RULE 110

PROSECUTION OF OFFENSES
Section 1.
actions.

Institution

of

a. If Preliminary Investigation
is required

criminal

For offenses where a preliminary

investigation is required - by filing the
complaint with the proper officer for the
purpose of conducting the requisite
preliminary investigation.
Preliminary investigation is REQUIRED for
offenses where the penalty prescribed by
law is at least 4 years, 2 months and 1day
without regard to fine (Rule 112, Sec. 1
Par.2).
For all other offenses - by filing the
complaint or information directly with the
Municipal Trial Courts and Municipal Circuit
Trial Courts, or the complaint with the
office of the prosecutor.
DOES NOT APPLY to offenses which are
subject to summary procedure.
HOW IS THE CRIMINAL ACTION
INSTITUTED?
1. If the crime was committed in
Manila and other chartered cities
GENERAL RULE:
Complaint shall be filed with the office of
the prosecutor
EXCEPTION:

a. When their charter provides otherwise

b. When there was warrantless arrest,
inquest is sufficient. If inquest
prosecutor is unavailable, the offended
party or the arresting officer may file
directly to the court on the basis of an
affidavit of the offended party or
arresting officer or individual.
2. If the crime was committed outside
of Manila and other chartered cities
NOTE: Distinguish first if PI is required or
not

GENERAL RULE: By filing the

COMPLAINT with the proper officer
for the purpose of conducting the
requisite preliminary investigation
(Rule 110, Sec 1, a)
Preliminary
investigation
is
REQUIRED for offenses where the
penalty prescribed by law is at least
4 years, 2 months and 1 day
without
regard to fine. (Rule 112, Sec. 1
Par.2)
EXCEPTION: When there was
warrantless arrest, inquest is
sufficient. If inquest prosecutor is
unavailable, the offended party or
the arresting officer may file
directly to the court on the basis of
an affidavit of the
offended party or arresting officer
or individual
b. If Preliminary Investigation is NOT
required
By
filing
the
COMPLAINT
OR
INFORMATION
directly
with
the
Municipal Trial Courts and Municipal
Circuit Trial Courts, OR the complaint
with the office of the prosecutor
Meaning of Proper Officer
Refers to officers authorized to conduct
the required to conduct the requisite
preliminary investigation:
1. provincial or city prosecutors and their
assistants
2. national and regional state prosecutors
3. other officers authorized by the courts.
Note: Their authority to conduct PI shall
include all crimes cognizable by the
proper curt in their
respective jurisdiction

Effect of institution of the criminal

action:
It interrupts the running of the period of
prescription of the offense charged unless
otherwise provided by special laws.
NOTE: But the question is: when will it be
interrupted from the filing of the
complaint in the office of the prosecutor
or in the court?

a. For ordinary offenses, falling under

the RPC Filing before the Office of the
Prosecutor tolls the prescriptive
period

b. For violation of special laws

Filing before the court tolls the
prescriptive period (Act 3326), following
the case of Zaldivia vs.
Reyes, G.R. No. L-102342, July 3, 1992

Remedies of the offended party if the

prosecutor
refuses
to
file
an
information:
1. file an action for mandamus, in
case of grave abuse of
discretion;
2. lodge a new complaint before the
court having jurisdiction over the
offense;
3. take up the matter with the
Secretary of Justice in accordance
with the Rev.
Administrative Code;
4. institute an administrative charges
against the erring prosecutor; and
5. file criminal action against the
prosecutor with the corresponding
civil action for damages.
May Injunction Issue to Restrain
Criminal Prosecution?
GENERAL RULE: Criminal prosecutions
may NOT be restrained or stayed by
injunction, preliminary or final. The reason
being, public interest requires that
criminal acts be immediately investigated
and prosecuted for the protection of the

society (Domingo vs. Sandiganbayan, 322

SCRA 655).
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 subjudice;
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 had 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 lust for vengeance;
and
10. When there is clearly no prima facie
case against the accused and a motion
to quash on that ground has been
denied.
SEC
vs. INTERPORT
(LANDMARK
CASE)
The Court ruled that the nature and
purpose of an investigation conducted by
the SEC on violation of the Revised
Securities Act another special law is
equivalent to the preliminary investigation
conducted by the DOJ in criminal cases.
And thus, effectively interrupts the
prescriptive period. Why so? Because the
filing of a complaint for purposes of
preliminary
investigation
starts
the
prosecution process.
PANAGUITON vs. DOJ
BP 22, where the penalty is not less than
30 days or not more than 1 year, because
it is a special law, we expect it to fall
under Act 3326. This is the question
presented before the Court: Does it toll
the prescriptive period once the complaint
was filed before the Office of the

Prosecutor? the SC said YES! And the SC

said: Petitioners filing of his complaintaffidavit before the office of the city
prosecutor
in
1995
signified
the
commencement of the proceedings for
the prosecution of the accused and thus,
effectively interrupted the prescriptive
period for the offenses they have been
charged under BP 22. If you follow the
basic rule Act 3326, it should be filing in
court. But this case said that once it was
filed before the office of the prosecutor, it
interrupted the period.
Other cases with the same ruling:
Inco v. SB for violations of RA 3019
San Rio Company Ltd v. Lim for
violations of the
Intellectual Property Code
Rules on Summary Procedure; How to
Institute Criminal Actions
(Sec. 11) How commenced. The filing
of criminal cases falling within the scope
of this Rule shall be either by complaint or
by information: Provided, however, that in
Metropolitan Manila and in Chartered
Cities. such cases shall be commenced
only by information, except when the
offense cannot be prosecuted de oficio.
The complaint or information shall be
accompanied by the affidavits of the
compliant and of his witnesses in such
number of copies as there are accused
plus two (2) copies for the court's files. If
this requirement is not complied with
within five (5) days from date of filing, the
care may be dismissed.
(Sec. 12) Duty of court.

(a) If commenced by compliant. On the

basis of the compliant and the affidavits
and other evidence accompanying the
same, the court may dismiss the case
outright for being patently without basis
or merit and order the release of the
amused if in custody.

(b) If commenced by information. When

the case is commenced by information, or
is not dismissed pursuant to the next
preceding paragraph, the court shall issue
an order which, together with copies of
the affidavits and other evidence
submitted by the prosecution, shall
require the accused to submit his counteraffidavit and the affidavits of his
witnesses as well as any evidence in his
behalf, serving copies thereof on the
complainant or prosecutor not later than
ten (10) days from receipt of said order.
The prosecution may file reply affidavits
within ten (10) days after receipt of the
counter-affidavits of the defense.

Section 2. Form of the complaint or

information.
FORM
1. In writing;
2. In the name of the People of the
Philippines; and
3. Against all persons who appear to
be responsible for the offense
involved.
Section 3. Complaint defined.
A Complaint is:
1. a sworn written statement;
2. charging a person with an offense;
3. subscribed by the offended party,
any peace officer or other public
officer
charged
with
the
enforcement of the law violated.
The complaint as defined under Section 3
is different from the complaint filed with
the Prosecutors Office. The complaint
mentioned in this section refers to one
filed in court for the commencement of a
criminal prosecution for violation of a
crime, usually cognizable by municipal
trial courts as well as to a complaint filed
by an offended party in private crimes or
those which cannot be prosecuted de
officio.
REQUISITES OF A COMPLAINT:

1. it must be in writing and under

oath;
2. it must be in the name of the
People of the Philippines;
3. it must charge a person with an
offense; and
4. it must be subscribed by the
offended party, by any peace
officer or public officer charged
with the enforcement of the law
violated.
The COMPLAINT FILED WITH THE
PROSECUTORS OFFICE, from which
the latter may initiate a preliminary
investigation, refers to:
1. Any written complaint;
2. Filed by an offended party or not;
3. Not necessarily under oath,
except in 2 instances:
a. Complaint for commission of
an offense
which cannot be prosecuted de
officio or is private in nature
b. Where the law requires that
it is to be started by a
complaint sworn to by the
offended party, or when it
pertains to those which need
to be enforced by specified
public officers.

PERSONS
WHO
CAN
FILE
A
COMPLAINT
1. Offended party
2. Any peace officer
3. Other public officer charged with
the enforcement of the law violated
ex. Internal Revenue Officer for
violation of the NIRC, custom
agents with respect to violations
of the Tariff and Customs Code
Crimes which cannot be prosecuted de
officio
Concubinage,
adultery,
seduction,
abduction, acts of lasciviousness CANNOT
be prosecuted de officio (Art. 344, RPC)

It also includes defamation which

consists in the imputation of a crime
which cannot be prosecuted de officio.
Offended Parties who can file a complaint
1. In adultery and concubinage The
offended spouse. Both guilty
parties should be included if both
are alive.
2. In seduction, abduction and acts of
lasciviousness
a. If the victim is of legal age
and has no incapacity - The
victim alone as exclusive
right; parents or
grandparents are precluded
from filing the complaint
b. If victim is a minor, or of age
but suffers from incapacity
She has independent right
but
the
parents,
grandparents
or
legal
guardian may file, even if the
offended party does not wish
to file the complaint.
c. If the minor is incapacitated,
and it was the ascendant who
violated the child, the STATE
can institute the action for
the minor.
3. In rape The minor has the right
to
initiate
the
complaint
independently of parents and
guardians,
unless
incompetent/incapable
upon
grounds other than minority. If
minor initiates the complaint, the
father/guardian/grandfather
cannot withdraw complaint.
Complaint as condition precedent
Prosecutor cannot institute without the
complaint of the offended party.
The complaint starts the prosecutory
proceeding; but it does not vest
jurisdiction, as jurisdiction is vested in the
court by the law.

The complaint is only a condition

precedent for the exercise by proper
authorities of the power to prosecute.
The failure to raise the issue as to WON
there has been a valid complaint filed by
the offended party at the trial court is a
waiver of the issue.
Effect of death of offended party
After filing
Once a complaint is filed, the will of the
offended party is ascertained and the
action proceeds. Death after filing the
complaint would NOT deprive the court
of the jurisdiction to try the case
Before filing
1. Adultery/Concubinage The death of
the offended spouse before the filing
of the complaint for adultery bars
further prosecution - the acquittal or
death of one of the accused in the
crime of adultery does not bar the
prosecution of the other accused
2. Abduction, Seduction, Acts of
Lasciouvsness
a. If offended party was of age
when the crime was committed,
no more filing
b. If offended party was a minor
when the crime was committed,
parents, grandparents or legal
guardian may still file
c. If the offended party dies or
becomes incapacitated before
she was able to file the
complaint and she has no known
parents,
grandparents
or
guardians, the state shall initiate
the action in her behalf, pursuant
to the doctrine of PARENS
PATRIAE.
Effect of desistance by offended
party
It does not bar the People of the
Philippines from prosecuting the
criminal action, but it operates as a
waiver of the right to pursue civil
indemnity.

An affidavit of desistance cannot

justify dismissal of the complaint if
made after (and not before) the
institution of the criminal action.
(Alonte vs. Savellano, Jr.)

Who may extend pardon; Effect of Pardon

by offended party
GENERAL RULE: Pardon by the offended
party does not extinguish criminal liability.
Only civil liability is extinguished by
express waiver of the offended party.
EXCEPTIONS:
1. In concubinage and adultery only
the offended spouse, not otherwise
incapacitated, can validly extend
the
pardon
or
consent
contemplated
therein
(liability
extinguished)

2. In rape, seduction, abduction and

acts of lasciviousness
a. If offended party was of age
when the crime was committed,
only she can extend a valid
pardon which would absolve the
offender.
b. If offended party was a minor
when the crime was committed,
the pardon will be effective if
given by both parents and the
offended party; if she has no
parents or where the accused is
her own father and her mother is
dead, the offended minor, if with
sufficient discretion, can validly
pardon
the accused
Note:
The pardon refers to pardon
BEFORE filing of the criminal complaint in
court. Pardon effected after the filing of
the complaint in court does NOT prohibit
the continuance of the prosecution of the
offense except in case of marriage
between the offender and the offended
party.

