeals, 516 SCRA 383
(2007), “[a] verdict of acquittal is immediately
final and a reexamination of the merits of such
acquittal, even in the appellate courts, will put
the accused in jeopardy for the same offense.”
True, the finality of acquittal rule is not one
without exception as when the trial court
commits grave abuse of discretion amounting
to lack or excess of jurisdiction. In such a case,
the judgment of acquittal may be questioned
through the extraordinary writ of certiorari
under Rule 65 of the Rules of Court.
1. Effect of an appeal.
An appeal in a criminal proceeding throws the
whole case open for review and it becomes the
duty of the appellate court to correct an error as
may be found in the appealed judgment whether
or not it is made the subject of assignment or
errors.
2. Where to appeal.
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Combination of UP and BEDA Notes

(b) Rule 41 – appeals from RTC in its original

jurisdiction – by filing a notice of appeal.

(c) Rule 42 – appeals from RTC to CA in

exercise of appellate jurisdiction by the
RTC – by filing a petition for review.

(d) Rule 43 – appeals from CTA and quasi-

Illustrations: judicial agencies to SC –

(e) Rule 45 – appeal by petition for review

on certiorari.
SC
(f) Rule 65 – petition for review on
certiorari.
SG CA CTA
RULE 122

Appeal
RTC
Olarte vs. People

761 SCRA 576 , July 06, 2015

MTC OP
The Supreme Court (SC) had already explained
in Batistis v. People, 607 SCRA 335 (2009),that:
Pursuant to Section 3, Rule 122, and Section 9,
OMB OCP/OPP DOJ Rule 45, of the Rules of Court, the review on
appeal of a decision in a criminal case, wherein
the Court of Appeals (CA) imposes a penalty
other than death, reclusion perpetua, or life
ACP/APP
imprisonment, is by petition for review on
Outline of jurisdictions. certiorari.

SC – The petition may include an application for a

writ of preliminary injunction or other
CA – provisional remedies and shall raise only
questions of law, which must be distinctly set
SANIGANBAYAN – SG 27 and above and private forth. The petitioner may seek the same
individual in conspiracy with the former. provisional remedies by verified motion filed in
the same action or proceeding at any time
RTC – exceeding 6 yrs.
during its pendency.
MTC – not exceeding 6 yrs.
(g)
OMBUDSMAN –

OCP/OPP – 4. Effect of appeal by any of several accused.

ACP/APP – An appeal taken by one or more of several
3. How appeal taken. accused shall not affect those who did not
appeal. In the case of co-accused who did not
(a) Rule 40 – appeals from MTC to RTC – by appeal, the judgment of the trial court in so far as
filing a notice of appeal. it relates to him becomes final, and the appellate
court has no power to interfere therewith,

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Combination of UP and BEDA Notes
nevertheless, if the verdict of the appellate court
is favorable or applicable to him, the same may
be given effect.
5. Grounds for dismissal of appeal.
The appellate court, on motion of the appellee or
motu propio with notice to the appellant in
either case, may dismiss the appeal on the
following grounds:
(1) failure on the part of the appellant to
file brief within the reglementary
period, except when he is presented by
a counsel;
(2) escape of the appellant from prison or
confinement;
(3) when the appellant jumps bail; and
(4) flight of the appellant to a foreign
country during the pendency of the
appeal [R124, Sec. 8].
Note: a wrong mode of appeal will not vest, or
give the court appellate jurisdiction [R56, Sec. 5
(f)].
RULE 126
SEARCH
N. Search and SeizureAND SEIZURE
1. Nature of search warrant.
Search Warrant – is an order in writing issued in
the name of the People of the Philippines, signed
by a judge and directed to a peace officer,
commanding him to search for personal property
described therein and bring it before the court
[R126, Sec. 1].
Nature – a search warrant is in the nature of
criminal process akin to a writ of discovery,
employed by the state to prosecute relevant
evidence of a crime.
RULE 126
Search and Seizure
Petron Gasul LPG Dealers
Association vs. Lao
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
797 SCRA 65 , July 18, 2016
A search warrant (SW) is defined as a written
order issued in the name of the People of the
Philippines, signed by a judge, and directed to
a peace officer commanding him to search for
the personal property described therein and
bring it to the court.
Probable Cause; Search warrant (SW) shall be
issued only upon probable cause personally
determined by the judge after examination
under oath or affirmation of the complainant
and the witnesses he may produce, and
particularly describing the place to be
searched, and the persons or things to be
seized.
Generally, the search warrant (SW) application
must be filed with the court which has
territorial jurisdiction over the place where the
offense was alleged to be committed.
This, however, is not an iron-clad rule. For
compelling reasons, which must be expressly
stated in the application, an SW application
may be filed in a court other than the one
having jurisdiction over the place where the
purported offense was committed and where
the SW shall be enforced.
It is interlocutory in character – it leaves
something more to be done, which is the
determination of the guilt of the accused.
Art. III, Sec. 2 – the right of the people to be
secured in their persons, houses, papers, and
effects against unreasonable searches and
seizure of whatever nature and for any purpose
shall be inviolable, and no search warrant or
warrant of arrest shall issue except upon
probable cause to be determined personally by
the judge after examination under oath or
affirmation by the complainant and the
witnesses he may produce, particularly
describing the place to be searched and the
persons or things to be seized.
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Combination of UP and BEDA Notes

