Rule 110 Sec 16

CONTROL OF THE PROSECUTION

When the case is dismissed upon motion of the prosecutor, the private prosecutor cannot appeal the same except when the case is
dismissed on the ground that the acts alleged do not constitute and offense (QUESTION OF LAW)
Baes V Judge
A filed a complaint against B for the commission of the crime against religious worship. After the preliminary investigation, the fiscal
filed a petition to dismiss based on the ground that the act imputed to B does not constitute the crime charged. ( according to the spirit
of article 133 of the Revised Penal Code
A filed motions for reconsideration but were denied.
A filed for mandamus
Mandamus is granted because . the question raised is one of law, that is, the determination of whether or not the facts alleged in the
complaint constitute the crime charged.

Rule 111 to establish connection of the civil action (damages) arising from the crime
Implied institution of civil action with the criminal action no qualification
A person criminally liable, is civilly liable
The only czivil action that is impliedly is instituted is that the civil action (damages) flowing from the crime subject of the
criminal action, all other civil action arising from other sources are not deemed instituted connection must be established
Exceptions to implied institution:
o Waiver, reservation, institution ahead of criminal action
No counterclaim etc may be filed by the accused in the criminal case where he is the accused
Criminal action for violation for BP 22 no reservation to file civil action separately
MTC (exclusive original jurisdiction)
o Accused is prosecuted & convicted of violation of BP 22 (check amount 1M)
o Can MTC award damages over & beyond its jurisdictional limit of 300k/400k? YES. For actual damages. Not
anything beyond the amount of the check
Rule 111 Sec 2 when civil action is suspended
Preference in the prosecution of the criminal over civil action (civil action arising from the crime subject of the criminal
action)
Exception: PREJUDICIAL QUESTION preference will be given to the civil action because resolution of the civil action
will be determinative of the guilt or innocence of the accused in the criminal action
Requisites / Elements of prejudicial question
o It must be a previously instituted civil action
o Will the resolution of the civil action determine WON criminal action will proceed or whether it will be
determinative of the guilt or innocence of the accused in the criminal action
Civil & Admin action no prejudicial question
They filed violation of 3019 against paymaster for not being given their salaries (undue injury)
SC: Civil action is prejudicial to criminal action
WON they are designated sectoral representatives
NOT A PREJUDICIAL QUESTION:
Annulment of the second marriage
A married B, subsequently, A married C but A said he was simply forced to marry B.
A filed for annulment of marriage to B
If marriage is contracted during the subsistence of a previous marriage is null & void
Annulment is not per se an argument for the avoidance of criminal liability
Art 349 RPC penalizes the act of contracting a second marriage during the subsistence of a valid marriage
Veronica Penebro V CA (2004)
Sec 4 (Effect of death of the convict)
Total extinction of criminal liability (Death before final judgment)
The only civil liability if the convict dies before final judgment is the civil liability flowing from the crime from which he
was convicted shall be extinguished
Actions based on quasi-contracts, quasi-delicts, contract civil action shall proceed
Rule 111 Sec 5
Example (DISMISSAL OF CIVIL ACTION IS NOT A BAR)
Gorospe V Nolasco
An analysis of the averments of the civil complaint and those of the criminal information is in order. The complaint in the
civil case was planted upon the claim that the sum of three thousand pesos (P3,000.00) obtained by petitioner from
respondent Romero was used by the former to acquire Lot No. 19, Block No. 58 of the Rita Legarda Subdivision, the title to
which was placed in petitioner's name. That is why, the complaint prayed that defendant be ordered to deliver to plaintiff the
absolute ownership of that Lot or, in the alternative, to return to said plaintiff the sum of three thousand pesos (P3,000.00).
During the pendency of the civil case, the matter was referred by respondent Romero to the city fiscal's office for criminal
prosecution of petitioner for estafa. Further investigation was made by the fiscal. It was then that allegedly the complaining
witness came to know that the sum of three thousand pesos (P3,000.00) received by petitioner from said respondent for the
purchase of a lot in Rita Legarda Subdivision, was never paid to or acknowledged by the said subdivision; and that the
alleged contract to purchase, delivered by petitioner to respondent Romero, was not genuine for the reason that 'the money
therein mentioned was not acknowledged by the said subdivision in payment of the lot mentioned therein'. Thus, it is, that in
the criminal information, petitioner was charged with having feloniously misappropriated, misapplied and converted the said
sum to his own personal use and benefit, to the damage and prejudice of respondent Pastor Romero and his daughter Sofrania
Romero.
The situation is this: The civil complaint was upon the theory that the money was used for the purchase of a lot; the criminal
information, in turn, alleges that the money was never used for the purchase of any lot at all but, on the contrary, was
embezzled by petitioner.
... Fraud is not an essential element of the civil suit; petitioner could well have been held civilly liable for breach of contract
with respondent Romero. Upon the other hand, the action for estafa is predicated upon deceit without which there can be no
estafa. So that, the one is entirely distinct and may be litigated independently from the other. Sy vs. Malate Taxicab and
Garage, Inc., G.R. No. L-8937, November 28, 1957.
We find the above considerations to be correct and in accord with the provisions of Article 31 of the New Civil Code to the
effect that "When the civil action is based on an obligation not arising from the act or omission complained of as a felony,
such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter.".