 The pardon in cases of seduction,

abduction, and acts of lasciviousness
must be express.

acts of lasciviousness, and in slander by

deed
Pardon vs. Consent
Concubinage

Effect of marriage of the offender

with the offended party in private
crimes It shall extinguish the criminal
action or remit the penalty already
imposed.
This
applies
even
to
coprincipals,
accomplices,
and
accessories.

Pardon
Refers to past acts
of
adultery/concubinag
e.
In order to absolve
the accused from
liability must be
extended to both
offenders (Art. 344,
RPC)

Effect of marriage of the offender with the

offended party in rape
It shall extinguish the criminal action or
remit the penalty already imposed.
EXCEPT:
1. where the marriage was invalid or
contracted in bad faith in order to
escape criminal
liability,
2. in private libel
3. in multiple rape, insofar as the
other accused in the other acts of
rape respectively committed by
them are concerned.

Effect of marriage on private libel

In private libel, or the libelous
imputation to the complainant of the
commission of the crimes of concubinage,
adultery, seduction, abduction, rape or

Adultery

and

Consent
Refers to future acts.
In order to absolve
the accused from
liability,
it
is
sufficient even if
granted only to the
offending spouse.

Effect if crime composed of one which can

be prosecuted de officio, and one which
cannot be prosecuted de officio
Where one of the components is a private
crime and the other a public offense, the
fiscal may initiate the proceeding de
officio.
Rationale: Since one of the component
offenses is a public crime, the latter
should prevail, public interest being
always paramount to private interest.

Effect of marriage of the offender with the

offended party in multiple rape
Where multiple rape is committed,
marriage of the offended party with one
defendant
extinguishes
the
latters
liability and that of his accessories or
accomplices for a single crime of rape
cannot extend to the other acts of rape.
Marital Rape
Note: If the offender in rape is the legal
husband of the offended party the
subsequent forgiveness by the wife shall
extinguish the criminal action or the
penalty. But the penalty shall not be
abated if the marriage is void ab initio.

in

NOTE: Refrain from using the term

private crime, theres no such thing. All
crimes are public crimes. Use the term
crimes which cannot be prosecuted de
officio instead.

The ACQUITTAL OR DEATH of one of the

accused in the crime of adultery does not
bar the prosecution of the other accused
(People vs. Topio, et al., 35 Phil. 901).
HOWEVER, the death of the offended
spouse before the filing of the complaint
for adultery bars further prosecution, BUT
if the offended spouse died after the filing
of the corresponding complaint, his death
will NOT prevent the proceeding from
continuing to its ultimate conclusion.
Section 4. Information defined.

An Information is:
1. an accusation in writing;
2. charging a person with an offense;
3. subscribed by the prosecutor and
filed with the court.
REQUISITES OF AN INFORMATION
1. it must be in writing;
2. it must charge a person with an
offense;
3. it must be subscribed by the fiscal;
and
4. it must be filed in court.

Persons
authorized
to
file
information:
1. City or provincial prosecutor and
their assistants; and
2. Duly
appointed
special
prosecutors.
Note: Prosecution in the RTC is always
commenced by information, except:
In certain crimes against chastity
(concubinage, adultery, seduction,
abduction, acts of lasciviousness);
and

Defamations imputing any of the

aforesaid offenses wherein a sworn
written complaint is required in
accordance with Section 5 of this
Rule.

In case of variance between the

complaint filed by the offended
party and the information in crimes
against chastity, the complaint
controls (People vs. Oso, G.R. No. L42571, October 10, 1935).

An information not properly signed

cannot be cured by silence,
acquiescence or even by express
consent (Villa vs. Ibanez, G.R. No.
L4313, March 20, 1951).

NOTE: What the prosecutor signs under

oath is certification that he has conducted
the required preliminary investigation (PI).
Lack of certification

does not invalidate judgment. (People v.

Bulaong)
Variance between complaint and
information
Variance between the complaint filed by
the offended party and the information in
crimes against chastity, the complaint
controls.
COMPLAINT
INFORMATION
Subscribed by the
Subscribed by
offended party,
the fiscal
any
(indispensable
requirement)
peace officer or
other officer
charged with
the enforcement
of the law
violated
it may be filed
it is filed with
either in court
the court
or in the
prosecutors
office
must be made
need not be
under
under
oath
oath
Information not properly signed
An information not properly signed cannot
be cured by silence, acquiescence or
even by express consent (Villa vs. Ibanez,
G.R. No. L-4313, March 20, 1951).

Section 5. Who
criminal actions.

must

prosecute

GENERAL RULE: The action must be

prosecuted under the direction and
control of the prosecutor. The public
prosecutor is a quasi-judicial officer and a
representative of a sovereignty whose
obligation to govern impartially is as
compelling as its obligation to govern at
all
EXCEPTION: When there is lack of public
prosecutors or heavy workload, the
private prosecutor may be authorized in
writing by the Chief of the Prosecution
Office or the Regional State Prosecution to
prosecute the case subject to the courts

1.
2.

approval. The authority will continue until

revoked or withdrawn.

prosecutor to proceed even

absence of a public prosecutor.

Meaning of Control
The prosecutor can stop the private
prosecutor at any point in the conduct of
the trial. He can intervene because he is
in control of the conduct of the criminal
case.

May a public prosecutor allow a

private prosecutor to actively handle
the conduct of the trial?
Yes, where the civil action arising from the
crime is deemed instituted in the criminal
action.

Duties of a Public Prosecutor

Conduct preliminary investigation for
cases filed before their office
Have control over the prosecution of the
case 3. Conduct Inquest Proceedings if
assigned and as
provided for by law

Limitations upon the power of the private

prosecutor
1. Is not entitled to be served with copies
of the pleadings as a matter of right
since a notice of the court to the fiscal
is a notice to the prosecutor (Sese vs.
Montesa). Note however that failure to
serve pleadings and orders upon
government counsel renders the court
orders issued upon such such petitions
or motions of an accused as void.

Limitations on the power of the

prosecutor to exercise discretionary
The rule is that the power of the
prosecutor to exercise discretionary
is NOT absolute (Chua
vs. Padillo)

public
power
public
power

a. The decision of the provincial or the city

prosecutor, could be questioned before
the DOJ via petition for review DOJ within
15 days from receipt of resolution or
denial of a Motion for Reconsideration
(DOJ Circular 70)

b. The CA may review the decision of the

DOJ on the premise that it was tainted
with grave abuse of discretion amounting
to lack or excess of jurisdiction (Rule 65).

c. The decision of the DOJ may be elevated

to the President if the penalty for the
offense is Death, Life
Imprisonment or Reclusion Perpetua
Can a private prosecutor proceed
with the trial of the case even in the
absence of a public prosecutor?
No, if the public prosecutor is absent,
reset or reschedule. However, the private
prosecutor could obtain a certification
from the Chief of the Prosecution Office or
the Regional State Prosecutor or the
Regional Prosecutor to allow the private

in

the

2. Cannot make a stand inconsistent with

the state.

3. Cannot appeal from an order dismissing

the case on motion of the fiscal.
May not continue to take part in the
proceeding after the death of the offended
party since the latter is the principal and
the private prosecutor, merely an agent.
FULL DISCRETION AND CONTROL OF
THE PROSECUTOR
All criminal actions commenced by a
complaint
or
information
shall
be
prosecuted under the direction and control
of the prosecutor.
A
PRIVATE
PROSECUTOR
may
be
authorized to prosecute a criminal action
subject to the following conditions:
1. the public prosecutor has a heavy
work schedule, or there is no public
prosecutor assigned in the province
or city;
2. the
private
prosecutor
is
authorized IN WRITING by the
Regional State Prosecutor (RSP),
Provincial or City Prosecutor;

3. the authority of the private

prosecutor must be approved by
the court;
4. the
private
prosecutor
shall
continue to prosecute the case
until the end of the trial unless the
authority is withdrawn or otherwise
revoked by the RSP, Provincial or
City Prosecutor; and
5. In case of the withdrawal or
revocation of the authority of the
private prosecutor, the same must
be approved by court. (Memo Circ.
No. 25, April 26, 2002, Regarding
Amendment to Sec. 5, Rule 110)
In appeals before the CA and the SC, it is
only the Solicitor General that is
authorized to bring and defend actions in
behalf of the People of the Philippines
(People vs. Nano, 205 SCRA 155).
In all cases elevated to
the
Sandiganbayan and
from
the
Sandiganbayan to the SC, the Office of the
Ombudsman,
through
its
Special
Prosecutor shall represent the People of
the Philippines, EXCEPT in cases filed
pursuant to E.O. Nos. 1, 2, 14 and 14-A,
issued in 1986 (Sec. 4, RA 8249).

3. The acts or omissions complained

of as constituting the offense
4. The name of the offended party
5. The approximate time of the
commission of the offense
6. The place wherein the offense was
committed
PURPOSE OF THE RULE
1. To inform the accused of the nature
and cause of accusation against
him.
2. To notify the defendant of the
criminal acts imputed to him so
that he can duly prepare his
defense.
Substantial defect in the information
cannot be cured by evidence that would
jeopardize the accuseds right to be
informed of the true nature of the offense
he is being charged with
Section 7. Name of the accused.
PURPOSE
The manifest intent of the provision is to
make a specific identification of the
person to whom the commission of an
offense is being imputed.

PROSECUTION OF CRIMES AGAINST

CHASTITY

a. If NAME IS KNOWN, the name and

*Refer to discussion on offended parties

who can file a complaint
Section 6. Sufficiency of complaint or
information.

b.

CONTENTS OF A VALID COMPLAINT

OR INFORMATION
1. Name of the accused, including
any appellation or nickname An
error in the name of the accused is
not reversible as long as his
identity is sufficiently established
and this defect is curable at any
stage of the proceedings as the
insertion of the real name of the
accused is merely a matter of form.
2. The designation of the offense

c.
d.

surname of the accused or any

appellation or nickname by which he
has been or is known must be stated;
If NAME CANNOT BE ASCERTAINED, a
fictitious name with a statement that his
true name is unknown;
If true name thereafter ascertained,
such name shall be inserted in the
complaint or information or record;
While one or more persons, along with
specified and names accused, may be
sued as John Does, an information
against all accused described as John
Does is void, and an arrest warrant
against them is also void.

Section 8. Designation of the offense.

The information or complaint must state or

designate
the
following
whenever
possible:
1. The designation of the offense
given by the statute.
2. The statement of the acts or
omissions constituting the offense,
in ordinary, concise and particular
words.
3. The
specific
qualifying
and
aggravating circumstances must
be stated in ordinary and concise
language.
The
qualifying
and
aggravating
circumstances cannot be appreciated
even if proved UNLESS alleged in the
information (People vs. Perreras).
In case of allegation of aggravating
circumstance of HABITUAL
DELINQUENCY, it should not be generally
averred. The information must specify the
requisite data regarding:
1. the commission of the crimes;
2. the last conviction or release;
3. the other previous conviction or
release of the accused.
ALLEGATIONS PREVAIL
OVER
DESIGNATION OF THE OFFENSE IN
THE
INFORMATION
It is not the designation of the offense in
the complaint or information that is
controlling (People vs. Samillano, 56 SCRA
573); the facts alleged therein and not its
title determine the nature of the crime
(People vs. Magdowa, 73 Phil.
512).
The accused may be convicted of a crime
more serious than that named in the title
or preliminary part if such crime is
covered by the facts alleged in the body of
the information and its commission is
established by evidence (Buhat vs. Court
of Appeals, 265 SCRA 701).
Limitation on the rule that an accused
may be convicted of a crime which is more

serious than that named in the title so

long as the facts alleged the more serious
offense:
An accused could not be convicted under
one act when he is charged with a
violation of another if the change from one
statute to the other involves:
a) a change in the theory of the trial;
b) requires of the defendant a
different defense; or
c) surprises the accused in any way
(U.S. vs. Panlilio, 28 Phil. 603) .
Section 9. Cause of the accusation.
It must be in ordinary or concise
language, sufficient to enable a person of
common understanding to know what
offense is being charged. This must be
done both for the offense charged and the
circumstances involved in its commission.
PURPOSE
1. to enable the court to pronounce
proper judgment;
2. to furnish the accused with such a
description of the charge as to
enable him to make a defense;
3. as a protection against further
prosecution for the same cause.
The accused cannot be found guilty of an
offense which has not been alleged.
Where what is alleged in the information
is a complex crime and the evidence fails
to support the charge as to one of the
component offenses, the defendant can
only be convicted of the offense proven.

