Section 21, Article III Bill of Rights
DOUBLE JEOPARDY
PEOPLE VS OBSANIA
Facts:
Erlinda Dollente, the 14-year old victim, and her parents, filed a
complaint for rape with robbery alleging that:
At around 2:00 to 3:00 in the afternoon 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 above mentioned place while
she was alone on her way to barrio San Raymundo."
assistant provincial fiscal filed an information for rape against
the accused , with an additional averment that the offense was
committed "with lewd designs".
The accused pleaded not guilty upon arraignment, and forthwith
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.
Issue:
JLM/ConstiDigests
Does the present appeal place the accused in double jeopardy?
Held:
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 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, 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 his right to plead double jeopardy
and/or he is estopped 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
In essence, this Court held that where a criminal case is dismissed
provisionally not only with the express consent of the accused but
Section 21, Article III Bill of Rights
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 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 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." (underscoring supplied)
Considering the factual setting in the case at bar, it is clear that there
is no parallelism between Cloribel and the cases 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
JLM/ConstiDigests
dismissal amounted to an acquittal because the failure to pro-
secute 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 estop-
pel 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.
Notes:
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.
WAIVER OF DOUBLE JEOPARDY; DISMISSAL WITH
EXPRESS CONSENT OFDEFENDANT CONSTITUTES
WAIVER. When the case is dismissed with the express consent
Section 21, Article III Bill of Rights
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.
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.
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.
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.
JLM/ConstiDigests
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.
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.
Section 21, Article III Bill of Rights
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.
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.
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.
JLM/ConstiDigests
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.
PAULIN VS. GIMENEZ
Facts:
Petition before us arose from an incident when the jeep ridden by
private respondent and Barangay Captain Mabuyo was overtaken
by the Nissan Patrol ridden by herein petitioners, smothering the
former with dust. (bastusan)
Later, while Mabuyo was investigating some problems of his
constituents, petitioners allegedly pointed their guns at Mabuyo.
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 a complaint for "grave threats," against the
petitioners.
The court dismissed Criminal Case against the petitioners.
Mabuyo filed a, "Motion for Reconsideration," of the said
dismissal order which the court granted
Petitioners vigorously sought the setting aside of the resolution
insisting that the decision of the Municipal Trial Court (MTC) is
an acquittal since it was issued after it had allegedly considered
Section 21, Article III Bill of Rights
the merits of the prosecution's evidence, but the same was
denied.
Not satisfied, petitioners filed a petition for "certiorari,
prohibition, damages, with relief for preliminary injunction and
the issuance of a temporary restraining order" with the RTC
presided over by respondent Judge Gimenez, who dismissed the
petition.
Still not contented, petitioners have now resorted to the instant
petition.
Issue:
Whether or not the municipal trial court's dismissal of Criminal Case
against petitioners precludes a subsequent reconsideration or reversal
of such dismissal as the same would violate petitioners' right against
double jeopardy.
Held:
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.
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.
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
JLM/ConstiDigests
the case upon petitioners' motion, the prosecution still had to present
several witnesses.
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.
WHEREFORE, the petition is DISMISSED and the decision of the
Regional Trial Court dated December 19, 1991 AFFIRMED.SO
ORDERED.
Notes:
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.
Section 21, Article III Bill of Rights
ICASIANO VS. SANDIGANBAYAN
Facts:
Romana Magbago filed an administrative complaint with the
Supreme Court against then acting Municipal Trial Court Judge,
herein petitioner for grave abuse of authority, manifest partiality
and incompetence.
The administrative complaint arose from two (2) orders of
detention issued by the said judge against complainant for
contempt of court because of her continued refusal to comply
with a fifth alias writ of execution.
After evaluating the allegations of the complaint, Supreme Court
dismissed the administrative complaint for lack of merit.
Meanwhile, complainant also filed with the Office of the
Ombudsman the same letter complaint earlier filed with the
Supreme Court; this time, she claimed violation by Judge
Icasiano of the Anti-Graft and Corrupt Practices Act (R.A. 3019,
sec. 3 par. [e]).
Special Prosecutor Evelyn Almogela-Baliton recommended
dismissal of the complaint for lack of merit. Which was
thereafter approved.
Tanodbayan received another complaint from the same
complainant. The exact date of filing of the second complaint is
not stated but the records of the case were allegedly among those
transmitted to the then newly created office of the Ombudsman;
unfortunately, the transmitted records did not contain the earlier
resolution of dismissal
Petitioner then moved to quash the information on ground that
the accused shall be placed in double jeopardy.
