rule 110 - inigo

Review on the 2000 Revised Rules on Criminal Procedure (2002 Edition)<draft copy; pls. check for errors>

Rule 110Prosecution of

Offenses

Rule 110PROSECUTION OF OFFENSES

Q: How are criminal cases or actions instituted?A: Section 1, Rule 110.

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 complaints 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 of the period of prescription of the offense charged unless otherwise provided in special laws. (1a)

The language has been changed no? If you try to compare it with the old Rules, merong major changes, meron man ding pareho. The language is now simplier.

Q: Is there a difference between commencement of criminal action and institution of criminal action?

A: Yes. When you say “commencement”, generally it is already in the court once it is filed in court. But “institution” is earlier. When you file a complaint with the fiscal’s office, it is already an institution.

Q: Is preliminary investigation required in all criminal cases? Because there are some criminal cases which do not require preliminary investigation.

A: Generally, all RTC cases require preliminary investigation. But right now under the new rules, some cases triable by the MTC may also require preliminary investigation.

For example in the RTC, more than 6 years, kailangan may preliminary investigation yan. Under Section 1, from the moment you file a complaint with the proper officer for the purpose of conducting a preliminary investigation, it is already institution.

Q: Who are these officers referred to?A: They are mentioned in Section 2, Rule 112:

SEC. 2. Officers authorized to conduct preliminary investigations. –The following may conduct preliminary investigations:(a) Provincial or City Prosecutors and their assistants;(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;(c) National and Regional State Prosecutors; and (d) Other officers as may be authorized by law.Their authority to conduct preliminary investigations shall include all

crimes cognizable by the proper court in their respective territorial jurisdictions. (2a)

Q: How about those other offenses which DO NOT require preliminary investigation?A: Under the new rules, yung below 4 years and 2 months ang penalty – they are

triable by the MTC. (If the penalty is 4 years, 2 months and 1 day, it requires preliminary investigation.)

Q: How do you institute them? Like slight physical injuries…A: You have two (2) options:

1. File a complaint with the prosecutor’s office in the city or provincial who will now file the case in court; or

2. Kung gusto mo, direct filing. You can file the complaint directly to the MTC. Like sa munisipyo, police man ang mag-file ba.

Lakas AtenistaAteneo de Davao University College of Law

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However in Davao City we do not see that because under the rules, in Metro Manila and other chartered cities, the complaint shall always be filed with the office of the prosecutor unless the charter of the city provides otherwise.

So again, the complaint can be filed either in the MTC in the province or office of the fiscal merely for preliminary investigation. Unlike in chartered cities na puro fiscals lang ang authorized to conduct preliminary investigation. For example: Murder, the police can file a complaint for murder before the MTC of Sta. Cruz, Davao del Sur. That is not for trial but only for preliminary investigation because the MTC of Sta. Cruz has no power to try a murder case.

The institution of the criminal action shall interrupt the running of the period of prescription of the offense charged unless otherwise provided in special laws. (last paragraph, Section 1, Rule 110)

QUESTION: Does the filing of the complaint with the prosecutor’s office interrupt the running of the prescriptive period of the crime?

In the old case of People vs. del Rosario (1964), SC: No. When a complaint is filed in the municipal court only for the purpose of preliminary investigation, it does not interrupt the running of the prescriptive period. What interrupts is the filing of the complaint in court which has jurisdiction to try the case.

That is reiterated 3 years later in the case of People vs. Coquia. The SC modified it in the case of People vs. Olarte where a complaint for murder is filed in the MTC for preliminary investigation. The issue is: Is the running of the prescriptive period interrupted? SC: Yes, abandoning the case of Coquia and del Rosario. Why? Because the Penal Code says, the filing of the complaint interrupt the running of the prescriptive period. Article 91 of the RPC does not distinguish whether the filing is for trial or merely for preliminary investigation. However the SC said here, the complaint is filed in court for preliminary investigation. If it is filed in the fiscal’s office also for preliminary investigation, Hindi [does not interrupt]!! “Court” not “Fiscal”. That is the original ruling.

However in 1983 in the case of Francisco vs. CA, the SC made it total na: the filing of the complaint whether in the MTC or the fiscal’s office for preliminary investigation is sufficient to interrupt the running of the prescriptive period. However, in 1985 when the rules were revised, the SC rejected the ruling in the Francisco case: the filing of the complaint in the fiscal’s office does not interrupt the running of the prescriptive period. But in 1988, in-amend na naman ang rules: the filing of the complaint in the fiscal’s office is sufficient to interrupt the running of the prescriptive period.

And here comes the 1992 case of Zaldivia vs. Reyes Sr. (211 SCRA 277) which was a criminal case covered by the Summary Rules.

ZALDIVIA vs. REYES SR.211 SCRA 277

FACTS: It was a violation of a municipal ordinance. Arresto Menor lang yan e. F-in-ile sa fiscal’s office. The fiscal is relaxed because according to him: the filing of the case with the fiscal’s office is sufficient to interrupt the running of the prescriptive period. So, relax siya… he took his time.

F-in-ile niya (fiscal) sa court after 3 months. Pag-file niya, motion to quash: “Prescribed!” Fiscal: “Hindee! When the case is filed with the fiscal’s office, the running of prescriptive period is interrupted!”

HELD: You (fiscal) are wrong. The filing of this case before your office did not interrupt the running of the prescriptive period. You should have filed that on time before the court.


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REASON: You look at the first paragraph of Section 1 (1988 Rules): “in cases not covered by the Rules of Summary Procedure…” So, that rule only applies in cases not covered by the Summary Rules. But the case at bar is covered by the Summary Rules precisely because it is only arresto menor.

Therefore, when the case is covered by the Rules of Summary Procedure, the filing of the case with the fiscal’s office does not interrupt the running of the prescriptive period (Zaldivia vs. Reyes, Jr, 211 SCRA 277). It should be the filing of the case before the court which will interrupt. So, klaro yan until the 1998 case of

REODICA vs. COURT OF APPEALS292 SCRA 87, Davide, Jr. J. (choy!)

FACTS: The charge here was slight physical injuries through reckless imprudence which is actually punishable by arresto menor. It was filed with the fiscal’s office within 2 months but it was filed in the court beyond 2 months. And definitely, it is covered by the Summary Procedure. In Zaldivia case, the filing in the fiscal’s office interrupts the running of the prescriptive period.

NOTE: Remember, the case of Zaldivia involved a violation of an ordinance.

HELD: But in the case at bar, this is a felony under the Penal Code. [Dean I: Ginawan pa ng distinction!] If it is a felony, the filing with the fiscal’s office is sufficient to interrupt the running of the prescriptive period even if it is covered by the Summary Rules. But, if it is a light offense punished by a special law like an ordinance and therefore covered by the Summary Rules, then the filing in the fiscal’s office does not interrupt the running of the prescriptive period.

So I start to wonder: Saan ba nanggaling ‘yung distinction na ‘yun? The SC cited Act 3326 which is the law governing prescription of crimes punished by special laws. Whereas, Article 90 of the RPC refers to prescription of felonies under the Penal Code. And under Act 3326, it is very clear that the prescription period for the crime (punished by a special law) is interrupted only upon judicial proceeding – filing in the court.

Ayun pala! Akala ko the Zaldivia case settled the rule after all. Meron pa palang Reodica.

The SC said: The revised rules of Summary Procedure “cannot be taken to mean that the prescriptive period is interrupted only by the filing of a complaint or information directly with said courts. It must be stressed that prescription in criminal cases is a matter of substantive law. Pursuant to Section 5(5), Article VIII of the Constitution, this Court, in the exercise of its rule-making power, is not allowed to diminish, increase or modify substantive rights. Hence, in case of conflict between the Rule on Summary Procedure promulgated by this Court and the Revised Penal Code, the latter prevails.” (Reodica vs. CA, supra)

Yan! When I was reading this case, I said, what happened to Zaldivia case? Was it reversed? SC: No! No! We never reversed Zaldivia. “Neither does Zaldivia control in this instance. It must be recalled that what was involved therein was a violation of a municipal ordinance; thus, the applicable law was not Article 91 of the Revised Penal Code, but Act. No. 3326, x x x x x Under, Section 2 thereof, the period of prescription is suspended only when judicial proceedings are instituted against the guilty party. Accordingly, this Court held that the prescriptive period was not interrupted by the filing of the complaint with the Office of the Provincial Prosecutor, as such did not constitute a judicial proceeding; what could have tolled the prescriptive period there was only the filing of the information in the proper court. In the instant case, as the offenses involved are covered by the Revised Penal Code, Article 91 thereof and the rulings in Francisco and Cuaresma apply. Thus, the prescriptive period for the quasi offenses in question was interrupted by the filing of the


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complaint with the fiscal's office three days after the vehicular mishap and remained tolled pending the termination of this case. We cannot, therefore, uphold petitioner's defense of prescription of the offenses charged in the information in this case” (Reodica vs. CA, supra).

Yan! And I think the Reodica case is now incorporated in the new rules. You read the last paragraph of Section 5, Rule 110:

“The prosecution for violation of special laws shall be governed by the provision thereof. (n)”

It is an entirely new sentence. Tama man yan ba: The prosecution for violation of special laws shall be governed by the provision thereof. I think that’s the Reodica case: when it comes to prosecution for violations of special law, you follow the special law.

