To know when, how and why in filing the motion to quash under the criminal procedure of the Philippines

1. BY: CHELDY SYGACO ELUMBA-PABLEO,MPA,LLB
CRIMINAL PROCEDURE

2. It is a motion filed by the accused through his counsel
which if granted will result to the dismissal of the case.
COMPARED TO NOLLE PROSEQUI is initiated by the
prosecutor.
 It is a dismissal of the case by the government before
the accused is placed on trial and before he is called to
plead, with the approval of the court in exercise of its
judicial jurisdiction.

3. Before entering his plea,
the accused may move to
quash the complaint or
information.

4. BASIS: defect on the information
which is evident on its face not on
lack of probable cause.
Dismissal and the information filed
must be invalidated.

5. The motion to quash must be in writing, signed
by the accused or his counsel and shall be
distinctly specify its factual and legal grounds.
The court shall consider no grounds other than
those stated in the motion EXCEPT lack of
jurisdiction over the offense charged.

6. 1. The facts charged do not constitute an offense;
2. The court trying the case has no jurisdiction over the offense
charged;
3. The court trying the case has no jurisdiction over the person
accused;
4. The officer who filed the information had no authority to do
so;
5. It does not conform substantially to the prescribed form;

7. 6. More than 1 offense is charged except when a single
punishment for various offense is prescribed by law;
7. The criminal action or liability has been extinguished;
8. It contains averments which, if true, would constitute a legal
excuse or justification;
9. The accused has been previously convicted or acquitted of
the offense charged, or the case against him was dismissed or
otherwise terminated without his express consent.

8.  The test is whether the facts alleged in the information are
deemed hypothetically admitted, and matters not alleged
may not be looked into, except those which are admitted in
the records by the prosecution.
 Whether the DEFENSES in the motion to quash are
indubitable, the motion should be denied and the defenses
threshed out during the trial.
 Where the facts are incomplete and do not convey all the
elements of the crime, the quashing of the accusation is in
order.

9.  GENERAL RULE: Motion to Quash on the ground that the
facts alleged in the information do not constitute an
offense, the court may not consider facts not alleged
therein admits EXCEPT on additional facts not alleged in
the information, including facts which are matters of
defense, but admitted or not denied by the prosecution,
may be invoked in the motion to quash, even if the
ground alleged is that the facts therein stated do not
constitute an offense. (PP vs Dela Rosa, PP vs Navarro)

10. 1.The averments in the information, as
hypothetically admitted;
2.Facts admitted by the prosecution;
3.Indubitable facts

11. 1. Where they are facts already admitted by the
prosecution;
2. Where they are undisputed facts apparent from the
records of the preliminary investigation and not denied
or admitted by the prosecutor
3. Where they are undisputed or undeniable facts that
destroy the prima facie truth accorded to allegations of
the information;

12. 1. The law defines the offense and its penalty and the jurisdiction
of the court. Hence, inquiry should be made as to whether the
court has jurisdiction over the information/case filed therein;
2. In criminal prosecution, venue or the place where the action is
filed is jurisdictional;
3. The condition precedent required by law have not been
compiled with. For instance: in private crimes, the complaint of
the offended party is necessary to confer upon trial court the
authority to try the case.

13.  Jurisdiction of the court in criminal cases is acquired by the
arrest of the accused or by his voluntary appearance in
court.
 It allows him to be arraigned without questioning the
legality of his arrest, the court acquired jurisdiction over
the person and the illegality of the arrest is waived, as the
legality of arrest affects only the jurisdiction of the court
over the person of the accused.

14. If the accused believes that the arrest, with or
without warrant is illegal, he should move to quash
the information on such ground, along with other
grounds otherwise such other grounds will be
deemed waived if not included in the motion to
quash, EXCEPT no offense charged, lack of
jurisdiction over the offense, prescription of the
offense or liability or double jeopardy.

15.  ORDINARILY, the information is signed by the prosecutor,
with the prior approval of his superior.
 There are time when the Secretary of Justice would
designated a SPECIAL PROSECUTOR to conduct the
preliminary investigation and signs the information.
 IF SPECIAL PROSECUTOR so designated is disqualified, the
information filed by him may be challenged on the
ground that he has no authority to do so.

