Review on the 2000 Revised Rules on Criminal Procedure 2002 Edition

Rule 117 MOTION TO QUASH

Rule 117 Motion to Quash

SECTION 1. Time to move to quash. At any time before enterin !i" #lea$ t!e a%%u"e& may mo'e to (ua"! t!e %om#laint or information. )1* SEC. +. Form and contents. T!e motion to (ua"! "!all be in ,ritin $ "i ne& by t!e a%%u"e& or !i" %oun"el an& "!all &i"tin%tly "#e%ify it" fa%tual an& le al roun&". T!e %ourt "!all %on"i&er no roun& ot!er t!an t!o"e "tate& in t!e motion$ e-%e#t la%. of /uri"&i%tion o'er t!e offen"e %!ar e&. )+a* In civil cases, within the time for but before filing the answer to the complaint, the defendant may move to dismiss the case on certain specified grounds under Rule 16. In criminal procedure naman, at anytime before entering the plea, the accused may move to quash the complaint or information. Take note that under ection !, the motion to quash partakes the nature of an omnibus motion because the court will consider no ground other than those stated in the motion. The court will not quash a complaint or information on a ground that you did not cite. This is because you can waive this right. The only ground the court will consider moto propio, is lack of "urisdiction over the offense charged, even if not raised in the motion to quash. The theory is that# $%o amount of silence on the party of the accused will grant the court "urisdiction over the sub"ect matter of the case.& 'urisdiction over the sub"ect matter is conferred by law. (# )hat are the grounds for a motion to quash* +# ection ,# SEC. 0. Grounds. T!e a%%u"e& may mo'e to (ua"! t!e %om#laint or information on any of t!e follo,in roun&"1 )a* T!at t!e fa%t" %!ar e& &o not %on"titute an offen"e2 )b* T!at t!e %ourt tryin t!e %a"e !a" no /uri"&i%tion o'er t!e offen"e %!ar e&2 )%* T!at t!e %ourt tryin t!e %a"e !a" no /uri"&i%tion o'er t!e #er"on of t!e a%%u"e&2 )&* T!at t!e offi%er ,!o file& t!e information !a& no aut!ority to &o "o2 )e* T!at it &oe" not %onform "ub"tantially to t!e #re"%ribe& form2 )f* T!at more t!an one offen"e i" %!ar e& e-%e#t ,!en a "in le #uni"!ment for 'ariou" offen"e" i" #re"%ribe& by la,2 ) * T!at t!e %riminal a%tion or liability !a" been e-tin ui"!e&2 )!* T!at it %ontain" a'erment" ,!i%!$ if true$ ,oul& %on"titute a le al e-%u"e or /u"tifi%ation2 an& )i* T!at t!e a%%u"e& !a" been #re'iou"ly %on'i%te& or a%(uitte& of t!e offen"e %!ar e&$ or t!e %a"e a ain"t !im ,a" &i"mi""e& or ot!er,i"e terminate& ,it!out !i" e-#re"" %on"ent. )0a* 1ST 3ROUN4# (A) THAT THE FACTS CHARGED D ! T C !ST"T#TE A! FFE!SE$

The counter part of this in civil cases is, that the pleading asserting the claim states no cause of action. (# -ow do we know the complaint or information do not constitute an offense* +# .ou look at the allegations in the complaint. If the facts alleged do not constitute any crime, then the information should be quashed. This was emphasi/ed in the case of 5O6E7 vs. SAN4I3AN8A9AN 0ctober 1,, 1112

-345# $+s a general proposition, a motion to quash on the ground that the allegations of the information do not constitute the offense charged, or any offense for that matter should be resolved on the basis alone of said allegations whose truth and veracity are hypothetically admitted. -owever, additional facts not alleged in the information, admitted or not denied by the prosecution may be invoked in support of the motion to quash.& +N4 3ROUN41 (%) THAT THE C #RT TR&"!G THE CASE HAS ! CHARGED$ 0R4 3ROUN4# (C) THAT THE C #RT TR&"!G THE CASE HAS ! THE ACC#SED$ '#R"SD"CT" ! '#R"SD"CT" ! (ER THE FFE!SE F

(ER THE )ERS !

Instances when the court has no "urisdiction# 1.6 the court has no "urisdiction to try the case because of the penalty7 !.6 the court has no "urisdiction to try the offense because it is committed in another place 8 territorial "urisdiction7 or ,.6 the court has no "urisdiction over the person of the accused because the latter has never been arrested and never surrendered himself. :TH 3ROUN41 (D) THAT THE FF"CER *H F"+ED THE "!F R,AT" ! HAD ! A#TH R"T& T D S $

(# )ho has the authority to file the case* +# 9rosecutor. o if it was the clerk who signed for the city prosecutor : e.-. ;y# <ent =lark 8 clerk typist6, the accused can move to quash because the clerk is not authori/ed. Remember, if the fiscal filed an information without the previous complaint signed by the victim or by the parents, the same can be quashed. CU4IA vs. COURT O; A66EA5S <anuary 1=$ 1>>? HE54# $+n infirmity in the information, such as lack of authority of the officer signing it, cannot be cured by silence, acquiescence, or even by e>press consent.& @TH 3ROUN41 (E) THAT "T D ES ! T C !F R, S#%STA!T"A++& T THE )RESCR"%ED F R,$

.ou know very well the form of complaint or information. .ou go back to Rule 11? 8 you state the time, the place, etc. then in Rule 11! a certification is required. The fiscal will certify that " have conducted the pre.iminar/ investi-ation, etc. that is the form. The fiscal will certify that the other party has given the chance to be heard. If the same was not afforded the accused, he can move to dismiss the case. (# %ow, what is your ground to quash* +# .ou say, $It does not comply with the prescribed form& because the correct form requires certification. It is a ground for a motion to quash. =TH 3ROUN41 (F) THAT , RE THA! !E FFE!SE "S CHARGED E0CE)T *HE! A S"!G+E )#!"SH,E!T F R (AR" #S FFE!SES "S )RESCR"%ED %& +A*$ This refers to a duplicitous complaint or information 8 when it charges more than one offense under Rule 11?, ection 1,. It is not allowed. -owever under Rule 1!?, ection , it is waivable. If the accused fails to ob"ect to it before trial, the court may convict him of as many offenses as are charged and proved, and impose on him the penalty for each offense, 7TH 3ROUN41 (G) THAT THE CR","!A+ ACT" ! (# -ow is criminal liability e>tinguished* R +"A%"+"T& HAS %EE! E0T"!G#"SHED

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+# @nder +rticle A1 of the R9=# 1.6 by death of the convict7 !.6 by service of sentence7 ,.6 by amnesty7 B.6 by absolute pardon7 2.6 by prescription of the crime7 6.6 by prescription of the penalty7 3C+D943# The information should be filed only within 2 years but the charge was filed on the Eth year. can move to quash because the liability has already been e>tinguished by prescription. o you

