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[G.R. No. L-24447. June 29, 1968.] THE PEOPLE OF THE PHILIPPINES, plaintiffappellant, vs. WILLY OBSANIA, defendantappellee.

Solicitor General for plaintiff-appellant. Maximo V. Cuesta, Jr. for defendant-appellee. SYLLABUS 1. REMEDIAL LAW; COMPLAINT OR INFORMATION; ALLEGATION OF LEWD DESIGN IN CRIME OF RAPE NOT NECESSARY. In a complaint for rape, it is not necessary to allege "lewd design" or "unchaste motive". To require such averment is to demand a patent superfluity. Lascivious intent inheres in rape and the unchaste design is manifest in the very act itself - the carnal knowledge of a woman through force or intimidation, or when the woman is deprived of reason or otherwise unconscious, or when the woman is under twelve years of age. 2. ID.; ID.; SUFFICIENCY OF COMPLAINT OR INFORMATION IN THE CRIME OF RAPE. The complaint here satisfies the requirements of legal sufficiency of an indictment for rape. It unmistakably alleges that the accused had carnal knowledge of the complainant by means of violence and intimidation. The trial court erred in dismissing the case on the proffered ground that the complaint was defective for failure to allege "lewd design". 3. CONSTITUTIONAL LAW; DOUBLE JEOPARDY: REQUISITES. In order that the protection against double jeopardy may inure in

favor of an accused, the following requisites must have obtained in the original prosecution: (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charges; and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent. 4. ID.; ID.; WAIVER OF DOUBLE JEOPARDY; DISMISSAL WITH EXPRESS CONSENT OF DEFENDANT CONSTITUTES WAIVER. When the case is dismissed with the express consent of the defendant, the dismissal will not be a bar to another prosecution for the same offense because his action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction against him. 5. ID.; ID.; PROVISIONAL DISMISSAL WITH EXPRESS CONSENT OF DEFENDANT; SALICO CASE. Where a criminal case is dismissed provisionally not only with the express consent of the accused but even upon the urging of his counsel, there can be no double jeopardy under Section 9, Rule 113, if the indictment against him is revived by the fiscal. This decision subscribes substantially to the doctrine on waiver established in Salico. 6. ID.; ID.; ESTOPPEL; WHEN DEFENDANT ESTOPPED FROM PLEADING DOUBLE JEOPARDY. When the trial court dismisses a case on a disclaimer of jurisdiction, upon the instigation of the accused, the latter is estopped on appeal from asserting the jurisdiction of the

lower court in support of his plea of second jeopardy. 7. ID.; ID.; ESTOPPEL AND WAIVER; SIMILARITIES. A dismissal, other than on the merits, sought by the accused in a motion to dismiss, is deemed to be with his express consent and bars him from subsequently interposing the defense of double jeopardy on appeal or in a new prosecution for the same offense. 8. ID.; ID.; RULE ON ESTOPPEL SHOULD BE MAINTAINED; REASONS. This Court forthrightly stated that the rule of estoppel applied in the Acierto case should be maintained because: (1) It is basically and fundamentally sound and just; (2) It is in conformity with the principles of legal ethics, which demand good faith of the highest order in the practice of law; (3) It is well settled that parties to a judicial proceeding may not, on appeal, adopt a theory inconsistent with that which they sustained in the lower court; and (4) The operation of the principle of estoppel on the question of jurisdiction seemingly depends upon whether the lower court actually had jurisdiction or not. 9. ID.; ID.; DOCTRINE ON WAIVER IN SALICO CASE NOT IMPLIEDLY ABANDONED. We cannot agree that this Court in Bangalao impliedly abandoned the Salico doctrine on waiver. Bangalao was decided solely on the question of jurisdiction. This Court, after holding that the lower tribunal had jurisdiction, decided outright to repress the appeal by the Government on the ground of double jeopardy without considering whether the appealed order of dismissal was issued with or without

the express consent of the accused because it was granted upon his instigation through a motion to dismiss. 10. ID.; ID.; ID.; SALICO DOCTRINE ON DISMISSAL OF CRIMINAL CASE ON DEFENDANT'S MOTION REPUDIATED. But said ruling is not controlling, having been modified or abandoned in subsequent cases wherein this Court sustained the theory of double jeopardy despite the fact that the dismissal was secured upon motion of the accused. 11. ID.; ID.; INAPPLICABILITY OF WAIVER AND ESTOPPEL; DISMISSAL CONSIDERED AS ACQUITTAL. In Diaz, Abao, Tacneng and Robles like in Cloribel, the dismissals therein, all sought by the defendant, were considered acquittals because they were all predicated on the right of a defendant to a speedy trial and on the failure of the Government to prosecute. Therefore, even if such dismissals were induced by the accused, the doctrines of waiver and estoppel were obviously inapplicable for these doctrines presuppose a dismissal not amounting to an acquittal. 12. ID.; ID.; CASE AT BAR COMPARED WITH CLORIBEL AND CASES CITED THEREIN. Here the controverted dismissal was predicated on the erroneous contention of the accused that the complaint was defective and such infirmity affected the jurisdiction of the court a quo and not on the right of the accused to a speedy trial and failure of the government to prosecute. The appealed order of dismissal in this case now under consideration did not terminate the action on the merits, whereas in Cloribel and in other related cases the dismissal amounted to

an acquittal because the failure to prosecute presupposed that the Government did not have a case against the accused, who, in the first place, is presumed innocent. 13. ID.; ID.; REQUIREMENTS OF WAIVER AND ESTOPPEL. Application of the two sister doctrines of waiver and estoppel requires two sine qua non conditions: first, the dismissal must be sought or induced by the defendant personally or through his counsel; and second, such dismissal must not be on the merits and must not necessarily amount to an acquittal. DECISION CASTRO, J p: Before us for review, on appeal by the People of the Philippines, is an order, dated January 8, 1965, of the Court of First Instance of Pangasinan dismissing, upon motion of the defense, an indictment for rape against Willy Obsania. On November 22, 1964, barely a day after the occurrence of the alleged crime, Erlinda Dollente, the 14-year old victim, and her parents, Ciriaco Dollente and Carmelita Lureta, filed in the municipal court of Balungao, Pangasinan a complaint for rape with robbery, 1 alleging. "That on or about 21st day of November 1964, at around 2:00 to 3:00 in the afternoon, particularly in sitio Cawakalan, barrio of Capulaan municipality of Balungao, Province of Pangasinan, Philippines and within the jurisdiction of the Honorable Court, the said accused Willy Obsania, armed with a dagger, by

means of violence and intimidation, willfully, unlawfully and feloniously did then and there have carnal knowledge of the complainant Erlinda Dollente, against her will and on the roadside in the ricefields at the abovementioned place while she was alone on her way to barrio San Raymundo." After the case was remanded to the Court of First Instance of Pangasinan for further proceedings, the assistant provincial fiscal filed an information for rape against the accused, embodying the allegations of the above complaint, with an additional averment that the offense was committed "with lewd designs". The accused pleaded not guilty upon arraignment, and forthwith with his counsel moved for the dismissal of the case contending that the complaint was fatally defective for failure to allege "lewd designs" and that the subsequent information filed by the fiscal which averred "lewd designs" did not cure the jurisdictional infirmity. The court a quo granted the motion and ordered dismissal of the action, ruling that "the failure of the complaint filed by the offended party to allege that the acts committed by the accused were with 'lewd designs' does not give this Court jurisdiction to try the case." From this order, the fiscal brought the instant appeal. Two issues are tendered for resolution, namely: first, are "lewd designs" an indispensable element which should be alleged in the complaint? and, second, does the present appeal place the accused in double jeopardy? Both must be answered in the negative.

The accused, in his motion to dismiss, as well as the trial judge, in his order of dismissal, rely basically on the ruling in People vs. Gilo (L18202, April 30, 1964). In that case which involved a prosecution for acts of lasciviousness, this Court, in passing, opined that "lewd design" is ". . . an indispensable element of all crimes against chastity, such as abduction, seduction and rape, including acts of lasciviousness . . . an element that characterizes all crimes against chastity, apart from the felonious or criminal intent of the offender, and such element must be always present in order that they may be considered in contemplation of law." Nothing in the foregoing statement can be reasonably interpreted as requiring an explicit allegation of "lewd design" in a complaint for rape. We hold in no uncertain terms that in a complaint for rape it is not necessary to allege "lewd design" or "unchaste motive," for to require such averment is to demand a patent superfluity. Lascivious intent inheres in rape and the unchaste design is manifest in the very act itself the carnal knowledge of a woman through force or intimidation, or when the woman is deprived of reason or otherwise unconscious, or when the woman is under twelve years of age. 2 It is clear that the complaint here satisfies the requirements of legal sufficiency of an indictment for rape as it unmistakably alleges that the accused had carnal knowledge of the complainant by means of violence and intimidation. We therefore hold that the trial judge erred in dismissing the case on the proffered grounds that the complaint was

defective for failure to allege "lewd design" and, as a consequence of such infirmity, that the court a quo did not acquire jurisdiction over the case. The error of the trial judge was in confusing the concept of jurisdiction with that of insufficiency in substance of an indictment. We come now to the more important issue of double jeopardy. The accused maintains that "assuming, arguendo, that the argument is right that the court a quo has jurisdiction, the appeal of the Government constitutes double jeopardy. An appeal by the prosecution in a criminal case is not available if the defendant would thereby be placed in double jeopardy. 3 Correlatively, Section 9, Rule 117 of the Revised Rules of Court provides: "When a defendant shall have been convicted or acquitted, or the case against him dismissed or otherwise terminated without the express consent of the defendant, by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction, and after the defendant had pleaded to the charge, the conviction or acquittal of the defendant or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information." In order that the protection against double jeopardy may inure in favor of an accused, the following requisites must have obtained in the

original prosecution: (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent. The complaint filed with the municipal court in the case at bar was valid; the court a quo was a competent tribunal with jurisdiction to hear the case; the record shows that the accused pleaded not guilty upon arraignment. Hence, the only remaining and decisive question is whether the dismissal of the case was without the express consent of the accused. The accused admits that the controverted dismissal was ordered by the trial judge upon his motion to dismiss. However, he vehemently contends that under the prevailing jurisprudence, citing People vs. Bangalao, et al. (94 Phil. 354, February 17, 1954), People vs. Labatete (L-12917, April 27, 1960), People vs. Villarin (L-19795, July 31, 1964), People vs. Cloribel (L-20314, August 31, 1964), an erroneous dismissal of a criminal action, even upon the instigation of the accused in a motion to quash or dismiss, does not bar him from pleading the defense of double jeopardy in a subsequent appeal by the Government or in a new prosecution for the same offense. The accused suggests that the above-enumerated cases have abandoned the previous ruling of this Court to the effect that when a case is dismissed, other than on the merits, upon motion of the accused personally or through counsel, such dismissal is to be regarded as with the express consent of the accused and consequently he is deemed to have waived 4

his right to plead double jeopardy and/or he is estopped 5 from claiming such defense on appeal by the Government or in another indictment for the same offense. This particular aspect of double jeopardy dismissal or termination of the original case without the express consent of the defendant has evoked varied and apparently conflicting rulings from this Court. We must untangle this jurisprudential maze and fashion out in bold relief a ruling not susceptible of equivocation. Hence, a searching extended review of the pertinent cases is imperative. The doctrine of waiver of double jeopardy was enunciated and formally labelled as such for the first time in 1949 in People vs. Salico, supra, with three justices dissenting. 6 In that case, the provincial fiscal appealed from the order of the trial court dismissing, upon motion of the defendant made immediately after the prosecution had rested its case, an indictment for homicide, on the ground that the prosecution had failed to prove that the crime was committed within the territorial jurisdiction of the trial court, or, more specifically, that the municipality of Victorias in which the crime was allegedly committed was comprised within the province of Negros Occidental. Rejecting the claim of the accused that the appeal placed him in double jeopardy, this Court held that the dismissal was erroneous because the evidence on record showed that the crime was committed in the town of Victorias and the trial judge should have taken judicial notice that the said municipality was included within the province of Negros Occidental and therefore the offense charged was committed within the jurisdiction of the court of first instance of the

said province. In ruling that the appeal by the Government did not put the accused in peril of a second jeopardy, this Court stressed that with "the dismissal of the case by the court below upon motion of the defendant, the latter has not been in jeopardy," and "assuming arguendo that the defendant had been already in jeopardy in the court below and would be placed in double jeopardy by the appeal, the defendant has waived his constitutional right not to be put in danger of being convicted twice for the same offense." Mr. Justice Felicisimo Feria, speaking for the majority, reasoned that ". . . when the case is dismissed with the express consent of the defendant, the dismissal will not be a bar to another prosecution for the same offense; because, his action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction against him." The Salico doctrine was adhered to and affirmed in People vs. Marapao (85 Phil. 832, March 30, 1950), Gandicela vs. Lutero (88 Phil. 299, March 5, 1951), People vs. Pinuela, et al. (91 Phil. 53, March 28, 1952), Co Te Hue vs. Encarnacion (94 Phil. 258, January 26, 1954), and People vs. Desalisa (L-15516, December 17, 1966). In Marapao, the defendant was indicted for slight physical injuries in the municipal court of Sibonga, Cebu. After the prosecution had rested its case, a continuance was had, and when trial was resumed, the court, upon motion of the defense, ordered the case dismissed for failure

of the prosecution to appear. However, the court reconsidered this order upon representation of the fiscal who appeared moments later, and ordered the defense to present its evidence. The accused moved to set aside the latter order on the ground that it placed him on double jeopardy. Acceding to this motion, the court dismissed the case. Subsequently, the accused was charged in the Court of First Instance of Cebu with the offense of assault upon a person in authority, based on the same facts alleged in the former complaint for slight physical injuries. Again, upon motion of the accused, the trial court dismissed the new indictment on the ground of double jeopardy. From this order, the prosecution appealed. In upholding the appeal of the Government, this Court observed that although the information for assault necessarily embraced the crime of slight physical injuries for which the accused was indicted in the justice of the peace court. ". . . it appears that the appellee was neither convicted nor acquitted of the previous charge against him for slight physical injuries, for that case was dismissed upon his own request before trial could be finished. Having himself asked for such dismissal, before a judgment of conviction or acquittal could have been rendered, the appellee is not entitled to invoke the defense of double jeopardy . . ." In Gandicela, this Court had occasion to reiterate the Salico ruling: "But where a defendant expressly consents to, by moving for, the dismissal of the case against him, as in the present case, even if the court or judge states in the order that the dismissal is

definite or does not say that the dismissal is without prejudice on the part of the fiscal to file another information, the dismissal will not be a bar to a subsequent prosecution of the defendant for the same offense. (People vs. Ylagan, 58 Phil. 851; People vs. Salico, 84 Phil. 722)." And in denying the motion for reconsideration filed by the accused in that case, this Court held: "According to Section 9 of Rule 13, if a criminal case is dismissed otherwise than upon the merits at any stage before judgment, without the express consent of the defendant, by a court of competent jurisdiction, upon a valid complaint or information, and after the defendant has pleaded to the charge, the dismissal of the case shall be definite or a bar to another prosecution for the same offense; but if it is dismissed upon the petition or with the express consent of the defendant, the dismissal will be without prejudice or not a bar to another prosecution for the same offense, because, in the last case, the defendant's action in having the case dismissed constitutes a waiver of his constitutional right not to be prosecuted again for the same offense." In Pinuela, as in Salico, the prosecution had presented its evidence against the defendant, and the trial court, upon motion of the accused, dismissed the criminal action for lack of evidence showing that the crime charged was committed within its territorial jurisdiction. On appeal by the Government, this Court found that the evidence showed otherwise and, like in Salico, the majority rejected the plea of double jeopardy interposed by the accused on the

ground that his virtual instigation of the erroneous dismissal amounted to a waiver of his right against a second jeopardy. In Co Te Hue, it was the theory of the petitioner that the charge of estafa filed against him having been dismissed, albeit provisionally, without his express consent, its revival constituted double jeopardy which bars a subsequent prosecution for the same offense. This claim was traversed by the Solicitor General who contended that considering what had transpired in the conference between the parties, the provisional dismissal was no bar to the subsequent prosecution for the reason that the dismissal was made with the defendant's express consent. This Court sustained the view of the Solicitor General, thus: "We are inclined to uphold the view of the Solicitor General. From the transcript of the notes taken at the hearing in connection with the motion for dismissal, it appears that a conference was held between petitioner and the offended party in the office of the fiscal concerning the case and that as a result of that conference the offended party filed the motion to dismiss. It also appears that as no action has been taken on said motion, counsel for petitioner invited the attention of the court to the matter who acted thereon only after certain explanation was given by said counsel. And when the order came the court made it plain that the dismissal was merely provisional in character. It can be plainly seen that the dismissal was effected not only with the express consent of the petitioner but even upon the urging of his counsel. This attitude of petitioner, or his counsel, takes this case out of the operation of the rule."

