CRIMINAL PROCEDURE THE REVISED RULES OF CRIMINAL PROCEDURE (As amended, December 1, 2000) RULE 110 Prosecution of Offenses

________ A. CRIMINAL ASPECT 1. Criminal actions, how instituted. Section 1. Institution of criminal actions. Criminal actions shall be instituted as follows: (a) For offenses where a preliminary investigation is required pursuant to section 1 of Rule 112, by filing the complaint with the proper officer for the purpose of conducting the requisite preliminary investigation. (b) 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. In Manila and other chartered cities, the complaint shall be filed with the office of the prosecutor unless otherwise provided in their charters. The institution of the criminal action shall interrupt the running period of prescription of the offense charged unless otherwise provided in special laws. (1a)
RULE 112 Preliminary Investigation Section 1. Preliminary investigation defined; when required. Preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial. Except as provided in section 7 of this Rule, a 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 four (4) years, two (2) months and one (1) day without regard to the fine. (1a) in the name of the People of the Philippines. For this reason, section 5 of Rule 110 provides that "all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal..." Only private crimes like adultery, concubinage, seduction, abduction, rape or acts of lasciviousness can be prosecuted at the instance of the offended party. The presence of a public prosecutor in the trial of criminal cases is necessary to protect vital state interests at stake in the prosecution of crimes, foremost of which is its interest to vindicate the rule of law, the bedrock of peace of the people. As the representative of the State, the public prosecutor has the right and the duty to take all steps to protect the rights of the People in the trial of an accused. It ought to be self evident that the right belongs to the public prosecutor and not to the accused. The absence of a prosecutor cannot therefore be raised by an accused to invalidate the testimony of a state witness if he cannot prove personal prejudice as in the case at bar. Francisco v. People of the Philippines: Except in cases that cannot be prosecuted de oficio, namely adultery, concubinage, seduction, abduction and acts of lasciviousness, a complaint filed by the offended party is not necessary for the institution of a criminal action. The Information filed by the prosecutor with the proper court is sufficient. A crime is an offense against the State, and hence is prosecuted in the name of the People of the Philippines. The participation of the private offended party is not essential to the prosecution of crimes, except in the crimes stated above, or in the prosecution of the civil action deemed instituted with the criminal action. A complaint for purposes of preliminary investigation by the prosecutor need not be filed by the "offended party" but may be filed by any competent person, unless the offense subject thereof cannot be prosecuted de oficio. People v. Miranda: It is too well-settled for any serious argument that whether in malversation of public funds or estafa, payment, indemnification, or reimbursement of, or compromise as to, the amounts or funds malversed or disappropriated, after the commission of the crime, affects by the civil liability of the offender but does not extinguished his criminal liability or relieve him from the penalty prescribed by law for the offense committed, because both crimes are public offenses against the People that must be prosecuted and penalized by the Government in its own motion, though complete reparation should have been made of the damage suffered by the offended parties Castro v. Castaeda The question now before this Court is whether a fiscal may be compelled by mandamus to include in an information persons who appear to be responsible for the crime charged therein, but whom the fiscal believes to be indispensable witnesses for the State. The provision of section 1 of Rule 106 of the Rules of Court expressly states that criminal actions shall be brought

________ 2. Formal requisites of complaint and information. Section 2. The Complaint or information. The complaint or information shall be in writing, in the name of the People of the Philippines and against all persons who appear to be responsible for the offense involved. (2a)
People v. Arcilla: A crime is an offense against the State, and hence is prosecuted

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"against all persons who appear to be responsible therefor." The original provisions contained in General Orders No. 58 provided that all prosecutions shall be "against the persons charged with the offenses." A perusal of Act 2709 discloses the legislative intent to require that all persons who appear to be responsible for an offense should be included in the information. The use of the word "shall" and of the phrase "except in the cases determined" shows that section 1 is mandatory, not directory merely. The mandatory nature of the section is demanded by a sound public policy, which would deprive prosecuting officers of the use of their discretion, in order that they may not shield or favor friends, protegees, or favorites. The law makes it a legal duty for them to file the charges against whosoever the evidence may show to be responsible for an offense. This does not mean, however, that prosecuting officers have no discretion at all; their discretion lies in determining whether the evidence submitted is sufficient to justify a reasonable belief that a person has committed an offense. What the rule demands is that all persons who appear responsible shall be charged in the information, which implies that those against whom no sufficient evidence of guilt exists are not required to be included. It is for the prosecuting officer to determine whether the evidence at hand is sufficient to engender a reasonable belief that a person committed an offense. This power and prerogative of the prosecuting officer is not however, altogether absolute. It is subject to judicial review in proper cases, as where from the evidence submitted and gathered by the prosecuting officer a person appearing responsible for the commission of an offense is not included in the information. West Coast Life Insurance Co. V. Hurd The basis of the action is that the Court of First Instance has no power or authority, under the laws of the Philippine Islands, to proceed against a corporation, as such, criminally, to bring it into court for the purpose of making it amenable to the criminal laws. It is contended that the court had no jurisdiction to issue the process in evidence against the plaintiff corporation; that the issuance and service thereof upon the plaintiff corporation were outside of the authority and jurisdiction of the court, were authorized by no law, conferred no jurisdiction over said corporation, and that they were absolutely void and without force or effect. The plaintiff, further attacking said process, alleges that the process is a mixture of civil and criminal process, that it is not properly signed, that it does not direct or require an arrest; that it is an order to appear and answer on a date certain without restraint of the person, and that it is not in the form required by law. Section 5 of General Orders, No. 58, defines an information as "accusation in writing charging a period with a public offense." Section 6 provide that a complaint or information is sufficient if it shows "the name of the defendant, or if his name cannot be discovered, that he is described under a fictitious name with a statement that his true name is unknown to the informant or official signing the same. His true name may be inserted at any stage of the proceedings instituted against him, whenever ascertained." These provisions, as well as those which relate to arraignment and counsel, and to demurrers and pleas, indicate clearly that the maker of the Code of Criminal Procedure had no intention or expectation that corporations would be included among those who would fall within the provisions thereof. The only process known to the Code of Criminal Procedure, or which any court is by that order authorized to issue, is an order of arrest. The Code of Criminal Procedure provides that "if the magistrate be satisfied from the investigation that the crime complained of has been committed, and there is reasonable ground to believe that the party charged has committed it, he must issue an order for his arrest. If the offense be bailable, and the defendant offer a sufficient security, he shall be admitted to bail; otherwise he shall be committed to prison." There is no authority for the issuance of any other process than an order of arrest. As a necessary consequence, the process issued in the case before us is without express authorization of statute. The question remains as to whether or not the court may, of itself and on its own motion, create not only a process but a procedure by which the process may be made effective. We do not believe that the authority of the courts of the Philippine Islands extends so far. While having the inherent powers which usually go with courts of general jurisdiction, we are of the opinion that, under the circumstances of their creation, they have only such authority in criminal matters as is expressly conferred upon them by statute or which it is necessary to imply from such authority in order to carry out fully and adequately the express authority conferred. We do not feel that Courts of First Instance have authority to create new procedure and new processes in criminal law. The exercise of such power verges too closely on legislation. Even though it be admitted, a question we do not now decide, that there are various penal laws in the Philippine Islands which corporation as such may violate, still we do not believe that the courts are authorized to go to the extent of creating special procedure and special processes for the purpose of carrying out those penal statutes, when the legislature itself has neglected to do so. To bring a corporation into court criminally requires many additions to the present criminal procedure. While it may be said to be the duty of courts to see to it that criminals are punished, it is no less their duty to follow prescribed forms of procedure and to go out upon unauthorized ways or act in an unauthorized manner. There are many cases cited by counsel for the defendant which show that corporations have been proceeded against criminally by indictment and otherwise and have been punished as malefactors by the courts. Of this, of course, there can be no doubt; but it is clear that, in those cases, the statute, by express words or by necessary intendment, included corporations within the persons who could offend against the criminal laws; and the legislature, at the same time established a procedure applicable to corporations. No case has been cited to us where a corporation has been proceeded against under a criminal statute where the court did not exercise its common law powers or where there was not in force a special procedure applicable to corporations. The courts of the Philippine Islands are creatures of statute

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and, as we have said, have only those powers conferred upon them by statute and those which are required to exercise that authority fully and adequately. The courts here have no common law jurisdiction or powers. If they have any powers not conferred by statute, expressly or impliedly, they would naturally come from Spanish and not from common law sources. It is undoubted that, under the Spanish criminal law and procedure, a corporation could not have been proceeded against criminally, as such, if such an entity as a corporation in fact existed under the Spanish law, and as such it could not have committed a crime in which a willful purpose or a malicious intent was required. Criminal actions would have been restricted or limited, under that system, to the officials of such corporations and never would have been directed against the corporation itself. This was the rule with relation to associations or combinations of persons approaching, more or less, the corporation as it is now understood, and it would undoubtedly have been the rue with corporations. From this source, then, the courts derive no authority to bring corporations before them in criminal actions, nor to issue processes for that purpose. witness. His death pending appeal could not therefore affect or suspend the due course of the criminal proceedings. Besides, the offense involved in this case is an offense against the State, involving peace and order. It is not an offense requiring as a condition precedent the intervention of or initiation by the offended party by means of a complaint, like in a case of adultery or concubinage. According to section 2 of Rule 106 of the Rules of Court, the complaint may be subscribed either by the offended party or any peace officer. That is why the chief of police subscribed and filed the complaint. And, section 4 of the same Rule 106 provides that "all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal." Cudia c. Court of Appeals An information, when required to be filed by a public prosecuting officer, cannot be filed by another. It must be exhibited or presented by the prosecuting attorney or someone authorized by law. If not, the court does not acquire jurisdiction. Petitioner, however, insists that his failure to assert the lack of authority of the City Prosecutor in filing the information in question is deemed a waiver thereof. As correctly pointed out by the Court of Appeals, petitioner's plea to an information before he filed a motion to quash may be a waiver of all objections to it insofar as formal objections to the pleadings are concerned. But by clear implication, if not by express provision of the Rules of Court, and by a long line of uniform decisions, questions relating to want of jurisdiction may be raised at any stage of the proceeding. It is a valid information signed by a competent officer which, among other requisites, confers jurisdiction on the court over the person of the accused (herein petitioner) and the subject matter of the accusation. In consonance with this view, an infirmity in the information, such as lack of authority of the officer signing it, cannot be cured by silence, acquiescence, or even by express consent. In fine, there must have been a valid and sufficient complaint or information in the former prosecution. If, therefore, the complaint or information was insufficient because it was so defective in form or substance that the conviction upon it could not have been sustained, its dismissal without the consent of the accused cannot be pleaded. As the fiscal had no authority to file the information, the dismissal of the first information would not be a bar to petitioner's subsequent prosecution. Jeopardy does not attach where a defendant pleads guilty to a defective indictment that is voluntarily dismissed by the prosecution. Villa v. Ibaez The defendant had pleaded to the information before he filed a motion to quash, and it is contended that by his plea he waived all objections to the information. The contention is correct as far as formal objections to the pleading are concerned. But by clear implication it not by express provision of section 10 of Rule 113 of the Rules of Court, and by a long line of uniform decisions, questions of want of jurisdiction may be raised at any

________ 3. Definition of complaint and information. Section 3. Complaint defined. A complaint is a sworn written statement charging a person with an offense, subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law violated. (3) Section 4. Information defined. An information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court. (4a)
People v. Misola The original criminal complaint was not even subscribed and filed by the offended party Porfirio Valverde. The complaint in the justice of the peace court as already stated, was subscribed and filed by the chief of police. The only intervention of the offended party was probably his having testified in court during the trial in order to establish the commission of the offense. When the case was taken to the Court of the First Instance on appeal by the defendant, it was the provincial fiscal who filed the corresponding information. It is therefore clear that the offended party had no intervention whatsoever either in the initiation of the criminal proceedings in the justice of the peace court or in the subsequent prosecution of the case in the court of first instance. Moreover, once the case was filed in the justice of the peace court, especially after the conviction therein of the defendant, Valverde, the offended party lost complete control over the case, assuming that he ever had any control in the first place. The justice of the peace court and the court of first instance had acquired full jurisdiction and it was no longer in the hands of the offended party to discontinue or drop the case even if he wanted to. It was a case between the People of the Philippines and the accused. The role of Valverde was only that of a mere

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stage of the proceeding. Now, the objection to the respondent's actuations goes to the very foundations of jurisdiction. It is a valid information signed by a competent officer which, among other requisites, confers jurisdiction on the court over the person of the accused and the subject matter of the accusation. In consonance with this view, an infirmity of the nature noted in the information can not be cured by silence, acquiescence, or even by express consent.

CRIMINAL PROCEDURE herein provided, except as stated in the preceding paragraph. No criminal action for defamation which consists in the imputation of the offenses mentioned above shall be brought except at the instance of and upon complaint filed by the offended party. (5a) The prosecution for violation of special laws shall be governed by the provisions thereof. (n) Section 16. Intervention of the offended party in criminal action. Where the civil action for recovery of civil liability is instituted in the criminal action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense. (16a)
Ledesma v. Court of Appeals The determination of probable cause during a preliminary investigation is judicially recognized as an executive function and is made by the prosecutor. The primary objective of a preliminary investigation is to free a respondent from the inconvenience, expense, ignominy and stress of defending himself/herself in the course of a formal trial, until the reasonable probability of his or her guilt has been passed upon in a more or less summary proceeding by a competent officer designated by law for that purpose. Secondarily, such summary proceeding also protects the state from the burden of unnecessary expense and effort in prosecuting alleged offenses and in holding trials arising from false, frivolous or groundless charges. Such investigation is not a part of the trial. A full and exhaustive presentation of the parties' evidence is not required, but only such as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof. By reason of the abbreviated nature of preliminary investigations, a dismissal of the charges as a result thereof is not equivalent to a judicial pronouncement of acquittal. Hence, no double jeopardy attaches. In declaring this function to be lodged in the prosecutor, the Court distinguished the determination of probable cause for the issuance of a warrant of arrest or a search warrant from a preliminary investigation proper, in this wise: ...Judges and prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from a preliminary investigation proper which ascertains whether the offender should be held for trial or released...The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper whether...there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether...he should be subjected to the expense, rigors and embarrassment of trial is the function of the prosecutor. We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the

________ 4. Who must prosecute. a. Criminal actions in general. Section 5. Who must prosecute criminal action. - All criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of a public prosecutor. In case of heavy work schedule of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to prosecute the case up to end of the trial even in the absence of a public prosecutor, unless the authority is revoked or otherwise withdrawn. The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders. The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents or guardian, nor, in any case, if the offender has been expressly pardoned by any of them. If the offended party dies or becomes incapacitated before she can file the complaint, and she has no known parents, grandparents or guardian, the State shall initiate the criminal action in her behalf. The offended party, even if a minor, has the right to initiate the prosecution of the offenses of seduction, abduction and acts of lasciviousness independently of her parents, grandparents, or guardian, unless she is incompetent or incapable of doing so. Where the offended party, who is a minor, fails to file the complaint, her parents, grandparents, or guardian may file the same. The right to file the action granted to parents, grandparents or guardian shall be exclusive of all other persons and shall be exercised successively in the order

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determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecutor's job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge. Sound policy supports this distinction. Otherwise, judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. The Separate Opinion of Mr. Chief Justice Andres R. Narvasa in Roberts, Jr. vs. Court of Appeals stressed that the determination of the existence of probable cause properly pertains to the public prosecutor in the "established scheme of things," and that the proceedings therein are "essentially preliminary, prefatory and cannot lead to a final, definite and authoritative judgment of the guilt or innocence of the persons charged with a felony or a crime." People v. Vergara Section 5 of Rule 110 of the New Rules of Criminal Procedure expressly provides that "[a]ll criminal actions either commenced by complaint or by information shall be under the direction and control of the fiscal." It must be remembered that as public prosecutor he is the "representative not of the ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such , he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer." Hence, the fiscal or public prosecutor always assumes and retains full direction and control of the prosecution. The institution of a criminal action depends upon his sound discretion. He has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court; whether a prima facie case exists to sustain the filing of an Information; whether to include in the charge those who appear to be responsible for the crime; whether to present such evidence which he may consider necessary; whether to call such witnesses he may consider material; whether to move for dismissal of the case for insufficiency of evidence. As in the case at bar, he may move for the dismissal of the case if he believes that there is no cause of action to sustain its prosecution, which was what in fact he did after being convinced that it would be "unfair, arbitrary and unjustified to prosecute the accused" who were really the victims, as the reinvestigation showed. Ramiscal Jr. V. Sandiganbayan Under Section 5, Rule 110 of the Rules, all criminal actions covered by a complaint or information shall be prosecuted under the direct supervision and control of the public prosecutor. Thus, even if the felonies or delictual acts of the accused result in damage or injury to another, the civil action for the recovery of civil liability based on the said criminal acts is impliedly instituted and the offended party has not waived the civil action, reserved the right to institute it separately or instituted the civil action prior to the criminal action, the prosecution of the action inclusive of the civil action remains under the control and supervision of the public prosecutor. The prosecution of offenses is a public function. Under Section 16, Rule 110 of the Rules of Criminal Procedure, the offended party may intervene in the criminal action personally or by counsel, who will act as private prosecutor for the protection of his interests and in the interest of the speedy and inexpensive administration of justice. A separate action for the purpose would only prove to be costly, burdensome and timeconsuming for both parties and further delay the final disposition of the case. The multiplicity of suits must be avoided. With the implied institution of the civil action in the criminal action, the two actions are merged into one composite proceeding, with the criminal action predominating the civil. The prime purpose of the criminal action is to punish the offender in order to deter him and others from committing the same or similar offense, to isolate him from society, reform and rehabilitate him or, in general, to maintain social order. On the other hand, the sole purpose of the civil action is for the resolution, reparation or indemnification of the private offended party for the damage or injury he sustained by reason of the delictual or felonious act of the accused. Under Article 104 of the Revised Penal Code, the following are the civil liabilities of the accused: ART. 104. What is included in civil liability. The civil liability established in Articles 100, 101, 102 and 103 of this Code includes: 1. Restitution; 2. Reparation of the damage caused; 3. Indemnification for consequential damages. Thus, when the offended party, through counsel, has asserted his right to intervene in the proceedings, it is error to consider his appearance merely as a matter of tolerance. Domondon v. Sandiganbayan At this point we reiterate that "...[t]his is an exercise of the Ombudsman's powers based upon constitutional mandate and the courts should not interfere in such exercise. The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the Ombudsman with regard to complaints filed before it, in much the same way that the courts will be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant." Crespo v. Mogul It is a cardinal principle that an criminal actions either