16. This defect cannot be cured by silence,
acquiescence, or even by express consent.
It has been held that ONLY a prosecutor, not the
Ombudsman, can sign the information filed in the
regular courts, the prosecutory power of the
Ombudsman being limited to offenses cognizable
by the Sandiganbayan in its original jurisdiction.

17. Election offenses may ONLY be prosecuted by
the Commission on Elections, usually by its legal
officer and its deputized prosecutors.
If the information for an election offense is filed
and signed by a prosecutor, who has not been
duly deputized, the information may be quashed
on such ground.

18. Sec. 6 Rule 110 provides that the complaint or
information is sufficient if it states the:
1. name of the accused,
2. the designation of the offense by the statute,
3. the acts or omission constituting the offense,
4. the name of the offended party,
5. the approximate time of the commission of the
offense, and
6. the place wherein the offense was committed.

19. Where the allegation as to the time of
the commission of the offense is so
indefinite as to prejudice the defense, a
motion to quash the information may
be granted and the case be dismissed.

20. Sec. 13, Rule 110 requires that the
complaint or information must charge
but one offense EXCEPT only in those
cases in which existing laws prescribe a
single punishment for various offenses.

21. When each of two offenses committed
is punishable by two different laws, they
cannot be charged in one information
as a complex crime BUT must be
regarded as two separate information.

22. IF the accused fails to object and goes to trial
under the information which contains more
than one offense, GENERAL RULE: he waives
the objection and he should be sentenced for
as many offenses as alleged in the
information and proved during trial.

23. The statute of limitation is granted by the
State, “surrendering by act of grace its right
to prosecute, and declaring the offense to be
no longer the subject of prosecution.”
Protection from prosecution under a statute
of limitation is a substantive right.

24.  The criminal liability is totally extinguished in any of the following:
1. Death of the convict as to personal penalties and as to pecuniary
penalties- liability therefor is extinguished;
2. Service of sentence;
3. Amnesty (an official pardon for people who have been convicted
of political offenses) which completely extinguishes the penalty
and all its effects;
4. Absolute pardon
5. Prescription of crime;

25. 6. Prescription of the penalty
7. Pardon by the offended party in private
crimes prior to the filing of the complaint;
The marriage of the offended woman, as
provided in Art. 344 of the RPC.

26. It is the termination of the right or power to
prosecute or punished the offender after the
lapse of certain definite period from the
commission of the offense, or if this not
known, from the day of its discovery and the
beginning of judicial proceeding for the
investigation and punishment.

27. 1. Crimes punishable by reclusion perpetua, death and life
imprisonment– 20 years;
2. Punishable by afflictive penalty—15 years;
3. Libel or other similar crimes—1 year;
4. Oral defamation and slander---6 months;
5. Light offenses—2 months (punishable only when they have been
consummated, e.g. conspiracy)
 Penalty fixed by law: compound one, the highest penalty shall be
made.

28. It commence to run from the day on which the
crime is discovered by the offended party, the
authorities, or their agents and shall be
INTERRUPTED by filing of the complaint or
information and shall run again when proceedings
terminate without the accused being convicted or
acquitted, or are unjustifiably stopped for any
reason not imputed by him.

29.  When the law speaks of year, months days or nights, it shall be
understood that the:
1. years --365 days;
2. Months—30 days;
3. Days—24 hours;
4. Night—from sunset to sunrise
 If months are designated by their name, they shall be
computed by the number of days which they respectively have.

30.  An offense is a continuing one perpetrated over a span of
time.
 The period of its prescription is counted from the latest to
the last act constituting the series of acts continuing the
single crime.
 AS A RULE: continuing or continues crimes does not run
until last act has ceased.
 For it to exist, there must be plurality of acts performed
separately during a period of time.

31. It does not run when the offender is absent in
the Philippines.
Thus, the prescriptive period of the offense
committed by the person who goes abroad
to hide from justice does not run, until he
comes back to the Philippines.

32. SPECIAL LAW: prescriptive periods
which are governed by Act No. 3326
can only be interrupted by filing of the
complaint or information in the proper
court, and not in the office of the
prosecutor or the Office of the
Ombudsman.

33. It refers to the offense after its commission
but before the filing of complaint in court,
while consent refers to the offense prior
thereto.
THE OFFENSES ARE: abduction, rape,
seduction, and acts of lasciviousness refers to
the filing of criminal complaint in court.