?TH 3ROUN41 (H) THAT "T C !TA"!S A(ER,E!TS *H"CH, "F TR#E, * #+D C !ST"T#TE A +EGA+ E0C#SE R '#ST"F"CAT" ! The complaint or information contains averments which if true would show that you are %0T liable. IT@+TI0%# The information says that there is a case of homicide because in such certain date Rose stabbed Rucel because Rucel tried to stab Rose first. The information is admitting that Rose acted in selfFdefense. 9rosecutor himself admits that Rose acted in selfFdefense. Therefore, the information admits the e>istence of a "ustifying circumstance. IT@+TI0%# .ou are charged for committing a crime and when you committed it, you are out of your mind. Thus, it admits insanity. o you can move to quash on the ground that the information admits that you are insane. That is what is meant by a complaint or information which contains averments which if true, constitute a legal e>cuse or "ustification. 0f course this is very rare Gnoh* )hy will the fiscal allege in the information something that is favorable to you* This is very queer. 0ne of the most interesting case here is the 111B case of 4AN3UI5ANABITU3 vs. COURT O; A66EA5S +0+ SCRA :=C D1>>:E ;ACTS# 5anguilan was a columnist in a newspaper and was charged for libel for writing in a column something which is discriminating. +ccording to her the information should be quashed because it was a privileged communication. HE54# %0, it cannot be quashed because of $paragraph HgI of ection , Rule 11E which states that the accused may move to quash the complaint or information where it contains averments which, if true, would constitute a legal e>cuse or "ustification. -ence, for the alleged privilege to be a ground for quashing the information, the same should have been averred in the information itself.& Deaning, the information should admit that it is privileged in nature. If it is not stated there, then it is not admitted. $The privilege should be ab"olute, not only qualified. )here, however, these circumstances are not alleged in the information, quashal is not proper as they should be raised and proved as defenses. )ith more reason is it true in the case of merely qualifiedly privileged communications because such cases remain actionable since the defamatory communication is simply presumed to be not malicious, thereby relieving the defendant of the burden of proving good intention and "ustifiable motive. The burden is on the prosecution to prove malice. Thus, even if the qualifiedly privileged nature of the communication is alleged in the information, it cannot be quashed especially where prosecution opposes the same so as not to deprive the latter of its day in court, but prosecution can only prove its case after trial on the merits.& >TH 3ROUN41 (") THAT THE ACC#SED HAS %EE! )RE(" #S+& C !("CTED R AC1#"TTED F THE FFE!SE CHARGED, R THE CASE AGA"!ST H", *AS D"S,"SSED R THER*"SE TER,"!ATED *"TH #T H"S E0)RESS C !SE!T.

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This is known as the defense against double "eopardy. The double "eopardy as a ground for a motion to quash is the most complicated ground. That is why it is thoroughly discussed in ection E. )e will go now to ection B. SEC. :. Amendment o2 comp.aint or in2ormation. If t!e motion to (ua"! i" ba"e& on an alle e& &efe%t of t!e %om#laint or information ,!i%! %an be %ure& by amen&ment$ t!e %ourt "!all or&er t!at an amen&ment be ma&e. ):a* If it i" ba"e& on t!e roun& t!at t!e fa%t" %!ar e& &o not %on"titute an offen"e$ t!e #ro"e%ution "!all be i'en by t!e %ourt an o##ortunity to %orre%t t!e &efe%t by amen&ment. T!e motion "!all be rante& if t!e #ro"e%ution fail" to ma.e t!e amen&ment$ or t!e %om#laint or information "till "uffer" from t!e "ame &efe%t &e"#ite t!e amen&ment. )n* +ctually, some of the grounds of a motion to quash are harmless, they are not fatal. They can be cured by amendments. The second paragraph of ection B is new. It was merely inserted to complement the first paragraph. 3C+D943# Dotion to quash that the information does not comply with the prescribed form because taking of oath was forgotten. I do not think the court will order for the dismissal of the criminal case because of that. It will instead issue an order directing the fiscal to amend, 3Ta4e the oath, so it 5i.. 6e cured.7 This is a ground for quashal which is not a serious defect but only a formal defect. Thus, instead of quashing the information the court may e>tend the right to the fiscal to amend the complaint or information since the name is curable. -owever under the second paragraph, despite the lapse of so many days, the prosecutor did not file the amended information or even if he filed the corrected information, pero ganun pa rin, the defect is still there, I will rather move to quash the information. )e will take up ection 2 together with ection 6. SEC. @. E22ect o2 sustainin- the motion to quash. If t!e motion to (ua"! i" "u"taine&$ t!e %ourt may or&er t!at anot!er %om#laint or information be file& e-%e#t a" #ro'i&e& in "e%tion = of t!i" rule. If t!e or&er i" ma&e$ t!e a%%u"e&$ if in %u"to&y$ "!all not be &i"%!ar e& unle"" a&mitte& to bail. If no or&er i" ma&e or if !a'in been ma&e$ no ne, information i" file& ,it!in t!e time "#e%ifie& in t!e or&er or ,it!in "u%! furt!er time a" t!e %ourt may allo, for oo& %au"e$ t!e a%%u"e&$ if in %u"to&y$ "!all be &i"%!ar e& unle"" !e i" al"o in %u"to&y of anot!er %!ar e. )@a* SEC. =. rder sustainin- the motion to quash not a 6ar to another prosecution$ e8ception. An or&er "u"tainin t!e motion to (ua"! i" not a bar to anot!er #ro"e%ution for t!e "ame offen"e unle"" t!e motion ,a" ba"e& on t!e roun&" "#e%ifie& in "e%tion 0 ) * an& )i* of t!i" Rule. )=a* IT@+TI0%# +n information is filed against you and it is not in the prescribed form. (# )hat would the court do* +# ;ased on ection B, the court will, instead of quashing , allow the fiscal to amend. +nd your motion is already moot and academic. ;ut suppose the court will quash the information because it was filed by somebody who was not authori/ed to file and the motion to quash is sustained, it does not mean to say that the case cannot be reF filed since the defects are incurable. IT@+TI0%# The case of homicide is filed in the DT= when actually it should be filed in the RT=. ince the DT= has no "urisdiction, you file a motion to quash. +nd the "udge shall quash it. (# )hat would the fiscal do* +# Tomorrow he will reFfile it. o when the case is dismissed on such a ground 8 lack of "urisdiction or it does not conform with the prescribed form 8 the rule is it is not a bar to reFfile the case. It can be filed again. 3C=39T when the ground for dismissal is falling under paragraphs HgI and HiI of ection ,, Rule 11E. (# )hat is paragraph HgI*

