motion ot quash
DESCRIPTION
Sample form - Motion to QUashThis is a sample form of a motion to quash (ph) based on a case study.TRANSCRIPT
FINALSInLegal Writing
Rey Nio AbrahanStudent LLB-1Room 408
REPUBLIC OF THE PHILIPPINESREGIONAL TRIAL COURT7TH JUDICIAL REGIONBRANCH 666CEBU CITY
PEOPLE OF THE PHILIPPINES, Plaintiff
Criminal Case No. 14344
---versus--- For: Murder
JOB HUTT
Accused
X---------------------------------------------------------------------------------------///
MOTION TO QUASH
(Accused) Job Hutt (Hutt), through counsel, and unto this Honorable Court, most humbly and respectfully files this Motion to Quash and states that:
The complaint or information filed against Job Hutt be quashed on the grounds that this Honorable Court trying the case has no jurisdiction over the person of the accused because:
1. The arrest made on the accused was illegal;2. The preliminary investigation was made even if client was without counsel.
PREFATORY
The Constitutional duty of this Court in criminal litigations is not only to acquit the innocent after trial but to insulate, from the start, the innocent from unfounded charges. For the Court is aware of the strains of a criminal accusation and the stresses of litigation which should not be suffered by the clearly innocent. The filing of an unfounded criminal information in court exposes the innocent to severe distress especially when the crime is not bailable. Even an acquittal of the innocent will not fully bleach the dark and deep stains left by a baseless accusation for reputation once tarnished remains tarnished for a long length of time. The expense to establish innocence may also be prohibitive and can be more punishing especially to the poor and the powerless.Innocence ought to be enough and the business of this Court is to shield the innocent from senseless suits right from the start.[footnoteRef:1] [1: Dissenting Opinion, Justice Renato Puno. Roberts, Jr. v. Court of Appeals, 254 SCRA 307, March 5, 1996. ]
STATEMENT OF THE CASE
1. On January 5, 2014, a certain Amy Dala was murdered.
2. On January 7, 2014, a witness named Jan Go identified Job Hutt as Amy Dalas shooter. Jan Go identified Job Hutt among the five photographs of male persons that the police showed to him.
3. On January 8, 2014, the police, acting on the information supplied by Jan Go, arrested Job Hutt in his residence while eating. The arrest however was without warrant.
4. After Job Hutts arrest, the police presented him to the media as Amy Dalas murderer.
5. On the same day, January 8, 2014, the police filed criminal complaint for murder against Job hurt with the prosecutor's office.
6. Job Hutt signed a waiver of his arrest while the office of the prosecutor conducted a preliminary investigation.
7. On February 3, 2014, the office of the prosecutor filed a case of murder against Job Hutt.
ISSUES
1. Whether the arrest made on Job Hutt is illegal?
2. Whether the waiver Job Hutt signed is invalid and that he is not precluded in questioning the illegality of his arrest?
3. Whether the preliminary investigation made on him is invalid.
In short, the police erred in arresting Job Hutt without a warrant. They also erred in making him sign a waiver thats supposed to cure the defect of the warrantless arrest. Job Hutt was also denied of a procedural due process, as he was not informed of any notice with regard to his preliminary investigation.
ARGUMENTS
A careful study of the facts and evidence reveals the following:
1. When the witness named Jan Go identified Job Hutt as the shooter on January 7, 2014, the police did not proceed with the technicalities of obtaining a warrant of arrest. Instead, they arrested Job Hutt without a warrant the next day January 8, 2014.
Thus, on the issue on warrantless arrest, Rule 113, Section 5 of the Rules on Criminal Procedure provide:
A peace officer or a private person may, without a warrant, arrest a person:
a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; andc) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
In the present case, the documented facts shows that the arrest made on Job Hutt does not fall in any of the circumstances above. In (a), Job Hutt was not in flagrante delicto or is not in the act of committing the crime when arrested. In (b), the police officer had no personal knowledge of facts or circumstances that Job Hutt indeed committed the crime. They relied solely to the testimony of Jan Go, the witness. In (c), Job Hutt is not a prisoner who escaped from a penal establishment but is just an ordinary citizen who was having his meal when he was arrested.
2. There are similar cases in which the Supreme Court invalidated a warrantless search on the ground that the officers could have applied for a search warrant; the concerned officers received the tip either days prior to the arrival or in the afternoon of a working day. InPeople vs. Aminudin,162 SCRA 402, this Court found that the officers received the tip two days prior to the actual date of arrival of accused Aminudin. InPeople vs. Encinadak, 280 SCRA 72, the police officers were tipped off at 4:00 P.M. on May 20, 1992 that accused Encinada would arrive at 7:00 A.M. the next day. Thus, the officers had time to obtain search warrants inasmuch as Administrative Circulars 13 and 19 of the Supreme Court allowed the application for search warrants even after office hours. InPeople vs. Aruta, G.R. No. 120915,the police officers received the information on December 13, 1988 that accused Aruta would arrive on a Victory Liner Bus at 6:30 P.M. on December 14, 1999, giving them a day to obtain a warrant. In the case at hand, it should also be noted that the police had a reasonable amount of time in obtaining a warrant since there was a lapse of one day, where the name of the accused is known, before he made an arrest and such procedure should have been observed.
