file:crimpro_part1_iii.htm

3.   Prosecution of Offenses

1.  Institution Of Criminal Action

1. Prosecution of offenses is instituted
either by complaint or information.

The complaint or information shall be in writing, in the name of the People of
the Philippines and against all persons who appear to be responsible for the
offense involved.27 A complaint is a
sworn written statement charging a person with an offense, subscribed by the
offended party, any peace officer, or other public officer charged with the
enforcement of the law violated.28An
information is an accusation in writing charging a person with an offense,
subscribed by the prosecutor and filed with the court.29

2. Criminal actions shall be instituted as follows:

2.1 For offenses where a preliminary
investigation is required pursuant to section 1 of Rule 112, by filing the
complaint with the proper officer for the purpose of conducting the requisite
preliminary investigation.30
Except as provided in section 7 of Rule 110, 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.31

2.2 For all other offenses, by filing the
complaint or information directly with the Municipal Trial Courts and Municipal
Circuit Trial Courts, or the complaint with the office of the prosecutor. In
Manila and other chartered cities, the complaint shall be filed with the office
of the prosecutor unless otherwise provided in their charters.32

The institution of the criminal action shall
interrupt the running of the period of prescription of the offense charged
unless otherwise provided in special laws.33

3. Who must prosecute criminal actions

All criminal actions commenced by a complaint or
information shall be prosecuted under the direction and control of the
prosecutor. However, in Municipal Trial Courts or Municipal Circuit Trial
Courts when the prosecutor assigned thereto or to the case is not available,
the offended party, any peace officer, or public officer charged with the
enforcement of the law violated may prosecute the case. This authority shall
cease upon actual intervention of the prosecutor or upon elevation of the case to
the Regional Trial Court.34

4. Intervention of Offended Party

Where the civil action for recovery of civil
liability is instituted in the criminal action pursuant to Rule 111, the
offended party may intervene by counsel in the prosecution of the offense.35

5. Prosecution of Private Crimes

The crimes of adultery and concubinage shall not
be prosecuted except upon a complaint filed by the offended spouse. The
offended party cannot institute criminal prosecution without including the
guilty parties, if both are alive, nor, in any case, if the offended
party has consented to the offense or pardoned the offenders.

The offenses of seduction, abduction and
acts of lasciviousness shall not be prosecuted except upon a complaint
filed by the offended party or her parents, grandparents or guardian, nor, in
any case, if the offender has been expressly pardoned by any of them. If the
offended party dies or becomes incapacitated before she can file the complaint,
and she has no known parents, grandparents or guardian, the State shall
initiate the criminal action in her behalf.

The offended party, even if a minor, has the
right to initiate the prosecution of the offenses of seduction, abduction and
acts of lasciviousness independently of her parents, grandparents, or
guardian, unless she is incompetent or incapable of doing so. Where the
offended party, who is a minor, fails to file the complaint, her parents,
grandparents, or guardian may file the same. The right to file the
action granted to parents, grandparents, or guardian shall be exclusive of all
other persons and shall be exercised successively in the order herein provided,
except as stated in the preceding paragraph.

No criminal action for defamation which consists
in the imputation of any of the offenses mentioned above shall be brought
except at the instance of and upon complaint filed by the offended party.

The prosecution for violation of special laws
shall be governed by the provisions thereof.36

2. Distinction between control of prosecution
and control of court

1. Control by Prosecution

1.1 What case to file37

1.2 Whom to prosecute38

1.3 Manner of prosecution39

1.4 Right of Prosecution to withdraw Information
before arraignment even without notice and hearing40

2. Control by Court Once Case is Filed

2.1 Suspension of Arraignment41

2.2 Reinvestigation42

2.3 Prosecution by Fiscal43

2.4 Dismissal44

3. Limitations on Control by Court

3.1 Prosecution entitled to notice of hearing.45

3.2 Court must await result of petition for
review.46

3.3 Prosecution’s stand to maintain prosecution
should be respected by court47

3.4 Ultimate test of court’s independence is
where the fiscal files a motion to dismiss or to withdraw information.48

3.5 Court has authority to review (power of
judicial review) the Secretary’s recommendation and reject it if there is grave
abuse of discretion.49