In essence, this Court held that where a criminal case is dismissed provisionally not only with the express consent of the accused but even upon the urging of his counsel, there can be no double jeopardy under Section 9, Rule 113, if the indictment against him is revived by the fiscal. This decision subscribes substantially to the doctrine on waiver established in Salico. The validity and currency of the Salico doctrine were intimated in the recent case of People vs. Fajardo (L-18257, June 30, 1966), and six months later were reaffirmed in People vs. Desalisa, supra. In Fajardo, this Court, through Mr. Justice Querube Makalintal, observed: "The record does not reveal that appellees expressly agreed to the dismissal of the information as ordered by the trial Judge or that they performed any act which could be considered as express consent within the meaning of the rule. While they did file a motion asking that the case be quashed, or that a reinvestigation thereof be ordered, the court granted neither alternative. What it did was to order the prosecution to amend the complaint. This order was in effect a denial of the motion to quash, and it was only after the prosecution failed to amend that the court dismissed the case on that ground. Consequently, even under the theory enunciated in some decisions of this Court (People vs. Salico, etc.) that if a valid and sufficient information is erroneously dismissed upon motion of the defendant he is deemed to have waived the plea of double jeopardy in connection with an appeal from the order of dismissal, appellees here are not precluded from making such plea."

To paraphrase, had the dismissal been anchored on the motion to dismiss, the defendants would not have been entitled to protection against double jeopardy. Then in Desalisa, this Court, in a unanimous decision penned by Mr. Justice Jesus Barrera, held that ". . . The ruling in the case of Salico, that the act of the defendant in moving for the dismissal of the case constitutes a waiver of the right to avail of the defense of double jeopardy, insofar as it applies to dismissals which do not amount to acquittal or dismissal of the case on the merits, cannot be considered to have been abandoned by the subsequent decisions on the matter." (Emphasis supplied) xxx xxx xxx

dismisses a case on a disclaimer of jurisdiction, upon the instigation of the accused, the latter is estopped on appeal from asserting the jurisdiction of the lower court in support of his plea of second jeopardy. The doctrine of estoppel is in quintessence the same as the doctrine of waiver: the thrust of both is that a dismissal, other than on the merits, sought by the accused in a motion to dismiss, is deemed to be with his express consent and bars him from subsequently interposing the defense of double jeopardy on appeal or in a new prosecution for the same offense. In Acierto, the defendant was charged before a United States court-martial with having defrauded the Government of the United States, through falsification of documents, within a military base of the United States in the Philippines. The challenge by the accused against the jurisdiction of the military tribunal was brushed aside, and he was convicted. On review, the verdict was reversed by the Commanding General who sustained Acierto's position on the ground of lack of jurisdiction. Subsequently, he was convicted of estafa and falsification based on the same facts by the Court of First Instance of Rizal. On appeal to this Court, he claimed former jeopardy in the courtmartial proceedings, asserting that the military court actually had jurisdiction. In a unanimous 7 decision, this Court, through Mr. Justice Pedro Tuason, ruled: "This is the exact reverse of the position defendant took at the military trial. As stated, he there attacked the court-martial's jurisdiction with the same vigor that he now says the court-martial did have jurisdiction; and thanks to his objections, so we incline to

believe, the Commanding General, upon consultation with, and the recommendation of, the Judge Advocate General in Washington, disapproved the court-martial proceedings. xxx xxx xxx

". . . an appeal of the prosecution from the order of dismissal (of the criminal complaint) by the trial court will not constitute double jeopardy if (1) the dismissal is made upon motion, or with express consent of the defendant, and (2) the dismissal is not an acquittal or based upon consideration of the evidence or of the merits of the case; and (3) the question to be passed upon by the appellate court is purely legal; so that should the dismissal be found incorrect, the case would have to be remanded to the court of origin for further proceedings, to determine the guilt or innocence of the defendant." (Emphasis supplied) The doctrine of estoppel in relation to the plea of double jeopardy was first enunciated in Acierto which held that when the trial court

"Irrespective of the correctness of the views of the Military authorities, the defendant was estopped from demurring to the Philippine court's jurisdiction and pleading double jeopardy on the strength of his trial by the court-martial. A party will not be allowed to make a mockery of justice by taking inconsistent positions which if allowed would result in brazen deception. It is trifling with the courts, contrary to the elementary principles of right dealing and good faith, for an accused to tell one court that it lacks authority to try him and, after he has succeeded in his effort, to tell the court to which he has been turned over that the first has committed error in yielding to his plea." (Emphasis supplied) The Acierto ruling was reiterated in People vs. Amada Reyes, et al., (96 Phil. 927, April 30, 1955); People vs. Reyes, et al., (98 Phil. 646, March 23, 1956); People vs. Casiano (L-15309, February 16, 1961), and People vs. Archilla (L15632, February 28, 1961). The defendants in People vs. Amada Reyes, et al., were charged as accessories to the crime of theft committed by their brother, Anselmo, the principal accused. The latter pleaded guilty to simple theft and was sentenced accordingly. The former pleaded not guilty and subsequently filed a motion to quash on the ground that being brothers and sisters of the principal accused, they were exempt from criminal

responsibility for the acts charged against them in the information. Thereupon, the prosecution moved to amend the information so as to allege that the defendants profited from the effects of the crime. In view of this development, counsel for the defendants moved to withdraw their motion to quash and objected to the proposed amendment which sought to change materially the information after plea without the consent of the accused. Without acting on the petition to withdraw the motion to quash, the trial court denied the motion of the prosecution on the ground that the proposed amendment would substantially affect the fundamental rights of the accused who were exempt from liability under the information because of their relation to the principal culprit. Then the prosecution moved for the dismissal of the case against the alleged accessories with reservation to file a new information. The court ordered the dismissal without ruling on the reservation. Subsequently, a new information was filed virtually reproducing the previous one except that now there was an added allegation to intent to gain. The lower court quashed the new information upon motion of the accused on the ground of double jeopardy. On appeal by the prosecution, this Court, thru Mr. Justice J.B.L. Reyes, held that the plea of double jeopardy was erroneously sustained because "In the first place, the accused-appellees herein filed a motion to quash on the ground that they incurred no criminal liability under the facts alleged in the information in the preceding case, No. Q-972, and the trial court instead of allowing the withdrawal of the motion to quash, virtually sustained the same when it denied the fiscal's motion to amend, thereby forcing the latter to dismiss the case; hence, it can not be

held that the former case was terminated without the express consent of the accused. Secondly, the defendants themselves showed that the information in the previous case was insufficient to charge them with any criminal offense, in view of their relationship with the principal accused; and it is well established doctrine that for jeopardy to attach, there must be an information sufficient in form and substance to sustain a conviction. Lastly, the herein accused having successfully contended that the information in the former case was insufficient to sustain a conviction, they cannot turn around now and claim that such information was after all, sufficient and did place them in danger of jeopardy of being convicted thereunder. If, as they formerly contended, no conviction could be had in the previous case, they are in estoppel to contend now that the information in the second case places them in jeopardy for the second time. Their case comes within the spirit of the rule laid down in People vs. Acierto . . ." Again, in People vs. Reyes, et al., supra, this Court, speaking thru Mr. Chief Justice Paras, reiterated the Acierto ruling, thus: "Where the complaint or information is in truth valid and sufficient, but the case is dismissed upon the petition of the accused on the ground that the complaint or information is invalid and insufficient, such dismissal will not bar another prosecution for the same offense and the defendant is estopped from alleging in the second information that the former dismissal was wrong because the complaint or information was valid."

In this particular case, upon motion of the defendants, the trial court dismissed the information because it did not allege the use of violence, notwithstanding the fact that the offense charged was coercion under Article 287 of the Revised Penal Code. On appeal, however, this Court ruled that the dismissal was erroneous because "although the offense named in the information is coercion, it does not necessarily follow that the applicable provision is the first paragraph, since the second paragraph also speaks of 'coercions'. Inasmuch as the recitals in the information do not include violence, the inevitable conclusion is that the coercion contemplated is that described and penalized in the second paragraph." We come now to the case of People vs. Casiano. In this case the accused was charged with estafa in a complaint filed with the justice of the peace court of Rosales, Pangasinan. The accused waived her right to preliminary investigation and the record was accordingly forwarded to the Court of First Instance of Pangasinan where the provincial fiscal filed an information of "illegal possession and use of false treasury or bank notes." Upon arraignment the defendant pleaded not guilty. Subsequently, the defense filed a motion to dismiss on the thesis that there had been no preliminary investigation of the charge of illegal possession and use of false treasury or bank notes, and that the absence of such preliminary investigation affected the jurisdiction of the trial court. The motion was granted on the ground that the waiver made by the defendant in the justice of the peace court did not deprive her of the right to a preliminary investigation of an entirely different crime. On appeal to this Court, it was held that the

dismissal was erroneous because the allegations of the information filed in the Court of First Instance were included in those of the complaint filed in the justice of the peace court where the defendant had already waived her right to a preliminary investigation. On the question of whether the appeal placed the defendant in double jeopardy, this Court, thru Mr. Chief Justice (then Associate Justice) Concepcion, observed that the situation of Casiano was identical to that of the accused in Acierto ". . . were she to plead double jeopardy in this case, for such plea would require the assertion of jurisdiction of the court of first instance to try her and that the same erred in yielding to her plea therein for lack of authority therefor. In the language of our decision in the Acierto case, it is immaterial whether or not the court a quo had said authority. It, likewise, makes no difference whether or not the issue raised by defendant in the lower court affected its jurisdiction. The fact is that she contested its jurisdiction and that, although such pretense was erroneous, she led the court to believe that it was correct and to act in accordance with such belief. The elementary principles of fair dealing and good faith demand, accordingly, that she be estopped now from taking the opposite stand in order to pave the way for a plea of double jeopardy, unless the rule of estoppel laid down in the Acierto case is revoked. As a matter of fact, said rule applies with greater force to the case at bar than to the Acierto case, because the same involved two (2) separate proceedings before courts deriving their authority from different sovereignties, whereas the appeal in the case at bar is a continuation of the proceedings in the lower court, which like this

Supreme Court, is a creature of the same sovereignty. In short, the inconsistency and impropriety would be more patent and glaring in this case than in that of Acierto, if appellant herein pleaded double jeopardy in this instance." This Court then forthrightly stated that "the rule of estoppel applied in the Acierto case should be maintained, because "1. It is basically and fundamentally sound and just. "2. It is in conformity with the principles of legal ethics, which demand good faith of the highest order in the practice of law. "3. It is well settled that parties to a judicial proceeding may not, on appeal, adopt a theory inconsistent with that which they sustained in the lower court. xxx xxx xxx

permitted, on appeal, to assume an inconsistent position that the lower court had jurisdiction. Here, the principle of estoppel applies. The rule that jurisdiction is conferred by law, and does not depend upon the will of the parties, has no bearing thereon." Twelve days after Casiano, this Court, in People vs. Archilla, supra, invoked anew the doctrine of estoppel. In this case Alfreda Roberts, together with Jose Archilla, was charged with bigamy. After pleading not guilty, Roberts, through her counsel, filed a motion praying that the complaint be quashed with regard to her on the ground that the facts alleged therein did not constitute the offense charged for failure to aver that "insofar as Alfreda Roberts is concerned, her marriage to Jose Luis Archilla was her second marriage . . ." On appeal, the prosecution contended that the trial court erred in granting the motion to quash, because the complaint was sufficient and at least charged the accused as an accomplice. The defendant maintained that even if that were true, the quashing of the information amounted to her acquittal which prevented the prosecution from taking the said appeal as it would place her in double jeopardy. Mr. Justice Felix Bautista Angelo, writing for the majority, ruled that the trial court erred, and proceeded to emphasize that the accused ". . . cannot now be allowed to invoke the plea of double jeopardy after inducing the trial court to commit an error which otherwise it would not have committed. In other words, appellee can not adopt a posture of double dealing without running afoul with the doctrine of estoppel. It is well-settled that the parties to a justiciable proceeding may not, on appeal,

"4. The operation of the principle of estoppel on the question of jurisdiction seemingly depends upon whether the lower court actually had jurisdiction or not. If it had no jurisdiction, but the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred on appeal, from assailing such jurisdiction, for the same 'must exist as a matter of law, and may not be conferred by consent of the parties or by estoppel' (5 C. J.S. 861-863). However, if the lower court had jurisdiction, and the case was heard and decided upon a given theory, such, for instance, as that the court had no jurisdiction, the party who induced it to adopt such theory will not be

adopt a theory inconsistent with that which they sustained in the lower court (Williams vs. McMicking, 17 Phil. 408; Molina vs. Somes etc.). Consequently, appellee is now estopped from invoking the plea of double jeopardy upon the theory that she would still be convicted under an information which she branded to be insufficient in the lower court." The accused in this case now before us nevertheless insists that the Salico doctrine and "necessarily analogous doctrines" were abandoned by this Court in Bangalao, Labatete, Villarin and Cloribel. In Bangalao, the complaint filed by the victim's mother alleged that the rape was committed "by means of force and intimidation" while the information filed by the fiscal alleged that the offended party was a "minor and demented girl" and that the defendants "successively had sexual intercourse with her by means of force and against the will of Rosita Palban." After the accused had pleaded not guilty, the defense counsel moved for the dismissal of the case on the ground that the trial court lacked jurisdiction to try the offense of rape charged by the fiscal since it was distinct from the one alleged in the complaint which did not aver that the victim was a "demented girl". The lower court sustained the motion and dismissed the case for lack of jurisdiction. On appeal by the prosecution, this Court held that the trial judge erred in dismissing the case for lack of jurisdiction, but ruled, however, that the appeal could not prosper because it placed the accused in double jeopardy. "As the court below had jurisdiction to try the case upon the filing of the complaint by the

mother of the offended party, the defendantsappellees would be placed in double jeopardy if the appeal is allowed." After mature analysis, we cannot agree that this Court in Bangalao impliedly abandoned the Salico doctrine on waiver, Bangalao was decided solely on the question of jurisdiction. This Court, after holding that the lower tribunal had jurisdiction, decided outright to repress the appeal by the Government on the ground of double jeopardy without considering whether the appealed order of dismissal was issued with or without the express consent of the accused (this aspect of double jeopardy not being in issue). Hence, the ruling in Salico that the dismissal was with the express consent of the accused because it was granted upon his instigation thru a motion to dismiss was not passed upon in Bangalao. A case of striking factual resemblance with Salico is People vs. Ferrer (100 Phil. 124, October 23, 1956). In this case, after the prosecution had rested, the accused filed a motion to dismiss on the ground that the territorial jurisdiction of the trial court had not been established. Acting on this motion, the lower court dismissed the case. The prosecution appealed. This Court found that the evidence on record, contrary to the finding of the trial court, amply proved the jurisdiction of the lower tribunal. However, without the defendant interposing the plea of double jeopardy, this Court held that "the Government however meritorious its case cannot appeal the order of dismissal without violating the right of the defendant not to be placed in double jeopardy." Again, like in Bangalao, this Court did not consider the nature of the dismissal whether

it was with or without the express consent of the defendant. The accused in the case at bar avers that the Salico doctrine was formally and expressly abandoned in People vs. Labatete, supra. In the latter case, the trial court, upon motion of the defendant, dismissed the original information for estafa on the ground that it did not allege facts constituting the offense charged. The information recited that the accused had contracted a loan from the complainant, giving as security the improvements and products of his property (a piece of land), without averring that the said property, which was allegedly mortgaged by the accused to the Rehabilitation Finance Corporation, formed part of the security. Consequently, the fiscal filed an amended complaint alleging that the accused also gave as security the land in question, which the later mortgaged to the damage and prejudice of the complaining creditor. This amended information was also dismissed upon motion of the defendant on the ground of double jeopardy. This Court, in sustaining the appealed order of dismissal, held:

"If the amended information were to be admitted, the accused will be deprived of his defense of double jeopardy because by the amended information he is sought to be made responsible for the same act of borrowing on a mortgage for which he had already begun to be tried and acquitted by the dismissal of the original information." xxx xxx xxx

