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; or2. Kung gusto mo, direct filing. You can file the complaint directly to the MTC. Like sa munisipyo, police man ang

mag-file ba.

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)

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.

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.

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

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 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 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

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?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.”

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 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: 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)

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 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.

(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.

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.

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 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.

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.

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.

1. AMENDMENT may involve either formal or substantial changes, while SUBSTITUTION necessarily involves a substantial change from the original charge;

2. AMENDMENT before plea has been entered can be effected without leave of court, but SUBSTITUTION of information must be with leave of court as the original information has to be dismissed;

3. Where the AMENDMENT is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused; in SUBSTITUTION of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; and

4. An AMENDED information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could, invoke double jeopardy. On the other hand, SUBSTITUTION requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy.

In 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 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!

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?

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 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)