The Resolution of the Secretary of Justice may be
appealed to the Office of the President only in offenses punishable by death or
reclusion perpetua.50

3.6 To reject or grant motion to dismiss, the
court must make own independent assessment of evidence.51

3.7 Judgment is void if there is no independent
assessment and finding of grave abuse of discretion52

3.  Testing Sufficiency Of Complaint Or
Information

A complaint or information is sufficient if it states the name of the
accused;53 the
designation of the offense given by the statute;54
the acts or omissions complained of as constituting the offense;55 the name of the offended party;56 the approximate date of the commission
of the offense;57 and the place
where the offense was committed.58

When an offense is committed by more than one person, all of them shall be
included in the complaint or information.59

D.  Strict Scrutiny in Heinous Crimes

1. Cause of the accusation

The acts or omissions complained of as constituting the offense and the
qualifying and aggravating circumstances must be stated in ordinary and concise
language and not necessarily in the language used in the statute but in terms
sufficient to enable a person of common understanding to know what offense is
being charged as well as its qualifying and aggravating circumstances
and for the court to pronounce judgment.60

b. Pursuant to
Section 11 of the amendatory statute, the death penalty may be imposed in rape
cases under the last paragraph of Article 335 of the Revised Penal Code, when
the rape is committed with any of the following attendant circumstances:

1. When the victim
is less than eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within
the third civil degree, or the common-law spouse of the parent of the victim.

2. When the victim
is under the custody of the police or military authorities.

3. When the rape is
committed in full view of the husband, parent, any of the children or other
relative within the third degree of consanguinity.

4. When the victim
is a religious or a child below seven (7) years old.

5. When the
offender knows that he is afflicted with Acquired Immune Deficiency Syndrome
(AIDS) disease.

6. When committed
by any member of the Armed Forces of the Philippines or the Philippine National
Police or any law enforcement agency.

7. When by reason
on the occasion of the rape, the victim has suffered permanent physical
mutilation.61

The need to allege qualifying circumstances to justify finding of qualified
rape and the imposition of death penalty was stressed in several cases. The
additional attendant circumstances introduced by Rep. Act No. 7659 should be
considered as special qualifying circumstances distinctly applicable to the
crime of rape, and if not pleaded as such, could only be appreciated as generic
aggravating circumstances.62

Without allegation of relationship in cases of statutory rape, proof alone
of relationship unless specifically alleged in the information would not
warrant imposition of the death penalty.63

Thus, the concurrence of the minority of the victim and her
relationship of the offender is a special qualifying circumstance which should
both be alleged64 and proved65 with certainty in order to
warrant the imposition of the death penalty. In these cases complainant never
said she was below eighteen (18) years of age when she was allegedly raped by
her father on any of the dates stated in the complaint.66

Where the information alleged the accused, who is the stepfather of
complainant, succeeded in having carnal knowledge of the latter who was then
below eighteen (18) years of age, the evidence shows that the accused is not
the complainant’s stepfather because he and complainant’s mother were not
really married but only lived in common law relationship. Thus, although a
husband is subject to punishment by death in case he commits rape against his
wife’ s daughter, the death penalty cannot be imposed because the relationship
alleged in the information is different from that actually proven.67

5.   Duplicity of the Offense and
Continuing Crimes

1.  Duplicity of the offense

A complaint or information must charge only one offense, except when the law
prescribes a single punishment for various offenses.68

2.  Continuing Crimes: The Principle of
Delito Continuado

Santiago v. Garchitorena

G. R. No. 109266, December 2, 1993,
228 SCRA 214

The original
Information charged petitioner with performing a single criminal act – that of
her approving the application for legalization of aliens not qualified under
the law to enjoy such privilege. The 32 Amended Informations reproduced verbatim
the allegation of the original Information, except that instead of the word
‘aliens’ in the original Information, each amended Information states the name
of the individual whose stay was legalized.