". . . the trial court found that the accused could not be found guilty of any offense under the information. The judgment entered was not one of dismissal but of acquittal, and whether the judgment is correct or incorrect, the same constitutes a bar to the presentation of the amended information sought to be introduced by the fiscal." (Emphasis supplied) In not applying the Salico doctrine, this Court, through Mr. Justice Alejo Labrador, expounded: ". . . The judgment of the trial court (in People vs. Salico) was in fact an acquittal because of the failure on the part of the fiscal to prove that the crime was committed within the jurisdiction of the court. The judgment was in fact a final judgment of acquittal. The mere fact that the accused asked for his acquittal after trial on the merits (after the prosecution had rested its case) is no reason for saying that the case was 'dismissed' with his express consent and he may again be subjected to another prosecution." From the above-quoted statement, it is clear that what in Salico was repudiated in Labatete was the premise that the dismissal therein was not on the merits and not the conclusion that a dismissal, other than on the merits, sought by the accused, is deemed to be with his express consent and therefore constitutes a waiver of his right to plead double jeopardy in the event of an appeal by the prosecution or a second indictment for the same offense. This Court, in Labatete, merely pointed out that the controverted dismissal in Salico "was in fact an acquittal." Reasoning a contrario, had the dismissal not amounted to acquittal, then the doctrine of waiver would have applied and prevailed. As a matter of fact we believe with

the majority in Salico that the dismissal therein was not on the merits and therefore did not amount to an acquittal: "If the prosecution fails to prove that the offense was committed within the territorial jurisdiction of the court and the case is dismissed, the dismissal is not an acquittal, inasmuch as if it were so the defendant could not be again prosecuted for the same offense before a court of competent jurisdiction; that it is elemental that in such case the defendant may again be prosecuted for the same offense before a court of competent jurisdiction." Granting, however, that the Salico doctrine was abandoned in Labatete, it was resurrected in Desalisa. Moreover, Labatete never mentioned the doctrine of estoppel enunciated in Acierto which had been repeatedly reaffirmed. To bolster his contention that the Salico doctrine has been dropped from the corpus of our jurisprudence, the accused cites People vs. Villarin, supra. Here the accused appealed to the Court of First Instance his conviction in the inferior court for acts of lasciviousness with consent. After conducting the preliminary investigation, the fiscal charged the accused with corruption of minors. Villarin pleaded not guilty, and before the case could be heard, his counsel filed a motion to dismiss on the ground that the information did not allege facts constituting the crime charged. Acting on this motion, the trial court dismissed the case. On appeal by the prosecution, this Court, thru Mr. Justice Felix Angelo Bautista, held that the dismissal was erroneous, but that this error

". . . cannot now be remedied by setting aside the order of dismissal of the court a quo and by remanding the case to it for further proceedings as now suggested by the prosecution considering that the case was dismissed without the express consent of the accused even if it was upon the motion of his counsel, for to do so would place the accused in double jeopardy. The only exception to the rule on the matter is when the dismissal is with the consent of the accused, and here this consent has not been obtained."(Emphasis supplied) Villarin gives the impression, as gleaned from the above statement, that this Court therein sustained the plea of double jeopardy on the ground that the dismissal was without the express consent of the defendant as it was ordered "upon the motion of his counsel" and not upon motion of the defendant himself. This conclusion is rather unfortunate and must be rectified, for the settled rule is that the acts of counsel in a criminal prosecution bind his client. Thus, in People vs. Romero (89 Phil. 672, July 31, 1951), this Court held categorically that "The fact that the counsel for the defendant, and not the defendant himself personally moved for the dismissal of the case against him, had the same effect as if the defendant had personally moved for such dismissal, inasmuch as the act of the counsel in the prosecution of the defendants cases was the act of the defendant himself, for the only case in which the defendant cannot be represented by his counsel is in pleading guilty according to Section 3, Rule 114, of the Rules of Court." (Emphasis supplied)

On this consideration alone, we cannot agree with the accused in the case at bar that this Court in Villarin intended to abandon the Salico ruling. Had the motion to dismiss filed by Villarin's counsel been considered as one made by the defendant himself, as should have been done, the Villarin case should have been resolved consistent with the doctrine of waiver in Salico and/or that of estoppel in Acierto. As a final citation in support of his theory, the accused in the case at bar invokes People vs. Cloribel, supra, where this Court, in sustaining the plea of double jeopardy interposed by the defendants, stated inter alia: "In asserting that Criminal Case No. 45717 may still be reinstated, the petitioner adopts the ruling once followed by this Court to the effect that a dismissal upon the defendant's own motion is a dismissal consented to by him and, consequently, will not be a bar to another prosecution for the same offense, because, his action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction against him. (People vs. Salico, 84 Phil. 722) But, this authority has long been abandoned and the ruling therein expressly repudiated. "Thus, in the case of People vs. Robles, G.R. No. L-12761, June 29, 1959, citing People vs. Bangalao, L-5610, February 17, 1954; People vs. Diaz, L-6518, March 30, 1954; People vs. Abao, L-7862, May 17, 1955; and People vs. Ferrer, L9072, October 23, 1956, We said:

'. . . In reaching the above conclusion, this Court has not overlooked the ruling in People vs. Salico, 47 O.G. 4765, to the effect that a dismissal upon defendant's motion will not be a bar to another prosecution for the same offense as said dismissal was not without the express consent of the defendant, which ruling the prosecution now invokes in support of its appeal; but said ruling is not now controlling, having been modified or abandoned in subsequent cases wherein this Court sustained the theory of double jeopardy despite the fact that the dismissal was secured upon motion of the accused. (Italics supplied.) "Also, the rule that a dismissal upon defendant's motion will not be a bar to another prosecution for the same offense as said dismissal is not without the express consent of the defendant, has no application to a case where the dismissal, as here, is predicated on the right of a defendant to a speedy trial (People vs. Tacneng, et al., G.R. No. L-12082, April 30, 1959.)" (emphasis supplied) The above statements must be taken in the proper context and perspective. As previously explained, Bangalao, Ferrer, and even Labatete, did not actually abandon the doctrine of waiver in Salico (and not one of the said cases even implied the slightest departure from the doctrine of estoppel established in Acierto). In Diaz, Abao, Tacneng and Robles which are cited above, like in Cloribel, the dismissals therein, all sought by the defendants, were considered acquittals because they were all predicated on the right of a defendant to a speedy trial and on the failure of the Government to prosecute. Therefore, even if such dismissals were induced by the accused,

the doctrines of waiver and estoppel were obviously inapplicable for these doctrines presuppose a dismissal not amounting to an acquittal. This Court, through Mr. Justice Marceliano Montemayor, held in People vs. Diaz (94 Phil. 714, March 30, 1954): "Here the prosecution was not even present on the day of trial so as to be in a position to proceed with the presentation of evidence to prove the guilt of the accused. The case was set for hearing twice and the prosecution without asking for postponement or giving any explanation, just failed to appear. So the dismissal of the case, though at the instance of defendant Diaz may, according to what we said in the Gandicela case, be regarded as an acquittal" (italics supplied) A similar result was reached by this Court, thru Mr. Justice Sabino Padilla, in People vs. Abao (97 Phil. 28, May 27, 1955), in this wise: "After a perusal of the documents attached to the petition for a writ of certiorari, we fail to find an abuse of discretion committed by the respondent judge. He took pains to inquire about the nature of the ailment from which the complaining witness claimed she was suffering. He continued the trial three times, to wit: on 27 May, 1 and 12 June. The defendant ,was entitled to a speedy trial. When on 15 June, the last day set for the resumption of the trial, the prosecution failed to secure the continuance thereof and could not produce further evidence because of the absence of the complaining witness, the respondent judge was justified in dismissing the case upon motion of the defense

. . . The defendant was placed in jeopardy for the offense charged in the information and the annulment or setting aside of the order of dismissal would place him twice in jeopardy of punishment for the same offense." (italics supplied) Then in People vs. Tacneng (L-12082, April 30, 1959), Mr. Justice Pastor Endencia, speaking for a unanimous Court; stressed that ". . . when criminal case No. 1793 was called for hearing for the third time and the fiscal was not ready to enter into trial due to the absence of his witnesses, the herein appellees had the right to object to any further postponement and to ask for the dismissal of the case by reason of their constitutional right to a speedy trial; and if pursuant to that objection and petition for dismissal the case was dismissed, such dismissal amounted to an acquittal of the herein appellees which can be invoked, as they did, in a second prosecution for the same offense." (emphasis supplied) And this Court proceeded to distinguish the case from People vs. Salico, thus: "We are fully aware that pursuant to our ruling in the case of People vs. Salico, 45 O.G. No. 4, 1765-1776, and later reiterated in People vs. Romero, L-4517-20, July 31, 1951, a dismissal upon defendant's motion will not be a bar to another prosecution for the same offense as said dismissal was not without the express consent of defendant. This ruling, however, has no application to the instant case, since the dismissal in those cases was not predicated, as in the case at bar, on the right of a defendant to a speedy trial, but on different grounds. In the

Salico case, the dismissal was based on the ground that the evidence for the prosecution did not show that the crime was committed within the territorial jurisdiction of the court which, on appeal, we found that it was, so the case was remanded for further proceedings; and in the Romero case the dismissal was due to the non-production of other important witnesses by the prosecution on a date fixed by the court and under the understanding that no further postponement at the instance of the government would be entertained. In both cases, the right of a defendant to a speedy trial was never put in issue." (emphasis supplied) The gravamen of the foregoing decisions was reiterated in People vs. Robles (L-12761, June 29, 1959) where the trial court, upon motion of the defendant, dismissed the case on the ground that the failure of the prosecution to present its evidence despite several postponements granted at its instance, denied the accused a speedy trial. In rejecting the appeal of the Government, this Court held: "In the circumstances, we find no alternative than to hold that the dismissal of Criminal Case No. 11065 is not provisional in character but one which is tantamount to acquittal that would bar further prosecution of the accused for the same offense." In Cloribel, the case dragged for three years and eleven months, that is, from September 27, 1958 when the information was filed to August 15, 1962 when it was called for trial, after numerous postponements, mostly at the instance of the prosecution. On the latter date, the prosecution failed to appear for trial, and upon motion of the defendants, the case was

dismissed. This Court held "that the dismissal here complained of was not truly a 'dismissal' but an acquittal. For it was entered upon the defendants' insistence on their constitutional right to speedy trial and by reason of the prosecution's failure to appear on the date of trial." (italics supplied.) Considering the factual setting in the case at bar, it is clear that there is no parallelism between Cloribel and the case cited therein, on the one hand, and the instant case, on the other. Here the controverted dismissal was predicated on the erroneous contention of the accused that the complaint was defective and such infirmity affected the jurisdiction of the court a quo, and not on the right of the accused to a speedy trial and the failure of the Government to prosecute. The appealed order of dismissal in this case now under consideration did not terminate the action on the merits, whereas in Cloribel and in the other related cases the dismissal amounted to an acquittal because the failure to prosecute presupposed that the Government did not have a case against the accused, who, in the first place, is presumed innocent. The application of the sister doctrines of waiver and estoppel requires two sine qua non conditions: first, the dismissal must be sought or induced by the defendant personally or through his counsel; and second, such dismissal must not be on the merits and must not necessarily amount to an acquittal. Indubitably, the case at bar falls squarely within the periphery of the said doctrines which have been preserved unimpaired in the corpus of our jurisprudence.

ACCORDINGLY, the order appealed from is set aside. This case is hereby remanded to the court of origin for further proceedings in accordance with law. No costs. Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Angeles and Fernando, JJ., concur. [G.R. No. 103323. January 21, 1993.] RAMON S. PAULIN, ANGELA F. PAULIN and JOSE BACHO, petitioners, vs. HON. CELSO M. GIMENEZ (In his capacity as Presiding Judge of RTC, Cebu City, Branch 5), HON. MAMERTO Y. COLIFLORES (In his capacity as Judge of the MTC of Talisay, Branch IX, Cebu); CASTRO BELME, and The PEOPLE OF THE PHILIPPINES, respondents. Mari V. Andres and Romarie G. Villonco for petitioners. Garcia, Garcia, Ong, Vano & Associates for respondent Castro Belme Mabuyo. SYLLABUS 1. REMEDIAL LAW; CRIMINAL PROCEDURE; JURISDICTION; COURT OUSTED OF JURISDICTION IN CASE OF VIOLATION OF BASIC CONSTITUTIONAL RIGHTS; CASE AT BAR. Where the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated (People v. Balisacan, G.R. No. L-26376, Aug. 31, 1966, 17 SCRA 1119; Uy v. Genato, G.R. No. L-37399, May 29, 1974, 57 SCRA 123). Where there is a violation of basic constitutional rights, courts are ousted of jurisdiction. Hence, the violation

of the State's right to due process raises a serious jurisdictional error (Gumabon v. Director of the Bureau of Prisons, G.R. No. L30026, Jan. 30, 1971, 37 SCRA 420) as the decision rendered in disregard of the right is void for lack of jurisdiction." (Aducayen v. Flores, 51 SCRA 78 [1973], at p. 78.) Where the order of dismissal was issued at a time when the case was not ready for trial and adjudication, the order is null and void (People v. Pamittan, 30 SCRA 98 [1969]). In People v. Bocar (138 SCRA 166 [1985]), this Court found that the prosecution was denied due process as it never had the chance to offer its evidence formally in accordance with the Rules of Court in view of the trial court's order of dismissal. The trial court was thereby ousted from its jurisdiction when it violated the right of the prosecution to due process by aborting its right to complete the presentation of its evidence and, therefore, the first jeopardy had not been terminated. Hence, the remand of the case for further hearing or trial is merely a continuation of the first jeopardy and does not expose the accused to a second jeopardy. In the subsequent case of People v. Albano (163 SCRA 511 [1988]), this Court reiterated its previous ruling in the Bocar case, holding that the trial court exceeded its jurisdiction and acted with grave abuse of discretion, tantamount to lack of jurisdiction, when it pre-emptively dismissed the case and as a consequence thereof, deprived the prosecution of its right to prosecute and prove its case, thereby its fundamental right to due process. With such violation, its orders are, therefore, null and void and cannot constitute a proper basis for a claim of double jeopardy. In the more recent case of Saldana v. Court of Appeals (190 SCRA 396 [1990]), the issue raised was as follows: "Where

the trial court prematurely terminated the presentation of the prosecution's evidence and forthwith dismissed the information for insufficiency of evidence, may the case be remanded for further proceeding?" This Court, applying the Bocar case, ruled that the order of the Court of Appeals reinstating the criminal case for further hearing by the trial court does not violate the rule on double jeopardy inasmuch as the trial court was ousted from its jurisdiction when it violated the right of the prosecution to due process. The municipal trial court thus did not violate the rule on double jeopardy when it set aside the order of dismissal for the reception of further evidence by the prosecution because it merely corrected its error when it prematurely terminated and dismissed the case without giving the prosecution the right to complete the presentation of its evidence. It follows then that the decision of respondent regional trial court sustaining that of the court of origin cannot be said to be tainted with grave abuse of discretion. 2. ID.; ID.; DEMURRER TO EVIDENCE; MOTION INTERPOSED BEFORE PROSECUTION COMPLETES PRESENTATION OF EVIDENCE PREMATURE. Demurrer to evidence due to its insufficiency presupposes that the prosecution had already rested its case (Sec. 15, Rule 119, 1985 Rules on Criminal Procedure). Hence, the motion is premature if interposed at a time when the prosecution is still in the process of presenting its evidence (Aquino v. Sison, 179 SCRA 648 [1989]), as what happened in this case. Petitioners, of course, maintain that all the prosecution's evidence was already on record since the affidavits of complainant and his witnesses, in law, constituted their direct

testimonies and that, therefore, no other evidence could have been introduced by the prosecution. Submission of the affidavits to the court does not warrant the inference that the prosecution had already finished presenting its evidence because the affiants are still required to testify and affirm the contents thereof; otherwise, these affidavits cannot serve as competent evidence for the prosecution. 3. ID.; ID.; DOUBLE JEOPARDY; REQUISITES. For double jeopardy to be validly invoked by petitioners, the following requisites must have been obtained in the original prosecution: a) a valid complaint or information; b) a competent court; c) the defendant had pleaded to the charge; and d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent (People v. Obsania, 23 SCRA 1249 [1968]; Caes v. IAC, 179 SCRA 54 [1989]). 4. ID.; ID.; ID.; EXCEPTIONS THERETO; DOCTRINE OF WAIVER OF DOUBLE JEOPARDY. Jurisprudence on double jeopardy as well as the exceptions thereto which finds application to the case at bar has been laid down by this Court as follows: ". . . However, an appeal by the prosecution from the order of dismissal (of the criminal case) by the trial court shall not constitute double jeopardy if (1) the dismissal is made upon motion, or with the express consent of the defendant; (2) the dismissal is not an acquittal or based upon consideration of the evidence or of the merits of the case; and (3) the question to be passed upon by the appellate court is purely legal so that should the dismissal be found incorrect, the case would have to be remanded to the court of origin for

further proceedings, to determine the guilt or innocence of the defendant." (People v. Villalon, 192 SCRA 521 [1990], at p. 529.). For double jeopardy to attach, the dismissal of the case must be without the express consent of the accused (People v. Gines, 197 SCRA 481 [1991]). Where the dismissal was ordered upon motion or with the express assent of the accused, he is deemed to have waived his protection against double jeopardy. In the case at bar, the dismissal was granted upon motion of petitioners. Double jeopardy thus did not attach. This doctrine of waiver of double jeopardy was examined and formally introduced in People v. Salico (84 Phil. 722 [19491), where Justice Felicisimo Feria stated: ". . . when the case is dismissed, with the express consent of the defendant, the dismissal will not be a bar to another prosecution for the same offense; because, his action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction against him." (See also People v. Marapao (85 Phil. 832 [1950]); Gandicela v. Lutero (88 Phil. 299 [1951]); People v. Desalisa (125 Phil. 27 [1966]); and, more recently, People v. Aquino (199 SCRA 610 [1991]). 5. ID.; ID.; ID.; INSTANCES WHERE DOUBLE JEOPARDY ATTACHES ALTHOUGH DISMISSAL WAS MADE ON MOTION OF ACCUSED; CASE AT BAR. Jurisprudence recognizes exceptional instances when the dismissal may be held to be final, disposing of the case once and for all even if the dismissal was made on motion of the accused himself, to wit: 1. Where the dismissal is based on a demurrer to evidence filed by the

accused after the prosecution has rested, which has the effect of a judgment on the merits and operates as an acquittal. 2. Where the dismissal is made, also on motion of the accused, because of the denial of his right to a speedy trial which is in effect a failure to prosecute. (Caes v. IAC, 179 SCRA 54 [1989] at pp. 60-61.) Petitioners' motion to dismiss premised on procedural grounds cannot be considered a demurrer to evidence nor was the dismissal sought by them predicated on the denial of their right to speedy trial. Hence, the exceptions mentioned find no application in the instant case, especially so because when the municipal trial court dismissed the case upon petitioners' motion, the prosecution still had to present several witnesses. 6. ID.; ID.; ACQUITTAL DISTINGUISHED FROM DISMISSAL; CASE AT BAR. In People v. Salico (supra), distinctions between acquittal and dismissal were made, to wit: ". . . Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show that defendant's guilt is beyond reasonable doubt; but dismissal does not decide the case on the merits or that the defendant is not guilty. Dismissals terminate the proceedings, either because the court is not a court of competent jurisdiction, or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance, etc. . . . " The MTC decision dismissing the case is not an acquittal from the charge considering that no finding was made as to the guilt or innocence of the petitioners. Under Section 14, Rule 110 of the 1985 Rules on Criminal Procedure, as amended, it is stated: "Sec. 14. Amendments.