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commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not follow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private persons. It cannot be controlled by the complainant. Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima facie case. It is through the conduct of a preliminary investigation that the fiscal determines the existence of a puma facie case that would warrant the prosecution of a case. The Courts cannot interfere with the fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence relied upon by him is insufficient for conviction. Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscal's discretion and control of criminal prosecutions. Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. The fiscal may re-investigate a case and subsequently move for the dismissal should the reinvestigation show either that the defendant is innocent or that his guilt may not be established beyond reasonable doubt. In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the Fiscal's should normally prevail. On the other hand, neither an injunction, preliminary or final nor a writ of prohibition may be issued by the courts to restrain a criminal prosecution except in the extreme case where it is necessary for the Courts to do so for the orderly administration of justice or to prevent the use of the strong arm of the law in an oppressive and vindictive manner. However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a motion to dismiss the case be filed in Court or otherwise, that an information be filed in Court. The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submitted himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused. The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. While it is true that the fiscal has the quasi judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court, The only qualification is that the action of the Court must not impair the substantial rights of the accused. or the right of the People to due process of law. Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case. However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice. The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire proceedings will be null and void. The least that the fiscal should do is to continue to appear for the prosecution although he may turn over the presentation of the evidence to the private prosecutor but still under his direction and control. The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A

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motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court. authorize and direct the investigating fiscal concerned or any other fiscal or state prosecutor to cause or move for the dismissal of the case, or, where he finds a prima facie case, to cause the filing of an information in court against the respondent, based on the same sworn statements of evidence submitted, without the necessity of conducting another preliminary investigation. The power of supervision and control by the Minister of Justice over the fiscals cannot be denied. As stated in Noblejas vs. Salas, 67 SCRA 47, Section 79 (c) of the Revised Administrative Code defines the extent of a department secretary's power. The power of control therein contemplated "means the power (of the department head) to alter, modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter." "The power of control . . . implies the right of the President (and, naturally, of his alter ego) to interfere in the exercise of such discretion as may be vested by law in the officers of the national government, as well as to act in lieu of such officers." For, while it is the duty of the fiscal to prosecute persons who, according to evidence received from the complainant, are shown to be guilty of a crime, the Minister of Justice is likewise bound by his oath of office to protect innocent persons from groundless, false or serious prosecution. He would be committing a serious dereliction of duty if he orders or sanctions the filing of an information based upon a complaint where he is not convinced that the evidence would warrant the filing of the action in court. As he has the power of supervision and control over prosecuting officers, the Minister of Justice has the ultimate power to decide which as between conflicting theories of the complainant and the respondents should be believed. It is a well-settled rule that the Secretary of Justice has the power to review resolutions or decisions of provincial or city prosecutors or the Chief State Prosecutor upon petition by a proper party. Under the Revised Administrative Code, the secretary of justice exercises the power of direct control and supervision over said prosecutors. He may thus affirm, nullify, reverse or modify their rulings as he may deem fit. Sec. 39, Chapter 8, Book IV in relation to Sections 5, 8, and 9, Chapter 2, Title III of the Code gives the secretary of justice supervision and control over the Office of the Chief State Prosecutor and the Provincial and City Prosecution Offices. The scope of his power of supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code: (1) Supervision and Control. Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; determine priorities in the execution of plans and programs; and prescribe standards, guidelines, plans and programs. Unless a different meaning is explicitly provided in the specific law governing the relationship of particular agencies, the word "control" shall encompass supervision and control as defined in this paragraph. In the case of Ledesma vs. Court of Appeals, it was held that:

b. Review by the Secretary of Justice

Jalandoni v. Drilon Sec. 4, Rule 112 of the New Rules on Criminal Procedure ruled that: Sec. 4. Duty of investigating fiscal. If the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, that there is reasonable ground to believe that a crime has been committed and that the accused is probably guilty thereof, that the accused was informed of the complaint and of the evidence submitted against him and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend dismissal of the case. In either case, he shall forward the records of the case to the provincial or city fiscal or chief state prosecutor within five (5) days from his resolution. The latter shall take appropriate action thereon within ten (10) days from receipt thereof, immediately informing the parties of said action. No complaint or information may be filed or dismissed by an investigating fiscal without the prior written authority or approval of the provincial or city fiscal or chief state prosecutor. Where the investigating assistant fiscal recommends the dismissal of the case but his findings are reversed by the provincial or city fiscal or chief state prosecutor on the ground that a probable cause exists, the latter may, by himself, file the corresponding information against the respondent or direct any other assistant fiscal or state prosecutor to do so, without conducting another preliminary investigation. If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information without conducting another preliminary investigation or to dismiss or move for dismissal of the complaint or information. Sec. 1 (d) of P.D. No. 911 likewise empowers the Secretary of Justice, where he finds that no prima facie case exists, to

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Supervision and "control" of a department head over his subordinates have been defined in administrative law as follows: In administrative law, supervision means overseeing or the power or authority of an officer to see that subordinate officers perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform such duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. (Mondano vs. Silvosa, 97 Phil. 143, 148 (1955). Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or negligence committed in the initial steps of an administrative activity or by an administrative agency should be corrected by higher administrative authorities, and not directly by courts. As a rule, only after administrative remedies are exhausted may judicial recourse be allowed. Sta. Rosa Mining Co. V. Zabala In the trial of criminal cases, it is the duty of the public prosecutor to appear for the government since an offense is an outrage to the sovereignty of the State." (Moran, Comments on the Rules of Court, Vol. IV, 1980 Ed., p. 10). This is so because "the prosecuting officer is the representative not of an ordinary party to a controversy but of a sovereignty where obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer (Suarez vs. Judge Platon, 69 Phil. 556). Accordingly, if the fiscal is not at all convinced that a prima facie case exists, he simply cannot move for the dismissal of the case and, when denied, refuse to prosecute the same. He is obliged by law to proceed and prosecute the criminal action. He cannot impose his opinion on the trial court. At least what he can do is to continue appearing for the prosecution and then turn over the presentation of evidence to another fiscal or a private prosecutor subject to his direction and control (U.S. vs. Despabiladeras, 32 Phil. 442; U.S. vs. Gallegos, 37 Phil. 289). Where there is no other prosecutor available, he should proceed to discharge his duty and present the evidence to the best of his ability and let the court decide the merits of the case on the basis of the evidence adduced by both parties. The mere fact that the Secretary of Justice had, after reviewing the records of the case, directed the prosecuting fiscal to move for the dismissal of the case and the motion to dismiss filed pursuant to said directive is denied by the trial court, is no justification for the refusal of the fiscal to prosecute the case. It is the court where the case is filed and not the fiscal that has full control of it. Very recently, this Court in Mario Fl. Crespo vs. Hon. Leodegario L. Mogul (G.R. No. 53373, promulgated June 30, 1987) ruled: The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court, he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. In order therefore to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court.

c. Who represents People in the Court of Appeals or Supreme Court

City Fiscal of Tacloban v. Espina Under Section 5, Rule 110 of the Rules of Court all criminal actions commenced by complaint or information shall be prosecuted under the direction and control of the fiscal. The fiscal represents the People of the Philippines in the prosecution of offenses before the trial courts at the metropolitan trial courts, municipal trial courts, municipal circuit trial courts and the regional trial courts. However, when such criminal actions are brought to the Court of Appeals or this Court, it is the Solicitor General who must represent the People of the Philippines not the fiscal. As succinctly observed by the Solicitor General, petitioner has no authority to file the petition in this Court. It is only the Solicitor General who can bring or defend such actions on behalf of the Republic of the Philippines or the People of the Philippines. And such actions not initiated by the Solicitor General should be summarily dismissed.

d. When private offended party may bring special civil action of certiorari in criminal proceedings
Perez v. Hagonoy Rural Bank In the case of Dela Rosa v. Court of Appeals, we held that: In a special civil action for certiorari filed under Section 1, Rule 65 of the Rules of Court wherein it is alleged that the trial court committed grave abuse of discretion amounting to lack of jurisdiction or on other jurisdictional grounds, the rules state that the petition may be filed by the person aggrieved. In such

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case, the aggrieved parties are the State and the private offended party or complainant. The complainant has an interest in the civil aspect of the case so he may file such special civil action questioning the decision or action of the respondent court on jurisdictional grounds. In so doing, the complainant should not bring the action in the name of the People of the Philippines. The action may be prosecuted in (the) name of the said complainant. Thus, while it is only the Solicitor General that may bring or defend actions on behalf of the Republic of the Philippines, or represent the People or State in criminal proceedings pending in the Supreme Court and the Court of Appeals, the private offended party retains the right to bring a special civil action for certiorari in his own name in criminal proceedings before the courts of law. Furthermore, our ruling in the case of Dee v. Court of Appeals allowing the private offended party to file a special civil action for certiorari to assail the order of the trial judge granting the motion to dismiss upon the directive of the Secretary of Justice is apropos. We held therein that although the correct procedure would have been to appeal the recommendation of the Secretary of Justice to the Office of the President, the said remedy was unavailable to the private offended party as the penalty involved was neither reclusion perpetua nor death. Hence, as no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law was available to the private offended party, filing of the petition for certiorari under Rule 65 of the Rules of Court was proper. It follows, therefore, that if the private respondent in this case may file a special civil action for certiorari, then with more reason does it have legal personality to move for a reconsideration of the order of the trial court dismissing the criminal charges against the petitioner. In fact, as a general rule, a special civil action will not lie unless a motion for reconsideration is first filed before the respondent tribunal, to allow it an opportunity to correct its assigned errors. denying his right to make an independent examination of the witnesses for the prosecution for the purpose of satisfying himself of the sufficiency of the evidence.

f. Complaint in private crimes

Benga-Oras v. Evangelista

Art. 344. Prosecution of the crimes of adultery, concubinage, seduction, abduction, rape and acts of lasciviousness. The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the offended spouse. The offended party cannot institute criminal prosecution without including both the guilty parties, if they are both alive, nor, in any case, if he shall have consented or pardoned the offenders. The offenses of seduction, abduction, rape or acts of lasciviousness, shall not be prosecuted except upon a complaint filed by the offended party or her parents, grandparents, or guardian, nor, in any case, if the offender has been expressly pardoned by the above named persons, as the case may be. In cases of seduction, abduction, acts of lasciviousness and rape, the marriage of the offender with the offended party shall extinguish the criminal action or remit the penalty already imposed upon him. The provisions of this paragraph shall also be applicable to the co-principals, accomplices and accessories after the fact of the above-mentioned crimes. Art. 360. Persons responsible. No criminal action for defamation which consists in the imputation of a crime which cannot be prosecuted de oficio shall be brought except at the instance of and upon complaint expressly filed by the offended party. (Revised Penal Code)

g. Nature of requirement in Sec. 5, Rule 110 and Art. 344 h. Who may file complaints committed against children under Sec. 27, RA 7610 (Special Protection of Children Against Abuse, Exploitation and Discrimination Act) ________ 5. Formal requisites of complaint and information. a. Sufficiency of complaint and information Section 6. Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed.

e. Prosecutors in election cases

COMELEC v. Silva, Jr. Indeed, under the Rules of Court, the proper party who can file a petition for certiorari, prohibition or mandamus is the person aggrieved by the action of a tribunal, board or official because such action was taken without or in excess of jurisdiction or with grave abuse of discretion or in willful neglect of duty. In contrast to an appealed case which is brought in the name of the parties in the court of origin and for this reason retains its title below, the case, which is an original action, is brought by him. In this case, denied by the courts below the authority to prosecute the criminal actions because they recognized instead the Chief State Prosecutor as the representative of the People, the COMELEC had to bring this suit to seek vindication of its authority. Naturally, the petition has to be brought in its name as the aggrieved party. In Assistant Provincial Fiscal of Bataan v. Dollete, this Court granted a petition for certiorari, which the fiscal had filed in his name, to annul an order of the trial court

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CRIMINAL PROCEDURE When an offense is committed by more than one person, all of them shall be included in the complaint or information. (6a)
People v. Alba An information is valid as long as it distinctly states the statutory designation of the offense and the acts or omissions constitutive thereof. Rule 110 of the Revised Rules on Criminal Procedure states in relevant parts:
SEC. 6. Sufficiency of complaint or information. A complaint or information is sufficient if it states the name of the accused; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of commission of the offense; and the place wherein the offense was committed. SEC. 11. Time of the commission of the offense. It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit.

The informations against accused-appellant comply with the rules. They are not susceptible of being construed as charging crimes other than incestuous rape. In addition, it is sufficient if the acts complained of are alleged to have taken place as near to the actual date when the offense was committed as the information or complaint will permit. As already stated above, the precise time of its commission is not an essential element of the crime of rape, without which there is no crime committed. Flores v. Layosa The Revised Rules of Criminal Procedure provides that an information shall be deemed sufficient if it states, among others, the designation of the offense given by the statute and the acts of omissions complained of as constituting the offense. However, the Court has clarified in several cases that the designation of the offense, by making reference to the section or subsection of the statute punishing, it is not controlling; what actually determines the nature and character of the crime charged are the facts alleged in the information. The Court's ruling in U.S. v. Lim San is instructive: Notwithstanding the apparent contradiction between caption and body, we believe that we ought to say and hold that the characterization of the crime by the fiscal in the caption of the information is immaterial and purposeless, and that the facts stated in the body of the pleading must determine the crime of which the defendant stands charged and for which he must be tried. The establishment of this doctrine is permitted by the Code of Criminal Procedure, and is thoroughly in accord with common sense and with the requirements of plain justice. From a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he stands charged. It in no way aids him in a defense on the merits. Whatever its purpose may be, its result is to enable the accused to vex the court and embarrass the

administration of justice by setting up the technical defense that the crime set forth in the body of the information and proved in the trial is not the crime characterized by the fiscal in the caption of the information. That to which his attention should be directed, and in which he, above all things else, should be most interested, are the facts alleged. The real question is not did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information in the manner therein set forth. If he did, it is of no consequence to him, either as a matter of procedure or of substantive right, how the law denominates the crime which those acts constitute. The designation of the crime by name in the caption of the information from the facts alleged in the body of that pleading is a conclusion of law made by the fiscal. In the designation of the crime the accused never has a real interest until the trial has ended. For his full and complete defense he need not know the name of the crime at all. It is of no consequence whatever for the protection of his substantial rights. The real and important question to him is, "Did you perform the acts alleged in the manner alleged?" not, "Did you commit a crime named murder?" If he performed the acts alleged, in the manner, stated, the law determines what the name of the crime is and fixes the penalty therefore. It is the province of the court alone to say what the crime is or what it is named. Thus, notwithstanding the discrepancy between the mode of commission of the estafa as alleged in the Information (which states that petitioners committed estafa under Article 315), or as claimed by the People in their Comment (that petitioners committed estafa under Article 318) and the absence of the words "fraud" or "deceit" in the Information, the Court agrees with the Sandiganbayan and the RTC that the factual allegations therein sufficiently inform petitioners of the acts constituting their purported offense and satisfactorily allege the elements of estafa in general committed through the offense of falsification of public document. As the Sandiganbayan correctly held: Every element of which the offense is composed must be alleged in the complaint or information by making reference to the definition and the essentials of the specific crimes. This is so in order to fully apprise the accused of the charge against him and for him to suitably prepare his defense since he is presumed to have no independent knowledge of the facts that constitute the offense. It is not necessary, however, that the imputations be in the language of the statute. What is important is that the crime is described in intelligible and reasonable certainty. Moreover, reasonable certainty in the statement of the crime suffices. All that is required is that the charge be set forth with such particularity as will reasonably indicate the exact offense of which the accused is alleged to have committed and will enable him to intelligently prepare his defense, and if found guilty, to plead her conviction in a subsequent prosecution for the same offense [Balitaan v. CFI of Batangas, 115 SCRA 729]. In other words, if the offense is stated in such a way that a person of ordinary intelligence may immediately know what is meant, and the court can decide the matter according to law, the inevitable conclusion is that the information is valid. It is not necessary to follow the language of the statute in the

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information. The information will be sufficient if it describes the crime defined by law. In the case at bar, although the word "deceit" or "fraud" was not specifically alleged in the information, nonetheless, the same alleges the manner by which deceit or fraud was committed; that it was committed by falsifying the daily time record of accused Vallada; and that it was committed by using said falsified daily time record to collect the corresponding salary of Vallada to the damage and prejudice of the National Food Authority. To our mind these allegations are sufficient to maintain the validity of the information. The language is clear and explicit, and is equivalent to an allegation that the crime was committed with fraud or deceit. Thus, the inescapable conclusion is that the information is valid inasmuch as it sufficiently alleges the manner by which the deceit or fraud was committed. Verily the purpose of the law, that is, to apprise the accused of the nature of the charge against them, is reasonably complied with.

