RULE 119 REMEDIAL LAW COMPENDIUM SECS, 4-5 whom the court has not acquired jurisdiction, or, as to whom the time for trial has not run and no motion for separate trial has been granted. ( Any period of delay resulting from a continuance granted by any court motu proprio, or on motion of either the accused or his counsel, or the prosecution, if the court granted the continuance on the basis of its findings set forth in the order that the ends of justice served by taking such action outweigh the best interest of the public and the accused in a speedy trial. (sec. 9, cir. 38-98) Sec. 4. Factors for granting continuance. — The following factors, among others, shall be consi- dered by a court in determining whether to grant a continuance under section 3(f) of this Rule: (a) Whether or not the failure to grant a continuance in the proceeding would likely make a continuation of such proceeding impossible or result in a miscarriage of justice; and (b) Whether or not the case taken as a whole is so novel, unusual and complex, due to the number of accused or the nature of the prosecution, or that it is unreasonable to expect adequate preparation within the periods of time established therein. In addition, no continuance under section 3(0) of this Rule shall be granted because of congestion of the court’s ealendar or lack of diligent pre- paration or failure to obtain available witnesses on the part of the prosecutor. (sec. 10, cir. 38-98) Sec. 5. Time limit following an order for new trial. —If the accused is to be tried again pursuant to an order for a new trial, the trial shall commence 550 RULI ne ‘TRIAL SBCS. 6-7 within thirty (30) days from notice of the order, provided that if the period becomes impractical due to unavailability of witnesses and other factors, the court may extend it but not to exceed one hundred eighty (180) days from notice of said order for a new trial. (sec. 11, cir. 38-98) Sec. 6, Extended time limit. — Notwithstanding the provisions of section 1(g), Rule 116 and the preceding section 1, for the first twelve-calendar- month period following its effectivity on Septem- ber 15, 1998, the time limit with respect to the period from arraignment to trial imposed by said provision shall be one hundred eighty (180) days. For the second twelve-month period, the time limit shall be one hundred twenty (120) days, and for the third twelve-month-period, the time limit shall be eighty (80) days. (see. 7, cir. 38-98) Sec. 7. Public attorney's duties where accused is imprisoned. — If the public attorney assigned to defend a person charged with a crime knows that the latter is preventively detained, either because he is charged with a bailable crime but has no means to post bail, or, is charged with a non-bailable crime, or, is serving a term of imprisonment in any penal institution, it shall be his duty to do the following: () Shall promptly undertake to obtain the presence of the prisoner for trial or cause a notice to be served on the person having custody of the prisoner requiring such person to so advise the prisoner of his right to demand trial. (b) Upon receipt of that notice, the custodian of the prisoner shall promptly advise the prisoner of the charge and his right to demand trial. If at 651RULE 119 REMEDIAL LAW COMPENDIUM. SEC. 8 any time thereafter the prisoner informs his custodian that he demands such trial, the latter shall cause notice to that effect to be sent promptly to the public attorney. (c) Upon receipt of such notice, the publ attorney shall promptly seek to obtain the presence of the prisoner for trial. (@) When the custodian of the prisoner receives from the public attorney a properly supported request for the availability of the prisoner for purposes of trial, the prisoner shall be made avail- able accordingly. (sec. 12, cir. 38-98) See. 8. Sanctions. — In any case in which private counsel for the accused, the public attorney, or the prosecutor: (a) Knowingly allows his case to be set for trial without disclosing that a necessary witness would be unavailable for trial; (b) Files a motion solely for delay which he knows is totally frivolous and without meri (c) Makes a statement for the purpose of obtaining continuance which he knows to be false and which is material to the granting of a continuance; or (d) Willfully fails to proceed to trial without justification consistent with the provisions hereof, the court may punish such counsel, attorney, or prosecutor, as follows: (1) By imposing on a counsel retained in connection with the defense of an accused, a fine not exceeding twenty thousand pesos (P20,000.00); 552 RULE TRIAL, SBCS. 9.10 (2) By imposing on any appointed counsel de oficio, public attorney, or prosecutor a fine not exceeding five thousand pesos (P5,000.00); and (3) By denying any defense counsel or prosecutor the right to practice before the court trying the case for a period not exceeding thirty (30) days. The punishment provided for by this section shall be without prejudice to any appropriate criminal action or other sanction authorized under these Rules. (see, 13, cir. 38-98) Sec. 9. Remedy where accused is not brought to trial within the time limit, — If the accused is not brought to trial within the time limit required by section 1(g), Rule 116 and section 1, as extended by section 6 of this Rule, the information may be dismissed on motion of the accused on the ground of denial of his right to speedy trial. The accused shall have the burden of proving the motion but the prosecution shall have the burden of going forward with the evidence to establish the exclusion of time under section 3 of this Rule. The dismissal shall be subject to the rules on double jeopardy. Failure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under this section. (see. 14, cir. 38-98) See. 10. Law on speedy trial not a,bar to provision on speedy trial in the Constitution. — No provision of law on speedy trial and no rule implementing the same shall be interpreted as a bar to any charge of denial of the right to speedy trial guaranteed by section 142), Article III of the 1987 Constitution. (see, 15, eir, 38-98)REMEDIAL LAW COMPENDIUM. SEe.11 NOTE 1, The foregoing new sections of this Rule, as indicated therein, were taken from Circular No. 38-98 of the Supreme Court (see Appendix Y) which was promulgated on August 11, 1998 and took effect on September 15, 1998, for the purpose of implementing R.A. 8493, otherwise known as the “Speedy Trial Act of 1998" (sev Appendix X), as directed in Sec. 15 thereof. Other parts of that circular have also been adopted in the other revised Rules. See also the discussion hereon in People us. Anonas (G.R. No. 156847, Jan. 31, 2007). See. 11, Order of trial. —The trial shall proceed in the following order: (a) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability. (b) The accused may present evidence to prove his defense and damages, if any, arising from the issuance of a provisional remedy in the case. (c) The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence unless the court, in furtherance of justice, permits them to present additional evidence bearing upon the main issue. (@) Upon admission of the evidence of the parties the case shall be deemed submitted for decision unless the court directs them to argue orally or to submit written memoranda. (e) When the accused admits the act or omission charged in the complaint or information but interposes a lawful defense, the order of trial may be modified. (3a) 564 19 ‘TRIAL SEC. NOTES. 1, While looked upon with disfavor, departure from foresaid order of trial is not reversible error, as where igreed upon or not seasonably objected to (People vs. Camarao, [CA], 65 0.G. 8246; U.S. vs. Gaoiran, 17 Phil. 404), but not where the change in the order of trial was timely objected to by the defense (Alejandro vs. Pepito, etc., GR. No. 52090, Feb. 21, 1980). 2. After the prosecution has presented its evidence, the accused may demur thereto, i.e., move for dismissal on the ground of insufficiency of evidence to convict (People us. Mamacol, 81 Phil. 543). If the same is denied, the presentation of evidence by the accused will be subject to the contingencies provided in See. 23 of this Rule. 3, Formerly, unlike the rule in civil actions, evidence in a criminal case could not be subject to stipulation by the parties (U.S. vs. Donato, 9 Phil. 701; People vs. Ordonio, [CA], 67 0.G. 4224). ‘The accused, however, could make judicial admissions of facts alleged in the information (People us. Mapa, L-22301, Aug. 30, 1967; People vs. Bocar, et al., L-27120, Mar. 28, 1969). ‘These 1es, however, should now be taken in light of the provisions of Sec. 1, Rule 118 on pre-trial and the subjects which may be agreed upon at the conference therefo: 4, Where the order of trial set forth in this section was not followed by the court to the extent of denying the prosecution an opportunity to present ‘its evidence, the judgment is a nullity (People us. Balisacan, supra). 5. ‘The admission of rebuttal evidence is addressed to the sound discretion of the trial court and considerable latitude should be allowed (People vs. Francisco, 78 Phil. 4), and such discretion will not be disturbed absent a finding that the accused was taken by surprise or was 555RULE 119 REMEDIAL LAW COMPENDIUM SECS. 12-19 prevented from introducing surrebuttal evidence (U.S. vs. Razon, 37 Phil. 856). 6. The right to present rebuttal evidence is secured to the State, no less than to the accused, under Sec. 11(¢) of this Rule (People vs. Francisco, supra). Also, it is competent for a court to allow a party who has closed his case to introduce additional evidence as late as the rebuttal stage (Lopez vs. Liboro, 81 Phil. 429; Chao vs. Cia. Maritima, [CA], 64 0.G. 543). However, the prior permission of the court is required for the introduction of further evidence in chief; and additional testimony in chief presented in the guise of rebuttal evidence, without the previous consent of the court, may not be considered (People vs. Legaspi, [CA], 65 0.G. 12749). See. 12, Application for examination of witness for accused before trial. — When the accused has been held to answer for an offense, he may, upon motion with notice to the other parties, have witnesses conditionally examined in his behalf. The motion shall state: (a) the name and residence of the witness; (b) the substance of his testimony; and (c) that the witness is so sick or infirm as to afford reasonable grounds for believing that he will not be able to attend the trial, or resides more than one hundred (100) kilometers from the place of trial and has no means to attend the same, or that other similar circumstances exist that would make him unavailable or prevent him from attending the trial. ‘The motion shall be supported by an affidavit of the accused and such other evidence as the court may require. (4a) Sec. 13. Examination of defense witness; how made. — If the court is satisfied that the examination of a 556 ULE ‘TRIAL SEC. 14 witness for the accused is necessary, an order shall be made directing that the witness be examined at ‘a specific date, time and place, and that a copy of the order be served on the prosecutor at least three (8) days before the scheduled examination. The examination will be taken before a judge or, if not practicable, a member of the Bar in good standing so designated by the judge in the order, or, if the order be granted by a court of superior jurisdiction, before an inferior court to be designated therein. ‘The examination shall proceed notwithstanding the absence of the prosecutor provided he was duly notified of the hearing. A written record of the testimony shall be taken. (5a) NOTES. 1. The conditional examination of defense witnesses under this section is one mode of perpetuating testimony available to the accused. Such conditional examination can now be conducted by any judge or any member of the Bar designated by the trial court, or by a lower court designated by a court of superior jurisdiction which issued the order. 