. . . 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 Rule 119, Sec. 11 . . ." In Section 11 of the same Rule, it is provided: "When it becomes manifest at any time before judgment, that a mistake has been made in charging the proper offense, and the accused cannot be convicted of the offense charged, or of any other offense necessarily included therein, the accused shall not be discharged, if there appears to be good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information." (Id., Sec. 11. Rule 119.) In the case at bar, the original case was dismissed without the proper information having been filed, it appearing that the proper charge should have been, "disturbance of public performance," punishable under Article 153 of the Revised Penal Code instead of "grave threats," under Article 282 of the same penal code. DECISION MELO, J p: The petition before us arose from a November 10, 1989 incident when the jeep ridden by private respondent and Barangay Captain Castro Belme Mabuyo was overtaken by the Nissan Patrol ridden by herein petitioners, the spouses Dr. Ramon and Angela Paulin, smothering the former with dust. Irked by this incident, Mabuyo followed the Nissan Patrol until it entered the back gate of

Rattan Originals in Tanke, Talisay, Cebu. Inquiring from a nearby security guard as to who owns the Nissan Patrol, he was informed that it belonged to and was driven by petitioner Dr. Ramon Paulin. Later, while Mabuyo was investigating some problems of his constituents in Kilawan at Tanke, Cebu, Dr. Ramon Paulin and his wife, Angie, allegedly pointed their guns at Mabuyo while Jose Bacho, a companion of the spouses, acted as back-up. Mabuyo instructed one of the barangay tanods to call the police in Talisay and the rest to block the exit of the spouses and their lone companion. Sensing that they were outnumbered, the spouses put their guns down and upon the arrival of the police officers, they were brought to the police station. On the same date, Station Commander P/Lt. Ariel Palcuto filed a complaint for "grave threats," against the spouses Paulin and Bacho, herein petitioners, which was later docketed as Criminal Case No. 5204. On November 20, 1989, the station commander filed a complaint for, "grave threats and oral defamation," against private respondent Mabuyo, docketed as Criminal Case No. 5213. LLjur The cases were jointly tried and, on June 13, 1990, the Municipal Trial Court of Talisay, Cebu (Branch IX), acting on a motion of the spouses Paulin and Jose Bacho, dismissed Criminal Case No. 5204. On July 2, 1990, Mabuyo filed a, "Motion for Reconsideration," of the said dismissal order which the court granted in a resolution dated July 3, 1990.

At the hearing of Criminal Case No. 5213 on July 5, 1990, petitioners vigorously sought the setting aside of the July 3, 1990 resolution in Criminal Case No. 5204, but the same was denied in another resolution. Not satisfied with the resolution of respondent Judge Mamerto Y. Coliflores, petitioners filed on July 31, 1990 a petition for "certiorari, prohibition, damages, with relief for preliminary injunction and the issuance of a temporary restraining order" with the Regional Trial Court of the Seventh Judicial Region, which was thereafter docketed as Special Civil Action No. CEB-9207 and later re-raffled to Branch 5 stationed in Cebu City presided over by respondent Judge Celso M. Gimenez, who dismissed the petition in a decision dated December 19, 1991, The decretal portion of the decision states: "All the foregoing considered, for lack of merit and for being a prohibited pleading under the Rule on Summary Procedure, as revised, the instant petition is hereby dismissed. Public respondent is hereby ordered to proceed with the trial of Crim. Case Nos. 5204 and 5213 and to decide both cases on their merits within the period provided under the Revised Rule on Summary Procedure. The preliminary injunction heretofore issued dated May 9, 1991, is hereby lifted and set aside." (p. 118, Rollo) Still not contented, petitioners have now resorted to the instant petition, arguing that (a) the decision of the municipal trial court dated June 13, 1990 dismissing the case against them was a judgment of acquittal, and may no longer be set aside without violating petitioners' right against double jeopardy: and (b) the regional

trial court, in dismissing the petition in CEB9207 abused its discretion as it ignored petitioners' right against double jeopardy. The main issue to be resolved is whether or not the municipal trial court's dismissal of Criminal Case No. 5204 against petitioners precludes a subsequent reconsideration or reversal of such dismissal as the same would violate petitioners' right against double jeopardy. The secondary issue dwells on the applicability of the Rule on Summary Procedure prohibiting motions to dismiss and petitions for certiorari. Cdpr For double jeopardy to be validly invoked by petitioners, the following requisites must have been obtained in the original prosecution: a) b) a valid complaint or information; a competent court;

the defendant; (2) the dismissal is not an acquittal or based upon consideration of the evidence or of the merits of the case; and (3) the question to be passed upon by the appellate court is purely legal so that should the dismissal be found incorrect, the case would have to be remanded to the court of origin for further proceedings, to determine the guilt or innocence of the defendant." (People v. Villalon, 192 SCRA 521 [1990], at p. 529.) For double jeopardy to attach, the dismissal of the case must be without the express consent of the accused (People v. Gines, 197 SCRA 481 [1991]). Where the dismissal was ordered upon motion or with the express assent of the accused, he is deemed to have waived his protection against double jeopardy. In the case at bar, the dismissal was granted upon motion of petitioners. Double jeopardy thus did not attach. This doctrine of waiver of double jeopardy was examined and formally introduced in People v. Salico (84 Phil. 722 [19491), where Justice Felicisimo Feria stated: ". . . when the case is dismissed, with the express consent of the defendant, the dismissal will not be a bar to another prosecution for the same offense; because, his action in having the case dismissed constitutes a waiver of his constitutional right or privilege, for the reason that he thereby prevents the court from proceeding to the trial on the merits and rendering a judgment of conviction against him." (See also People v. Marapao (85 Phil. 832 [1950]); Gandicela v. Lutero (88 Phil. 299 [1951]); People v. Desalisa (125 Phil. 27 [1966]); and, more recently, People v. Aquino (199 SCRA 610 [1991]).

Petitioners insist that the June 13, 1990 decision of the Municipal Trial Court (MTC) is an acquittal since it was issued after it had allegedly considered the merits of the prosecution's evidence. In People v. Salico (supra), distinctions between acquittal and dismissal were made, to wit: ". . . Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show that defendant's guilt is beyond reasonable doubt; but dismissal does not decide the case on the merits or that the defendant is not guilty. Dismissals terminate the proceedings, either because the court is not a court of competent jurisdiction, or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance, etc. . . ." (at pp. 732-733.) The MTC decision dismissing the case is not an acquittal from the charge considering that no finding was made as to the guilt or innocence of the petitioners. cdll Under Section 14, Rule 110 of the 1985 Rules on Criminal Procedure, as amended, it is stated: "SECTION 14. Amendments. . . .

c) the defendant had pleaded to the charge; and d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his express consent (People v. Obsania, 23 SCRA 1249 [1968]; Caes v. IAC , 179 SCRA 54 [1989]). Jurisprudence on double jeopardy as well as the exceptions thereto which finds application to the case at bar has been laid down by this Court as follows: ". . . However, an appeal by the prosecution from the order of dismissal (of the criminal case) by the trial court shall not constitute double jeopardy if (1) the dismissal is made upon motion, or with the express consent of

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 Rule 119, Sec. 11 . . ."

In Section 11 of the same Rule, it is provided: "When it becomes manifest at any time before judgment, that a mistake has been made in charging the proper offense, and the accused cannot be convicted of the offense charged, or of any other offense necessarily included therein, the accused shall not be discharged, if there appears to be good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information." (Id., Sec. 11. Rule 119.) In the case at bar, the original case was dismissed without the proper information having been filed, it appearing that the proper charge should have been, "disturbance of public performance," punishable under Article 153 of the Revised Penal Code instead of "grave threats," under Article 282 of the same penal code. Jurisprudence recognizes exceptional instances when the dismissal may be held to be final, disposing of the case once and for all even if the dismissal was made on motion of the accused himself, to wit: 1. Where the dismissal is based on a demurrer to evidence filed by the accused after the prosecution has rested, which has the effect of a judgment on the merits and operates as an acquittal. 2. Where the dismissal is made, also on motion of the accused, because of the denial of his right to a speedy trial which is in effect a failure to prosecute. (Caes v. IAC, 179 SCRA 54 [1989] at pp. 60-61.)

Petitioners' motion to dismiss premised on procedural grounds cannot be considered a demurrer to evidence nor was the dismissal sought by them predicated on the denial of their right to speedy trial. Hence, the exceptions mentioned find no application in the instant case, especially so because when the municipal trial court dismissed the case upon petitioners' motion, the prosecution still had to present several witnesses. "Where the prosecution is deprived of a fair opportunity to prosecute and prove its case, its right to due process is thereby violated (People v. Balisacan, G.R. No. L-26376, Aug. 31, 1966, 17 SCRA 1119; Uy v. Genato, G.R. No. L-37399, May 29, 1974, 57 SCRA 123). Where there is a violation of basic constitutional rights, courts are ousted of jurisdiction. Hence, the violation of the State's right to due process raises a serious jurisdictional error (Gumabon v. Director of the Bureau of Prisons, G.R. No. L30026, Jan. 30, 1971, 37 SCRA 420) as the decision rendered in disregard of the right is void for lack of jurisdiction." (Aducayen v. Flores, 51 SCRA 78 [1973], at p. 78.) Where the order of dismissal was issued at a time when the case was not ready for trial and adjudication, the order is null and void (People v. Pamittan, 30 SCRA 98 [1969]). In People v. Bocar (138 SCRA 166 [1985]), this Court found that the prosecution was denied due process as it never had the chance to offer its evidence formally in accordance with the Rules of Court in view of the trial court's order of dismissal. The trial court was thereby ousted from its jurisdiction when it violated the right of the prosecution to due process by aborting its

right to complete the presentation of its evidence and, therefore, the first jeopardy had not been terminated. Hence, the remand of the case for further hearing or trial is merely a continuation of the first jeopardy and does not expose the accused to a second jeopardy. cdll In the subsequent case of People v. Albano (163 SCRA 511 [1988]), this Court reiterated its previous ruling in the Bocar case, holding that the trial court exceeded its jurisdiction and acted with grave abuse of discretion, tantamount to lack of jurisdiction, when it preemptively dismissed the case and as a consequence thereof, deprived the prosecution of its right to prosecute and prove its case, thereby its fundamental right to due process. With such violation, its orders are, therefore, null and void and cannot constitute a proper basis for a claim of double jeopardy. In the more recent case of Saldana v. Court of Appeals (190 SCRA 396 [1990]), the issue raised was as follows: "Where the trial court prematurely terminated the presentation of the prosecution's evidence and forthwith dismissed the information for insufficiency of evidence, may the case be remanded for further proceeding?" This Court, applying the Bocar case, ruled that the order of the Court of Appeals reinstating the criminal case for further hearing by the trial court does not violate the rule on double jeopardy inasmuch as the trial court was ousted from its jurisdiction when it violated the right of the prosecution to due process. The municipal trial court thus did not violate the rule on double jeopardy when it set aside the order of dismissal for the reception of further

evidence by the prosecution because it merely corrected its error when it prematurely terminated and dismissed the case without giving the prosecution the right to complete the presentation of its evidence. It follows then that the decision of respondent regional trial court sustaining that of the court of origin cannot be said to be tainted with grave abuse of discretion. The Rule on Summary Procedure was correctly applied by the public respondents in this case. Petitioners argue that public respondents gravely abused their discretion in applying the provision prohibiting the filing of motions to dismiss and petitions for certiorari provided under the Rule on Summary Procedure. They claim that the prohibition under Section 15 of the Rule on Summary Procedure refers to motions to dismiss or to quash filed before the accused enters his plea. In any event, petitioners insist that they filed a demurrer to evidence which is not a prohibited pleading under the Rule on Summary Procedure. Demurrer to evidence due to its insufficiency presupposes that the prosecution had already rested its case (Sec. 15, Rule 119, 1985 Rules on Criminal Procedure). Hence, the motion is premature if interposed at a time when the prosecution is still in the process of presenting its evidence (Aquino v. Sison, 179 SCRA 648 [1989]), as what happened in this case. Petitioners, of course, maintain that all the prosecution's evidence was already on record since the affidavits of complainant and his witnesses, in law, constituted their direct testimonies and that, therefore, no other

evidence could have been introduced by the prosecution. LexLib Submission of the affidavits to the court does not warrant the inference that the prosecution had already finished presenting its evidence because the affiants are still required to testify and affirm the contents thereof; otherwise, these affidavits cannot serve as competent evidence for the prosecution. The Rule on Summary Procedure states: "SECTION 14. Procedure of Trial. Upon a plea of not guilty being entered, the trial shall immediately proceed. The affidavits submitted by the parties shall constitute the direct testimonies of the witnesses who executed the same. Witnesses who testified may be subjected to cross-examination. Should the affiant fail to testify, his affidavit shall not be considered as competent evidence for the party presenting the affidavit, but the adverse party may utilize the same for any admissible purpose. No witness shall be allowed to testify unless he had previously submitted an affidavit to the court in accordance with Sections 9 and 10 hereof." WHEREFORE, the petition is DISMISSED and the decision of the Regional Trial Court dated December 19, 1991 AFFIRMED. SO ORDERED. Gutierrez, Jr., Bidin, Davide, Jr. and Romero, JJ ., concur.