Sandiganbayan held that itcannot serve as basis for the defense
of double jeopardy because MTJ-87-81 remains an
JLM/ConstiDigests
administrative case and the instant proceeding is criminal. One is
not a bar to the other.
A motion for reconsideration was likewise denied; hence the
present petition
Issue:
Whether the resolution of the administrative proceeding in the
Supreme Court bars the subsequent filing of a criminal case against
the accused in the Sandiganbayan.
Held:
After a closer look at the records of the case, the Court is of the view
that the distinction between administrative and criminal proceedings
must be upheld, and that a prosecution in one is not a bar to the
other.
It is, therefore, correct for the Sandiganbayan to hold that double
jeopardy does not apply in the present controversy because the
Supreme Court case (against the herein petitioner) was
administrative in character while the Sandiganbayan case also
against said petitioner is criminal in nature.
When the Supreme Court acts on complaints against judges or any of
the personnel under its supervision and control, it acts as personnel
administrator, imposing discipline and not as a court judging
justiciable controversies. Substantial evidence is sufficient to sustain
conviction. Criminal proceedings before the Sandiganbayan, on the
other hand, while they may involve the same acts subject of the
administrative case, require proof of guilt beyond reasonable doubt.
Section 21, Article III Bill of Rights

To avail of the protection against double jeopardy, it is fundamental It is precisely for this reason among others, that the administrative
that the following requisites must have obtained in the original case against petitioner was dismissed by the Supreme Court for lack
prosecution: of merit

(a) a valid complaint or information; In any case, the dismissal by the Tanodbayan of the first complaint
cannot bar the present prosecution, since double jeopardy does not
(b) a competent court; apply a preliminary investigation is not a trial to which double
(c) a valid arraignment; jeopardy attaches.

(d) the defendant had pleaded to the charge; and WHEREFORE, the petition is DENIED.

(e) the defendant was acquitted, or convicted, or the case

against him was dismissed or otherwise terminated without PEOPLE VS. BALISACAN
his express consent.
Facts:
All these elements do not apply vis-a-vis the administrative case,
which should take care of petitioner's contention that said This is an appeal by the prosecution from a decision of acquittal.
administrative case against him before the Supreme Court, which Balisacan was charged with homicide in the Court of First
was, as aforestated, dismissed, entitles him to raise the defense of Instance of Ilocos Norte. nformation alleged:
double jeopardy in the criminal case in the Sandiganbayan Herein accused, with intent to kill, did then and there
willfully, unlawfully and feloniously attack, assault and stab
The charge against petitioner Judge Icasiano before the one, Leonicio Bulaoat, inflicting upon the latter wounds that
Sandiganbayan is for grave abuse of authority, manifest partiality immediately caused his death.
and incompetence in having issued two (2) orders of detention
To this charge the accused, upon being arraigned, entered a plea
against complaining witness Magbago. Ordinarily, complainant's
of guilty. At his de oficio counsel's petition, however, he was
available remedy was to appeal said orders of detention in
allowed to present evidence to prove mitigating circumstances.
accordance with the Rules. It is only when an appellate court
Accused testified to the effect that he stabbed the deceased in
reverses the lower court issuing the questioned orders can abuse,
self-defense, because the latter was strangling him. And he
partiality or incompetence be imputed to the judge. Here no appeal
further stated that after the incident he surrendered himself
from the questioned orders of the issuing judge (petitioner Icasiano)
voluntarily to the police authorities.
was taken: instead, administrative and criminal cases were filed
against the judge for issuing the orders.

JLM/ConstiDigests
Section 21, Article III Bill of Rights
Subsequently, 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.
Issue:
(1) Whether or not the trial court erred in acquitting the accused of
the offense charged despite the latters plea of guilty when arraigned.
(2) whether this appeal placed the accused in double jeopardy
Held:
(1) 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.
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 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.
(2) It is settled that the existence of a plea is an essential requisite to
double jeopardy.
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
JLM/ConstiDigests
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.
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 prerequisite 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
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.
PEOPLE VS. CITY COURT OF SILAY
Facts:
This is a Petition for Review filed by the City Fiscal of Silay
City, praying that an order of the City Court of Silay, issued by
Judge Alon, dismissing Criminal Case entitled "People vs.
Ernesto de la Paz, et al.," be set aside and that respondent court
be directed to continue with the trial of the aforementioned case.