General Warrant – a search which vaguely Valid for 10 days. Does not expire.
describes and does not particularize the personal
properties to be seized without a definite As to service
guideline to the searching team as to what items
Generally served in May be made at any
might be lawfully seized, thus giving the officers
day time, unless there time of the day or
of the law discretion regarding what articles they be a direction in the night.
should seized. warrant that it may be
served at any time of
Note: a general warrant is not valid.
the day or night.
Scatter-shot search warrant – a search warrant
issued for more than one offense. It is not valid
because it is in violation of the Constitution.

2. Distinguish from warrant of arrest. Note: a search may follow an arrest but the
search must be incident to a lawful arrest.
Search Warrant Warrant of Arrest
3. Application for search warrant, where filed.

As to nature and purpose
Order in writing in the Order directed to the
name of the People of peace officer to
the Philippines, signed execute the warrant
by the judge and by the taking the
directed to the peace person stated therein
officer to search into custody that he
personal property may be bound to
described therein and answer for the
to bring it to court. commission of the
offense.
Probable cause
The judge must The judge does not
personally examine have to personally
the complainant and examine the
witnesses in the form complainant and his
of searching questions witness. Instead, he
and answers. may opt to personally
evaluate the report
and supporting
documents submitted
by the prosecutor.
As to personal examination
The examination must Examination must be
be under oath or under oath.
affirmation of the
complainant and his
witnesses.
Gen Rule – it may be filed in any court within
whose territorial jurisdiction the crime was
committed.
Exceptions: for compelling reasons, which must
be stated in the application, it may also be filed:
(1) if the place of the commission of the
crime is known, any court within the
judicial region where the crime was
committed;
(2) any court within the judicial region
where the warrant shall be enforced; or
Note: However, if the criminal action has already
been filed, the application shall only be made in
the court where the criminal action is pending
[R126, Sec. 2].
Under AM 03-8-02-SC, Executive judges and,
whenever they are on official leave of absence or
are not physically present in the station, the Vice-
Executive Judges of Manila and Quezon City RTCs
shall have authority to act on applications for
search warrants involving:
(a) heinous crimes;
(b) illegal gambling;
(c) illegal possession of firearms and
ammunitions;

As to validity (d) violations of RA 9165 (Drugs);

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Combination of UP and BEDA Notes

(e) violations of the Intellectual Property Ex parte application – an application for a search
Code; warrant is heard ex parte. It is neither a trial nor
a part of the trial. Action on these applications
(f) violations of AMLA of 2001;
must be expedited for the time is of the essence.
(g) violations of Tariff and Customs Code;
4. Probable cause.
and
Probable cause – probable cause for search
(h) other relevant laws that may hereafter
warrant means such facts and circumstances
be enacted by Congress and included
which could lead a reasonable discreet and
herein by the SC.
prudent man to believe that an offense has been
Note: venue is not an issue in the issuance of committed and that the objects sought in
search warrant. connection with the offense are in the place
sought to be searched.
Note: application of a search warrant is not a
criminal action but a judicial process. Basis – This probable cause must be shown to be
within the personal knowledge of the
Note: Right to break door or window to effect complainant or the witness he may produce and
search. not based on mere hearsay. The probable cause
must refer to one specific offense.
Knock and announce principle – generally,
officers executing a search must do the following Note: probable cause to arrest does not
acts: necessarily involved a probable cause to search
and vice-versa.
(a) announce their presence;
Note: issuance of search warrant and warrant of
(b) identify themselves to the accused and
arrest is the same. Hearsay can be used in the
to the persons who rightfully have
determination of probable cause; not in the
possession of the premises to be
determination of guilt of the accused.
searched;
5. Personal examination by judge of the applicant
(c) show to them the search warrant;
and witnesses.
(d) explain the warrant in a language or
The procedure involves:
dialect known and understood by them.
(a) the examination must be personally
When unannounced intrusion permissible.
conducted by the judge;
(a) person in the premises refuses to open
(b) the examination must be in the form of
it upon demand;
searching questions and answers;
(b) person in the premises already know of
(c) the complainant and the witnesses shall
the identity and authority of the
be examined on those facts personally
officers;
known to them;
(c) when the officers have an honest belief
(d) the statements must be in writing and
that there is an imminent danger to life
under oath; and
and limb; and
(e) the sworn statements of the
(d) when those in the premises, aware of
complainant and the witnesses,
the presence of someone outside, are
together with the affidavits submitted,
then engaged in activities which justifies
shall be attached on the record.
the officers to believe that an escape or
destruction of evidence is imminent.