CRIMINAL PROCEDURE surname of the person against whom or against whose property the offense was committed, or any appellation or nickname by which such person has been or is known. If there is no better way of identifying him, he must be described under a fictitious name. (a) In offenses against property, if the name of the offended party is unknown, the property must be described with such particularity as to properly identify the offense charged. (b) If the true name of the person against whom or against whose properly the offense was committed is thereafter disclosed or ascertained, the court must cause the true name to be inserted in the complaint or information and the record. (c) If the offended party is a juridical person, it is sufficient to state its name, or any name or designation by which it is known or by which it may be identified, without need of averring that it is a juridical person or that it is organized in accordance with law. (12a)
People v. Cagadas, Jr. Appellants' contention that the trial court erred in convicting Roberto Cultura for he was not one of those indicted in the information but "Jose" Cultura (his father's name), has no merit. The erroneous designation of his name in the information will not vitiate it, as it was clearly proven that the accused, Roberto Cultura, was part of the group that arrested, hogtied and killed the victim. Besides, Cultura did not raise this question of his identity during the arraignment. His acquiescence to be tried under the name "Jose" at that stage of the case is deemed to be a waiver on his part to raise the question of his identity as one of the accused for the first time on appeal. San Diego v. Hernandez Thus, the defendant in a case "triable only in the Court of First Instance" of Quezon City, "shall not be entitled as of right to preliminary investigation . . . where the Fiscal of the City, after due investigation of the facts, shall have presented an information against him in proper form." In the case at bar, such investigation had been conducted and said "information in proper form" was filed by the "Fiscal of the City." Hence, the action of Assistant Fiscal Grecia in inserting, in the information in Criminal Case No. Q-6029, the true names of those accused therein as John Doe and Richard Doe, and the authority given therefor by Judge San Diego, are violative of neither the Fundamental Law nor the statutes, and do not constitute a denial of due process.

b. Constitutional basis
Section 14. (2) In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable. (Constitution)

c. Statutory basis
RULE 115 Rights of Accused Section 1. Rights of accused at trial. In all criminal prosecutions, the accused shall be entitled to the following rights: (b) To be informed of the nature and cause of the accusation against him.

d. Name of accused Section 7. Name of the accused. The complaint or information must state the name and surname of the accused or any appellation or nickname by which he has been or is known. If his name cannot be ascertained, he must be described under a fictitious name with a statement that his true name is unknown. If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court, such true name shall be inserted in the complaint or information and record. (7a) Section 12. Name of the offended party. The complaint or information must state the name and

e. Designation of offense Section 8. Designation of the offense. The complaint or information shall state the designation of the offense given by the statute, aver the acts or omissions 11 | P L A T O N

CRIMINAL PROCEDURE constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute punishing it. (8a)
Batulanon v. People of the Philippines Although the offense charged in the information is estafa through falsification of commercial document, appellant could be convicted of falsification of private document under the well-settled rule that it is the allegations in the information that determines the nature of the offense and not the technical name given in the preamble of the information. In Andaya v. People, we held: From a legal point of view, and in a very real sense, it is of no concern to the accused what is the technical name of the crime of which he stands charged. It in no way aids him in a defense on the merits. x x x That to which his attention should be directed, and in which he, above all things else, should be most interested, are the facts alleged. The real question is not did he commit a crime given in the law some technical and specific name, but did he perform the acts alleged in the body of the information in the manner therein set forth. x x x The real and important question to him is, "Did you perform the acts alleged in the manner alleged?" not, "Did you commit a crime named murder?" If he performed the acts alleged, in the manner stated, the law determines what the name of the crime is and fixes the penalty therefor. x x x If the accused performed the acts alleged in the manner alleged, then he ought to be punished and punished adequately, whatever may be the name of the crime which those acts constitute. People v. Diaz A careful scrutiny of the records shows that the Information charged him only with murder qualified by treachery, abuse of superior strength and evident premeditation. It failed to mention the commission of sexual abuse or "sodomy" on the victim. The Information designated the crime as "murder in relation to RA 7610," but as a rule, what controls is not the designation of the offense but its description in the complaint or information. The real nature of the criminal charge cannot be determined from the caption or preamble of the information or from the mere reference to a particular provision of law alleged to have been violated because they are conclusions of law. On the contrary, it is determined by the actual recital of facts in the complaint or information. The technical name given by the fiscal appearing in the title of the information does not determine the character of the crime but the facts alleged in the body of the information. Thus, even if there is positive proof of sexual abuse accused-appellant cannot be convicted therefor as it was not so alleged in the information. We cannot share the view of the Solicitor General that the trial court did not apply the provisions of RA 7610 in imposing the death penalty but merely made reference to them as sexual abuse, which was established to have been committed by accused-appellant. He contends that the sodomy could be considered as an aggravating circumstance for adding ignominy to the crime as the sexual abuse certainly augmented the wrong done to the victim thus unduly increasing his pain. We do not agree. The trial court was clear in declaring that "[c]onsidering the aggravating circumstance of alevosia and the seriousness of the sexual assault on the victim (in itself a heinous crime), this court after a soul-searching and prayerful consideration has arrived at a firm resolution to impose the maximum penalty of death." Moreover, "ignominy is a circumstance pertaining to the moral order, which adds disgrace and obloquy to the material injury caused by the crime." Thus, for ignominy to be appreciated as an aggravating circumstance in the instant case, it must be shown that the sexual assault on Francis Bart was done by accused-appellant to put the former to shame before killing him. This is clearly not the case here for accused-appellant's intention was shown to be the commission of sexual abuse on the victim as an act of revenge for his similar experience as a child. Surely, the killing was done to eliminate the only witness to his crime. People v. Pambid It is true that the supposed dates of the two rape incidents were not alleged in the information. But, as held in People v. Dimapilis, under Rule 110, 6 and 11 of the Rules on Criminal Procedure, an information is sufficient as long as it states the statutory designation of the offense and the acts or omissions constituting the same, since in rape cases, the time of commission of the crime is not "a material ingredient of the offense." It is thus sufficient if it is alleged that the crime took place "as near to the actual date at which the offense(s) are committed as the information or complaint will permit." We also ruled that in rape cases, victims of rape hardly retain in their memories the dates, number of times and manner they were violated. In the same vein, to be material, discrepancies in the testimony of the victim should refer to significant facts which are determinative of the guilt or innocence of the accused, not to mere details which are irrelevant to the elements of the crime, such as the exact time of its commission in cases of rape, and are not grounds for acquittal. Moreover, accused-appellant entered his plea during arraignment without objecting to the sufficiency of the information. He thus waived objection on this ground, as provided in Rule 117, 8. People v. Tao Appellant may well be convicted of the separate offenses of rape and robbery notwithstanding the fact that the offense charged in the Information is only "Robbery with Rape." In a similar case, People v. Barrientos, this Court held: . . . Controlling in an Information should not be the title of the complaint, nor the designation of the offense charged or the particular law or part thereof allegedly violated, these being, by and large, mere conclusions of law made by the prosecutor, but the description of the crime charged and the particular facts therein recited. Neither is it the technical name given to the offense by the prosecutor, more than the allegations made by him, that should predominate in determining the true character of the crime. There should also be no problem in convicting an accused of two or more crimes erroneously charged in one information or complaint, but later proven to be independent crimes, as if they were made the subject of separate complaints

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or informations. In the case at bar, we find the Information filed against appellant to have sufficiently alleged all the elements necessary to convict him of the two separate crimes of rape and robbery. Needless to state, appellant failed, before his arraignment, to move for the quashal of the Information which appeared to charge more than one offense. He has thereby waived any objection and may thus be found guilty of as many offenses as those charged in the Information and proven during the trial. testimony. Neither can a stipulation of the parties with respect to the victims age be considered sufficient proof of minority. Thus, the same cannot be used to impose the higher penalty of capital punishment on the accused-appellant.

Minority and relationship must be alleged in the information

People v. Malibiran Minority and relationship which, in a prosecution for rape, constitute special qualifying circumstances must be alleged in the information and proved during trial. These aggravating, nay, qualifying, circumstances have been duly alleged and proved beyond reasonable doubt. In the instant case, the twin aggravating circumstances of minority of the victim and her blood ties to the offender were properly appreciated. Ernestos filial ascendancy was properly alleged in the informations and duly established by the presentation of the birth certificates of BBB and AAA as well as the marriage certificate of Ernesto. The birth certificate of BBB as well as the marriage contract of Ernesto and his wife Edna Caballe proved BBB to be Ernestos daughter. And the birth certificate of AAA proved that she is the daughter of BBB and, thus, the granddaughter of Ernesto. Ernesto was duly identified by AAA as her grandfather, the latter not even impugning the relationship during trial. Likewise, alleged in the information and duly proved during trial by virtue of her birth certificate was AAAs minority.

Aggravating and qualifying circumstances must be alleged in the information

People v. Mejia Although the qualifying circumstances of minority and relationship were appreciated by the trial court, the Court of Appeals correctly disregarded them. These qualifying circumstances cannot be considered in fixing the penalty because minority, though proved, was not alleged in the information. As regards relationship, the same was alleged and proved. Pursuant, however, to Section 266-B of the Revised Penal Code, in order to fall within subparagraph 1 of said provision, both circumstances of minority and relationship must be alleged in the information and proved during trial. In People v. Tabanggay, we held: Jurisprudence dictates that when the law specifies certain circumstances that will qualify an offense and thus attach to it a greater degree of penalty, such circumstances must be both alleged and proven in order to justify the imposition of the graver penalty. Recent rulings of the Court relative to the rape of minors invariably state that in order to justify the imposition of death, there must be independent evidence proving the age of the victim, other than the testimonies of prosecution witnesses and the absence of denial by the accused. A duly certified certificate of live birth accurately showing the complainant's age, or some other official document or record such as a school record, has been recognized as competent evidence. In the instant case, we find insufficient the bare testimony of private complainants and their mother as to their ages as well as their kinship to the appellant. x x x [We] cannot agree with the solicitor general that appellant's admission of his relationship with his victims would suffice. Elementary is the doctrine that the prosecution bears the burden of proving all the elements of a crime, including the qualifying circumstances. In sum, the death penalty cannot be imposed upon appellant. The twin circumstances of minority of the victim and her relationship to the offender must concur to qualify the crime of rape. In the instant case, only relationship was duly alleged and proved. As amended, and effective 1 December 2000, Secs. 8 and 9, Rule 110 of the Revised Rules on Criminal Procedure now provide that aggravating as well as qualifying circumstances must be alleged in the information and proven during trial; otherwise they cannot be considered against the accused. Proof of the age of the victim cannot consist merely of

f. Duplicity of offense Section 13. Duplicity of the offense. A complaint or information must charge but one offense, except when the law prescribes a single punishment for various offenses. (13a)
Teehankee, Jr. V. Madayag Section 14, Rule 110 of the 1985 Rules on Criminal Procedure provides: Sec. 14. Amendment. The information or complaint may be amended, in substance or form, without leave of court, at any time before the accused pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the accused. If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11, provided the accused would not be placed thereby in double jeopardy and may also require the witnesses to give bail for their appearance at the trial. The first paragraph provides the rules for amendment of the information or complaint, while the second paragraph refers to the substitution of the information or complaint.

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It may accordingly be posited that both amendment and substitution of the information may be made before or after the defendant pleaded, but they differ in the following respects: 1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change from the original charge; 2. Amendment before plea has been entered can be effected without leave of court, but substitution of information must be with leave of court as the original information has to be dismissed; 3. Where the amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused; in substitution of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; and 4. 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. On the other hand, substitution 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. In determining, therefore, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the first information, and amendment of the information is sufficient; otherwise, where the new information charges an offense which is distinct and different from that initially charged, a substitution is in order. There is identity between the two offenses when the evidence to support a conviction for one offense would be sufficient to warrant a conviction for the other, or when the second offense is exactly the same as the first, or when the second offense is an attempt to commit or a frustration of, or when it necessarily includes or is necessarily included in, the offense charged in the first information. In this connection, an offense may be said to necessarily include another when some of the essential elements or ingredients of the former, as this is alleged in the information, constitute the latter. And, vice-versa, an offense may be said to be necessarily included in another when the essential ingredients of the former constitute or form a part of those constituting the latter. Going now to the case at bar, it is evident that frustrated murder is but a stage in the execution of the crime of murder, hence the former is necessarily included in the latter. It is indispensable that the essential element of intent to kill, as well as qualifying circumstances such as treachery or evident premeditation, be alleged in both an information for frustrated murder and for murder, thereby meaning and proving that the same material allegations are essential to the sufficiency of the informations filed for both. This is because, except for the death of the victim, the essential elements of consummated murder likewise constitute the essential ingredients to convict herein petitioner for the offense of frustrated murder. In the present case, therefore, there is an identity of offenses charged in both the original and the amended information. What is involved here is not a variance in the nature of different offenses charged, but only a change in the stage of execution of the same offense from frustrated to consummated murder. This is being the case, we hold that an amendment of the original information will suffice and, consequent thereto, the filing of the amended information for murder is proper. Petitioner would insist, however, that the additional allegation on the fact of death of the victim Maureen Navarro Hultman constitutes a substantial amendment which may no longer be allowed after a plea has been entered. The proposition is erroneous and untenable. As earlier indicated, Section 14 of Rule 110 provides that an amendment, either of form or substance, may be made at any time before the accused enters a plea to the charge and, thereafter, as to all matters of form with leave of court. A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. Thus, the following have been held to be merely formal amendments, viz: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; (2) an amendment which does not charge another offense different or distinct from that charged in the original one; (3) additional allegations which do not alter the prosecution's theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; and (4) an amendment which does not adversely affect any substantial right of the accused, such as his right to invoke prescription. We repeat that after arraignment and during the trial, amendments are allowed, but only as to matters of form and provided that no prejudice is caused to the rights of the accused. The test of whether an amendment is only of form and an accused is not prejudiced by such amendment has been said to be whether or not a defense under the information as it originally stood would be equally available after the amendment is made, and whether or not any evidence the accused might have would be equally applicable to the information in the one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of substance. Now, an objective appraisal of the amended information for murder filed against herein petitioner will readily show that the nature of the offense originally charged was not actually changed. Instead, an additional allegation, that is, the supervening fact of the death of the victim was merely supplied to aid the trial court in determining the proper penalty for the crime. That the accused committed a felonious act with intent to kill the victim continues to be the prosecution's theory.

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There is no question that whatever defense herein petitioner may adduce under the original information for frustrated murder equally applies to the amended information for murder. Under the circumstances thus obtaining, it is irremissible that the amended information for murder is, at most, an amendment as to form which is allowed even during the trial of the case. It consequently follows that since only a formal amendment was involved and introduced in the second information, a preliminary investigation is unnecessary and cannot be demanded by the accused. The filing of the amended information without the requisite preliminary investigation does not violate petitioner's right to be secured against hasty, malicious and oppressive prosecutions, and to be protected from an open and public accusation of a crime, as well as from the trouble, expenses and anxiety of a public trial. The amended information could not conceivably have come as a surprise to petitioner for the simple and obvious reason that it charges essentially the same offense as that charged under the original information. Furthermore, as we have heretofore held, if the crime originally charged is related to the amended charge such that an inquiry into one would elicit substantially the same facts that an inquiry into the other would reveal, a new preliminary investigation is not necessary. People v. Fernandez The trial court is accused of violating the rule against duplicity of offenses in that, the accused were convicted for two (2) crimes of rape even when under the criminal complaint against them, there is only one (1) crime of rape alleged. The rule invoked in Section 13, Rule 110 of the Rules of Court which states that there should be only one (1) offense charged in a criminal complaint or information, the purpose of which is to afford the defendant a necessary knowledge of the charge so that he may not be confused in his defense. But it is likewise the rule that if ever duplicity of offenses is committed, the same constitutes a ground for a motion to quash the complaint; and failure of the accused to interpose the objection constitutes waiver. Conrado, after he had been convicted by the court a quo, can no longer assail its judgment by raising this issue. Neither can he claim, as he now does, that he was denied the information that he was to be tried for two (2) separate crimes of rape. The acts complained of, as constituting the offenses, were stated in the 2 June 1982 complaint in ordinary and concise language that any person of common intelligence would be able to understand and thereby know what acts he was to defend himself against. The imposition on each of the accused of the penalty corresponding to two (2) crimes of rape is proper, because of the existence of conspiracy. As clearly found by the trial court: Both accused have, obviously, conspired and confederated to commit the crime, considering that they entered the bathroom where Rebecca was, together and at the same time. Accused Fernandez then tied her with a piece of cloth tightly around her neck, while accused Conrado held her hands placing them behind her body, to prevent her from struggling or resisting. Then after accused Fernandez had raped Rebecca, accused Conrado raped her. Both accused, thereafter, fled from the scene of the crime together and at the same time. All these circumstances show beyond shadow of any doubt conspiracy on the part of both accused, which renders each of them liable for two (2) crimes of rape, . . . In a long line of decided cases, it has been held by this Court that in multiple rape, each defendant is responsible not only for the rape personally committed by him, but also for the rape committed by the others, because each of them (accused) cooperated in the commission of the rape perpetrated by the others, by acts without which it would not have been accomplished.

g. Act or omission complained of Section 9. Cause of the accusation. The acts or omissions complained of as constituting the offense and the qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances and for the court to pronounce judgment. (9a)
Evangelista v. People of the Philippines Petitioner further argues that her conviction was merely based on her alleged failure to identify with certainty in her certification the kinds of taxes paid by Tanduay and to indicate what the TNCs stand for, which acts were different from those described in the Information under which she was charged. This, she claims, violated her constitutional right to due process and to be informed of the nature and cause of the accusation against her. It is well-settled that an accused cannot be convicted of an offense unless it is clearly charged in the complaint or information. Constitutionally, he has a right to be informed of the nature and cause of the accusation against him. To convict him of an offense other than that charged in the complaint or information would be a violation of this constitutional right. People v. Gallarde We sustain GALLARDE's contention that the trial court erred in convicting him of murder in an information charging him of rape with homicide. A reading of the accusatory portion of the information shows that there was no allegation of any qualifying circumstance. Although it is true that the term "homicide" as used in special complex crime of rape with homicide is to be understood in its generic sense, and includes murder and slight physical injuries committed by reason or on the occasion of rape, it is settled in this jurisdiction that where a complex crime is charged and the evidence fails to support the charge as to one of the component offense, the accused can be convicted of the other. In rape with homicide, in order to be convicted of murder in case the evidence fails to support the charge of rape, the qualifying circumstance must be sufficiently alleged and proved. Otherwise, it would be a denial of the right of the accused to be informed of the nature of the

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offense with which he is charged. It is fundamental that every element of the offense must be alleged in the complaint or information. The main purpose of requiring the various elements of a crime to be set out in an information is to enable the accused to suitably prepare his defense. He is presumed to have no independent knowledge of the facts that constitute the offense. In the absence then in the information of an allegation of any qualifying circumstance, GALLARDE cannot be convicted of murder. An accused cannot be convicted of an offense higher than that with which he is charged in the complaint or information under which he is tried. It matters not how conclusive and convincing the evidence of guilt may be, but an accused cannot be convicted of any offense, unless it is charged in the complaint or information for which he is tried, or is necessarily included in that which is charged. He has a right to be informed of the nature of the offense with which he is charged before he is put on trial. To convict an accused of a higher offense than that charged in the complaint or information under which he is tried would be an unauthorized denial of that right. People v. Cadampog Although the Information does not allege that the appellant used force, threat or intimidation in having sexual intercourse with the victim, it alleges that the appellant "criminally wrestled" with the private complainant and succeeded in having carnal knowledge of her against her will. The import of such allegations is that the appellant used physical force and intimidation in having carnal knowledge of her. To wrestle is to contend by grappling with and striving to trip or throw down an opponent; or to combat or overcome an opposing tendency or force, or an antagonistic person or group; or to engage in or as if in a violent or determined purposive struggle. It applies to a struggling for mastery by the use, mainly or solely of dexterous holds with the hands, arms or legs. The appellants submission that the Information does not sufficiently charge him of rape under Article 335, paragraph 1 of the Revised Penal Code or that the Information is defective is but an afterthought. The appellant never filed a motion to quash the Information or a motion for a bill of particulars under Rule 116, Section 10 of the Rules of Court before his arraignment. He was arraigned, assisted by counsel, and after the Information was read and explained to him in a language or dialect known to him, he entered a plea of not guilty. There was no complaint from the appellant, before he entered his plea, that the Information was defective and that he did not understand the charge against him. The appellant is, thus, deemed to have waived whatever objections as to form or substance in the Information. As the Court ruled in People v. Flores: If the complaint against the accused-appellant was afflicted by the vice of vagueness, his remedy is to file a motion for bill of particulars. The record reveals that [the] accused-appellant did not ask for a bill of particulars in accordance with section 10, Rule 116 of the Rules of Court. The failure to move for specifications or the quashal of the information on any of the grounds provided for in the Rules of Court deprives [the] accused of the right to object to evidence which could be lawfully introduced and admitted under an information of more or less general terms but which sufficiently charges the accused with a definite crime. It is too late in the day for [the] accusedappellant to raise this issue now because objections as to matters of form and substance in the information cannot be made for the first time on appeal.

