Notes in Criminal Procedure

Prepared by: Atty. Esperanza LM. Aggalao-Ticangan

III. RULE 110 PROSECUTION OF OFFENSES

A. The institution of a criminal action generally depends upon whether the offense is one
which requires a preliminary investigation (PI) 1 or not:

Offenses Requiring PI How Instituted

Those where the penalty prescribed By filing the complaint with the proper officer for the
by law is at least 4 years, 2 months purpose of conducting the requisite PI
and 1 day2
a. The complaint or information is filed directly with the
Other offenses MTCs and MCTCs; or
b. The complaint is filed with the office of the
prosecutor3

In Manila and other chartered cities, the complaint

shall be filed with the office of the prosecutor unless
otherwise provided in their charters4

What is the effect of the filing of a criminal action on the period of prescription of offenses?
The institution of a criminal action shall interrupt the running of the period of prescription
of the offense 5charged unless otherwise provided in special law.

Note: To distinguish prescription of crime/offenses versus prescription of penalty, the latter is the
loss or forfeiture of the right of the State to execute the final sentence after the lapse of a certain
period of time fixed by law. Prescription will not run if the sentence is not yet final. It does not also
start to run where despite his final conviction, the accused is not arrested to serve his sentence.

Preliminary Investigation vs Inquest

Preliminary Investigation
-An inquiry to determine whether there is
sufficient ground to engender a well-founded
belief that a crime has been committed and
the respondent is probably guilty thereof, and
should be held for trial.
- This is the usual route taken for initiating a
criminal case where the respondent or
offending party was not arrested without a
warrant because none of the circumstances
allowing warrantless arrest is present.
Inquest
- An informal and summary investigation
conducted by a public prosecutor in criminal
cases involving persons arrested and
detained without the benefit of a warrant of
arrest issued by the court.
- The inquest serves to determine whether
said persons should remain under custody
and correspondingly be charged in court.6

B. CONTROL OF PROSECUTION

1
Section 1 Rule 112 (ROC). Preliminary investigation defined; when required. — Preliminary investigation is an inquiry or proceeding
to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent
is probably guilty thereof, and should be held for trial.
Except as provided in section 7 of this Rule, a preliminary investigation is required to be conducted before the filing of a complaint or
information for an offense where the penalty prescribed by law is at least four (4) years, two (2) months and one (1) day without regard
to the fine. (1a)
2
Sec. 1, Rule 112, as amended by A.M. No. 05-8-26-SC
3
Sec. 1(b), Rule 110
4
Ibid
5
Art. 90 RPC Prescription of crime. — Crimes punishable by death, reclusion perpetua or reclusion temporal shall prescribe in twenty
years.
Crimes punishable by other afflictive penalties shall prescribe in fifteen years.
Those punishable by a correctional penalty shall prescribe in ten years; with the exception of those punishable by arresto mayor,
which shall prescribe in five years.
The crime of libel or other similar offenses shall prescribe in one year.
The crime of oral defamation and slander by deed shall prescribe in six months.
Light offenses prescribe in two months.

6
Leviste vs Alameda, G.R. 182677, 3 August 2010
 Notes in Criminal Procedure
Prepared by: Atty. Esperanza LM. Aggalao-Ticangan

Under A.M. No. 02-2-07-SC dated April 10, 2002, Section 5 of Rule 110 was amended.
All criminal actions either commenced by complaint or by information shall be prosecuted under
the direction and control of a public prosecutor.

In case of heavy work schedule of the public prosecutor or in the event of lack of public
prosecutors, the private prosecutor may be authorized in writing by the Chief of the Prosecution
Office or the Regional State Prosecutor to prosecute the case subject to the approval of the court.
Once so authorized to prosecute the criminal action, the private prosecutor shall continue to
prosecute the case up to end of the trial even in the absence of a public prosecutor, unless the
authority is revoked or otherwise withdrawn.7

EXTENT OF PROSECUTOR’S CONTROL

Matters which are within the control of the prosecutor -
1. What case to file
2. Whom to prosecute
3. Manner of prosecution
4. Right to withdraw information before arraignment even without notice and hearing. 8

Note: Once a complaint or information is filed in court, any disposition of the case as its dismissal
or the conviction or acquittal of the accused rests on the sound discretion of the court. A motion
to dismiss should be filed with the court, which has the option to grant or deny it.9

Who may file; Crimes that Cannot be Prosecuted de Officio

General rule: No complaint or information may be filed or dismissed by an investigating

prosecutor without the prior written authority or approval of the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his deputy. 10Note: Secs. 3 and 4, Rule 110 discuss
who should subscribe (not file) the complaint or information.