2, The determination of whether or not the taking of the oral deposition of a witness for the defense who is abroad is necessary is addressed to the sound diseretion of the trial court (Jaylo us. Sandiganbayan, et al., G.R. Nos. 111502-04, Nov. 22, 2001). . See. 14. Bail to secure appearance of material witness. — When the court is satisfied, upon proof or oath, that a material witness will not testify when required, it may upon motion of either party, order the witness to post bail in such sum as may be deemed proper. Upon refusal to post bail, the court 867RULE 119 REMEDIAL LAW COMPENDIUM SEC. 16 shall commit him to prison until he complies or is legally discharged after his testimony has been taken. (6a) NOTES 1. As amended, the Rule now provides that any material witness, whether for the defense or the prosecution, may be required to post bail. ‘The former rule referred only to prosecution witnesses. Also, this rule is now applicable to courts of the first level 2. ‘This is the second instance where bail may be required of material witnesses, the first being that under Sec. 14, Rule 110 when there is a substitution of the information or complaint. See. 15. Examination of witness for the prosecution. — When it satisfactorily appears that 2 witness for the prosecution is too sick or infirm to appear at the trial as direeted by the court, or has to leave the Philippines with no definite date of returning, he may forthwith be conditionally examined before the court where the case is pending. Such examination, in the presence of the accused, or in his absence after reasonable notice to attend the examination has been served on him, shall be conducted in the same manner as an examination at the trial, Failure or refusal of the accused to attend the examination after notice shall be considered a waiver, The statement taken may be admitted in behalf of or against the accused. (7a) NOTES 1. Unlike the procedure in the conditional ex- amination of witnesses for the accused (Sec.13), the 568 RULE 119 ‘TRIAL SBC. 16 conditional examination of prosecution witnesses shall be conducted before the judge or the court where the case is pending and in the presence of the accused, unless he waived his right after reasonable notice. Furthermore, the conditional examination of prosecution witnesses will be conducted in the same manner as an examination at the trial. The accused will have the right to cross-examine such prosecution witness, hence such statements of the prosecution witnesses may thereafter be admissible in behalf of or against the accused. 2, Also, unlike the witnesses for the accused who may be conditionally examined if they reside more than 100 kilometers from the place of trial and have no means to attend the same, this circumstance does not apply to prosecution witnesses as a ground for their conditional examination since the Government is assumed to have the facilities for making them available at the trial. 8, Interpreting a provision under P.D. 328 (Oct. 31, 1978) similar to the former provisions of Sec. 7 of this Rule, the Supreme Court held that notice for the conditional examination of prosecution witnesses is intended merely to give the accused time to attend the taking thereof and not to prepare therefor as there is no need for preparation on his part (Aquino, Jr. us. Military Commission No.2, et al,, L-37364, May 9, 1975). Under the amended Rules, such ruling may no longer be controlling in view of the present procedure and the new evidentiary rule on the statements made by prosecution witnesses in the conditional examination. 4. ‘The accused may waive his right to be present at the proceeding for perpetuation of testimony even if he is charged with a eapital offense, except if his prosence is necessary for his identification (Aquino, Jr. vs. Military Commission No. 2, et al., supra). It is believed that this doctrine still applies. 659RULE 119 REMEDIAL LAW COMPENDIUM SEC. 16 Sec. 16. Trial of several accused. — When two or more accused are jointly charged with an offense, they shall be tried jointly unless the court, in its discretion and upon motion of the prosecution or any accused, orders separate trial for one or more aceused. (8a) NOTES, 1. A motion for separate trial must be filed before the commencement of the trial (People us. Torres, et al., 62 Phil. 942) and can not be raised for the first time on appeal (People us. Romualdez, et al.,.57 Phil. 148). However, it has also been held that where the defenses of the different accused may be antagonistic to each other in a case charging a capital offense, and considering that Sec. 8 (now, Sec. 16) of this Rule does not state when the motion for separate trial should be filed, in the interest of justice, a separate trial may be ordered even after the prosecution has rested its case, but it shall not be necessary for the prosecution to adduce its evidence all over again in each separate trial (Joseph, et al. vs. Vilmuz, etc., et al., L-46329-40, April 10, 1979; ef. Talino vs. Sandiganbayan, et al., G.R. Nos. 75511-14, Mar. 16, 1987). Even if a joint trial is conducted, the accused can always be permitted to present their evidence separately. 2. Ifa separate trial is granted, the testimony of one accused imputing the crime to his co-accused is not admissible against the latter (People us. Tanso, 105 Phil. 1289). Ina joint trial, it would be admissible if the latter had the opportunity for cross-examination (People vs. Carpio, 68 Phil. 490). 3. ‘The granting of separate trials rests entirely within the discretion of the trial court (People us. Cruz, [CA], 48 0.G, 1658). In a prosecution for adultery, a 560 RULE 119 TRIAL, so. 17 separate trial may be granted since the death, acquittal or termination of the case as to one of the accused does not bar the prosecution of the other (People vs. Oplado, et al., L-20146, Sept. 30, 1964). 4, When two accused are jointly charged with an offense, joint trial is automatic, without need of a court order; but to try a person for several offenses based on the same facts, or which form part of a series of the same character, requires a court order under Sec. 14 (now, Sec. 22) of this Rule (People vs. Navarro, etc., et al., L-38453-654, Mar. 25, 1975). See. 17. Discharge of accused to be state witness. — When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that: (a) There is absolute necessity for the testimony of the accused whose discharge is requested; (b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accusa (©) The testimony of said accused can be substantially corroborated in its material points; @) Said accused does not appear to be the most guilty; and (©) Said accused has not at any time been convicted of any offense involving moral turpitude. 561RULE 119 REMEDIAL LAW COMPENDIUM SEC. 18 Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in evidence. (9a) Sec. 18. Discharge of accused operates as acquittal. — The order indicated in the preceding section shall amount to an acquittal of the discharged accused and shall be a bar to future prosecution for the same offense, unless the accused fails or refuses to testify against his co-accused in accordance with his sworn statement constituting the basis for his discharge. (10a) NOTES 1. Under the amendment of then Sec. 9, which is maintained in the present revised Sec. 17, the following are the salient changes: a, ‘The motion to discharge should be made by the prosecution before resting its case, unlike the former rule wherein it may do so even after it had rested provided the accused had not yet commenced presenting their evidence ("before they have entered upon their defense”). b. Before resolving such motion to discharge an accused to be a State witness, the court shall require the prosecution to present evidence and the sworn statement of the proposed State witness ata hearing of the motion to discharge. This was not required under the former rules, hence questions sometimes arose as to whether the subsequent testimony of the State witness at the trial was partial, corrupt or otherwise violative of his undertaking and representations on the basis of which his discharge was proposed and granted. This amendatory requirement 562 RULE. ‘TRIAL SBC. 18 sets aside the doctrine in People vs. Hidalgo, et al. (102 Phil. 719), ©. The evidence adduced in support of the motion to discharge at the hearing thereof shall automatically form part of the evidence at the trial of the case. ‘This is similar to the rule on evidence presented during the hearing of an application for admission to bail where the accused is charged with an offense punishable by death, reclusion perpetua or life imprisonment (Sec. 8, Rule 114), and of evidence presented in a separate civil action which was later consolidated with the criminal ease (Sec. 2, Rule 111). d. If the court thereafter denies the motion for the discharge of the accused as a State witness, his afore said sworn statement shall be inadmissible in evidence at the trial. Conversely, if his discharge is granted, such sworn testimony is admissible in evidence. ‘This evidentiary rule is an innovation under both the rules on criminal procedure and evidence. 2, The absence of any of the requisites for the charge of a particeps criminis under Sec. 17 is a ground for objection to the motion for his discharge, but such objection must be raised before the discharge is nrdered (People vs. Marcellana, et al., 44 Phil. 591; cf. Can vs, Galing, ete., GR. No. 54258, Nov. 27, 1987). . Although generally a motion to discharge under this section presupposes that an information has already been filed against. two or more accused, it has been held at a person does not have to be first charged in the information before he can testify for the prosecution. Hence, even if the witness appeared to have participated n the offense but he was not included in the information, he can testify as a prosceution witness (People v Binsol, et al., 100 Phil. 713). 563RULE 19 REMEDIAL LAW COMPENDIUM SBC, 18 4. The Supreme Court has clarified that an accused cannot be made a hostile witness for the prosecution as this would compel him to be a witness against himself. However, he may testify against a co-accused where he has agreed to do so, with full knowledge of his right and the consequences of his acts, and it is not necessary that the court should first discharge him as a State witness. here is a difference between testifying as a State witness and testifying against a co-accused. In the first, the proposed State witness must qualify under this Rule, after which he is discharged as an accused and exempted fro. iy. In the second, he remains as an accused and can be made liable should he be found guilty of the offense charged (People us. Chavez, etc., et al, G.R. No, 131377, Feb. 11, 2003). 5, It is not necessary that the accused who was discharged be the least guilty, as the rule only requires that he “does not appear to be the most guilty” (People vs. Faltado, et al., 84 Phil. 89; People vs. Bayona, ete., et al 108 Phil. 104; People vs. CA, et al., G.R. No. 55% duly 31, 1984). ‘The fact that all the accused in the case were conspirators in the crime and should be meted the same penalty does not mean that none of them will be eligible for discharge to be a State witness. While the acts of conspirators are imputable to all of them and the same or equal penalties are imposable on all, in determining whether or not an accused conspirator does not appear to be the “most guilty,” that rule of substantive law does not apply to the adjective device in Sec. 9 (now, Sec. 17). ‘The requirement therein that the prospective State-witness should not appear to be the “most guilty” means that he has not incurred the highest degree of culpability in terms of participation in the commission of the offense, and this is not necessarily equated with the severity of 3, 564 RULE 19 ‘TRIAL SEC. 18 the penalty to be imposed. The rule on particeps eriminis siders his actual and individual participation in the ‘commission of the crime. Ifhe had a lower degree of actual participation in the crime, and all the other requirements in Sec. 9 are present, he can be utilized as a witness for the Government (People vs. Sandiganbayan, et al., G.R. No 115439-41, July 16, 1997; see also People vs. Ocimar, GR, No. 94556, Aug. 17, 1992). 