Rem Law
Rem Law
Rem Law
In criminal law, 4 instances where the crimes are alleged in one information
without violating the rule on duplicity because in those instances, the law
imposes only one penalty. You have:
1. compound crimes
2. complex crimes
3. composite crimes
4. continued crimes
Know this instances, information may alleged more than one criminal act and
yet, a motion to quash the information is not proper because the law in this
regard imposes only a single penalty. So about this Sec 13, your problem is to
detect whether the crime alleged in the information come within the
exceptions, because if not, a MQ is proper. Given a situation where an
information charges more than 1 offense, the accused moved to quash the
info on the ground of duplicity, will the motion to quash be granted? There are
these 4 exceptions where that motion to quash shall be denied. In other
cases, duplicity of offenses would then be committed, and the motion to quash
then should be denied or has to be granted.
BAR: Crimes which ought not be complexed or which are not proper to be
complexed are alleged in 1 information supposedly as complex crimes. Where
it is not proper to complex a crime charged, the info shall be considered as
charging more than 1 offense. Therefore, a MQ may be filed.
In the second situation in Art 48 (RPC) where complex crime is provided, you
have there a situation where 1 offense is committed as a necessary means to
commit another offense. But if the situation presents 2 offenses, one offense
is not really a nec means to commit the other offense, then art 48 should not
apply. That information therefore charges more than 1 offense. It is not proper
to apply Art 48 even if the crimes are alleged to be complexed, you are not
supposed to treat them as complexed. So in such a case, the information
would suffer from the so-called duplicity of offenses. If the MQ is filed, that
motion is impressed with merit, and therefore should be granted.
On the other hand, if a MQ is not filed, the court would proceed to the trial
as though 2 informations were filed. The duplicity does not invalidate the info.
It amts only to a waiver of the right of the accused to move for the quashal of
the information on the ground of duplicity. But if that has not been invoked,
then that info will proceed to trial as though the crimes alleged are covered by
different information. Hence, where the court found the accused guilty, the
court may render only 1 judgment but in that judgment there will be 2
sentences punishing each of the crime that were complexed but which are not
proper for complexing. This is how you will react to a situation on this, and this
is the common situation given in the Bar exams.
Firstly, your ability to detect whether the crime should be complexed or not
is there put in question. Now what is the effect if that crime which are not
proper for complexing are charged in 1 information? What is the
corresponding rights of the accused in such a situation? This is what you have
to anticipate under that Sec13 of R110.
Now in Sec 14, you have there the rule on amendment. Amendment must
be viewed on whether it was made before the accused was arraigned and had
entered a plea or whether the amendment was made when the accused had
already entered a plea. Amending the complaint or the information is a matter
of right if it had to be done b4 the arraignment of the accused. However, if that
amendment would downgrade the crime originally charged, or exclude any of
the accused originally charged, even though the amendment would be done
b4 the accused is arraigned, the new rules now require prior leave of court for
this kind of amendments. Prosecution is required to file a motion to amend,
and this must be done explained with reasons address to the court where the
criminal case is filed. Notice to the offended party is required. Whatever
resolution the court will render on that motion for leave to amend, the reasons
for granting or denying the motion for leave to amend must be stated in the
resolution. In other words, the court cannot just simply make a summary
resolution that finding merit in the motion for leave, the same is granted. The
court must state in the resolution the reason which prompted it to grant or
deny the motion for leave. Otherwise, if the amendment does not involve a
downgrading of the crime originally charged, or would not bring about the
dropping or exclusion of any of the accused originally charged, amending the
information before the accused is arraigned is a matter of right.
If the accused has already been arraigned, however, you have to discern
whether the intended amendment is one of substance or one of form. If the
amendment is to be made b4 the accused is arraigned, there is no need to
discern whether the amendment is a matter of substance or a matter of form.
What you will give only attention to is whether the amendment would
downgrade a crime originally charged or would be about exclusion of any of
the accused originally charged. Whether the amendment is of substance or
form is irrelevant. You will only discern this if the accused had already been
arraigned and had entered a plea, because at this stage of the criminal
proceedings, only amendment of form is allowed, and even then, prior leave of
court is required. ALL AMENDMENTS AFTER THE ACCUSED HAD BEEN
ARRAIGNED REQUIRES LEAVE OF COURT. Although the amendment is
limited only to matters of form.