RULE
ON
NEGATIVE
AVERMENTS
GENERAL RULE: Where the statute
penalizes generally the acts therein
defined and is intended to apply to all
persons indiscriminately, the information
is sufficient even if does not allege that
the accused falls within the excepted
situation, for then the complete definition
of the offense is entirely separable from
the exceptions and can be made without

reference to the latter. In this case, the

exception is a matter of defense which the
accused has to prove.
EXCEPTION: Where the statute alleged to
have been violated applies only to a
specific class of persons and to special
conditions, the information must allege
facts establishing that the accused falls
within the specific class affected and not
those affected from the coverage of law.
Where negative averment is an essential
element of the crime, it must be proved.
Section 10. Place of commission of
the offense
PURPOSE
To show territorial jurisdiction.
GENERAL RULE: A complaint or
information is sufficient if it appears from
the allegations that the offense was
committed or some of its essential
ingredients occurred at some place, within
the jurisdiction of the court.
EXCEPTION:
When
the
place
of
commission is an essential element of the
offense, the place of commission must be
alleged with particularity Example:
a. Trespass to dwelling
b. destructive arson
c. robbery in an inhabited house
d. violation of domicile

Section 11. Date of commission of the

offense
GENERAL RULE:
It is NOT required that the complaint or
information state with particularity the
PLACE where the crime was committed
and the DATE of the commission of the
crime.
EXCEPTION:
a. If the PLACE/DATE of the commission of
the offense constitutes an essential
element of the offense.

b. When the date is a material ingredient

of the offense.
Example:
a. Infanticide
b. Election offenses
c. Abortion
As long as the alleged date is not so
remote or far removed from the actual
date so as to surprise and prejudice the
accused, then the information is valid.
The determinative factor in the resolution
of the question involving a variance
between allegation and proof in respect of
the date of the crime is the element of
surprise on the part of the accused and
d. his inability to defend himself
properly
Section 12. Name of the offended
party
GENERAL RULE: The offended party must
be designated by name, nickname, any
other appellation or by fictitious name.
EXCEPTION: In crimes against property,
the description of the property must
supplement the allegation that the owner
is unknown.
Section 13. Duplicity of offense.
There is duplicity when the complaint or
information charges 2 or more DISTINCT or
DIFFERENT offenses.
GENERAL RULE:
A complaint or information must charge
only one offense.
EXCEPTIONS:
1. Complex crimes
2. Special Complex crimes
3. Continuous
crimes
or
delicto
continuado
4. Crimes of which another offense is
an ingredient
Should there be duplicity of offense in the
information, the accused must move for
the quashal of the same BEFORE

arraignment

arraignment, otherwise, he is deemed to

have waived the objection and maybe
found guilty of as many offenses as those
charged and proved during the trial.
Section.
14.
substitution.

Amendment or

KINDS OF AMENDMENT
1. BEFORE THE PLEA covers both
substantial
and
formal
amendment, WITHOUT leave of
court.
2. AFTER THE PLEA covers only
formal amendment provided:
a) leave of court is obtained
b) such
amendment
is
not
prejudicial to the rights of the
accused.
EXCEPT when a fact supervenes
which changes the nature of the
crime charged in the information or
upgrades it to a higher crime, in
which case, there is a need for
another
arraignment
of
the
accused under the amended
information.
An amendment is only in form where it
neither affects nor alters the nature of the
offense charged OR where the charge
does not deprive the accused of a fair
opportunity to present his defense OR
where it does not involve a change in the
basic theory of the prosecution.
Substitution If it appears at anytime
before judgment that a mistake has been
made in charging the proper offense, the
court shall dismiss the original complaint
or information upon the filing of a new one
charging the proper offense, provided the
accused shall not be placed in double
jeopardy.
Limitation to the rule on substitution:
1. No judgment has yet been
rendered.

2. The accused cannot be convicted

of the offense charged or of any
other offense necessarily included
therein.
3. The accused would not be placed
in double jeopardy.
AMENDMENT SUBSTITUTION OF
INFORMATION OR
COMPLAINT
May involve
Involves
either formal or
substantial
substantial
change from the
changes
original charge
Amendment
Substitution of
before the plea
information must
has been entered
be
can be
with leave of
effected without
court as the
leave of court.
original
information has
to be dismissed.
Amendment is
Another
only as to form,
preliminary
there is
investigation is
no need for
entailed and the
another
accused has to
plead anew to
preliminary
the new
investigation and
information
the retaking of
the plea of the
accused.

An amended
information
refers to the
same offense
charged in the
original
information or to
an offense
which necessarily
includes or is
necessarily
included in the
original
charge, hence
substantial
amendments to
the
information after
the plea has
been taken
cannot be made
over the
objection of the
accused, for if
the
original
information
would be
withdrawn,
the accused
could invoke
double jeopardy.

Requires or
presupposes that
the new
information
involves a
different offense
which does
not include or is
not necessarily
included in the
original
charge, hence
the
accused cannot
claim double
jeopardy.

VARIANCE BETWEEN INDICTMENT AND

PROOF (Situations Contemplated)
1. When the offense proved is less
serious than, and is necessarily
included in, the offense charged, in
which case the defendant shall be
convicted of the offense proved.
2. When the offense proved is more
serious than and includes the
offense charged, in which case the
defendant shall be convicted of the
offense charged.
3. When the offense proved is neither
included in, nor does it include, the
offense charged and is different
therefrom, in which case the court

should dismiss the action and order

the filing of a new information
charging the proper offense.
The third situation set forth above is
substitution of information under Section
14, Rule 110.
Section 15. Place where action is to
be instituted.
PURPOSE
The purpose being not to compel the
defendant to move to, and appear in a
different court from that of the territory
where the crime was committed, as it
would cause him great inconvenience in
looking for his witnesses and other
evidence in another place (Beltran vs.
Ramos, 96 Phil. 149).
VENUE IS JURISDICTIONAL
Venue is jurisdictional as the court has no
jurisdiction to try an offense committed
outside its territorial jurisdiction. It cannot
be waived, or changed by agreement of
the parties, or by the consent of the
defendant.
GENERAL RULE: Subject to existing laws,
in all criminal prosecutions, the action
must be instituted and tried in the courts
of the municipality or territory where the
offense was committed or any of its
essential ingredients occurred.
EXCEPTIONS TO THE RULE OF VENUE:
1.
2. Sandiganbayan cases
3. If committed in a train, aircraft, or
other public or private vehicle: in
the court of any municipality or
territory where the vehicle passed
during its trip, including the place
of departure or arrival
4. If committed on board a vessel in
the course of its voyage: in the
court of the first port of entry or of
any municipality or territory where
the vessel passed during the
voyage, subject to the generally

accepted principles of international

law
5. Crimes committed outside the Phil
but punishable under Article 2 of
the RPC: any court where the
action is first filed
Article 2, Revised Penal Code
Except as provided in the treaties and
laws of preferential application, the
provisions of this Code shall be enforced
not only within the Philippine Archipelago,
including its atmosphere, its interior
waters and maritime zone, but also
outside of its jurisdiction, against those
who:

1) Should commit an offense while on a

Philippine
ship or airship

2) Should forge or counterfeit any coin or

currency note of the Philippine Islands
or obligations and securities issued by
the Government of the Philippine
Islands;

3) Should be liable for acts connected

with the introduction into these islands
of the obligations and
securities mentioned in the presiding
number;

4) While

being
public
officers
or
employees, should
commit an offense in the exercise of their
functions;

5) Should commit any of the crimes

against national security and the law of
nations, defined in Title One of Book
Two of this Code.

6. Complex Crimes
Where the crime charged is a
complex crime, the RTC of any
province in which any one of
the essential elements of such
complex
crime
had
been

committed has jurisdiction to

take cognizance of the offense.
7. Continuing Offense - is one
where the elements of which occur
in several places, (unlike a LOCAL
OFFENSE - one which is fully
consummated in one place)
The venue is in the place where
one of its essential elements
was consummated.
Continuing Crime (People of the
Philippines vs Homo, June 6,
2009)
A continued (continuous or continuing)
crime is defined as a single crime,
consisting of a series of acts but all arising
from one criminal resolution. Although
there is a series of acts, there is only one
crime committed; hence, only one penalty
shall be imposed.
A continuing offense is a continuous,
unlawful act or series of acts set on foot by
a single
impulse
and
operated
by
an unintermittent force, however long a
time it may occupy.
Akin to the extant case is that of People
v. De la Cruz, wherein the robbery that
took place in several houses belonging to
different persons, when not absolutely
unconnected, was held not to be taken as
separate and distinct offenses. They
formed instead, component parts of the
general plan to despoil all those within
the vicinity. In this case, the Solicitor
General argued that the [appellant] had
committed eight different robberies,
because the evidence shows distinct and
different acts of spoilation in different
houses,
with
several
victimized
persons. The Highest Tribunal, however,
ruled that the perpetrated acts were not
entirely distinct and unconnected from
one another. Thus, the single offense or
crime.
Requisites
of
Continuing
Crime
(People
of
the
Philippines
vs
Ledesma, September 29, 1976)
1. Plurality of acts performed separately
during a period of time;

2. Unity of penal provision infringed upon

or violated;
3. Unity of criminal intent which means
that two or more violations of the same
penal provision are united on one and the
same intent leading to the perpetration of
the same criminal purpose or claim
Jurisdiction over Continuing Crimes
Continuing offenses are consummated in
one place, yet by the nature of the
offense, the violation of the law is
deemed continuing (e.g. estafa and libel).
As such, the courts of the territories
where the essential ingredients of the
crime took place have concurrent
jurisdiction. But the court which first
acquires jurisdiction excludes the other
courts.
(Dina Tuzon vs Hon. Cesar Cruz,
August 28, 1975)
In transitory or continuing offenses in
which some acts material and essential to
the
crime
and
requisite
to
its
consummation occur in one province and
some in another, the court of either
province has jurisdiction to try the case, it
being understood that the first court
taking cognizance of the case will exclude
the others (4 Moran's Comments on the
Rules of Court, 1970 Ed., pp. 61-62).
8. Piracy The venue of piracy, unlike
all other crimes, has no territorial
limits.
9. Libel The action may be instituted
at the election of the offended or
suing party in the province or city:
a) where the libelous article is
printed and first published;
b) 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;
c) if the offended party is a public
official, where the latter holds
office at the time of
the
commission of the offense.
10. 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 (Section 5[4],
Article VIII, 1987 Constitution).
11. In cases filed under B.P. 22 The
criminal action shall be filed in the
place where the check was
dishonored or issued. In case of
crossed-check, place of depositary
or collecting bank.
Section 16. Intervention of the
offended party in criminal action.
GENERAL RULE: 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
pursuant to Rule 111.
Party includes not only the government
but other persons as well, such as the
complainant who may be affected by the
judgment rendered in the criminal
proceedings. [People v. Madali (2001)]
EXCEPTIONS:
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; and
2. Where the offended party has
waived his right to civil indemnity
OR has expressly reserved his right
to institute a civil action OR has
already instituted said action.
Any move on the part of the complainant
or offended party to dismiss the criminal
case, even if without objection of the
accused, should first be referred to the
prosecuting fiscal for his own view on the
matter. He controls the prosecution of the
case and may have reasons why the case
should not be dismissed.
[Republic v. Sunga]
RULE 111
PROSECUTION OF CIVIL ACTIONS

Section 1. Institution of criminal and

civil actions.

arising from the offense shall be deemed

instituted with the criminal action.