SEC. 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)

Q: How do you file a complaint?A: The complaint 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.

Q: What happens if the criminal complaint or information is filed in the name of the private complainant?

A: According to the SC, the complaint is defective. It can be quashed but it is only a formal defect. In case it proceeds to trial, it should be corrected but it is not really a fatal mistake. It can be cured at any stage of the action by amending the information or even if it is not cured, there is a valid judgment, you are found guilty, it shall no be voided merely because the title is defective. It will not invalidate the proceedings.

Now the law says, “against all who appear to be responsible.” Meaning, it is the sworn duty of a policeman or fiscal to file a case against all who appear to be responsible. It does not say who are guilty.

Q: How do you define complaint?A: Section 3, Rule 110:

SEC. 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)

Q: Supposes a complaint is filed but it was not sworn to or signed, is it valid?A: The SC said, it is a formal defect. It can be cured. Generally, the signature is not

needed.

Q: How do you define information?A: Section 4, Rule 110:

SEC. 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)

Q: Who are the people authorized to institute or commence criminal cases?A: The following:

1. Offended party;2. Peace officer;3. Prosecutor; and4. Public officer charged with the enforcement of the law.


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Q: How do you distinguish a complaint from information?A: The following are the distinctions:

1. As to who files the complaint or informationA COMPLAINT is filed by the (a) offended party; (b) any peace officer; (c)

prosecutor; (d) or any public officer charged with the enforcement of the law.On the other hand, an INFORMATION is prepared and signed by the

prosecutor.

2. As to purposeA COMPLAINT filed in court is either for preliminary investigation or for trial,

but an INFORMATION filed in court is only for trial.

3. As to where to fileA Complaint may be filed in court or in the office of the prosecutor, but an

INFORMATION is always filed in court.

4. A COMPLAINT can be filed in court, for trial or for mere preliminary investigation, or it can even be filed not in court but in the prosecutor’s office for preliminary investigation. But where an INFORMATION is filed, it is always filed in court and always for trial.

The complaint contemplated in Section 2 could be filed in the MTC for trial (e.g. physical injuries), or it could be a complaint for murder in the MTC, not for trial but for preliminary investigation.

The complaint filed in the fiscal’s office, city or province, is known in Spanish as “DENUNCIA” which is filed for preliminary investigation as distinguished from the real complaint mentioned in Section 3. In Section 3, it is always filed by the offended party. Although in some cases like when the offended party died, it is the police who files the affidavit complaint before the prosecutor’s office for preliminary investigation.

EXAMPLE: Pedro was a victim of robbery. Can he file a complaint for robbery? YES. What if he died before he could file?

Q: Can the family of Pedro file a complaint under Section 3?A: No, because they are not the offended party. They should file a complaint in the

fiscal. If you are talking of a complaint filed under Section 3, you must be the offended party. But a complaint filed with the fiscal, need not be by the offended party. (Evarle vs. Sucaldito, 156 SCRA 808)

That is the distinction, and the fiscal has the authority to investigate any crime whether the one complaining is the victim or not because the offended party is the People of the Philippines.

SEC. 5. Who must prosecute criminal actions. – All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control of the prosecutor. However, in Municipal Trial Courts or Municipal Circuit Trial Courts when the prosecutor assigned thereto or to the case is not available, the offended party, any peace officer, or public officer charged with the enforcement of the law violated may prosecute the case. This authority shall cease upon actual intervention of the prosecutor or upon elevation of the case to the Regional Trial Court.

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 are alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders.


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The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted upon a complaint filed by the offended party of 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 herein provided, except as stated in the preceding paragraph.

No criminal action for defamation which consists in the imputation of any 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 provision thereof. (n)

However once the case is in court, the complaint or information filed shall be prosecuted under the direction and control of the public prosecutor. This shows the control of the government. This is one feature of the Inquisitorial System of criminal procedure. The fiscal has the absolute control.

Q: Can the offended party hire his own lawyer to prosecute?A: YES, the offended party can hire his own lawyer who is known as the private

prosecutor. The personality of the private prosecutor is based on the provision in the RPC that every person criminally liable is also civilly liable. It is because of this civil liability that the offended party has an interest in the criminal case.

Even if the public prosecutor may turn over the active conduct of the trial to the private prosecutor, he must be present during the proceedings because he is, by law, duty-bound to take charge of the prosecution of the case until its termination.

If the public prosecutor or fiscal and the private prosecutor do not agree on how to prosecute, the fiscal will prevail because the private prosecutor is under the direct control of the fiscal.

Q: What happens if there are no fiscal in a municipality?A: According to Section 5, Rule 110: “However, in Municipal Trial Courts or Municipal

Circuit Trial Courts when the prosecutor assigned thereto or to the case is not available, the offended party, any peace officer, or public officer charged with the enforcement of the law violated may prosecute the case.”

This provision that if there is no prosecutor, puwede sila, is taken from the ruling of the SC in the case of People vs. Beriales, 17 SCRA 24. Usually, in the absence of the fiscal, it is the police authorities who act as prosecutors. However, according to the SC in the 1992 case of

PEOPLE vs. RAMOS207 SCRA 144

FACTS: The case is triable by the MTC of Ilocos Norte. The offended party went to the fiscal and filed the information. During the trial, the judge declared the fiscal in contempt of court as when the case was called for trial, the fiscal was not around. The fiscal answered in writing. When asked to explain why he refused to come to court despite the previous order, he said his office is undermanned or understaffed. Thus he could not personally appear and prosecute. At any rate, the fiscal pointed out in his explanation that the prosecution of the case can be handled by the offended party or any peace officer.


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ISSUE: Who should prosecute the case? The public prosecutor or any of the persons mentioned in Section 5, Rule 110?

HELD: It is the public prosecutor who should prosecute the case because he already knew about the case. He was the one who investigated the case. Therefore, he should continue in the prosecution of the case in court. While it is true that the law allow the offended party, any peace officer, or other public officer to prosecute a criminal case in places where there are no fiscals available, that is only the EXCEPTION.

The GENERAL RULE is that the fiscal himself should handle the prosecution of the criminal case. It is his duty and moral obligation to prosecute the case after having conducted the investigation and, believing that there is a case, filed an information in court.

“The Court feels that in those cases where the prosecutors themselves have filed the criminal charges, there is all the more reason for them to actively intervene in their prosecution. Having presumably made the necessary investigation of these cases before filing the corresponding informations, they are the best position to handle their prosecution on the basis of their initial findings. If the prosecutor had not determined the prima facie guilt of the accused, he should not have filed the information in the first place. At any rate, there is something not quite correct in the prosecutor filing the information himself and then leaving the offended party in the lurch, as it were, by asking him to fend for himself in prosecuting the case.

“The exception provided in Section 5 must be strictly applied as the prosecution of crime is the responsibility of officers appointed and trained for that purpose. The violation of the criminal laws is an affront to the People of the Philippines as a whole and not merely the person directly prejudiced, who is that the prosecution be handled by persons skilled in this function instead of being entrusted to private persons or public officers with little or no preparation for this responsibility. The exception should be allowed only when the conditions therefor as set forth in Section 5, Rule 110 of the Rules on Criminal Procedure have been clearly established.”

According to Section 5, the criminal action shall be under the control and supervision of the prosecutor. That is only applicable if you are talking of the trial court. But if the criminal case is lifted in the CA or SC on appeal, wala ka nang pakialam. It should be the Solicitor General who must represent the People of the Philippines.

The next paragraphs of Section 5 are somehow reiterated in Article 144, RPC, which is popularly known as PRIVATE CRIMES:

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 are 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 upon a complaint filed by the offended party of 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.

Take note that in the third paragraph, RAPE is already deleted. It is not a private crime anymore. It is already a crime against person because of the new law – RA 8353, Anti-Rape Law of 1997 – amending the RPC. Now, it can be prosecuted without the private complainant.

Q: The SC said in one case that there is no such animal as Private Crimes because


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every crime is against the State. But why do we call these private crimes - adultery, concubinage, seduction, abduction, and acts of lasciviousness?

A: It is because of all these requirements: the complaint is duly prepared, signed and sworn to by the offended party. Actually, the correct name of these crimes is CRIMES WHICH CANNOT BE PROSECUTED DE OFFICIO.

Q: What is the reason for the requirement that they shall be prosecuted upon complaint of the offended party?

A: This requirement was imposed out of consideration for the offended party or her relatives who might prefer to suffer the outrage in silence rather than go through with the scandal of a public trial. (Sumilin vs. CFI, 57 Phil. 298; People vs. Santos, 101 Phil. 798)

In ADULTERY or CONCUBINAGE, the offended party is only the husband or the wife. The parents have nothing to do with the adultery or concubinage. In adultery, it is not allowed that the husband files a complaint against his wife without including her paramour. Nor is it allowed that the husband files a case for adultery against his wife’s lover without including his wife. The law provides, “xxx the offended party cannot initiate criminal prosecution without including the guilty parties, if both are alive, xxx”. The same rule applies in concubinage.

In either case, consent or pardon by the offended party is a bar to criminal prosecution. Consent indicates allowance.

SEDUCTION, ABDUCTION, ACTS OF LASCIVIOUSNESS. If the victim is already of AGE, the decision of filing or not filing the case belongs to her.