7. An accused is disqualified to be a State witness he had theretofore been convicted by final judgment, hence, his previous commitment under Art. 80 of the Revised Penal Code (now, Sec. 189, P.D. 603) does not disqualify him (People vs. Bacsa, 104 Phil. i36). The same is true if the previous conviction is still pending appeal. Thus, where at the time of the discharge of the accused and her giving of testimony as a State witness, her previous convietion of another offense was still ending on appeal, the subsequent affirmance of said convietion by the appellate court does not invalidate her discharge or render inadmissible her testimony (Mangubat, et al. vs, Sandiganbayan, et al., GR. Nos. 60613-20, Aug. 29, 1986). 8. Even where the discharge was erroneous as when, it turned out later that the accused was disqualified, such will not affect the legal consequences of the discharge (People vs. Mendiola, 82 Phil. 740), as where it was discovered, after he had been discharged, that the accused had previously been convicted of a crime involving moral iscovered while he the case wherein he was scharged, such fact does not affect his competence or the validity of his discharge (People vs. Bautista, 106 Phil. 9; cf. Mangubat, et al, us, Sandiganbayan, et al., supra), though it may affect his credibility (U.S. vs. Abanzado, al., 37 Phil. 658; ef. People vs. Jamero, et al., L-19852, 565RULE 119 REMEDIAL LAW COMPENDIUM SBC. 18 July 29, 1968; People vs. Ompad, et al., L-23531, Jan. 31, 1969). 9. Under the former procedure, where an accused who turns State's evidence later retracts and fails to keep his part of the agreement, he can be reincluded in the information and his confession of his participation in the crime is admissible in evidence against him (People vs. Beberino. et al., L-23092, Oct. 28, 197). But where the failure of the accused to testify is not imputable to him but to the prosecution, as where the prosecution failed to present him to testify, the accused is deemed to have complied with his undertaking for his discharge (People us. Mendiola, supra; cf. People vs. Tabayoyong, et al., 1-31084, May 29, 1981). These contingencies are now minimized, if not completely eliminated, by the present requirements for a hearing on the evidence and sworn statement of the proposed State witness and the action to be taken thereon under the second paragraph of Sec. 17. 10, ‘The discharge of the accused to be a State witness lies in the discretion of the court and the prosecution can only propose such discharge (People us. Ibaiiez, etc., et al., 92 Phil. 933; People vs. Bautista, et al., 106 Phil. 39), and the court may refuse such discharge if the objective of the prosecution will not be served by that discharge (People vs. Torres, [CA], 62 0.G. No. 5, 1052). 11. Absolute certainty is not required in determining whether the conditions for discharge under Sec. 17 of this Rule are present, since the trial court has perforce to rely in large part on the representations of the prosecution (People vs. CA, et al., G.R. No. 62881, Aug. 30, 1983). Where, however, the discharge of one of the accused is opposed on the ground that there is no absolute necessity for his testimony, it being alleged to be merely corroborative, unlike the situation where he alone has knowledge of the crime, the trial court should defer its action on the motion 666 RULE 119 ‘TRIAL, SEC. 18 to discharge until after the prosecution has presented all its evidence (Flores, et al. vs. Sandiganbayan, et al., G.R. No. 63677, Aug. 12, 1983). Under the same rationale, it was subsequently held that the discharge of an accused was proper even if all the prosecution witnesses had testified since his testimony could be corroborated by the evidence on record, and not necessarily by the testimony of other witnesses to be thereafter presented, hence it could already thereby be determined that there was absolute necessity for his testimony to establish conspiracy (People us. CA, et al., supra). 12. Despite the admissibility of the testimony of a discharged accused, the same should be subjected to the tests of credibility and should be scrutinized with care, coming as it does from a polluted source. Thus, where the conviction of the other accused was based exclusively on that testimony which, however, was inherently incredible and not corroborated on its material points, said testimony stands discredited and the other accused were acquitted (People vs. Tabayoyong, et al., supra). This section requires that such testimony be substantially corroborated by other evidence (Barreto, et al. vs. Sandiganbayan, GR. Nos, 57333-87, Sept. 16, 1986). 13. A conspirator who has been admitted into the Witness Protection Program need not be charged in the information before he can testify as a government witness. R.A. 6981 (Witness Protection, Security and Benefit Act) ‘empowers the Department of Justice to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. ‘This is different from and is not prohibited by the rule on discharge of State witnesses under Sec. 9 (now, Sec. 17) of Rute 119 which is 8 judicial function regulated by the Rules (People us. Peralta, G.R. No. 133267, Aug. 8, 2002, citing Webb vs. Leon, etc., et al., G.R. No. 121234, Aug. 23, 1995). 567REMEDIAL LAW COMPENDIUM —_—_ SECS. 19, 20 Sec. 19, When mistake has been made in charging the proper offense. — When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or of any other offense necessarily in- cluded therein, the accused shall not be discharged if there appears to be good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original ease upon the filing of the proper information. (11a) NOTES 1, See Sec, 14, Rule 110 and notes thereunder. 2. It has, however, been held that where, after trial or on appeal, the accused is found to have committed a lesser offense includible within the offense charged but such lesser offense had already prescribed before the filing of the information charging the graver offense, he cannot be convicted of said lesser offense; otherwise, the law could easily be subverted by the simple expedient of charging the accused with the graver offense in order to evade the defense of prescription (Francisco, et al. us, CA, et al., L-45674, May 30, 1983). Sec. 20, Appointment of acting prosecutor. — When a prosecutor, his assistant or deputy is dis- qualified to act due to any of the grounds stated in section 1 of Rule 137, or for any other reason, the judge or the prosecutor shall communicate with the Secretary of Justice in order that the latter may appoint an acting prosecutor. (12a) 568, 9 ‘RIAL, SEC. 20 NOTES, 1, Rule 137 provides as follows: “Section 1. Disqualification of judges. — No judge or judicial officer shall sit in any case in which he, or his wife or child, is pecuniarily interested as heir, legatee, ereditor or otherwise, or in which he is related to either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the rules of civil law, or in which he has been executor, administrator, guardian, trustee, or counsel or in which he has presided in any inferior court when his ruling or decision is subject of review, without the written consent of all parties in interest, signed by them and entered upon the record. A judge may, in the exercise of his sound dis- cretion, disqualify himself from sitting in a case, for just or valid reasons other than those mentioned above, 2. Sec. 2, Rule 137 provides for the procedure for objecting to the competence of the judge and which procedure must be substantially followed (Joaquin vs. Barretto, 25 Phil. 281). Such objection must be in writing and the judge shall determine his qualification ‘The judge, under the Rules, is not allowed to receive evidence on the motion for inhibition (Sardinia-Linco, etal. us, Pineda etc., et al., G.R. No. 55939, May 29, 1981). 3. Once a public prosecutor has been entrusted with the investigation of a case and has agreed thereto by filing the information, he is duty bound to take charge thereof until its final termination and he cannot be relieved therefrom except on a ground that constitutes « legal disqualification. The power of control andRULE 119 REMEDIAL LAW COMPENDIUM SECS. 21, 22 supervision by the Secretary of Justice over the then fiscals extends only to administrative matters and not when it will encroach on the performance by the fiscal of his duties (Salcedo vs. Liwag, et al., L-21068, Nov. 29, 1963). Sec. 21. Exclusion of the public. — The judge may, motu proprio, exclude the public from the courtroom if the evidence to be produced during the trial is offensive to decency or public morals. He may also, on motion of the accused, exclude the public from the trial except court personnel and the counsel of the parties. (1a) NOTE 1. Rule 135 also provides as follows: “Sec. 2. Publicity of proceedings and record. — ‘The sitting of every court of justice shall be public, but any court may, in its discretion, exelude the publi when the evidence to be adduced is of such nature as to require their exclusion in the interest of morality and decency. ‘The records of every court of justice shall be public records and shall be available for the inspection of any interested person, at all proper business hours, under the supervision of the clerk having custody of such records, unless the court shall, in any special case, have forbidden their publicity, in the interest of morality or decency. Sec. 22. Consolidation of trials of related offenses. — Charges for offenses founded on the same facts or forming part of a series of offenses of similar character may be tried jointly at the discretion of the court. (14a) 870 RULE 119 TRIAL, SEC. 23 NOTES 1, Asin civil actions, there can be severance and con- solidation of criminal actions. This section contemplates the situation where separate informations are filed (a) for offenses founded on the same facts, or (b) for offenses which form part of a series of offenses of similar character. Such separate charges may be against the same or different. accused, 2. See Sec. 16 of this Rule and the notes thereunder regarding trial of several accused. Sec. 23. Demurrer to evidence. — After the prosecution rests its ease, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own initiative after giving the prosecution the opportunity to be heard or (2) upon demurrer to evidence filed by the accused with or without leave of court. If the court denies the demurrer to evidence filed with leave of court, the accused may adduce evidence in his defense. When the demurrer to evidence is filed without leave of court, the accused waives his right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution. (15a) ‘The motion for leave of court to file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (6) days after the prosecution rests its case. ‘The prosecution may oppose the motion within a non-extendible period of five (5) days from its receipt. If leave of court is granted, the accused shall file the demurrer to evidence within a non- bmRULE REMEDIAL LAW COMPENDIUM Ske. 23 extendible period of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt. ‘The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before tie judgment. (n) NOTES 1. This is a revised provision which also sets aside with modifications the doctrine in Abriol us. Homeres, etc. (84 Phil, 525) and other cases decided under the former procedure wherein the accused always had the right to present his evidence after the denial of his motion. As further amended, this section recognizes the power of the trial court to dismiss the case motu proprio provided the prosecution had an opportunity to be heard. Also, the former provision that the filing of the demurrer to evidence constitutes a waiver by the accused of his right to present evidence has been tempered by the amendment which conditions such right upon whether or not prior express leave of court was obtained for the filing of such demurrer. ‘This procedural change subserves the purpose of the original provision since, in the hearing of the motion for such leave of court, the trial court will have the opportunity to ascertain, inter alia, whether the projected demurrer is prima facie meritorious or merely dilatory. ‘This section also reinforces the doctrine in Joseph, et al. us, Villaluz, ete., et al. (1,-46329-30, April 10, 1979) that certiorari does not lie from such order denying the motion to dismiss since, as the rule now stands, the filing of such motion without leave of court results in the submission of the case for decision on the basis of the evidence on record and, of course, in light of the arguments 672, ‘TRIAL SBC. 23 raised in said motion to dismiss which will necessarily be taken into account in the decision to be rendered. In situations of this nature, appeal is the remedy of the accused from an adverse judgment that may there- after be rendered (Cruz vs. People, et al., G.R. No. 67228, Oct. 9, 1986). 