h. Place of commission Section 10. Place of commission of the offense. The complaint or information is sufficient if it can be understood from its allegations that the offense was committed or some of the essential ingredients occurred at some place within the jurisdiction of the court, unless the particular place where it was committed constitutes an essential element of the offense or is necessary for its identification. (10a) Section 15. Place where action is to be instituted. (a) Subject to existing laws, the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred. (b) Where an offense is committed in a train, aircraft, or other public or private vehicle while in the course of its trip, the criminal action shall be instituted and tried in the court of any municipality or territory where such train, aircraft or other vehicle passed during such its trip, including the place of its departure and arrival. (c) Where an offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted and tried in the court of the first port of entry or of any municipality or territory where the vessel passed during such voyage, subject to the generally accepted principles of international law. (d) Crimes committed outside the Philippines but punishable under Article 2 of the Revised Penal Code shall be cognizable by the court where the criminal action is first filed. (15a)
U.S. v. Cunanan The attorney-General contends in his argument in this court that the offense is a continuing offense, and that any court, in the jurisdiction of which the defendant is found, may try the defendant. In support of this contention he cites some authorities. In case of a desertion from the United States Army, for instance, the deserter may be tried by a court-martial in any jurisdiction in which he may be found. But this authority is conceded to courts-martial upon the theory that the jurisdiction of a court-martial is not limited by territorial bounds. The jurisdiction of the Courts of First Instance of the Philippine Islands, in criminal cases, is limited to certain well-

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defined territory. They cannot take jurisdiction of persons charged with an offense alleged to have been committed outside of that limited territory. There are well-defined offenses which are continuing or transitory offenses. Such offenses are well recognized at common law. (4 Blackstone's Commentaries, 305.) Such offenses may be tried by the court of any jurisdiction in which the defendant may be found. Such offenses are continuing or transitory upon the theory that there is a continuance or repetition of the offense wherever the defendant may be found. For example, in a case of larceny, if the defendant should commit the crime in one country or state and flee with the property stolen into another county or state, the courts have held that in each new county or state there is a continuance of the unlawful taking, and all the essential elements of larceny exist in the new county or state. (Commonwealth vs. Uprichard, 3 Gray, Mass., 434; Commonwealth vs. White, 123 Mass., 430; Clark's Criminal Law, 366.) While the common law treated certain offenses as transitory, as in the case of larceny, many of the States of the Union have regulated it by statute, such statutes expressly authorizing the trial of persons accused of certain offenses, to be tried in any county or state where they may be found with the effects of the larceny. Act No. 518 of the Philippine Commission provides in section 3 that persons who conspire together to form a band of robbers, for the purpose of stealing carabaos or other personal property, by means of force and violence, etc., may be punished therefor in the Court of First Instance of any province in which they may be taken or from which they have fled. We find no such provision, however, in Act No. 1980, under which the present defendant is accused. The theory upon which the accused in the continuing or transitory offense may be tried in any jurisdiction in which he is found, is based upon the ground that there is a new commission of the offense in the county or state in which he is found. The complaint presented in such cases does not, like that in the present, allege that the crime was committed in some other county or state, where it was originally committed, but in the county or state where the defendant is found. In the present case it will be noted from reading the complaint copied above, that the same alleges that the offense was committed in the Province of Cebu. There is no allegation in the complaint that the offense was committed within the jurisdiction of the Court of First Instance of the city of Manila. The complaint should show that the offense was committed within the jurisdiction of that court. A complaint which shows positively that an offense was not committed within the jurisdiction of the court is demurrable. People v. Navarro It is quite clear in the record of this case, especially in the transcript of stenographic notes and in practically all the pleadings filed by the parties, that there was absolutely no trial or hearing of Criminal Case No. 20145 for light threat. For instance, in the aforementioned identical pleadings "Offer and Submission of Exhibits" filed by the parties at the final phase of the hearings, all the exhibits listed pertain to only one case, Criminal Case No. 20146 for frustrated theft, which, in truth and in fact, was the only case actually tried to the finish, the light threat case not even having reached first base as it was never called to trial nor the first witness therein ever been called to the stand. Same is true of the defense's "Motion for Cancellation of Hearing" and "Objection to Evidence," which both relate exclusively to the offense of theft. The State is entitled to due process in criminal cases, that is, it must be given the opportunity to present its evidence in support of the charge. The Court has always accorded this right to the prosecution, and where the right had been denied, had promptly annulled the offending court action. We have heretofore held that a purely capricious dismissal of an information deprives the State of fair opportunity to prosecute and convict; it denies the prosecution its day in court. For this reason, it is a dismissal (in reality an acquittal) without due process, and, therefore, null and void. Such dismissal is invalid for lack of a fundamental prerequisite, that is, due process, and, consequently, will not constitute a proper basis for the claim of double jeopardy. We have likewise held that a trial court may not arbitrarily deny a timely and well-founded motion of the prosecution for reconsideration of an order of dismissal or acquittal and that such arbitrary refusal to reopen the case will be set aside to give the State its day in court and an opportunity to prove the offense charged against the accused and to prevent miscarriage of justice, especially when no substantial right of the accused would be prejudiced thereby. The imperative requirement of the due process guarantee or mandate would be ignored if on the above considerations it is not given controlling force entitling the State to the remedy being sought. "Jurisdiction" is the right to hear and determine, not to determine without hearing [Windsor v. McVeigh, 93 U.S. 274, 23 L. ed. 914 (23A Words and Phrases, p. 121)]. A judgment is void for lack of due process, which is equivalent to excess or lack of jurisdiction (Trimica, Inc. v. Polaris Marketing Corp., et al., L-29887, October 28, 1974

i. Time of commission Section 11. Date of commission of the offense. It is not necessary to state in the complaint or information the precise date the offense was committed except when it is a material ingredient of the offense. The offense may be alleged to have been committed on a date as near as possible to the actual date of its commission. (11a)
U.S. v. Javier DIchao After discussing the various elements of an information charging estafa necessary to identify the acts which constitutes the crime, thereby notifying the defendant of the precise act of his complained of, the court concluded: "It is plain that the complaint did not restrict the Government to proof of any defined specific transaction, and consequently that the defendant had no notice of the transaction which was to be investigated. In these two cases, therefore, different questions are presented from those found in the case before us. In the first case the question of time is alleged in the information was discussed in

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an accidental way for the sole purpose of determining whether it of itself, or in connection with the other allegations, sufficiently identified the transaction which it was claimed constituted the estafa, so as to notify the defendant of the transaction referred to. the other allegations of the information not being sufficient of themselves to do so. In the Cardona case the question was raised by demurrer. The allegation in the information as to the time when the crime was committed was definite and certain. The only question raised on the appeal related to the alleged variance between the date of the crime as alleged in the information and that proved on the trial. In that case, as we have seen, the court said that, the time alleged not being, under section 7, a material ingredient of the offense, it did not have to proved as laid. It did not hold that, if it had appeared to the trial court, on the trial, that the variance between the allegation of the information and the proof on the trial had been such as to surprise the defendant and prejudice him in his defense, the court would not have been authorized to amend the information and to grant an adjournment, if necessary, to give the defendant an opportunity to meet the charge as amended. The same remarks apply to the case of United States vs. Arcos (11 Phil. Rep., 555), where the information alleged "that between the 2d and the 15th of August, 1906," the accused committed the crime described therein; and the case of United States vs. Smith (3 Phil. Rep., 20), in which the information charged "that the accused, in the month of December last," committed the crime therein set forth. The question whether the allegations of the information are sufficiently definite as to time and question which arises on a variance between the allegations and the proof are different in nature and legal effect, and are decided on different principles. In the case before us the statement of the time when the crime is alleged to have been committed is so indefinite and uncertain that it does not give the accused the information required by law. To allege in an information that the accused committed rape on a certain girl between October, 1910, and August, 1912, is too indefinite to give the accused an opportunity to prepare his defense, and that indefiniteness is not curd by setting out the date when a child was born as a result of such crime. Section 7 of the Code of Criminal Procedure does not warrant such pleading. Its purpose is to permit the allegation of a date of the commission of the crime as near to the actual date as the information of the prosecuting officer will permit, and when that has been done by any date may be prove which does not surprise and substantially prejudice the defense. It does not authorize the total omission of a date of such an indefinite allegation with reference thereto as amounts to the same thing. As before intimated, we are not to be understood as saying that a variance between the date of the commission of the crime as alleged in the information and that as proved on the trial warrants necessarily the acquittal of the accused. The result of what we intend to say is that, if such a variance occurs and it is shown to the trial court that the defendant is surprised thereby, and that, by reason of that surprise, he is unable to defend himself properly, the court may, in the excercise of sound discretion based n all the circumstances, order the information amended so as to set forth the correct date and may grant an adjournment for such length of time as will enable the defendant to prepare himself to meet the variance in the date which was the cause of surprise.

Compare to
People v. David Garcia Appellant avers that the information for multiple rape filed against him is defective for failure to state the exact dates and time when the alleged acts of rape were committed since it was merely stated therein that the offense was committed "from November 1990 up to July 21, 1994." He asserts that each sexual act is a separate crime and, hence, must be proven to have been committed on a precise date and time. The defense, in support of this argument, relies mainly on Section 11, Rule 110 of the Rules of Court, as revised, which provides: Sec. 11. Time of the commission of the offense. It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit. It invokes the early case of U. S. vs. Dichao wherein an order sustaining a demurrer to an information for failure to conform to the subscribed form was upheld by the Court, in effect authorizing the outright dismissal of the case, on the ground that: . . . The allegations of an information should, if possible, be sufficiently explicit and certain as to time to inform the defendant of the date on which the criminal act is alleged to have been committed. Unless the accused is informed of the day, or about the day, he may be, to an extent, deprived of the opportunity to defend himself. While Section 7 of the Code of Criminal Procedure provides that "except when time is a material ingredient of an offense, the precise time of commission need not be stated in a complaint or information, but the act may be alleged to have been committed at any time before the filing thereof," this does not mean that the prosecuting officer may be careless about fixing the date of the alleged crime, or that he may omit the date altogether, or that he may make the allegation so indefinite as to amount to the same thing. Where the exact date cannot be fixed, or where the prosecuting officer is not thoroughly satisfied that he can prove a precise date, he should allege in the information that the crime was committed on or about a date named. Under such an allegation he is not required to prove any precise date but may prove any date which is not so remote as to surprise and prejudice the defendant. In case of surprise the court may allow an amendment of the information as to time and an adjournment to the accused, if necessary, to meet the amendment. In the case before us the statement of the time when the crime is alleged to have been committed is so indefinite and uncertain

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that it does not give the accused the information required by law. To allege in an information that the accused committed rape on a certain girl between October 1910 and August 1912, is too indefinite to give the accused an opportunity to prepare his defense . . . Section 7 of the Code of Criminal Procedure does not warrant such pleading. Its purpose is to permit the allegation of a date of the commission of the crime as near to the actual date as the information of the prosecuting officer will permit, and when that has been done any date may be proved which does not surprise and substantially prejudice the defense. It does not authorize the total omission of a date or such an indefinite allegation with reference thereto as amounts to the same thing. Assuming that this is still good case law, reliance cannot be placed thereon by appellant since the dicta are not squarely applicable to the present case due to factual differences. Taking into consideration the circumstances obtaining herein vis-a-vis the Dichao case, the distinguishing factor which is immediately apparent is the existence of a motion to quash in that case as pointed out in the aforequoted decision. There is no such motion in the case at bar, and this spells the big differences. The rule is that at any time before entering his plea, the accused may move to quash the information on the ground that it does not conform substantially to the prescribed form. The failure of the accused to assert any ground for a motion to quash before he pleads to the information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of the grounds for a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty, and jeopardy. Perforce, a formal defect in the information not being one of the exceptions to the rule, appellant's failure to invoke the same through a motion to quash is deemed to be a waiver of such objection and he cannot now be heard to seek affirmative relief on that ground. Moreover, objections as to matters of form or substance in the information cannot be made for the first time on appeal. At any rate, even laying aside procedural technicalities and assuming arguendo that appellant Garcia could validly raise this legal question before us, we are still not inclined to apply the ruling in Dichao to the case now before us. It may readily be inferred from the decision in Dichao that where there is such an indefinite allegation in the information as to the time of the commission of the offense which would substantially prejudice the defense, a motion to quash the information may be granted and the case dismissed without the benefit of an amendment. On the other hand, where there is a variance between the date of the commission of the crime alleged in the information and that proved at the trial, and it is shown to the trial court that the accused is surprised thereby, and that by reason thereof, he is unable to properly defend himself, the court may, in the exercise of sound discretion based on all the circumstances, order the information amended so as to set forth the correct date. It may further grant an adjournment for such a length of time as will enable the accused to prepare himself to meet the variance in date which was the cause of his surprise. Apparently, that distinction was premised on the theory that the question on whether the allegations of the information are sufficiently definite as to time, and the question which arises from a variance between the particulars of the indictment and the proof, are different in nature and legal effect, and are decided on different principles. It would then result that, on the basis of the foregoing disquisition in Dichao, an amendment will not be allowed, and the motion to quash should instead be granted, where the information is, on its face, defective for failure to state with certainty when the offense was committed, and such ambiguity is so gross as to deprive the accused of the opportunity to defend himself. For all intents and purposes, however, a strict adherence thereto would no longer be a sound procedural practice, especially in criminal proceedings which bears the mandate on speedy trial and wherein the availability of bills of particulars have over time been adopted and recognized. Conformably thereto, where the allegation in the information as to the date or time of the commission of the offense is so uncertain, indefinite or ambiguous as to constitute a violation of the right of the accused to be informed of the nature and cause of the accusation against him, the proper disposition where a motion to quash is filed on that ground, is for the trial court to overrule the motion and order the prosecution to amend the information by stating the date or time with particularity, within such period as the trial court may deem proper under the circumstances. People v. Cinco Appellant maintains that the approximate times and dates of the commission of the offense must be stated in the informations; that the informations in the instant cases do not state the approximate times and dates of the alleged rapes; that although AAA testified that the first rape occurred nearly before All Saints Day of 1998, the information in Criminal Case No. Q-89098, nonetheless, states that such incident transpired on 1 November 1998; that the informations are fatally defective; that the times and dates of the alleged rapes are so indefinite, thereby depriving appellant of the opportunity to prepare for his defense; that appellants constitutional right to be informed of the nature and cause of the accusation against him was violated; and that by reason of the foregoing, appellant is entitled to an acquittal. An information is an accusation in writing charging a person with an offense, subscribed by the prosecutor and filed with the court. To be considered as valid and sufficient, an information must state the name of the accused; the designation of the offense given by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate date of the commission of the offense; and the place where the offense was committed. The purpose of the requirement for the informations validity and sufficiency is to enable the accused to suitably prepare for his defense, since he is presumed to have no independent knowledge of the facts that constitute the offense.

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With respect to the date of the commission of the offense, Section 11, Rule 110 of the Revised Rules of Criminal Procedure specifically provides that it is not necessary to state in the information the precise date the offense was committed except when it is a material ingredient of the offense, and that the offense may be alleged to have been committed on a date as near as possible to the actual date of its commission. In rape cases, failure to specify the exact dates or times when the rapes occurred does not ipso facto make the information defective on its face. The reason is obvious. The date or time of the commission of rape is not a material ingredient of the said crime because the gravamen of rape is carnal knowledge of a woman through force and intimidation. The precise time when the rape took place has no substantial bearing on its commission. As such, the date or time need not be stated with absolute accuracy. It is sufficient that the complaint or information states that the crime has been committed at any time as near as possible to the date of its actual commission. In sustaining the view that the exact date of commission of the rape is immaterial, we ruled in People v. Purazo that: We have ruled, time and again, that the date is not an essential element of the crime of rape, for the gravamen of the offense is carnal knowledge of a woman. As such, the time or place of commission in rape cases need not be accurately stated. As early as 1908, we already held that where the time or place or any other fact alleged is not an essential element of the crime charged, conviction may be had on proof of the commission of the crime, even if it appears that the crime was not committed at the precise time or place alleged, or if the proof fails to sustain the existence of some immaterial fact set out in the complaint, provided it appears that the specific crime charged was in fact committed prior to the date of the filing of the complaint or information within the period of the statute of limitations and at a place within the jurisdiction of the court. permit. xxx xxx xxx

Amendment. The information or complaint may be amended, in substance or form, without leave of court, at any time before the defendant pleads; and thereafter and during the trial as to all matters of form, by leave and at the discretion of the court, when the same can be done without prejudice to the rights of the defendant. Applying the rules, the amendment sought by the prosecution should have been granted. The precise time of the commission of the crime is not an essential element of the offense of rape. The amendment of the complaint changing the date of the commission of the crime of rape from February 13, 1976 to February 5, 1976, a difference of eight (8) days was only a matter of form under the facts of this case and did not prejudice the rights of the appellant. This Court has ruled: In the case of People v. Rivera (1970, 33 SCRA 746), We ruled that the amendment of the information as to the date of the commission of the offense from March 2, 1964 to March 2, 1965, a difference of one (1) year or twelve (I 2) months, was merely a matter of form and does not prejudice the rights of the accused, reiterating the ruling in the case of U.S. v. Ramos, (1912, 23 Phil. 300) where the Fiscal was permitted to amend the date of the commission of the offense from June 16, 1910 to June, 1911. The phrase 'on or about' employed in the information does not require the prosecution 'to prove any precise date but may prove any date which is not so remote as to surprise and prejudice the defendant. In case of surprise, the Court may allow an amendment of the information as to time and an adjournment to the accused, if necessary, to meet the amendment' (U.S. v. Dichao, 27 Phil. 420, 423 [1914]) In the case of People v. Reyes, (supra) on which the respondent judge relies, the change sought was from 1964 to 1969, a difference of five (5) years, which gap of five years 'is so great as to defy approximation in the commission of one and the same offense.' This is not so in the case at bar where the difference is only, as aforestated, two months and five days, which disparity allows approximation as to the date of the commission of the offense of grave coercion." (People v. Borromeo, 123 SCRA 253). The appellant's reliance on the case of People v. Opemia supra, is not well- taken. The amendment proposed in that case was the changing of the date of the commission of the crime from June 18, 1952 to July, 1947, or a difference of five years. We disallowed the amendment and adopted the lower court's ruling that "the amendment that would change the date of the commission of the offense from 1947 to 1952 is certainly not a matter of form.... It is apparent that the proposed amendment concerns with material facts constituting the offense, and consequently, it would be prejudicial to the constitutional rights of the defendants."