Revised Penal Code Article 100.

Every person
criminally liable for a felony is also
civilly liable
-Civil liability may consist of restitution,
reparation of the damaged caused and
indemnification
of
consequential
damages.
Example in case of death items of
damages that may be recovered
1) Indemnity for the death of the
victim
2) Indemnity for the loss of earning
capacity of the deceased
3) Moral damages
4) Exemplary damages
5) Attys fee and expenses of
litigation
6) Interests in proper cases

EXCEPTIONS:
1. when the offended party WAIVES
the civil action
2. when the offended party RESERVES
his right to institute a separate civil
action
3. when offended party INSTITUTES A
CIVIL ACTION PRIOR to the criminal
action.

-so even when a complaint or information

is filled, even without any allegation of
damages and the intention to prove and
claim then, it is understood that the
offended party has the right to prove and
claim for them unless a waiver or
reservation is made.
Civil action deemed instituted with
criminal action civil liability of the
accused must be determined in the
criminal action unless waived or reserved
in a separate action this is so because
an offense causes two classes of injuries
and these are the following:
1) Social injury criminal act that
is repaired thru imposition of
the corresponding penalty
2) Personal injury compensated
thru indemnity which is civil in
nature
-when no civil action is expressly instituted
it shall be impliedly instituted with the
criminal action.
GENERAL RULE:
When a criminal action is instituted, the
civil action for the recovery of civil liability

Waiver of civil action right to recover

civil liability, a right personal to the
offended party and may be waived
-if civil action arising from the crime is
waived the offended party may still
pursue a civil action sourced from culpa
aquiliana
-act or omission of a person may
constitute a crime, quasi delict and a
breach of contract at the same time.
Ex. A passenger sustained bodily injuries
may base his claim upon the three
sources. Now if he waives the civil action,
does the waiver likewise include the civil
action based upon culpa-contractual?
It does not. And the fact that the civil
action is deemed included in the criminal
action that is only for the civil liability
arising from the offense charged.
Waiver and reservation of right to file
a separate action to waive is to
abandon voluntarily the right of action
that one may exercise or enforce.
To reserve is to save for some future time
or for such time as is necessary, a thing
which one actually has or a right granted
by the statute.
-information filed by the chief of police
without intervention of the offended party
did not lose his right to claim in a
separation action for damages because he
is not the author of the criminal action.
If the Offended party himself filed permissible to deduce that he has waived
the right to file a separate action.

-dismissal of the information in a criminal

case does not affect the right of the
offended party to institute or continue a
civil action already instituted and arising
from the offense, where the offended
party has already reserved the right to
institute such an action or already
instituted one.
WHEN RESERVATION SHALL BE MADE
1. before the prosecution starts to
present its evidence and
2. under circumstances affording the
offended party to a reasonable
opportunity
to
make
such
reservation.
- default of the offended party to make his
choice within the time span forfeits that
right.
Party
authorized
to
make
the
reservation no one is authorized to
make reservation except the offended
party.
Instances wherein a party is not
authorized to make reservation BP
22, RA 8249 defining the jurisdiction of
Sandiganbayan no right to reserve the
filing of such civil action separately from
the criminal action shall be recognized
(see mem aid for others)

ONLY the civil liability arising from the

crime charged as a felony is now deemed
instituted. Civil liability arising from other
sources of obligations are no longer
deemed instituted like those under Article
32, 33, 34 and 2176 of the Civil Code
which can be prosecuted even without
reservation.
In BP 22 cases, no reservation to file the
civil action separately shall be allowed.
Effect of institution of separate
action institution of a civil action for
damages the offended party in effect
abandoned his right to press recovery for
damages in the criminal case and has

opted instead to recover them in the civil

case.
-Offended party then loses his right to
intervene in the prosecution of the
criminal case.
Prior institution of criminal action not
necessary a separate civil action may
be instituted and prosecuted to final
judgment
without
waiting
for
the
institution and termination of a criminal
action.
-where separate civil action is brought to
demand civil liability arising from a
criminal
offense
and
no
criminal
proceeding are instituted during the
pendency
of
the
civil
case,
a
preponderance of evidence shall likewise
be sufficient to prove the act complained
of.
Double recovery not allowed
Offended party may not recover twice for
the same act or omission of the accuses
-election of remedies is not made until the
judicial proceedings has gone to judgment
on the merits.

RULES ON FILING FEES OF CIVIL

ACTION
DEEMED INSTITUTED WITH THE
CRIMINAL ACTION
1. NO filing fees are required for
amounts of ACTUAL DAMAGES,
EXCEPT with respect to criminal
actions for violation of BP 22, 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;
2. Damages other than actual (moral,
exemplary and other damages) if
specified in the complaint or
information,
the
corresponding
filing fees shall be paid, otherwise
the
court
will
not
acquire
jurisdiction over such damages;
3. 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,
the corresponding filing fees need
not be paid and shall simply
constitute a first lien on the
judgment.

c) In cases where the civil action is

consolidated with the criminal
action; and
d) Where the civil action is not one
intended to enforce the civil
liability arising from the offense.
ACQUITTAL IN A CRIMINAL CASE DOES
NOT BAR THE FILING OF THE CIVIL
CASE WHERE:
1. the
acquittal
is
based
on
reasonable doubt, if the civil case
has been reserved
2. the decision contains a declaration
that the liability of the accused is
not criminal but only civil in nature
and
3. the civil liability is not derived from
or based on the criminal act of
which the accused is acquitted
(Sapiera vs. Court of Appeals, 314
SCRA 370).

Payment of filing fees mandatory

amount of damages (not including actual)
is
specified
in
the
complaint
or
information, the corresponding filing fee
shall be paid by the offended party upon
the filing thereof in the court. -amount of
damages not specified the filing fees
therefore need not to be paid upon the
filing of the complaint/information but said
filing fees shall constitute a first lien on
the judgment awarding such damages.

Counterclaims, cross-claims, third party

complaints are no longer allowed in a
criminal proceeding.
Any claim which
could have been the subject thereof may
be litigated in a separate civil action.

Determination of civil liability

Coverage of the rule Section 1 of Rule
111 applies only when the complainant in
the civil case is the same offended party
in the criminal action and both cases arise
from the offense or transaction

Section 2. When separate civil action

is suspended.
PRIMACY OF CRIMINAL ACTION OVER
CIVIL ACTION
1. After the filing of the criminal
action, the civil action which has
been
reserved
CANNOT
be
instituted until final judgment has
been rendered in the criminal
action.
2. If the civil action is instituted
BEFORE the filing of the criminal
action and the criminal action is
subsequently
commenced,
the
pending civil action shall be
suspended until final judgment in
the criminal action has been
rendered.
EXCEPTIONS:
a) In cases of independent civil actions
based upon Arts. 32, 33,
34 and 2176 of the Civil Code;
b) In cases where the civil action
presents a prejudicial question;

The civil liability covered under this rule

pertains only to the civil liability suffered
by the offended party and not the civil
liability to reimbursed the accused as a
result of his acquittal- this is in the nature
of counterclaim the remedy of the
accused is to file a separate cause of
action for the filling of a baseless suit
against him which must be litigated in a
separate proceeding.

Extinction of the penal action does not

carry with it the extinction of the civil
action, UNLESS the extinction proceeds
from a declaration in a final judgment that
the fact from which the civil liability might
arise did not exist.

The extinction of the civil liability refers

exclusively to civil liability arising from
crime; whereas, the civil liability for the

same act considered as a quasidelict is

not extinguished even by a declaration in
the criminal case that the criminal act
charged has not happened or has not
been committed by the accused.

preponderance of evidence is required in

civil cases- Art 332 RPC
-final judgment referred to is one
rendered by the court and not the
dismissal of the complaint by mere
resolution of the fiscal at preliminary
investigation.

Where the criminal case was dismissed

before trial because the offended party
executed an affidavit of desistance, the
civil action thereof is similarly dismissed.
Consolidation of criminal and civil
cases before judgment on the merit is
rendered in the civil action, the same
may, upon motion of the offended party
be consolidated with the criminal action in
the court trying the criminal action.
Consolidation not mandatory if fusion
(civil
and
criminal
action)
would
necessarily delay the disposition of the
criminal case constitutional right of the
accused violated trial court can deny the
application.
Reproduction of evidence
Consolidation evidence presented and
admitted in the civil action shall be
deemed automatically reproduced in the
criminal action without prejudice to the
right of the prosecution to cross examine.
-consolidated criminal and civil case shall
be tried and decided jointly it will avoid
the
duplication
of
efforts
in
the
presentation if evidence.
Effect of extinction of penal action
civil action based on delict shall be
deemed extinguished if there is a finding
in a final judgment in the criminal action
that the act or omission from which the
civil liability may arise did not exist
-neither is the dismissal of the criminal
case at the instance of the fiscal
considered to be a bar to the institution of
a civil case based upon the same act of
transaction
-death of the accused pending appeal of
his conviction, the criminal action is
extinguished inasmuch as there is no
longer a defendant to stand as the
accused.
-civil liability not extinguished by
acquittal where the acquittal is based on
reasonable
doubt
as
only
a

Civil liability is not extinguished:

1) The acquittal is based on
reasonable doubt
2) Where the court expressly declare
that the liability of the accused is
not criminal but only civil in
nature
3) Where the civil liability is not
derived from or based on the
criminal act of which the accused
is acquitted.
Section 3. When civil action may
proceed independently.

The institution of an independent civil

action against the offender under Articles
32, 33, 34 and 2176 of the Civil Code may
proceed independently of the criminal
case and at the same time without
suspension of either proceeding.

Recovery of civil liability under Articles 32,

33, 34 and 2176 of the Civil Code arising
from the same act or omission may be
prosecuted separately even without a
reservation. The reservation and waiver
herein refers only to the civil action for the
recovery of civil liability arising from the
offense charged (DMPI Employees Credit
Coop vs. Velez, G.R. No. 129282, Nov. 29,
2001).
Reservation not necessary may be
filed even without reservation, can
proceed
simultaneously
and
independently of each other only
limitation: cannot recover damages twice
for the same act.
ICA based upon violation of civil liberties
(Article 32 of the Civil Code)
-the creation of an absolutely separate
and ICA for violation of civil liberties is

essential to the effective maintenance of

democracy, for these reasons:
1) the threat to freedom originates from
abuses of power by govt officials and
peace officers fiscal was burdened with
too many cases or on account of
disinclination to prosecute a fellow public
officials, especially when he is of high
rank.

2) even when the prosecuting attorney filed

a criminal action, the requirement of proof
beyond reasonable doubt often prevented
the appropriate punishment. On the other
hand, an ICA would afford the proper
remedy by a preponderance of evidence.