Rule 111 Sec 6 & 7
EXAMPLE (CASE W/ PREJUDICIAL QUESTION)
FACTS:
De l i a Es t r e l l a ne s a nd Ba r t ol o me Bi n a o h a n we r e d e s i g n a t e d a s i nd us t r i a l l a b o r sectoral
representative and agricultural labor sectoral representative respectively, for theSangguniang
Bayan of Jimalalud, Province of Negros Oriental by then Secretary of theDepartment of Local Government.
They took their oath of office. Petitioners filed a
petitionwi t h t he Of f i c e o f t he Pr e s i d e n t f o r r e v i e w a n d r e c a l l o f s a i d d e s i g n a t i o n s . Th e l a t t e r ,
however, denied the petition and enjoined Mayor Reynaldo Tuanda to recognize privaterespondents as
sectoral representatives. Undaunted, petitioners filed an action with the RTCof Dumaguete City to declare null and
void the designations of private respondents
ass e c t o r a l r e p r e s e n t a t i v e s . M e a n w h i l e , p r i v a t e r e s p o n d e n t s a l s o f i l e d b e
f o r e t h e Sandiganbayan a complaint against petitioners for violation of section 3 (e) of R.A. 3019
ont h e gr o u nd t ha t pe t i t i o ne r s r e f us e d t o g i v e t h e m t h e i r p e r d i e ms , s a l a r i e s a nd o t he r privileg
es and benefits as sectoral representatives. Petitioners filed a motion wit h theSandiganbayan for suspension of
the proceedings on the ground that a prejudicial questionexists i n the civil case pending before the RTC of
Dumaguete City. The RTC rendered adecision declaring null and void
ab initio
the designations issued by the Department of LocalGovernment to the private respondents as sectoral representatives for
having been done inviolation of Section 146 (2) of the Local Government Code. Meanwhile, the Sandiganbayanissued a
resolution denying the motion for suspension of proceedings filed by petitioners.
Isthe legality or validity of private respondents designation as sectoral representatives aprejudicial
question justifying suspension of the proceedings in the criminal case againstpetitioners? In the event that
private respondents designations are finally declared invalid,may still be considered
de facto
public officers entitled to compensation for services actuallyrendered?
HELD:
The i s s u e i n t he c i vi l c a s e c o ns t i t u t e s a v a l i d p r e j ud i c i a l q ue s t i o n t o wa r r a n t s u s p e n s i o n o f
t h e a r r a i g n me nt a nd f ur t he r pr oc e e d i n g s i n t h e c r i mi n a l c a s e a g a i n s t petitioners. The facts and issues
involved in the civil action and the criminal case are closelyrelated. The filing of the criminal case was premised on
petitioners alleged partiality andevident bad faith i n not paying private respondents salaries and per diems as
sectoralrepresentatives, while the civil action was instituted precisely to resolve whether or not thedesignations of private
respondents as sectoral representatives were made in accordancewith law

Sec 6 & 7 Prejudicial Question
It must be remembered however, that a prejudicial question does not conclusively resolve the guilt or innocence of the accused but
simply tests the sufficiency of the allegations in the information in order to sustain the further prosecution of the criminal case. A party
who raises a prejudicial question is deemed to have hypothetically admitted that all the essential elements of a crime have been
adequately alleged in the information, considering that the prosecution has not yet presented single evidence on the indictment or may
not yet have rested its case. A challenge of the allegations in the information on the ground of prejudicial question is in effect a
question on the merits of the criminal charge through a non-criminal suit.














Rule 112 PRELIMINARY INVESTIGATION
Determination of probable cause for purpose of:
1. Indictment exclusive w/in the province of fiscal
Consists of facts & circumstances that will engender a reasonable belief that a crime has been committed and that
the accused is probably guilty thereof
There must be a certification that a preliminary investigation has been performed (SC: not the sole basis of the judge
in determining probable cause for issuance of warrant of arrest) -Placer V Villanueva

2. Issuance of warrant of arrest w/in the jurisdiction of the court
If the judge, upon determination that there is no probable cause, he must dismiss the case. Dismissal must not be
without prejudice
Sec 2
Other officers who may be authorized by law:
Ombudsman George UY V Sandiganbayan (public officer/employee)
Ombudsman has primary & plenary authority even if the cases are cognizable by the sandiganbayan and regular court.
Special Prosecutor to conduct preliminary investigation over cases involving public officers/employees cognizable by the
Sandiganbayan
Preliminary investigation- matter of right (4y2m1d)
PROCEDURES (2)
SEC 3 regular procedure
SEC 7 procedure for purposes of inquest (If there has been: lawful warrantless arrest)