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+# 3That the crimina. action or .ia6i.it/ has 6een e8tin-uished.7 If the case is quashed on this ground, that is the end since the same is e>tinguished already. .ou cannot reFfile it anymore. (# )hat is paragraph HiI* +# 3that the accused has 6een previous./ convicted or acquitted o2 the o22ense char-ed, or the case a-ainst him 5as dismissed or other5ise terminated 5ithout his e8press consent.7 o you cannot reFfile the information because of double "eopardy. +s a general rule, all other grounds for motion to quash even if granted will not really be a total victory for the accused. That is why some lawyers will never bother to file a motion to quash anymore. This is because once you file it, the same case would be reFfiled. +s a matter of fact, there are cases when it is not advisable to file a motion to quash unless there is a serious reason. It is a matter of "udgment. If you think it will not benefit your client, then do not file it. 4ike in preliminary investigation some lawyers will not submit to criminal investigation most especially if they believe the fiscal will file because of probable cause. ;etter if I will not file so that you will not know who are my witnesses or statements. +s a matter of fact that happened already. There was a case wherein the information stated that the accused issued five :26 checks, with different dates, all are postFdated. +ll five checks bounced. o, a complaint against the accused was filed before the fiscal. )hat the fiscal did was to file one case for estafa reciting there that the accused issued five checks of five different dates with different maturities, and all bounced. o it turned out that the information is duplicitous because every check should have been one case. .ou know what the lawyer for the accused did* -e filed a motion to quash stating that the information charges more than one case of estafa. The lawyer was correct, so the "udge dismissed the information. The following day, the fiscal filed 2 informations. 0ne case for every check. In effect there are five warrants of arrest already. Then the accused asked his lawyer, $+tty, what happened* ;efore I have only one case. %ow, there are already fiveJ& (# If you are the lawyer, how will you e>plain that* +# +ctually, legally you are correct. +n information should charge only once crime. ;ut since it charges five crimes so you move to quash which is a valid ground. ;ut look at the effect 8 the accused now has five warrants. =an you say, it is because of a duplicitous information* -e cannot understand that. That is why there is difference in "ust knowing the law from knowing how to apply the law. .ou should know the law and you should know how to use it. If it is not in you interest, do not use it. )hy move to quash when by doing so would worsen your situation. 0f course, there are also instances where there is a need to ob"ect by virtue of a duplicitous information. (# )hen do you apply it* +# That is for the lawyer to "udge. )ill you use it or not* In other words, there is a need for you to have a clear picture of the situation. .ou must not only know the Rules of =ourt but also when the law must be used. +n e>ample is a motion to quash. -ow to apply it. -owever, when a case is quashed on the ground that the criminal liability has been e>tinguished or the accused is placed in double "eopardy, once it is quashed, that is the end. It cannot be reFfiled. SEC. 7. Former conviction or acquitta.$ dou6.e 9eopard/. F!en an a%%u"e& !a" been %on'i%te& or a%(uitte&$ or t!e %a"e a ain"t !im &i"mi""e& or ot!er,i"e terminate& ,it!out !i" e-#re"" %on"ent by a %ourt of %om#etent /uri"&i%tion$ u#on a 'ali& %om#laint or information or ot!er formal %!ar e "uffi%ient in form an& "ub"tan%e to "u"tain a %on'i%tion an& after t!e a%%u"e& !a& #lea&e& to t!e %!ar e$ t!e %on'i%tion or a%(uittal of t!e a%%u"e& or t!e &i"mi""al of t!e %a"e "!all be a bar to anot!er #ro"e%ution for t!e offen"e %!ar e&$ or for any attem#t to %ommit t!e "ame or fru"tration t!ereof$ or for any offen"e ,!i%! ne%e""arily in%lu&e" or i" ne%e""arily in%lu&e& in t!e offen"e %!ar e& in t!e former %om#laint or information. Ho,e'er$ t!e %on'i%tion of t!e a%%u"e& "!all not be a bar to anot!er #ro"e%ution for an offen"e ,!i%! ne%e""arily in%lu&e" t!e offen"e %!ar e& in t!e former %om#laint or information un&er any of t!e follo,in in"tan%e"1

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)a* t!e ra'er offen"e &e'elo#e& &ue to "u#er'enin omi""ion %on"titutin t!e former %!ar e2

fa%t" ari"in

from t!e "ame a%t or

)b* t!e fa%t" %on"titutin t!e ra'er %!ar e be%ame .no,n or ,ere &i"%o'ere& only after a #lea ,a" entere& in t!e former %om#laint or information2 or )%* t!e #lea of uilty to t!e le""er offen"e ,a" ma&e ,it!out t!e %on"ent of t!e #ro"e%utor an& of t!e offen&e& #arty e-%e#t a" #ro'i&e& in "e%tion 1)f* of Rule 11=. In any of t!e fore oin %a"e"$ ,!ere t!e a%%u"e& "ati"fie" or "er'e" in ,!ole or in #art t!e /u& ment$ !e "!all be %re&ite& ,it! t!e "ame in t!e e'ent of %on'i%tion for t!e ra'er offen"e. )7a* 0ne important ground for a motion to quash is ection E on double "eopardy which is also found in the =onstitution 8 ection !1, +rticle , on the ;ill of Rights. (# 5efine "eopardy* +# Jeopardy is the peril in which a person is put when he is regularly charged with a crime before a tribunal properly organized and competent to try him. :=ommonwealth vs. Kit/patrick, 1 4R+ B216 Deaning, if a case is filed against you before a court which is competent to try you, then from that moment, there is a risk, danger or peril. 3verytime there is peril, there is "eopardy. +nd after what happened to you, whether you are acquitted or convicted or the case was dismissed without your consent, later on ibalik ka naman in the second time around, ah hindi puwede yan. It is inhuman to put you in "eopardy twice. 4etLs go to the =onstitution. @nder +rticle ,, ection !1, there are two :!6 sentences# 1.6 $%o person shall be twice put in "eopardy of punishment for the same offense.& a nd !.6 $If an act is punished by a law or ordinance, conviction or acquittal in either shall constitute a bar to another prosecution for the same act.& The 2irst sentence is what you call protection against double "eopardy of punishment for the same o22ense. The second sentence is what you call the protection against double "eopardy for the punishment of the same act. o there is double "eopardy for the same offense and double "eopardy for the same act. The second sentence is not the same o22ense, but it is the same act. The second sentence says that the act is punished by a law passed by =ongress and it is also punished for e>ample, by an ordinance passed by the =ity or Dunicipal =ouncil. o it is a crime under the municipal or city ordinance and also under the national law. It is not the same crime because it is punished by two laws, so there must be two crimes. -owever the sentence says, that if you are acquitted or prosecuted under the national law, you cannot anymore be acquitted or convicted under the city or municipal ordinance all over again or viceFversa. .ou are protected for the same act not for the same offense. %ow, the best illustrative case comparing the first and the second sentences is the 11AE case of 930943 vs. R340;+, in2ra where 'ustice Keliciano traced the history of double "eopardy staring from the 11,2 =onstitution. 6EO65E vs. RE5OBA 1BA =R+ !1! K+=T # The accused installed an electrical connection without permit. -e was charged with theft under the R9= 8 theft of electricity. +nd it so happened that in that place, there was an ordinance passed by the municipal council making it a crime for you to make an electrical connection without permit. o he was charged both for violation of the R9= and the municipal ordinance. The accused filed a motion to quash the second information, stating that he has already been charged for theft of electricity. The