2. On the other hand, if said motion to dismiss is sustained, such dismissal being on the merits is equivalent to an acquittal, hence the prosecution cannot appeal as it would place the accused in double jeopardy (People vs. City Court of Silay, et al., L-43790, Dec. 9, 1976). ‘This situation constitutes an exception to the rule that the dismissal of a criminal case made with the express consent by the accused or at his instance bars a plea of double jeopardy (People vs. Sandiganbayan, et al., G.R. No. 140633, Feb. 4, 2002). 3. A demurrer to evidence tests the sufficiency or insufficiency of the prosecution's evidence, hence a demurrer to evidence or a motion for leave to file the same must be filed after the prosecution has rested its case. To conclude the case for the prosecution, the rules require that there must have been a prior formal offer of its evidence, hence a demurrer filed before then is premature and the motion must be denied, without cjudice to further appropriate proceedings (Valencia vs. Sandiganbayan, G.R. No. 165996, Oct. 17, 2005). 4. The prosent doctrines maintain the rule that, ally, an order denying a demurrer to evidence is interlocutory, not appealable and, generally, cannot be the subject of appeal. However, when the assailed inter- locutory order of denial is patently erroneous or issued with grave abuse of discretion, excess of jurisdiction, 0 oppressive exercise of judicial authority, the remedy of certiorari lies (Ong, et al. vs. People, G.R. No. 140904, Oct. 9, 2000; People vs. Laguio, etc., et al., G.R. 573RULE 119 REMEDIAL LAW COMPENDIUM SEC. 25 No. 128587, Mar. 16, 2007). 5. The new rule on demurrer to evidence in a criminal case differs from that in a civil case (Rule 33) since the defendant in the civil case can always present his evidence in the event his demurrer is denied, even if no reservation was made therefor; while in a criminal case, the filing of a demurrer to the evidence without leave of court is an unqualified waiver of the right to present evidence for the accused. They differ, further, in the effect of an order sustaining the demurrer since, in civil cases, the plaintiff can appeal from the judgment of dismissal, unlike the dismissal on the same ground in criminal cases which is not appealable as the accused would thereby be placed in double jeopardy. 6. Republic vs. Tuvera, etc. (G.R. No. 148246, Feb. 16, 2007) opines that res judicata is an inappropriate ground for sustaining a demurrer to evidence even as it stands as a proper ground for a motion to dismiss in civil cases (Rule 16) or, for that matter, in a motion to quash in criminal cases (Rule 117). A demurrer may be granted if, after the presentation of the plaintiff's or complainant's evidence, it appears upon the facts and the law that plaintiff or complainant has shown no right to relief. In contrast, the grounds for res judicata manifest themselves even before the presentation of evidence at the trial, and it should be at that stage when the defense of res judicata should be invoked as a ground for dismissal. It is suggested in said case tl the movants for demurral who wish to rely on the controlling value of a settled case as a ground for demurrer should invoke the ground of stare decisis, in jou of res judicata. 7. In anestafa case, the accused was granted leave to file a demurrer to evidence which was granted on the finding that her liability was not criminal but only civil. 574 RULE 119 ‘TRIAL SBC. 24 However, the court also rendered judgment on the civil liability included in the action, ordering her to pay the same. ‘This was a violation of her right to due process on the civil aspect of the case and such judgment thereon was a nullity. An accused who files a demurrer to evidence has not yet adduced evidence on either the criminal or civil aspects of the case. If the demurrer is granted, the accused is acquitted and still has the right to submit evidence against the civil liability imposed (Salazar us. People, et al., G.R. No. 151931, Sept. 23, 2003). Sec. 24. Reopening. — At any time before finality of the judgment of conviction, the judge may, motu proprio or upon motion, with hearing in either case, reopen the proceedings to avoid a miscarriage of justice. The proceedings shall be terminated within thirty (30) days from the order granting it. (n) NOTES. 1. This is an additional remedy to prevent a mis- carriage of justice and which can be availed of even after promulgation, but before finality, of judgment. It will be recalled that a motion for new trial or reconsideration vailable to the accused at any time before finality 0 udgment, but the prosecution or even the trial court annot resort thereto without the consent of the accused 2. A reopening of the case can also Ye made by the rt before judgment is rendered. ‘This does not require the consent of the accused (People us. Concepcion, 84 Phil. 787), and may be at the instance of either party who can present additional evidence at that stage. 3. Consolidating previous holdings, the Supreme ‘ourt explained that generally, after the parties have 575RULE 119 REMEDIAL LAW COMPENDIUM SEC. 24 produced their respective direct proofs, they are allowed to offer rebutting evidence only. However, for good reason in the furtherance of justice, the court may allow new evidence upon their original case, and such ruling will not be disturbed where no abuse of discretion appears. A motion to reopen may thus properly be presented only after cither or both parties had formally opened and closed their evidence but before judgment is rendered, and even after promulgation but before finality of judgment. ‘The only controlling guideline governing a motion to reopen is the paramount interest of justice (Cabarles vs. Maceda, et al., G.R. No. 161330, Feb. 20, 2007) 516 RULE 120 JUDGMENT Section 1. Judgment; definition and form. — Judgment is the adjudication by the court that the accused is guilty or not guilty of the offense charged and the imposition on him of the proper penalty and civil liability, if any. It must be written in the official language, personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a statement of the facts and the law upon which it is based. (1a) See. 2. Contents of the judgment. — If the judgment is of conviction, it shall state (1) the legal qualification of the offense constituted by the acts committed by the accused and the aggravating or mitigating circumstances which attended its commission; (2) the participation of the accused in the offense, whether as principal, accomplice, or accessory; (3) the penalty imposed upon the accused; and (4) the civil liability or damages caused by his wrongful act or omission to be recovered from the accused by the offended party, if there is any, unless the enforcement of the civil liability by a separate civil action has been reserved or waived. In case the judgment is of acquittal, it shall state, whether the evidence of the prosecution absolutely failed to prove the guilt of the accused or merely failed to prove his guilt beyond reason- able doubt. In either case, the judgment shall determine if the act or omission from which the civil liability might arise did not exist. (24) 877RULE 120, REMEDIAL LAW COMPENDIUM SEC. 8 Sec. 3. Judgment for two or more offenses. — When two or more offenses are charged in a single complaint or information but the accused fails to object to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, setting out separately the findings of fact and law in each offense. (3a) NOTES 1, To be valid, a judgment must be signed and promulgated during the incumbency of the judge who signed the same (People us. CA, et al., 99 Phil. 786). ‘Accordingly, where the judge who penned the decision had ceased to bea member of the judiciary without said decision having been promulgated, and his successor caused its promulgation to be made thereafter, such judgment cannot acquire binding effect as it is null and void (Nazareno vs. CA, et al., G.R. No. 111610, Feb. 27, 2002). It is not necessary that the judge who prepares and signs the decision be the one who heard the case (U.S. us. Abreu, et al., 30 Phil. 402), so long as the trial was terminated and the records are complete (Villanueva us. Estenzo, ete., et al., L-30050, June 27, 1975; People vs. Gonzales, et al., 1-40727, Sept. 11, 1980). 2. Where the accused filed a petition for certiorari against an order denying their motion to dismiss (demurrer to evidence) the estafa case against them, the Court of Appeals cannot, on their motion and on the ground that they waived the right to present evidence, consider the denial order of the trial court as a judgment of conviction and the certiorari proceeding as an appeal. Since no judgment as contemplated in Sec. 2, Rule 120 had been rendered by the trial court, there is no judgment to review, hence the petition for certiorari should be denied and the 678 RULE 120 sUDGMENT: sre, case remanded to the trial court (People vs. CA, et al., G.R. No. 51635, Dec. 14, 1982). 3. A judgment rendered by a judge after the disapproval of his appointment by the Commission on Appointments is null and void (People us. Tolentino, 1.-46226, Dec. 24, 1983), but if such judgment was rendered before the judge was officially notified of such disapproval of his appointment, the judgment is valid as, until such time, the judge is still a de facto judge and his official acts are valid (Regala vs. Judge of CFI of Bataan, 77 Phil. 684; ef. U.S. vs. Abalos, 1 Phil. 72). 4, In a judgment of acquittal, the court cannot a reprimand upon the accused, since such rep: rimand is in the nature of a penalty, i.e., public censure (People vs. Abellera, 69 Phil. 623). ‘The remedy of the accused is to move for the striking out of said reprimand and, if denied, to appeal from the order of denial (Alfonso 8. Yatco, 80 Phil. 407); but the court may criticize or express its disapproval of the acts of the accused (People us. Meneses, 74 Phil. 119) as no penalty is deemed imposed under these circumstances. 5. Where the accused is a government officer and was suspended during the pendency of the criminal case, the court in its judgment acquitting him may order his reinstatement to his office (People us. Consigna, et al., L-18087, Aug. 31, 1965), but it cannot order the payment. of his salaries and emoluments which he failed to receive during his suspension (People vs. Daleon, L-15630, Mar. 24, 1961, and cases therein cited; People vs. Villanueva, L-18769, May 27, 1966). Such relief does not lie in the same criminal ease wherein the accused ‘was acquitted but in a proper civil or administrative action. Furthermore, acquittal in the criminal ease does not carry with it relief from administrative liability which only requires preponderance of evidence (PNR vs. 879RULE 120 REMEDIAL LAW COMPENDIUM SBC. 3 Domingo, et al., L-30772, Oct. 29, 1971). Considering the difference in the quantum of evidence, the procedure followed and the sanctions imposed in criminal and administrative proceedings, the findings and conclusion in one are not necessarily binding in the other (Aiionuevo, ar, et al. us. CA, et al., G.R. No, 152998, Sept. 23, 2003). However, in prosecutions for bribery or under the anti- graft law, the accused, if acquitted, shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during his suspension unless, in the meantime, administrative proceedings have been filed against him (Sec. 13, R.A. 3019; Garcia us. Alconcel, ete. A.M. No. 2499-CCC, Jan. 30, 1982). Said Sec. 13 of R.A. 3019 was subsequently amended by B.P. Blg. 195 (Mar. 16, 1982) to include and apply to prosecutions under Title 7, Book II of the Revised Penal Code or any offense involving fraud upon government or public funds or property, whether as a single or complex crime and regardless of the stage of execution and mode of participation of the accused (see Bayot vs. Sandiganbayan, et al., GR. Nos. 61776-61861, Mar. 28, 1984). R.A. 557, which applies only to provincial guards and city or municipal policemen with civil service eligibility, also authorizes both reinstatement and payment of back salaries in a judgment acquitting the guard and policeman (Acting Director of Prisons vs. Villaluz, etc., et al., L-48352, Jan. 31, 1987). 