Q: What happens if the offended party is a MINOR and does not want to file?A: The parents, grandparents, or guardian may file the complaint.

Q: Suppose the minor is incompetent as in the case of insanity, who will file the complaint?

A: Her parents, grandparents or guardian my institute the case.

Q: Suppose the minor has no known parents, grandparents, or guardian?A: The State shall initiate the criminal action in her behalf under the principle of Parens

Patriae.

Q: What happens when an information for adultery or concubinage is filed without a complaint? Is it a jurisdictional effect?

A: According to some rulings, it is a jurisdictional defect. The SC held that compliance in Article 344 and counterpart (as well as other crimes against chastity) is jurisdictional, and not merely a formal, requirement. While in point of strict law the jurisdiction of the court over the offense is vested in it by the Judiciary Law, the requirement for a sworn written complaint is just as jurisdictional mandate since it is that complaint which starts the prosecutory proceeding and without which the court cannot exercise its jurisdiction to try the case. (People vs. Mandea, 60 Phil. 372; People vs. Surbano, 37 SCRA 565; People vs. Babasa, 97 SCRA 672; Pilapil vs. Ibay-Somera, 174 SCRA 653)

But there is a SECOND VIEW: You can question the filing but it is not jurisdictional. It is a condition precedent but not jurisdictional because if you say jurisdiction, they are vested by the judiciary law. There is nothing in the judiciary law which can speak about complaint filed in court by the offended party. (People vs. Estrebella (1986); People vs. Saniaga (1988); People vs. Bugtong (1989); People vs. Tarul (1989); People vs. Cabodac (1992); People vs. Leoparde (1992); People vs. Hilario (1993)

PROBLEM: Suppose a victim of a private crime in a municipality prepared a complaint, swore to it, and FILED IT IN THE MTC FOR PRELIMINARY INVESTIGATION. [Remember that in provinces, there are two (2) possibilities if you want to file a case in the RTC: (1) file a


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complaint in the MTC for preliminary investigation, or (2) file a complaint with the provincial fiscal’s office also for preliminary investigation. Unlike in the cities we only file with the fiscal because only one is allowed to conduct preliminary investigation in chartered cities.] After the preliminary investigation, the judge said there is a probable cause and therefore, forwarded the case to the provincial fiscal. The fiscal filed the information in the RTC.

Q: Can the RTC try the case when there is no complaint by the offended party in the RTC?

A: The SC said YES. The complaint filed in the MTC for preliminary investigation will already serve the purpose. There is no need for another complaint to be prepared and signed by the victim to be filed with the RTC.

PROBLEM: Suppose the offended party of a private crime in a municipality, instead of filing the complaint in the MTC, she filed it in the office of the provincial fiscal or prosecutor.

Q: Will the case prosper?A: The SC said NO. The case must be dismissed because the complaint contemplated

by the law, signed and sworn to by the victim, is a complaint FILED IN COURT, not a complaint filed in the fiscal’s office.

Q: What should be the correct procedure?A: After preliminary investigation, the fiscal should prepare a complaint and should

prepare an information signed by him and the victim. Unlike where the complaint filed in the MTC for preliminary investigation, there is no need for another complaint to be filed in the RTC. But if the complaint (denuncia) is filed in the fiscal’s office, the rule is: it will not serve as the basis for a criminal prosecution. In connection with this principle is the leading case of

PEOPLE vs. ILARDE125 SCRA 11

FACTS: This is a case for adultery originated in the City of Iloilo. A man caught his wife in an act of adultery. The next thing he did was to execute an affidavit-complaint, which he filed in the office of the City Prosecutor of Iloilo City. In his affidavit he said, “I’m formally charging my wife and X and would request this affidavit be considered as a formal complaint against them.” While the case was pending before the fiscal for investigation, he died. So the Fiscal asked how he can file an information in court when there is no complaint because the rule is, the complaint filed with the fiscal’s office is not the complaint contemplated by law; there must be a complaint filed signed by the offended party. But in this case, the complainant was already dead. Although there was an affidavit-complaint.

The fiscal knew that and so he prepared an information for adultery charging the wife and her paramour. In the information he stated: “The undersigned City Fiscal upon sworn statement originally filed by the offended party, xerox copies of which are hereto attached as annexes A and B …xxx” So what he did was to incorporate the affidavit of the deceased offended husband in the information.

Now, the wife and the paramour moved to quash the information alleging lack of jurisdiction upon the offense charged because under Article 344 of the RPC, the requirement for the complaint of adultery was not complied with citing the case of People vs. Santos, 101 Phil. 798, where it was held that the complaint filed in the fiscal’s office for a private crime is not the complaint contemplated by law. On that basis, RTC Judge Ilarde dismissed the case.

The prosecution went to the SC on certiorari.

HELD: The respondent trial court is wrong. The order of dismissal is hereby


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set aside and is directed to proceed with the trial of the case. “It must be borne in mind, however, that this legal requirement was imposed out of consideration for the aggrieved party who might prefer to suffer the outrage in silence rather than go through the scandal of a public trial. Thus, the law leaves it to the option of the aggrieved spouse to seek judicial redress for the affront committed by the erring spouse. And this, to Our mind, should be the overriding consideration in determining the issue of whether or not the condition precedent prescribed by said Article 344 has been complied with. For needless to state, this Court should be guided by the spirit, rather than the letter, of the law.”

“In the case at bar, the desire of the offended party to bring his wife and her alleged paramour to justice is only too evident. Such determination of purpose on his part is amply demonstrated in the dispatch [speed] by which he filed his complaint with the fiscal’s office [because he filed the complaint the day after the crime happened]. The strong and equivocal statement contained in the affidavit filed with the Fiscal's Office that “I am formally charging my wife of the crime of adultery and would request that this affidavit be considered as a formal complaint against them” – is a clear show of such intent.”

“The ruling in People vs. Santos is not applicable to the case at bar. In that case, the sworn statement was not considered the complaint contemplated by Article 344 of the Revised Penal Code because it was a mere narration of how the crime was committed. Whereas, in the case at bar, in the affidavit-complaint submitted by the offended husband, he not only narrated the facts and circumstances constituting the crime of adultery, but he also explicitly and categorically charged private respondents with the said offense – “I’m charging my wife and her paramour with adultery.”

“Moreover, in Santos, the SC noted that the information filed by the fiscal commenced with the statement ‘the undersigned fiscal accuses so and so,’ the offended party not having been mentioned at all as one of the accusers. But in the present case, it is as if the husband filed the case.”

“The affidavit of the husband here contains all the elements of a valid complaint under Section 5, Rule I10 of the Rules of Court. What is more, said complaint-affidavit was attached to the information as an integral part thereof, and duly filed with the court. Therefore, the affidavit complaint became the basis of the complaint required by Section 5.”

So it became sort of an exception to the general rule that the affidavit-complaint in the fiscal’s office is not the one contemplated by law. While I was reading this case, I noticed that the fiscal was very imaginative on what he is going to do, kasi alam niya ang rules eh. That fiscal is now Solicitor General Galvez. And I was surprised why the husband drafted the affidavit that way. Maybe he knew he was dying. Later, they found out that the husband was a lawyer. And do not be shocked, the paramour was also a lawyer! So that was a very interesting case. The ruling was reiterated in the 1991 case of PEOPLE vs. JAROL (June 19, 1991).

Last paragraph, Section 5, Rule 110: No criminal action for defamation which consists in the imputation of any of the offenses mentioned above shall be brought except at the instance of and upon complaint filed by the offended party.

The fifth paragraph of Section 5 is taken from Article 360 of the RPC. Article 360 refers to the crime of libel or slander.

Q: Is the crime of defamation [slander is when you defame somebody orally; libel is when the defamation is in writing] a private crime?

A: NO.

Q: Can a case of slander be filed in court without a complaint signed and sworn to by the offended party?


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A: As a GENERAL RULE, YES, EXCEPT when the defamation imputes to the offended party the commission of any of the crimes mentioned above. Meaning, it imputes to the offended party the commission of a private offense like adultery, concubinage, abduction, seduction, acts of lasciviousness (ACASA). In this case, the criminal action shall be brought at the instance of and upon a complaint filed by the offended party.

Q: Is the accusation “mang-aagaw ng asawa ng may asawa!” an imputation of adultery?

A: No. It is a mere implication of a vice or defect, not an imputation of adultery. The phrase was translated as “seducer of the husbands of other woman.” It implies that the person to whom it is addressed is a FLIRT, a TEMPTRESS, or one who indulges in inciting another’s husband. (Gonzales vs. Arcilla, November 18, 1991)

The last paragraph states that “The prosecution for violation of special laws shall be governed by the provision thereof.” The best example is the case of Reodica vs. CA, which we already discussed, that prescription for violation of a special law is not governed by the RPC but by special law. The ruling was emphasized in the 1996 case of

LLENES vs. DICDICANJuly 31, 1996

HELD: “The institution of the complaint in the prosecutor’s office shall interrupt the period of prescription of the offense charged under Section 1, Rule 110. The rule, however, is entirely different under Act No. 3326, as amended, whose Section 2 explicitly provides that the period of prescription shall be interrupted by the institution of judicial proceedings, i.e., the filing of the complaint or information with the court.” Therefore, the filing of the complaint in the fiscal’s office does not interrupt the running of the prescriptive period. That is only true in felonies under the RPC. But when in comes to special laws, we follow the special law.