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prosecution contended that the first charge was theft under the R9= and the prosecution is charging him not for theft but for illegal electrical connection under the municipal ordinance. ISSUE G1# )hat is the reason why there are ! rules in the provision on double "eopardy* HE541 $If the second sentence of the double "eopardy provision had not been written into the =onstitution, conviction or acquittal under a municipal ordinance would never constitute a bar to another prosecution for the same act under a national statute. +n offense penali/ed 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 ruleFmaking authorities M though one be subordinate to the other M and the plea of double "eopardy would never be. The discussions during the 11,BF11,2 =onstitutional =onvention show that the second sentence was inserted precisely for the purpose of e>tending the constitutional protection against double "eopardy to a situation which would not otherwise be covered by the first sentence.& ISSUE G+# )as there double "eopardy* HE541 The purpose of installing illegal connection is to steal electricity, which is also theft. In other words, it is the same act of installing which is punishable. ince you are acquitted or convicted under the national law, you cannot be prosecuted under a municipal law. .ou are protected by the second sentence of double "eopardy in the =onstitution# $If an act is punished by a law or ordinance, conviction or acquittal in either shall constitute a bar to another prosecution for the same act.& -owever, ection E is not concerned with the second sentence but with the first sentence 8 the protection against double "eopardy from being punished for the same offense. This is similar to res ad9udicata. The = e>plained the rational behind the double "eopardy rule in the case of MA55ARI vs. 6EO65E 16A =R+ B!! HE54# $The rule against double "eopardy protects the accused not against the peril of second punishment but against being tried for the same offense. )ithout the safeguard this rule establishes in favor of the accused, his fortune, safety and peace of mind would be entirely at the mercy of the complaining witness who might repeat his accusation as often as it is dismissed by the court and whenever he might see fit, sub"ect to no other limitation or restriction than his will and pleasure. The accused would never be free from the cruel and constant menace of a never ending charge, which the malice of a complaining witness might hold indefinitely suspended over his head.& 4etLs go to the double "eopardy rule. (# ;ar (uestion# )hat are the requisites of double "eopardy* +# The = tried to compressed that ! paragraphs :of ection E6 in only , sentences in the case of 6EO65E vs. 8OCAR :1,A =R+ 1666 reiterated in 6AN3AN vs. 6EO65E :122 =R+ B26 HE54# To raise the defense of double "eopardy, three :,6 requisites must be present# 1.6 The first "eopardy must have been attached prior to the second7 !.6 The first "eopardy must be validly terminated7 and ,.6 The second "eopardy must be for the same offense as that of the first. )ell, this is my advice, for purposes of answering the question on double "eopardy and in order to understand completely the double "eopardy rule, let us analy/e ection E by dividing it into three :,6 parts# +.6 )-+T +R3 T-3 R3(@I IT3 0K 50@;43 '309+R5. I% 0R53R T0 +TT+=-* ;.6 I% )-+T I% T+%=3 and D+. T-3 +==@ 35 I%N0<3 T-3 9R0T3=TI0% 0K 50@;43 '309+R5.*

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=.6 + @DI%O T-+T +44 T-3 R3(@I IT3 0K 50@;43 '309+R5., T-3 +==@ 35 I +O+I% T KR0D )-+T 0KK3% 3* In effect, ection E talks of those three. 4etLs start with the first one#

9R0T3=T35

A.* FHAT ARE THE REQUISITES O; 4OU85E <EO6AR49 IN OR4ER TO ATTACHH (# )hen does the first "eopardy attach* +# It attaches when the following requisites are present# 1. The former complaint or information is valid7 !. It was filed in a court of competent "urisdiction7 ,. The accused had been arraigned under said complaint or information7 and B. The accused had pleaded to the same. THE F R,ER C ,)+A"!T R "!F R,AT" ! "S (A+"D

(# )hen is a complaint or information valid within the meaning of the double "eopardy rule* +# The requisites are# 1. if it charges an offense7 :9eople vs. +ustria, 1B 9hil. A1E6 !. if it is filed by a person or officer legally authori/ed to do so. :9eople vs. <ho, 1E 9hil. A!26 =+ 3# +n information was filed against Dr. +celar for theft. Dr. +celar moved to quash on the ground that the information does not charge any offense. The court agreed and the information was quashed. o, the fiscal corrected the information and reFfiled it. Dr. +celar moved to quash on the ground of double "eopardy. Is there double "eopardy* +# There is no double "eopardy for the following reasons# 1. The dismissal of the first information was on motion of the accused. Therefore, it was a dismissal with his e>press consent. 5iyan palang, tumba ka naJ !. The accused moved to quash the first information on the ground that it did not charge an offense. Therefore, it was not a valid information. o, the accused was never in "eopardy. :9eople vs. Reyes, 1A 9hil. 6B66 "T "S F"+ED "! A C #RT F C ,)ETE!T '#R"SD"CT" !

=+ 3# + case of homicide is filed in the DT=7 that will be dismissed in DT= for lack of "urisdiction. ;ut that can be cured if the fiscal will file the information of homicide in the RT=. Is there double "eopardy* +# %one. The accused was never in "eopardy because the first information was filed before the wrong court. There was no danger of being convicted based on the case filed. :9eople vs. alico, AB 9hil. E!!6 8.* ASSUMIN3 THAT THE REQUISITES O; 4OU85E <EO6AR49 ARE 6RESENT$ IN FHAT INSTANCES MA9 THE ACCUSE4 INBOIE THE 6ROTECTION O; 4OU85E <EO6AR49H (# In what instances may the accused invoke the protection of double "eopardy* +# In the following# 1.6 when the accused had been previously convicted7 !.6 when the accused had been previously acquitted7 and ,.6 when the case against the accused had been dismissed or otherwise terminated without his e>press consent. 4etLs go to a decided case# The fiscal filed a case against you for homicide alleging that on a certain day you killed 'uan dela =ru/. )hile the case is pending, the fiscal filed a second information for the same homicide committed on the same day by the same accused. o you are now facing two charges for the same homicide. =an you move to quash the second information on the ground of double "eopardy*

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In so many cases, like in the case of %usca/no vs. ,i.atar/ Commission , the = said %0, because you have not been acquitted or convicted. The first case was not validly terminated kay pending pa man. In civil case, that is .itis pendencia. %ow, if the case is already decided, convicted or acquitted, or dismissal without his e>press consent, then there can now be double "eopardy. In civil case that is res ad9udicata. -owever in the case of )eop.e vs. Cit/ Court o2 ,ani.a :1!1 =R+ 6!E6, the = made a pronouncement that mere pendency of a criminal case against the accused can be invoke as a ground for double "eopardy. o, which is which* The issue has been resolved in the 111, case of 6EO65E vs. 6INE4A +1> SCRA 1 HE541 JThe mere filing of two :!6 informations charging the same offense is not an appropriate basis for the invocation of double "eopardy since the first "eopardy has not yet set in by a previous conviction, acquittal or termination of the case without the consent of the accused.& $The ambiguity stirred by the imprecise observation in )eop.e vs. Cit/ Court o2 ,ani.a , a 11A, case, can now he considered modified in that a prior conviction, or acquittal, or termination of the case without the e>press acquiescence of the accused is still required before the first "eopardy can be pleaded to abate a second prosecution.& %ow, the law says that you have been convicted or acquitted, or a case against you have been dismissed without you e>press consent. That is what you mean by 3the 2irst 9eopard/ has a.read/ 6een terminated.7 ;ut take note that this is not a key for the prosecutors to file several the same cases against the accused. The law only provides that you cannot raise the defense of double "eopardy in this situation. ;ut you can question the acts of the prosecution to his superior or you may file an in"unction case citing the case of %roc4a vs. Enri.e. ;ut definitely you cannot use double "eopardy as defense. (# )hat is the difference between acquitta. and dismissa. of the case* +# Oenerally, dismissa. is not on the merits. ;ut there are dismissa.s which are classified as acquittal, like demurrer to evidence, or dismissa. because of the violation of the right of the accused to speedy trial. In the same manner, for double "eopardy to attach, the law says, the case must have been dismissed without your e>press consent. o, as a general rule, when the accused himself files a motion to dismiss, he cannot invoke double "eopardy because he himself intended the dismissal of his case7 it is with his e>press consent. D"S,"SSA+ *"TH #T THE E0)RESS C !SE!T F THE ACC#SED