Exception: CRIMES THAT CANNOT BE PROSECUTED DE OFICIO

Crime
Adultery and Concubinage
Seduction, abduction, acts of a. Offended party – includes The offender must not have
lasciviousne ss
Who may file
Offended Spouse
minors, even independently
of those in item b, except if and b in the preceding
incompetent or incapable
Conditions
a. Must include both guilty
parties, if both alive;
b. Offended spouse must
not have consented to
the offense or pardoned
the offenders;
c. The marital relationship
must still be subsisting 11
been pardoned by any of a
column

b. Parents, grandparent s,
guardian - right to ile the
action shall be exclusive of all
other persons and shall be
exercised successively in this
order

c. State – If the offended

party dies or becomes
incapacitate d before she can
file the complaint, and she
has no known parents,
grandparent s or guardian
7
DOJ Memorandum Circular No. 25 (2002)
8
Crespo v. Mogul, G.R. No. L-53373 (1987)
9
Ibid
10
Sec. 4, Rule 112, as amended by A.M. 05-8-26-SC
11
Pilapil v. Ibay-Somera, G.R. No. 80116, (1989)
 Notes in Criminal Procedure
Prepared by: Atty. Esperanza LM. Aggalao-Ticangan

Defamation, which consists Offended party

of imputation of any of the
foregoing offenses

Rationale This was imposed out of consideration for the aggrieved party who might prefer to
suffer the outrage in silence rather than go through with the scandal of a public trial.12

C. COMPLAINT vs INFORMATION

Complaint13 Information
-sworn written statement charging a person -accusation in writing
with an offense
-Subscribed by the offended party, any peace -signed by the prosecutor14
officer or other officer charged with the
enforcement of the law violated -filed with the court
-may be filed either with the office of the
prosecutor or with the court

D. SUFFICIENCY OF COMPLAINT OR INFORMATION

A complaint or information is sufficient if it states –
a. The name and surname of the accused; or any appellation or nickname by which he is known
or had been known
b. The designation of the offense given by the statute
c. The acts or omissions complained of as constituting the offense
d. The name of the offended party
e. The approximate date of the commission of the offense, and
f. The place where the offense was committed

Note:
When an offense is committed by more than one person, all of them shall be included in
the complaint or information. 15

The test for sufficiency of the complaint or information is whether the crime is
described in intelligible terms with such particularity as to apprise the accused with reasonable
certainty of the offense charged.16

When there is ambiguity in the accusation, the case must be resolved in favor of the
accused.17

General rule: A defective information cannot support a judgment of conviction.

Exception: Where the defect in the information was cured by evidence during the trial and no
objection appears to have been raised.18

An accused is deemed to have waived his right to assail the sufficiency of the information
when he voluntarily entered a plea when arraigned and participated in the trial.19Objections
relating to the form of the complaint or information cannot be made for the first time on appeal.
The accused should have moved for a bill of particulars or for quashal of information before
arraignment, otherwise he is deemed to have waived his objections to such a defect.20

NOTE: Exception would be if the defect consists in the lack of authority of the prosecutor who
filed the information; such defect is jurisdictional.

12
People v. Yparraguirre, G.R. No. 124391 (2000)
13
Sec. 3, Rule 110
14
Prosecutor is one who prosecutes another for a crime in the name of the government; one who instigates a prosecution by making
affidavit charging a named person with the commission of a penal offense on which a warrant is issued or an indictment or accusation
is based
15
Sec. 6, Rule 110
16
Lazarte v. Sandiganbayan, G.R. No. 180122 (2009)
17
People v. Ng Pek, G.R. No. L-1895 (1948)
18
Abunado v. People, G.R. No. 159218 (2004)
19
Frias v. People, G.R. No. 171437 (2007)
20
People v. Teodoro, G.R. No. 172372 (2009)
 Notes in Criminal Procedure
Prepared by: Atty. Esperanza LM. Aggalao-Ticangan

a. Name of the accused

1. The complaint or information must state the name and surname of the accused or any
appellation or nickname by which he has been or is known.
2. If his name cannot be ascertained, he must be described under a fictitious name with a
statement that his true name is unknown.
3. If the true name of the accused is thereafter disclosed by him or appears in some other
manner to the court, such name shall be inserted in the complaint or information and
record. 21