The 32 Amended
Informations charge what is known as delito continuado or ‘continued
crime’ and sometimes referred to as ‘continuous crime’.

For Cuello
Calon, the delito continuado to exist there should be a plurality of
acts performed during a period of time; unity of penal provision violated; and
unity of criminal intent or purpose, which means that two or more violations of
the same penal provisions are united in one and the same intent or resolution
leading to the perpetration of the same criminal purpose or aim.

According to
Guevarra, in appearance, a delito continuado consists of several crimes
but in reality there is only one crime in the mind of the perpetrator.

2.1 Examples of Delito Continuado

2.1.1 The single larceny rule

a. The theft of 13 cows belonging to two
different owners committed by the accused at the same place and at the same
period of time;69

b.  The theft of six roosters belonging to
two different owners from the same coop and at the same period of time;70

c.  The theft of two roosters in the same
place and on the same occasion;71

d.  The illegal charging of fees for
services rendered by a lawyer every time he collects veterans’ benefits on
behalf of a client, who agreed that the attorney’s fees shall be paid out of
said benefits;72

e.  Illegal approval of the application for
the legalization of stay of 32 aliens, constitutes only one crime.73

2.1.2 The concept of delito continuado was
not applied in the following cases:

a. Two estafa cases, one of which was
committed during the period from January 19 to December 1995 and the other from
January 1956 to July 1956. The said acts were committed on two different
occasions.74

b. Several malversations committed in May, June
and July, 1936, and falsifications to conceal the same offenses committed in
August and October 1936. The malversations and falsifications ‘were not the
result of only one purpose or of only one resolution to embezzle and falsify
xxx.’75

c. Two estafa cases, one committed in
December 1963 involving the failure of the collector to turn over the
installments for a radio and the other in June 1964 involving the pocketing of
the installments for a sewing machine.76

d.  75 estafa cases committed by the
conversion by the agent of collections from customers of the employer made on
different dates.77

e. Robbery and fencing are two separate crimes.
Principle of Delito Continuado is not applicable.78

f. In a single Information for murder for
shooting three persons where evidence did not show that a single shot had slain
three different persons, the appellant was properly held liable for three
separate murders and sentenced to three separate penalties of reclusion
perpetua.79

g. Several victims dying from separate shots
constitute separate offenses and if there is no objection for duplicity, the
accused should be convicted of all offenses charged in one Information.80

It is not the act of pressing the trigger like a
Thompson submachine gun that determines the number of felonies committed, but
the number of bullets which actually produced them.81 The firing of several bullets by the accused
although resulting from one continuous burst of gunfire, constitutes several
acts. Each person fell by different shots, is a victim of a separate crime of
murder.82

3.   Exceptions to Rule On Duplicity

The rule on duplicity of offenses does not apply where the law prescribes a
single penalty for various offenses such as a complex crime under Article 48 of
the Revised Penal Code or special complex crime such as Robbery with Homicide
or with Rape or Rape with Homicide, or Rebellion complexed with Murder, Robbery
and Kidnapping.

4.  Rule on Complex Crimes

The precise language of the statute used in alleging the commission of the
crime is not necessary as long as in charging the commission of a complex
offense like that of Robbery with Homicide, the information alleges each
element of the component offenses with the same precision that would be
necessary if they were made the subject of a separate prosecution.83

Thus, although the phrase by reason or on occasion of the robbery as
provided for by the Revised Penal Code, was not literally used in the recital
of facts alleging the commission of the two crimes of Robbery with Homicide,
the Information as filed sufficiently and distinctly alleges the commission of
the two crimes of robbery and homicide and adequately informs the accused of
the crime charged.84

Under Article 48 of the Revised Penal Code, when a single act
constitutes two or more grave or less grave felonies, or when an offense is a
necessary means for committing the other, the penalty for the most serious
crime shall be imposed, the same to be applied in its maximum period.