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Combination of UP and BEDA Notes
Note: the application must be supported by
substantial evidence:
(1) that the items sought are in fact can be
seized by virtue of being connected with
criminal activity; and
(2) that the items will be found in the place
to be search.
6. Particularity of place to be searched and things
to be seized.
Warrant issued must particularly describe the
place to be searched and the things to be seized.
Particularity of the place to be searched – the
description of the place to be searched is
sufficient if the officer with the search warrant
can, with reasonable efforts, ascertain and
identify the place intended.
Note: an apparent typographical error will not
invalidate the search warrant, as long as the
application contains the correct address.
Particularity of the place to be searched – the
scope of the search warrant is limited to personal
property only. It does not issue for seizure of
immovable properties.
Note: where, by the nature of the goods to be
seized, their description must be rather general,
it is not required that a technical description be
given, for this would mean that no search
warrant could issue.
Doctrine of fruit of poisonous tree – it states that
any evidence obtained in violation of the
constitutional rights of the accused shall be
inadmissible in court and in any proceeding.
7. Personal property to be seized.
Things that may be seized:
(1) personal property subject of the
offense;
(2) personal property stolen or embezzled
and other proceeds or fruits of the
offense; and
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
(3) personal property used not intended to
be used as the means of committing an
offense.
8. Exceptions to search warrant requirement.
A search and seizure without a warrant is still
reasonable if conducted under the following
circumstances:
(1) Search incidental to a lawful arrest –
the arrest must preceded the search
and not the reverse. Hence, a person
illegally arrested cannot be validly
searched without a warrant. For an
arrest to be lawful, the arrest may either
be by virtue of a warrant lawfully
procured and by virtue of aa warrantless
arrest authorized under Sec. 5 Rule 113
and other applicable provisions, to wit:
(in flagrante, hot pursuit and escapee).
The rule limits the search to the
following:
(a) for dangerous weapons;
(b) for anything which may have been
used in the commission of an
offense; or
(c) for anything which may constitute
proof in the commission of an
offense.
Note: the warrantless search and
seizure as an incident to a lawful arrest
may extend beyond the person of one
arrested to include the premises or
surrounding under his immediate
control. It is the premises which he
might gain possession of a weapon or
destructive evidence.
(2) Consented search – consent is either
express or implied. A consented search
is reasonable only if kept within the
bounds of the actual consent. It must
first appear that:
(a) A right exists;
(b) The person involved had
knowledge, either actual or
51
Combination of UP and BEDA Notes
constructive, of the exercise of such
right; and
(c) The said person had an actual
intention to relinquish the right.
(3) Search of moving vehicle – a
warrantless search of a moving vehicle
is justified on the ground that it is not
practicable to secure a warrant because
the vehicle can be quickly moved out of
the locality or jurisdiction in which the
warrant must be sought.
(4) Check points; body checks in airports –
it is allowed and valid for as long as they
warranted by exigencies of public order
and are conducted in a way least
intrusive to motorists.
Note: routine inspections are valid:
(a) Where the officer merely draws
aside the curtain of a vacant vehicle
which is parked on the public fair
grounds;
(b) Officer simply looks into a vehicle;
(c) Officers flashes a light therein
without opening car’s doors;
(d) Occupants not subjected to a
physical search;
(e) Inspection is limited to usual search
or inspection; or
(f) Routine check is conducted in a
fixed area.
(5) Plain view situation – the elements of
view are: (PIIP)
(a) Prior valid intrusion based on the
valid warrantless arrest in which
the police are legally present in the
pursuit of their official duties;
(b) The evidence was inadvertently
discovered by the police who have
the right to be where they are;
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
(c) The evidence must be immediately
apparent; and
(d) Plain view justified mere seizure of
evidence without further search.
(6) Stop and frisk situation – this is a
limited protective search of outer
clothing for weapon. A genuine reason
must exist, in light of the police officer’s
experience and surrounding conditions,
to warrant the belief that the person
who manifests unusual suspicious
conduct has weapons or contraband
concealed about him. It serves a dual
purpose:
(a) the general interest of effective