Q: When is a complaint or information sufficient?A: Read Section 6, Rule 110

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 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.

When an offense is committed by more than one person, all of them shall be included in the complaint or information. (6a)

Q: Suppose the information is defective, kulang-kulang ba, there are some essential facts required by law which are not stated. Can it be cured during the trial?

A: YES. Any defect in the complaint or information may be cured by evidence introduced by the prosecution, EXCEPT:

1. when the defect is jurisdictional (People vs. Abad Santos, 76 Phil. 744); or2. when the complaint or information does not charge any offense. (People vs.

Austria, 94 Phil. 897)

SEC. 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)

Q: One of the requirements under Section 7 is that the name of the accused must be


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stated in the information. Eh kung nagkamali ka? Is that fatal? What is the effect of an erroneous name given to the accused in the complaint or information?

A: The defect is not fatal. The error will not produce any adverse effect because what is important is the identity of the person of the accused, not his name . (People vs. Ramos, 85 Phil. 683) Kung nagkamali, eh di palitan! [problema ba yun? Ha!] This reminds me of the Fortun brothers – the Delia Rajas incident during the impeachment trial.

SEC. 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 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)

SEC. 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 circumstance and for the court to pronounce judgment. (9a)

There is one major change here. The law now specifically emphasizes under Section 8 and Section 9 that you do not only mention the crime. You must also specify the aggravating and the qualifying circumstance. What is new here is the “aggravating.”

The old rule is, there is no need of specifying the aggravating circumstances because anyway, they are not elements of the crime. They are only circumstances that affect the criminal liability and if the aggravating circumstances are proven, they can still be applied against the accused. The new law now says you do not only specify the qualifying, you also mention the aggravating. Now, how does it affect the old jurisprudence?

Q: My question is this, based on my own interpretation of Sections 8 and 9, Problem: the information does not allege the aggravating circumstances. In the course of the trial, the prosecution starts proving. Under the new rule, the defense can object to any evidence to prove the aggravating circumstance because the same is not mentioned in the information. But I will go further: an aggravating circumstance is not alleged in the information and the prosecution starts proving and there was no objection on the part of the defense. Now, can the court in imposing the penalty, consider the aggravating circumstance?

A: My personal view is YES because of the waiver for failure to object, in the same manner that an aggravating circumstance not alleged may still be considered as such. My only interpretation of this provision is that if this is not alleged in the complaint or information and the prosecution starts proving it, the defense can object and that objection must be sustained. But if there is no objection, the old rule can still be applied because of estoppel or waiver.

Well, that is my personal view on that matter. I do not know whether my view is correct or not. But I believe my view is correct because anyway even the judges here in Davao are asking for my view. I receive calls from time to time from these people. [ehem!]

Q: Let’s go to Section 9. Suppose the offense says, “criminal case for murder” but in the body of the information there is no allegation of a qualifying circumstance. What does the fiscal charge, Murder or Homicide?

A: HOMICIDE. The SC held that the designation of the offense is not an essential element of a complaint or information, because, at most that is a mere conclusion of the fiscal. What is controlling is the recital of facts appearing in the body of the complaint or information. (People vs. Agito, April 28, 1958; People vs. Cosare, 95 Phil. 656)

But there are some EXCEPTIONS like what happened in the case of

U.S. vs. TICZON


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25 Phil. 67

FACTS: A complaint was filed by the woman stating that “while the offended party was inside her house at night and all the doors were locked and all the windows were closed, the accused surreptitiously entered the house and approached the offended party who was asleep, raised her skirt and at that very moment the woman woke up and resisted.” [This can be an attempted rape but the element of the crime was not fully accomplished because of an act or accident other than her own resistance.] But sabi ng caption, “for trespass to dwelling” – pwede man din.

HELD: Sabi mo, “trespass”. OK, eh di trespass! So the caption prevails. When the facts appearing in the complaint or information are so stated that they are capable of two or more interpretations, then the designation of the offense in the caption controls.

Take note that under the new rape law, RA 7659, there are some circumstances which if present call for the mandatory death penalty. In the case of

PEOPLE vs. MANHUYOD, JR.May 20, 1998

HELD: When you charge somebody with a heinous crime such as rape, the information must make reference to the new law. If not, it will only be translated as an ordinary aggravating circumstance because the information was charged after the effectivity of the heinous crime law.

“Finally, a few words on the lack of care devoted to the preparation of the information filed before the trial court. The Office of the Provincial Prosecutor had in its possession evidence that the crime was committed by a father against his 17-year old daughter after the effectivity of R.A. No. 7659, hence the imposable penalty was death. It was then necessary to make reference to the amendatory law to charge the proper offense that carried the mandatory imposition of capital punishment.”

“Prosecutors are thus admonished to exercise utmost care and diligence in the preparation of complaints or informations to avert legal repercussions which may prove prejudicial to the interest of the State and private offended parties.”

Q: According to Section 9, the elements of the crime must be recited in the complaint or information. Must the exact language of the law be used?

A: NO. You can use other words provided it would convey the same idea or thought.

EXAMPLE: THEFT. The information does not contain the allegation “intent to gain” which is an element of the crime of theft. The SC said it is not required because those words are presumed from the information that the accused appropriated to himself the things belonging to the offended party. (U.S. vs. Alabot, 38 Phil. 698)

EXAMPLE: ROBBERY WITH FORCE UPON THINGS. There was no allegation that the accused entered the house of the victim with the use of force upon things but the information alleges that the accused entered the house of the victim by passing through a hole in the ceiling, an opening not intended for entrance. Ano yan? The SC said that is tantamount to use of force upon things. (People vs. Lareza, 73 Phil. 658)

EXAMPLE: MURDER. There was no allegation of treachery (alevosia) but the information says that when the accused killed the victim, the latter was not in the position to defend himself. The SC said they mean the same thing. In fact, it became clearer. (People vs. Gustahan, 47 Phil. 376)


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Another interesting case of treachery is the case of

PEOPLE vs. ABUYEN213 SCRA 569 (1992)

FACTS: The accused here killed two (2) children, one was aged 6 years and the other was 13 years old. He stabbed them. The information charges the accused with the killing the 2 minors. There is no statement that there was treachery. All that the information says is that the accused killed the 2 “minors.”

ISSUE: Was there a murder?

HELD: YES. When the accused killed the minors, that is equivalent of killing by treachery and therefore qualifies the killing to murder.

“It has, time and again, been held that the killing of minor children who, by reason of their tender years, could not be expected to put up a defense is considered attended with treachery even if the manner of attack was not shown. The allegation in the Information that the victims are both minors is to be considered compliance with the fundamental rule that the qualifying circumstances should be alleged in the information.”

“It is commonly understood in practice that when the victim in physical injuries, homicide, or murder cases is a child of tender years, he is described in the information as a minor. Minority in such a case should not be equated with its statutory meaning — that is, below eighteen (18) years old. It is used not so much as to state the age of the victim (otherwise, the charging fiscal would have simply placed the exact ages) rather, it is more of a description of the state of helplessness of the young victim.”

Q: CONSPIRACY. Jet and Pao are charged for murder pero ang sinasabi sa information, it was Jet who killed the victim. Now, in conspiracy, the act of one is the act of all. Would that sufficiently charge Pao?

A: NO. Kailangan mong i-describe ang conspiracy para matamaan si Pao. Klaruhin mo yung conspiracy, otherwise if the allegation of conspiracy is not shown against Pao, then, there is no crime of conspiracy. This is the guideline laid down by the SC in the 1998 case of

PEOPLE vs. QUITLONG292 SCRA 260

HELD: “Unlike the omission of an ordinary recital of fact which, if not excepted from or objected to during trial, may be corrected or supplied by competent proof, an allegation, however, of conspiracy, or one that would impute criminal liability to an accused for the act of another or others, is indispensable in order to hold such person, regardless of the nature and extent of his own participation, equally guilty with the other or others in the commission of the crime. Verily, an accused must know from the information whether he faces a criminal responsibility not only for his acts but also for the acts of his co-accused as well.”

Meaning, if you are charging me for what my companion did, you better be clear that there is conspiracy para ma-apply yung doctrine na ‘the act of one is the act of all.’

“The opinion of the trial court to the effect that conspiracy may be inferred from the allegation of abuse of superior strength and with the aid of armed men is difficult to accept. the information must state that the accused have confederated to commit the crime or that there has been a community of design, a unity of purpose or an agreement to commit the felony among the


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accused. Conspiracy must be alleged, not just inferred, in the information on which basis an accused can aptly enter his plea, a matter that is not to be confused with or likened to the adequacy of evidence that may be required to prove it.”

You can prove conspiracy by direct evidence. But kahirap niyan uy unless you were there listening. In criminal law, when two or more persons act together in unison to attain the same criminal objective, then conspiracy can be inferred. Meaning, you can use that as evidence to convict a person but for purposes of filing the case, you must expressly allege it.