Rule 112 Preliminary Investigation
Rule 112. Sec 1 Preliminary investigation defined
Preliminary Investigation an inquiry or proceeding to determine whether there is sufficient ground to engender a well-
founded belief that a crime has been committed and that the respondent is probably guilty thereof and should be held for trial
preliminary because it is yet to be followed by trial; only evidence as may engender a well-grounded belief that an
offense has been committed
Purpose secure the innocent against hasty, malicious & oppressive prosecutions, protect him from open & public accusation
of a crime, from the trouble, expense, anxiety of a public trial, and also to protect the state from useless and expensive
prosecutions
3-fold purpose
o To inquire concerning the commission of a crime and the connection of the accused with it, in order that he may be
informed of the nature and character of the crime charged against him, and if, there is probable cause for believing
him guilty, that the state may take the necessary steps to bring him to trial
o To preserve the evidence and keep witnesses within the control of the state
o To determine the amount of bail, if the offense is bailable
Nature of right to preliminary investigation
o Merely inquisitorial, not a trial on the merits
o Sole purpose determine whether a crime has been committed and whether there is probable cause to believe that
the accused is guilty thereof
o Not a judicial proceeding
o Quasi-judicial function of prosecutor an officer of the executive department exercising powers akin to those of a
court
o Does not require the presence of the accused, may be conducted ex parte
o Not a creation of the Constitution; Origin- Statutory
o Generally not an essential part of due process of law (may be suppressed)
o Exception it becomes a part of due process when granted by law

US V Marfori (conviction w/o prelim investigation w/o due process of law)
Justice of peace who held the preliminary investigation discharged the accused on the ground that he was not guilty of the
crime with which he was charged.
He appears to have been of opinion that the crime ofinjurias graves had not been committed, and that it was a mere
misdemeanor of the class defined and penalized in book 3 of the Penal Code.
the complaining witness renewed the complaint in the Court of First Instance, an information was filed in that court and the
accused brought to trial thereon without further proceedings.
During arraignment, counsel for accused pleaded not to proceed (no jurisdiction) - no order remainding the accused for trial
having been issued by a competent magistrate as a result of a preliminary trial held in accordance with law.
Trial judge proceeded and convicted the accused
SC Reversed
However, in more recent cases, it was held that the absence of the preliminary investigation is not a ground to quash a complaint,
instead, the following must be done:
o Hold in abeyance the proceedings
o Remand the case to the Office of the Provincial Fiscal/ Ombudsman

Waiver of preliminary investigation the right is a personal right, which may be waived by the accused either expressly or by
implication. It is deemed waived when:
o Accused failed to claim it before he pleaded
o By his silence
o Failure to request for it within 5 days from the time he learns of the filing of the complaint or information
o When accused posted a bond for his release & subsequently proceeds to trial without claiming that he did not have
the benefit of a preliminary investigation
o Any irregularity that attended the investigation
o Negligence of the accused to attend to the scheduled date of investigation
o Absence of the accused
o Posting bail & submitting to arraignment
NOTE: Posting bail ALONE does not constitute waiver of right to preliminary investigation

Cases wherein preliminary investigation is required depends upon the imposable penalty for the crime charged in the
complaint or information filed and not upon the imposable penalty for the offense which may be found to have been
committed by the accused after a preliminary investigation.

Rule 112 Sec 2 Officers authorized to conduct preliminary investigation
1. Provincial or city prosecutors & their assistants
2. National & Regional State Prosecutors
3. Other officers as may be authorized by law:
a. Ombudsman
b. Graft Investigator Officers
c. Special Prosecutor
d. COMELEC legal officers
e. PCGG
Authority of Ombudsman to conduct preliminary investigation not exclusive, concurrent authority with regular courts
RA 6670 - AN ACT PROVIDING FOR THE FUNCTIONAL AND STRUCTURAL ORGANIZATION OF THE
OFFICE OF THE OMBUDSMAN, AND FOR OTHER PURPOSES
Sec 15 of RA 6770 vests with the Ombudsman the power to investigate and prosecute any act or omission of public officers
/ employees regardless of WON they are cognizable by the Sandiganbayan (PLENARY POWER)
Special Prosecutor limited only to those cases cognizable by the Sandiganbayan
No need to deputize all prosecutors because they are already authorized by law to investigate the commission of crimes under
the RPC (Revised Administrative Code)
Rule 112 Sec 3 PROCEDURE
30-45 days total
10 days for the investigating officer to dismiss / subpoena the respondent
10 days upon receipt of subpoena, for the respondent to file a counter-affidavit
10 days from the submission of counter-affidavit / expiration of period for filing the same
5 days max period of hearing
10 days after the preliminary investigation, investigating officer must determine WON there is a probable cause