Note: An information against all accused described as “John Does” is void, and an arrest warrant
against them is also void.22

b. Place of commission

General rule: The complaint or information is sufficient if it can be understood from its
allegations that the offense was committed or some of its essential ingredients occurred at
some place within the jurisdiction of the court.
Exception: The particular place where it was committed constitutes an essential element of the
offense charged or is necessary for its identification.

c. Date of commission

General rule: It is not necessary to state in the complaint or information the precise date the
offense was committed. The offense may be alleged to have been committed on a date as near
as possible to the actual date of the commission.
Exception: When it is a material ingredient of the offense23

Note: Allegation in an information of a date different from the one established during the trial
would not, as a rule, be considered as an error fatal to the prosecution. Erroneous allegation is
just deemed supplanted by the evidence presented during the trial or may even be corrected by
a formal amendment of the information.
Variance in the date of commission of the offense only becomes fatal when such discrepancy
is so great that it induces the perception that the information and the evidence are no longer
pertaining to one and the same offense. In this event, the defective allegation in the information
is struck down for violating right of accused to be informed of specific charge.24

d. Name of the offended party

The complaint or information must state the name and surname of the person against whom
or against whose property the offense was committed, or any appellation or nickname by which
such person has been or is known. If there is no better way of identifying him, he must be
described under a fictitious name.25

• Offenses against property

If the name of the offended party is unknown, the property must be described with such
particularity as to properly identify the offense charged.26

If the true name of the person against whom or against whose property the offense was
committed is thereafter disclosed or ascertained, the court must cause such true name to
be inserted in the complaint or information and the record.27

• Offended party is a juridical person

21
Sec. 7, Rule 110
22
Pangandaman v. Casar, G.R. No. L-71782 (1988)
23
Sec. 11, Rule 110
24
People v. Delfin, G.R. No. 201572 (2014)
25
Sec. 12, Rule 110
26
Sec. 12(a), Rule 110
27
Sec. 12(b), Rule 110
 Notes in Criminal Procedure
Prepared by: Atty. Esperanza LM. Aggalao-Ticangan

The complainant or offended party must state its name, or any name or designation by
which it is known, or by which it may be identified, without need of averring that it is a
juridical person or that it is organized in accordance with law.28

e. Designation of Offense

The complaint or information shall state the designation of the offense given by the statute,
aver the acts or omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made to the section or
subsection of the statute punishing it.29

Note:
Specific acts of accused do not have to be described in detail in the information, as it is
enough that the offense be described with sufficient particularity to make sure the accused fully
understands what he is being charged with.30

Allegations prevail over the designation of the offense. The facts, acts or omissions alleged
and not its title, determine the nature of the crime. The designation of the offense is only the
conclusion of the prosecutor.31

An accused may be convicted of a crime more serious than that named in the title if such
crime is covered by the facts alleged in the body of the Information and its commission is
established by evidence.32

e. Cause of the Accusation

QUALIFYING AND AGGRAVATING CIRCUMSTANCES

The acts or omissions complained of as constituting the offense and the qualifying and
aggravating circumstances must be stated:
a. In ordinary and concise language; and
b. Not necessarily in the language used in the statute; but
c. In terms sufficient to enable a person of common understanding to know what offense is
being charged as well as its qualifying and aggravating circumstances and for the court to
pronounce judgment.33

Qualifying and aggravating circumstances must be alleged in the Information. Otherwise, they
are not to be considered even if proven during the trial.34The failure to allege such cannot be
cured by an amendment of the information after the accused entered his plea.35

E. DUPLICITY OF THE OFFENSE; EXCEPTION

Duplicity of the offense in an information or complaint means the joinder of two or more
separate and distinct offenses in one and the same information or complaint .36

General rule: A complaint or information must charge only one offense

Exceptions: Multiple offenses may be charged when the law prescribes a single punishment for
various offenses 37, to wit:
a. Complex crimes – e.g. Acts committed in furtherance of rebellion are crimes in themselves
but are absorbed in the single crime of rebellion. The test is whether the act was done in
furtherance of a political end38
b. Special complex crimes
28
Sec. 12(c), Rule 110
29
Sec. 8, Rule 110
See De Lima v. Guerrero, G.R. No. 229781 (2017) The minute details of participation and cooperation on Illegal Drug
Trading are matters of evidence that need not be specified in the Information but presented and threshed out during trial.
30
Guy v. People, G.R. No. 166794-96 (2009)
31
People v. Magdowa, G.R. No. 48457 (1941)
32
Buhat v. CA, G.R. No. 119601 (1996)
33
Sec. 9, Rule 110
34
Viray v. People, G.R. No. 205180 (2013)
35
People v. Antonio, G.R. No. 142727 (2002
36
Loney v. People, G.R. No. 152644 (2006)
37
Sec. 13, Rule 110
38
Enrile v. Salazar G.R. No. 92163 (1990)
 Notes in Criminal Procedure
Prepared by: Atty. Esperanza LM. Aggalao-Ticangan