This Court has upheld complaints and informations in prosecutions for rape which merely alleged the month and year of its commission. There is no cogent reason to deviate from these precedents, especially so when the prosecution has established the fact that the rape under Criminal Case No. Q99-89097 was committed prior to the date of the filing of the information in the said case. Hence, the allegation in the information under Criminal Case No. Q-99-89097, which states that the rape was committed on or about November 1998, is sufficient to affirm the conviction of appellant in the said case. People v. Molero After arraignment and where the appellant has pleaded "not guilty," it is still proper to amend the date of the commission of the crime? The applicable rules are Sections 10 and 13, Rule 110 of the Revised Rules of Court. These rules provide: Time of the commission of the offense.-It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committee as the information or complaint will

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People v. Lualhati On the first issue, the appellant contends that the complaint is void because it charges at least three (3) crimes of rape, namely: (1) that which was committed "on or about the month of June, 1978;" (2) that which was committed "sometime prior to said period;" and (3) that which was committed "subsequent thereto." (p. 168, Records.) The argument has no merit. Attached to Josephine's complaint was her sworn statement (Exh. E, p. 2, Records), taken before S/Sgt. Domingo V. Averon Jr. of the 21st CIS Detachment at Camp Guillermo Nakar Lucena City on August 8, 1978, wherein, she categorically affirmed that Vicente abused her before the start of classes in June 1978. That affidavit, which may be considered part of the complaint required by law, cures any ambiguity in the complaint regarding the number of offenses committed by the accused (People vs. Babasa, 97 SCRA 672). Discrepancies between the accusation and the complaint as to time of occurrence of the carnal copulations in rape do not affect any essential right of the accused, where the acts occurred within the period of time alleged in both writings and the difference noted in other respects was of a formal, rather than a substantial, character. (Delos Santos vs. People, 69 Phil. 321.) Furthermore, Section 10, Rule 110 of the 1964 Rules of Court provided: Sec. 10. Time of the commission of the offense.-It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense' was committed as the information or complaint will permit. Rocaberte v. People The accused, thru counsel de officio, Atty. Lilio L. Amora, moved to quash the information, alleging that the statement of the time of commission of the felony charged, "from 1977 to December 1983, . . . a period of seven years," or "about 2,551 days," was fatally defective: there was "so great a gap as to defy approximation in the commission of one and the same offense" (citing Peo. v. Reyes, 108 SCRA 203); "the variance is certainly unfair to the accused for it violates their constitutional right to be informed before the trial of the specific charge against them and deprives them of the opportunity to defend themselves . . ." (invoking Peo. v. Openia, 98 Phil. 698). The motion was denied as was, too, the defendants' motion for reconsideration. In the motion for reconsideration, the accused drew attention to Section 4, Rule 117 "of the 1985 Rules on Criminal Procedure," as a remedy that could be alternatively granted, viz.: Sec. 4. Amendment of complaint or information. If the motion to quash is based on an alleged defect in the complaint or information which can be cured by amendment, the court shall order the amendment to be made. (2a) Felicisimo Rocaberte then instituted in this Court, thru his aforenamed counsel de oficio, the special civil action of certiorari at bar, impugning the denial by respondent Judge Santos of his motion to quash, or his refusal, at the very least, to direct the amendment of the information pursuant to Section 4, Rule 117 of the 1985 Rules of Court, supra. He is correct, and will be granted appropriate relief. The rules of criminal procedure declare that . . . A complaint or information is sufficient if it states the name of the defendant; the designation of the offense by the statute; the acts or omissions complained of as constituting the offense; the name of the offended party; the approximate time of the commission of the offense, and the place wherein the offense was committed. and as regards the time of the commission of the offense, particularly that: . . . It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit. In line with this last mentioned rule, a variance of a few months between the time set out in the indictment and that established by the evidence during the trial has been held not to constitute an error so serious as to warrant reversal of a conviction solely on that score. Hence, where the information sets the date of commission of a robbery at March 25, 1900, evidence was allowed to show that the offense was actually perpetrated on the 5th or 6th of March; and an amendment of an information so as to change the year therein stated to that following it, was allowed it appearing that the alteration impaired none of the defendant's rights. Where, however, there was a variance of several years between the time stated in the information, 1947, and the proof of its actual commission adduced at the trial, 1952, the dismissal of the case by the Trial Court was sustained by this Court, since to allow amendment of the indictment to conform to the evidence would be violative of defendant's constitutional right to be informed of the nature and cause of the accusation against him. Again, the statement of the time of the commission of the offense which is so general as to span a number of years, i.e., "between October, 1910 to August, 1912," has been held to be fatally defective because it deprives the accused an opportunity to prepare his defense. A defect in the averment as to the time of the commission of the crime charged is not, however, a ground for a motion to quash under Rule 116 of the Rules of Court. Even if it were, a motion for quashal on that account will be denied since the defect is one that can be cured by amendment; instead, the court shall order the amendment to be made by stating the time with particularity.

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The remedy against an indictment that fails to allege the time of the commission of the offense with sufficient definiteness is a motion for a bill of particulars, provided for in Section 6, Rule 116 of the Rules of Court of 1964. Bill of particulars. Defendant may, at the time of or before arraignment, move for or demand a more definite statement or a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to plead or prepare for trial. The motion shall point out the defects complained of and the details desired. From all that has been said, the conclusion should be clear. The information against petitioner Rocaberte is indeed seriously defective. It places on him and his co-accused the unfair and unreasonable burden of having to recall their activities over a span of more than 2,500 days. It is a burden nobody should be made to bear. The public prosecutor must make more definite and particular the time of the commission of the crime of theft attributed to Rocaberte and his co-defendants. If he cannot, the prosecution cannot be maintained, the case must be dismissed. People v. Bugayong Although the Information alleged that the crime was committed "before and until October 15, 1994," the trial court did not err in convicting appellant of rape committed in 1993. It is doctrinal that the precise time of the commission of an offense need not be alleged in the complaint or information, unless time is an essential element of the crime charged. Section 11, Rule 110 of the Rules of Court, buttresses this view. Sec. 11. Time of the commission of the offense. It is not necessary to state in the complaint or information the precise time at which the offense was committed except when time is a material ingredient of the offense, but the act may be alleged to have been committed at any time as near to the actual date at which the offense was committed as the information or complaint will permit. It bears emphasis that the date is not an essential element of rape, for the gravamen of the offense is carnal knowledge of a woman. The time-tested rule is that "when the 'time' given in the complaint is not of the essence of the offense, it need not be proven as alleged and that the complaint will be sustained if the proof shows that the offense was committed at any time within the period of the statute of limitations and before the commencement of the action." Explaining that the specific date or time need not always appear in the complaint or information, the Court held: It is true that the complaint must allege a specific time and place when and where the offense was committed. The proof, however, need not correspond to this allegation, unless the time and place [are] material and of the essence of the offense as a necessary ingredient in its description. The evidence is admissible and sufficient if it shows that the crime was committed at any time within the period of the statute of limitations and before or after the time stated in the complaint or indictment and before the action is commenced. In US v. Dichao, the Court also ruled that "the question [of] whether the allegations of the information are sufficiently definite as to time and the question which arises [from] a variance between the allegations and the proof are different in nature and legal effect, and are decided on different principles." Applying the aforecited rule in People v. Borromeo, the Court elucidated: "[A] difference of one (1) year or twelve (12) months [is] merely a matter of form and does not prejudice the rights of the accused. . . . . The phrase 'on or about' employed in the information does not require the prosecution to prove any precise date but may prove any date which is not so remote as to surprise and prejudice the defendant." Indeed, the determinative factor in the resolution of the question involving a variance between allegation and proof in respect of the date of the crime is the element of surprise on the part of the accused and his corollary inability to defend himself properly. The records of this case belie appellant's claim of surprise.

________ 6. Amendment information or substitution of complaint or

Section 14. Amendment or substitution. A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused. However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party. (n) If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial. (14a)
RULE 120 Judgment Section 4. Judgment in case of variance between allegation and proof. When there is variance between the offense charged in the complaint or information and that proved, and the

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offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. (4a) Almeda v. Villaluz Under section 13 of Rule 110 of the Rules of Court, the trial court has discretion to allow amendments to the information on all matters of form after the defendant has pleaded and during the trial when the same can be done without prejudice to the rights of the defendant. What are prohibited at this stage of the proceedings are amendments in substance. And the substantial matter in a complaint or information is the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. The additional allegations of habitual delinquency and recidivism do not have the effect of charging another offense different or distinct from the charge of qualified theft (of a motor vehicle) contained in the information. Neither do they tend to correct any defect in the jurisdiction of the trial court over the subject-matter of the case. The said new allegations relate only to the range of the penalty that the court might impose in the event of conviction. They do not alter the prosecution's theory of the case nor possibly prejudice the form of defense the accused has or will assume. Consequently, in authorizing the amendments, the respondent judge acted with due consideration of the petitioner's rights and did not abuse his discretion. Anent the petitioner's claim that the amendment of the information by the State places him in double jeopardy, it should be remembered that there is double jeopardy only when all the following requisites obtain in the original prosecution; (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his consent. It is clear that the petitioner Almeda has not yet been convicted nor acquitted of the charge of qualified theft of a motor vehicle contained in the original information. Neither has the case against him been dismissed or otherwise terminated. The mere amendment of the information to include allegations of habitual delinquency and recidivism does not have the effect of a dismissal of the criminal action for qualified theft alleged in the original information. People v. Casey The lack of arraignment under the amended information is objected to by accused-appellant Joseph Casey allegedly on the ground that there is a violation of his constitutional right to be informed of the charge against him. There can be a violation of such right, however, only when the amendment pertains to matters of substance. In the case at bar, the alterations introduced in the information refer to the inclusion of accused appellant Ricardo Felix to the same charge of murder. They do not change the nature of the crime against accused-appellant Casey. Conspiracy, evident premeditation, treachery and taking The test as to whether a defendant is prejudiced by the amendment of an information has been said to be whether a defense under the information as it originally stood would be available after the amendment is made, and whether any evidence defendant might have would be equally applicable to the information in the one form as in the other. A look into Our jurisprudence on the matter shows that an amendment to an information introduced after the accused has pleaded not guilty thereto, which does not change the nature of the crime alleged therein, does not expose the accused to a charge which could call for a higher penalty, does not affect the essence of the offense or cause surprise or deprive the accused of an opportunity to meet the new averment had each been held to be one of form and not of substance not prejudicial to the accused and, therefore, not prohibited by Section 13, Rule 110 of the Revised Rules of Court. Dionaldo v. Dacuycuy To amend the information so as to change the crime charged for homicide to the more serious offense of murder after the petitioner had pleaded not guilty to the former is indubitably proscribed by the first paragraph of the above-quoted provision. For certainly a change from homicide to murder is not a matter of form; it is one of substance with very serious consequences. But can the amendment be justified under the second paragraph? The answer is, No. For the provision speaks not of amendment but of dismissal of the information In other words the provision contemplates the filing of a substitute, not an amended information. But, it may be asked, can not the information for homicide against the petitioner be dismissed since no judgment has yet been rendered and another information for murder be filed? The answer, again, is No. For the petitioner having pleaded not guilty to homicide, to dismiss the charge against him so as to file another charge for murder win place him thereby in double jeopardy. People v. Montenegro Amendment of an information under Sec. 14, Rule 110 of the 1985 Rules on Criminal Procedure (formerly, Section 13, Rule 110 of the old Rules on Criminal Procedure) may be made at any time before the accused enters a plea to the charge. Thereafter and during the trial, amendments to the information may also be allowed, as to matters of form, provided that no prejudice is caused to the rights of the accused. The test as to when the rights of an accused are prejudiced by the amendment of a complaint or information is when a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made, and when any evidence the accused might have, would be inapplicable to the complaint or information as amended. On the other hand, an amendment which merely states with advantage of superior strength are similarly alleged in both informations. No extenuating circumstance is likewise alleged in both. Thus the amendment of the information as far as accused-appellant Casey is concerned is one of form and not of substance as it is not prejudicial to his rights.

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additional precision something which is already contained in the original information, and which, therefore, adds nothing essential for conviction for the crime charged is an amendment to form that can be made at anytime. The proposed amendments in the amended information, in the instant case, are clearly substantial and have the effect of changing the crime charged from "Robbery" punishable under Article 209 to "Robbery in an Uninhabited Place" punishable under Art. 302 of the Revised Penal Code, thereby exposing the private respondents-accused to a higher penalty as compared to the penalty imposable for the offense charged in the original information to which the accused had already entered a plea of "not guilty" during their arraignment. Moreover, the change in the items, articles and jewelries allegedly stolen into entirely different articles from those originally complained of, affects the essense of the imputed crime, and would deprive the accused of the opportunity to meet all the allegations in the amended information, in the preparation of their defenses to the charge filed against them. It will be observed that private respondents were accused as accessories-after-the-fact of the minor Ricardo Cabaloza who had already been convicted of robbery of the items listed in the original information. To charge them now as accessories-afterthe-fact for a crime different from that committed by the principal, would be manifestly incongruous as to be allowed by the Court. The allegation of conspiracy among all the private respondentsaccused, which was not previously included in the original information, is likewise a substantial amendment saddling the respondents with the need of a new defense in order to meet a different situation in the trial court. In People v. Zulueta, it was held that: Surely the preparations made by herein accused to face the original charges will have to be radically modified to meet the new situation. For undoubtedly the allegation of conspiracy enables the prosecution to attribute and ascribe to the accused Zulueta all the acts, knowledge, admissions and even omissions of his co-conspirator Angel Llanes in furtherance of the conspiracy. The amendment thereby widens the battlefront to allow the use by the prosecution of newly discovered weapons, to the evident discomfiture of the opposite camp. Thus it would seem inequitable to sanction the tactical movement at this stage of the controversy, bearing in mind that the accused is only guaranteed two-days' preparation for trial. Needless to emphasize, as in criminal cases, the liberty, even the life, of the accused is at stake, it is always wise and proper that he be fully apprised of the charges, to avoid any possible surprise that may lead to injustice. The prosecution has too many facilities to covet the added advantage of meeting unprepared adversaries. To allow at this stage the proposed amendment alleging conspiracy among all the accused, will make all of the latter liable not only for their own individual transgressions or acts but also for the acts of their co-conspirators. On the other hand, Section 14, Rule 110 of the Revised Rules of Criminal Procedure states: Section 14. Amendment or substitution. A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused. However, any amendment before plea, which downgrades the nature of the offense charged in or excludes any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties, especially the offended party. Thus, before the accused enters his plea, a formal or substantial amendment of the complaint or information may be made without leave of court. After the entry of a plea, only a formal amendment may be made but with leave of court and if it does not prejudice the rights of the accused. After arraignment, a substantial amendment is proscribed except if the same is beneficial to the accused. A substantial amendment consists of the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. The following have been held to be mere formal amendments: (1) new allegations which relate only to the range of the penalty that the court might impose in the event of conviction; (2) an amendment which does not charge another offense different or distinct from that charged in the original one; (3) additional allegations which do not alter the prosecutions theory of the case so as to cause surprise to the accused and affect the form of defense he has or will assume; (4) an amendment which does not adversely affect any substantial right of the accused; and (5) an amendment that merely adds specifications to eliminate vagueness in the information and not to introduce new and material facts, and merely states with additional precision something which is already contained in the original information and which adds nothing essential for conviction for the crime charged. The test as to whether a defendant is prejudiced by the amendment is whether a defense under the information as it originally stood would be available after the amendment is made, and whether any evidence defendant might have would be equally applicable to the information in the one form as in the other. An amendment to an information which does not change the nature of the crime alleged therein does not affect the essence of the offense or cause surprise or deprive the accused of an opportunity to meet the new averment had each been held to be one of form and not of substance. In the case at bar, the substitution of Caltex by PCIB as private complaint is not a substantial amendment. The substitution did not alter the basis of the charge in both Informations, nor did it result in any prejudice to petitioner. The documentary evidence in the form of the forged checks remained the same, and all such evidence was available to petitioner well before the trial.

Substantial amendment vis--vis formal amendment

Ricarze v. CA

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Thus, he cannot claim any surprise by virtue of the substitution. phrases fall under different paragraphs of RA 3019 specifically, "gross neglect of duty" is under Section 3(f) while "gross inexcusable negligence" is under Section 3(e) of the statutethe question remains whether or not the amendment is substantial and prejudicial to the rights of petitioner. The test as to when the rights of an accused are prejudiced by the amendment of a complaint or information is when a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made, and when any evidence the accused might have, would be inapplicable to the complaint or information as amended. On the other hand, an amendment which merely states with additional precision something which is already contained in the original information and which, therefore, adds nothing essential for conviction for the crime charged is an amendment to form that can be made at anytime. In this case, the amendment entails the deletion of the phrase "gross neglect of duty" from the Information. Although this may be considered a substantial amendment, the same is allowable even after arraignment and plea being beneficial to the accused. As a replacement, "gross inexcusable negligence" would be included in the Information as a modality in the commission of the offense. This Court believes that the same constitutes an amendment only in form. In Sistoza v. Desierto, the Information charged the accused with violation of Section 3(e) of RA 3019, but specified only "manifest partiality" and "evident bad faith" as the modalities in the commission of the offense charged. "Gross inexcusable negligence" was not mentioned in the Information. Nonetheless, this Court held that the said section is committed by dolo or culpa, and although the Information may have alleged only one of the modalities of committing the offense, the other mode is deemed included in the accusation to allow proof thereof. In so ruling, this Court applied by analogy the pronouncement in Cabello v. Sandiganbayan where an accused charged with willful malversation was validly convicted of the same felony of malversation through negligence when the evidence merely sustained the latter mode of perpetrating the offense. The Court held that a conviction for a criminal negligent act can be had under an information exclusively charging the commission of a willful offense upon the theory that the greater includes the lesser offense. Thus, we hold that the inclusion of "gross inexcusable negligence" in the Information, which merely alleges "manifest partiality" and "evident bad faith" as modalities in the commission of the crime under Section 3(e) of RA 3019, is an amendment in form.