6. Ina judgment of conviction for a felony, the court should specify the appropriate name of the penalty, ie. reclusion perpetua instead of “life imprisonment,” as said penalties have their corresponding legal accessories and effects under the Revised Penal Code (People vs. Mobe, 81 Phil. 58), and the judgment should disclose whether such penalty is being imposed in its minimum, medium or maximum period (U.S. us. Avillar, et al., 28 Phil. 131). 580 120 JUDGMENT SEC. 3 7. The penalty imposed in a judgment cannot be conditional (People vs. Licerio, 61 Phil. 361), nor can it be in the alternative as, even if the law provides for alternative penalties, the court must choose and impose either of said alternative penalties (U.S. vs, Chong Ting, et al., 23 Phil. 120). 8. Where separate offenses are charged in different. informations, the court must render separate judgments for each (U.S, us. Tanjuanco, I Phil. 116). 9. Where several accused are tried under a single information, only one judgment must be rendered but there should be separate findings of fact and law for each of the accused (U.S. vs. Lim Buanco, et al., 14 Phil. 472). 10. The second paragraph of revised Sec. 2 lays down a modified rule of procedure to the effect that if the accused is acquitted, the judgment must state (a) whether the evidence absolutely fails to prove his guilt or only that it fails to do so beyond reasonable doubt; and (b) whether the act or omission from which the civil liability may arise does not exist. This is a consequence of the provisions of Art. 29 of the Civil Code regulating the filing of a civil action despite the acquittal of the accused, and of the rule that the extinction of the penal action does not carry with it the extinetion of the civil action, unless the extinction proceeds from a declaration in a final judgment that the fact from which the civil liability might arise did not exist (Sec. 2, Rule 111). ‘The section under discussion presupposes that the civil action ex delicto'was impliedly instituted with the criminal actions and contemplates the situation, inter alia, where the acquittal is based on reasonable doubt or where the court finds that the liability of the accused is not criminal but only civil in nature (see ote 7, Sec. 2, Rule 111). As earlier pointed out, it has been held that even if the accused was acquitted, but his civil liability was established in the same case, the 581RULE 120 REMEDIAL LAW COMPENDIUM SEC. 4 court may make a finding of civil liability in the same decision acquitting him (Padilla, et al. vs. CA, et al., L-39999, May 31, 1984; People vs. Jalandoni, G.R. No, 57555, Aug. 28, 1984). The foregoing considera- tions and doctrines have been reiterated in subsequent cases (see People us. Ligon, et al., G.R. No. 74041, July 29, 1987), which also held that mandamus lies to compel the trial court to include such civil liability in the judgment of acquittal (Maximo us. Gerochi, Jr., ete., et al., L-47994-97, Sept. 24, 1986). 11, In Ruiz vs. Ucol, et al. (L-45404, Aug. 7, 1987), the accused was acquitted on reasonable doubt in a libel case, where the civil aspect had not been waived or reserved, but without any pronouncement thereon in the judgment, It was held that a civil action for damages was barred by res judicata since the judgment in the criminal case applied to both the criminal and eivil aspects. Furthermore, the Supreme Court noted that the judgment in the criminal case revealed that no crime of libel had been committed and the cases filed by the complainant were harrassment suits. 12, Sec. $ lays down the rule on duplicity of charges: under a single information where the case was tried without the objection of the accused. The service of the sentences imposed is subject to the limitation of the three- fold rule in Art. 70 of the Revised Penal Code, pursuant to which the accused shall not serve more than three times the most severe of the penalties imposed and in no case to exceed 40 years. ‘The same limitation applies where there has been a consolidation of trials of related offenses under Sec. 22, Rule 119. See. 4. Judgment in case of variance between allegation and proof. — When there is variance between the offense charged in the complaint or 582, RULE 120 JoDGMENT SECS, 5, 6 information and that proved, and the offense as charged is included in or necessarily includes the offense proved, the accused shall be convicted of the offense proved which is included in the offense charged, or of the offense charged which is included in the offense proved. (4a) Sec. 5. When an offense includes or is included in another. — An offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved, when the essential ingredients of the former constitute or form a part of those constituting the latter. (5a) NOTES 1. See notes under Sec. 14, Rule 110; Sec. 7, Rule 117; and See. 19, Rule 119. 2. Where the accused attempted to defraud the Government by presenting false import entry declarations but the offense was not consummated due to timely discovery, they cannot be convicted under See. ae) of R.A, 3019 which does not punish the attempted stage of the offense. However, they were convicted of attempted estafa through falsification since this offense is also included in the allegations of the information (Pecho vs. Sandiganbayan, et al., G.R. No. 111399, Nov. 14, 1994). Sec. 6. Promulgation of judgment. — The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it is rendered. However, if the conviction is for a light offense, the judgment may be pro- 583,ULI REMEDIAL LAW COMPENDIUM SEC. 6 nounced in the presence of his counsel or representative. When the judge is absent or out- side the province or city, the judgment may be promulgated by the clerk of court. Ifthe accused is confined or detained in another province or city, the judgment may be promulgated by the executive judge of the Regional Trial Court having jurisdiction over the place of confinement or detention upon request of the court that rendered the judgment. The court promulgating the judg- ment shall have authority to accept the notice of appeal and to approve the bail bond pending appea! provided, that if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable, the appli- cation for bail can only be filed and resolved by the appellate court. ‘The proper clerk of court shall give notice to the accused personally or through his bondsman or warden and counsel, requiring him to be present at the promulgation of the decision. If the accused was tried in absentia because he jumped bail or escaped from prison, the notice to him shall be served at his last known address. In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the promulgation shall be made by recording the judgment in the criminal docket and serving him a copy thereof at his last known address or thru his counsel. [ the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies avai- lable in these Rules against the judgment and the 584 supoMENT see. 6 court shall order his arrest. Within fifteen (15) days from promulgation of judgment, however, the accused may surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence at the scheduled pro- mulgation and if he proves that his absence was for a justifiable cause, he shall be allowed to avail of said remedies within fifteen (15) days from notice. (6a) NOTES. 1. ‘This section provides for the procedure in the gation of judgment in the Regional Trial Courts d the lower courts, In the Supreme Court and the t of Appeals, the judgment is promulgated by ng the signed copy thereof with the Clerk of Court who true copies to be served upon the parties (Sec. 9, Rule 51; Alvarado vs. Director of Prisons, 87 Phil. 157). nev the presence of the accused is not required, as his resence is required only in the promulgation of the judgment of the trial courts (People vs. Sumilang, 77 Phil. 761). When the judgment of the appellate court becomes exccutory, the records of the case are returned to the trial together with a certified true copy of the judgment, ‘for the reading thereof to the accused, but for the execution of the judgment against him (Alvarado vs. Director of Prisons, supra). 2. Rendition of the judgment in trial courts refers the filing of the signed decision with the clerk of court (Marcelino vs. Cruz, Jr. L-42428, Mar. 18, 1983). Prior thereto, said judgment may still be amended or changed by the judge (Comia, et al. vs. Nicolas, et el ul., 99 Phil. 786; Ago us. CA, et al., L-17898, Oct. 31, 1962), such promulgation being generally subsequent the delivery of the judgment. proi 585|AL LAW COMPENDIUM. sec. 6 RULE 120 REME! 3. The judgment which has to be promulgated under this section is one of conviction as it is from such promulgation that the period to appeal starts to run. If the judgment is one of acquittal, no appeal is necessary. Since the required presence of the accused, under this section, presupposes a judgment of conviction, such presence can be dispensed with if the judgment is one.of acquittal, Consequently, the fact that the accused was furnished. » copy of the decision of acquittal by the court constituted a valid promulgation thereof (Cea, etc., etal, vs. Cinco, et al., 96 Phil. 131). However, this section, as amended, now requires notice of promulgation of judgment, whether of conviction or acquittal. 4, Under the first paragraph, it has been held that the decision may be validly promulgated even if the judge is absent. ‘This refers only to temporary physical absence. If the judge had accepted an appointment to another court before the decision was filed with the clerk of his former court and before the promulgation of said decision, the rule was that such decision could no longer be validly promulgated (People us. Soria, L-25175, Mar. 1, 1968; Solis vs. CA, et al., L-29777-83, Mar. 26, 1971). & dismissal order rendered after the termination of the temporary assignment of the judge is likewise a nullity (Siazon vs. Hon, dudge of CFI of Cotabato, Branch I, etc., et al., L-29364, Jan. 27, 1969). But in People, et al, vs. Donesa, cte., et al. (L-24162, Jan. 31, 1973), it was held that a judge who had left his court of original assignment by permanent (and not only temporary) assignment to another court of equal jurisdiction, without having decided a case totally heard by him and submitted lawfully prepare and sign his decision in said case and send the same to the clerk of court for filing in his former court. ‘This was believed to be the correct interpretation of Sec. 9, Rule 135 and Sec. 51 of R.A. 296, und was considered in some quarters as an 586 120 JUDGMENT. SEC. 6 abandonment of the doctrine in People us. Soria, supra. Then, in Valentin vs. Sta. Maria, etc., et al. (L-30158, . 