Section 21, Article III Bill of Rights
The record shows that private respondents herein, Ernesto de la
Paz were charged with "falsification by private individuals and
use of falsified document" under Par. 2, Article 172 of the
Revised Penal Code, alleged to have been committed as follows:
Accused Ernesto de la Paz and the other three accused,
with intent of gain and to cause damage by conniving,
cooperating and mutually helping one another did then and
there wilfully, unlawfully and feloniously alter or falsify the
sugar cane weight report card or 'tarjeta', a private
document showing the weight of sugarcane by increasing the
total actual weight of 22.005 tons to 27.160 tons for said
three cane cars, thereby causing damage to the central and
other cane planters damage and prejudice of Hawaiian
Central and other sugarcane planters
After the prosecution had presented its evidence and rested its
case, private respondents moved to dismiss the charge against
them on the ground that the evidence presented was not
sufficient to establish their guilt beyond reasonable
doubt. Acting on this motion, respondent court issued its order
dismissing the case with costs de oficio principally on the ground
that the acts committed by the accused as narrated above do not
constitute the crime of falsification as charged.
In their comment on this Petition, private respondents claim that
to grant the present petition would place said respondents in
double jeopardy.
On the other hand, the People asserts that the plea of double
jeopardy is not tenable inasmuch as the case was dismissed upon
motion of the accused, and the dismissal having been made with
their consent, they waived their defense of double jeopardy.
Issue:
JLM/ConstiDigests
Whether or not the plea of double jeopardy is not available in the
case at bar.
Held:
We disagree with the position taken by the Acting Solicitor General
Hugo E. Gutierrez, Jr. that the plea of double jeopardy is not
available in the instant situation.
It is true that the criminal case of falsification was dismissed on
motion of the accused; however, this was a motion filed after the
prosecution had rested its case, calling for an appreciation of the
evidence adduced and its sufficiency to warrant conviction beyond
reasonable doubt, resulting in a dismissal of the case on the merits,
tantamount to an acquittal of the accused.
In the case of the herein respondents, however, the dismissal of the
charge against them was one on the merits of the case which is to be
distinguished from other dismissals at the instance of the
accused. All the elements of double jeopardy are here present, to
wit:
(1) a valid information sufficient in form and substance to
sustain a conviction of the crime charged,
(2) a court of competent jurisdiction, and
(3) an unconditional dismissal of the complaint after the
prosecution had rested its case, amounting to the acquittal of
the accused. The dismissal being one on the merits, the
doctrine of waiver of the accused to a plea of double
jeopardy cannot be invoked.
Section 21, Article III Bill of Rights
It is clear to us that the dismissal of the criminal case against the
private respondents was erroneous.
The act of making a false entry in the "tarjeta" is undoubtedly an act
of falsification of a private document, the accused having made
untruthful statements in a narration of facts which they were under
obligation to accomplish as part of their duties
However erroneous the order of respondent Court is, and although a
miscarriage of justice resulted from said order, such error cannot
now be righted because of the timely plea of double jeopardy.
IN VIEW OF THE FOREGOING , We are constrained to DISMISS
this Petition of the People.
ESMEA VS. POGOY
Facts:
Petitioners were charged with grave coercion 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 for arraignment and trial. Upon the
telegraphic request of Father Tibudan, the case was reset.
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. No trial was
held after the arraignment because complainant Father Tibudan
requested the transfer of the hearing to another date.
JLM/ConstiDigests
In the meantime, the fiscal lost his record of the case. So, the
hearing scheduled was cancelled. Respondent judge issued an
order setting the trial "for the last time
When the case was called on that date, fiscal informed the court
that complainant Father Tibudan was sick. The counsel for
petitioners opposed the cancellation of the hearing. They
invoked the right of the accused to have a speedy trial.
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. Court noted that there was no
medical certificate indicating that the complainant was really
sick.
Twenty-seven days later, 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. Respondent judge granted it.
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 court denied the motion to dismiss.
Issue:
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.
Section 21, Article III Bill of Rights
Held:
Yes. 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.
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
JLM/ConstiDigests
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.
WHEREFORE, the order of respondent judge reviving the criminal
case against the petitioners, and his order denying petitioners' motion
to dismiss, are reversed and set aside.
PEOPLE VS. TAMPAL
Facts:
In an Information, TAMPAL et. al., were charged before the
Regional Trial Court of Zamboanga del Norte (Branch XI) with
the crime of "Robbery with Homicide and Multiple Physical
Serious Injuries
Upon arraignment, the private respondents pleaded not guilty to
the offense charged. The case was set for hearing however,
Assistant Provincial Prosecutor moved for postponement on the
ground that he failed to contact his material witnesses.