In Section14, the restriction that although the amendment is one of form, if
it would prejudice the substantial rights of the accused, the same shall not be
granted. For example:
The information alleges a date which however turned out to be
mistaken. An amendment to correct the date is only a matter of form. So if
what is reflected is 1998, and when it should be 1999, the amendment is a
matter of form. But if the crime charged is malversation for a certain period,
and the year stated was 1998, turned out that it should be 1989, SC ruled that
because of the period involved in the amendment, it would definitely affect the
defense of the accused, because malversation committed in 1989 is different
from a malversation committed in 1998. That amendment should not just be
allowed even though as a matter of form, it will prejudice the rights of the
accused, particularly in the matter of preparing his defense. The amendment
of form will only be allowed if it will not prejudice the substantial rights of the
accused.
If the case has already began on trial where the law it was supposed to be
malversation committed in 1998, but suddenly the prosecution realize that the
years must be 1989, the defense of the accused had already run into the
merits of the case, and that would definitely already prejudice substantial
rights of the accused in the matter of preparing his defense. So in that
situation, although the amendment is to be one of form, because it will be
prejudicial to the substantial rights of the accused, the same shall not be
allowed. Leave of court should not be granted.
On whether the amendment is one of substance or one of form, you do not
look into the nature of the amendment. Instead, you will look into whether the
amendment would subject the accused to double jeopardy or not. If the effect
of the amendment would be double jeopardy to the accused, the same is
regarded as an amendment of substance. On the other hand, although the
amendment may involve substantial matters, if the accused will not be
subjected to double jeopardy, the amendment is regarded only as an
amendment of form because the effect will not impair the rights of the accused
against double jeopardy.
A good example of this is the case of Teehankee vs Judge Madayag
regarding the killing of the lady Maureen Haultman. Initially, the charged was
for frustrated murder. The victim was then still alive and in the hospital.
Prosecution has presented already 2 witnesses testifying against the accused
when some complications developed and the victim died. Hence, there is a
need to amendment the information to charge consummated murder instead
of frustrated murder only. Because the case has already gone to trial, more
than arraignment and plea of the accused, the accused naturally vehemently
objected to the amendment. Amending the information from frustrated murder
to consummated murder is certainly involves substance because frustrated
murder carries a penalty one degree lower than consummated murder, and
yet in this case SC ruled it is only amendment of form. Although the substance
of the amendment would be one that would make the amendment an
amendment of substance, not an amendment of form, because it will not
subject the accused to double jeopardy, the SC ruled it is only an amendment
of form. This is because under sec 7 r117, you have there 3 exceptions where
double jeopardy will not attached. And one of them in the first instance is
where supervening facts developed giving rise to a graver offense arising from
the same fact or omission charged in the original information. In view of this
where no double jeopardy will attached to the accused by virtue of the
amendment, amendment is regarded only as one of form. So the same was
allowed in relation to the last paragraph of R117.
The criterion in determining whether the amendment is one of substance
or one of form is not on the essence of the amendment but on the effect upon
the right of the accused against double jeopardy that may result out of the
amendment. If the amendment will subject the accused to DJ, then it is an
amendment of substance. If the amendment will not subject the accused to
DJ, and in this regard you have to consider the 3 exceptions under S7 of
R117, that amendment is regarded for this purpose only as an amendment of
form..
Under R111 on the matter of a civil action being considered filed upon the
institution of the criminal action, you have there exceptions to the rule.
Reservation is required to prosecute the civil liability separately from the
criminal action, unless, the civil liability is waived or the offended party filed a
civil action ahead of the criminal action or where the law does not allow any
reservation, otherwise the civil liability arising from the crime is deemed
instituted in the same criminal action.