17, 1974), the Supreme Court definitely declared Soria ruling abandoned for the reasons set out in Donesa, the new doctrine being held applicable to both civil and criminal cases, 5. Also, under the first paragraph, the presence of el during the promulgation of judgment was not reqitired under the 1964 Rules, nor under the present Rules, hence the validity of such promulgation cannot be faulted on that account (Jamilano vs. Cuevas, etc., et al., 3654, July 23, 1987). To be valid, the judgment must have been (filed with the clerk of court) and promulgated during the ineumbency of the judge who signed it. Where the judge retired prior to the actual promulgation, the judgment ean no longer be validly promulgated (Jimenez Republic, et al., L-24529, Feb. 17, 1968; Jandayan vs. Ruiz, ete., etal., L-37471, Jan. 25, 1980). But where that, issue was raised only after an adverse decision of the Court, of Appeals, such jurisdictional defect will be disregarded n the interest of justice (Vera, et al. us. People, et al., 4011218, Fab, 18, 1970), based in effect on estoppel by aches new proce- dural rule which is intended to obviate the situation in st where the judicial process could be subverted by the accused jumping bail to prevent the promulgation of he civil liability ex delicto was instituted with the criminal ion, the offended party could not enforce either rimary liability of the accused or any subsidiary ability, where proper and involved in the case, as no judgment could be promulgated. Since both the 1973 587RULE REMEDIAL LAW COMPENDIUM SECS. 7-8 and 1987 Constitutions only require prior arraignment as an indispensable requisite and the trial may thereafter proceed in the absence of the accused (see Sec. I{¢), Rule 115), the judgment in the case being merely the procedural culmination of the trial, the promulgation thereof can justifiedly be made in absentia in the manner set out in this section, See the application of this provision in Florendo vs. CA, et al. (G-R. No. 110886, Dee. 20, 1994). 8 ‘The last paragraph requires that the judgment promulgated in absentia be also recorded in the criminal docket. If that requirement is not complied with, the promulgation is invalid (Pascua vs. CA, et al., GR. No. 104243, Dec. 14, 2000). Sec. 7. Modification of judgment. — A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before ppeal is perfected. Except where the death penalty is imposed, a judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation. (7a) See. 8. Entry of judgment. — After a judgment has become final it shall be entered in accordance with Rule 36. (8) NOTES. 1, A judgment becomes final (a) when no appeal is seasonably perfected, (b) when the accused commences to serve sentence, (¢) when the right to appeal is expressly waived in writing, except where the death penalty was imposed by the trial court, and (a) when the accused 588 120 JUDGMENT SECS. 7.4 applies for probation, as he thereby waives the right to appeal, hus, where after promulgation of a judgment of conviction, the prosecution moved for reconsideration for an inereased liability of the accused, which was immediately followed thereafter by the accused waiving his right to appeal, the order of the court granting the prosecution's motion, but rendered 16 days after the promulgation of the original decision, is a nullity because said judgment had become final by the waiver made by the accused. Furthermore, said motion of the prosecution did not suspend the running of the reglementary period hence the amendatory order was made after the 15-day period and the judgment had become final even without said waiver of the right to appeal made by the accused prior thereto (People us. Lspaiiol, et al., G.R. Nos. 57597-99, June 29, 1982). Seo, however, the discussion on the present rule regarding the prosecution’s motion for reconsideration in Note 4 under See. 1, Rule 121, 2. Formerly, the rule was that an action to annul a judgment in a criminal case could be brought only in the same branch of the court which rendered that judgment (Tan vs. People, L-25460, Mar. 13, 1968) and where ano- ther branch attempts to annul such judgment, certiorari and prohibition will lie (J.M. Tuason & Co., Inc. vs. Torres, ete., et al. L-24717, Dec. 4, 1967). The basic rule is that coordinate tourts cannot in terfere with each other's judgments or decrees as this would result in confusion (De Leon vs. Salvador, etc., et al., L-30871, Dec. 28, 1970). But these doctrines appeared to have been abandoned in Dulap, et al. vs. CA, et al. (L-28306, Dec. 18, 1971; see Note 7 under Sec. 47, Rule 39), although it should be noted that the Dulap case involved a decision in a civil action. 589 7RULE 120 REMEDIAL LAW COMPENDIUM SRS. 7.8 ‘This controversy, however, has been set at rest by B.P. Blg. 129 which vests in the Intermediate Appellate Court (now, Court of Appeals) exclusive original n in actions for the annulment of judgments of the Regional Trial Courts (Sec. 9), and the latter courts have exclusive original jurisdiction over actions to annul the judgme.ats of inferior courts (Sec. 19). 3. Only a judgment of conviction can be modified or set aside, and such modification can be made only {a) before the judgment has become final, otherwise such a modification would amount to double jeopardy (Gregorio us. Director of Prisons, 43 Phil. 650), but if seasonablyy made it may suspend, for that purpose, the running of the period to appeal (Prov. Fiscal of Rizal vs. Munoz- Palma, cic... et al., 109 Phil. 368); or (b) before the appeal has been perfected as, thereafter, the trial court loses jurisdiction over the case (U.S. vs. CFI of Manila, et al., 24 Phil. 821). However, the court can still thereafter correct clerical errors in the judgment (U.S. vs. Ballad, et al., 85 Phil. 14). 4, ‘The trial court can validly amend the civil portion of its de mn within 15 days from promulgation thereof even though the appeal had in the meantime already been perfected by the accused from the judgment of conviction (People vs. Ursua, 60 Phil. 252). \t can, within the said 15-day period, order the accused to indemnify the offended party, although the judgment had become final because the accused had commenced the service of his sentence (People vs. Rodriguez, 97 Phil. 349). The reason for this is that the court continues to retain jurisdiction insofar as the civil aspect is concerned. After the lapse of the 15-day period, there can no longer be any amendment of the decision. 5. A judgment of acquittal is immediately final upon its promulgation (People us. Sison, 105 Phil. 1249) and 590 RULE 120 JUDGMENT SECS. 7.5 can not be withdrawn by another order reconsidering the dismissal of the case (Catilo, vs. Abaya, etc., 94 Phil. 1014), nor can it be modified except to eliminate something which is civil or administrative in nature (People vs. Yelo, 83 Phil. 618; People vs. Bautista, et al., 96 Phil. 43). These doctrines, however, presuppose that a valid judgment of acquittal was rendered. Where the judg ment affirming the conviction was already final but the Court of Appeals, without having granted leave therefor, admitted the third and fourth motions for reconsidera- tion and thereafter acquitted the accused, said judgment of acquittal was void and a petition for certiorari to annul the same does not constitute double jeopardy even if the records had been remanded to the trial court (People us. CA, et al., G.R. No. 54641, Nov. 28, 1980). 6. Where the judgment of conviction did not include the forfeiture of the dollars for the possession of which the accused was convicted and the accused had already served sentence, the judgment already became final and could no longer be modified to include said forfeiture (People vs. Paet, 100 Phil. 357). This is because forfeiture is an accessory penalty (Art. 45, Revised Penal Code) and not a civil liability. Furthermore, while accessory penalties are deemed impliedly imposed together with the principal penalty, in the case of confiscation and forfeiture, the judgment must specify the instruments and effects to be confiscated and forfeited, for purposes of execution of judgment. 7. The payment of the fine imposed by the court constitutes satisfaction of the judgment, hence the judgment thereby becomes final (People vs. Sanchez, 101 Phil. 745) except where the court specifically reserved its findings on a particular issue (whether the money found in the pocket of the accused in the gambling case would be confiscated), in which case the fact that the accused 691RULE 120 REMEDIAL LAW COMPENDIUM SECS. 7.8 had paid the fine does not make the judgment final (Lim vs. Oreta, etc., 94 Phil. 40). 8, When the sentence has been partially served, the judgment becomes final. The act of the accused in voluntarily commencing to serve his sentence is equivalent to a renunciation of his right to appeal. Consequently, where the accused does not voluntarily and knowingly commence upon the service of his sentence, but is merely ordered ‘confined by the court after promulgation of the judgment because of his failure to post an appeal bail bond, the sentence should not thereby be considered final as the accused cannot be considered to have com menced to serve sentence (Tanega vs. Masakayan, etc., et al., L-27191, Feb. 28, 1967). The same is true where there is no evidence that the accused voluntarily submitted himself for confinement knowing the consequences thereof (Nacional vs. San Diego, etal., [CA], 64 0.G. 4329). 9. Where the accused, pursuant to a plea of guilty, had been sentenced and had commenced service thereof, it is error for the trial court to reopen the case, on motion of the then fiscal, and conduct a new trial of the case. Such new trial would place the accused in double jeopardy as the judgment had already become final. Double jeopardy could successfully be invoked even if at the reopening of the case the accused had moved to with draw his original plea of guilt and waived the order of commitment, as double jeopardy may still be raised, as it was so raised in this case, before judgment was rendered after the new trial, by analogy with Sec. 10 (now Sec. 9), Rule 117 (Bustamante vs. Maceren, et al., L-35101, Nov. 24, 1972). 10. A declaration of heirship is not required to vest the heirs of the offended party with authority to pray for a writ of execution of the indemnity awarded in a judgment of conviction. Such criminal indemnity cannot 592 RULE 120 SUDGMENT. SEC. 9 be compensated by a debt of the offended party in favor of the accused as this is expressly prohibited by Art. 1288 of the Civil Code (Domalaon vs. Yap, etc., et al., [CA], 59 0.G. 6675, and cases therein cited). jee. 9, Existing provisions governing suspension of sentence, probation and parole not affected by this Rule. Nothing in this Rule shall affect any existing provisions in the laws governing suspension of sentence, probation or parole. (9a) NOTES 1. Suspension of the imposition of sentence is provided for in P.D, 603, as amended by P.D. 1179, which aled Art, 80 of the Revised Penal Code; while nsion of the execution of sentence is provided for in Arts. 79 and 83 of the same Code. Parole is regulated by the Indeterminate Sentence Law (Act. No. 4103, as amended by Act No. 4225), while probation for adult offenders is governed by P.D. 968, as amended. 2. For the text of the Probation Law of 1976 (P.D, 968), as amended, see Appendix FP. However, R.A. 9165 (Comprehensive Dangerous Drugs Act of 2002) has repealed R.A. 6425, as amended, and provides (a)ny person convicted for drug trafficking or pushing under this Act, regardless of the penalty imposed by the Court, cannot avail of the privilege granted by the 3. Itis error for the trial court to deny the application for probation by merely relying on the post-sentence stigation reports of the Probation Officer that there is ‘undue risk” that the accused may commit another erime le on probation, which reports were mostly hearsay 593RULE 121 REMEDIAL LAW COMPENDIUM SBC. 9 and were controverted by prominent citizens, and without giving the accused the opportunity to be heard before issuing its denial resolution. ‘The term “undue risk” is to be interpreted in light of the requirements prescribed by law, i.e. all information relative to the character, antecedents, environment, mental and physical condition of the offender and available institutional and community resources. In this case, the accused was not a hardened criminal and she had shown repentance for the one offense of malversation she had committed when she made immediate restitution of the amount involved, expressed a desire to reform and promised to comply with any condition for the grant of probation, which facts constitute ample evidence that she is entitled to the benefits of probation (Cabatingan vs. Sandiganbayan, G.R. No. 55333, Jan, 22, 1981). 