[G.R. No. L-26376. August 31, 1966.] THE PEOPLE OF THE PHILIPPINES, plaintiffappellant, vs. AURELIO BALISACAN, defendantappellee. Solicitor General Arturo A. Alafriz, Assistant Solicitor General I. C. Borromeo and T. M. Dilig, for plaintiff-appellant. Rolando de la Cuesta for defendant-appellee. DECISION BENGZON, J.P., J p: This is an appeal by the prosecution from a decision of acquittal. On February 1, 1965, Aurelio Balisacan was charged with homicide in the Court of First Instance of Ilocos Norte. The information alleged: "That on or about December 3, 1964, in the municipality of Nueva Era, province of Ilocos Norte, Philippines, and within the jurisdiction of this Honorable Court, the herein accused, with intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab one Leonicio Bulaoat, inflicting upon the latter wounds that immediately caused his death. "CONTRARY TO LAW." To this charge the accused, upon being arraigned, entered a plea of guilty. In doing so he was assisted by counsel. At his de oficio counsel's petition, however, he was allowed to

present evidence to prove mitigating circumstances. Thereupon the accused testified to the effect that he stabbed the deceased in self-defense, because the latter was strangling him. And he further stated that after the incident he surrendered himself voluntarily to the police authorities. Subsequently, on March 6, 1965, on the basis of the abovementioned testimony of the accused, the court a quo rendered a decision acquitting the accused. As stated, the prosecution appealed therefrom. This appeal was first taken to the Court of Appeals. Appellant filed its brief on September 9, 1965. No appellee's brief was filed. After being submitted for decision without appellee's brief, the appeal was certified to Us by the Court of Appeals on July 14, 1966, as involving questions purely of law (Sec. 17, Republic Act 296) and on August 5, 1966, We ordered it docketed herein. The sole assignment of error is: "THE TRIAL COURT ERRED IN ACQUITTING THE ACCUSED OF THE OFFENSE CHARGED DESPITE THE LATTER'S PLEA OF GUILTY WHEN ARRAIGNED." Appellant's contention is meritorious. A plea of guilty is an unconditional admission of guilt with respect to the offense charged. It forecloses the right to defend oneself from said charge and leaves the court with no alternative but to impose the penalty fixed by law under the circumstances. (People vs. Ng Pek, 81 Phil. 563). In this case, the defendant was only allowed to

testify in order to establish mitigating circumstances, for the purpose of fixing the penalty. Said testimony, therefore, could not be taken as a trial on the merits, to determine the guilt or innocence of the accused. In view of the assertion of self-defense in the testimony of the accused, the proper course should have been for the court a quo to take defendant's plea anew and then proceed with the trial of the case, in the order set forth in Section 3 Rule 119 of the Rules of Court: "SEC. 3. Order of trial. The plea of not guilty having been entered, the trial must proceed in the following order: "(a) The fiscal, on behalf of the People of the Philippines, must offer evidence in support of the charges. "(b) The defendant or his attorney may offer evidence in support of the defense. "(c) The parties may then respectively offer rebutting evidence only, unless the court, in furtherance of justice, permit them to offer new additional evidence bearing upon the main issue in question. "(d) When the introduction of evidence shall have been concluded, unless the case is submitted to the court without argument, the fiscal must open the argument, the attorney for the defense must follow, and the fiscal may conclude the same. The argument by either attorney may be oral or written or partly written, but only the written arguments, or such portions of the same as may be in writing, shall be preserved in the record of the case."

In deciding the case upon the merits without the requisite trial, the court a quo not only erred in procedure but deprived the prosecution of its day in court and right to be heard. This Court now turns to Section 2, Rule 122 of the Rules of Court, which provides that: "The People of the Philippines can not appeal if the defendant would be placed thereby in double jeopardy." The present state of jurisprudence in this regard is that the above provision applies even if the accused fails to file a brief and raise the question of double jeopardy (People vs. Ferrer, L-9072, October 23, 1956; People vs. Bao, 106 Phil. 243; People vs. de Golez, 108 Phil. 855) The next issue, therefore, is whether this appeal placed the accused in double jeopardy. It is settled that the existence of a plea is an essential requisite to double jeopardy (People vs. Ylagan, 58 Phil. 851; People vs. Quimsing, L19860, December 23, 1964). In the present case, it is true, the accused had first entered a plea of guilty. Subsequently, however, he testified, in the course of being allowed to prove mitigating circumstances, that he acted in complete self-defense. Said testimony, therefore as the court a quo recognized in its decision had the effect of vacating his plea of guilty and the court a quo should have required him to plead anew on the charge, or at least direct that a new plea of not guilty be entered for him. This was not done. It follows that in effect there having been no standing plea at the time the court a quo rendered its judgment of acquittal, there can be no double jeopardy with respect to the appeal herein. 1

Furthermore, as afore-stated, the court a quo decided the case upon the merits without giving the prosecution any opportunity to present its evidence or even to rebut the testimony of the defendant. In doing so, it clearly acted without due process of law. And for lack of this fundamental pre-requisite its action is perforce null and void. The acquittal, therefore, being a nullity for want of due process, is no acquittal at all, and thus can not constitute a proper basis for a claim of former jeopardy (People vs. Cabero, 61 Phil. 121; 21 Am. Jur. 2d., 235; McCleary vs. Hudspeth, 124 Fed. 2d., 445) It should be noted that in rendering the judgment of acquittal, the trial judge below already gave credence to the testimony of the accused. In fairness to the prosecution, without in any way doubting the integrity of said trial judge, We deem it proper to remand this case to the court a quo for further proceedings under another judge of the same court, in one of the two other branches of the Court of First Instance of Ilocos Norte sitting at Laoag. WHEREFORE, the judgment appealed from is hereby set aside and this case is remanded to the court a quo for further proceedings under another judge of said court, that is, for plea by the defendant, trial with presentation of evidence for the prosecution and the defense, and judgment thereafter. No costs. So ordered. Concepcion, C.J., J.B.L. Reyes, Barrera, Dizon, Zaldivar, Sanchez and Castro, JJ., concur. Regala and Makalintal, JJ., did not take part.

[G.R. No. L-54110. February 20, 1981.] GENEROSO ESMEA and ALBERTO ALBA, petitioners, vs. JUDGE JULIAN B. POGOY, City Court of Cebu City, Branch III, PEOPLE OF THE PHILIPPINES and RICARDO B. TABANAO, as Special Counsel, Office of the City Fiscal, Cebu City, respondents. Rafael D. dela Victoria for petitioners. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Octavio R. Ramirez and Solicitor Mariano M. Martinez for respondents. SYNOPSIS Petitioner and three others were charged with grave coercion in the city court. After three resettings of the hearing at the instance of the prosecution, the fiscal moved for a fourth transfer of the scheduled trial on the ground that the complainant was sick. The accused opposed the motion and, invoking their constitutional right to a speedy trial, insisted on the hearing of the case, stating that otherwise, the case should be dismissed. Respondent judge provisionally dismissed the case. Twenty seven days later, the fiscal moved for its revival. The motion was granted without opposition. Subsequently, however, the accused filed a motion to dismiss on the ground of double jeopardy, which the court denied. Hence, this petition. The Supreme Court held, that jeopardy attached to the provisional dismissal of the criminal case after arraignment, whether the same was ordered at the court's own volition or upon motion of the accused, because the fiscal

was not ready for trial due to the absence of the complainant in court, and the accused, invoking their right to a speedy trial, insisted on a trial. Order denying motion to dismiss reversed and set aside. SYLLABUS 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DOUBLE JEOPARDY; RULE THEREON PROVIDED FOR IN CONSTITUTION AND COMPLETED BY RULE 117 OF RULES OF COURT. The rule on double jeopardy (non bis in idem or not twice for the same) is found in section 22, Article IV (Bill of Rights) of the Constitution which provides that "no person be twice put in jeopardy of punishment for the same offense." This is completed by section 9 Rule 117 of the Rules of Court which precludes a person's subsequent indictment for the same offense where there has already been acquittal (autrefois acquit), previous conviction (autrefois convict) or dismissal or termination of the case without his consent. 2. ID.; ID.; ID.; CONDITIONS FOR DOUBLE JEOPARDY TO EXIST; EFFECTS OF PRESENCE THEREOF. In order that legal jeopardy may exist, there should be (a) a valid complaint or information (b) before a court of competent jurisdiction and (c) the accused has been arraigned and has pleaded to the complaint or information. When these three conditions are present, the acquittal or conviction of the accused or the dismissal or termination of the case without his express consent constitutes res judicata and is a bar to another prosecution for the offense charged, or for any offense which

necessarily includes or its included therein (4 Moran's Comments on the Rules of Court, 1980 Ed., p. 240). 3. ID.; ID.; ID.; PROVISIONAL DISMISSAL IN CASE AT BAR PLACES PETITIONERS IN JEOPARDY SINCE FACT OF ACCUSED'S CONSENT THERETO IS NOT CLEAR. On this case, the provisional dismissal of the criminal case against petitioners has placed them in jeopardy, because it is not very clear that they consented to such dismissal. The petitioners were insisting on a trial, They relied on their constitutional right to have a speedy trial. The fiscal was not in court. Respondent judge on his own volition provisionally dismissed the case. The petitioners did not expressly manifest their conformity to the provisional dismissal. Hence, the dismissal placed them in jeopardy. 4. ID.; ID.; ID.; PROVISIONAL DISMISSAL ALTHOUGH UPON MOTION OF ACCUSED PLACES THEM IN JEOPARDY WHERE RIGHT TO SPEEDY TRIAL INVOKED. Even if the petitioners, after invoking their right to a speedy trial, moved for the dismissal of the case and, therefore, consented to it, the provisional dismissal would still place them in jeopardy. The use of the word "provisional" would not change the legal effect of the dismissal (Esguerra vs. De la Costa, 66 Phil. 134; Gandicela vs. Lutero, 88 Phil. 299). "If the defendant wants to exercise his constitutional right to a speedy trial, he should ask not for the dismissal, but for the trial of the case. After the prosecution's motion for postponement of the trial is denied and upon order of the court the fiscal does not or cannot produce his evidence and, consequently, fails to prove the defendant's guilt, the court upon defendant's motion shall dismiss the case, such

dismissal amounting to an acquittal of the defendant" (4 Moran's Comments on the Rules of Court, 1980 Ed., p. 202, citing Gandicela vs. Lutero, 88 Phil. 299, 307 and People vs. Diaz, 94 Phil. 714, 717). DECISION AQUINO, J p: This case poses the issue of whether the revival of a grave coercion case, which was provisionally dismissed (after the accused had been arraigned) because of complainant's failure to appear at the trial, would place the accused in double jeopardy, considering their constitutional right to have a speedy trial. Petitioners Generoso Esmea and Alberto Alba and their co-accused, Genaro Alipio, Vicente Encabo and Bernardo Villamira were charged with grave coercion in the city court of Cebu City for having allegedly forced Reverend Father Tomas Tibudan of the Jaro Cathedral, Iloilo City to withdraw the sum of five thousand pesos from the bank and to give that amount to the accused because the priest lost it in a game of cards. The case was calendared on October 4, 1978 presumably for arraignment and trial. Upon the telegraphic request of Father Tibudan, the case was reset on December 13, 1978. Because Esmea and Alba were not duly notified of that hearing, they were not able to appear. The two pleaded not guilty at their arraignment on January 23, 1979. No trial was held after the arraignment because complainant Father

Tibudan requested the transfer of the hearing to another date. In the meantime, the fiscal lost his record of the case. So, the hearing scheduled on June 18, 1979 was cancelled at his instance. On that date, respondent judge issued an order setting the trial "for the last time on August 16, 1979 at 8:30 o'clock in the morning" (p. 21, Rollo). When the case was called on that date, the fiscal informed the court that the private prosecutor received from complainant Father Tibudan a telegram stating that he was sick. The counsel for petitioners Esmea and Alba opposed the cancellation of the hearing. They invoked the right of the accused to have a speedy trial. Their counsel told the court: ". . . we are now invoking the constitutional right of the accused to a speedy trial of the case. . . . We are insisting on our stand that the case be heard today; otherwise, it will (should) be dismissed on the ground of invoking (sic) the constitutional right of the accused particularly accused Alberto Alba and Generoso Esmea." (pp. 50 and 52, Rollo). Respondent judge provisionally dismissed the case as to the four accused who were present because it "has been dragging all along and the accused are ready for the hearing" but the fiscal was not ready with his witness. The court noted that there was no medical certificate indicating that the complainant was really sick. The case was continued as to the fifth accused who did not appear at the hearing. His arrest was ordered (p. 23, Rollo).

Twenty-seven days later, or on September 12, 1979, the fiscal filed a motion for the revival of the case. He attached to his motion a medical certificate under oath attesting to the fact that Father Tibudan was sick of influenza on August 16, 1979. The fiscal cited the ruling that a provisional dismissal with the conformity of the accused lacks the impress of finality and, therefore, the case could be revived without the filing of a new information (Lauchengco vs. Alejandro, L49034, January 31, 1979, 88 SCRA 175). The accused did not oppose the motion. Respondent judge granted it in his order of October 8, 1979 (p. 26, Rollo). On October 24, 1979, Esmea and Alba filed a motion to dismiss the case on the ground of double jeopardy. They pointed out that they did not consent to the provisional dismissal of the case. Hence, the provisional dismissal amounted to an acquittal which placed them in jeopardy. Its revival would place them in double jeopardy. The fiscal opposed the motion. He called the court's attention to the fact that Father Tibudan had appeared in court several times but the hearing was not held. The court denied the motion to dismiss. That order denying the motion to dismiss is assailed in this special civil action of certiorari. The Solicitor General agrees with the petitioners that the revival of the case would place the accused in double jeopardy since the provisional dismissal of the case without their consent was in effect an acquittal.

The rule on double jeopardy (non bis in idem or not twice for the same) is found in section 22, Article IV (Bill of Rights) of the Constitution which provides that "no person shall be twice put in jeopardy of punishment for the same offense." This is complemented by Rule 117 of the Rules of Court which provides as follows: prLL "SEC. 9. Former conviction or acquittal or former jeopardy. When a defendant shall have been convicted or acquitted, or the case against him dismissed or otherwise terminated without the express consent of the defendant, by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction, and after the defendant had pleaded to the charge, the conviction or acquittal of the defendant or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information. In order that legal jeopardy may exist, there should be (a) a valid complaint or information (b) before a court of competent jurisdiction and (c) the accused has been arraigned and has pleaded to the complaint or information. When these three conditions are present, the acquittal or conviction of the accused or the dismissal or termination of the case without his express consent constitutes res judicata and is a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense

which necessarily includes or is included therein (4 Moran's Comments on the Rules of Court, 1980 Ed., p. 240). Previous acquittal (autrefois acquit), previous conviction (autrefois convict) or the dismissal or termination of the case without his consent precludes his subsequent indictment for the same offense as defined in section 9. In the instant case, we hold that the petitioners were placed in jeopardy by the provisional dismissal of the grave coercion case. That provisional dismissal would not have placed the petitioners in jeopardy if respondent judge had taken the precaution of making sure that the dismissal was with their consent. In this case, it is not very clear that the petitioners consented to the dismissal of the case. It is the practice of some judges before issuing an order of provisional dismissal in a case wherein the accused had already been arraigned to require the accused and his counsel to sign the minutes of the session or any available part of the record to show the conformity of the accused or his lack of objection to the provisional dismissal. The judge specifies in the order of provisional dismissal that the accused and his counsel signified their assent thereto. That procedure leaves no room for doubt as to the consent of the accused and precludes jeopardy from attaching to the dismissal. cdrep The petitioners were insisting on a trial. They relied on their constitutional right to have a speedy trial. The fiscal was not ready because his witness was not in court. Respondent judge

on his own volition provisionally dismissed the case. The petitioners did not expressly manifest their conformity to the provisional dismissal. Hence, the dismissal placed them in jeopardy. Even if the petitioners, after invoking their right to a speedy trial, moved for the dismissal of the case and, therefore, consented to it, the dismissal would still place them in jeopardy. The use of the word "provisional" would not change the legal effect of the dismissal (Esguerra vs. De la Costa, 66 Phil. 134; Gandicela vs. Lutero, 88 Phil. 299). "If the defendant wants to exercise his constitutional right to a speedy trial, he should ask, not for the dismissal, but for the trial of the case. After the prosecution's motion for postponement of the trial is denied and upon order of the court the fiscal does not or cannot produce his evidence and, consequently, fails to prove the defendant's guilt, the court upon defendant's motion shall dismiss the case, such dismissal amounting to an acquittal of the defendant" (4 Moran's Comments on the Rules of Court, 1980 Ed., p. 202, citing Gandicela vs. Lutero, 88 Phil. 299, 307 and People vs. Diaz, 94 Phil. 714, 717). The dismissal of a criminal case upon motion of the accused because the prosecution was not prepared for trial since the complainant and his witnesses did not appear at the trial is a dismissal equivalent to an acquittal that would bar further prosecution of the defendant for the same offense (Salcedo vs. Mendoza, L-49375, February 28, 1979, 88 SCRA 811; Lagunilla vs. Hon. Reyes, etc. and Motas, 111 Phil. 1020 citing People vs. Tacneng, 105 Phil. 1298 and People vs. Robles, 105 Phil. 1016. See Taladua

vs. Ochotorena, L-25595, February 15, 1974, 55 SCRA 528; Acebedo vs. Sarmiento, L-28025, December 16, 1970, 36 SCRA 247; Baesa vs. Provincial Fiscal of Camarines Sur, L-30363, January 30, 1971, 37 SCRA 437; People vs. Cloribel, 120 Phil. 775; People vs. Abao, 97 Phil. 28; People vs. Labatete, 107 Phil. 697). WHEREFORE, the order of respondent judge dated October 8, 1979, reviving the criminal case against the petitioners, and his order of December 14, 1979, denying petitioners' motion to dismiss, are reversed and set aside. No costs. SO ORDERED. Barredo (Chairman), Concepcion Jr., Abad Santos and De Castro, JJ., concur. G.R. No. 44205 February 16, 1993 PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. GREGORIO G. PINEDA, Branch XXI, Court of First Instance of Rizal, and CONSOLACION NAVAL, respondents. The Solicitor General for petitioner. Salonga. Ordoez, Yap & Associates for private respondent.