3) direct and open violations of the penal

code trampling upon freedoms named are
not so frequent as those subtle, clever
and indirect ways which do not come
within the pale of the penal law.
Fraud,
Defamation
and
Physical
Injuries
Used in the law in their generic sense
Criminal negligence (reckless imprudence)
not included in the Art 33 (fraud,
defamation and physical injuries) because
what the law penalizes is the negligent or
careless act not the result thereof
Defamation, fraud and physical injuries
are intentionally committed, so that when
they are committed through reckless
imprudence or criminal negligence, they
may not be instituted as an ICA.
PURPOSE
To prevent the offended party from
recovering damages twice for the same
act or omission.
Section 4. Effect of death on civil
actions.

death of the accused after arraignment

and during the pendency of the criminal
action shall extinguish the civil liability
arising from the delict
claim
for
civil
liability
survives
notwithstanding the death of the accused,
if the same may be predicated on a

source of obligation other than delict

may continue against the estate or legal
representative of the accused.

accused dies before arraignment case

shall be dismissed without prejudice to
any civil action the offended party may
file against the estate of the deceased.
After
arraignment
and
during
the
pendency of the criminal action
extinguishes the civil liability arising from
the delict
Except: where civil liability is predicated
on other sources of obligation such as law,
contract, quasi-contract and quasi-delict.
If such civil action which survives is
impliedly instituted in the criminal action,
the legal representative or heir the
deceased shall be substituted for the
deceased. The criminal case if reduced to
a civil action.
However, if the civil action has been
reserved and subsequently filed or such
civil action has been instituted, when the
accused died, then such civil action will
proceed and substitution of parties shall
be ordered by the court pursuant to Sec
16 Rule 3 of the Rules of Court
Before arraignment the case shall be
dismissed without prejudice to any civil
action the offended party may file against
the estate of the deceased.
Pending appeal of his conviction it
extinguishes his criminal liability as well
the civil liability based solely thereon
Prior to final judgment it terminates his
criminal liability and only the civil liability
directly arising from and based solely on
the offense committed.
Death of the accused after final appeal
pecuniary liabilities of the accused are not
extinguished. Claims shall be filed against
the estate of the accused.
Sec. 5. Judgment in civil action not a
bar
-a final judgment rendered in a civil
action absolving the defendant from civil
liability is no bar to criminal action against
the defendant for the same act or
omission subject of the civil case

Note: where the criminal case was

dismissed before trial because the
offended party executed an affidavit of
desistance, the civil action thereof is
similarly dismissed.
Sec. 6. Suspension by reason of
prejudicial question.
-the rule that a civil action shall be
suspended
until
final
judgment
is
rendered in the criminal case does not
apply when the civil action is a Prejudicial
Question (PQ)
-PQ must be determinative of the guilt or
innocence of the accused
Time to plead PQ authorizes the
suspension of criminal proceeding on the
ground that there is a PQ raised in a civil
action that is pending trial, even during
the period of PI of the criminal complaint
by the prosecuting officer -when criminal
action has been filed in court either for PI
or for trial, the petition to suspend shall be
filed in the same criminal action at any
time before the prosecution rests.
Section 7.
question.

Elements

of

prejudicial

Prejudicial Question - that which arises

in a case, the resolution of which is the
logical antecedent of the issue involved
therein, and the cognizance of which
pertains to another tribunal. It must be
determinative of the case before the court
but the jurisdiction to try and resolve the
question must be lodged in another court
or tribunal.
Rationale:
decisions.

to

avoid

two

conflicting

ELEMENTS OF
A PREJUDICIAL
QUESTION
1. The civil action must be instituted
prior to the criminal action.
2. The civil action involves an issue
similar or intimately related to the
issue raised in the criminal action.

3. The resolution of such issue

determines whether or not the
criminal action may proceed.
WHERE
TO
FILE
PETITION
FOR
SUSPENSION BY REASON OF
PREJUDICIAL QUESTION
1. Office of the prosecutor; or
2. court conducting the preliminary
investigation; or
3. court where the criminal action has
been filed for trial at any time
before the prosecution rests.

RULE 112
PRELIMINARY INVESTIGATION
Section 1. Preliminary Investigation
defined; when required.
Preliminary Investigation - 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. (Sec. 1,
Rule 112)
Preliminary Investigation is required to be
conducted BEFORE the filing of a
complaint or information for an offense
where the penalty prescribed by law is at
least 4 years, 2 months and 1 day without
regard to the fine.
There is NO right of preliminary
investigation under Section 7, Rule 112
when a person is LAWFULLY arrested
unless there is a waiver of the provisions
of Article 125 of the Revised Penal Code.
HOWEVER, the accused can ask for
Preliminary Investigation in the following
cases:
1. if a person is arrested, he can ask
for preliminary investigation
BEFORE
the
filing
of
the
complaint/information BUT he must
sign a waiver in accordance with
Article 125, RPC.

2. AFTER
the
filing
of
the
information/complaint, the accused
may, within 5 days from the time
he learns of its filing ask for
preliminary investigation.
PURPOSES
1. to determine whether a crime has
been committed and whether there
is probable cause to believe that
the accused is guilty thereof;
2. to preserve evidence and keep the
witnesses within the control of the
State;
3. to determine the amount of bail, if
the offense is bailable.
Nature of right to PI
merely inquisitorial; often the only
means of discovering the persons
who may be reasonably charged
with the crime
not a judicial proceeding; not a trial
of the case on the merits and has no
purpose except in determining
whether
a
crime
has
been
committed and whether there is
probable cause to believe that the
accused is guilty thereof
a STATUTORY RIGHT and not a
creation of the constitution but once
granted by law, the accused, unless
he waives it, may not be brought to
trial without the compliance with PI;
UNDUE DELAY in conduct of PI
cannot be corrected and will result
to dismissal of the case
(Tatad v. Sandiganbayan)
Absence of PI
DOES NOT affect the courts
jurisdiction over the case nor do
they impair the validity of the
information or render it defective
(Doromal v. Sandiganbayan)
not a ground to quash the
information or nullify the order of
arrest issued against him or justify
the release of the accused from
detention

court cannot dismiss the complaint

on this ground
court should hold the trial in
ABEYANCE
and
conduct
the
investigation or order the fiscal to do
it

Waiver of PI
PI may be waived expressly or by
implication/silence
accused should invoke the PI before
plea, or else deemed waived
if court denies invocation of the right
to PI, the remedy of the accused is
to immediately appeal the issue
before the appellate court since he
cannot later raise the issue for the
first
time on appeal
right may be renounced and if the
accused refuses to appear, he
cannot be compelled to do so
Implied waiver:
1. failure to claim for PI before the
accused pleaded in court
2. failure to request it within five
days from time he learns of filing
of the complaint
3. absence of accused
4. by posting bail AND submitting
to arraignment (posting bail
alone does not
constitute waiver)
PI when required
offenses where penalty prescribed is
at least 4 years, 2 months and 1 day
WITHOUT REGARD to fine
a new PI required if there is
substitution of the complaint or
information
PI when not required
offenses where penalty prescribed is
below 4 years, 2 months and 1 day
offenses punishable by FINE only

lawful arrest under Section 6 of Rule

112 if the complaint or information
has been

PRELIMINARY
INVESTIGATION:
PERSONAL STATUTORY RIGHT
The right to preliminary investigation is a
personal right covered by statute and may
be waived expressly or by implication.
Absence of preliminary investigation does
not affect the jurisdiction of the court or
invalidate the information if no objection
was raised by the accused.
REMEDIES OF THE ACCUSED IF THERE
WAS
NO
PRELIMINARY
INVESTIGATION
1. Refuse to enter a plea upon
arraignment and object to further
proceedings upon such ground
2. Insist on
a
preliminary
investigation
3. File a certiorari, if refused
4. Raise
lack
of
preliminary
investigation as error on appeal
5. File for prohibition
As preliminary investigation is NOT a part
of the trial, the dismissal of the case by
the investigator will not constitute double
jeopardy and will not bar the filing of
another complaint for the same offense,
but if re-filed, the accused is entitled to
another preliminary investigation (U.S. vs.
Marfori, 35 Phil. 666).
Section 2. Officers authorized to
conduct preliminary investigation.
PERSONS AUTHORIZED TO CONDUCT
A PRELIMINARY INVESTIGATION
1. Provincial or city fiscal and their
assistants
2. Judges of the MTC and MCTC
3. National
and
regional
state prosecutors
4. Such other officers as may be
authorized by law such as: the
COMELEC, Ombudsman and
PCGG

Officers authorized by law:

1. Provincial or City Prosecutors and
their assistants
2. National and Regional State
Prosecutors
3. COMELEC
duly authorized legal officers; for
all election offenses punishable
under the election code
4. PCGG
for offenses involving the illgotten wealth of President Marcos
5. Ombudsman
Graft investigator Officers, Special
Prosecution Officers, any lawyer in
government service deputized; for
preliminary investigation and to
prosecute ALL criminal cases
involving
public
officials
and
employees, NOT ONLY those within
the
jurisdiction
of
the
Sandiganbayan BUT ALSO those
within the jurisdiction of the regular
courts (Uy v. Sandiganbayan)
Special Prosecutor is limited to
conduct PI within the jurisdiction of
Sandiganbayan only but this DOES
NOT confine the scope of the
investigatory
and
prosecutory
power of the Ombudsman to act on
ALL complaints against officers and
employees of the government
Ombudsman has the PRIMARY
jurisdiction for PI of offenses
cognizable by the Sandiganbayan;
may take over the investigation of
the Department of Justice at any
stage
of
the
PI;
EXCLUSIVE
jurisdiction to FILE and PROSECUTE
in the Sandiganbayan
Ombudsman has a shared or
concurrent authority with the other
investigating agency (DOJ) in
respect to the offenses cognizable
by the regular courts
Ombudsman is granted more than
the usual powers of the prosecutor.
It is vested with the power to
investigate
complaints
against
public officers on its own initiative
i.e. out of media

reports and anonymous complaints

A.M. No. 05-8-26-SC (Effective October 3,

2005) removed the authority of first level
judges to conduct preliminary
investigations
Section 3. Procedure
Filing of the complaint
Accompanied by the
affidavits
and supporting documents.

Within 10 days after the filing, the

investigating officer shall either
dismiss or issue subpoena.
If subpoena is issued, respondent
shall submit a counter-affidavit and
other supporting documents within
10 days from receipt thereof.

Hearing (optional). It shall be

held
within 10 days from submission
of counter-affidavits or from the
expiration of the period of their
submission.
Resolution of
investigating prosecutor

If respondent cannot be subpoenaed, or if

subpoenaed but does not submit his
counter-affidavit
within
10
days,
investigating officer shall resolve the
complaint
based
on
the
evidence
presented by the complainant.
Criminal investigation v. PI
a fact finding investigation carried
out by law enforcement officers for
the
purpose
of
determining
whether they should file a
complaint for PI

PI conducted for the purpose of

determining if there is a probable
cause to hold a person
for trial
presence
of
counsel
not
mandatory in PI since it is a
summary proceeding and is merely
inquisitorial but if a confession is
obtained from respondent without
a counsel, such confession would
be INADMISSIBLE
(Republic v. Albano)

RIGHTS OF THE ACCUSED DURING PI

1. speedy disposition of cases
2. to be notified of the proceeding
when issued subpoena
3. to examine evidence
4. to submit evidence
5. to be present in a clarificatory
hearing
6. to file motion for reinvestigation
7. to file petition for review
8. to file motion to quash the
information
9. to post bail
The Rules do not require the presence of
the respondent in the Preliminary
Investigation, what is required is that he
be given the opportunity to controvert the
evidence of the complainant by submitting
counter-affidavits.