c. Continuous crimes
1. Plurality of acts performed separately during a period of time
2. Unity of penal provision violated
3. Unity of criminal intent 39
d. Crimes susceptible of being committed in various modes 40
e. Crimes of which another offense is an ingredient41
f. When a single act violates different statutes 42

F. AMENDMENT OR SUBSTITUTION OF COMPLAINT OR INFORMATION

• AMENDMENT
A change in either the form or substance of the same offense in the Information. It is not
a new charge; it just supersedes the original Information but relates back to the date at which the
original information was filed.43

Kinds of Amendment

a. Formal amendment merely states with additional precision something which is already
contained in the original information, and which, therefore adds nothing essential for
conviction for the crime charged.44

Examples
1. New allegations which relate only to the range of penalty that the court might impose in
the event of conviction;
2. One which does not charge another offense distinct from that already charged;
3. Additional allegation which do not alter the prosecution’s theory of the case so as to
surprise the accused or affect the form of defense he has or will assume;
4. One which does not adversely affect any substantial right of the accused, such as his
right to invoke prescription.45

b. Substantial amendment consists of the recital of facts constituting the offense charged
and determinative of the jurisdiction of the court.
Examples
1. Stating a different manner of committing the felony
2. Including conspiracy because such involves a change in the basic theory of the
prosecution
3. Change in the date of commission of the offense that will be prejudicial to the accused

Note: The test as to whether the amendment is merely formal is whether or not a defense
under the original information would be equally available after the amendment and whether or
not any evidence the accused might have would be equally applicable in one form as in the
other.46

• SUBSTITUTION
If it appears at any time before judgment that a mistake has been made in charging
the proper offense, the court shall dismiss the original complaint or information upon the filing
of a new one charging the proper offense in accordance with Sec. 19, Rule 119, provided the
accused shall not be placed in double jeopardy. The court may require the witnesses to give
bail for their appearance at the trial.47

It presupposes that the new Information involves a different offense which does not
include or is not included in the original charge.

39
People v. Ledesma, G.R. No. L-41522 (1976)
40
See Jurado v. Suy Yan, G.R. No. L-20714, (1971
41
See People v. Camerino, G.R. No. L-13484 (1960)
42
Loney v. People, G.R. No. 152644 (2006)
43
Teehankee Jr. v. Madayag, G.R. No. 103102 (1992)
44
Gabionza v. CA, G.R. No. 140311 (2001)
45
Teehankee Jr. v. Madayag, G.R. No. 103102 (1992)
46
People v. Degamo, G.R. No. 121211 (2003), citing Teehankee v. Madayag, G.R. No. 103102 (1992)
47
Sec. 14, Rule 110
 Notes in Criminal Procedure
Prepared by: Atty. Esperanza LM. Aggalao-Ticangan

Amendment Substitution
Applicability The same attempted, frustrated, Involves different offense
necessarily includes or included
offense
Scope Formal or substantial changes Substantial changes
Necessity of leave Amendment before plea has been Must be with leave of court
of court entered. Can be effected without
leave of court
Necessity of new PI When amendment is Only as to Another PI is entailed and
and plea form, no need for another PI and accused has to plead anew
retaking of plea
Offense Involved The amended information refers to Involves a different offense
the same offense charged in the which does not include those
original information or to an offense provided in the original
which is included in the original charge; cannot invoke
charge; can invoke double jeopardy double jeopardy
Double jeopardy The accused could invoke double The accused cannot claim
jeopardy if the new information is a double jeopardy;
substantial amendment and it was Presupposes that the new
done after the plea because such information involves a
would Refer to Part the same different offense which does
offense charged or to an offense not include or is not included
necessarily includes or included in the original charge.