)e will e>plore the first issue# )hether or not the dismissal is with the e>press consent of the accused. 0ne of the interesting cases interpreting the meaning of the phrase is the 111, case of 6EO65E vs. BER3ARA ++1 SCRA >=C ;ACTS# Nergara was accused of frustrated murder for allegedly conspiring with some people. )hile the case is pending, the accused asked the provincial prosecutor for a reinvestigation of the case. The request was granted. +fter reinvestigation, the prosecutor made a finding that there was no crime because the accused acted in selfFdefense. Therefore, the prosecutor moved for the dismissal of the case in court. The trial court granted the motion for dismissal of the case for frustrated murder. -owever, when the fiscal made a finding that there was no probable cause, in the meantime naman, the complainant appealed such finding to the ecretary of 'ustice. The recommendation of the prosecutor was disapproved. abi ng 50', $%o, there is a case here. 9rovincial prosecutor, iFreF file mo.& o, there was another information for frustrated murder filed against the same accused. This time, the accused pleaded 5ouble 'eopardy. ;akit* +ccording to the accused#

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ACC#SED: $The cases were dismissed upon motion of the prosecutor7 I was not the one who filed the motion. o, when the case was dismissed, it was dismissed without my e>press consent.& C ,)+A"!A!T: $%o, why did you ask for reinvestigation* 5i ba, the purpose is that it will lead to the dismissal of the case* o, when you filed a motion for reinvestigation, in effect, you are seeking a dismissal with your e>press consent.& ACC#SED: $%oJ 3>press consent is different from intention. )hen I filed a motion for reinvestigation, my intention was to let the case be dismissed, but I did not give my e>press consent. )hile I may have intended to let the case be dismissed upon moving for reinvestigation, I never give my e>press consent for the dismissal of the case. It was the prosecutor himself who did it.& ISSUE1 Is there double "eopardy* HE54# .3 , there is double "eopardy. )hen you say e8press consent, the consent must be categorical, clear. .ou cannot infer that by simply asking for reinvestigation. .ou cannot infer that there is e>press consent7 that is not within the concept. $E8press consent has been defined as that which is directly given either viva voce or in writing. It is a positive, direct, unequivocal consent requiring no inference or implication to supply its meaning. This is hardly what the accused gave. )hat they did was merely to move for reinvestigation of the case before the prosecutor. To equate this with e>press consent of the accused to the dismissal of the case in the lower court is to strain the meaning of Ge>press consentL too far. imply, there was no e>press consent of the accused when the prosecutor moved for the dismissal of the original Informations.& There was a second issue in the case of (ERGARA based on the rule on motion. In general, when you file a motion, you must furnish a copy of the motion to the adverse party because, generally, motions cannot be filed e8;parte unless the motion is nonFcontroversial. Therefore, when the prosecution filed a motion to dismiss e8; parte Hwithout furnishing the parties a copy of the motionI. 6EO65E vs. BER3ARA$ supra ISSUE# Is there a necessity to furnish the parties a copy of the motion to dismiss* HE54# %0. It is not necessary. Is there a necessity to furnish the accused a copy of the motion to dismiss* 5o you think the accused will oppose the motion* 0f course not because it is favorable to him. 5efinitely, the accused will not question the filing of the motion to dismiss the criminal case. +s to the complainant, is there a necessity for the prosecutor to furnish a copy of the motion to dismiss the criminal case to the private offended party* Remember, every criminal case is under the direction and control of the prosecutor. If we will allow the general rule, if the victim will question the dismissal, he will be having control and no longer the prosecutor. The prosecutor determines whether there is a case or none. Therefore, there is also no necessity of furnishing to the private offended party a copy of the motion to dismiss. )hat should be the remedy of the private offended party* ;ecause the offended party is aggrieved, imagine nawala ang kaso niyaJ The remedy, when the court ordered the dismissal of the case, is to appeal the order of dismissal because it is also adverse to their claim for civil liability. Instead, they allowed the order of dismissal to become final and, now, they are arguing that the order of dismissal is void. They should have appealed it. 0ne last point. +ccording to the law, if a case is dismissed without your e>press consent, that could be a basis for double "eopardy. -0)3N3R, "urisprudence says, an order dismissing a case will %0T constitute double "eopardy if the order of dismissal is %@44 and N0I5. Deaning, an order of dismissal of a case will constitute double "eopardy on the assumption that the order of dismissal was a valid order of dismissal. (# )hat is the usua. reason why an order of dismissal is void*

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+# The usual reason is when the prosecution was deprived of due process. That has been e>emplified in many cases. 0ne of the cases is enator +quino et al. %aFacquit man yan sila ba. These people were already acquitted by the andiganbayan. -ow come nabalik ang kaso* 0n the theory that everything was preFarranged including the acquittal. The = said, the acquittal of the case is null and void because the prosecution was deprived of due process in the sense that no matter what it does, the acquittal of the accused was already preF ordained. o there is no double "eopardy. That has been applied in many cases like in the case of 6EO65E vs. MO3O5 101 SCRA +>= ;ACTS# The accused was charged with physical in"uries. +fter trial in the DT=, the court discovered that it should not have been physical in"uries, rather it should have been frustrated murder because there was intent to kill eh. The DT= dismissed the case of physical in"uries and told the fiscal to file information for frustrated murder dahil mali ang fiFnile mo. The accused claimed that he was charged for the same act. Thus, he moved for the dismissal of the frustrated murder case. ISSUE# Is there double "eopardy* HE54# %0%3. There was no double "eopardy because the order of the trial court dismissing the physical in"ury case is wrong. It was a void order because what the "udge should have done is to continue trying the case even if there was an error in the offense charged. o, if the accused would be convicted, it is for physical in"uries. In other words, you cannot order dismissal and then reFfile the case for frustrated murder. ;ecause the order dismissal is void, there is no double "eopardy. -owever, there was one dissenting "ustice in the case of %o-o. 8 former 'ustice Dakasiar. -e said that $there is double "eopardy as the case had already been tried and submitted for decision where the DT= "udge ordered the physical in"ury to be dismissed and ordered the filing of a new case for frustrated murder in the RT=. Krustrated murder includes physical in"uries. Therefore, dismissal of the latter resulted in double "eopardy.& If you look at it, talagang tama siya :Dakasiar, '.6 eh 8 all the elements are there. ;ut the trouble is, sabi ng =, the order of dismissal is void, there was no valid dismissal 8 ibalikJ The charge for physical in"ury was reinstated. +nother instance, the 111! case of 3ORREON vs. RTC O; CE8U +10 SCRA 10? ;ACTS# The case was set for preFtrial for ! days : eptember !E and !A6. 0n the first day of the trial, the offended party was there pero wala ang accused. The court said, $)e will have to cancel the hearing for today and tomorrow on the presumption that maybe they did not receive the notice.& The trouble is the following day, paglabas ng court calendar, nandoon pa rin ang kaso 8 it was supposed to be cancelled. This time, ang accused naman ang sumipot, ang offended party wala. 0f course, why would the offended party be there, eh, naFcancel na. ince the accused was present for trial, but the prosecution was not ready because wala ang testigo niya, the court dismissed the case for failure of the complainant to appear and to testify. H)ell, the court and the prosecution should have remembered that the hearing is already cancelled.I o, when the complainant learned about it, nagreklamo, $I was not supposed to be there anymore, naFcancel naman.& They looked at it, nagkamali talaga7 everybody reali/ed this error. ISSUE# Is there double "eopardy if the action will be filed again* HE54# %0%3. $The erroneous dismissal order was issued capriciously and arbitrarily7 it unquestionably deprived the tate of a fair opportunity to present and prove its case. Thus, its right to due process was violated. The said order is null and void and hence, cannot be pleaded to bar a reF