10 Procedural Steps in PI:

1. Filing of Complaint/ Completion
of Affidavit
complaint must state the address
of the respondent;
must be accompanied by affidavits
of the complainant and his
witnesses and other supporting
documents in such number of
copies as there are respondents
plus two
copies for official file
affidavits must be sworn before
any prosecutor or government

official authorized to administer

oath* or in their
absence/unavailability, any notary
public
the officer who administered the
oath must certify that:
a) he has personally examined the
affiant, and
b) he is satisfied that the latter
voluntarily
executed
and
understood his affidavit
the affidavits need to be sworn to
hold the person making it liable for
perjury in case of
falsehoods

*Oath/Affirmation refers to an act in

which an individual on a single
occasion: a) appears in person
before the notary public; b) is
personally known to the notary
public or identified by the notary
public through competent evidence
of identity as defined by the Rules
on Notarial Practice; and c) avows
under penalty of law to the whole
truth of the content of the
instrument or document. (2004
Rules on Notarial Practice)
2. Dismiss/Issue Subpoena
within 10 days after filing of
complaint, investigating officer shall
either:
1. Dismiss, or
2. Issue subpoena to respondent
attaching a copy of the complaint
and supporting affidavits and
documents
respondent has the right to examine
the
evidence
submitted
by
complainant which he may not have
been furnished and to copy them at
his own expense
if evidence voluminous, complainant
may be required to specify those
which he intend to present against
respondent and shall be made
available
for
examination
and
copying by the respondent at his
expense

objects as evidence need not be

furnished to a party but shall be
made available for examination,
copying or photographing at the
expense of the requesting party

3. Counter Affidavit/Reply
within 10 days from receipt of
subpoena and the attached affidavits
and documents, respondent shall
submit his counter affidavit and that
of
his
witnesses
and
other
documents relied upon for his
defense
the counter affidavit shall be
subscribed and sworn to and certified
as provided in par. (a) of Section 3,
Rule
112
and
copies
thereof
furnished to the complainant
shall not be allowed to file motion to
dismiss in lieu of counter affidavit
4. Resolution by Fiscal

if
respondent
cannot
be
subpoenaed or does not submit
counter affidavit within the 10 day
period, the investigating officer shall
resolve the complaint based on the
evidence
Presented
5. Clarificatory Hearing (Optional)
if there are facts and issues to be
clarified from a party or a witness,
the investigating officer may set a
clarificatory hearing
parties have the right to be
present in the hearing but
WITHOUT right to examine or cross
examine however they may submit
to
the
investigating
officer
questions which may be asked to
the party or witnesses
hearing shall be held within 10
days from the submission of the
counter
affidavits
or
from
expiration of the period for
submission
shall be terminated within five
days within 10 days after the PI,
the investigating officer shall
determine whether or not there is

sufficient ground to
respondent for trial

hold

the

Section 4. Resolution of investigating

prosecutor and its review.

6. Issuance

of
Resolution
and
Information
or
Dismissal
If
Probable Cause Found:
if the investigating officer finds
cause to hold respondent for trial,
he shall prepare a resolution to that
effect
and
the
corresponding
information therefor
the
information
must
be
accompanied
by
a
sworn
certification that:
a) he had examined the complainant
and the latters witnesses;
b) there is reasonable ground to
believe that a crime has been
committed and that the accused is
probably guilty thereof;
c) the accused was duly apprised of
the complaint and the evidence
against him, and
d) he was afforded the opportunity to
submit the controverting evidence
omission
of
the
requisite
certification is not fatal to the
information (People v. Gomez) If
No Probable Cause Found:
if the investigating prosecutor finds
no probable cause exists against
the respondent, he must dismiss
the case

PROBABLE CAUSE:
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 prosecutors, that the person
charged was guilty of the crime for
which he was prosecuted
7. Submission to Superior Officers
the assistant prosecutor or state
prosecutor,
regardless
of
conclusion reached must forward
the records of the case and his
resolution to the provincial or city

fiscal or the chief state prosecutor

within five days from resolution
resolution
at
best
recommendatory; no complaint or
information may be filed or
dismissed without prior written
authority or approval of the
provincial or city prosecutor or the
chief state prosecutor
the findings of the investigating
prosecutor may be reversed or
modified by the provincial or city
fiscal or chief state prosecutor
if the investigating prosecutor
recommends the dismissal of the
case but his findings are reversed
by the superior officer on the
ground that probable cause exists,
the provincial or city prosecutor
may himself file or direct another
assistant prosecutor to file the
corresponding information without
need for another
preliminary investigation
the provincial or city prosecutor or
chief state prosecutor is mandated
to take appropriate action within
10 days from receipt of records
whatever action he takes, he must
inform the parties

REMEDIES
1. petition for mandamus
2. violation of Art. 27 of the
NCC (damages)
3. violation
of
Art.
208
(Prevaricacion) Revised
Penal Code
4. Appeal to the DOJ for the
appointment of a new
prosecutor
5. file an administrative case
6. file a new complaint, if no
double jeopardy
8. Petition for Review (Department
of Justice, Office of the President,
Office of the Ombudsman) Under
the
Secretary
of
Justice
(Department Circular No. 70)
the Secretary of Justice may, upon
proper petition or motu proprio

reverse the resolution of the

provincial or city prosecutor or
chief
state
prosecutor
and
thereafter
direct
the
fiscal
concerned to file the corresponding
information
without conducting
another PI or dismiss or move for
dismissal of the complaint or
information
under the power of supervision and
control over prosecuting officers,
the Secretary of Justice is the
ultimate
authority
to
decide
whether or not to file the
information
if the information was already filed
in court but the accused filed a
petition for review with the
Secretary of Justice, the court is
bound to suspend the arraignment
of the accused for a period of not
exceeding sixty days
if the Secretary of Justice does not
allow the filing of a criminal
complaint based on insufficiency of
evidence, complainant can file
action
for
damages
against
offender based on Art. 35 of the
New Civil Code; requires mere
preponderance of evidence

Under the Office of the President

(Memorandum Circular No. 58)
an appeal or petition may be filed
with the Office of the President for
review
of
the
decisions/orders/resolutions issued
by
the
Secretary
of
Justice
concerning PI of criminal cases
involving offenses punishable by
RECLUSION PERPETUA to DEATH
only wherein new and material
issues are raised which were not
previously
presented
to
the
Department of Justice and were not
ruled upon provided that the
prescription of the offense is due to
lapse within six months from notice
of the questioned resolution
Under the Office of the Ombudsman
when there is grave abuse of
discretion in the resolution and

decision of the Ombudsman in

criminal cases or PI, a petition for
certiorari under Rule 65 may be
filed before the
Supreme Court
9. Filing in Court by Department
of Justice or Ombudsman
Section 5. When warrant of arrest
may issue.

10. Issuance of Warrant of Arrest

by the Court
Article IV Section 2 of the 1987
Constitution mandates that no warrant
of arrest shall issue except upon
probable cause to be determined
personally
by
a
judge
after
examination under oath or affirmation
of the complainant and the witnesses
he may produce
the proceeding for the determination
of the existence of probable cause for
the purpose of issuing a warrant of
arrest
is
called
PRELIMINARY
EXAMINATION
the probable cause needed for the
issuance of a warrant of arrest is
different from the probable cause
found by the investigating officer in
the preliminary investigation such that
a judge fails the constitutional
mandate if he merely relies on the
certification
or
report
of
the
investigating officer
the finding of a judge or probable
cause for the issuance of warrant of
arrest is not subject to
judicial review

PROBABLE CAUSE
such reasons, supported by the facts
and circumstances, as will warrant a
cautious man in the belief that his
action and the means taken in
prosecuting are legally just and proper

the sufficient facts must be presented

to the judge or magistrate issuing the
warrant to convince him, not that the
particular person
committed the
crime charged, but that there is

probable cause for believing that the

person whose arrest is sought might
have committed the crime charged
(US v. Ocampo)
EXECUTIVE
vs
JUDICIAL
DETERMINATION
OF
PROBABLE
CAUSE
Executive Determination
one made during the PI; function that
pertains to the public prosecutor who
has the quasi-judicial authority to
determine whether or not a criminal
case must be filed in court;
whether or not the prosecuting
investigator has made a correct
ascertainment of the existence of
probable cause is a matter that the
trial court itself does not and may not
be compelled to pass
upon
Judicial Determination
one made by the judge to ascertain
whether a warrant of arrest should be
issued against the accused; he must
satisfy himself that based on the
evidence submitted, there is necessity
for placing the accused under custody
in order not to frustrate the ends of
justice
if the judge finds no probable cause to
exist, he cannot be forced to issue a
warrant of arrest
Searching Questions for issuance of
search warrant
such questions as have a tendency to
show the commission of a crime and
the perpetrator thereof e.g. nature of
the offense; the date, time and place
of its commission; the subject, his
age, education, financial status, etc.
Preliminary Investigation
v.
Preliminary Examination
1. PI an executive function; PE a
judicial function
2. PI conducted by a prosecutor, the
PCGG or the COMELEC; PE
conducted by judges only

3. PI may not be done ex parte; PE

may be done ex parte
Issuance by the Regional Trial Court
judge is mandated, within 10 days
from filing of the complaint or
information, to personally evaluate
the resolution of the prosecutor and
its supporting evidence; he may:
1. immediately dismiss if it fails to
establish probable cause;
2. issue a warrant of arrest or
commitment order (if arrest done
under Section 6 of Rule 112) if he
finds probable cause;
3. order the prosecutor to present
additional evidence within five
days from notice in case of doubt
of the existence of probable cause
the issue must be resolved within 30
days from the filing of the complaint
or information
the issuance of the warrant of arrest
by the judge is not a ministerial
function; it calls for the exercise of
judicial discretion
Issuance by the Municipal Trial Court
the issuance is similar to that of the
Regional Trial Court under paragraph
(a) of Section 5
Rule 112
John Doe/Juan de la Cruz Warrants
as a rule, general warrants are void
unless the John Doe warrant
contains the descriptio personae
that
particularly
describes
the
person to be arrested
Warrant
of
Arrest
When
Not
Necessary
1. if the accused is already under
detention
2. lawful arrest under Section 6 Rule
112
3. offense penalized by fine only
REMEDIES of a PARTY issued with a
WARRANT of ARREST
1. post bail

penalty prescribed by law is at

least four (4) years, two (2) months
and one (1) day without regard to
the fine.

2. ask for an investigation

3. file for a petition for review
4. file a motion to quash
5.

the
information
if denied, appeal the judgment
after trial

*remedy thru certiorari not available

Section 6. When warrant of arrest
may
issue
Probable
Cause
presupposes a reasonable ground for
belief in the existence of facts warranting
the proceedings complained of;
- an apparent state of facts found to
exist upon reasonable inquiry which would
induce a reasonably intelligent and
prudent man to believe that the accused
person had committed the crime charged.

CONDITIONS
BEFORE
THE
INVESTIGATING
MUNICIPAL
TRIAL
JUDGE CAN ISSUE A WARRANT OF
ARREST (Herrera, p. 282)
1. Have examined in writing and
under oath the complainant and his
witnesses by searching questions
and answers; searching questions
and answers such questions as
may have the tendency to show
the commission of the crime and
the perpetrator thereof;
2. Be satisfied that a probable cause
exists; and
3. That there is a need to place the
respondent
under
immediate
custody in order not to frustrate
the ends of justice.

If the judge 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. If the judge
is satisfied that there is no necessity for
placing the accused under custody, he
may issue summons instead of warrant of
arrest.
The RTC judge need NOT personally
examine the complaint and witnesses in
the determination of probable cause for
the issuance of the warrant of arrest. He is
only required to:
1. Personally evaluate the report
and the supporting documents
submitted
during
the
preliminary investigation by the
fiscal; and
2. On the basis thereof he may:
a) Dismiss;
b) Issue warrant; or
c) Require further affidavits.
INSTANCES WHEN MTC MAY CONDUCT
PRELIMINARY INVESTIGATION:
1. cases cognizable by the RTC may
be filed with the MTC for
preliminary investigation;
2. cases cognizable by the MTC
because it is an offense where the

In either situation, the MTC is authorized

to issue a warrant of arrest if there is
necessity of placing the respondent under
immediate custody, in order not to
frustrate the ends of justice.