Therefore, for purposes of charging – express. For purposes of proving – implied. Yan! This is precisely because directly proving it, is difficult. The manner of charging is different from the manner of proving. (People vs. Quitlong, supra)

EXAMPLE: DIRECT ASSAULT. The SC said it is not enough for the information to say that the victim is a person in authority. The charge for such offense must be so framed as to clearly allege the functions of the person assaulted, so as to show that he comes under the definition of person in authority. (People vs. Carpizo, 80 Phil. 234) Of course, I believe that if the position is obvious, the court will take judicial notice of that. There is no need to describe. But if it comes to some position which are not really common, the information must recite the functions.

EXAMPLE: TREASON. An information for treason is insufficient if it merely alleges generally that the accused had adhered to the enemy, giving her aid and comfort. The charge must be specific by stating what is termed as overt act of giving aid and comfort to the enemy. (Guinto vs. Veluz, 77 Phil. 798)

EXAMPLE: LIBEL. In charging libel, the prosecution must single out the libelous statements and quote verbatim in the complaint or information. (People vs. Bustos, 59 Phil. 375)

We will go to another issue regarding HABITUAL DELINQUENCY. The case is

PEOPLE vs. VENUS63 Phil. 435

FACTS: The City Fiscal of Manila file with the CFI of Manila an information charging the accused with the crime of robbery in an inhabited house. The information alleges, among others,” that the accused is a habitual delinquent, he having been previously convicted by final judgement rendered by a competent court, once for the crime of attempted robbery in an inhabited house and once for theft, the date of his last conviction being November 14, 1934.

Note: There is habitual delinquency when, for a period of ten (10) years, from the date of his last conviction or release for a crime of serious or less serious physical injuries, robbery, theft, estafa and falsification, he is found guilty of any of said crimes, a third time or oftener.

ISSUE: Was there a sufficient allegation of habitual delinquency?

HELD: NO. “Habitual delinquency, can not be taken into account in the present case because of the insufficiency of the allegation on this point in the city fiscal's information. While the information specifies the particular offense (attempted robbery in an inhabited house) for which the defendant-appellant was alleged to have previously been convicted and also the date of the last conviction for theft which occurred prior to the date of the commission of the offense now charged. But this does not make the information sufficient in law for it fails to specify the date of the conviction of the accused for the crime of


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attempted robbery. For all we know, the two previous convictions for attempted robbery in an inhabited house and theft may have taken place on the same date (November 14, 1934) or on two different dates so close together as to warrant the court in considering the two convictions as only one for the purposes of the application of the habitual delinquency law.”

“Upon the other hand, it may happen that a person accused of robo, hurto, estafa or falsificacion may have been convicted of any of said offenses after the commission of the crime with which he is charged. We have already held that previous convictions in order to be considered for the purpose of imposing the additional penalty for habitual delinquency, must precede the commission of the crime charged. Other instances may be mentioned but those given suffice to demonstrate the necessity of charging the existence of habitual delinquency with sufficient clearness and certainty to enable the courts to properly apply the provisions of our law on the subject.”

“It is therefore urged upon prosecuting attorneys that in the prosecution of cases of this nature, they should not content themselves with a general averment of habitual delinquency but should specify the dates:

1. of the commission of the previous crimes,2. of the last conviction or release, and 3. of the other previous convictions or release of the accused. “

“Informations filed in these cases should be sufficiently clear and specific to avoid the improper imposition of the additional penalty on a plea of guilty to a general allegation of habitual delinquency, no less than the frequency with which hardened criminals escape the imposition of the deserved additional penalty provided for by law.”

Q: Must excepting clauses be alleged in a complaint or information?A: It DEPENDS. If the excepting clause forms part of the definition of the offense, it

must be alleged; but if it is a matter of defense, it need not be alleged in a complaint or information. (U.S. vs. Chan Toco, 12 Phil. 262)

Sometimes it is hard to distinguish what is an element of a crime, and what is a matter of defense as stated in a law. The exceptive clauses such as “provided further”, and “provided furthermore” are very confusing. Sometime you get lost. Ano ba itong “provided further”? Is this part of the crime or is it a part of the defense? Confusing ba! Like in the old case of

U.S. vs. POMPEYA31 Phil. 245

FACTS: The municipal government passed an ordinance which requires all able-bodied male residence of the municipality between the ages of 18 and 35 to assist in peace and order campaign in the municipality by rendering services. The accused violated the ordinance. So he was charged. The information says he is a resident of the municipality, he is male, he is able-bodied and he refuses to render service to the government. According to the accused, the information is defective, it does not reconcile all the elements because it does not state how old he was. But according to the prosecutor, “No! I do not have to allege your age. It is for you to prove that you are below 18 or more than 35!”

ISSUE: Whether or not the clause in the ordinance pertaining to the age range of 18 to 35 is part of the crime, because if it is part of the crime, then it must be alleged.

HELD: The SC ruled that the age requirement is an element of the crime and therefore must be alleged. Failure to allege it is fatal because he may belong to the exempt age in which case the prosecution may not prosper.


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Let us try to compare that in the case of U.S. vs. YAO SIM

31 Phil. 301

FACTS: The accused was charged with violation of the opium law. The opium law was the predecessor, the great grandfather of the Dangerous Drugs Act. That was the old law which prohibits the use and smoking of opium without the prescription of a licensed practicing physician.

The accused argued that there is no crime committed because the information did not allege that the accused has no prescription from a duly licensed or a practicing physician. But the prosecution contended that it is for the accused to prove that he has a prescription. The element of the crime is only smoking opium.

HELD: The SC said, the prosecution is correct. It is not part of the crime, it is a matter of defense. The crime is smoking opium, period! But if you say you have prescription, then you prove it.

That is sometimes the difficult areas in the law. You don’t know whether it is part of a crime or just a part of your defense. There are things that we have to determine. This is part of our study of Section 9.

Q: Like for example, yung ILLEGAL POSSESSION OF FIREARMS. Do you have to allege that the firearm is not licensed?

A: The SC said YES, that is part of the crime.

Q: But in DANGEROUS DRUGS ACT, iba man. If you are in possession of opium, marijuana or whatever, you are liable if without authority of law. Now, who will prove the authority of law? Is that part of the definition of the crime?

A: The SC said NO. It is for you to prove that you are authorized. The crime is the possession or use of marijuana. That you are authorized to possess or smoke is a matter of defense.

Now let’s go to the next section. You must allege the place of the commission of the crime. You must also allege the date of the commission of the crime.

SEC. 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 its 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 charged or is necessary for its identification. (10a)

Q: When you say place, do you have to be very specific as to the place where the crime was committed? You must describe the kalsada, the street?

A: NO. As a matter of fact, if you look at the information, it just says, you committed the crime in Davao City without even stating what barangay or barrio. So, the place of the commission of the crime maybe stated generally. What is only important is it is within the territorial jurisdiction

EXCEPTION when the place of the commission of the crime constitutes an essential element of the crime charged. Yan! You must be specific. Examples:

EXAMPLE: TRESPASS TO DWELLING. You must specify that the crime was committed by entering into the dwelling of somebody. You cannot just say that he committed it in Davao City. You must say na pumasok siya sa bahay na ito. Or

EXAMPLE. ROBBERY IN AN INHABITED HOUSE, PUBLIC BUILDING OR EDIFICE DEVOTED


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TO WORSHIP. You must state the particular house. Kailangan specific ka diyan.

SEC. 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)

Q: How about yung date? Is it necessary that it should be very accurate?A: NO. What is important is that the information alleges that the crime was committed

“on or about” a certain date.

Q: The information said that Judy committed homicide on January 20. During the trial, pinalabas na December 20 pala – one month earlier. Is that harmless or fatal?

A: It is still covered by the phrase “on or about.” 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 alone. (Rocaberte vs. People, 193 SCRA 192)

But when you say December 2000 and then the crime pala was committed in 1995, ay sobra na yan! That is too much. Five (5) years is no longer covered by “on or about.” That is already violative of Section 11. A variance of several years, or the statement of the time of the commission of the offense which is so general as to span a number of years has been held to be fatally defective. (Rocaberte vs. People, 193 SCRA 192)

Q: And what is the remedy in that case?A: 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 (Rocaberte vs. People, 193 SCRA 192). Do not dismiss the information. That was commented by the SC in the recent case of People vs. Garcia, November 6, 1997 (281 SCRA 463).

I have to admit that the rules now try to make a gap between the date of the commission of the crime as alleged in the information and the actual date of commission to be not so far. You look at Section 11: “xxx The offense maybe allege or committed on a date as near as possible to the actual date of its commission.” That phrase “as near as possible” is not found in the 1985 rules.

The ONLY EXCEPTION is just like in the Section 10, UNLESS the date of the commission of the crime is an essential element of the crime. Like for example:

EXAMPLE: VIOLATION OF ELECTION CODE, drinking liquor during election day. You must be specific kung anong araw yun. Hindi pwedeng “on or about election day.” Hindi pwede yan! If you drank liquor before, wala mang crime. If you drink liquor after, wala mang crime ba!

EXAMPLE. INFANTICIDE. It is committed by killing a child less than 3 days old or less than 72 hours. If the infant is exactly 3 days old, it is no longer infanticide. So the information must be very specific that the child was born on this day, on this time and the killing was done on this day, on this time.

SEC. 12. Name of the offended party. – The complaint or information must state the name and 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.


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(b) If the true name of the person against whom or against whose property the offense was committed is thereafter disclosed or ascertained, the court must cause such 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)

Let’s go to the next rule – name of the offended party. You must allege also who is the victim. We are talking here about the victim – the private offended party.