3. After Job Hutts arrest, he was made to sign a waiver in relation to his arrest. Such extrajudicial waiver should be considered illegal considering that the signing was made without the presence of a counsel.
The established rule as held in People v. Zalameda, G.R. No. 183656, is that an accused may be estopped from assailing the legality of his arrest if he failed to move for the quashing of the information against him before his arraignment. Any objection involving the arrest or the procedure in the courts acquisition of jurisdiction over the person of an accused must be made before he enters his pleas; otherwise the objection is deemed waived.It was also held in People v. Aminola, G.R. No. 178062 that a warrantless arrest is not a jurisdictional defect and any objection to it is waived when the person arrested submits to arraignment without any objection.
Therefore, the right to question the illegality of an arrest is deemed waived if such illegality was not questioned before arraignment. In the case at hand, the waiver is not kind of waiver contemplated by jurisprudence as a valid waiver. Thus, the illegality of the arrest can still be raised, as the arraignment has not started yet.
4. The prosecutor conducted his preliminary investigation on the same day without giving notice to Job Hutt and informing him that he has the right to have a counsel; or by providing him counsel..
Section 14 of the 1987 Constitution states:No person shall be held to answer for a criminal offense without due process of law.
Due process is comprised of two components -- substantive due process which requires the intrinsic validity of the law in interfering with the rights of the person to his life, liberty, or property, and procedural due process which consists of the two basic rights of notice and hearing, as well as the guarantee of being heard by an impartial and competent tribunal[footnoteRef:2] (Emphasis supplied.); [2: Sec. of Justice v. Lantion, 332 SCRA 160]
The right to counsel, a very basic requirement of substantive due process, should always be observed. Indeed, rights to counsel and to due process of law are two of fundamental rights guaranteed by the 1987 Constitution to person under investigation, be the proceeding administrate civil, or criminal. Thus, Section 12(1), Article III thereof specifically provides: "Any person under investigation for the commission of an offense shall have the right to ... have compete and independent counsel preferably of his own choice. If the person cannot afford the service of counsel, he must be provided with one. These rights cannot be waived except in writing in the presence of counsel."[footnoteRef:3] [3: Section 12 (1), 1987 Constitution]
In the case at hand, Job Hutt was made to sign a waiver without a presence of a counsel. A preliminary investigation was also conducted and as a result he was unable to present any evidence.
The illegality of the arrest would give effect that the court has no jurisdiction over a person, in this case, Job Hutt.
Rule 117, Section 3 provides:
The accused may move to quash the complaint or information on any of the following grounds:
a. xxxb. xxx
c. That the court trying the case has no jurisdiction over the person of the accused.
Thus, the court has not acquired jurisdiction over Job Hutt because the arrest made on him was illegal, as it did not satisfy the circumstances that applies to warrantless arrest and that the police officers failed to secure a warrant when they had a reasonable amount of time in obtaining one.
PRAYER
WHEREFORE, (Accused) Job Hutt respectfully prays to the Honorable Court to quash the information, and dismiss the criminal charge against him.
Job Hutt likewise respectfully prays for other just and equitable relief.
RESPECTFULLY SUBMITTED.
Cebu City, March 7, 2014
__________________________Counsel of the Accused
ANNA QUINNPTR NO. 1845041; 1.31.2014; C.CIBP OR. No. 943051; 1.06.2014; C.C.Roll of Attorneys No. 53130MCLE Compliance No. 0061059; November 2013Email: [email protected]
REPUBLIC OF THE PHILIPPINESREGIONAL TRIAL COURT7TH JUDICIAL REGIONBRANCH 666CEBU CITY
PEOPLE OF THE PHILIPPINES, Plaintiff
Criminal Case No. 14344
---versus--- For: Murder
JOB HUTT
Accused
X---------------------------------------------------------------------------------------///
OPPOSITION TO MOTION TO QUASH
Plaintiffs People of the Philippines, through counsel, and unto this Honorable Court, most humbly and respectfully files this Opposition to Motion to Quash and states that:
The motion to quash be denied on the grounds that:1. The arrest was done in the interest of justice and is therefore legal.2. The irregularity of the preliminary investigation is not a ground to quash the information.