If the MTC judge found probable cause but

did not believe that the aforesaid
conditions were met, he cannot be
compelled by mandamus to issue the
same.
REMEDY: The provincial fiscal, if he
believes that the accused should be
immediately placed in custody, may file
the corresponding information so that the
RTC may issue the necessary warrant of
arrest (Samulde vs. Salvani, Jr., G.R.
No. 78606, Sept. 26, 1988).
While the judge may rely on the fiscals
certification thereof, the same is NOT
conclusive on him as the issuance of said
warrant calls for the exercise of judicial
discretion and, for that purpose, the judge
may require the submission of affidavits of
witnesses to aid him in arriving at the
proper conclusion, OR he may require the

fiscal to conduct further preliminary

investigation or reinvestigation.
INSTANCES
WHEN
WARRANT
OF
ARREST NOT NECESSARY
1. if the accused is already under
detention;
2. if the complaint or information was
filed after the accused was lawfully
arrested without warrant;
3. if the offense is punishable by fine
only.

Rule applicable only to arrests for

an
offense
punishable
by
imprisonment of at least 4 years, 2
months and 1 day since there is no
need for PI for offenses punishable
by less than 4 years, 2 months and 1
day
prosecuting
officer
can
file
information even without PI under
this Section if the warrantless arrest
is pursuant to paragraphs 1(a) and
(b), Section 5, Rule 113; the person
arrested must be delivered to the
nearest police station and proceeded
against in accordance with Rule 112,
Section 6
the complaint or information may be
filed without need for a PI provided
that an INQUEST PROCEEDING has
been conducted
in accordance with the rules

INQUEST
an
informal
and
summary
investigation conducted by a public
prosecutor in a criminal case
involving persons arrested and
detained without the benefit of a
warrant of arrest issued by the court
for the purpose of determining
whether said persons should remain
under
custody
and
correspondingly
charged in court

in absence of inquest prosecutor, the

offended party or any peace officer
may file complaint directly in court
on the basis of their affidavits

when a person is taken into custody

to answer for an offense, the
arrested person has to be charged at
once in court lest the arresting
officer be held liable for delay in the
delivery of a detained person to
proper
judicial
authorities
as
provided for in Article 125 of the
Revised Penal Code
if the person arrested wishes to avail
himself of PI prior to filing of the
complaint or information, he must
sign a waiver of the provisions of
Article 125 with the assistance of a
lawyer
in any case, the accused may apply
for bail and the investigation must
be terminated within fifteen days
from its inception
if case has been filed in court
without PI, the accused may within
five days from time he learns of
filing of the information to ask for a
PI

Section 7. When accused

arrested without warrant.

lawfully

TWO SITUATIONS CONTEMPLATED

UNDER THIS RULE:
1. When a person is lawfully arrested
without a warrant for an offense
requiring
a
preliminary
investigation (sec. 1, Rule 112) and
no complaint or information has
yet been filed, he may ask for a
preliminary
investigation
by
signing a waiver of the provisions
of Art. 125 of the RPC in the
presence of his counsel.
2. When the complaint or information
was filed without preliminary
investigation, the accused may,
within 5 days from the time he
learns of the filing of the
information, ask for a preliminary
investigation with the same right to
adduce evidence in his favor in the
manner prescribed in this Rule.
The 5-day period is MANDATORY, failure to
file the motion within the said period

amounts to waiver of the right to ask for

preliminary investigation.
Where the information was amended
without a new preliminary investigation
having been conducted, the 5-day period
is computed from the time the accused
learns of the filing of said amended
information.
Where the trial court has granted a motion
for reinvestigation, it must hold in
abeyance the arraignment and trial of the
the accused until the prosecutor shall
have conducted and made a report on the
result of such reinvestigation.

3. Require
the
submission
additional evidence

of

For cases under the Revised Rules on

Summary Procedure, no warrant shall be
issued except where the accused fails to
appear after being summoned.
If the complaint is filed with the prosecutor
involving an offense punishable by
imprisonment of less than 4 years, 2
months and 1 day, the procedure in Rule
112, Section 3 (a) shall be observed.
If the complaint is filed with the MTC, the
same procedure under Rule 112, Section 3
(a) shall be observed.

The right to bail pending Preliminary

Investigation under Section 7, Rule 112, a
person lawfully arrested may post bail
before the filing of the information or even
after its filing without waiving his right to
preliminary investigation, provided that he
asks for a preliminary investigation by the
proper officer within the period fixed in the
said rule (People vs. Court of Appeals, May
29, 1995).

Section 8. Records
Records of the preliminary investigation
shall NOT automatically form part of the
records of the case. Courts are not
compelled to take judicial notice thereof. It
must be introduced as an evidence.
Section 9. Cases not requiring a
preliminary investigation nor covered
by the Rule on Summary Procedure.
PROCEDURE TO BE
CASES WHICH DO
PRELIMINARY
INVESTIGATION

FOLLOWED IN
NOT REQUIRE

1. Evaluate the evidence presented

2. Conduct searching questions or
answers

RULE 117
MOTION TO QUASH
Section 1. Time to move to quash.
Motion to Quash - this presupposes
that the accused hypothetically admits
the facts alleged, hence the court in
resolving the motion cannot consider
facts contrary to those alleged in the
information or which do not appear on
the face of the information, except
those admitted by the prosecution.
GENERAL RULE: The accused may
move to quash the complaint or
information at any time BEFORE

entering his plea. EXCEPTION Instances where a motion to quash

may be filed AFTER plea:
1. failure to charge an offense
2. lack of jurisdiction over the
offense charged
3. extinction of the offense or
penalty
4. the defendant has been in
former jeopardy.
Motion to
Quash
filed before the
defendant
enters his
plea
Does not go
into the merits
of the case
but is anchored
on
matters not
directly related
to the
question of
guilt or
innocence of
the accused
Governed by
Rule
117 of the
Rules of
Criminal
Procedure

Demurrer to
Evidence
filed after the
prosecution has
rested its case
based upon the
inadequacy of
the
evidence
adduced by
the prosecution
in support of
the accusation

governed by
Rule 119 of the
Rules of
Criminal
Procedure

Section 2. Form and contents.

FORM AND CONTENTS OF A
MOTION TO
QUASH
1. in writing
2. signed by the accused or his
counsel

3. shall specify
factual and
therefor.

distinctly the
legal grounds

The court shall consider no grounds

other than those stated in the motion,
EXCEPT lack of jurisdiction over the
offense charged and when the
information does not charge an
offense.
A motion to suspend the
issuance of a warrant of arrest should
be considered as a motion to quash if
the allegations therein are to the
effect that the facts charged in the
information do not constitute an
offense.
RESOLUTION OF A MOTION TO
QUASH
A motion to quash must be resolved
BEFORE trial and cannot defer the
hearing and determination of said
motion until trial on the merits as it
would impair the right of the accused
to speedy trial.
It may also be resolved at the
preliminary investigation since the
investigating officer or judge has the
power to either dismiss the case or
bind the accused over for trial by the
proper court, depending on its
determination of lack or presence of
probable cause.
Section 3. Grounds.
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 it does not conform

substantially to the prescribed
form;
6. That more that 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.
Section
4.
Amendment
complaint or information

of

If an alleged defect in the complaint or

information, which is the basis of a
motion to quash, can be cured by
amendment, the court shall order the
amendment instead of quashing the
complaint or information. If, after the
amendment, the defect is still not
cured, the motion to quash should be
granted.
Section 5. Effect of sustaining the
motion to quash.
EFFECTS IF COURT SUSTAINS THE
MOTION TO QUASH
1. If the ground of the motion is
either:
a) that the facts charged do not
constitute an offense; or
b) that the officer who filed the
information had no
authority to do so, or
c) that it does not conform
substantially to the

prescribed form; or
d) that more than one offense
is charged,
the court may order that
another information be filed or
an amendment thereof as the
case may be within a definite
period. If such order is NOT
MADE, or if having been made,
another information is NOT
FILED within a time to be
specified in the order, or within
such time as the court may
allow, the accused, if in
custody, shall be discharged
therefrom, unless he is also in
custody on some other charge.
2. If the motion to quash is
sustained upon any of the
following grounds:
a) that a criminal action or
liability has been
extinguished;
b) that it contains averments
which,
if
true,
would
constitute a legal excuse or
justification; or
c) that the accused has been
previously
convicted
or
acquitted of the offense
charged,
the court must state, in its order
granting the motion, the release
of the accused if he is in
custody or the cancellation of
his bond if he is on bail.
3. If the ground upon which the
motion to quash was sustained
is that the court has NO
jurisdiction over the offense, the
better practice is for the court
to remand or forward the case
to the proper court, not to
quash
the
complaint
or
information.

 The prosecution may elevate to the

Higher Courts an order granting a
motion to quash.
PROCEDURE IF MOTION TO QUASH
IS DENIED
1. accused should plead;
2. accused should go to trial
without prejudice to the special
defenses he invoked in the
motion;
3. appeal from the judgment of
conviction, if any, and interpose
the denial of the motion as an
error.
An order denying a motion to quash is
INTERLOCUTORY
and
NOT
APPEALABLE. Appeal in due time, as
the proper remedy, implies a previous
conviction as a result of a trial on the
merits of the case and does not apply
to an interlocutory order denying a
motion to quash.
The denial by the trial court of a
motion to quash CANNOT be the
subject of a petition for certiorari,
prohibition or mandamus in another
court of coordinate rank.
Section 6. Order sustaining the
motion to quash not a bar to
another prosecution.
A motion SUSTAINING the motion to
quash is NOT a bar to another
prosecution for the same offense
UNLESS:
1. the motion was based on the
ground that the criminal action
or liability has been
extinguished, AND
2. that the accused has been
previously convicted or in
jeopardy of being convicted or
acquitted of the offense
charged.

Section 7. Former conviction or

acquittal; 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 consent of the
accused, the latter cannot again be
charged with the same or identical
offense.
REQUISITES
FOR
DOUBLE
JEOPARDY
UNDER SECTION 7
It is necessary that in the first case
that1. the complaint or information or
other
formal
charge
was
sufficient in form and substance
to sustain a conviction;
2. the court had jurisdiction;
3. the accused had been arraigned
and had pleaded; and
4. he was convicted or acquitted
or the case was dismissed
without his express consent;
5. When all these circumstances
are present, they constitute a
BAR to a second prosecution for
1. the same offense, or an
attempt to commit the said
offense, or a frustration of the
said offense, or any offense
which necessarily includes or is
necessarily included in the first
offense charged.
The discharge of a defendant on a
preliminary investigation is NOT such
an adjudication in his favor as will bar
subsequent
prosecution
for
the
offense. This is because, a preliminary
investigation is not a trial and does
not have for its object that of
determining definitely the guilt of the

accused. Further, the accused has not

yet been arraigned.
DISMISSAL vs. ACQUITTAL
Acquittal is always based on the
merits, that is, the defendant is
acquitted because the evidence does
not show defendants guilt beyond
reasonable doubt; but Dismissal does
not decide the case on the merits or
that the defendant is not guilty.
If an act is punished by a law and an
ordinance, even if they are considered
as different offenses, conviction or
acquittal under either shall constitute
a bar to another prosecution for the
same act.
If a single act is punished by two
different provisions of law or statutes,
but each provision requires proof of an
additional fact which the other does
not so require, neither conviction nor
acquittal in one will bar a prosecution
for the other. (Perez vs. Court of
Appeals, 163 SCRA 236)
TESTS
FOR
WHETHER THE
ARE IDENTICAL:

DETERMINING
TWO OFFENSES

A. SAME OFFENSE TEST - There is

IDENTITY between two offenses not
only when the second offense is
exactly the same as the first, but
ALSO when the second offense is
an attempt to or frustration of, OR
is necessarily included in the
offense charged in the first
information.
EXCEPTIONS TO THE IDENTITY
RULE:
1. The graver offense developed
due to supervening facts arising
from the same act or omission
constituting the former charge.