Q: Why is it that the name of the offended party must be alleged in the information?A: First, the general rule is that, aside from the People of the Philippines, there is a

private victim. Second, so that we will know to whom the court will award the civil liability.

Q: Is there a possibility by which the name of the offended party is not mentioned in the information but the same is still valid?

A: YES. Paragraph [a], in a crime against property. If you do not know who is the victim of theft or robbery, it is enough that you describe the property in the information.

EXAMPLE: A thief, nahuli and he was found in possession of stolen goods and he admitted he stole. Kanino? “Ewan ko. Basta gi-snatch ko man lang ito.” Can the police file a case? YES. You just describe the property in the information even if we don’t know the owner because you commit theft when you take personal property belonging to another with intent to gain. What is important is that, it belongs to another.

PEOPLE vs. CFI OF QUEZON BR. 5209 SCRA 704

FACTS: The accused was charged with timber smuggling or illegal cutting of logs from public forest under PD No. 320. Ayan, wala talagang private offended party diyan. The only offended party is the government. But the information does not mention that the offended party is the State. The accused challenged the information on this ground.

HELD: Even if the State is not mentioned, the information is NOT defective. Why? You look at the caption of the case – “People of the Philippines”. That is actually the offended party.

Q: What happens if there was an erroneous naming of the offended party?A: In the case of

PEOPLE vs. UBA99 Phil 134

FACTS: Vidz, on a certain date, was alleged to have uttered publicly slanderous words against Jessamyn. So Jessamyn is the victim of the slander. Alam niyo during the trial, it turned out that the victim pala was Lyle, not Jessamyn. But everything is the same – the date and place of the commission, the defamatory words – pare-pareho! Only, there was an erroneous designation of the offended party.

ISSUE: Can the court convict Vidz for the crime of slander?

HELD: NO. Although the words are the same, the slander against Lyle is a separate offense. Meaning, you are charging a different offense from the crime proven. You cannot convict a person of a crime not properly charged.

“A mistake in putting in the information the name of the offended party is a material matter which necessarily affects the identification of the act charged.


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The case should be dismissed for variance between the allegations of the information and the proof.”

However, there were exceptions in the past like where the accused, who is not a doctor, was charged of illegal practice of medicine. The information stated that the offended party is Paul. Pag-trial, hindi pala si Paul. Si Inay pala dapat ang victim. The SC said the accused can be convicted. Why? The crime is illegal practice of medicine regardless of whether the victim is Paul or Inay. (Diel vs. Martinez, 76 Phil. 273) Yan! It is different from the case of Uba.

SEC. 13. Duplicity of the offense. – A complaint or information must charge only one offense, except when the law prescribes a single punishment for various offenses. (13a)

The complaint or information must charge only one offense. It cannot charge 2 or more offenses. If it does, it is called duplicitous complaint or information.

Q: What is the remedy there?A: Actually, you can file a Motion to Quash under Section 3 [f], Rule 117. But the defect

is waivable because if you do not file a Motion to Quash, the trial can proceed and if you are found guilty for committing 2 or more crimes, then there will be 2 or more penalties (Section 4, Rule 120). Dapat diyan, one information, one crime. That is the GENERAL RULE.

This seems to go against the rule in civil procedure about joinder of causes of action. In one complaint you can join 2 or more causes of action, although you can also file 2 or more cases. Ano’ng tawag diyan? Joinder of parties or joinder of causes of action. There is no such thing as joinder of crimes in criminal procedure.

EXAMPLE: The Patrick got a gun, went out of the street, then met three people. Binaril niya: Bang! Bang! Bang! Tatlong tao patay!. Now, he commits three (3) crimes of homicide.

Q: Can I file one information accusing Patrick of 3 homicide committed on that day?A: NO. That is duplicitous. There must three (3) informations, one for each victim.

Q: But that is troublesome. The evidence or the witnesses are identical. What is the remedy?

A: You file a Motion to Consolidate your trial – joint trial for the 3 criminal cases. That is the remedy, but not 1 information charging 3 acts of homicide unless the other party does not question the duplicitous character of the information.

EXCEPTION. The rule prohibiting duplicitous complaints or informations provides for exceptions: “Except when the law prescribes a single punishment for various offenses.” When the law provides only one penalty for 2 or more offenses then Section 13 is not violated. Examples:

EXAMPLE: COMPLEX CRIMES – when a single act produces 2 or more grave or less felonies or when one offense is a necessary means to commit another. Actually, parang duplicitous yun eh kung tingnan mo because you are accusing somebody of 2 homicides based on 1 single act. But that is only an exception. There is one penalty anyway.

EXAMPLE: SPECIAL COMPLEX CRIMES. Robbery with homicide or Rape with Homicide. That is not duplicitous. There is one penalty there.

EXAMPLE: DELITO CONTINUADO. The accused stole 2 rooster owned by 2 different people. Actually, there are 2 acts of taking but in the eyes of the law, there is only one crime. The accused was motivated by single criminal resolution.


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EXAMPLE: Babang was charged of the crime of REBELLION. Rebellion – she took up arms against the government, killed soldiers, burned government properties. “Duplicitous yan! Kadami-dami nyan o!” NO. That is not duplicitous because based of the absorption doctrine – the common crimes are not to be treated as separate crimes but are already absorbed in the rebellion. The SC said there is no crime such as rebellion complexed with murder or homicide. But why do you have to recite all these things? That is merely a recital of the manner of the crime of rebellion. That is not a violation of Section 13.

PEOPLE vs. BUENVIAJE47 Phil. 536

FACTS: There was a special law penalizing in once section the crime of illegal practice of medicine AND illegally advertising oneself as a doctor. The penalty of 5-year imprisonment shall be imposed on a person who, not being a physician, practice medicine or advertise himself as a physician. There is only one penalty for these acts. The information alleges: “That the accused is charged of violating that law because he practiced medicine, or IN THE ALTERNATIVE, he advertised himself as a doctor when in fact, he is not.”

ISSUE: Is the information duplicitous?

HELD: NO. When the information merely recites in the alternative or otherwise the different ways of committing the offense like the information charges the accused for illegal practice of medicine and with illegally advertising himself as a physician, there is only one crime because these are only alternative ways of committing the crime.

The rule is different when the accused is charged of violating 2 different sections of the same law with distinct penalties which, if charged in a single information, would render it duplicitous. (People vs. Ferrer, 101 Phil. 234)

SEC. 14. Amendment or substitution. – A complaint or information may be amended, in form or in substance, without 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 anytime before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense 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)

In civil procedure, formal amendment – no problem. It can be allowed at any stage. Substantial amendment, for as long as there is still no responsive pleading, the plaintiff can amend his complaint anytime. Once a responsive pleading is filed, substantial amendment is allowed but with leave of court.

In criminal procedure the rule is: for as long as the accused has not yet entered his plea – wala pang arraignment, the accused has not yet pleaded guilty or not guilty – the information can be amended either in substance or in form.

Q: What happens if the accused has already entered his plea? Can the information still be amended by the prosecution?

A: As to FORM – Yes, as a matter of judicial discretion. Kailangan merong permission.As to SUBSTANCE – Never! Bawal! 100% prohibited.

Q: How do you determine whether the amendment is formal or substantial? Sometimes


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madali, sometimes mahirap. Kung wrong spelling lang, talagang formal yan. A: According to the SC based on certain cases, the following are considered substantial

and therefore cannot be allowed after plea:

1. if the amendment changes the manner of the commission of the offense; (People vs. Zulueta, 89 Phil. 752)

2. if it changes the name of the offended party; (People vs. Uba, 99 Phil. 134)

3. if it changes the date of the commission of the offense; (People vs. Opemia, 98 Phil. 698)

Let’s say, from the year 2000 to 5 years backwards. Hindi pwedeng maging formal yan.

4. when the purpose of amendment is to make the information charge an offense when the original information does not charge an offense; (Wong vs. Yatco, 99 Phil. 791) or

5. when it changes the fact or ground of responsibility alleged in the original information. (People vs. Labatete, 57 O.G. 6783)

Example: from accomplice, gagawin kang principal. The same is not formal.

Q: How do you determine whether the amendment is as to form or substance?A: 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. (People vs. Montenegro, 159 SCRA 236)

Q: The amendment is substantial if the amendment will prejudice the rights of the accused. How do you determine whether the rights of the accused are prejudiced?

A: 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. (People vs. Montenegro, 159 SCRA 236) Meaning, evidence which could help you in the first place will no longer help you after the amendment – that is prejudicial.

BUHAT vs. COURT OF APPEALS265 SCRA 701, December 17, 1996

FACTS: Danilo Buhat was charged with homicide in an information which alleged that the accused killed the victim using superior strength. [Dapat diyan murder eh because of superior strength] Accused Buhat pleaded not guilty. After that the prosecution sought to amend the information by upgrading the crime charged from homicide to the more serious crime of murder.

ISSUE: Is the amendment SUBSTANTIAL or FORMAL?

HELD: It is FORMAL because the allegation of superior strength is already there. In other words, from the very start, it was really meant to be murder. Mabuti sana kung dinagdag lang yung superior strength. It is already there all along.