crime prevention and detection;
and
(b) the safety of the police officer to
take steps to assure himself that
the person with whom he deals is
not armed with a deadly weapon
that could be used against him;
(7) Enforcement of customs laws – the
collector of customs is authorized to
effect searches and seizures
conformably with the provision of the
said laws. However, search warrant is
needed if the place to be searched is a
dwelling house;
(8) Exigent or emergency circumstances –
extraordinary circumstances;
(9) Others:
(a) When it is incident of inspection;
(b) Enforcement of health and sanitary
laws;
(c) In times of war within the area of
military operation;
(d) Buy bust operation;
(e) Private search.
RULE 126
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Combination of UP and BEDA Notes
Search and Seizure
People vs. Collado
698 SCRA 628 , June 17, 2013
Warrantless Arrests; Section 5(a) is what is
known as arrest in flagrante delicto. For this
type of warrantless arrest to be valid, two
requisites must concur: (1) the person to be
arrested must execute an overt act indicating
that he has just committed, is actually
committing, or is attempting to commit a
crime; and, (2) such overt act is done in the
presence or within the view of the arresting
officer.
A common example of an arrest in flagrante
delicto is one made after conducting a buy-
bust operation.
Assuming that irregularities indeed attended
the arrest of appellants, they can no longer
question the validity thereof as there is no
showing that they objected to the same before
their arraignment.
Warrantless Searches and Seizures; Under
Section 13, Rule 126 of the Rules of Court, “[a]
person lawfully arrested may be searches for
dangerous weapons or anything which may
have been used or constitute proof in the
commission of an offense without a search
warrant.
Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam
Anent their claim of unreasonable search and
seizure, it is true that under the Constitution,
“a search and consequent seizure must be
carried out with a judicial warrant; otherwise,
it becomes unreasonable and any evidence
obtained therefrom shall be inadmissible for
any purpose in any proceeding.” This
proscription, however, admits of exceptions,
one of which is a warrantless search incidental
to a lawful arrest. The arrest of the appellants
was lawful. Under Section 13, Rule 126 of the
Rules of Court, “[a] person lawfully arrested
may be searched for dangerous weapons or
anything which may have been used or
constitute proof in the commission of an
offense without a search warrant.” The factual
milieu of this case clearly shows that the search
was made after appellants were lawfully
arrested. Pursuant to the above-mentioned
rule, the subsequent search and seizure made
by the police officers were likewise valid.
Hence, appellants’ claim of unreasonable
search and seizure must fail.
(f)
9. Remedies from unlawful search and seizure.
The accused shall have tow alternative remedies
available to him in such instances:
(1) motion to quash the search warrant – a
search warrant illegally obtained or
secured or which is issued in violation of
the constitution or the rules may be
quashed through the proper motion; or
(2) motion to suppress the evidence –
when the evidence is illegally obtained,
such motion to suppress is in order.
RULE 127
PROVISIONAL REMEDIES
O. Provisional Remedies
1. Nature.
These are remedies which the party litigants may
resort to for the preservation or protection of
their rights or interests during the pendency of
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the action. In relation to criminal proceedings,

the provisional remedies under R127 are proper
only where the civil action for the recovery of civil
liability ex delicto has not been waived, or is not
reserved when such reservation of a separate
action may be made. In other words, the
provisional remedies in civil actions insofar as
they are practicable, may availed of in
connection with the civil action deemed
institutes with the criminal action.

Provisional remedies are not available when:

(a) offended party has waived the civil

claim;

(b) offended party has reserved the civil

claim;

(c) offended party has already instituted a

separate civil action; and

(d) criminal action carries with it no civil

liability.

2. Kinds of provisional remedies.

Provisional Remedies – are temporary, auxiliary,

and ancillary remedies available to a litigant for
the protection and preservation of his rights
while the main action is pending. They are writs
and processes which are not main actions and
are dependent for their application the existence
of a principal action. They are:

(1) Preliminary attachment;

(2) Preliminary injunction;

(3) Receivership;

(4) Replevin; or

(5) Support pendent lite.

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----- GOOD LUCK -----

Boy_T Notes/Remedial Law Reviewer/2018 Bar Exam 54