2. The facts constituting the

graver charge became known or
were discovered only after a
plea was entered in the former
complaint or information.
3. The plea of guilty to the lesser
offense was made without the
consent of the prosecutor and
of the offended party; except
when the offended party failed
to
appear
during
the
arraignment.
In any of these instances, such period
of the sentence as may have been
served by the accused under the
former conviction shall be credited
against and deducted from the
sentence he has to serve should he be
convicted under the subsequent
prosecution.
B. SAME EVIDENCE TEST - whether
the facts as alleged in the second
information, if proved, would have
been sufficient to sustain the
former information, or from which
the accused may have been
acquitted or convicted.
Section 8. Provisional dismissal.
GENERAL RULE: Where the case was
dismissed provisionally with the
consent of the accused, he CANNOT
invoke double jeopardy in another
prosecution therefor OR where the
case was reinstated on a motion for
reconsideration by the prosecution.
EXCEPTIONS: Where the dismissal
was actually an acquittal based on:
a) lack or insufficiency of the
evidence; or
b) denial of the right to speedy
trial, hence, even if the
accused gave his express
consent to such dismissal or
moved for such dismissal, such

consent would be immaterial

as such dismissal is actually an
acquittal.
REQUISITES
1. consent of the prosecutor
2. consent of the accused
3. notice to the offended party

Section 1. Time to prepare for

trial.
Trial - the examination before a
competent tribunal according to the
laws of the land, of the facts put in
issue in a case for the purpose of
determining such issue.

If a case is provisionally dismissed

with the consent of the prosecutor
and the offended party, the failure to
reinstate it within the given period
will make the dismissal permanent.

The trial shall commence within 30

days from receipt of the pre-trial order.

PERIOD FOR REINSTATEMENT:

a. offenses
punishable
by
imprisonment not exceeding 6
years = ONE YEAR
b. offenses
punishable
by
imprisonment of more than 6
years = TWO YEARS

CONTINUOUS TRIAL SYSTEM Trial

once commenced shall continue from
day to day as far as practicable until
terminated; but it may be postponed
for a reasonable period of time for
good cause.

Otherwise the dismissal shall be

removed from being provisional and
becomes permanent.
Section 9. Failure to move to
quash or to allege any ground
therefor.
All grounds for a motion to quash are
WAIVED if NOT seasonably raised,
EXCEPT:
a) when the information does not
charge an offense;
b) lack of jurisdiction of the court;
c) extinction of the offense or
penalty; and
d) double jeopardy.

RULE 119
TRIAL

Section 2. Continuous trial until

terminated; postponements.

LIMITATION OF THE TRIAL PERIOD

It shall in no case exceed 180 days
from the first day of the trial, except
as otherwise provided by the Supreme
Court.
Requisites before a trial can be put-off
on account of the absence of a
witness:
1. that the witness is material and
appears to the court to be so
2. that the party who applies has
been guilty of no neglect
3. that the witnesses can be had
at the time to which the trial is
deferred and incidentally that
no similar evidence could be
obtained
4. that an affidavit showing the
existence
of
the
above
circumstances must be filed.
Remedies of accused
where
a
prosecuting officer without good cause
secures postponements of the trial of

a defendant against his protest

beyond a reasonable period of time:
1. mandamus
to
compel
a
dismissal of the information
2. if he is restrained of his liberty,
by habeas corpus to obtain his
freedom.
The SC adopted the continuous trial
system as a mode of judicial factfinding and adjudication conducted
with speed and dispatch so that trials
are held on the scheduled dates
without postponement, the factual
issues for trial well-defined at pretrial and the whole proceedings
terminated and ready for judgment
within 90 days from the date of initial
hearing,
unless
for
meritorious
reasons an extension is permitted.
The system requires that the Presiding
Judge:
1. adhere
faithfully
to
the
session hours prescribed by
laws;
2. maintain full control of the
proceedings; and
3. effectively allocate and use
time and court resources to
avoid court delays.
The
non-appearance
of
the
prosecution at the trial, despite due
notice,
justified
a
provisional
dismissal or an absolute dismissal
depending upon the circumstances.
Section 4. Factors for
continuance.

granting

PURPOSE: To control the discretion

of the judge in the grant of
continuance on his instance or on
motion of any party litigant.
Section 5. Time limit following an
order for new trial.

The trial shall commence within 30

days from the date the order for a
new trial becomes final.
Section 7. Public Attorneys duties
where accused is imprisoned.
These public attorneys enter their
appearance in behalf of the accused
upon his request or that of his
relative or upon being appointed as
counsel de oficio by the court.
Section 8. Sanctions.
Kinds:
a. criminal
b. administrative
c. contempt of court
Section 11. Order of Trial
ORDER OF TRIAL:
1. The prosecution shall present
evidence to prove the charge
and, in the proper case, the civil
liability
2. The accused may present
evidence to prove his defense
and damages, if any, arising
from
the
issuance
of
a
provisional remedy in the case.
3. The
prosecution
and
the
defense may, in that order,
present
rebuttal
and
surrebuttal evidence unless the
court, in furtherance of justice,
permits
them
to
present
additional
evidence
bearing
upon the main issue
4. Upon admission of the evidence
of the parties, the case shall be
deemed submitted for decision
unless the court directs them to
argue orally or to submit written
memoranda.

5. When the accused admits the

act or omission charged in the
complaint or information but
interposes a lawful defense, the
order of trial may be modified.
GENERAL RULE:
The order in the presentation of
evidence must be followed. The
accused may not be required to
present his evidence first before the
prosecution adduces its own proof.
EXCEPTION:
Where a reverse procedure was
adopted without the objection of the
defendant and such procedure did not
prejudice his substantial rights, the
defect is not a reversible error.
A departure from the order of the trial
is not reversible error as where it was
agreed upon or not seasonably
objected to, but not where the change
in the order of the trial was timely
objected by the defense.
Where the order of the trial set forth
under this section was not followed by
the court to the extent of denying the
prosecution an opportunity to present
its evidence, the judgment is a nullity.
(People vs. Balisacan)
Section
12.
Application
examination
of
witness
accused before trial.

for
for

Accused may have his witness

examined conditionally in his behalf
BEFORE trial upon motion with notice
to all other parties.
The motion must state:
1. name and residence of witness
2. substance of testimony
3. witness is so sick to afford
reasonable ground to believe
that he will not be able to
attend the trial or resides more
that 100 km and has no means

to attend the same, or other

similar circumstances exist that
would make him unavailable or
prevent him from attending
trial.
Section
13.
Examination
defense witness; how made.

of

If the court is satisfied that the

examination of witness is necessary as
provided in SECTION 4, order shall be
made and a copy served on the fiscal.
The examination shall be taken before
any judge or if not practicable any
member of the Bar in good standing
designated by the trial court, or by a
lower court designated by a court of
superior jurisdiction which issue the
order.
Section
14.
Bail
to
secure
appearance of material witness.
If the court is satisfied, upon proof or
oath, that a material witness will not
testify when so required, it may on
motion of either party order the
witness to post bail in such sum as
may be deemed proper. Should the
witness refuse to post such bail as
required, the court may commit him to
prison until he complies or is legally
discharged after his testimony has
been taken.
Section
15.
Examination
witness for the prosecution.

of

The
conditional
examination
of
prosecution
witnesses
shall
be
conducted before the judge or the
court where the case is pending and in
the presence of the accused, unless
he waived his right after reasonable
notice. The accused will have the right
to cross-examine such prosecution

witness, hence such statements of the

prosecution witnesses may thereafter
be admissible in behalf of or against
the accused (Regalado, p. 460).
Section
accused

16.

Trial

of

several

GENERAL RULE:
When two or more persons are jointly
charged with an offense, they shall be
tried jointly. This rule is so designed as
to preclude a wasteful expenditure of
judicial resources and to promote an
orderly and expeditious disposition of
criminal prosecutions.
EXCEPTION:
The court, upon motion of the fiscal or
of any of the defendants, may order a
separate trial for one or more accused.
The granting of a separate trial when
two or more defendants are jointly
charged with an offense is purely
discretionary with the trial court.
The motion for separate trial must be
filed BEFORE the commencement of
the trial and cannot be raised for the
first time on appeal. If a separate trial
is granted, the testimony of one
accused imputing the crime to his coaccused is not admissible against the
latter. In joint trial, it would be
admissible if the latter had the
opportunity for cross-examination.
Section 17. Discharge of accused
to be state witness.
Motion to discharge should be made
by the prosecution BEFORE resting its
case.
REQUISITES FOR DISCHARGE
1. absolute necessity for the
testimony
2. no
other
direct
evidence
available for the prosecution

3. testimony can be substantially

corroborated in its material
points
4. accused not the most guilty
5. accused
has
never
been
convicted
of
an
offense
involving
moral turpitude
Absence of any of the requisites for
the discharge of a particeps criminis is
a ground for objection to the motion
for his discharge, BUT such objection
must be raised BEFORE the discharge
is ordered.
EFFECTS OF DISCHARGE
1. Evidence adduced in support of the
discharge shall automatically form
part of the trial;
2. If the court denies the motion to
discharge the accused as state
witness, his sworn statement shall
be inadmissible in evidence;
3. Discharge of accused operates as
an acquittal and bar to further
prosecution for the same offense.
EXCEPTIONS:
1. If the accused fails or refuses to
testify against his co-accused in
accordance with his sworn
statement constituting the basis
of the discharge
2. Failure
to
testify
refers
exclusively to defendants will
or fault
3. Where an accused who turns
states evidence on a promise
of immunity but later retracts
and fails to keep his part of the
agreement, his confession of his
participation in the commission
of the crime is admissible as
evidence against him.

Section 19. When mistake has

been made in charging the proper
offense.
When the offense proved is neither
included in, nor does it include, the
offense charged and is different
therefrom, the court should dismiss
the action and order the filing of a new
information
charging
the
proper
offense.
This rule is predicated on the fact that
an accused person has the right to be
informed of the nature and cause of
the accusation against him, and to
convict him of an offense different
from that charged in the complaint or
information would be an unauthorized
denial of that
right. (U.S. vs. Campo, 23 Phil. 369)
Section 20. Appointment of acting
prosecutor.
See Section 5, Rule 110.
Section 21. Exclusion of the
public.
GENERAL RULE:
The accused has the right to a public
trial
and
under
ordinary
circumstances, the court may not
close the door of the courtroom to the
general public.
EXCEPTION:
Where the evidence to be produced
during the trial is of such character as
to be offensive to decency or public
morals, the court may motu propio
excludes
the
public
from
the
courtroom.

An order denying a demurrer to

evidence being interlocutory is NOT
APPEALABLE.
Section 24. Reopening.

Section 22. Consolidation of trials

of related offenses.
This contemplates a situation where
separate informations are filed:
1. for offenses founded on the
same facts;
2. for offenses which form part of
a series of offenses of similar
character
Section 23. Demurrer to evidence.
After the prosecution rests its case,
the court may dismiss the action on
the
ground
of
insufficiency
of
evidence:
1. on its own initiative after giving
the prosecution the opportunity
to be heard; or
2. upon demurrer to evidence filed
by the accused with or without
leave of court. The arrest rule
allows the accused in a criminal
case to present evidence even
after a motion to dismiss
PROVIDED the demurrer was
made with the express consent
of the court.
The filing of the motion to dismiss
WITHOUT leave of court results in the
submission of the case for decision on
the basis of the evidence on record
and does not lie from such order
denying the motion to dismiss.
If said motion to dismiss is sustained,
such dismissal being on the merits is
equivalent to an acquittal, hence the
prosecution cannot appeal as it would
place the accused in double jeopardy.
At any time BEFORE finality of the
judgment of conviction, the judge
may, motu propio or upon motion,
with hearing in either case, reopen the
proceedings to avoid miscarriage of

justice. The proceedings shall be

terminated within 30 days from the
order granting it.