“The real nature of the criminal charge is determined not from the caption or preamble of the information nor from the specification of the provision of the law alleged to have been violated, they being conclusions of law which in no way affect the legal aspects of the information, but from the actual recital of facts as alleged in the body of the information.”

“Petitioner in the case at bench maintains that, having already pleaded “not


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guilty” to the crime of homicide, the amendment of the crime charged in the information from homicide to murder is a substantial amendment prejudicial to his right to be informed of the nature of the accusation against him. He utterly fails to dispute, however, that the original information did allege that petitioner stabbed his victim “using superior strength”. And this particular allegation qualifies a killing to murder, regardless of how such a killing is technically designated in the information filed by the public prosecutor.”

Meaning, in the case of Buhat the prosecutor believes originally that it is homicide, but it is murder pala all along. We are not adding anything new.

Kaya nga when I read it, I think there’s something wrong here with this kind of ruling. Just imagine, na-capital crime ka, tapos formal amendment lang? You know my personal view in the case of Buhat, it should be treated only as homicide with the aggravating circumstance of abuse of superior strength. But that was what the SC said eh. Wala tayong magawa.

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)(second paragraph, Section 14, Rule 110)

The second paragraph of Section 14 is new. Take note in the case of Buhat, from homicide to murder. Ito naman, baliktad. Let’s say before arraignment, sabi ng Fiscal: “Teka muna, di pala murder, homicide lang pala,” So, gi-downgrade ba!

Now, if prosecutor will do that, he must notify the offended party, at least the family, so that he can be heard before the trial court allows. So this time, the amendment is not a matter of right.

Again, when you amend a complaint or information to downgrade the nature of the offense or when the amendment is to exclude an accused from the complaint or information, of course, it can only be done by motion of the prosecutor, notice to the offended party, and decree of court. That is a new provision.

If it appears at anytime before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense 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. (Last paragraph, Section 14, Rule 110)

Let’s go to basic.

Q: After the trial, the crime proven is different from the crime charge. However, the former is included in the latter. Will you dismiss the case?

A: NO, just convict the accused for the crime proven since the crime proven is included in the crime charged.

EXAMPLE: Jenny was charged with murder. After trial, the prosecution proved homicide. What will the court do? Dismiss the complaint for murder? NO. Jenny should be convicted for homicide because all the element of homicide are also included in the crime of murder. (Rule 119)

However, that is not what Section 14 contemplates. What is contemplated by Section 14 is, the offense proven is completely different from the crime charged and therefore the accused cannot be convicted for the crime proven because the crime proven is not included in the crime charged.


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Q: So what should the court do?A: The court should dismiss the complaint or information upon the filing of a new

information by the prosecution. Provided, the principle of double jeopardy is not applicable.

Remember the case of Uba, where Vidz was charged with oral defamation for uttering slanderous remarks against Jessamyn on a particular date and time. But during the trial, it turned out that the slander was committed against Lyle. Now, can Vidz be convicted for the crime of slander against Lyle, when the information says the crime was against Jessamyn? NO. Although the crime proven is the same, however the erroneous designation of the offended party deals with entirely another crime committed against a different person.

Q: What should the court do in that case?A: Following Section 14, the fiscal should file a new information almost exactly the

same as the old one, now the offended party is Lyle. The court will now dismiss the original charge which is entirely different.

Q: What do you call that?A: SUBSTITUTION of complaint or information.

Q: Now, how do you distinguish substitution of information from amendment of information?

A: The case of TEEHANKEE JR. vs. MADAYAG

207 SCRA 134

FACTS: This case was about the murder of Maureen Hultman. She was shot but did not die immediately. So the crime charged was frustrated murder. But while the case was pending, Hultman died. Therefore, the fiscal filed a new information for consummated murder.

ISSUE: Distinguish amendment of information from substitution of information? [This would be clearer when we reach Rule 112 on Preliminary Investigation]

HELD: 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


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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 amendment, you are not changing the crime. The crime is the same. Therefore, after the accused has pleaded, you cannot change the information anymore. That is why substantial amendments can never be allowed after the plea. If this rule is violated, he will be placed in double jeopardy because you are charging him for the same offense or an offense necessarily included in the original charge.

On the other hand, substitution presupposes that the new information or complaint involves a different offense which is not necessarily included in the in the original charge. Therefore, the accused cannot claim double jeopardy. How can you invoke double jeopardy in substitution when the new charge is completely different from the original charge?

I remember this was a 1992 decision. During the 1994 Bar exams, this was one of the questions that entered into my mind. Nahulaan ko na lalabas ito eh. (ehem!): distinguish amendment from substitution. Just remember the case of Teehankee Jr. vs. Madayag. I think that question was only 3 points. Alright.

SEC. 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 in the course of its trip, the criminal action shall be instituted and tried int eh court of any municipality or territory where such train, aircraft, or other vehicle passed during 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)

In civil case we call this venue. In criminal procedure, venue is also jurisdiction. It refers to territorial jurisdiction. So if you file a criminal case in the wrong place, the accused could question the jurisdiction of the court over the offense. This is one difference between civil and criminal procedure.

(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. (Section 15, Rule 110)

The word municipality here includes cities because it could be a city. Municipality definitely refers to a crime triable by the MTC. The word territory refers to a crime triable by the RTC because of the provision of Section 18, BP 129 that every RTC has its own territory over which it resides, for purposes of venue in civil cases and jurisdiction in criminal cases where the offense was committed or where any of the essential ingredients occurred.

Q: Why does the law prescribes that the case be filed or tried in the place where the


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crime was committed?A: The following are the reasons:

1. The interest of the public requires that, to secure the best results and effects in the punishment of crimes, it is necessary to prosecute and punish the criminal in the very place, as near as may be where he committed his crime (MRR Co. vs. Atty. General, 20 Phil. 523);

2. As to the interest of the accused, it would cause him great inconvenience in looking for witnesses and other evidence in another place. (Beltran vs. Ramos, 96 Phil. 149)

The law says, the criminal case will be tried, where?1. where the offense was committed; or2. where any of the essential ingredients occurred.

WHERE THE OFFENSE WAS COMMITTED

This refers to what you call local offense. What do you mean by a local offense? It is an offense, which is fully consummated in one place. Meaning, all the elements of the crime happened in that place.

WHERE ANY OF THE ESSENTIAL INGREDIENTS OCCURRED

This refers to what text writers call the continuing offense – where the elements occurred in 2 or more places – one element occurs here, the other in another place. So either one can try the case. The venue in this case is the choice of the prosecution.

And mind you, the word “continuing offense” should not be confused with the concept in criminal law – the so-called continuous crime under Article 48 also known as “delicto continuado.” Dalawang klaseng continuing crime, eh. One of the relatives of complex crime is “delicto continuado” – where a person performs a series of acts but all emanating from one criminal resolution – but the issue to be resolved is: how many crimes were committed by the accused? Yun ang tanong dun.

Ito namang “continuing offense”, the question here is: in which court of what place will the crime be tried? Yan!

Q: How do you define a continuing offense or transitory crime?A: It is a crime where the elements occur in several places.

EXAMPLE: KIDNAPPING or ABDUCTION. The accused kidnapped Eltor in Davao City and brought the Eltor in Cotabato and hidden there. Same thing with abduction: Karen was abducted in Davao City and brought in Cotabato.

Q: Where should the case of kidnapping or abduction as the case may be, be filed?A: It could be filed in Davao where the victim was taken or abducted, or in Cotabato

were the victim was brought.

Q: Brod Pito took your vehicle here in Davao and brought it to Cotabato. Where should the crime of qualified theft be tried? Davao or Cotabato? Is that a continuing offense or not?

A: Davao. It is a local offense. From the moment the car was taken in Davao, the crime has already been consummated. It is not an indispensable requisite of theft that the thief carry, more or less far away, the thing taken by him from its owner. (Duran vs. Tan, 85 Phil. 476) Theft is committed by taking personal things. Taking is instant. From the moment it came to y our possession, tapos na!


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Let’s go to the issue of FENCING – you buy stolen property. If you have known it is stolen, you are liable. But take note: there can be no fencing if there is no robbery or theft. Fencing presupposes there is robbery or theft.

Q: Inday stole a property in Digos. It was brought here and Maritess bought it here in Davao. Maritess is now charged with fencing. Of course Maritess can be charged here in Davao City because she bought it here. But can the crime of fencing be also filed in Digos where the theft was committed on the theory that: how can there be fencing unless there was theft? Therefore everything can go back to the place where the original crime was committed. Is that correct?

A: It is NOT correct because fencing is not a continuing crime. It is a local offense. It is different from the crime of theft or robbery. Both crimes are two different crime. The law on fencing does not require the accused to have participated in the criminal design to commit, or to have been in any wise involved in the commission of, the crime of robbery or theft. Neither is the crime of robbery or theft made to depend on an act of fencing in order that it can be consummated. True, the object property in fencing must have been previously taken by means of either robbery of theft but the place where the robbery or theft occurs is inconsequential.

It may not be suggested, for instance, that, in the crime of bigamy which presupposes a prior subsisting marriage of an accused, the case should thereby be triable likewise at the place where the prior marriage has been contracted. (People vs. De Guzman, October 5, 1993)

Q: ESTAFA or MALVERSATION. The company’s head office is in Makati. Kenneth is the representative of the company assigned in Davao. He collects payments from customers in Davao and he is supposed to remit all his collections to Makati. Kenneth did not remit his collections to Makati. Where should the case of estafa be brought? Davao or Makati?