G. VENUE OF CRIMINAL ACTIONS

General rule: In all criminal prosecutions, the action must be instituted and tried in the courts of
the municipality or territory where (1) The offense was committed, or (2) Any of its essential
ingredients occurred.48
Note: Unlike in civil cases, in criminal cases venue is jurisdictional.49The court
has no jurisdiction to try an offense committed outside its territorial jurisdiction.50
Exceptions:
Crime Venue
Felonies under Art. 2, RPC Proper court where criminal action was first filed 51
(offense on board a PH ship or
airship, forgery or
counterfeiting of coins, public
officers abroad in the exercise
of their duties, crimes against
national security and the law of
nations)
Those committed on a railroad In the court of any municipality or territory where such
train, aircraft, or any other train, aircraft, or other vehicle passed during its trip,
public or private vehicle in the including place of departure and arrival52
court of its trip
Those committed on In the proper court of the first port of entry or of any
board a vessel in the municipality or territory through which such vessel passed
course of its voyage during its voyage, subject to the generally accepted
principles of international law53
Piracy, which has no May be instituted anywhere54
territorial limits
Libel If one of the offended parties is a private individual, (a)
Where the libelous article is printed and first published, or
(b) Where said individual actually resides.

If one of the offended parties is a public official,

48
Sec. 15(a), Rule 110
49
People v. Metropolitan Trial Court of Quezon City, Br. 32, G.R. No. 123263 (1996)
50
People v. Pineda, G.R. No. 44205 (1993)
51
Sec. 15, Rule 110
52
Ibid
53
Ibid
54
People v. Lol-lo and Saraw, G.R. No. 17958 (1922)
 Notes in Criminal Procedure
Prepared by: Atty. Esperanza LM. Aggalao-Ticangan

a. Where the official holds office at the time of the

commission of the offense
1. If the office is in Manila, then CFI Manila
2. If the office is any other city or province, then file where
he holds office

b. Where the libelous article is printed and first published

For online libel, the same measure cannot be reasonably

expected when it pertains to defamatory material
appearing on the Internet or on a website as there would
be no way of determining the situs of its printing and first
publication55
Cases filed under May be filed in the place where the check was dishonored
B.P. 22 or issued. In the case of a cross-check, in the place of the
depositary or collecting bank56
Illegal recruitment cases (R.A. The victim has the option to file the case in his place of
8042 or Migrant Workers Act) residence or in the place where the crime was
committed.57
Violations of RA 10175 RTCs have jurisdiction over any violation of the provisions
(Cybercrime Prevention Act of of the Act, including any violation committed by a Filipino
2012) national regardless of the place of commission.
In exceptional circumstances to SC has the power to order a change of venue or place of
ensure a fair trial and impartial trial to avoid miscarriage of justice58
inquiry
Transitory59 or continuing
The courts of the territories where the essential
offenses60 ingredients of the crime took place have concurrent
jurisdiction. The first court taking cognizance of the case
will exclude the others61
H. INTERVENTION OF OFFENDED PARTY

General rule: An offended party has the right to intervene in the prosecution of a crime, where
the civil action for recovery of civil liability is instituted in the criminal action62

Note: The offended party may intervene by counsel in the prosecution of the
offense but the prosecution of the case is still subject to the control of the
prosecutor 63
Exceptions:
a. Where, from the nature of the crime and the law defining and punishing it, no civil liability
arises in favor of a private offended party (e.g. treason, rebellion, espionage and contempt)64
b. Where, from the nature of the offense, the private offended party is entitled to civil indemnity
arising therefrom but he has –
1. waived the same or
2. expressly reserved his right to institute a separate civil action or
3. already instituted such action65

55
Bonifacio v. RTC of Makati, G.R. No. 184800 (2010)
56
People v. Grospe, G.R. No. L-74053-54, (1988)
57
Sto Tomas v. Salac G.R. No. 152642 (2012)
58
Sec. 5(4), Art. VII, Constitution
59
A transitory offense is one where some acts material and essential to the crime occur in one place and some in another, in which
case, the rule is settled that the court of either province where any of the essential ingredients of the crime took place has jurisdiction
to try the case, such as estafa,malversation or abduction.
60
A continuing crime is one which, although all the elements thereof for its consummation may have occurred in a single place, yet
by reason of the very nature of the offense committed, the violation of the law is deemed to be continuing, such as kidnapping, illegal
detention where deprivation of liberty is persistent and continuing from one place to another and libel where the libelous matter is
published or circulated from one province to another.
61
People v. Grospe, G.R. No. L-74053 (1988)
62
Sec. 16, Rule 110
63
Ricarze v. People, G.R. No. 160451 (2007)
64
Rodriguez v. Ponferrada, G.R. No. 155531-34 (2005)
65
Ibid