in Criminal Case No. 15796 before Branch 21, both of the then Court of First Instance of Rizal of the Seventh Judicial District stationed at Pasig, Rizal, she sought the quashal of the latter charge on the supposition that she is in danger of being convicted for the same felony (p. 16, Record). Her first attempt in this respect did not spell success (p. 34, Record) but the Honorable Gregorio G. Pineda, Presiding Judge of Branch 21 was persuaded to the contrary thereafter on the belief that the alleged falsification was a necessary means of committing estafa (p. 149, Record). It is this perception, along with the denial of the motion for re-evaluation therefrom (p. 66, Record) which the People impugns via the special civil action for certiorari now before Us. The indictment for estafa against Consolacion Naval and her co-accused Anacleto Santos, reads: That on or about March 23, 1973 and soon thereafter, in the municipality of Pasig, province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding one another, by means of deceit and with intent to defraud, knowing that their parcel of land among others, situated in Malaking Bundok, Barrio Dolores, Taytay, Rizal, and more particularly described as follows, to wit: OJA No. 5851 Isang lagay na lupa (bulubundukin) na nasa lugar ng Malaking Bundok, Bo. Dolores, Taytay, Rizal, na may lawak na 14,615.5 metrong

MELO, J.: When Consolacion Naval, the herein private respondent, was separately accused of having committed the crime of estafa in Criminal Case No. 15795 before Branch 19, and of falsification

parisukat na may tasang P580.00 at may hanggahang gaya ng sumusunod: HilagaanHermogenes Naval (now part of Rev. Tax Dec. 9284; Silanganan-Nicolas del Rosario (now Jaime del Rosario); Timugan-Eduvigis, Consolacion, Apolinaria, Naval; Kanluran-Creek (sapang bato) was already sold and encumbered to one Edilberto V. Ilano as can be gleaned from a document entitled "Kasulatan ng Bilihan Ng Lupa Na May Pasubali O Condicion" sometime on August 12, 1969; and the latter having paid the partial amount of P130,850.00 to the herein accused and without informing said Edilberto V. Ilano, the herein accused Consolacion Naval executed and filed an Application for Registration over the same parcel of land among others, which document is designated as LRC Case No. N-7485, "Consolacion, Eduvigis and Apolinaria, all surnamed Naval" of the Court of First Instance of Rizal, Pasig, Rizal, as a result of which the Presiding Judge of Branch XIII to which said case was assigned issued Original Certificate of Title No. 9332 in her name, which area was reduced to 10,075 sq. meters as appearing in item No. 2 in said OCT and subsequently referred to in TCT No. 370870 in favor of said accused Naval through Rodolfo Mendoza, sold more than one-half (1/2) of said parcel of land in her name in favor of Maria, Anacleto, Carmelo, Mariano, Cecilia and Teodorica, all surnamed Santos and Iluminada Tambalo, Pacita Alvarez and Pedro Valesteros which sales were registered and annotated with the Register of Deeds of Rizal at Pasig, Rizal; and likewise a portion of which was partitioned to herein accused Anacleto Santos; that despite repeated demands the accused refused and still refuse to return said amount and/or fulfill their

obligations under said "Kasulatan Ng Bilihan Ng Lupa Na May Pasubali O Condicion", to the damage and prejudice of said Edilberto V. Ilano in the aforementioned amount of P130,850.00. (pp. 44-45, Rollo) while the charge for falsification narrates: That on or about the 17th day August, 1971, in the municipality of Pasig, province of Rizal, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being then private individual did then and there wilfully, unlawfully and feloniously falsify a public document by making untruthful statements in a narration of facts, committed as follows: the said accused on August 17, 1971, executed a document entitled "Application For Registration" for parcels of land located at Taytay, Rizal, to the effect that "She is the exclusive owner in fee simple of a parcel of land situated in Malaking Bundok, Barrio Dolores, Taytay, Rizal with Psu-248206 and that she "does not know any mortgage or encumbrance of any kind whatsoever affecting said land or that any person has estate or interest therein, legal or equitable, in possession remainder, reversion or expectancy", as a result of which the Court in its Decision of March 22, 1972 declared the herein accused the true and absolute owner of said parcel of land free from all liens and encumbrances of any nature, when in truth and in fact the herein accused has already sold and encumbered to one Edilberto V. Ilano said parcel of land referred to above as can be gleaned from a document entitled "Kasulatan Ng Bilihan Ng Lupa Na May Pasubali O Condicion" dated August 12, 1969 and said Edilberto V. Ilano has already paid partial amount of P130,850.00 to the herein accused.

Contrary to law. (p. 2, Rollo) The confluence of the foregoing assertions disclose that Consolacion Naval sold the subject realty on August 12, 1969 to Edilberto Ilano who made a partial payment of P130,850.00. About two years later, or on August 17, 1971, an application for registration under the Land Registration Act was submitted by Consolacion wherein she stated that she owned the same lot and that it was unencumbered. For those reasons, the corresponding title was issued in her name but she allegedly disposed of the half portion of the property to nine other persons. These antecedents spawned the simultaneous institution of the charges on September 17, 1975. On October 28, 1975, private respondent Consolacion Naval moved to quash the information for falsification, premised, among other things, on the apprehension that she is in danger of being condemned for an identical offense. The following day, Naval pleaded not guilty to the charge levelled against her for falsification (p. 22, Record) and on December 22, 1975, the court a quo denied her motion to quash (p. 34, Record). As earlier intimated, the magistrate below thereafter reconsidered his order of denial which gave rise to the corresponding unsuccessful bid by the People for reinstatement of the information for falsification. Hence the instant petition, which practically reiterates the same disqualification put forward

in the proceedings below (p. 7, Petition; p. 47, Rollo). The issue of whether the court below correctly quashed the information for falsification must be answered in the negative for the following reasons: 1. Assuming in gratia argumenti that falsification was indeed necessary to commit estafa, which ordinarily constitutes a complex crime under Article 48 of the Revised Penal Code and thus susceptible to challenge via a motion to quash under Section 2 (e), Rule 117 vis-a-vis Section 12, Rule 110 (Moran, Rules of Court, Vol. 4, 1980 Ed., p. 42; 230), still, it was serious error on the part of the magistrate below to have appreciated this discourse in favor of private respondent since this matter was not specifically raised in the motion to quash filed on October 28, 1975 (p. 16, Record). It was only in the motion for reconsideration where private respondent pleaded this additional ground after her motion to quash was denied (p. 39, Record). The legal proscription against entertaining another saving clause to abate the charge for falsification is very explicit under Section 3, Rule 117 of the Revised Rules of Court: Sec. 3. Motion to quash Form and contents Failure to state objection Entry of record Failure to record. The motion to quash shall be in writing signed by the defendant or his attorney. It shall specify distinctly the ground of objection relied on and the court shall hear no objection other than that stated in the motion. It shall be entered of record but a failure to so enter it shall not affect the validity of any proceeding in the case.

It must be observed that the denial of the motion to quash was re-examined not in the light of "res judicata dressed in prison grey" but on the aspect of whether falsification was supposedly perpetrated to commit estafa. The course of action pursued by the trial court in this context may not even be justified under Section 10 of Rule 117 which says that: Sec. 10. Failure to move to quash Effect of Exceptions. If the defendant does not move to quash the complaint or information before he pleads thereto he shall be taken to have waived all objections which are grounds for a motion to quash except when the complaint or information does not charge an offense, or the court is without jurisdiction of the same. If, however, the defendant learns after he has pleaded or has moved to guash on some other ground that the offense for which he is now charged is an offense for which he has been pardoned, or of which he has been convicted or acquitted or been in jeopardy, the court may in its discretion entertain at any time before judgment a motion to quash on the ground of such pardon, conviction, acquittal or jeopardy. for the simple reason that the theory of a single crime advanced by private respondent in her belated, nay, "second" motion to quash couched as motion for reconsideration is not synonymous with "pardon, conviction, acquittal or jeopardy". In effect, therefore, respondent judge accommodated another basis for the quashal of the information albeit the same was not so stated in the motion therefor. This should not have been tolerated because it is anathema to the foregoing proviso (Moran, supra, at p. 283, citing Suy Sui vs. People, 49

O.G. 967). This caveat is now amplified in Section 8 of Rule 117 as amended, thus: Sec. 8. Failure to move to quash or to allege any ground therefor. The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty and jeopardy, as provided for in paragraphs (a), (b), (f) and (h) of Section 3 of this Rule. At any rate, it is virtually unacceptable to suppose that private respondent concocted the sinister scheme of falsification in 1971 precisely to facilitate the commission of estafa in 1973 such that both crimes emanated from a single criminal impulse. Otherwise, an unfounded verisimilitude of this nature will run afoul with what this Court already observed in People vs. Penas (68 Phil. 533 [1939]; 1 Aquino, Revised Penal Code, 1976 Ed., p. 574) to the effect that the eleven estafas through falsification which the same accused therein committed between November 24, 1936 and January 3, 1937 including the falsification which he committed on January 8, 1937 were considered distinct offenses, not one complex crime, because they were committed on different dates, not to mention the discrepancy in places where they were accomplished. In the same breath, it necessarily follows that the suspended hiatus, between 1971 and 1973 in the case at bar will not afford the occasion to

buttress the unwarranted submission that the first is an integral part of or intimately interwoven with the second felony. A simple perusal of the two informations will disclose, and this cannot be gainsaid, that the recitals thereof radically differ with each other. The indictment for falsification allegedly perpetrated in 1971 was levelled against private respondent because of the pretense in the application for registration of her exclusive dominion over a parcel of land notwithstanding the previous sale of the same lot in 1969 to Edilberto V. Ilano. By contrast, the inculpatory aspersions against private respondent in 1973 for estafa have their roots in the overt act of disposing the same piece of lot in favor of other persons subsequent to the conveyance in favor of Edilberto V. Ilano in 1969. Indeed, the intent to prevaricate on a piece of document for the purpose of securing a favorable action for registration within the context of Article 171 (4) in conjunction with Article 172 of the Revised Penal Code is definitely distinct from the perceived double sale contemplated by the first paragraph under Article 316 of the same code. 2. It was similarly fallacious for the lower court to have shared the notion that private respondent is in danger of being convicted twice for the same criminal act, a circumstance recognized under Section 2(h) Rule 117 of the Old Rules as suggested in the motion to quash, because this plea is understood to presuppose that the other case against private respondent has been dismissed or otherwise terminated without her express consent, by a court of competent jurisdiction, upon a valid complaint or information, and after the defendant had pleaded to the charge (People of the Philippines versus Hon. Maximiano C. Asuncion, et al., G.R.

Nos. 83837-42, April 22, 1992; Section 7, Rule 117, 1985 Rules on Criminal Procedure, as amended). In the Asuncion case, Justice Nocon said that: . . . according to a long line of cases, in order that a defendant may successfully allege former jeopardy, it is necessary that he had previously been (1) convicted or (2) acquitted, or (3) in jeopardy of being convicted of the offense charged, that is, that the former case against him for the same offense has been dismissed or otherwise terminated without his express consent, by a court of competent jurisdiction, upon a valid complaint or information, and after the defendant had pleaded to the charge. Withal, the mere filing of two informations charging the same offense is not an appropriate basis for the invocation of double jeopardy since the first jeopardy has not yet set in by a previous conviction, acquittal or termination of the case without the consent of the accused (People vs. Miraflores, 115 SCRA 586 [1982]; Nierras vs. Dacuycuy, 181 SCRA 8 [1990]). In People vs. Miraflores (supra), the accused therein, after he had pleaded to the charge of multiple frustrated murder in Criminal Case No. 88173 and subsequent to his arraignment on a separate charge of Murder in Criminal Case No. 88174, invoked the plea of double jeopardy but Justice Barredo who spoke for the Court was far from convinced: But the more untenable aspect of the position of appellant is that when he invoked the defense of double jeopardy, what could have been the first jeopardy had not yet been completed or even began. It is settled

jurisprudence in this Court that the mere filing of two informations or complaints charging the same offense does not yet afford the accused in those cases the occasion to complain that he is being placed in jeopardy twice for the same offense, for the simple reason that the primary basis of the defense of double jeopardy is that the accused has already been convicted or acquitted in the first case or that the same has been terminated without his consent. (Bulaong vs. People, L-19344, July 27, 1966, 17 SCRA 746; Silvestre vs. Military Commission No. 21, No. L46366, March 8, 1978, Buscayno vs. Military Commissions Nos. 1, 2, 6 and 25, No. L-58284, Nov. 19, 1981, 109 SCRA 273). Moreover, it appears that private respondent herein had not yet been arraigned in the previous case for estafa. Thus, there is that other missing link, so to speak, in the case at bar which was precisely the same reason utilized by Justice Davide, Jr. in Lamera vs. Court of Appeals (198 SCRA 186 [1991]) when he brushed aside the claim of double jeopardy of the accused therein who was arraigned in the previous case only after the judgment of conviction was promulgated in the other case. The ponente cited a plethora of cases in support of the proposition that arraignment of the accused in the previous case is a condition sine qua non for double jeopardy to attach (at page 13: People vs. Ylagan, 58 Phil. 851; People vs. Consulta, 70 SCRA 277; Andres v. Cacdac, 113 SCRA 216; People vs. Bocar, et al., 132 SCRA 166; Gaspar vs. Sandiganbayan, 144 SCRA 415) and echoed the requisites of legal jeopardy as announced in People vs. Bocar thus: Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent court, (c)

after arraignment, (d) a valid plea having been entered, and (e) the case was dismissed or otherwise terminated without the express consent of the accused. (at p. 193.) To be sure, Chief Justice Moran said in his treatise on the subject under consideration that: Where there is no former conviction, acquittal, dismissal or termination of a former case for the same offense, no jeopardy attaches. (Comments on the Rules of Court, by Moran, Vol. 4, 1980 Ed., p. 281) Of course, We are not unmindful of the erudite remarks of Mr. Justice Florenz D. Regalado, in his Remedial Law Compendium that: It would now appear that prior conviction or acquittal in the first case, as long as the accused had entered his plea therein is no longer required in order that the accused may move to quash a second prosecution for the same offense on the ground of double jeopardy. (Volume 2, 1988 Edition, page 323; 339) xxx xxx xxx

accused enters his plea due to the obiter dictum of the ponente in that case, based on the following factual backdrop: The question presented in this case is whether a person who has been prosecuted for serious physical injuries thru reckless imprudence and convicted thereof may be prosecuted subsequently for homicide thru reckless imprudence if the offended party dies as a result of the same injuries he had suffered. xxx xxx xxx

Well-settled is the rule that one who has been charged [implying that there is no need to show previous conviction, acquittal, or dismissal of a similar or identical charge] with an offense cannot be charged again with the same or identical offense though the latter be lesser or greater than the former. (Emphasis supplied.) From the conclusion thus reached, it would appear that one simply "charged" may claim possible jeopardy in another case. However, a closer study of the case adverted to reveals that the ponente may have overlooked the fact that the accused therein was not only charged, but he actually admitted his guilt to the charge of serious physical injuries through reckless imprudence and more importantly, he was convicted of such crime and commenced serving sentence. Verily, there was no occasion in said case to speak of jeopardy being properly invoked by a person simply charged with an offense if he is again charged for the same or identical offense. It may be observed that in City Court of Manila the accused therein pleaded on the first offense of which he was charged and subsequently convicted, unlike in the scenario at bar where private respondent entered her plea to the second offense. But the variance on this point is of no substantial worth because private respondent's plea to the second offense is, as aforesaid, legally incomplete to sustain her assertion of jeopardy for probable conviction of the same felony, absent as there is the previous conviction, acquittal, or termination without her express consent of the previous case for estafa, and it being plain and obvious that the charges did not arise from the same acts. In short, in order for the first jeopardy to attach, the plea of the accused to the charge must be coupled with

In the case at bar, the incident occurred on October 17, 1971. The following day, October 18, an information for serious physical injuries thru reckless imprudence was filed against private respondent driver of the truck. On the same day, the victim Diolito de la Cruz died. On October 20, 1972, private respondent was arraigned on the charge of serious physical injuries thru reckless imprudence. He pleaded guilty, was sentenced to one (1) month and one (1) day of arresto mayor, and commenced serving sentence. On October 24, 1972, an information for homicide thru reckless imprudence was filed against private respondent. On November 17, 1972, the City Court of Manila, upon motion of private respondent, issued an order dismissing the homicide thru reckless imprudence case on the ground of double jeopardy. where it was opined, thus:

Jeopardy attaches from the entry of his plea at the arraignment (People vs. City Court of Manila, et al., L-3642, April 27, 1983). (Vide page 327). The sentiments expressed in this regard by Our distinguished colleague which rest on the ruling of this Court in People vs. City Court of Manila, Branch XI (121 SCRA 637 [1983], cited by Regalado, Vide, at p. 339 to the effect that jeopardy would already attach when the

either conviction, acquittal, or termination of the previous case without his express consent thereafter. (Tolentino vs. De la Costa, 66 Phil. 97 [1938]). Justice Oscar Herrera, in his book "Remedial Law" enumerates the elements constitutive of first jeopardy, to wit: 1. 2. 3. Court of competent jurisdiction; Valid complaint or information; Arraignment and a

273; People vs. Cuevo, 104 SCRA 319; Galman, et al. vs. Sandiganbayan, G.R. No. 72670, September 12, 1987.) (Vide, at page 423). In People vs. Ledesma (73 SCRA 77 [1976]), Justice Martin declared in no uncertain terms: . . . In the case before Us, accused-appellee was charged with estafa in Criminal Case No. 439 before a competent court under a valid information and was duly convicted as charged. He was therefore placed in legal jeopardy for the crime of estafa in Criminal Case No. 439 for having failed to turn over the proceeds of the sale of an Avegon radio in the amount of P230.00 to the offended party. . . . (at p. 81) The same observation was made by then Justice, later Chief Justice Aquino in People vs. Pilpa (79 SCRA 81 [1977]): In synthesis, there is former jeopardy when in the first case there was a valid complaint or information filed in a court of competent jurisdiction, and after the defendant had pleaded to the charge, he was acquitted or convicted or the case against him was terminated without his express consent (People vs. Consulta, L-41251, March 31, 1976, 70 SCRA 277; People vs. Ylagan, 58 Phil. 851, 853). (86) At any rate, and inasmuch as this Court has spoken quite recently in People vs. Asuncion, (G.R. Nos. 83837-42, April 22, 1992), the ambiguity stirred by the imprecise observation in People vs. City Court of Manila, a 1983 case, can now be considered modified in that a prior conviction, or acquittal, or termination of the case without the express acquiescence of the accused is still required before the first

jeopardy can be pleaded to abate a second prosecution. While We are at a loss as to the status of the progress of the estafa case on account of private respondent's apathy towards Our order for the parties herein to "MOVE IN THE PREMISES" (p. 125, Rollo) which information could substantially affect the results of this case, from all indications it appears that the estafa case has not yet been terminated. WHEREFORE, the petition is GRANTED and the Orders of respondent judge dated January 23, 1976 quashing the information for falsification, and March 23, 1976 denying the People's motion for reconsideration therefrom are hereby REVERSED and SET ASIDE. Let the information for falsification be reinstated and this case be remanded to the lower court for further proceedings and trial. No special pronouncement is made as to costs. SO ORDERED. Cruz, Padilla, Bidin, Grio-Aquino, Davide, Jr., Romero, Nocon, Bellosillo and Campos, Jr., JJ., concur. Quiason, J., took no part. Gutierrez, Jr., J., on leave.

4. Valid plea (People vs. Ylagan, 58 Phil. 851; 853) 5. The defendant was acquitted or convicted or the case was dismissed or otherwise terminated without the express consent of the accused (People vs. Declaro, G.R. No. 64362, February 9, 1989, 170 SCRA 142; See also People vs. Santiago, 174 SCRA 143; People vs. Gines, G.R. No. 83463, May 27, 1991, 197 SCRA 481; Que vs. Cosico, 177 SCRA 410 [1989]; Caes vs. Intermediate Appellate Court, 179 SCRA 54; Lamera vs. Court of Appeals, 198 SCRA 186 [1991]). (Herrera, Remedial Law, 1992 Ed., Volume 4, p. 417). Citing cases, both old and of recent vintage, Justice Herrera continues to submit the idea that: The first jeopardy is said to have validly terminated upon conviction, acquittal or dismissal of the case or otherwise terminated without the express consent of defendant (People vs. Garcia, 30 SCRA 150; People vs. Ledesma, 73 SCRA 77; People vs. Pilpa, 79 SCRA 81; Buscayno vs. Military Commission, 109 SCRA

[G.R. No. L-41863. April 22, 1977.] PEOPLE OF THE PHILIPPINES, and ASST. PROV'L. FISCAL F. VISITACION, JR., petitioners, vs. HONORABLE MIDPANTAO L. ADIL, Presiding

Judge, Court of First Instance of Iloilo, Branch II, and MARGARITO FAMA, JR., respondents. Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Alicia V. Sempio-Diy and Solicitor Amado D. Aquino for petitioners. Fama & Jimenea for private respondent. DECISION BARREDO, J p: Petition for certiorari to set aside the orders of respondent judge dated September 22, 1975 and October 14, 1975 dismissing Criminal Case No. 5241 of the Court of First Instance of Iloilo against private respondent Margarito Fama, Jr., said dismissal being predicated on the ground of double jeopardy, in view of the dismissal of a previous charge of slight physical injuries against the same respondent for the same incident by the Municipal Court of January, Iloilo in Criminal Case No. 3335, notwithstanding that in the information in the first-mentioned case, it was alleged that the injuries sustained by the offended party, aside from possibly requiring medical attendance from 5 to 9 days "barring complications", as was alleged in the information in Criminal Case No. 3335, had left "a permanent scar and deform(ed) the right face of (said offended party) Miguel Viajar." The first criminal complaint filed against respondent Fama Jr. on April 15, 1975 (Case No. 3335) was as follows: "That at about 5:30 o'clock in the afternoon of April 12, 1975, at Aquino Nobleza St.,

Municipality of Janiuay, Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court the above-named accused, while armed with a piece of stone, did then and there willfully, unlawfully and feloniously, assault, attack and use personal violence upon one Miguel Viajar by then hurling the latter with a stone, hitting said Miguel Viajar on the right cheek, thereby inflicting physical injuries which would have required and will require medical attendance for a period from 5 to 9 days barring complication as per medical certificate of the physician hereto attached. CONTRARY TO LAW." (Pp. 93-94, Record). Arraigned on July 7, 1975, the accused entered a plea of not guilty. Meanwhile, on June 8, 1975, complainant Viajar filed a letter-complaint with the Provincial Fiscal of Iloilo charging Atty. Alfredo Fama, Raul Fama and herein respondent Margarito Fama, Jr. with serious physical injuries arising from the same incident alleged in above Criminal Case No. 3335. After conducting a preliminary investigation, under date of July 28, 1975, the Fiscal filed in the Court of First Instance of Iloilo an information, but only against respondent Fama Jr., (Case No. 5241) for serious physical injuries as follows: "That on or about April 12, 1975, in the Municipality of Janiuay, Province of Iloilo, Philippines, and within the jurisdiction of this Court, the said accused, with deliberate intent, and without any justifiable motive, armed with pieces of stone did then and there willfully, unlawfully and feloniously attack, assault and throw pieces of stone at Miguel Viajar, hitting

him on the lower right eye which would heal from five (5) to nine (9) days barring complications but leaving a permanent scar and deforming on the right face of said Miguel Viajar. CONTRARY TO LAW." (Pp. 94-95, Record). On August 1, 1975, Fama Jr. filed an urgent motion to defer proceedings in Criminal Case No. 5241, claiming that since he was already charged and pleaded not guilty in Criminal Case No. 3335, he would be in double jeopardy, if Case No. 5241 were to be prosecuted. This motion was opposed by the Fiscal and the Court required both parties to file their respective memorandum on the issue of double jeopardy. LexLib In the meantime, the Fiscal after filing Case No. 5241, sought the dismissal of Case No. 3335, but the Municipal Court did not act on said motion. Instead, the case was set for hearing, and in view of the postponements asked by the Fiscal in order to await the resolution of the issue of double jeopardy in Case No. 5241, on September 11, 1975, the following order was entered: "Under our democratic and constituted system of government litigants before our courts of justice, plaintiffs and defendants, complainants and accused are entitled to the equal protection of our laws. More is an accused, the trial of his case has been repeatedly postponed for several times by this Court in the exercise of its sound discretion at the instance of the prosecution. So, when this case was called for hearing on the afternoon of September 1, 1975 the accused through counsel vigorously objected to another

postponement and moved for the dismissal of the case against him. To grant another postponement as sought by the Fiscal against the vehement, strong and vigorous objection of the accused is to the mind of the Court, no longer an exercise of sound discretion consistent with justice and fairness but a clear and palpable abuse of discretion amounting to a serious denial to, and a grave violation of, the right of the accused to a speedy trial to which he is rightfully entitled to under Section 16 of Article IV, (Bill of Rights) of the Philippine Constitution. "IN VIEW OF THE FOREGOING, the aboveentitled case is hereby ordered dismissed. The Cash Bond posted by the accused is hereby ordered cancelled and released." (Pp. 96-97, Record.). Whereupon, on even date, Fama Jr. filed an addendum to his memorandum in Case No. 5241 inviting attention to the above dismissal order and reiterating his theory of double jeopardy. On September 22, 1975, respondent court issued the impugned order sustaining the contention of double jeopardy and dismissing Case No. 5241. The prosecution's motion for reconsideration was denied in the other assailed order of October 14, 1975, respondent judge relying on the ruling laid down in Peo. vs. Silva, 4 SCRA 95. llcd In brief, what happened here was that when Case No. 3335 was filed in the inferior court of Janiuay, the charge against Fama Jr. had to be for slight physical injuries only, because according to the certification of the attending physician, the injuries suffered by the offended party Viajar, would require medical attendance

from 5 to 9 days only "baring complications." Indeed, when the complaint was filed on April 15, 1975, only three days had passed since the incident in which the injuries were sustained took place, and there were yet no indications of a graver injury or consequence to be suffered by said offended party. Evidently, it was only later, after Case No. 3335 had already been filed and the wound on the face of Viajar had already healed, that the alleged deformity became apparent. Now, expert evidence is not needed for anyone to understand that the scar or deformity that would be left by a wound on the face of a person cannot be predetermined. On the other hand, whether or not there is actually a deformity on the face of Viajar is a question of fact that has to be determined by the trial court. The only issue We are to resolve here is whether or not the additional allegation of deformity in the information in Case No. 5241 constitutes a supervening element which should take this case out of the ruling in People vs. Silva cited by respondent court. In Silva, mere was no question that the extent of the damage to property and physical injuries suffered by the offended parties therein were already existing and known when the prior minor case was prosecuted. What is controlling then in the instant case is Melo vs. People, 85 Phil. 766, in which it was held: "This rule of identity does not apply, however, when the second offense was not in existence at the time of the first prosecution, for the simple reason that in such case there is no possibility for the accused during the first prosecution, to be convicted for an offense that

was then inexistent. Thus, where the accused was charged with physical injuries and after conviction the injured dies, the charge of homicide against the same accused does not put him twice in jeopardy." So also is People vs. Yorac, 42 SCRA, 230, to the following effect: "Stated differently, if after the first prosecution 'a new fact supervenes' on which defendant may be held liable, resulting in altering the character of the crime and giving rise to a new and distinct offense, 'the accused cannot be said to be in second jeopardy if indicted for the new offense.'" In People vs. Buling, 107 Phil. 112, We explained how a deformity may be considered as a supervening fact. Referring to the decision in People vs. Manolong, 85 Phil. 829, We held: LexLib "No finding was made in the first examination that the injuries had caused deformity and the loss of the use of the right hand. As nothing was mentioned in the first medical certificate about the deformity and the loss of the use of the right hand, we presumed that such fact was not apparent or could have been discernible at the time the first examination was made. The course (not the length) of the healing of an injury may not be determined before hand; it can only be definitely known after the period of healing has ended. That is the reason why the court considered that there was a supervening fact occurring since the filing of the original information."

In other words, in the peculiar circumstances of this case, the plea of double jeopardy of private respondent Fama Jr., cannot hold. It was, therefore, a grave error correctible by certiorari for respondent court to have dismissed Criminal Case No. 5241. ACCORDINGLY, the orders of September 22, 1976 and October 14, 1975 herein complained of are hereby set aside and respondent court is ordered to proceed with the trial and judgment thereof according to law. Costs against private respondent Fama Jr. Fernando (Chairman), Antonio, Aquino and Concepcion Jr., JJ., concur. [G.R. No. L-45129. March 6, 1987.] PEOPLE OF THE PHILIPPINES, petitioner, vs. THE HONORABLE BENJAMIN RELOVA, in his capacity as Presiding Judge of the Court of First Instance of Batangas, Second Branch, and MANUEL OPULENCIA, respondents. DECISION FELICIANO, J p: In this petition for certiorari and mandamus, the People of the Philippines seek to set aside the orders of the respondent Judge of the Court of First Instance of Batangas in Criminal Case No. 266, dated 12 August 1976 and 8 November 1976, respectively, quashing an information for theft filed against private respondent Manuel Opulencia on the ground of double jeopardy and denying the petitioner's motion for reconsideration. LLpr

On 1 February 1975, members of the Batangas City Police together with personnel of the Batangas Electric Light System, equipped with a search warrant issued by a city judge of Batangas City, searched and examined the premises of the Opulencia Carpena Ice Plant and Cold Storage owned and operated by the private respondent Manuel Opulencia. The police discovered that electric wiring, devices and contraptions had been installed, without the necessary authority from the city government, and "architecturally concealed inside the walls of the building" 1 owned by the private respondent. These electric devices and contraptions were, in the allegation of the petitioner "designed purposely to lower or decrease the readings of electric current consumption in the electric meter of the said electric [ice and cold storage] plant." 2 During the subsequent investigation, Manuel Opulencia admitted in a written statement that he had caused the installation of the electrical devices "in order to lower or decrease the readings of his electric meter." 3 On 24 November 1975, an Assistant City Fiscal of Batangas City filed before the City Court of Batangas City an information against Manuel Opulencia for violation of Ordinance No. 1, Series of 1974, Batangas City. A violation of this ordinance was, under its terms, punishable by a fine "ranging from Five Pesos (P5.00) to Fifty Pesos (P50.00) or imprisonment, which shall not exceed thirty (30) days, or both, at the discretion of the court." 4 This information reads as follows: "The undersigned, Assistant City Fiscal accuses Manuel Opulencia y Lat of violation of Sec. 3 (b) in relation to Sec. 6 (d) and Sec. 10 Article II,

Title IV of ordinance No. 1, S. 1974, with damage to the City Government of Batangas, and penalized by the said ordinance, committed as follows: That from November, 1974 to February, 1975 at Batangas City, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, with intent to defraud the City Government of Batangas, without proper authorization from any lawful and or permit from the proper authorities, did then and there wilfully, unlawfully and feloniously make unauthorized installations of electric wirings and devices to lower or decrease the consumption of electric fluid at the Opulencia Ice Plant situated at Kumintang, Ibaba, this city and as a result of such unathorized installations of electric wirings and devices made by the accused, the City Government of Batangas was damaged and prejudiced in the total amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS (41,062.16) Philippine currency, covering the period from November 1974 to February, 1975, to the damage and prejudice of the City Government of Batangas in the aforestated amount of P41,062.16, Philippine currency." The accused Manuel Opulencia pleaded not guilty to the above information. On 2 February 1976, he filed a motion to dismiss the information upon the grounds that the crime there charged had already prescribed and that the civil indemnity there sought to be recovered was beyond the jurisdiction of the Batangas City Court to award. In an order dated 6 April 1976, the Batangas City Court granted the motion to dismiss on the ground of prescription, it appearing that the offense charged was a light

felony which prescribes two months from the time of discovery thereof, and it appearing further that the information was filed by the fiscal more than nine months after discovery of the offense charged in February 1975. cdrep Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of Batangas City filed before the Court of First Instance of Batangas, Branch II, another information against Manuel Opulencia, this time for theft of electric power under Article 308 in relation to Article 309, paragraph (1), of the Revised Penal Code. This information read as follows: "The undersigned Acting City Fiscal accuses Manuel Opulencia y Lat of the crime of theft, defined and penalized by Article 308, in relation to Article 309, paragraph (1) of the Revised Penal Code, committed as follows: That on, during, and between the month of November, 1974, and the 21st day of February, 1975, at Kumintang, Ibaba, Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain and without the knowledge and consent of the Batangas Electric Light System, did then and there, wilfully, unlawfully and feloniously take, steal and appropriate electric current valued in the total amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine Currency, to the damage and prejudice of the said Batangas Electric Light System, owned and operated by the City Government of Batangas, in the aforementioned sum of P41,062.16." The above information was docketed as Criminal Case No. 266 before the Court of First

Instance of Batangas, Branch II. Before he could be arraigned thereon, Manuel Opulencia filed a Motion to Quash, dated 5 May 1976, alleging that he had been previously acquitted of the offense charged in the second information and that the filing thereof was violative of his constitutional right against double jeopardy. By Order dated 16 August 1976, the respondent Judge granted the accused's Motion to Quash and ordered the case dismissed. The gist of this Order is set forth in the following paragraphs: "The only question here is whether the dismissal of the first case can be properly pleaded by the accused in the motion to quash. In the first paragraph of the earlier information, it alleges that the prosecution "accuses Manuel Opulencia y Lat of violation of Sec. 3(b) in relation to Sec. 6(d) and Sec. 10 Article II, Title IV of Ordinance No. 1, s. 1974, with damage to the City Government of Batangas, etc." (emphasis supplied). The first case, as it appears, was not simply one of illegal electrical connections. It also covered an amount of P41,062.16 which the accused, in effect, allegedly with intent to defraud, deprived the city government of Batangas. If the charge had meant illegal electric installations only, it could have alleged illegal connections which were done at one instance on a particular date between November, 1974, to February 21, 1975. But as the information states "that from November, 1974 to February 1975 at Batangas City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to defraud the City Government of Batangas, without proper authorization from any lawful and/or permit from the proper authorities, did then and there

wilfully, unlawfully and feloniously make unauthorized installations of electric wirings and devices, etc." (italics supplied), it was meant to include the P41,062.16 which the accused had, in effect, defrauded the city government. The information could not have meant that from November 1974 to 21 February 1975, he had daily committed unlawful installations. When, therefore, he was arraigned and he faced the indictment before the Civil Court, he had already been exposed or he felt he was exposed to consequences of what allegedly happened between November 1974 to February 21, 1975 which had allegedly resulted in defrauding the City of Batangas in the amount of P41,062.16." (Emphases and parentheses in the original). A Motion for Reconsideration of the abovequoted Order filed by the petitioner was denied by the respondent Judge in an Order dated 18 November 1976. On 1 December 1976, the present Petition for Certiorari and Mandamus was filed in this Court by the Acting City Fiscal of Batangas City on behalf of the People. The basic premise of the petitioner's position is that the constitutional protection against double jeopardy is protection against a second or later jeopardy of conviction for the same offense. The petitioner stresses that the first information filed before the City Court of Batangas City was one for unlawful or unauthorized installation of electrical wiring and devices, acts which were in violation of an ordinance of the City Government of Batangas.