Under the rule before the present revised rules, you will note that the civil
liability that goes with the criminal action is not limited only to those arising
from the crime, but rather covers all arising from the act. Now, the rule used
the word “crime”. There is a big distinction on this. That is why under the
former rule, any recovery of civil liability whether arising from the crime or not,
as long as it is arising from the same act, even though it is one of culpa
contractual, the same must be reserved. Otherwise, it is deemed instituted or
waived. Now it is again back to the old rule. Only the civil liability arising from
the crime are deemed instituted there. Hence, there is no need to make a
reservation for the filing of a separate civil action grounded on Article
32,33,34,&2176 of the Civil Code. Before this is not so. A reservation is still
required because these are civil liability arising from the act. Now that the civil
liability is limited to those arising only from the crime. No reservation is
needed. These actuations of making the rules vacillating from one rule to
another causes confusion. Jurisprudence rendered under the old Rule were
no longer true under the new Rule. Unless you do not pay attention to the
wordings of the Rule, in a way, the high court is resorting to trial and error
method, and that makes the study of the Rules confusing and difficult. You
have to dissect the provision. That is why reading commentaries on this may
be not trustworthy because the commentaries may be based on the old rule,
which is now different. You must have noticed this. In the different
amendments and revisions of the Rules, there are rules that have been
changed off and on, like this reservation, this has been changed 3 times. At
one time, following the view of Justice Barredo, reservation is not needed for
these actions under Article 32-34 & 2176 (NCC) because these are provided
in the Civil Code, and the civil code does not require any reservation. To
require a reservation would be to amend a substantive law. So in that case of
Santiago, SC said, no need to reserve because these are provided under the
articles of the Civil Code which is substantive law, and procedural law cannot
modify substantive law. But after that, there was required for its an orderly
administration a reservation. Thereafter, no need for a reservation. Now, no
need of a reservation again. {In the last rule, there is a need for a reservation.
So this simple thing changes 3 times, and lawyers are confused. They cannot
make up their minds. And that is why your study of law has become more
difficult. Bar reviews have become indispensable. And that is why there are
many review centers catering to those who would like to take the Bar exams.
(I) really do not understand what is happening to this country. Everyone
seems to have a bright idea. For all you know, these are indications of
insanity, unsound mind already. They are changing procedural rules every
now and then. The old Rules we learned before are better. There you have
stare decisis. Now there is no such thing as stare decisis anymore. They
changed the rules every now and then. No stability in jurisprudence. The rule
about review of cases where the penalty is reclusion perpetua, life
imprisonment, or death, has been a rule of several decades. But suddenly
between July of this year (2004), the high court came out with a different rule.
So everybody now who is taking the Bar are in a quandary whether to follow
that or not. And I have been receiving so much text asking me,”Is it true that
the cases, there is a new case where death penalty is now to be reviewed by
the CA. such confusion, that is why there is a move to enact a law to define
the rule-making power of the SC. Some lawmakers consider that the SC
believe it can do anything that it want to do, even though it is already
transgressing the bounds of constitutionality. There is a pending move to cut,
or define the rule making power (of the SC). You know the high court has
been transgressing substantive laws, like this rule about offsetting of a
aggravating, generic aggravating with mitigating. This has been modified. You
can only do that if the aggravating is alleged. So even if it is proven during the
trial because the accused did not object it really took place at that time, it is
not alleged, the court cannot appreciate that. Crime committed at nighttime,
the accused may not object because he knew that he really committed the
crime at nighttime. But because it is not alleged, the court should not take that.
Unfair to the prosecution. If there is any mitigating, that mitigating will stand
without any offsetting. Is that fair? Is that justice?
Wherein before when an accused in the crime of rape, you can have the
man to acknowledge the child born out of the rape. Suddenly they changed
this, for no reason at all. You cannot understand what is the mentality of some
of these people. They are not really ruling in favour of justice. They are ruling
in favour of injustice. So leaving the poor child without anybody
acknowledging him, who have brought him into this world. The plea
recognizing the convicted the offender to acknowledge the child and not
acknowledging him, the high court inclined towards not acknowledging him, in
effect punishing the poor child. Where is justice there? We cannot understand.