The case was called on September 20, 1991 but the prosecutor
was not present. The respondent judge considered the absence
of the prosecutor as unjustified, and dismissed the criminal case
for failure to prosecute.
The prosecution moved for a reconsideration of the order of
dismissal claiming, inter alia, that the Provincial Prosecutor's
Office was closed on said date. It was alleged that September 20
is a legal holiday for Muslims, the same being the birthday of
Section 21, Article III Bill of Rights
Prophet Mohammad SAW. Despite the explanation, the motion
for reconsideration was denied by the respondent judge
respondent judge justifies the dismissal of Criminal Case on the
rights of the accused to speedy trial and against double jeopardy.
Issue:
Whether or not the order of the judge dismissing the case amounts to
an acquittal as would bar the reinstatement of the case by reason of
double jeopardy.
Held:
It is apparent that the public prosecutor's failure to attend the
September 20, 1991 hearing was due to his good faith and belief that
said date was a Muslim Legal Holiday. To be sure, the prosecutor
could not be faulted for not working on that day since the Provincial
Prosecutor's Office was closed pursuant to the aforequoted
memorandum circular (re: Request for Recognition of Muslim
Holidays in areas outside the Autonomous Regions).
What offends the right of the accused to speedy trial
are unjustified postponements which prolong trial for an
unreasonable length of time.
The facts in field in no way indicate that the prosecution of private
respondents had been unjustly delayed by the prosecution, hence, the
respondent judge should have given the prosecution a fair
opportunity to prosecute its case. The settled rule is that the right to
speedy trial allows reasonable continuance so as not to deprive the
prosecution of its day in court.
Private respondents cannot also invoke their right against double
jeopardy. The three (3) requisites of double jeopardy are:
JLM/ConstiDigests
(1) a first jeopardy must have attached prior to the second,
(2) the first jeopardy must have been validly terminated, and
(3) a second jeopardy must be for the same offense as that in
the first.
Legal jeopardy attaches only:
(1) upon a valid indictment,
(2) before a competent court,
(3) after arraignment
(4) when a valid plea has been entered, and
(5) when the defendant was acquitted or convicted, or the
case was dismissed or otherwise terminated without the
express consent of the accused.
It is true that in an unbroken line of cases, we have held that
dismissal of cases on the ground of failure to prosecute is equivalent
to an acquittal that would bar further prosecution of the accused for
the same offense. It must be stressed, however, that these dismissals
were predicated on the clear right of the accused to speedy
trial. These cases are not applicable to the petition at bench
considering that the right of the private respondents to speedy trial
has not been violated by the State. For this reason, private
respondents cannot invoke their right against double jeopardy.
IN VIEW WHEREOF, the instant petition for certiorari is
GRANTED. respondent judge's September 20, 1901 Order of
dismissal are ANNULLED AND SET ASIDE. The case is remanded
to the court of origin for further proceedings.
Section 21, Article III Bill of Rights
MELO VS. PEOPLE
Facts:
Petitioner Melo was charged with frustrated homicide, for having
allegedly inflicted upon Benjamin Obillo, with a kitchen knife and
with intent to kill, several serious wounds on different parts of the
body, requiring medical attendance for a period of more than 30
days, and incapacitating him from performing his habitual labor for
the same period of time. On December 29, 1949, at eight o'clock in
the morning, the accused pleaded not guilty to the offense
charged, and at 10:15in the evening of the same day Benjamin Obillo
died from his wounds.
An amended information was filed charging the accused with
consummated homicide.
The accused filed a motion to quash the amended information
alleging double jeopardy, motion that was denied by the respondent
court;
hence, the instant petition for prohibition to enjoin the respondent
court from further entertaining the amended information.
Issue:
Whether the second information, filed after the death of the victim,
violates the accuseds right against double jeopardy
Held:
Brushing aside technicalities of procedure and going into the
substance of the issues raised, it may readily be stated that the
JLM/ConstiDigests
amended information was rightly allowed to stand. Rule 106, sec.13,
2d paragraph:
"If it appears at any time before judgment that a mistake has
been made in charging the proper offense, the court may
dismiss the original complaint or information and order the
filing of a new one charging the proper offense, provided the
defendant would not be placed thereby in double jeopardy
Under this provision, it was proper for the Court to dismiss the first
information and order the filing of a new one for the reason that the
proper offense was not charged in the former and the latter did not
place the accused in a second jeopardy for the same or identical
offense.