The throwing of a hand grenade at the President with the intention of
killing him resulting in the death and injuries of several persons constitutes
the complex crime of Murder with Attempted Murder.85

For a criminal complaint or Information to charge the commission of a
complex crime, the allegations contained therein do not necessarily have to
charge a complex crime as defined by law. It is sufficient that the information
contains allegations which state that one offense was a necessary means to
commit the other. The information in question in the present case contains
allegations properly charging the commission of the complex crime of
incriminatory machinations through unlawful arrest, and the court a quo
committed error when it ordered its dismissal.86

5. No Duplicity In Rape With Homicide

There is no duplicity in an Information for Rape with Homicide.87

Where seven persons committed Rape with Homicide in conspiracy with each
other, every one of the seven accused may separately be charged for rape with
homicide.88

6.  No Duplicity In Charge Of Estafa

There is no duplicity in a charge of estafa committed by the accused
for misappropriation of the purchase price of several lots owned by the
Hometrust Corporation which were fraudulently received by the accused against
seven lot buyers on the pretext that she was authorized to do so and which she
misapplied to her personal use instead of remitting the money to the owner
corporation. The crime of estafa committed against the corporation and
those committed against the lot buyers are definitely separate felonies. They
were dictated by different criminal intents, committed under different modes of
commission provided by the law on estafa, perpetrated by
different acts, consummated on different occasions, and caused injury to
different parties.89

7.   Illegal Possession of Firearm and
Unlawful Killing with the Use Thereof

In case Homicide or Murder is committed with the use of unlicensed firearm,
such use of unlicensed firearm shall be merely considered as aggravating.90

R.A. 8294 amended PD No. 1866 abandoned previous rulings that qualified use
of firearms and murder are separate offenses. Under the present rule, the
unauthorized use of licensed or unlicensed firearm is simply an aggravating
circumstance in the commission of homicide or murder and no longer a separate
offense, effectively modifying People v. Quijada and its progeny. 91

Thus, is has been held that the principle of absorption does not apply to
illegal possession of firearms in connection with the crime of Subversion but
simply describes the mode or manner by which the violation of Section 1 of P.D.
1866 was committed so as to qualify the penalty of death.92 The charge should therefore be amended
to simple Illegal Possession of Firearm, and was accordingly deemed amended by
the Supreme Court.93
It should, however, be noted that under existing laws (Rep. Act no. 8294), if
Homicide or Murder is committed with the use of an unlicensed firearm, such use
of unlicensed firearm shall be considered merely as an aggravating circumstance
and cannot be the subject of a separate prosecution.94

It does not, however, mean that there can no longer be any prosecution for
the crime of illegal possession of firearm. In general, all pending cases
involving illegal possession of firearm should continue to be prosecuted and
tried if no other crimes expressly indicated in Republic Act No. 8294 are involved
(murder or homicide under Section 1 and rebellion, insurrection, sedition or
attempted coup d’etat under Section 3).95

8.  Reckless Imprudence Cases

Reckless imprudence resulting in slight physical injuries and damage to property
is not a complex crime and cannot be the subject of a single information, they
are separate offenses subject to distinct penalties.96

The two offenses may, however, be consolidated since under the expanded
jurisdiction of the municipal trial courts, damage to property through reckless
imprudence now falls under its jurisdiction.97

9.   Amendment or Substitution

A complaint or information may be amended, in form or in substance, without
leave of court, at any time before the accused enters his/her plea. After the
plea and during the trial, a formal amendment may only be made with leave of
court and when it can be done without causing prejudice to the rights of the
accused.

However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or information,
can be made only upon motion by the prosecutor, with notice to the offended
party and with leave of court. The court shall state its reasons in resolving
the motion and copies of its order shall be furnished all parties, especially
the offended party.

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 section 19, Rule 119, provided the accused shall not be placed
in double jeopardy. The court may require the witnesses to give bail for their
appearance at the trial.98