And that may be the cause of so many calamities visiting the Philippines. So
many evil people around. Part of Luzon is underwater. Calamities after
calamities visiting the country, because of the evil nature of so many politician,
and even those who are supposed to dispensed justice are more inclined to
do injustice. Justice Feliciano explained that the acknowledgement is not to
confer status, but only to establish the filiation of the child to show that the
child did not come out of this world without any father, and yet the high court
ruled otherwise. So you can expect more of these uncertainties. The best
thing is read the rules. Observe the wordings there.
Now the civil liability that goes with the crime is limited to those arising
from the crime, not arising from the act or omission.
The general rule is the reservation may be made to authorize the filing of a
separate civil action. Whereas the civil action did not arise out of the crime
charged, so you have these civil actions under Articles 32,33,34,&2176 of the
Civil Code. They can proceed independently of the criminal action without the
necessity of any reservation. For those civil liability arising from the crime, the
reservation is required if the aggrieved party would like to prosecute the claim
in a separate action. Yet, under the the new rules now, the civil action in
whatever stage it maybe will have to be suspended until a judgment is
rendered in the criminal action and the judgment must become final and
executory. And if the criminal action is already filed and a reservation is made,
the civil action cannot be filed anymore until after the criminal action has been
adjudged and the judgment had become final and executory. Is a good thing
that the new rules allow the offended party at anytime before judgment in the
civil action or in the criminal action to move for a consolidation of the civil
action toward the criminal action. If the offended party made a mistake of
moving for a reservation to file a separate civil action, a criminal action had
dragged so long, not so much in the trial court now because of the Speedy
Trial Act, but before the appellate court. So the aggrieved party may desire to
consolidate his civil action with the criminal action.
But once a judgment had been rendered in the criminal action, the
consolidation cannot be done anymore. He can only do so if there is yet no
judgment of conviction or acquittal rendered in the criminal action. Then also,
in any stage of the civil action, this maybe consolidated with the criminal
action, provided there is yet no judgment rendered by the court trying the civil
action.
Questions were asked on these provisions by one of the reviewees: Why is
it that the prosecution will cross-examine the complainant and his witnesses in
such a case where the civil action is consolidated with the criminal action?
Why not direct examination?
The situation referred to is where the witnesses and the complainant had
already testified in the civil action, so that the testimony will then be adopted in
the criminal action. The testimony may ran counter to the theory of the case of
the prosecution. Since they had already testified in the civil action, and what is
consolidated is only the civil action, they cannot be examined in a direct
examination any further. The only way the prosecutor can correct any
testimony that does not jibe with the theory of the prosecution in the criminal
case is to ask cross examination question, not a direct examination anymore.
That is why the rule refer to cross examination to clarify only, but not to add
any further. Because what is involved is only a claim for civil liability.
2 CASES where a reservation is not proper, whether the offended party likes it
or not, the civil liability arising from the crime is instituted in the criminal action
against the accused.
FIRST, in the case of criminal prosecution under BP22. No reservation to
file a separate civil action is allowed.
SECOND, in criminal actions against public officers for crimes w/in the
jurisdiction of the Sandiganbayan.
Given a problem in these cases, even if the offended party did not make
any reservation, the same is immaterial. He cannot file a separate civil action.
The rule itself prohibits this. The civil actions to recover indemnity arising from
the crime is instituted in that same criminal action.
For the court trying the criminal action to acquire jurisdiction over the civil
liability arising from the crime, the correct amount of the docket fee must be
filed, so must be paid.
Where the amount of the civil liability is already determined, the filing fee
based on that amount must be paid. Otherwise, the court will not acquire
jurisdiction over the claim. Excluded however in the payment of the docket fee
are actual or compensatory damages. But all other damages shall be
included. However, the amount of the damages are not determined, so they
will yet be determined during the trial, the docket fee will be a first lien on the
amount that maybe awarded under the judgment.
In the case of violations of BP22, the docket fee is based on the value of
the check. Actually, the value of the check is actual damages to the payee.