4. Where the accused was convicted of estafa through the issuance of a bouncing check and, on appeal, the sentence imposed was reduced to less than six years, the accused not being a disqualified offender under Sec. 9 of P.D. 968 and his application for probation having been favorably recommended by the Probation Office, it was error for the trial court to deny his application for probation on the ground that the same would depreciate the seriousness of the offense and that the accused was a non-repentant offender. ‘The Probation Law gives more importance to the offender, not the crime. The appeal by the accused, insisting on his innocence, does not make him a non-repentant offender as, in fact, the reduction of the sentence on appeal qualified him for probation, while the sentence imposed by the trial court of more than seven years would otherwise disqualify him therefrom (Santos To us. Paito, etc., et al., G.R. No. 55130, Jan. 17, 1973). 5. An accused convicted of selling prohibited drugs, on his plea of guilty, can not be released on probation as 594 R F120 sopoment SEC. 9 it would depreciate the seriousness of the offense ited. The proliferation of prohibited drugs has remained a serious threat to the well-being of the people and. in fact, to emphasize the gravity of the drug menace, the legislature was compelled to substantially increase the penalties originally imposed under the then Dangerous Drugs Act, R.A. 6426 (Tolentino vs. Alconcel, etc., G.R. No. 63400, Mar. 18, 1983). An application for probation, being an admission of guilt and considered a waiver of the right of the accused to file an appeal, should not be considered irrevocable especially where the accused were represented by a counsel de oficio at the promulgation of the judgment convicting them of estafa and which counsel was not fully acquainted with the case. Hence, where the accused filed an appli- cation for probation through said counsel de oficio after such promulgation but subsequently, within the period for appeal and this time represented by their counsel de parte, they filed a notice of appeal, the appeal should be given due course as, under the eireumstances, the rule on waiver of the right to appeal or the withdrawal of any appeal duly made should be liberally construed in favor of the accused (Yusi, et al. vs. Morales, etc., G.R. No. 61958, April 28, 1983), 7. Where the accused pleaded guilty to the charge of serious physical injuries through reckless imprudence and was forthwith sentenced without the trial court imposing any civil liability, the application for probation filed by the accused should not prevent the court from setting the ease for reception of evidence to prove the civil liability of the accused. ‘The Probation Law pravides only for the suspension of the sentence involving the criminal liability; it has no bearing on the civil liability. In fact, under Art. 118 of the Revised Penal Code, the obligation to satisfy civil liability ex delicto continues despite service 595REMEDIAL LAW COMPENDIUM SBC. 9 of sentence or the non-service thereof due to amnesty, pardon, commutation or any other reason (Budlong, ete. us. Apalisok, etc., et al., G.R. No. 60151, June 24, 1983). Accordingly, in an appeal from a judgment of conviction, the criminal liability and civil liability ex delicto are considered separately. ‘The application and grant of probation to the accused bars an appeal from the criminal liability imposed. It does not bar his appeal from the civil aspect in the same judgment (Presenes vs. People, G.R. No. 153845, Sept. 11, 2003). 8 ‘The conditions which trial courts may impose on fa probationer are classified into general or mandatory, and special or discretionary. Special or discretionary conditions should be realistic, purposive and geared to help the probationer develop into a law-abiding citizen, Hence, it was error for the court to impose as a condition for the grant of probation that a schoolteacher convicted of serious oral defamation should not continue teaching, since teaching is the only profession she knows and for which she possesses special skills and qualifications. While the conviction of the accused carries with it the accessory penalty of suspension from the right to follow a profession or calling, the grant of probation suspended not only the sentence of imprisonment but, necessarily, the imposition of accessory penalties (Baclayon vs. Mutia, etc, et al., GR. No. 59298, April 30, 1984). 9. A person convieted in a single decision of five cases, jointly tried, of estafa committed on different dates and wherein x total prison term of 17 months and 26 days was imposed, is not disqualified from probation under Sec. 9(@) of the Probation Law which disqualifies those who have been previously convicted of an offense punished by imprisonment of not less than one month and one day and/or a fine of not less than P200. While in the aforesaid decision the applicant was sentenced to 3 months and 15 596 RULE 120 supaMeNT sec. 9 days of imprisonment in each of the cases involved, the fact is that there was only one decision and a single conviction thereunder; hence, there was no “previous' convietion and the law does not refer to the date of the commission of the erime (Rura us. Lopena, etc., et al., G.R. Nos. 69810-14, June 19, 1985). 10. Where the accused was convicted of direct assault with less serious physical injuries, the fact that the victim was 60 years old does not justify the inference that the grant of probation would “depreciate the seriousness of the offense.” Nor is the fact that the accused entered fully upon his defense at the trial indicative of lack of remorse on his part, since the grant of probation does not require a plea of guilty on his part, otherwise it would negate his constitutional right to he presumed innocent. ‘The Probation Law gives more importance to the offender, in this case a first-time offender and not otherwise disqualified from probation, rather than to the crime he committed (Atienza vs. CA, G.R. No. 60892, Dec. 12, 1985). 697RULE 121 NEW TRIAL OR RECONSIDERATION Section 1, New trial or reconsideration. — At any time before a judgment of conviction becomes final, the court may, on motion of the accused or at its own instance but with the consent of the accused, grant a new trial or reconsideration. (1a) NOTES. 1. A motion for a new trial or reconsideration should be filed with the trial court within 15 days from the promulgation of the judgment and interrupts the period for perfecting an appeal from the time of its filing until notice of the order overruling the motion shall have been. served upon the accused or his attorney (Sec. 6, Rule 122). Ifan appeal has already been perfected, a motion for new trial on the ground of newly discovered evidence may be filed in the appellate court (Sec. 14, Rule 124). 2, A motion for a new trial on the ground of errors of law in the judgment is properly called a motion for reconsideration and also interrupts the period for perfecting an appeal. It does not call for the introduction of evidence but only for a modification of the conclusions in the judgment on the basis of what is already on record (People vs. Enriquez, etc., et al., 90 Phil. 423; Sec. 3). As amended, this Rule now includes a motion for recon- sideration. 3. A new trial can be granted only (a) on motion of the accused, or (b) on motion of the court but with the consent of the accused. The rule does not provide for a motion for new trial by the prosecution as the reopening of the case and introduction of additional evidence by the 598 RULE 121 NEW TRIAL OR RECONSIDERATION SBC. 1 prosecution, without the consent of the accused, would result in double jeopardy. Even such an action motu proprio by the court requires the consent of the accused, for the same reason, 4. The former rule was that the prosecution may file a motion for reconsideration of the judgment of conviction on the basis of evidence already in the record, but such motion does not interrupt the period of appeal and the court must act within that period if its modification is to be valid (People vs. Tamayo, 86 Phil. 209). This was so because the prosecution can not appeal from a judgment of acquittal or conviction or from an order of dismissal which is equivalent to acquittal. Nevertheless, it was also held that where the trial court rendered an order of dismissal from which the prosecution could appeal without involving double jeopardy for the accused, the prosecution's motion for the reconsideration of said order interrupted the period for perfecting an appeal therefrom (People vs. Romero, 89 Phil. 672), e.g., a dismissal on a motion to quash, for then the order of dismissal was with the consent of the accused, hence, there would be no double jeopardy if appealed from. As earlier stated, this Rule which originally referred only to a motion tor new trial has been amended to likewise govern a motion for reconsideration, hence the present view is that the doctrines thereon in Tamayo and Romero no longer apply. Accordingly, once judgment has been validly promulgated, any reconsideration’ or amendment to correct a manifest substantial error committed by the trial court through erroneous comprehension or incom- petence can be made only with the consent or upon the instance of the accused. This could result in a legal bsurdity or even a miscarriage of justice, For instance, if under the proven facts and the law, a higher penalty should have been imposed, but the court mistakenly 599RULE 121 REMEDIAL LAW COMPENDIUM SBC. imposed a lower penalty, the court itself and the prosecution cannot on motion secure the correction of that mistake of judgment, to impose the higher and correct penalty, unless the accused consents thereto or himself moves for reconsideration of or appeals from the judgment. 5. ‘The foregoing situation which arises from an error of judgment should be distinguished from one involving an error of jurisdiction. Thus, if under the law and the evidence, the mandatory penalty of death should have been rendered, but the trial judge was apparently a conscientious objector to capital punishment, and accordingly imposed a lower penalty, the impassé created by the requirement for consent of the accused before the trial court may act on the prosecution's motion is not without remedy. Since the questioned judgment is flawed by grave abuse of discretion equivalent to lack of jurisdiction, a special civil action for certiorari may be filed to set aside that virtually void judgment (see People vs. Veneracion, ete., et al., G.R. Nos. 119987-88, Oct. 12, 1995), and in this case a prior motion for reconsideration isnot required. An independent proceeding will, of course, be entailed and with the attendant delay which could have been avoided by a mere judicious resolution of a motion for reconsideration without any suggestion of double jeopardy, 6. \ new trial is to be distinguished from a reopening of the case. A reopening is made by the court before judgment is rendered, in the exercise of sound discretion, and does not require the consent of the accused (U.S. vs. Vizquera, 4 Phil. 380; U.S. vs. Rota, 9 Phil. 426; People us. Concepcion, 84 Phil. 787). Such reopening of the case may be at the instance of either party who can thereafter present additional evidence. On the other hand, a motion for new trial is filed after judgment is rendered but before 600 RULE 121 NEW TRIAL OR RECONSIDERATION SCS, 2-3 the finality thereof, and is at the instance or with the consent of the accused. 7. Even where the death penalty is imposed by the trial court, hence the review by the Supreme Court is automatic without the necessity of the accused perfecting an appeal therefrom, the trial court may still grant a new trial on motion of the accused (People us. Castelo, L-10774, Feb. 16, 1961). Thus, under Sec, 10, Rule 122, the records of the case are not elevated until after the lapse of 15 days following the promulgation of the judgment or notice of the denial of a motion for new trial or reconsideration. Howover, if the accused immediately perfected his appeal therefrom, although he was not duty bound to do so, the trial court can no longer pass upon a motion for new trial as it has lost its jurisdiction over the case (Evaristo, et al. us. Lastrilla, 110 Phil. 181). See. 2, Grounds for a new trial. — The court shall grant a new trial on any of the following grounds: (a) That errors of law or irregularities pre- judicial to the substantial rights of the accused have been committed during the trial; (b) That new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial, and which if introduced and admitted, would probably change the judgment. (2a) See. 3. Ground for reconsideration —- The court shall grant reconsideration on the ground of errors of law or fact in the judgment, which requires no further proceedings. (3a) 601RULE 121 REMEDIAL LAW COMPENDIUM SUCS. 2.8 NOTES 1. The pro forma rule in motions for new trial, which applies to civil cases under Rule 37, does not apply to criminal cases (People Colmenares, et al., 107 Phil. 220). 