Test of prejudice by amendment

Banal III v. Panganiban Moreover, the amendment in the informations was one of form. Section 14, Rule 110 of the Rules of Court provides that a complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused. In the instant case, the amendment was done after petitioners arraignment and with prior leave of court. The amendment which states, "That the libelous article abovequoted was printed and first published in the City of Makati, more particularly at 3817 Mascardo street, Makati City and/or at 1098 Chino Roces Avenue (formerly Pasong Tamo) corner Yague and Mascardo Streets, Makati City," is merely formal. As laid down by this Court, an amendment is only in form when it merely adds specifications to eliminate vagueness in the information and not to introduce new and material facts, and merely states with additional precision something which is already contained in the original information and which, therefore, adds nothing essential for conviction for the crime charged. In the case of People v. Casey, we laid down the test in determining whether an amendment is a matter of form or substance, thus: The test as to whether a defendant is prejudiced by the amendment of an information has been said to be whether a defense under the information as it originally stood would be available after the amendment is made, and whether any evidence defendant might have would be equally applicable to the information in the one form as in the other. A look into Our jurisprudence on the matter shows that an amendment to an information introduced after the accused has pleaded not guilty thereto, which does not change the nature of the crime alleged therein, does not expose the accused to a charge which could call for a higher penalty, does not affect the essence of the offense or cause surprise or deprive the accused of an opportunity to meet the new averment had each been held to be one of form and not of substance not prejudicial to the accused, and therefore, not prohibited by Section 13, Rule 110 (now Section 14) of the Revised Rules of Court. We find that the original information is sufficient in form. Allowing the amendment does not alter the defense of the accused. Indeed, it only states with precision that which is already contained in the original information. Albert v. Sandiganbayan The original information filed against petitioner alleged that he acted with "evident bad faith and manifest partiality and or (sic) gross neglect of duty." The amended information, on the other hand, alleges that petitioner acted with "evident bad faith and manifest partiality and/or gross inexcusable negligence." Simply, the amendment seeks to replace "gross neglect of duty" with "gross inexcusable negligence." Given that these two

Amendment or substitution of information

Pacoy v. Cajigal Petitioner confuses the procedure and effects of amendment or substitution under Section 14, Rule 110 of the Rules of Court, to wit -SEC. 14. Amendment or substitution. A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done

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without causing prejudice to the rights of the accused. xxx If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11, provided the accused would not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their appearance at the trial. In determining, therefore, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the first information, an amendment of the information is sufficient; otherwise, where the new information charges an offense which is distinct and different from that initially charged, a substitution is in order. There is identity between the two offenses when the evidence to support a conviction for one offense would be sufficient to warrant a conviction for the other, or when the second offense is exactly the same as the first, or when the second offense is an attempt to commit or a frustration of, or when it necessarily includes or is necessarily included in, the offense charged in the first information. In this connection, an offense may be said to necessarily include another when some of the essential elements or ingredients of the former, as this is alleged in the information, constitute the latter. And, vice-versa, an offense may be said to be necessarily included in another when the essential ingredients of the former constitute or form a part of those constituting the latter. In the present case, the change of the offense charged from Homicide to Murder is merely a formal amendment and not a substantial amendment or a substitution as defined in Teehankee. While the amended Information was for Murder, a reading of the Information shows that the only change made was in the caption of the case; and in the opening paragraph or preamble of the Information, with the crossing out of word Homicide and its replacement by the word Murder. There was no change in the recital of facts constituting the offense charged or in the determination of the jurisdiction of the court. The averments in the amended Information for Murder are exactly the same as those already alleged in the original Information for Homicide, as there was not at all any change in the act imputed to petitioner, i.e., the killing of 2Lt. Escueta without any qualifying circumstance. Thus, we find that the amendment made in the caption and preamble from Homicide to Murder as purely formal. Section 14, Rule 110 also provides that in allowing formal amendments in cases in which the accused has already pleaded, it is necessary that the amendments do not prejudice the rights of the accused. The test of whether the rights of an accused are prejudiced by the amendment of a complaint or information is whether a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made; and when any evidence the accused might have would be inapplicable to the complaint or information. Since the facts alleged in the accusatory portion of the amended Information are identical with those of the original Information for Homicide, there could not be any effect on the prosecution's theory of the case; neither would there be any possible prejudice to the rights or defense of petitioner. While the respondent judge erroneously thought that disrespect on account of rank qualified the crime to murder, as the same was only a generic aggravating circumstance, we

with Section 19, Rule 119 of which provides: SEC. 19. When mistake has been made in charging the proper offense. - When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information. First, a distinction shall be made between amendment and substitution under Section 14, Rule 110. For this purpose, Teehankee v. Madayag is instructive, viz: The first paragraph provides the rules for amendment of the information or complaint, while the second paragraph refers to the substitution of the information or complaint. It may accordingly be posited that both amendment and substitution of the information may be made before or after the defendant pleads, but they differ in the following respects: 1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change from the original charge; 2. Amendment before plea has been entered can be effected without leave of court, but substitution of information must be with leave of court as the original information has to be dismissed; 3. Where the amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused; in substitution of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; and 4. 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. On the other hand, substitution 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.

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do not find that he committed any grave abuse of discretion in ordering the amendment of the Information after petitioner had already pleaded not guilty to the charge of Homicide, since the amendment made was only formal and did not adversely affect any substantial right of petitioner. PERSON CIVILLY LIABLE FOR FELONIES Art. 100. Civil liability of a person guilty of felony. Every person criminally liable for a felony is also civilly liable. Art. 101. Rules regarding civil liability in certain cases. The exemption from criminal liability established in subdivisions 1, 2, 3, 5 and 6 of Article 12 and in subdivision 4 of Article 11 of this Code does not include exemption from civil liability, which shall be enforced subject to the following rules: First. In cases of subdivisions 1, 2, and 3 of Article 12, the civil liability for acts committed by an imbecile or insane person, and by a person under nine years of age, or by one over nine but under fifteen years of age, who has acted without discernment, shall devolve upon those having such person under their legal authority or control, unless it appears that there was no fault or negligence on their part. Should there be no person having such insane, imbecile or minor under his authority, legal guardianship or control, or if such person be insolvent, said insane, imbecile, or minor shall respond with their own property, excepting property exempt from execution, in accordance with the civil law. Second. In cases falling within subdivision 4 of Article 11, the persons for whose benefit the harm has been prevented shall be civilly liable in proportion to the benefit which they may have received. The courts shall determine, in sound discretion, the proportionate amount for which each one shall be liable. When the respective shares cannot be equitably determined, even approximately, or when the liability also attaches to the Government, or to the majority of the inhabitants of the town, and, in all events, whenever the damages have been caused with the consent of the authorities or their agents, indemnification shall be made in the manner prescribed by special laws or regulations. Third. In cases falling within subdivisions 5 and 6 of Article 12, the persons using violence or causing the fears shall be primarily liable and secondarily, or, if there be no such persons, those doing the act shall be liable, saving always to the latter that part of their property exempt from execution. Art. 102. Subsidiary civil liability of innkeepers, tavernkeepers and proprietors of establishments. In default of the persons criminally liable, innkeepers, tavernkeepers, and any other persons or corporations shall be civilly liable for crimes committed in their establishments, in all cases where a violation of municipal ordinances or some general or special police regulation shall have been committed by them or their employees. Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within their houses from guests lodging therein, or for the payment of the value thereof, provided that such guests shall have notified in advance the innkeeper himself, or the person representing him, of the deposit of such goods within the inn; and shall furthermore have followed the directions which such innkeeper or his representative may have given them with respect to the care

________ 7. Interruption of prescriptive period a. When reckoned The institution of the criminal action shall interrupt the running period of prescription of the offense charged unless otherwise provided in special laws. (1a) b. Computation of prescription
Art. 91. Computation of prescription of offenses. The period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities, or their agents, and shall be interrupted by the filing of the complaint or information, and shall commence to run again when such proceedings terminate without the accused being convicted or acquitted, or are unjustifiably stopped for any reason not imputable to him. (Revised Penal Code)

The term of prescription shall not run when the offender is absent from the Philippine Archipelago. 8. Remedy against a defective complaint or information a. Amendment see Section 14 b. Motion to Quash
RULE 117 Motion to Quash Section 4. Amendment of the complaint or information. If the motion to quash is based on an alleged defect of the complaint or information which can be cured by amendment, the court shall order that an amendment be made. (4a)

________ RULE 111 Prosecution of Civil Action ________ B. CIVIL ASPECT 1. Civil liabilities that may arise from a criminal act a. Arts. 100-113, Revised Penal Code; Arts. 29, 32, 33, 34, 2176, 2180, 2184, Civil Code
Title Five CIVIL LIABILITY Chapter One

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and vigilance over such goods. No liability shall attach in case of robbery with violence against or intimidation of persons unless committed by the innkeeper's employees. Art. 103. Subsidiary civil liability of other persons. The subsidiary liability established in the next preceding article shall also apply to employers, teachers, persons, and corporations engaged in any kind of industry for felonies committed by their servants, pupils, workmen, apprentices, or employees in the discharge of their duties. Chapter Two WHAT CIVIL LIABILITY INCLUDES Art. 104. What is included in civil liability. The civil liability established in Articles 100, 101, 102, and 103 of this Code includes: 1. Restitution; 2. Reparation of the damage caused; 3. Indemnification for consequential damages. Art. 105. Restitution; How made. The restitution of the thing itself must be made whenever possible, with allowance for any deterioration, or diminution of value as determined by the court. The thing itself shall be restored, even though it be found in the possession of a third person who has acquired it by lawful means, saving to the latter his action against the proper person, who may be liable to him. This provision is not applicable in cases in which the thing has been acquired by the third person in the manner and under the requirements which, by law, bar an action for its recovery. Art. 106. Reparation; How made. The court shall determine the amount of damage, taking into consideration the price of the thing, whenever possible, and its special sentimental value to the injured party, and reparation shall be made accordingly. Art. 107. Indemnification; What is included. Indemnification for consequential damages shall include not only those caused the injured party, but also those suffered by his family or by a third person by reason of the crime. Art. 108. Obligation to make restoration, reparation for damages, or indemnification for consequential damages and actions to demand the same; Upon whom it devolves. The obligation to make restoration or reparation for damages and indemnification for consequential damages devolves upon the heirs of the person liable. The action to demand restoration, reparation, and indemnification likewise descends to the heirs of the person injured. Art. 109. Share of each person civilly liable. If there are two or more persons civilly liable for a felony, the courts shall determine the amount for which each must respond. Art. 110. Several and subsidiary liability of principals, accomplices and accessories of a felony; Preference in payment. Notwithstanding the provisions of the next preceding article, the principals, accomplices, and accessories, each within their respective class, shall be liable severally (in solidum) among themselves for their quotas, and subsidiaries for those of the other persons liable. The subsidiary liability shall be enforced, first against the property of the principals; next, against that of the accomplices, and, lastly, against that of the accessories. Whenever the liability in solidum or the subsidiary liability has been enforced, the person by whom payment has been made shall have a right of action against the others for the amount of their respective shares. Art. 111. Obligation to make restitution in certain cases. Any person who has participated gratuitously in the proceeds of a felony shall be bound to make restitution in an amount equivalent to the extent of such participation. Chapter Three EXTINCTION AND SURVIVAL OF CIVIL LIABILITY Art. 112. Extinction of civil liability. Civil liability established in Articles 100, 101, 102, and 103 of this Code shall be extinguished in the same manner as obligations, in accordance with the provisions of the Civil Law. Art. 113. Obligation to satisfy civil liability. Except in case of extinction of his civil liability as provided in the next preceding article the offender shall continue to be obliged to satisfy the civil liability resulting from the crime committed by him, notwithstanding the fact that he has served his sentence consisting of deprivation of liberty or other rights, or has not been required to serve the same by reason of amnesty, pardon, commutation of sentence or any other reason. (Revised Penal Code) CHAPTER 2 HUMAN RELATIONS Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious. If in a criminal case the judgment of acquittal is based upon reasonable doubt, the court shall so declare. In the absence of any declaration to that effect, it may be inferred from the text of the decision whether or not the acquittal is due to that ground. Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: (1) Freedom of religion;

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(2) Freedom of speech; (3) Freedom to write for the press or to maintain a periodical publication; (4) Freedom from arbitrary or illegal detention; (5) Freedom of suffrage; (6) The right against deprivation of property without due process of law; (7) The right to a just compensation when private property is taken for public use; (8) The right to the equal protection of the laws; (9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures; (10) The liberty of abode and of changing the same; (11) The privacy of communication and correspondence; (12) The right to become a member of associations or societies for purposes not contrary to law; (13) The right to take part in a peaceable assembly to petition the government for redress of grievances; (14) The right to be free from involuntary servitude in any form; (15) The right of the accused against excessive bail; (16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf; (17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness; (18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and (19) Freedom of access to the courts. In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and mat be proved by a preponderance of evidence. The indemnity shall include moral damages. Exemplary damages may also be adjudicated. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in Article 2176 shall be applicable. Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody. The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. (1902a) Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute. Art. 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action. CHAPTER 2 QUASI-DELICTS

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diligence of a good father of a family to prevent damage. (1903a) Art. 2184. In motor vehicle mishaps, the owner is solidarily liable with his driver, if the former, who was in the vehicle, could have, by the use of the due diligence, prevented the misfortune. It is disputably presumed that a driver was negligent, if he had been found guilty or reckless driving or violating traffic regulations at least twice within the next preceding two months. If the owner was not in the motor vehicle, the provisions of Article 2180 are applicable. (n) (Civil Code)

CRIMINAL PROCEDURE charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. When the offended party seeks to enforce civil liability against the accused by way of moral, nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint or information, the filing fees thereof shall constitute a first lien on the judgment awarding such damages. Where the amount of damages, other than actual, is specified in the complaint or information, the corresponding filing fees shall be paid by the offended party upon the filing thereof in court. Except as otherwise provided in these Rules, no filing fees shall be required for actual damages. No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action. (1a) (b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include the corresponding civil action. No reservation to file such civil action separately shall be allowed. Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in full the filing fees based on the amount of the check involved, which shall be considered as the actual damages claimed. Where the complaint or information also seeks to recover liquidated, moral, nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based on the amounts alleged therein. If the amounts are not so alleged but any of these damages are subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a first lien on the judgment. Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this Rule governing consolidation of the civil and criminal actions. (cir. 57-97) 30 | P L A T O N

________ 2. Dual Concept of civil liability

Jarantilla v. CA Apropos to such resolution is the settled rule that the same act or omission (in this case, the negligent sideswiping of private respondent) can create two kinds of liability on the part of the offender, that is, civil liability ex delicto and civil liability ex quasi delicto. Since the same negligence can give rise either to a delict or crime or to a quasi-delict or tort, either of these two types of civil liability may be enforced against the culprit, subject to the caveat under Article 2177 of the Civil Code that the offended party cannot recover damages under both types of liability. We also note the reminder of petitioner that in Roa vs. De la Cruz, et al., it was held that where the offended party elected to claim damages arising from the offense charged in the criminal case through her intervention as a private prosecutor, the final judgment rendered therein constituted a bar to the subsequent civil action based upon the same cause. It is meet, however, not to lose sight of the fact that the criminal action involved therein was for serious oral defamation which, while within the contemplation of an independent civil action under Article 33 of the Civil Code, constitutes only a penal omen and cannot otherwise be considered as a quasi-delict or culpa aquiliana under Articles 2176 and 2177 of the Civil Code. And while petitioner draws attention to the supposed reiteration of the Roa doctrine in the later case of Azucena vs. Potenciano, et al., this time involving damage to property through negligence as to make out a case of quasi-delict under Articles 2176 and 2180 of the Civil Code, such secondary reliance is misplaced since the therein plaintiff Azucena did not intervene in the criminal action against defendant Potenciano. The citation of Roa in the later case of Azucena was, therefore, clearly obiter and affords no comfort to petitioner.

________ 3. Ways of instituting civil actions in criminal cases a. If without reservation, deemed instituted with criminal action Section 1. Institution of criminal and civil actions. (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense

CRIMINAL PROCEDURE
Garcia v. Florido There is no question that from a careful consideration of the allegations contained in the complaint in Civil Case No. 2850, the essential averments for a quasi-delictual action under Articles 2176-2194 of the New Civil Code are present, namely: a) act or omission of the private respondents; b) presence of fault or negligence or the lack of due care in the operation of the passenger bus No. 25 by respondent Pedro Tumala resulting in the collision of the bus with the passenger car; c) physical injuries and other damages sustained by petitioners as a result of the collision; d) existence of direct causal connection between the damage or prejudice and the fault or negligence of private respondents; and e) the absence of pre-existing contractual relations between the parties. The circumstance that the complaint alleged that respondents violated traffic rules in that the driver drove the vehicle "at a fast clip in a reckless, grossly negligent and imprudent manner in violation of traffic rules and without due regard to the safety of the passengers aboard the PU car" does not detract from the nature and character of the action, as one based on culpa aquiliana. The violation of traffic rules is merely descriptive of the failure of said driver to observe for the protection of the interests of others, that degree of care, precaution and vigilance which the circumstances justly demand, which failure resulted in the injury on petitioners. Certainly excessive speed in violation of traffic rules is a clear indication of negligence. Since the same negligent act resulted in the filing of the criminal action by the Chief of Police with the Municipal Court (Criminal Case No. 4960) and the civil action by petitioners, it is inevitable that the averments on the drivers' negligence in both complaints would substantially be the same. It should be emphasized that the same negligent act causing damages may produce a civil liability arising from a crime under Art. 100 of the Revised Penal Code or create an action for quasi-delict or culpa extra-contractual under Arts. 2176-2194 of the New Civil Code. This distinction has been amply explained in Barredo vs. Garcia, et al. (73 Phil. 607, 620-621). It is true that under Sec. 2 in relation to Sec. 1 of Rule 111 of the Revised Rules of Court which became effective on January 1, 1964, in the cases provided for by Articles 31, 33, 39 and 2177 of the Civil Code, an independent civil action entirely separate and distinct from the civil action, may be instituted by the injured party during the pendency of the criminal case, provided said party has reserved his right to institute it separately, but it should be noted, however, that neither Section 1 nor Section 2 of Rule 111 fixes a time limit when such reservation shall be made. In Tactaquin v. Palileo, where the reservation was made after the tort-feasor had already pleaded guilty and after the private prosecutor had entered his appearance jointly with the prosecuting attorney in the course of the criminal proceedings, and the tort-feasor was convicted and sentenced to pay damages to the offended party by final judgment in said criminal case, We ruled that such reservation is legally ineffective because the offended party cannot recover damages twice for the same act or omission of the defendant. We explained in Meneses vs. Luat that when the criminal action for physical injuries against the defendant did not proceed to trial as he pleaded guilty upon arraignment and the Court made no pronouncement on the matter or damages suffered by the injured party, the mere appearance of private counsel in representation of the offended party in said criminal case does not constitute such active intervention as could impart an intention to press a claim for damages in the same action, and, therefore, cannot bar a separate civil action for damages subsequently instituted on the same ground under Article 33 of the New Civil Code. In the case at bar, there is no question that petitioners never intervened in the criminal action instituted by the Chief of Police against respondent Pedro Tumala, much less has the said criminal action been terminated either by conviction or acquittal of said accused. It is, therefore, evident that by the institution of the present civil action for damages, petitioners have in effect abandoned their right to press recovery for damages in the criminal case, and have opted instead to recover them in the present civil case. As a result of this action of petitioners the civil liability of private respondents to the former has ceased to be involved in the criminal action. Undoubtedly an offended party loses his right to intervene in the prosecution of a criminal case, not only when he has waived the civil action or expressly reserved his right to institute, but also when he has actually instituted the civil action. For by either of such actions his interest in the criminal case has disappeared. As we have stated at the outset, the same negligent act causing damages may produce a civil liability arising from crime or create an action for quasi-delict or culpa extra-contractual. The former is a violation of the criminal law, while the latter is a distinct and independent negligence, having always had its own foundation and individuality. Some legal writers are of the view that in accordance with Article 31, the civil action based upon quasi-delict may proceed independently of the criminal proceeding for criminal negligence and regardless of the result of the latter. Hence, "the proviso in Section 2 of Rule 111 with reference to ... Articles 32, 33 and 34 of the Civil Code is contrary to the letter and spirit of the said articles, for these articles were drafted ... and are intended to constitute as exceptions to the general rule stated in what is now Section 1 of Rule 111. The proviso which is procedural, may also be regarded as an unauthorized amendment of substantive law, Articles 32, 33 and 34 of the Civil Code, which do not provide for the reservation required in the proviso." But in whatever way We view the institution of the civil action for recovery of damages under quasi-delict by petitioners, whether as one that should be governed by the provisions of Section 2 of Rule 111 of the Rules which require reservation by the injured party considering that by the institution of the civil action even before the commencement of the trial of the criminal case, petitioners have thereby foreclosed their right to intervene therein, or one where reservation to file the civil action need not be made, for the reason that the law itself (Article 33 of the Civil Code) already makes the reservation and the failure of the offended party to do so does not bar him from bringing the action, under the peculiar circumstances of the case, We find no legal justification for respondent court's order of dismissal.