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opening of the case on the ground of double "eopardy. =onsequently, the first "eopardy was not terminated and no second "eopardy threatened the accused.& $The 'udge, =lerk of =ourt and the prosecution should shoulder the blame because unless amnesia suddenly struck all of them simultaneously, it cannot be imagined that in a brief span of about twentyFfour :!B6 hours, they had all forgotten about the order dictated in open court cancelling the hearing for eptember !E and !A, 111?. HThe order of cancellation was given the day before, and the following day nobody remembered about it.I Kor the prosecutor who orally moved for such cancellation and the 'udge himself who dictated the said order, no plausible e>planation may be offered for such lapse.& That is a demonstration of the rule that when the order of dismissal is null and void, you cannot plead double "eopardy. +nd the last part# C.* ASSUMIN3 THAT A55 THE REQUISITES O; 4OU85E <EO6AR49$ ARE 6RESENT$ THE ACCUSE4 IS 6ROTECTE4 A3AINST ;ROM FHAT O;;ENSEH +ssuming the accused has already been convicted, acquitted or the case is dismissed without his e>press consent, and all the requisites of double "eopardy are present, the accused cannot be convicted for# 1. for the same offense7 or !. for an attempt to commit the same offense. HIf you are convicted or acquitted for a consummated offense, you cannot be charged or convicted or acquitted for the lesser stage7I or ,. for frustration or attempt thereof7 HThe acquittal, conviction or dismissal of the consummated crimes carries automatically the frustrated or attempted stage of the same crime.I or B. for any other offense which necessarily includes or is necessarily included in the offense charged in the former complaint. %E"!G )R SEC#TED F R THE SA,E FFE!SE

)hat is troublesome here is 6ein- prosecuted 2or the same o22ense . This has been the sub"ect of so many decided cases, whether it is the same offense or not. (# )hile in a public place, Daya fired a machine gun, thereby causing panic and physical in"uries to certain persons. he was charged with serious physical in"uries through reckless imprudence for firing the gun in public. ubsequently, she was charged with serious public disturbance in a public place. Is there double "eopardy* +. %0%3. )hile there was only a single act, two distinct offenses resulted therefrom namely# :16 physical in"uries which is a crime against persons, and :!6 public disturbance which is a crime against public peace and order. :9eople vs. ;acolod, A1 9hil. 6!16 (# +ccused was caught fishing with e>plosives. -e was first prosecuted for illegal fishing and subsequently, for illegal possession of e>plosives. Is there 50@;43 '309+R5.* +# %0%3. These are two :!6 distinct offenses, the same being punished by two different laws. There is a law for illegal fishing and another for illegal possession of e>plosives. :9eople vs. Tinamisan, 4F B?A1, 'anuary !1, 112!6 (# + complaint for adultery was filed against Diriam and =holo covering the period from the year 11B6 to Darch 1B, 11BE. 9leading guilty, the two were accordingly sentenced. 0n eptember 1E, 11BA, a second complaint for adultery was filed against Diriam and =holo covering the period of Darch 12, 11BE to the date of the filing of the second complaint. The two moved to quash the second complaint on the ground of double "eopardy. Is there double "eopardy* +# %0%3. +dultery is a crime of result and not of tendency7 it is an instantaneous crime which is consummated at the moment of the carnal union. 3ach se>ual intercourse constitutes a crime of adultery, so that there may be as many complaints for adultery as there are adulterous acts committed. It is only one relationship but every carnal act is one crime. :9eople vs. Papata, AA 9hil. 6AA6

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(# +n accused stole a revolver, tinago niya. It turned out to be unlicensed. -e was first prosecuted for theft of firearm and he was convicted. -e was subsequently prosecuted for illegal possession of firearm. Is there double "eopardy* +# %0%3. The offenses are different. Theft is consummated upon the taking, while illegal possession involves not only the taking but also the possession and intent to use the firearm. :9eople vs. Remerata, 1A 9hil. B1,6 (# The accused, without a license, drove his "eep recklessly such that it turned turtle resulting into the death of four of its passengers. 9rosecuted for multiple homicide through reckless imprudence7 he was convicted. ubsequently, he was prosecuted for driving without a license under the 4and Transportation 4aw. Is there 50@;43 '309+R5.* +# %0%3. The two offenses are distinct# one is punished by the 9enal =ode and the other by special law. :9eople vs. Ouanco, A, 9hil. 6,16 (# The accused married twice and lived with the second woman as husband and wife for quite some time. 9rosecuted for bigamy, he was convicted. ubsequently, he was prosecuted for concubinage. Is there 50@;43 '309+R5.* +# %0%3. The two offenses are distinct. In bigamy, marriage is an essential element. .ou can only commit bigamy if you are married and you marry another. ;ut in concubinage, marriage is not an essential element 8 mere living together as husband and wife is sufficient. :9eople vs. chneckenburger, E! 9hil. B1,6 If you are a married man and you live as husband and wife with another woman, that is concubinage even if you will not marry her. 6ERE7 vs. COURT O; A66EA5S 1=? SCRA +0= ;ACTS# +ccused was charged with consented abduction. -e was acquitted. The court said that it was qualified seduction pala, and not consented abduction. o, another complaint for seduction was filed against the accused. The accused pleaded double "eopardy. Is there double "eopardy* HE54# %0%3. +lthough they may have arisen from the same set of facts, Hand they are both crimes against chastityI they are not identical offenses as would make applicable the rule on double "eopardy. There are similar elements between =onsented +bduction and (ualified eduction, namely# :16 that the offended party is a virgin, and, :!6 that she must be over twelve :1!6 and under eighteen :1A6 years of age. -owever, two elements differentiate the two crimes. =onsented +bduction, in addition to the two common elements, requires that# :16 the taking away of the offended party must be with her consent, after solicitation or ca"olery from the offender, and, :!6 the taking away of the offended party must be with lewd designs. 0n the other hand, an information for (ualified eduction also requires that# :16 the crime be committed by abuse of authority, confidence or relationship, and, :!6 the offender has se>ual intercourse with the woman Hwhich is not required in abductionI. NIERRA vs. 4ACU9CU9 1?1 SCRA 1 ;ACTS# + check bounced. Two cases were filed# :16 3stafa, under +rticle ,12, R9=, and :!6 ;9 !!. Is there 50@;43 '309+R5.* HE54# %0%3. The two crimes are distinct. )hile, in filing of the two sets of information may refer to identical acts, the prosecution cannot be limited to one offense because a single criminal act may give rise to a multiplicity of offenses with different elements. )rosecution 2or the same act is not prohibited. )hat is forbidden is prosecution 2or the same o22ense. -owever under the =onstitution, if the same act is punished by a nationa. .a5 and an ordinance, iba na yanJ =onviction or acquittal in either one will constitute double "eopardy 8 that is the e>ception. ;ut, if you are violating two national laws, e.-. ;9 !! and 3stafa, then there is no double "eopardy. Those are e>amples of %0 double "eopardy.