34. PARDON GIVEN AFTER FILING of the criminal
complaint in court does not prohibit the
continuance of the prosecution of the offense
EXCEPT being married between the offender and
the offended party.
INVOLVING MINORS: the pardon to be effective as
to prevent prosecution of the accused must be
given by both parents and the offended party, one
or the other not being sufficient.

35. Amnesty completely extinguishes the
penalty and all its effects.
Amnesty by Proclamation of the
President with the concurrence of
Congress is a public act of which the
court should take judicial notice.

36. GRANTED TO: classes of person or
communities who may be guilty of
political offenses, generally BEFORE or
AFTER the institution of the criminal
prosecution and sometimes after
conviction.

37. PARDON is granted by the President as such is a
private act which must be pleaded and proved
by the person pardoned because the court take
no judicial notice while AMNESTY by
Proclamation of the President with the
concurrence of Congress is a public act of which
the court should take judicial notice.

38. PARDON looks forward where the accused
has been convicted, that is, it abolishes or
forgives the rights to hold public office, the
right to suffrage, UNLESS such be EXPRESSLY
restored by the terms of the pardon, and it
no way exempts the culprit from payment of
the civil indemnity upon him by the sentence.

39. If such acts or circumstances are
averred in the complaint such
averment, s if true will render the
accused free and harmless from
criminal liability.

40. This is the last ground specified in Sec.
3, for motion to quash is that the
accused has been previously convicted
or acquitted of the offense charged, or
the case against him was dismissed or
other terminated without his express
consent.

41. REQUISITES:
1. First jeopardy must have attached prior to the
second;
2. First jeopardy must have been validly terminated;
3. The second jeopardy must be for the offense
charged in the first information or is an attempt to
commit the same or a frustration thereof.

42.  In determining when the first jeopardy may be said to have attached,
it is necessary to prove the existence of the following:
1. A court of competent jurisdiction
2. Valid complaint or information
3. Arraignment
4. Valid plea
5. Defendant was acquitted or convicted or the case was dismissed or
otherwise terminated without the express consent of accused.

43. GENERALLY SPEAKING: grounds which are
NOT specifically mentioned as grounds for
motion to quash may not be raised to dismiss
the complaint or information.
AS A RULE: a motion to quash should be
based on a defect in the information which is
evident on its face.

44. Non-inclusion of other persons who appear to
be responsible for the crime charged is not one
of the grounds under Sec. 3. Rule 117 which a
motion to quash the information may be filed.
Neither is the dropping of the charge against a
co-accused a ground to quash the information
against the remaining accused.

45. 1. If no warrant of arrest has been issued by the court, the
accused may file a MOTION TO DEFER ARRAIGNMENT and
for the determination of probable cause on the ground that
that there is insufficient evidence to prove probable cause.
2. Before arraignment, the accused may move for the
REINVESTIGATION of the case if there is no probable cause
to warrant the filing of the information (if the court denies:
may elevate the issue by filing a PETITION FOR CERTIORARI
–Avila vs Sandiganbayan)

46. 3. If the accused has been arrested, with or without
warrant, he may file MOTION TO QUASH the arrest or
to RECALL the same, on the ground that the same has
been illegally made or that there is no probable cause.
4. The accused may file MOTION FOR
DETERMINATION OF THE PROBABLE CAUSE
deferment of the issuance of a warrant of arrest.

47.  Contentious motions in criminal cases must comply with the
requirements that they be set for hearing at s specified date
with prior notice to the adverse party or the prosecutor at least
three days before the hearing, the notice should be addressed
to the adverse counsel and proof of service of the motion upon
the adverse party or prosecutor at least three days prior to such
hearing.
 Such hearing is merely PRO FORMA, purpose is to enable the
court to determine whether the adverse party agrees or objects
such motion.

48. Failure of the prosecutor conducting the preliminary
investigation to furnish the accused with the copy of
his resolution for the filing of the information , as to
deprive the accused the opportunity to file a
MOTION FOR RECONSIDERATION thereof, is not a
ground for motion to quash—granting such motion
constitute GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION.