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Maniago v. Ayson I. A. To begin with, 1 quite clearly requires that a reservation must be made to institute separately all civil actions for the recovery of civil liability, otherwise they will be deemed to have been instituted with the criminal case. Such civil actions are not limited to those which arise "from the offense charged," as originally provided in Rule III before the amendment of the Rules of Court in 1988. In other words the right of the injured party to sue separately for the recovery of the civil liability whether arising from crimes (ex delicto) or from quasi delict under Art. 2176 of the Civil Code must be reserved otherwise they will be deemed instituted with the criminal action. Thus Rule III, 1 of the Revised Rules of Criminal Procedure expressly provides: Sec. 1. Institution of criminal and civil actions. - When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action. Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused. B. There are statements in some cases implying that Rule III, 1 and 3 are beyond the rule making power of the Supreme Court under the Constitution. A careful examination of the cases, however, will show that approval of the filing of separate civil action for damages even though no reservation of the right to institute such civil action had been reserved rests on considerations other than that no reservation is needed. In Garcia v. Florido the right of an injured person to bring an action for damages even if he did not make a reservation of his action in the criminal prosecution for physical injuries through reckless imprudence was upheld on the ground that by bringing the civil action the injured parties had "in effect abandoned their right to press for recovery of damages in the criminal case. . . . Undoubtedly an offended party loses his right to intervene in the prosecution of a criminal case, not only when he has waived the civil action or expressly reserved his right to institute, but also when he has actually instituted the civil action. For by either of such actions his interest in the criminal case has disappeared." The statement that Rule III, 1 of the 1964 Rules is "an unauthorized amendment of substantive law, Articles 32, 33, and 34 of the Civil Code, which do not provide for the reservation" is not the ruling of the Court but only an aside, quoted from an observation made in the footnote of a decision in another case. Another case cited by private respondent in support of his contention that the civil case need not be reserved in the criminal case is Abellana v. Marave in which the right of persons injured in a vehicular accident to bring a separate action for damages was sustained despite the fact that the right to bring it separately was not reserved. But the basis of the decision in that case was the fact that the filing of the civil case was equivalent to a reservation because it was made after the decision of the City Court convicting the accused had been appealed. Pursuant to Rule 123, 7 of the 1964 Rules, this had the effect of vacating the decision in the criminal case so that technically, the injured parties could still reserve their right to institute a civil action while the criminal case was pending in the Court of First Instance. The statement "the right of a party to sue for damages independently of the criminal action is a substantive right which cannot be frittered away by a construction that could render it nugatory" without raising a "serious constitutional question" was thrown in only as additional support for the ruling of the Court. On the other hand, in Madeja v. Caro the Court held that a civil action for damages could proceed even while the criminal case for homicide through reckless imprudence was pending and did not have to await the termination of the criminal case precisely because the widow of the deceased had reserved her right to file a separate civil action for damages. We do not see how this case can lend support to the view of private respondent. In Jarantilla v. Court of Appeals the ruling is that the acquittal of the accused in the criminal case for physical injuries through reckless imprudence on the ground of reasonable doubt is not a bar to the filing of an action for damages even though the filing of the latter action was not reserved. This is because of Art. 29 of the Civil Code which provides that "when an accused is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted." This ruling obviously cannot apply to this case because the basis of the dismissal of the criminal case against the driver is the fact that the prosecution failed to prove its case as a result of its failure to make a formal offer of its evidence. Rule 132, 34 of the Revised Rules on Evidence provides that "The court shall consider no evidence which has not been formally offered. The purpose for which the evidence is offered must be specified." To the same effect are the holdings in Tayag, Sr. v. Alcantara, Bonite v. Zosa and Diong Bi Chu v. Court of Appeals. Since Art. 29 of the Civil Code authorizes the bringing of a separate civil action in case of acquittal on reasonable doubt and under the Revised Rules of Criminal procedure such action is not required to be reserved, it is plain that the statement in these cases that to require a reservation to be made would be to sanction an unauthorized amendment of the Civil Code provisions is a mere dictum. As already noted in connection with the case of Garcia v. Florido, that statement was not the ruling of the Court but only an observation borrowed from another case. The short of it is that the rulings in these cases are consistent with the proposition herein made that, on the basis of Rule III, 1-3, a civil action for the recovery of civil liability is, as a general rule, impliedly instituted with the criminal action, except only (1) when such action arising from the same act or omission, which is the subject of the criminal action, is waived; (2) the right to bring it separately is reserved or (3) such action has been instituted prior to the criminal action. Even if an action has not been reserved or it was brought before the institution of the criminal case, the acquittal of the accused will

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not bar recovery of civil liability unless the acquittal is based on a finding that the act from which the civil liability might arise did not exist because of Art. 29 of the Civil Code. Indeed the question on whether the criminal action and the action for recovery of the civil liability must be tried in a single proceeding has always been regarded a matter of procedure and, since the rule making power has been conferred by the Constitution on this Court, it is in the keeping of this Court. Thus the subject was provided for by G.O. No. 58, the first Rules of Criminal Procedure under the American rule. Sec. 107 of these Orders provided: The privileges now secured by law to the person claiming to be injured by the commission of an offense to take part in the prosecution of the offense and to recover damages for the injury sustained by reason of the same shall not be held to be abridged by the provisions of this order; but such person may appear and shall be heard either individually or by attorney at all stages of the case, and the court upon conviction of the accused may enter judgment against him for the damages occasioned by his wrongful act. It shall, however, be the duty of the promotor fiscal to direct the prosecution, subject to the right of the person injured to appeal from any decision of the court denying him a legal right. This was superseded by the 1940 Rules of Court, Rule 106 of which provided: Sec. 15. Intervention of the offended party in criminal action. Unless the offended party has waived the civil action or expressly reserved the right to institute it after the termination of the criminal case, and subject to the provisions of section 4 hereof, he may intervene, personally or by attorney, in the prosecution of the offense. This Rule was amended thrice, in 1964, in 1985 and lastly in 1988. Through all the shifts or changes in policy as to the civil action arising from the same act or omission for which a criminal action is brought, one thing is clear: The change has been effected by this Court. Whatever contrary impression may have been created by Garcia v. Florido and its progeny must therefore be deemed to have been clarified and settled by the new rules which require reservation of the right to recover the civil liability, otherwise the action will be deemed to have been instituted with the criminal action. Contrary to private respondent's contention, the requirement that before a separate civil action may be brought it must be reserved does not impair, diminish or defeat substantive rights, but only regulates their exercise in the general interest of orderly procedure. The requirement is merely procedural in nature. For that matter the Revised Penal Code, by providing in Art. 100 that any person criminally liable is also civilly liable, gives the offended party the right to bring a separate civil action, yet no one has ever questioned the rule that such action must be reserved before it may be brought separately. Indeed, the requirement that the right to institute actions under the Civil Code separately must be reserved is not incompatible with the independent character of such actions. There is a difference between allowing the trial of civil actions to proceed independently of the criminal prosecution and requiring that, before they may be instituted at all, a reservation to bring them separately must be made. Put in another way, it is the conduct of the trial of the civil action - not its institution through the filing of a complaint - which is allowed to proceed independently of the outcome of the criminal case. C. There is a practical reason for requiring that the right to bring an independent civil action under the Civil Code separately must be reserved. It is to avoid the filing of more than one action for the same act or omission against the same party. Any award made against the employer, whether based on his subsidiary civil liability under Art. 103 of the Revised Penal Code or his primary liability under Art. 2180 of the Civil Code, is ultimately recoverable from the accused. In the present case, the criminal action was filed against the employee, bus driver. Had the driver been convicted and found insolvent, his employer would have been held subsidiarily liable for damages. But if the right to bring a separate civil action (whether arising from the crime or from quasi delict) is reserved, there would be no possibility that the employer would be held liable because in such a case there would be no pronouncement as to the civil liability of the accused. In such a case the institution of a separate and independent civil action under the Civil Code would not result in the employee being held liable for the same act or omission. The rule requiring reservation in the end serves to implement the prohibition against double recovery for the same act or omission. As held in Barredo v. Garcia, the injured party must choose which of the available causes of action for damages he will bring. If he fails to reserve the filing of a separate civil action he will be deemed to have elected to recover damages from the bus driver on the basis of the crime. In such a case his cause of action against the employer will be limited to the recovery of the latter's subsidiary liability under Art. 103 of the Revised Penal Code. II. Nor does it matter that the action is against the employer to enforce his vicarious liability under Art. 2180 of the Civil Code. Though not an accused in the criminal case, the employer is very much a party, as long as the right to bring or institute a separate action (whether arising from crime or from quasi delict) is not reserved. The ruling that a decision convicting the employee is binding and conclusive upon the employer "not only with regard to its civil liability but also with regard to its amount because the liability of an employer cannot be separated but follows that of his employee" is true not only with respect to the civil liability arising from crime but also with respect to the civil liability under the Civil Code. Since whatever is recoverable against the employer is ultimately recoverable by him from the employee, the policy against double recovery requires that only one action be maintained for the same act or omission whether the action is brought against the employee or against his employer. Thus in Dulay v. Court of Appeals this Court held that an employer may be sued under Art. 2180 of the Civil Code and that the right to bring the action did not have to be reserved because, having been instituted before the criminal case against the employee, the filing of the civil action against the employer constituted an express reservation of the right to institute it separately.

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CRIMINAL PROCEDURE c. Separate civil action not allowed for violations of BP 22

Hyatt Industrial Manufacturing Corp. V. Asia Dynamic Electrix Corporation The foregoing rule was adopted from Circular No. 57-97 of this Court. It specifically states that the criminal action for violation of B.P. 22 shall be deemed to include the corresponding civil action. It also requires the complainant to pay in full the filing fees based on the amount of the check involved. Generally, no filing fees are required for criminal cases, but because of the inclusion of the civil action in complaints for violation of B.P. 22, the Rules require the payment of docket fees upon the filing of the complaint. This rule was enacted to help declog court dockets which are filled with B.P. 22 cases as creditors actually use the courts as collectors. Because ordinarily no filing fee is charged in criminal cases for actual damages, the payee uses the intimidating effect of a criminal charge to collect his credit gratis and sometimes, upon being paid, the trial court is not even informed thereof. The inclusion of the civil action in the criminal case is expected to significantly lower the number of cases filed before the courts for collection based on dishonored checks. It is also expected to expedite the disposition of these cases. Instead of instituting two separate cases, one for criminal and another for civil, only a single suit shall be filed and tried. It should be stressed that the policy laid down by the Rules is to discourage the separate filing of the civil action. The Rules even prohibit the reservation of a separate civil action, which means that one can no longer file a separate civil case after the criminal complaint is filed in court. The only instance when separate proceedings are allowed is when the civil action is filed ahead of the criminal case. Even then, the Rules encourage the consolidation of the civil and criminal cases. We have previously observed that a separate civil action for the purpose of recovering the amount of the dishonored checks would only prove to be costly, burdensome and timeconsuming for both parties and would further delay the final disposition of the case. This multiplicity of suits must be avoided. Where petitioners rights may be fully adjudicated in the proceedings before the trial court, resort to a separate action to recover civil liability is clearly unwarranted. In view of this special rule governing actions for violation of B.P. 22, Article 31 of the Civil Code cited by the trial court will not apply to the case at bar. The pendency of the civil action before the court trying the criminal case bars the filing of another civil action in another court on the ground of litis pendentia. The elements of litis pendentia as a ground for dismissal of an action are: (1) identity of parties, or at least such parties who represent the same interest in both actions; (2) identity of rights asserted and relief prayed for, the relief being founded on the same facts; and (3) the identity, with respect to the two preceding particulars in the two cases, is such that any judgment that may be rendered in the pending case, regardless of which party is successful, would amount to res judicata in the other.

The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation. b) Prohibition against double recovery 2) Prior institution of civil action When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action. a) When civil action is suspended b) When civil action may be consolidated with subsequent criminal action If the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action without prejudice to the right of the prosecution to crossexamine the witnesses presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil actions shall be tried and decided jointly.
Naguiat v. IAC Under the aforequoted provision, the civil action that may be consolidated with a criminal action, is one for the recovery of civil liability arising from the criminal offense, or ex delicto. In the case at bar, the civil action filed by the petitioner was for specific performance with damages. The main relief sought in the latter case, i.e., the delivery of the certificates of title to the lots which petitioner had allegedly fully paid for, was grounded on the Contract to Sell between the petitioner and the private respondent. Hence the civil action filed by the petitioner was for the enforcement of an obligation arising from a contract, or ex contractu and not one for the recovery of civil liability arising from an offense; hence, the law invoked by the petitioner is inapplicable. But, as held in Canos v. Peralta, the consolidation of a criminal action with a civil action arising not ex delicto, may still be

1) Waiver of civil action or reservation to institute it separately a) When to reserve

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done, based upon the express authority of Section 1, Rule 31 of the Rules of Court, which provides: Section 1. Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. In Canos v. Peralta, where the Court sustained the order of a trial court to consolidate a civil action (an action for the recovery of wage differential, overtime and termination pay, plus damages) with a criminal action (for violation of the Minimum Wage Law), it was held that: A Court may order several actions pending before it to be tried together where they arise from the same act, event or transaction, involve the same or like issues, and depend largely or substantially on the same evidence, provided that the court has jurisdiction over the cases to be consolidated and that a joint trial will not give one party an undue advantage or prejudice the substantial rights of any of the parties... The obvious purpose of the above rule is to avoid multiplicity of suits to guard against oppression and abuse, to prevent delays, to clear congested dockets, to simplify the work of the trial court; in short the attainment of justice with the least expense and vexation to the parties litigants. In the cases at bar, the nature of the issues involved, at least, the factual issues in the civil and criminal actions are almost identical, i.e., whether or not petitioner had fully paid for the lots he purchased from the private respondents, so as to entitle him to the delivery of the certificates of title to said lots. The evidence in both cases, likewise would virtually be the same, which are, the Contract to Sell, the letter which contains the conditions for the purchase of the lots and, to which petitioner allegedly affixed his conformity, the official receipts for the alleged payments made by the petitioner, and other related documents. Based on the foregoing, and considering that the criminal action filed is one for violation of a special law where, irrespective of the motives, mere commission of the act prohibited by said special law, constitutes the offense, then the intervention of the petitioner's counsel, as private prosecutor in the criminal action, will not prejudice the substantial rights of the accused.

CRIMINAL PROCEDURE merits. The suspension shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action without prejudice to the right of the prosecution to crossexamine the witnesses presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil actions shall be tried and decided jointly. During the pendency of the criminal action, the running of the period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled. (n) The extinction of the penal action does not carry with it extinction of the civil action. However, the civil action based on delict shall be deemed extinguished if there is a finding in a final judgment in the criminal action that the act or omission from which the civil liability may arise did not exist. (2a) Section 3. When civil action may proceeded independently. In the cases provided for in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action. (3a) Reckless imprudence
Corpus v. Paje Criminal negligence, that is, reckless imprudence, is not one of the three crimes mentioned in Article 33 of the Civil Code which authorizes the institution of an independent civil action, that is, of an entirely separate and distinct civil action for damages, which shall proceed independently of the criminal prosecution and shall be proved only by a preponderance of evidence. Said article mentions only the crimes of defamation, fraud (estafa) and physical injuries. Although in the case of Dyogi, et al. vs. Yatco, et al., G.R. No. L-9623, January 22, 1957, this Court held that the term "physical injuries" used in article 33 of the Civil Code includes homicide, it is to be borne in mind that the charge against Felardo Paje was for reckless imprudence resulting in homicide, and not for homicide and physical injuries. In the case of People vs. Buan, G.R. No. L-25366, March 29, 1968, Mr. Justice J.B.L. Reyes, speaking for the Supreme Court, said that the "offense of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be

d. Separate, simultaneous, and independent civil actions Section 2. When separate civil action is suspended. After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action. If the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the

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punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty; it does not qualify the substance of the offense." It is, therefore, clear that the charge against Felardo Paje was not for homicide but for reckless imprudence, that is, criminal negligence resulting in homicide (death of Clemente Marcia) and double physical injuries suffered by two other persons. As reckless imprudence or criminal negligence is not one of the three crimes mentioned in Article 33 of the Civil Code, there is no independent civil action for damages that may be instituted in connection with said offense. Hence, homicide through reckless imprudence or criminal negligence comes under the general rule that the acquittal of the defendant in the criminal action is a bar to his civil liability based upon the same criminal act notwithstanding that the injured party reserved his right to institute a separate civil action (Chantangco vs. Abaroa, supra). In the language of the Rules of Court (Rule 111, Sec. 3) the extinction of the criminal action by acquittal of the defendant on the ground that the criminal act charged against him did not exist, necessarily extinguished also the civil action for damages based upon the same act. (2) Assuming, arguendo, that the civil action for damages for the death of Clemente Marcia was based upon a quasidelict, the trial court's finding that on that basis the action had prescribed is correct. An action upon a quasi-delict must be instituted within four (4) years (Article 1146, Civil Code). The four-year prescriptive period began to run from the day the quasi-delict was committed, or from December 23, 1956, and the running of the said period was not interrupted by the institution of the criminal action for reckless imprudence. (Paulan vs. Sarabia, G.R. No. L-10542, July 31, 1958.) 1062).

Failure to make reservation to file separate civil action

Reyes v. Sempio-Diy the failure of petitioner to make a reservation to file a separate civil action did not foreclose her right to file said separate complaint for damages. Under Article 33 of the Civil Code there is no requirement that as a condition to the filing of a separate civil action for damages a reservation to file said civil action be first made in the criminal case and such reservation is not necessary, the provision of Rule 111, Section 2 notwithstanding. Mendoza vs. Arrieta, 91 SCRA 113, where this Court, quoting from Garcia vs. Flerido, 52 SCRA 420, said: . . . Hence, 'the proviso in Section 2 of Rule 111 with reference to ... Articles 32, 33 and 34 of the Civil Code is contrary to the letter and spirit of the said articles, for these articles were drafted . . . and are intended to constitute as exceptions to the general rule stated in what is now Section 1 of Rule 111. The proviso, which is procedural, may also be regarded as an unauthorized amendment of substantive law, Articles 32, 33 and 34 of the Civil Code, which do not provide for the reservation required in the proviso.