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-0)3N3R, there are cases where the crimes are not identical but double "eopardy can be applied. The best e>ample is de.ito continuado because the = said the protection against double "eopardy may be e>tended to a case of a single criminal act impelled by a single criminal intent, resulting into two or more "uridically identical offenses. 1: Oive e>amples of the rule mentioned above. A: The following# 1. Dr. =adungog stole two :!6 fighting cocks in the same place. -e was prosecuted for stealing one cock. -e cannot be prosecuted anymore for stealing the other cock. +lthough there are two acts of taking but there is only one criminal intent 8 that is where double "eopardy will arise. :9eople vs. 5e 4eon67 !. + person was charged with illegal importation of blasting caps 8 a device for preparing e>plosives 8 cannot be subsequently prosecuted for illegal possession of the same, for there can hardly be importation without possession. :9eople vs. 3lkanish, 1? 9hil. 2,67 ,. + person charged with reckless driving under the 4T0 4aw cannot be subsequently charged with damage to property through reckless imprudence because reckless driving is the essential element of both offenses. :9eople vs. 5ia/, 1B 9hil. E1B7 9eople vs. ;elga, 1?? 9hil. 11667 B. + person convicted of illegal possession of opium cannot be subsequently prosecuted for illegal possession of opium pipe found together with the opium. :@. . vs. 9ho =hi, !? 9hil. 1?B67 2. 9ossession of two or more unlicensed firearms in one place constitutes but one offense so that conviction for illegal possession of one firearm is a bar to a subsequent prosecution for possession of the other or others. :@. . vs. Oustilo, 11 9hil. !?A6 MA55ARI vs. 6EO65E 1=? SCRA :++ ;ACTS# The accused wanted to mortgage two :!6 lots to the victims, let us say for 9,,???, at 91,2?? each. abi ng victim, $<ulang man ang kwarta ko. I will only lend you 91,2??, good for one lot lang. .ou ask my motherFinFlaw baka may pera siya.& Deron man din. o hinati 8 the other lot was mortgaged to the motherFinFlaw of the victim for 91,2??. It turned out that all those deed of mortgage were falsified. Two cases were filed against the accused because there were two victims. ISSUE# Is there double "eopardy* HE54# .3 . There is only one crime committed. There is only one intent to defraud. It is "ust accidental that the intended victim only got oneFhalf. There is a similar crime consisting of a series of acts, but all arising from one criminal resolution. ENRI5E vs. AMIN Se#tember 10$ 1>>C ;ACTS# 3nrile was charged for rebellion during the coup dL etat during the time of 9resident +quino for conspiring with -onasan. 5uring the highlight of the coup attempt, nandun si -onasan sa birthday party ni 3nrile. )hile the case for rebellion was pending, another case was file against him under 95 %o. 1A!1 for harboring or concealing fugitives. The prosecution contended that harboring, concealing a fugitive is punishable under a special law, while rebellion is punishable under the 9enal =ode. HE54# The prosecution is wrong. In the light of the a6sorption doctrine, the prosecution must fail. +ll crimes which are mere components of rebellion or are committed in furtherance thereof are absorbed in rebellion. $The theory of absorption in rebellion cases must not confine itself to common crimes but also to offenses under special laws which are perpetrated in furtherance of the political

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offense.& +nd yet, the two crimes are punishable by two different statutes. Technically, they are not the same offense and yet one absorbs the other because when you are in conspiracy with the rebels, necessarily you harbor each other. .ou cannot be e>pected to be a traitor to each other. o, how can you separate one crime from the others* +lright. +nd both of them were among the senators 8 -onasan and 3nrile. %ow, we will go to the third senator 8 Diriam antiago. SANTIA3O vs. 3ARCHITORENA ++? SCRA +1: ;ACTS# Diriam antiago was charged criminally with violation of +ntiFOraft and =orrupt 9ractices +ct allegedly committed by her by favoring unqualified aliens when she was still the Immigration =ommissioner. 4ater, the prosecution sought to change the charge by filing thirtyFtwo :,!6 amended information since ,! aliens were benefited. o, ,! cases were filed. HE54# The prosecution is directed to consolidate the ,! informations into 1 information charging only 1 offense. $The concept of de.ito continuado, although an outcrop of the panish 9enal =ode, has been applied to crimes penali/ed under special laws citing +rticle 1? of the R9=. The ,! +mended Informations aver that the offenses were committed on the same period of time, i.e., on or about 0ctober 1E, 11AA. The strong probability even e>ists that the approval of the application for the legali/ation of the stay of the ,! aliens was done by a single stroke of the pen, as when the approval was embodied in the same document.& F R A!& THER FFE!SE *H"CH !ECESSAR"+& "!C+#DES R "S !ECESSAR"+& "!C+#DED "! THE FFE!SE CHARGED "! THE F R,ER C ,)+A"!T

Thus, a charge of Durder, double "eopardy for -omicide7 a charge for -omicide, double "eopardy for murder. 3ither one eh, baliktaranJ ;asta one offense is included in the other. Robbery includes theft7 serious physical in"uries includes less serious physical in"uries and slight physical in"uries. :9eople vs. Dartine/, 22 9hil. 67 9eople vs. ;elga, 1?? 9hil. 1166 amaFsama lahat Gyan. That is covered by the protection against double "eopardy. <aya nga in the pleaFbargaining, when the accused pleads guilty to a lesser offense included in the crime charged with consent of the prosecution and the offended party, there is double "eopardy already. .ou cannot be charged anymore for a lighter offense. That is covered by double "eopardy rule. 6EO65E vs. RE5OBA$ supra HE54# $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. 0therwise, 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 "ustified by said act or omission by simply adding or subtracting essential elements. @nder 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.&

EKCE6TIONS TO THE 4OU85E <EO6AR49 RU5E (# )hat are the e>ceptions to the double "eopardy rule* +# There are three :,6 e>ceptions, under ection E# 1. the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge7 : ection E HaI6

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the facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information7 : ection E HbI6 or ,. the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party e>cept as provided in section 1:f6 of Rule 116. : ection EHcI6 THE GRA(ER FFE!SE DE(E+ )ED D#E T S#)ER(E!"!G FACTS AR"S"!G FR , THE SA,E ACT R ,"SS" ! C !ST"T#T"!G THE F R,ER CHARGE

This is also known as the supervenin- 2act doctrine, also known as the ,e.o 5octrine because this rule was laid down in the case of Delo vs. 9eople, B2 9hil. E66. EKAM65E1 Dort/ stabbed <im. <im was confined in the hospital. Dort/ was charged with frustrated homicide. -e pleaded guilty. +fter ! days, <im died. o the fiscal amended the information to consumated homicide. Dort/ pleaded guilty double "eopardy. @nder the ,e.o doctrine, there is no double "eopardy because of the supervening fact of death of the victim arising from the same act or omission constituting the former charge 8 the graver offense developed due to the supervening fact. The reasoning in ,e.o is that, when the accused was charged with frustrated homicide, the crime of consummated homicide was not yet in e>istence because the victim is still alive. o the crime of consummated homicide started to come out after the arraignment. Therefore, the information can be changed to consummated homicide. THE FACTS C !ST"T#T"!G THE GRA(ER CHARGE %ECA,E <! *! R *ERE D"SC (ERED AFTER A )+EA *AS E!TERED "! THE F R,ER C ,)+A"!T R "!F R,AT" ! !+&