49.  If the alleged defect of the complaint or information can be
cured, the court shall order that an amendment of information
be made.
 An accused even after he has entered his plea, may still move
to quash the information on the ground that it does not charge
an offense.
 IF DISMISSED: prosecution may not be permitted to correct the
information because the accused has already pleaded and
allow such amendments may place the accused in twice in
jeopardy.

50.  If motion to quash is sustained, the court may order that
another information be filed, EXCEPT as provided in Sec.6 of
this rule.
 IF MADE: the accused (if in custody) shall not be discharged
unless admitted to bail.
 IF NO ORDER/NO NEW INFORMATION FILED: (within the
time specified) the court may allow for good cause, the
accused (if in custody) shall be discharge UNLESS he is also
in custody of another case)

51. 1. Amend the information to correct the
defects thereof if the trial court makes
an order to that effect, in accordance
with Sec. 5 of Rule 117 and thereafter
prosecute the accused on the basis of
the amended information.

52. 2. If the prosecution does not agree with the
order of quashal of information, it may
appeal therefrom to the appellate court.
Appeal will not place the accused in
double jeopardy because he has not yet
been arraigned.

53. 3. If the facts alleged in the information which has
been quashed because it does not alleged all the
elements of the offense, but the facts so alleged
constitute another offense under the specific statute,
the prosecution can file a complaint for such specific
offense where dismissal is made prior to
arraignment of the accused and a motion to quash.

54.  USUAL COURSE: proceed to trial, and in case of conviction,
to appeal therefrom and assign as an error the denial of the
motion to quash.
 NOTE: it has been held that an order denying a motion to
quash is interlocutory and therefore not appealable, nor can
it be the subject of a petition for certiorari. THEREFORE, the
accused should proceed to trial of the case, if convicted,
raise the same question in his motion to quash before the
appellate court.

55.  GENERAL RULE: denial of a motion to quash may not
ordinarily be challenge by a petition for certiorari and
prohibition, as the usual remedy therefrom is to go to trial
and appeal in case of conviction.
 EXCEPTION: the PETITION FOR CERTIORARI and
PROHIBITION may be AVAILED of where the information
or complaint is patently defective or the offense charged
therein has been indisputably shown to have already
prescribed.

56.  IN ANY OF THE FOLLOWING INSTANCES:
1. There is necessity to afford protection to the constitutional
rights of the accused;
2. Necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions;
3. There is prejudicial question which is sub judice;
4. The acts of the officer are without or in excess of authority
5. The prosecution is under an invalid law, ordinance or
regulation;

57. 6. When double jeopardy is clearly apparent;
7. The court has no jurisdiction over the offense;
8. It is a case of persecution rather than prosecution;
9. The charge are manifestly false and motivated by the lust for
vengeance;
10. There is clearly no prima facie case against the accused;
11. To avoid multiplicity of action.

58. The conviction of the accused shall not bar to
another prosecution for an offense which
necessarily includes the offense charged in former
complaint or information UNDER ANY OF THE
FOLLOWING:
1. Graver offense developed due to the supervening
facts arising from the same act or omission
constituting the former charged;

59. 2. The facts constituting the graver charge became known or were
discovered only after the filing of the former complaint or
information;
3. The plea of guilt to the lesser offense was made without the
consent of the fiscal and the offended party except as provided in
Sec. 1(f) of Rule 116.
 In any of the foregoing cases where accused satisfies or serves
in whole or in part the judgment, he shall be credited with
same in the event of conviction for the graver offense.

60. 2 CATEGORIES:
1. Same offense
2. Same act
Double jeopardy exist only where the identity is
between the earlier and the subsequent offense
charged.
If an additional fact is required in one and not with the
other, there is no double jeopardy.

61. The law seeks to prevent offense which
though different from one another are
nonetheless each constituted by a
common set or overlapping sets of
technical elements.

62.  The acts constitute in to information are so related to each
other in time and space as to be reasonably regarded as
having been taken on same place on the same occasion and
where those acts have been moved by one and the same, or
continuing, intent or voluntary design or negligence such
acts may be appropriately characterized as an integral
whose capable of giving rise to penal liability under different
legal enactments (municipal ordinances and national
statute).

63. A case cannot be provisionally dismissed
except with the express consent of the
accused and with notice to the offended
party and the prosecutor.
Prior notice to the offended party is to give
him the opportunity to be heard on the
matter.

64. THANK YOU FOR READING!
CHELDHAYE