Violation of constitutional rights and liberties

Aberca v. Ver Article 32 of the Civil Code which renders any public officer or employee or any private individual liable in damages for violating the Constitutional rights and liberties of another, as enumerated therein, does not exempt the respondents from responsibility. Only judges are excluded from liability under the said article, provided their acts or omissions do not constitute a violation of the Penal Code or other penal statute. We do not find merit in respondents' suggestion that plaintiffs' cause of action is barred by the suspension of the privilege of the writ of habeas corpus. Respondents contend that "Petitioners cannot circumvent the suspension of the privilege of the writ by resorting to a damage suit aimed at the same purpose-judicial inquiry into the alleged illegality of their detention. While the main relief they ask by the present action is indemnification for alleged damages they suffered, their causes of action are inextricably based on the same claim of violations of their constitutional rights that they invoked in the habeas corpus case as grounds for release from detention. Were the petitioners allowed the present suit, the judicial inquiry barred by the suspension of the privilege of the writ will take place. The net result is that what the courts cannot do, i.e. override the suspension ordered by the President, petitioners will be able to do by the mere expedient of altering the title of their action." We do not agree. We find merit in petitioners' contention that the suspension of the privilege of the writ of habeas corpus does not destroy petitioners' right and cause of action for damages for illegal arrest and detention and other violations of their constitutional rights. The suspension does not render valid an otherwise illegal arrest or detention. What is suspended is

No need for reservation if civil action based on culpa aquiliana

Bordas v. Canadalla Section 2, Rule III of the Rules of Court on independent civil actions has been amended on January 1, 1985 to read as follows: In the cases provided for in Article 32, 33 and 34 of the Civil Code of the Philippines, an independent civil action entirely separate and distinct from the criminal action may be brought by the injured party during the pendency of the criminal case. Such civil action shall Proceed independently of the criminal prosecution, and shall require only a preponderance of evidence. As revised, it should be noted that Section 2, Rule III, eliminated not only the requirement that the right to institute such independent civil actions be reserved by the complainant but more significantly eliminated Articles 31 and 2177 of the Civil Code from its purview. This is so because the civil actions contemplated in Articles 31 and 2177 are not civil actions ex delicto. Moreover, said articles by themselves, authorize the institution of a civil action for damages based on quasi-delict which may proceed independently of the criminal proceeding for negligence and regardless of the result of the latter. (Articles 31 and 2177, Civil Code; Corpus vs. Paje, 28 SCRA

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merely the right of the individual to seek release from detention through the writ of habeas corpus as a speedy means of obtaining his liberty. Moreover, as pointed out by petitioners, their right and cause of action for damages are explicitly recognized in P.D. No. 1755 which amended Article 1146 of the Civil Code by adding the following to its text: However, when the action (for injury to the rights of the plaintiff or for a quasi-delict) arises from or out of any act, activity or conduct of any public officer involving the exercise of powers or authority arising from Martial Law including the arrest, detention and/or trial of the plaintiff, the same must be brought within one (1) year. Petitioners have a point in contending that even assuming that the suspension of the privilege of the writ of habeas corpus suspends petitioners' right of action for damages for illegal arrest and detention, it does not and cannot suspend their rights and causes of action for injuries suffered because of respondents' confiscation of their private belongings, the violation of their right to remain silent and to counsel and their right to protection against unreasonable searches and seizures and against torture and other cruel and inhuman treatment. But this rule is not without exception. Thus, Section 2 (c) of Rule 111 of the Rules of Court provides: Extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration from a final judgment that the fact from which the civil action might arise did not exist.

Dual character of a crime

Occena v. Icamina Civil obligations arising from criminal offenses are governed by Article 100 of the Revised Penal Code which provides that "(E)very person criminally liable for a felony is also civilly liable," in relation to Article 2177 of the Civil Code on quasi-delict, the provisions for independent civil actions in the Chapter on Human Relations and the provisions regulating damages, also found in the Civil Code. Underlying the legal principle that a person who is criminally liable is also civilly liable is the view that from the standpoint of its effects, a crime has dual character: (1) as an offense against the state because of the disturbance of the social order; and (2) as an offense against the private person injured by the crime unless it involves the crime of treason, rebellion, espionage, contempt and others wherein no civil liability arises on the part of the offender either because there are no damages to be compensated or there is no private person injured by the crime. In the ultimate analysis, what gives rise to the civil liability is really the obligation of everyone to repair or to make whole the damage caused to another by reason of his act or omission, whether done intentional or negligently and whether or not punishable by law.

Independent civil action

Castillo v. CA There is no dispute that the subject action for damages, being civil in nature, is separate and distinct from the criminal aspect, necessitating only a preponderance of evidence. According to a number of cases, a quasi-delict or culpa aquiliana is a separate legal institution under the Civil Code, with a substantively all its own, and individuality that is entirely apart and independent from a delict or crime. A distinction exists between the civil liability arising from a crime and the responsibility for quasidelicts or culpa extra-contractual. The same negligence causing damages may produce civil liability arising from a crime under the Penal Code, or create an action for quasidelictos or culpa extra-contractual under the Civil Code. Therefore, the acquittal or conviction in the criminal case is entirely irrelevant in the civil case. In the case of Azucena v. Potenciano, L-14028, June 30, 1962, 5 SCRA 468, 470-471, this Court held: ... in the criminal case for reckless imprudence resulting in serious physical injuries ..., the judgment of acquittal does not operate to extinguish the civil liability of the defendant based on the same incident. The civil action is entirely independent of the criminal case according to Articles 33 and 2177 of the Civil Code. There can be no logical conclusion than this, for to subordinate the civil action contemplated in the said articles to the result of the criminal prosecution whether it be conviction or acquittal would render meaningless the independent character of the civil action and the clear injunction in Article 31, that his action may proceed independently of the criminal proceedings and regardless of the result of the latter.

e. Effect of active participation

Bonite v. Zosa Lastly, that petitioners actively participated in the prosecution of the criminal case does not bar them from filing an independent and separate civil action for damages under Article 29 of the Civil Code. The civil action based on criminal liability and a civil action under Article 29 are two separate and independent actions.

________ 4. Effect of extinction of penal action Section 4. Effect of death on civil actions. The death of the accused after arraignment and during the pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the independent civil action instituted under section 3 of this Rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued against the estate or legal representative of the accused after proper substitution or against said estate, as the case may be. The heirs of the accused may be substituted for the deceased without requiring the 37 | P L A T O N

CRIMINAL PROCEDURE appointment of an executor or administrator and the court may appoint a guardian ad litem for the minor heirs. The court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirty (30) days from notice. A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in these rules for prosecuting claims against the estate of the deceased. If the accused dies before arraignment, the case shall be dismissed without prejudice to any civil action the offended party may file against the estate of the deceased. (n)
Marcia v. CA Section 2 of Rule 111 merely refers to the institution of an independent civil action without waiting for the filing or termination of the criminal action and requires only preponderance of evidence to prosper and not proof beyond reasonable doubt as required for conviction in criminal cases. However, an acquittal based on the finding that the facts upon which civil liability did not exist, bars the filing of an independent civil action if it is based on the crime. As early as 1952, We have held in the case of Tan vs. Standard Vacuum Oil Company 91 Phil. 672, that "the acquittal of the accused from the criminal charge will not necessarily extinguish the civil liability unless the court declares in the judgment that the fact from which the civil liability might arise did not exist. Where the court states 'that the evidence throws no light on the cause of fire and that it was an unfortunate accident for which the accused cannot be held responsible,' this declaration fits well into the exception of the rule which exempts the accused, from civil liability. " Likewise, in Albornoz vs. Albornoz, 98 Phil. 785, it was the ruling that "where the judgment in a criminal action contains an express declaration that the basis of claimant's action did not exist, the latter's action for civil liability is barred under section 1 (d) Rule 107 of the Rules of Court." And, in De Mesa vs. Priela 24 SCRA 582, this Court, speaking through then Chief Justice Roberto Concepcion, ruled that extinction of the penal action does not carry with it extinction of the civil, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. In other cases, the person entitled to the civil action may institute it in the jurisdiction and in the manner provided by law against the person who may be liable for restitution of the thing and reparation or indemnity for the damage suffered (Sec. 3 [c], Rule 111, Rules of Court.)" Bunag, Jr. V. CA Generally, the basis of civil liability from crime is the fundamental postulate of our law that every person criminally liable for a felony is also civilly liable. In other words, criminal liability will give rise to civil liability ex delicto only if the same felonious act or omission results in damage or injury to another and is the direct and proximate cause thereof. Hence, extinction of the penal action does not carry with it the extinction of civil liability unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil might arise did not exist. In the instant case, the dismissal of the complaint for forcible abduction with rape was by mere resolution of the fiscal at the preliminary investigation stage. There is no declaration in a final judgment that the fact from which the civil case might arise did not exist. Consequently, the dismissal did not in any way affect the right of herein private respondent to institute a civil action arising from the offense because such preliminary dismissal of the penal action did not carry with it the extinction of the civil action. Jarantilla v. CA Furthermore, in the present case the civil liability sought to be recovered through the application of Article 29 is no longer that based on or arising from the criminal offense. There is persuasive logic in the view that, under such circumstances, the acquittal of the accused foreclosed the civil liability based on Article 100 of the Revised Penal Code which presupposes the existence of criminal liability or requires a conviction of the offense charged. Divested of its penal element by such acquittal, the causative act or omission becomes in effect a quasi-delict, hence only a civil action based thereon may be instituted or prosecuted thereafter, which action can be proved by mere preponderance of evidence. Complementary to such considerations, Article 29 enunciates the rule, as already stated, that a civil action for damages is not precluded by an acquittal on reasonable doubt for the same criminal act or omission. Since this action is based on a quasi-delict, the failure of the respondent to reserve his right to file a separate civil case and his intervention in the criminal case did not bar him from filing such separate civil action for damages. 30 The Court has also heretofore ruled in Elcano vs. Hill that ... a separate civil action lies against the offender in a criminal act whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is also actually charged criminally, to recover damages on both scores; and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In other words, the extinction of civil liability referred to in Par. (c) of Sec. 3 Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code; whereas the civil liability for the same act considered as a quasi-delict only and not as a crime 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... The aforecited case of Lontoc vs. MD Transit & Taxi Co., Inc., et al. involved virtually the same factual situation. The Court, in arriving at the conclusion hereinbefore quoted, expressly declared that the failure of the therein plaintiff to reserve his right to file a separate civil case is not fatal; that his intervention in the criminal case did not bar him from filing a separate civil action for damages, especially considering that the accused therein was acquitted because his guilt was not

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proved beyond reasonable doubt; that the two cases were anchored on two different causes of action, the criminal case being on a violation of Article 365 of the Revised Penal Code while the subsequent complaint for damages was based on a quasi-delict; and that in the judgment in the criminal case the aspect of civil liability was not passed upon and resolved. Consequently, said civil case may proceed as authorized by Article 29 of the Civil Code. the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. It comes into play generally in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case. More simply, for the court to appreciate the pendency of a prejudicial question, the law, in no uncertain terms, requires the concurrence of two essential requisites, to wit: a) The civil action involves an issue similar or intimately related to the issue raised in the criminal action; and b) The resolution of such issue determines whether or not the criminal action may proceed.

________ 5. Judgment in civil action not a bar Section 5. Judgment in civil action not a bar. A final judgment rendered in a civil action absolving the defendant from civil liability is not a bar to a criminal action against the defendant for the same act or omission subject of the civil action. (4a) ________ 6. Prejudicial question a) Elements Section 7. Elements of prejudicial question. The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed. (5a)
Abunado v. People A prejudicial question has been defined as one based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. The rationale behind the principle of suspending a criminal case in view of a prejudicial question is to avoid two conflicting decisions. Ching v. CA As defined, a prejudicial question is one that arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of

Pendency of civil case for declaration of nullity of marriage vis--vis criminal case for bigamy
Marbella-Bobis v. Bobis The issue to be resolved in this petition is whether the subsequent filing of a civil action for declaration of nullity of a previous marriage constitutes a prejudicial question to a criminal case for bigamy. A prejudicial question is one which arises in a case the resolution of which is a logical antecedent of the issue involved therein. It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused. It must appear not only that the civil case involves facts upon which the criminal action is based, but also that the resolution of the issues raised in the civil action would necessarily be determinative of the criminal case. Consequently, the defense must involve an issue similar or intimately related to the same issue raised in the criminal action and its resolution determinative of whether or not the latter action may proceed. Its two essential elements are: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed. A prejudicial question does not conclusively resolve the guilt or innocence of the accused but simply tests the sufficiency of the allegations in the information in order to sustain the further prosecution of the criminal case. A party who raises a prejudicial question is deemed to have hypothetically admitted that all the essential elements of a crime have been adequately alleged in the information, considering that the prosecution has not yet presented a single evidence on the indictment or may not yet have rested its case. A challenge of the allegations in the information on the ground of prejudicial question is in effect a question on the merits of the criminal charge through a non-criminal suit.

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Article 40 of the Family Code, which was effective at the time of celebration of the second marriage, requires a prior judicial declaration of nullity of a previous marriage before a party may remarry. The clear implication of this is that it is not for the parties, particularly the accused, to determine the validity or invalidity of the marriage. Whether or not the first marriage was void for lack of a license is a matter of defense because there is still no judicial declaration of its nullity at the time the second marriage was contracted. It should be remembered that bigamy can successfully be prosecuted provided all its elements concur two of which are a previous marriage and a subsequent marriage which would have been valid had it not been for the existence at the material time of the first marriage. Land Bank of the Philippines v. Jacinto A prejudicial question generally exists in a situation where a civil action and a criminal action are both pending, and there exists in the former an issue that must be preemptively resolved before the latter may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case. The elements of a prejudicial question are provided under Section 7, Rule 111 of the Revised Rules of Criminal Procedure, as amended, as follows: (i) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (ii) the resolution of such issue determines whether or not the criminal action may proceed. A prejudicial question is understood in law as that which must precede the criminal action and which requires a decision before a final judgment can be rendered in the criminal action with which said question is closely connected. Not every defense raised in a civil action will raise a prejudicial question to justify suspension of the criminal action. The defense must involve an issue similar or intimately related to the same issue raised in the criminal case and its resolution should determine whether or not the latter action may proceed. If the resolution of the issue in the civil action will not determine the criminal responsibility of the accused in the criminal action based on the same facts, or if there is no necessity that the civil case be determined first before taking up the criminal case, the civil case does not involve a prejudicial question. Neither is there a prejudicial question if the civil and the criminal action can, according to law, proceed independently of each other. issue which must be preemptively resolved before the criminal action may proceed because howsoever the issue raised in the civil action is resolved would be determinative of the guilt or innocence of the accused in the criminal case. A prejudicial question is defined as: x x x one that arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. The relationship between the offender and the victim is a key element in the crime of parricide, which punishes any person who shall kill his father, mother, or child, whether legitimate or illegitimate, or any of his ascendants or descendants, or his spouse. The relationship between the offender and the victim distinguishes the crime of parricide from murder or homicide. However, the issue in the annulment of marriage is not similar or intimately related to the issue in the criminal case for parricide. Further, the relationship between the offender and the victim is not determinative of the guilt or innocence of the accused. The issue in the civil case for annulment of marriage under Article 36 of the Family Code is whether petitioner is psychologically incapacitated to comply with the essential marital obligations. The issue in parricide is whether the accused killed the victim. In this case, since petitioner was charged with frustrated parricide, the issue is whether he performed all the acts of execution which would have killed respondent as a consequence but which, nevertheless, did not produce it by reason of causes independent of petitioners will. At the time of the commission of the alleged crime, petitioner and respondent were married. The subsequent dissolution of their marriage, in case the petition in Civil Case No. 04-7392 is granted, will have no effect on the alleged crime that was committed at the time of the subsistence of the marriage. In short, even if the marriage between petitioner and respondent is annulled, petitioner could still be held criminally liable since at the time of the commission of the alleged crime, he was still married to respondent. We cannot accept petitioners reliance on Tenebro v. Court of Appeals that the judicial declaration of the nullity of a marriage on the ground of psychological incapacity retroacts to the date of the celebration of the marriage insofar as the vinculum between the spouses is concerned x x x. First, the issue in Tenebro is the effect of the judicial declaration of nullity of a second or subsequent marriage on the ground of psychological incapacity on a criminal liability for bigamy. There was no issue of prejudicial question in that case. Second, the Court ruled in Tenebro that [t]here is x x x a recognition written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. In fact, the Court declared in that case that a declaration of the nullity of the second marriage on the ground of psychological incapacity

Annulment of marriage not a prejudicial question in a criminal case for parricide

Pimentel v. Pimentel Annulment of Marriage is not a Prejudicial Question in Criminal Case for Parricide Further, the resolution of the civil action is not a prejudicial question that would warrant the suspension of the criminal action. There is a prejudicial question when a civil action and a criminal action are both pending, and there exists in the civil action an

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is of absolutely no moment insofar as the States penal laws are concerned. made "at any time before the prosecution rests." Prejudicial questions are regulated by Rule 111 of the Rules of Court, as follows: "SEC. 5. Elements of prejudicial question. -- The two (2) essential elements of a prejudicial question are: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed." "SEC. 6. Suspension by reason of prejudicial question. -- A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the fiscal or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests." True, the Motion to Suspend the criminal case on the ground that a prejudicial question existed was raised "before the prosecution rest[ed]." However, the peculiar circumstances of this case clearly show that it was merely a ploy to delay the resolution of the criminal case and vex the already overloaded court system with an unnecessary case.

b) Suspension of criminal action Section 6. Suspension by reason of prejudicial question. A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests. (6a)
De Zuzuarregui v. Villarosa For a prejudicial question in a civil case to suspend a criminal action, it must appear not only that said civil case involves facts intimately related to those upon which the criminal prosecution would be based, but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. The rationale behind the principle of prejudicial question is to avoid two (2) conflicting decisions. Thus, for a civil action to be considered prejudicial to a criminal case as to cause the suspension of the criminal proceedings until the final resolution of the civil case, the following requisites must be present: (1) the civil case involves facts intimately related to those upon which the criminal prosecution would be based; (2) in the resolution of the issue or issues raised in the civil action, the guilt or innocence of the accused would necessarily be determined; and (3) jurisdiction to try said question must be lodged in another tribunal. If the resolution of the issue in the civil action will not determine the criminal responsibility of the accused in the criminal action based on the same facts, or there is no necessity that the civil case be determined first before taking up the criminal case, the civil case does not involve a prejudicial question. Neither is there a prejudicial question if the civil and the criminal action can, according to law, proceed independently of each other. As stated, the determination of whether the proceedings may be suspended on the basis of a prejudicial question rests on whether the facts and issues raised in the pleadings in the civil case are so related with the issues raised in the criminal case such that the resolution of the issues in the civil case would also determine the judgment in the criminal case. First Pruducers Holdings Corporation v. Co Echoing the appellate courts position, respondent maintains that the issue of ownership of the Manila Polo Club share, which was raised in the civil action, constitutes a prejudicial question warranting the suspension of the criminal case for estafa. He argues that his guilt or innocence may be determined only after the issue of ownership has been resolved. He further contends that the prejudicial question was seasonably raised because the Rules provide that it may be

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