PREFATORY STATEMENT
While it is true that rules of procedure are intended to promote rather than frustrate the ends of justice, and the swift unclogging of court dockets is a laudable objective, it nevertheless must not be met at the expense of substantial justice. Time and again, this Court has reiterated the doctrine that the rules of procedure are mere tools intended to facilitate the attainment of justice, rather than frustrate it. A strict and rigid application of the rules must always be eschewed when it would subvert the primary objective of the rules, that is, to enhance fair trials and expedite justice. Technicalities should never be used to defeat the substantive rights of the other party. Every party-litigant must be afforded the amplest opportunity for the proper and just determination of his cause, free from the constraints of technicalities. Thus, the CA should have refrained from hastily dismissing the petition on procedural flaws.[footnoteRef:4] [4: Philippine Amusement Gaming v. Angara , G.R. No. 142937, November 15, 2005, 475 S]
STATEMENT OF THE CASE
1. On January 5, 2014, a certain Amy Dala was murdered.
2. On January 7, 2014, a witness named Jan Go identified Job Hutt as Amy Dalas shooter. Jan Go identified Job Hutt among the five photographs of male persons that the police showed to him.
3. On January 8, 2014, the police, acting on the information supplied by Jan Go, arrested Job Hutt in his residence while eating. The arrest however was without warrant.
4. After Job Hutts arrest, the police presented him to the media as Amy Dalas murderer in the interest of Justice.
5. On the same day, January 8, 2014, the police filed criminal complaint for murder against Job hurt with the prosecutor's office.
6. Job Hutt signed a waiver of his arrest while the office of the prosecutor conducted a preliminary investigation.
7. On February 3, 2014, the office of the prosecutor filed a case of murder against Job Hutt.
ISSUES
1. The arrest made on Job Hutt is for the interest of justice and is therefore valid.
2. The irregularity of the preliminary investigation is not a ground for a motion to quash.
ARGUMENTS
A careful study of the facts and evidence reveals the following:
1. When the witness named Jan Go identified Job Hutt as the shooter on January 7, 2014, the police did not proceed with the technicalities of obtaining a warrant of arrest. Instead, they arrested Job Hutt without a warrant the next day January 8, 2014. The police officer also presented him to the media in satisfaction of the demand and cry for justice that was circulating in the media of the ruthless murder of Amy Dala.
It would be extremely pernicious to the interest of justice if this case were dismissed due to the failure of the police officers to observe the strict procedures prescribed by our laws. Clearly the principle that technicality should not defeat substantial justice.
In Aguam v. Court of Appeals, 388 Phil. 587 (2000), a dismissal of appeals purely on technical grounds is frowned upon where the policy of the court is to encourage hearings of appeals on their merits and the rules of procedure ought not to be applied in a very rigid, technical sense; rules of procedure are used only to help secure, not override substantial justice. It is a far better and more prudent course of action for the court to excuse a technical lapse and afford the parties a review of the case on appeal to attain the ends of justice rather than dispose of the case on technicality and cause a grave injustice to the parties, giving a false impression of speedy disposal of cases while actually resulting in more delay, if not a miscarriage of justice.
2. The prosecutor conducted a preliminary investigation while the accused has no counsel.Rule 117, section 3 provides:The accused may move to quash the complaint or information on any of the following grounds:
a. That the facts charged do not constitute an offense;
b. That the court trying the case has no jurisdiction over the offense charged;
c. That the court trying the case has no jurisdiction over the person of the accused;d. That the officer who filed the information had no authority to do so;
e. That it does not conform substantially to the prescribed form;
f. That more that one offense is charged except when a single punishment for various offenses is prescribed by law;
g. That the criminal action or liability has been extinguished;
h. That it contains averments which, if true, would constitute a legal excuse or justification; and
i. That the accused has been previously convicted or acquitted of the offense
The above mentioned are the only circumstances for a motion to quash. The irregularity of the preliminary investigation insisted by the accused is not a ground for a motion to quash.It was held in Pilapil v. Sandiganbayan, GR No. 101978, that the Court bears mention of the rudimentary rule that the absence of a preliminary investigation is not a ground to quash a complaint or information under Section 3, Rule 117 of the Rules of Court. The proper procedure in case of lack of preliminary investigation is to hold in abeyance the proceedings upon such information and the case remanded to the Office of the Provincial Fiscal or the Ombudsman, for that matter, for him or the Special Prosecutor to conduct a preliminary investigation.
Thus, the irregularity of the preliminary investigation has no bearing in a motion to quash and should be disregarded.
PRAYER
WHEREFORE, Plaintiff, The People, respectfully prays to the Honorable Court to deny the Motion to Quash the information for lack of merit.
The People likewise respectfully pray for other just and equitable relief.
RESPECTFULLY SUBMITTED.
Cebu City, March 15, 2014
__________________________Counsel of the Accused
SMEE GOLLYPTR NO. 2544042; 1.31.2014; C.CIBP OR. No. 95321; 1.11.2014; C.C.Roll of Attorneys No. 33250MCLE Compliance No. 0061059; April 2013Email: [email protected]