2. ‘The first ground for new trial requires that the errors or irregularities prejudicial to the substantial rights of the accused must have been committed during the trial. ‘The phrase “during the trial” refers to that period from arraignment to the rendition of the judgment and not only to the trial proper, and considers, as errors committed during such period, the holding of the trial over the objection of the accused despite the lack of preliminary investigation, or where the accused was denied counsel, ‘or where such counsel was not afforded at least two (now, fifteen) days to prepare for trial (People vs. Tamayo, supra; People vs. Knriquez, supra). 3. ‘The loss of the stenographic notes of part of the trial causing delay in the resolution of the appeal does not warrant a new trial as such irregularity was not com- mitted “during the trial” but after the same, and the remedy is the reconstitution of the records and the testimonial evidence with respect to the witnesses still available in accordance with Act No. 3110 (People vs. Castelo, supra). Reconstitution is likewise the remedy in ease of the loss of the copy of the decision and the records of the case in the trial court (Feria us, CA, et al., G.R. No. 122954, Feb. 15, 2000). Where the records were lost and reconstitution cannot be done, the case may be refiled (People vs. Dagatan, 90 Phil. 294) and there will be no double jeopardy as there had been no previous acquittal or ‘conviction (People us. Bongato, [CA], 50 0.G. 4288). Where some transcripts of the testimony of prosecution witnesses were lost, the remedy is the reconstitution of the records. It is only when the decision itself is lost and 602, 8121 NEW TRIAL OR RECONSIDERATION SECS. 2.3 no authentic copy can be secured that the case should he lecided anew after the retrial (People vs. Alqu et 132080, May 22, 1975). dake 1. In the case of newly discovered evidence as a ground for now trial, it should be established that such evidence (a) was discovered after the trial, (b) could not have been discovered and produced at the trial despite reasonable diligence, and (c) is of such weight that, if ted, would probably change the judgment (People vs. Mangulabnan, 99 Phil. 992). Consequently, a new justifiably denied: ‘ (a) If only impeaching evidence is sought to be introduced as the court had already passed upon the issue of credibility at the trial (U.S. us. Lee Cheng Poe, 9 Phil. 46 , (b) If only corroborative evidence is offered, as it would not change the results of the case (People vs. Samaniego, 95 Phil. 218); (©) Where a prisoner admits the commission of he crime with which the accused is charged, due to the facility with which such confession can be obtained and fabricated (People us. Aguipo, 104 Phil. 1051, People vs. Llamoso, et al., L-24866, July 13, 1979), (a) Where the alleged new evidence is inherently mprobable and could easily be concocted (People vs. Gamboa, 96 Phil. 963); and (c) Where the alleged new evidence consists of recantations of prosecution witnesses, due to the unreliability of such retractions (People us. Cu Unjieng, al., 61 Phil. 236; People vs. Tiongson, et al., L-15201- 02, Oct. 31, 1962; People us. Morales, L-3710' April 27, 1982; People us. Delasa, L-36094, July 16, 1982; Ibabao vs. People, et al., L-36957, Sept, 28, 1984). 603RULE 121 REMEDIAL LAW COMPENDIUM. SECS. 2-5 5. However, if there was no other evidence to sustain the conviction other than the testimony at the trial of ing witness (People vs. Curiano, L-15256-57, 1, 1963; People vs. Bocar, etc., et al., L-27935, Aug. 16, 1985) and there are special circumstances sufficient to raise doubts as to the truth of his testimony at the trial (U.S. vs. Dacir, 26 Phil. 503; People us. Farol, 103 Phil. 1166), a new trial is justified. ‘The same rule was applied to a case on appeal (People vs. Pimentel, L-38423, Nov. 25, 1982). ‘The sworn state- ment of the complainant executed after judgment by the trial court clarifying the controversy which gave rise to the eri case for estafa, and from which clarification it would appear that the liability of the accused was only civil and not criminal in nature, warrants a new trial on the ground of newly discovered evidence (Payo us. CA, el al., L-36809, Feb. 24, 1984). 6. Formerly, while there were no specific provisions for inferior courts, a new trial was also available therein under the same grounds (then Sec. 5, Rule 123 provided that the period of appeal is interrupted by a motion for and the same grounds could be invoked as it the inherent power of the lower court to correct its mistakes (Hiquina vs. Veloso, 73 Phil, 575). With the Rule 123, the procedure in the Regional Trial revision Courts now applies to said courts. 7. In the Court of Appeals, the Rules provide that a motion for new trial may be filed on the ground of newly discovered evidence (Sec. 14, Rule 124). This does not mean to say, however, that such is the only ground available therein as the appellate court has the power to grant a new trial on other grounds in the appeal since the entire case is thrown open to review (Diaz vs. People, 68 Phil. 717; Suy Sui vs. People, 92 Phil, 684), and it ean even remand the case to the trial court, not only for new 604 RULE 121 NEW TRIAL OR RECONSIDERATION SECS. 4.5 trial, but also for retrial (Sec. 11, Rule 124; People vs. Aguel, et al., L-36554, Dec. 14, 1981). This differs from appeals in civil actions wherein a motion for new trial in the appellate courts can be premised only on the ground of newly discovered evidence. ‘The reason for this is that in civil actions on appeal, the review is basically limited to the errors assigned by the appellant. Sec. 4, Form of motion and notice to the prosecutor. — The motion for a new trial or reconsideration shall be in writing and shall state the grounds on which it is based. If based on a newly discovered evidence, the motion must be supported by the affidavits of the witnesses by whom such evidence is expected to be given or by duly authenticated copies of documents which are proposed to be introduced in evidence. Notice of the motion for new trial or reconsideration shall be given to the Prosecutor. (4a) Sec. 5. Hearing on motion. Where a motion for a new trial calls for the resolution of any question of fact, the court may hear evidence thereon by affidavits or otherwise. (5a) NOTE 1, Incriminal cases, it has been held that the lack of affidavits of merits in a motion for new trial is not a fatal defect and can be cured by the testimony presented at the new trial (Paredes, etc. us. Borja, etc., et al., L-15559, Nov, 29, 1961). On the other hand, such lack‘of affidavits of merits is a fatal defect in civil actions (see Sec. 2, Rule 37, and cases cited thereunder). This is aside from the consideration that the pro forma rule does not apply to criminal eases (People vs. Colmenares, supra). 605RULE 121 REMEDIAL LAW COMPENDIUM SEC. 6 Sec. 6. Effects of granting a new trial or recon- sideration. — The effects of granting a new trial or reconsideration are the following: (a) When a new trial is granted on the ground of errors of law or irregularities committed during the trial, all the proceedings and evidence affected thereby shall be set aside and taken anew. The court may, in the interest of justice, allow the introduction of additional evidence. (b) When a new trial is granted on the ground of newly discovered evidence, the evidence already adduced shall stand and the newly discovered and such other evidence as the court may, in the interest of justice, allow to be introduced shall be taken and considered together with the evidence already in the record. (c) In all cases, when the court grants a new trial or reconsideration, the original judgment shall be set aside and a new judgment rendered accordingly. (6a) NOTES. 1, Where a new trial has been granted, the original judgment is vacated and the case is reverted to its original status before judgment (People vs. Bocar, supra), and where a new judgment of conviction is rendered after said new trial, the period to appeal commences from the promulgation of the new judgment. 2, Unlike the ruie in civil cases wherein an order granting a new trial is interlocutory and not appealable and is generally not correctable by the special civil actions of certiorari, prohibition or mandamus, the remedy of the aggrieved party being appeal in due time, such an order rendered in criminal cases is also interlocutory but is 606 RULE 121, NEW TRIAL OR RECONSIDERATION SEC. 6 controllable by certiorari or prohibition at the instance of the prosecution, as the new trial might result in a judgment of acquittal from which the prosecution can no longer appeal (People us. Bocar, supra; People, et al. us. CA, et al., L-45364, Aug. 6, 1979). Intrial courts, a second motion for reconsideration of a final order or judgment is not allowed (Par. 4, Interim Rules and Guidelines). This rule has been adopted in vil actions (Sec. 5, Rule 37). In cases covered by the Rule on Summary Procedure, a motion for reconsideration is prohibited (Sec. 15{c}). 607RULE 122 APPEAL Section 1, Who may appeal. — Any party may appeal from a judgment of final order, unless the accused will be placed in double jeopardy. (2a) Sec. 2. Where to appeal. — The appeal may be taken as follows: (a) To the Regional Trial Court, in cases decided by the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court; (b) To the Court of Appeals or to the Supreme Court in the proper cases provided by law, in cases decided by the Regional Trial Court; and (c) To the Supreme Court, in cases decided by the Court of Appeals. (1a) Sec, 3. How appeal taken. — (a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be by notice of appeal filed with the court which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse party. (b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its appellate jurisdiction shall be by petition for review under Rule 42. (c) The appeal in cases where the penalty imposed by the Regional Trial Court is reelusion 608 RUE APPEAL SECS. 1-1 perpetua, life imprisonment, or where a lesser penalty is imposed for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalty of death, reclusion perpetua or life imprisonment is imposed, shall be by fiting a notice of appeal in accordance with paragraph (a) of this Rule. (a) No notice of appeal is necessary in cases where the Regional Trial Court imposed the death penalty. The Court of Appeals shall automatically review the judgment as provided in Section 10 of this Rule. (3a) NOTES 1. Sec. 1 was formulated on the bases of Sec. 17, R.A, 296, as amended, and Sec. 9, B.P. Blg. 129, with additional provisions for clarity. 2. In A.M. No, 00-5-03-SC, the Supreme Court adopted on September 28, 2004 the amended rules to govern the review of death penalty cases, which took effect on October 5, 2004. Secs. 3 and 10 of Rule 122 and Secs, 12 and 13 of Rule 124 were amended in the formulation appearing in the present edition. ‘This was a consequence of the controversial holding of the Supreme Court that judgments imposing capital punishment are appealable to the Court of Appeals instead (People vs. Mateo, G.R. Nos. 147678-87, July 7, 2004). However, such procedural state of affairs shall be subject to further amendment and clarification in view of the abolition of the death penalty by R.A. 9346, as hereinafter presented under Sec. 13 of Rule 124. 3. Only final judgments and orders are appealable. A judgment is final if it completely disposes of the issues 609