A: Either of the two. The crime is continuing. It shall be instituted in the place where the misappropriation was committed OR in the place where the accused was to render his accounting. (U.S. vs. Mesina, 42 Phil. 67)

Let’s go to BOUNCING CHECKS law. Where should the criminal case for violation of bouncing checks law be filed? Sometimes, fiscals get confused. You owe me, you are in Manila, then you issue a check in Manila and sent it to Davao. Then I will deposit the check in Davao. Of course the bank will forward it to Manila for clearance. The Manila bank dishonored it kay walang pondo. Where is the venue for such crime? That is what happened in the case of

PEOPLE vs. GOROSPE January 20, 1988

(reiterated in Lee vs. CA [1995])

FACTS: The accused is from Bulacan. He was a dealer of San Miguel products and he is under the control of the Central Luzon Regional Office of San Miguel Corporation (SMC) which is in San Fernando, Pampanga. So a representative of SMC went to Bulucan, collected from him, he issued checks which were drawn in Bulucan. The checks were received by the representative of SMC and went to the Head Office in Pampanga and turned-over it. The Pampanga office of SMC deposited the checks with its depositary bank in San Fernando, Pampanga. The checks were sent to Bulacan for clearing. Talbog! With this, series of cases were filed. Some cases were estafa. Some were for violation of BP 22.

The accused challenged it because all these cases were filed in San Fernando, Pampanga eh. According to him, the cases should be filed in Bulacan. Remember, the checks were Bulucan checks and it was dishonored also in Bulacan. He said, “I did not deliver it in San Fernando. I gave it to your representative. So the check was delivered to a representative. So the delivery was made in Bulacan. Thus the Pampanga court has no jurisdiction.”


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ISSUE: Is the contention of the accused correct?

HELD: NO! Mali! Actually, the crime is continuing because the crime continues up to the delivery of the check to the Central Luzon Office of SMC in Pampanga. Under the Negotiable Instruments Law, the delivery of the check must be made to a person who takes it as a holder or bearer of the instrument. The checks are intended to be delivered in the Head Office because it is the delivery in Pampanga which makes the payee the bearer or the holder – not the employer who went to Bulacan. So tinamaan ang Pampanga court. In effect, it is a continuing crime.

In respect of the Bouncing Checks case, “it is likewise true that knowledge on the part of the maker or drawer of the check of the insufficiency of his funds, which is an essential ingredient of the offense is by itself a continuing eventuality, whether the accused be within one territory or another. Accordingly, jurisdiction to take cognizance of the offense also lies in the Regional Trial Court of Pampanga.” Meaning, wherever the checks go, the knowledge of insufficiency is a continuing element.

Q: Where shall the criminal action for FALSIFICATION of a private document be filed?A: It shall be filed in the place where the document was falsified, regardless of whether

it was or was not put to the illegal use for which it was intended. (U.S. vs. Barretto, 36 Phil. 204)

Q: Genie executed a false affidavit in Manila. It was sent to Davao to be used in a certain proceeding or case. Where is the venue of the PERJURY?

A: It should be filed in the place where the false evidence was submitted and NOT in the place where the false affidavit was subscribed and sworn to. (U.S. vs. Cañete, 30 Phil. 371)

Let’s go to some EXCEPTIONS:

Q: Are there instances where the crime is committed in this place but the trial can be filed in another place, other than the place where the crime was committed?

A: YES, if the law says so because of the opening clause of paragraph (a) of Section 15 which says, “subject to existing laws.” Meaning, this is the applicable rule unless other existing law says otherwise.

Q: Give instances where the crime maybe committed in one place but the law provided for a different venue of trial.

A: The following:1. Libel – under Article 360 of RPC, it is to be filed where the libelous matter was

printed or first published, or where the injured party resides or where he holds office;

2. Sandiganbayan Law – cases falling under the jurisdiction of the Sandiganbayan are tried in designated places;

3. Section 5 (4), Article VIII, 1987 Constitution – The SC may order a change of venue or place of trial to avoid a miscarriage of justice as what happened in the case of Sanchez and Misuari.

Those are the exceptions. All the rest covers other cases Paragraph (d) refers to crimes committed on board a Philippine ship or airplane abroad. It is triable in the Philippines. Where in the Philippines? – where the criminal action is first filed. Kung saan, mamili ang prosecution kung saan i-file.

SEC. 16. Intervention of the offended party in criminal action. – Where the civil action for recovery of civil liability is instituted in the criminal


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action pursuant to Rule 111, the offended party may intervene by counsel in the prosecution of the offense. (16a)

Of course, the prosecution is under the control of the fiscal but the law says, the private offended party can intervene through counsel. That is what you call the appearance of the private prosecutor.

Q: When is it allowed?A: The following are the requirements:

1. if there is civil liability arising from the crime because the purpose of the private prosecutor is to protect the civil liability of the offended party;

2. there is no waiver. The offended party should not waive the civil liability;3. the offended party should not have reserved to file a separate civil action

because once you have made a reservation, wala na. You cannot anymore hire a private prosecutor;

4. the civil action has not been previously instituted because if the civil action is already filed, you cannot intervene in the criminal case.

Q: What are the rights of the offended party in a criminal action?A: The following:

1. to take part in the prosecution of the offense;2. to recover civil liability from the accused arising from the crime; and3. to appeal from any judgment or order adversely affecting his claim to such civil

liability. (People vs. Velez, 77 Phil. 1026)

Q: Give the limitations to the offended party’s right of intervention in a criminal action.A: The following:

1. such intervention shall be under the direction and control of the fiscal (Section 5);

2. such intervention shall only be for the purpose of enforcing the accused’s civil liability arising from the crime. (People vs. Velez, supra)

One of the interesting case decided based on Section 16 is the 1987 case of

BANAL vs. TADEO, JR.156 SCRA 325

FACTS: This is a case for violation of BP 22. The offended party hired a private prosecutor to prosecute the case. The accused challenged the appearance of the private prosecutor on the ground that BP 22 does not provide for any civil liability and therefore there is no civil liability.

So the trial court disqualified the private prosecutor. The offended party went to the SC.

ISSUE: Is a private prosecutor allowed to intervene in a BP 22 case?

HELD: YES. A private prosecutor is allowed to intervene in a BP 22 case because there is a civil liability in BP 22 even if the law silent about it.

Normally lawyers would say that civil liability in a criminal case arises from the crime; because of the crime, there is civil liability. According to the SC: WRONG!! It is not the crime which is the source of the civil liability. It is the damage that the accused caused to the victim!

“The generally accepted notion that the civil liability actually arises from the crime a misconception or fallacy. [Masyadong malalim ang discussion ng SC dito] “While an act or omission is felonious because it is punishable by law, it gives rise to civil liability not so much because it is a crime but because it caused damage to another. Viewing things pragmatically, we can readily see that what gives rise to the civil liability is really the obligation and the moral duty of


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everyone to repair or make whole the damage caused to another by reason of his own act or omission, done intentionally or negligently, whether or not the same be punishable by law. In other words, criminal liability will give rise to civil liability only if the same felonious act or omission results in damage or injury to another and is the direct and proximate cause thereof. Damage or injury to another is evidently the foundation of the civil action. Such is not the case in criminal actions for, to be criminally liable, it is enough that the act or omission complained of is punishable, regardless of whether or not it also causes material damage to another. Article 20 of the New Civil Code provides:

“Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same.”

“Regardless, therefore, of whether or not a special law so provides, indemnification of the offended party may be had on account of the damage, loss or injury directly suffered as a consequence of the wrongful act of another. The indemnity which a person is sentenced to pay forms an integral part of the penalty imposed by law for the commission of a crime. Every crime gives rise to a penal or criminal action for the punishment of the guilty party, and also to civil action for the restitution of the thing, repair of the damage, and indemnification for the losses.”

The ruling in Banal seems not to jive with Article 1157 of the New Civil Code. Under Article 1157, the following are the sources of obligations:

1. laws;2. contracts;3. quasi-contracts;4. quasi-delicts;5. acts or omissions punishable by law.

According to Article 1157, a crime punishable by law is a source of obligation. But in the case of Banal, the SC says NO, it is not the act or omission but the damage or injury resulting from such act or omission. That is how to reconcile these two ideas.

Q: We will go back to the issue in Banal – is there civil liability in BP 22 cases?A: YES because the offended party cannot get back his money. If there is damage,

there is civil liability even if the law is silent. Huwag mo na lang hanapin ang provision ng civil liability. For as long as there is damage, there is civil liability. Yaaann!

editor-in-chief: mortmort editors: jayceebelle balite • j-j torres • michael peloton • maying dadula • jessamyn agustin • lyle santos • paul ryan ongkingco • dynn gutierrez • maya quitain • riezl locsin • patrick tabar •

maritess gonzales • maricel culpable • kenneth leyva • jenny namoc • ferdinand vido • melissa suarez • rayda sullano • rucel cayetano • rod quiachon • hannah examen • myra montecalvo • genie salvaña • grace

salesa • leo gillesania • gemma betonio • jenny aquiatan • michael pito • karen de leon • elma tormon • judee uy • pao angeles • jet pascua • contributing editors: babang baldoza • marlo masangkay


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