Yet here, the payee who will prosecute is required to pay the docket fee based
on the value of the check involved. So even without any assurance whether
he could collect or not, he is made to suffer additional damages by the
government. That is why the court does not allow a reservation, because if
there is a reservation, no filing fee. Without the reservation, if those in the
criminal action, a criminal action will not be filed in court unless the filing fee is
paid. So this is one criminal action where there is a filing fee. And the filing fee
is based on the gross value of the check involved. It would have been fair to
make the filing fee based on the amount as a lien for any recovery that the
payee may get, rather than requiring the offended party which the payee of
the bouncing to check to pay outright the filing fee, even before he has
collected a single centavo. So that would be adding insult to injury. Filing fee
now is exorbitant. For an amount of P1M, the filing fee is more than 9000. So
if you cannot have that amount, you cannot sue anymore for that value. The
courts have become mercenary. They should have made the filing payable as
a lien on the amount recovered. There is no certainty that the offended party
would be able to collect, and yet he is made to pay filing already, and that
would include the sheriff’s fees or incidental fees. Everything going to the
worst.
When a person has been arrested, the first thing to his mind and to those
of his family is how to bring him out of detention. So the rule on Bail.
BAIL (R114)
A person who had been arrested for a crime may regain provisional
liberty in either of 2 principal ways:
1. through a Recognizance
2. through a posting of a Bail. The bail may be in cash, in property,
or in surety bond
When bail mat be denied or cancelled after the accused was already
convicted in the RTC?
If the penalty imposed by the trial court is imprisonment exceeding 6
years but not more than 20 years, and upon a showing by the prosecution,
with noticed to the accused, of the following:
1. That the accused is a recidivist, quasi-recidivist, or habitual
delinquent, or has committed the crime aggravated by the
circumstance of reiteration;
2. That the accused has previously escaped from legal
confinement, evaded sentence, or has violated the conditions of
his bail without valid justification;
3. That he committed the offense while under probation, parole, or
conditional pardon;
4. That the circumstances of his case indicate the probability of
flight if released on bail; or
5. That there is undue risk that he may commit another crime
during the pendency of the appeal. (Sec 5, R114)
When bail is a matter of right, the court cannot just grant it ex-parte. A
hearing is also necessary. That is because even when bail is a matter
of right, there are certain factors (see Sec 9, R114) that the trial court
will have to determine in fixing the amount of the bail. Otherwise, it
would imply that the court fixed the amount arbitrarily.
Sec 9, R114 --- The judge who issued the warrant or granted the
application {for bail} shall fix a reasonable amount of bail
considering primarily, but not limited to the following :
1. financial ability of the accused to give bail;
2. nature and circumstances of the offense;
3. penalty for the offense charged;
4. character and reputation of the accused;
5. age and health of the accused;
6. weight of the evidence against the accused;
7. probability of the accused qppearing at the trial;
8. forfeiture of other bails;
9. the fact that the accused was a fugitive from justice when arrested;
and
10. pendency of other cases where the accused is on bail
Bail is a sort of security to assure that the accused would not go into
hiding and evade trial for the crime of which he has been charged in
court. The primary consideration here is the probability of flight. This is
corollary to the prerogative of the accused to cause the arrest and
detention of an accused in order to hold him, or it would appear that
there is such necessity so that he will not frustrate the ends of justice.
Therefore, when the accused is shown to be already bedridden or
crippled, probability of flight is already negative. Even if bail is a matter
of discretion, it would be grave abuse of discretion to deny bail.
Where to require the accused to be held in jail would endanger his very
life, let us say, he is suffering from cardiac arrest, that he is under
sedation, despite of that because the evidence of guilt is strong, the
court order that he be taken to jail when he is already under dextrose,
that is inhuman. Primary criterion is probability of flight.
Even when the offender has already applied for bail, he may still
question the vailidity of his arrest or the legality of the issuance of the
warrant for his arrest, the regularity of his arrest, the absence of
preliminary investigation of the charge against him, provided this is
raised before the arraignment and prior to entering his plea
therein.
CASE: People vs Rolito Go
A person arrested for a crime is now allowed to post bail, even before
he is charged in court.
Note: Where a criminal case is already filed in court, and the crime is
punishable by reclusion perpetua, death, or life imprisonment,
application for bail can only be had in the court where the case is filed.
This is necessary………… [read: Sec 17 R114 ]
When the amount of the bail fixed by the judge where the application
for bail is filed is exorbitant, the applicant may file for a reduction of bail
in the criminal court where the case is filed.