Only two elements are needed to constitute an offense under this City Ordinance: (1) that there was such an installation; and (2) no authority therefor had been obtained from the Superintendent of the Batangas City Electrical System or the District Engineer. The petitioner urges that the relevant terms of the City Ordinance which read as follows:. "Section 3. Connection and Installation: "a) ....

without authority from the proper officials of the city government. To constitute an offense under the city ordinance, it is not essential to establish any mens rea on the part of the offender generally speaking, nor, more specifically, an intent to appropriate and steal electric fluid. cdrep In contrast, the petitioner goes on, the offense of theft under Article 308 of the Revised Penal Code filed before the Court of First Instance of Batangas in Criminal Case No. 266 has quite different essential elements. These elements are: "1. That personal property be taken;

2. Fixing the electric meter in such a manner that it will not register the actual electrical consumption; 3. Under-reading of electrical consumption; and 4. By tightening the screw of the rotary blade to slow down the rotation of the same." 7 The petitioner concludes that: "The unauthorized installation punished by the ordinance [of Batangas City] is not the same as theft of electricity [under the Revised Penal Code]; that the second offense is not an attempt to commit the first or a frustration thereof and that the second offense is not necessarily included in the offense charged in the first information." 8 The above arguments made by the petitioner are of course correct. This is clear both from the express terms of the constitutional provision involved - which reads as follows: "No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." (Emphasis supplied; Article IV (22),1973 Constitution) 9 and from our case law on this point. 10 The basic difficulty with the petitioner's position is that it must be examined, not under the terms of the first sentence of Article IV (22) of the 1973 Constitution, but rather under the second sentence of the same section. The first sentence

(b) The work and installation in the houses and building and their connection with the Electrical System shall be done either by the employee of the system duly authorized by its Superintendent or by persons adept in the matter duly authorized by the District Engineer. Applicants for electrical service permitting the works of installation or connection with the system to be undertaken by the persons not duly authorized therefor shall be considered guilty of violation of the ordinance." would show that: "The principal purpose for (sic) such a provision is to ensure that electrical installations on residences or buildings be done by persons duly authorized or adept in the matter, to avoid fires and accidents due to faulty electrical wirings. It is primarily a regulatory measure and not intended to punish or curb theft of electric fluid which is already covered by the Revised Penal Code." 5 The gist of the offense under the City Ordinance, the petitioner's argument continues, is the installing of electric wiring and devices

2. That the personal property (taken) belongs to another; 3. gain; That the taking be done with intent of

4. That the taking be done without the consent of the owner; and 5. That the taking be accomplished without violence against or intimidation of persons or force upon things." 6 The petitioner also alleges, correctly, in our view, that theft of electricity can be effected even without illegal or unauthorized installations of any kind by, for instance, any of the following means: "1. Turning back the dials of the electric meter;

of Article IV (22) sets forth the general rule: the constitutional protection against double jeopardy is not available where the second prosecution is for an offense that is different from the offense charged in the first or prior prosecution, although both the first and second offenses may be based upon the same act or set of acts. The second sentence of Article IV (22) embodies an exception to the general proposition: the constitutional protection, against double jeopardy is available although the prior offense charged under an ordinance be different from the offense charged subsequently under a national statute such as the Revised Penal Code, provided that both offenses spring from the same act or set of acts. This was made clear sometime ago in Yap vs. Lutero. 11 In Yap, petitioner Manuel Yap was charged in Criminal Case No. 16054 of the Municipal Court of Iloilo City, with violation of Article 14 of Ordinance No. 22, Series of 1951, in relation to Ordinance No. 15, Series of 1954, of the City of Iloilo. The information charged him with having "wilfully, unlawfully and feloniously drive[n] and operate[d]" an automobile "recklessly and without reasonable caution thereby endangering other vehicles and pedestrians passing in said street." Three months later, Yap was again charged in Criminal Case No. 16443 of the same Municipal Court, this time with serious physical injuries through reckless imprudence. The information charged him with violation of the Revised Motor Vehicle Law (Act No. 3992 as amended by Republic Act No. 587) committed by driving and operating an automobile in a reckless and negligent manner and as a result thereof inflicting injuries upon an unfortunate pedestrian. Yap moved to quash

the second information upon the ground that it placed him twice in jeopardy of punishment for the same act. This motion was denied by the respondent municipal judge. Meantime, another municipal judge had acquitted Yap in Criminal Case No. 16054. Yap then instituted a petition for certiorari in the Court of First Instance of Iloilo to set aside the order of the respondent municipal judge. The Court of First Instance of Iloilo having reversed the respondent municipal judge and having directed him to desist from continuing with Criminal Case No. 16443, the respondent Judge brought the case to the Supreme Court for review on appeal. In affirming the decision appealed from and holding that the constitutional protection against double jeopardy was available to petitioner Yap, then Associate Justice and later Chief Justice Roberto Concepcion wrote: prLL "To begin with, the crime of damage to property through reckless driving with which Diaz stood charged in the court of first instance - is a violation of the Revised Penal Code (third paragraph of Article 365), not the Automobile Law (Act No. 3992, as amended by Republic Act No. 587). Hence, Diaz was not twice accused of a violation of the same law. Secondly, reckless driving and certain crimes committed through reckless driving are punishable under different provisions of said Automobile Law. Hence from the view point of Criminal Law, as distinguished from political or Constitutional Law they constitute, strictly, different offenses, although under certain conditions, one offense may include the other, and, accordingly, once placed in jeopardy for one, the plea of double jeopardy may be in order as

regards the other, as in the Diaz case. (Emphases in the original). Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of clause 20, section 1, Article III of the Constitution, ordains that "no person shall be twice put in jeopardy of punishment for the same offense." (Emphasis in the original) The second sentence of said clause provides that "if an act is punishable by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act." Thus, the first sentence prohibits double jeopardy of punishment for the same offense, whereas the second contemplates double jeopardy of punishment for the same act. Under the first sentence, one may be twice put in jeopardy of punishment of the same act, provided that he is charged with different offenses, or the offense charged in one case is not included in, or does not include, the crime charged in the other case. The second sentence applies, even if the offenses charged are not the same, owing to the fact that one constitutes a violation of an ordinance and the other a violation of a statute. If the two charges are based on one and the same act conviction or acquittal under either the law or the ordinance shall bar a prosecution under the other. 12 Incidentally, such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment for the same offense. So long as jeopardy has attached under one of the informations charging said offense, the defense may be availed of in the other case involving the same offense, even if there has been neither conviction nor acquittal in either case.

The issue in the case at bar hinges, therefore, on whether or not, under the information in case No. 16443, petitioner could if he failed to plead double jeopardy be convicted of the same act charged in case No. 16054, in which he has already been acquitted. The information in case No. 16054 alleges, substantially, that on the date and in the place therein stated, petitioner herein had wilfully, unlawfully and feloniously driven and operated "recklessly and without reasonable caution" an automobile described in said information. Upon the other hand, the information in case No. 16443, similarly states that, on the same date and in the same place, petitioner drove and operated the aforementioned automobile in a "reckless and negligent manner at an excessive rate of speed and in violation of the Revised Motor Vehicle Law (Act No. 3992), as amended by Republic Act No. 587, and existing city ordinances." Thus, if the theories mentioned in the second information were not established by the evidence, petitioner could be convicted in case No. 16443 of the very same violation of municipal ordinance charged in case No. 16054, unless he pleaded double jeopardy. It is clear, therefore, that the lower court has not erred eventually sustaining the theory of petitioner herein." Put a little differently, where the offenses charged are penalized either by different sections of the same statute or by different statutes, the important inquiry relates to the identity of offenses charged: the constitutional protection against double jeopardy is available only where an identity is shown to exist between the earlier and the subsequent offenses charged. In contrast, where one

offense is charged under a municipal ordinance while the other is penalized by a statute, the critical inquiry is to the identity of the acts which the accused is said to have committed and which are alleged to have given rise to the two offenses: the constitutional protection against double jeopardy is available so long as the acts which constitute or have given rise to the first offense under a municipal ordinance are the same acts which constitute or have given rise to the offense charged under a statute. LLjur The question may be raised why one rule should exist where two offenses under two different sections of the same statute or under different statutes are charged, and another rule for the situation where one offense is charged under a municipal ordinance and another offense under a national statute. If the second sentence of the double jeopardy provision had not been written into the Constitution, conviction or acquittal under a municipal ordinance would never constitute a bar to another prosecution for the same act under a national statute. An offense penalized by municipal ordinance is, by definition, different from an offense under a statute. The two offenses would never constitute the same offense having been promulgated by different rule-making authorities though one be subordinate to the other and the plea of double jeopardy would never be. The discussions during the 1934-1935 Constitutional Convention show that the second sentence was inserted precisely for the purpose of extending the constitutional protection against double jeopardy to a situation which would not otherwise be covered by the first sentence. 13

The question of identity or lack of identity of offenses is addressed by examining the essential elements of each of the two offenses charged, as such elements are set out in the respective legislative definitions of the offenses involved. The question of identity of the acts which are claimed to have generated liability both under a municipal ordinance and a national statute must be addressed, in the first instance, by examining the location of such acts in time and space. When the acts of the accused as set out in the two informations are so related to each other in time and space as to be reasonably regarded as having taken place on the same occasion and where those acts have been moved by one and the same, or a continuing, intent or voluntary design or negligence, such acts may be appropriately characterized as an integral whole capable of giving rise to penal liability simultaneously under different legal enactments (a municipal ordinance and a national statute). In Yap, the Court regarded the offense of reckless driving under the Iloilo City Ordinance and serious physical injuries through reckless imprudence under the Revised Motor Vehicle Law as derived from the same act or sets of acts that is, the operation of an automobile in a reckless manner. The additional technical element of serious physical injuries related to the physical consequences of the operation of the automobile by the accused, i.e., the impact of the automobile upon the body of the offended party. Clearly, such consequence occurred in the same occasion that the accused operated the automobile (recklessly). The moral element of negligence permeated the acts of the accused throughout that occasion. LLpr

In the instant case, the relevant acts took place within the same time frame: from November 1974 to February 1975. During this period, the accused Manuel Opulencia installed or permitted the installation of electrical wiring and devices in his ice plant without obtaining the necessary permit or authorization from the municipal authorities. The accused conceded that he effected or permitted such unauthorized installation for the very purpose of reducing his electric power bill. This corrupt intent was thus present from the very moment that such unauthorized installation began. The immediate physical effect of the unauthorized installation was the inward flow of electric current into Opulencia's ice plant without the corresponding recording thereof in his electric meter. In other words, the "taking" of electric current was integral with the unauthorized installation of electric wiring and devices. It is perhaps important to note that the rule limiting the constitutional protection against double jeopardy to a subsequent prosecution for the same offense is not to be understood with absolute literalness. The identity of offenses that must be shown need not be absolute identity: the first and second offenses may be regarded as the "same offense" where the second offense necessarily includes the first offense or is necessarily included in such first offense or where the second offense is an attempt to commit the first or a frustration thereof. 14 Thus, for the constitutional plea of double jeopardy to be available, not all the technical elements constituting the first offense need be present in the technical definition of the second offense. The law here seeks to prevent harassment of an accused person by multiple prosecutions for offenses which

though different from one another are nonetheless each constituted by a common set or overlapping sets of technical elements. As Associate Justice and later Chief Justice Ricardo Paras cautioned in People vs. del Carmen, et al., 88 Phil. 51 (1951): "While the rule against double jeopardy prohibits prosecution for the same offense, it seems elementary that an accused should be shielded against being prosecuted for several offenses made out from a single act. Otherwise, an unlawful act or omission may give use to several prosecutions depending upon the ability of the prosecuting officer to imagine or concoct as many offenses as can be justified by said act or omission by simply adding or subtracting essential elements. Under the theory of appellant the crime of rape may be converted into a crime of coercion, by merely alleging that by force and intimidation the accused prevented the offended girl from remaining a virgin." (88 Phil. at 53; emphases supplied). By the same token, acts of a person which physically occur on the same occasion and are infused by a common intent or design or negligence and therefore form a moral unity, should not be segmented and sliced, as it were, to produce as many different acts as there are offenses under municipal ordinances or statutes that an enterprising prosecutor can find. It remains to point out that the dismissal by the Batangas City Court of the information for violation of the Batangas City Ordinance upon the ground that such offense had already prescribed, amounts to an acquittal of the accused of that offense. Under Article 89 of the Revised Penal Code, "prescription of the crime"

is one of the grounds for "total extinction of criminal liability." Under the Rules of Court, an order sustaining a motion to quash based on prescription is a bar to another prosecution for the same offense. 15 It is not without reluctance that we deny the people's petition for certiorari and mandamus in this case. It is difficult to summon any empathy for a businessman who would make or enlarge his profit by stealing from the community. Manuel Opulencia is able to escape criminal punishment because an Assistant City Fiscal by inadvertence or otherwise chose to file an information for an offense which he should have known had already prescribed. We are, however, compelled by the fundamental law to hold the protection of the right against double jeopardy available even to the private respondent in this case. cdphil The civil liability aspects of this case are another matter. Because no reservation of the right to file a separate civil action was made by the Batangas City electric light system, the civil action for recovery of civil liability arising from the offense charged was impliedly instituted with the criminal action both before the City Court of Batangas City and the Court of First Instance of Batangas. The extinction of criminal liability whether by prescription or by the bar of double jeopardy does not carry with it the extinction of civil liability arising from the offense charged. In the present case, as we noted earlier, 16 accused Manuel Opulencia freely admitted during the police investigation having stolen electric current through the installation and use of unauthorized electrical connections or devices. While the accused pleaded not guilty before the City Court of

Batangas City, he did not deny having appropriated electric power. However, there is no evidence in the record as to the amount or value of the electric power appropriated by Manuel Opulencia, the criminal informations having been dismissed both by the City Court and by the Court of First Instance (from which dismissals the Batangas City electric light system could not have appealed 17 ) before trial could begin. Accordingly, the related civil action which has not been waived expressly or impliedly, should be remanded to the Court of First Instance of Batangas City for reception of evidence on the amount or value of the electric power appropriated and converted by Manuel Opulencia and rendition of judgment conformably with such evidence. WHEREFORE, the petition for certiorari and mandamus is DENIED. Let the civil action for related civil liability be remanded to the Court of First Instance of Batangas City for further proceedings as indicated above. No pronouncement as to costs. SO ORDERED. Yap, Narvasa, Melencio-Herrera, Gancayco and Sarmiento, JJ ., concur. Cruz, J ., took no part, having been a member of the law offices representing respondents, until his appointment to the Supreme Court.

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