%ow, the ,e.o doctrine had one flaw which the = observed in other cases. Kor e>ample we will change the facts# Dort/ shot <im. <im was confined in the hospital. Dort/ was charged with frustrated homicide. 4etLs say Dort/ will be arraigned tomorrow, but tonight <im died. The following morning, nobody knew about it. o the arraignment continued and Dort/ pleaded guilty to frustrated homicide. +fter Dort/ was sentenced to frustrated homicide, that is the time the prosecutor learned that <im died. -e now wants to change to consummated homicide. =an he change the information* The = said, no more. The ,e.o doctrine does not apply there because you cannot say that the death of the victim supervenes after the arraignment 8 even before the arraignment, the victim was already dead. The crime of consummated homicide was already in e>istence. Dort/ could have been charged already when he was arraigned. $9ero hindi man namin alam*& +h pasensya, that is your risk. o that is where the ,e.o doctrine cannot apply. This creates unfairness eh. There were cases where that really happens. 4ike in one case where the accused was charged with physical in"uries in the arm of the victim. 4ess serious physical in"uries, because the doctor said it would heal in two weeks. -e was charged, pleaded guilty, sentenced to less serious physical in"uries 8 arresto ma/or. Then after one month, wala pa man naayo, the in"ury was still there. The victim went to the doctor. IniF>Fray, bali pala ang butoJ Deaning, the crime all along was serious. The trouble is, the fracture was not detected by the doctor. o they sought to change the charge to serous physical in"uries. The = said, %0, the fracture did not supervene after the arraignment. It was there all along. 0nly, it was discovered after. .ou cannot change the information because double "eopardy applies. )hat is worse is the case of )E )+E (S. C"T& C #RT F ,A!"+A, where the victim was charged with physical in"uries through reckless imprudence and then arraigned kaagad ang accused. .on pala, patay na ang victim. The fiscal move to postpone the arraignment to verify the status of the victim. -345# +h walang postponementJ TuloyJ o it was really unfair. It is not covered by the ,e.o 5octrine. .ou cannot say tha the greater in"ury came after. It was already there all along. 0nly it was discovered after the plea.

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%O+.0%, para wala ng gulo meron ng paragraph HbI# Jt!e fa%t" %on"titutin t!e ra'er %!ar e be%ame .no,n or ,ere &i"%o'ere& only after a #lea ,a" entere& in t!e former %om#laint or information2L o even if the graver offense was already e>isting before the arraignment but it became known only after the plea, there is no more double "eopardy. This amendment created another e>ception not covered by the ,e.o doctrine. THE )+EA F G#"+T& T THE +ESSER FFE!SE *AS ,ADE *"TH #T THE C !SE!T F THE )R SEC#T R A!D F THE FFE!DED )ART& E0CE)T AS )R ("DED "! SECT" ! =(F) F R#+E ==>. .ou know this 8 pleaFbargaining, plea of guilty to a lesser offense 8 it must be wit the consent of the prosecutor and the offended party. +nd remember, once there is a pleaFbargaining, you cannot be charged anymore for the graver offense e>cept as provided in ection 1 HfI, Rule 116 8 when during the pleaFbargaining the offended party will not show up, in which case, the consent of the prosecutor alone is required. This is a provision which compels the offended party to appear in the pleaFbargaining. 0therwise, the accused may offer to plea guilty to a lesser offense and the prosecutor will say, $0<& 8 you are bound because you did not appear. (# ;ut suppose Dort/ has already started serving his sentence for frustrated homicide* +# There is no problem because under the last paragraph of ection E, $In any of the foregoing cases, where the accused satisfies or serves in whole or in part the "udgment, he shall be credited with the same in the event of conviction for the graver offense.& SEC. ?. )rovisiona. dismissa.. A %a"e "!all not be #ro'i"ionally &i"mi""e& e-%e#t ,it! t!e e-#re"" %on"ent of t!e a%%u"e& an& ,it! noti%e to t!e offen&e& #arty. T!e #ro'i"ional &i"mi""al of offen"e" #uni"!able by im#ri"onment not e-%ee&in "i)=* year" or a fine of any amount$ or bot!$ "!all be%ome #ermanent one )1* year after i""uan%e of t!e or&er ,it!out t!e %a"e !a'in been re'i'e&. Fit! re"#e%t to offen"e" #uni"!able by im#ri"onment of more t!an "i- )=* year"$ t!eir #ro'i"ional &i"mi""al "!all be%ome #ermanent t,o )+* year" after i""uan%e of t!e or&er ,it!out t!e %a"e !a'in been re'i'e&. )n* ection A is an entirely new provision. The concept of provisional dismissal means there is no double "eopardy 8 the case is temporarily dismissed. o obviously the element of double "eopardy are not around. o, there is a way for the case to be revived in the future. The 11A2 rules has no direct provision governing provisional dismissal. The guidelines are not clear. .ou can reFfile because there is no double "eopardy. The problem is, can that be case be reFfiled 2 years after* (# @nder the new rules there is now a deadline. The case is provisionally dismissed, up to when* +# MTC cases 8 within one :16 year to revive. RTC cases 8 within two :!6 years to revive. +fter 1 or ! years, as the case maybe, the provisional dismissal becomes permanent. o meron ng deadline so that the prosecutor or the offended party will not buy his time, 3ah provisiona.? )u5ede /an an/time?7 ;efore kasi noon, ganun eh. o there must be a deadline. SEC. >. Fai.ure to move to quash or to a..e-e an/ -round there2ore . T!e failure of t!e a%%u"e& to a""ert any roun& of a motion to (ua"! before !e #lea&" to t!e %om#laint or information$ eit!er be%au"e !e &i& not file a motion to (ua"! or faile& to alle e t!e "ame in "ai& motion$ "!all be &eeme& a ,ai'er of any ob/e%tion" e-%e#t t!o"e ba"e& on t!e roun&" #ro'i&e& for in #ara ra#!" )a*$ )b*$ ) *$ an& )i* of "e%tion 0 of t!i" Rule. )?a* (# )hat is the effect if the person does not file any motion to quash*

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+# -e is )+INI%O the grounds for the motion to quash, 3C=39T# 1. lack of "urisdiction over the sub"ect matter7 : ection , HaI6 !. the information does not charge any offense7 : ection , HbI6 ,. the criminal liability has already been e>tinguished7 : ection , HgI6 B. double "eopardy. : ection , HiI6 Deaning, even if you did not raised it in the beginning, you can still raised it during the trial. The rule is similar to civil procedure 8 defenses and ob"ections not raised in a motion to dismiss are deemed waived, e8cept 1.6 lack of "urisdiction over the sub"ect matter7 !.6 res ad"udicata7 ,.6 litis pendentia7 B.6 statute of limitations.

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