It must be noticed that the protection of the Constitutional inhibition
is against a second jeopardy for the same offense, the only exception
being, as stated in the same Constitution, that "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." The
phrase same offense, under the general rule, has always been
construed to mean not only that the second offense charged is exactly
the same as the one alleged in the first information, but also that the
two offenses are identical. There is identity between the two offenses
when the evidence to support a conviction for one offense would be
sufficient to warrant a conviction for the other. This so-called "same-
evidence test" which was found to be vague and deficient, was
restated by the Rules of Court in a clearer and more accurate form.
Under said Rules there is identity between two offenses not only
when the second offense is exactly the same as the first, but also
when the second offense is an attempt to commit the first or a
frustration thereof, or when it necessarily includes or is necessarily
Included in the offense charged in the first information.
Section 21, Article III Bill of Rights

In this connection, an offense may be said to necessarily include
another when some of the essential ingredients of the former as
alleged in the information constitute the latter. And vice-versa, an
offense may be said to be necessarily included in another when all
the ingredients of the former constitute a part of the elements
constituting the latter. (Rule 116, sec. 5). In other words, one who
has been charged with an offense cannot be again charged with the
same or identical offense though the latter be lesser or greater than
the former.
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 person dies, the
charge for homicide against the same accused does not put him twice
in jeopardy.
Stating it in another form, the rule is that "where after the first
prosecution a new fact supervenes for which the defendant is
responsible, which changes the character of the offense and, together
with the facts existing at the time, constitutes a new and distinct
offense"
Accordingly, an offense may be said to necessarily include or to be
necessarily included in another offense, for the purpose of
determining the existence of double jeopardy, when both offenses
were in existence during the pendency of the first prosecution, for
otherwise, if the second offense was then inexistent, no Jeopardy
could attach therefor during the first prosecution, and consequently a
subsequent charge for the same cannot constitute second jeopardy.
By the very nature of things there can be no double jeopardy under
such circumstance, and our Rules of Court cannot be construed to
recognize the existence of a condition where such condition in reality
does not exist.
For all the foregoing, the petition is denied, and the respondent Court
may proceed to the trial of the criminal case under the amended
information.
Notes:
"No person shall be twice put in jeopardy of punishment for the same
offense," according to Art. III, section 1 (20) of our Constitution. The
rule of "double jeopardy" had a settled meaning in this jurisdiction at
the time our Constitution was promulgated. It meant that when a
person is charged with an offense and the case is terminated either by
acquittal or conviction or in any other manner without the consent of
the accused, the latter cannot again be charged with the same or
identical offense. This principle is founded upon the law of reason,
justice and conscience.
Dissenting Opinion:
BENGZON, J.
I agree that People vs. Tarok and People vs. Villasis should be
overruled. But I submit that the effect of such overruling should be
prospective, in the sense that it should not affect the herein petitioner
who has relied thereon in presenting his case.

JLM/ConstiDigests
Section 21, Article III Bill of Rights
PEOPLE VS. ADIL
Facts:
This is a petition for certiorari to set aside the orders of
respondent judge dismissing Criminal Case 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
The first criminal complaint was as follows:
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.
Arraigned, accused entered a plea of not guilty.
Meanwhile, complainant Viajar filed a letter-complaint with
serious physical injuries arising from the same incident alleged
in above Criminal Case but adding leaving a permanent scar
and deforming on the right face of said Miguel Viajar.
Fama Jr. filed an urgent motion to defer proceedings claiming
that since he was already charged and pleaded not guilty in the
first Criminal Case, he would be in double jeopardy, if the
second criminal case were to be prosecuted.
The Fiscal, sought the dismissal of the first criminal case, 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
JLM/ConstiDigests
the Fiscal in order to await the resolution of the issue of double
jeopardy the second case filed.
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. Respondent
court sustained the contention of double jeopardy and dismissing
the second criminal case.
Issue:
Whether or not the additional allegation of deformity in the
information in second criminal case constitutes a supervening
element which should take this case out of the rule of identity
resulting in double jeopardy.
Held:
In brief, what happened here was that when Case No. 3335 was filed
in the inferior court he 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 Viajar, would require
medical attendance from 5 to 9 days only "barring
complications." Indeed, 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.
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
Section 21, Article III Bill of Rights
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 afterconviction the injured dies, the charge of
homicide against the same accused does not put him twice in
jeopardy."
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.
PEOPLE VS. RELOVA
Facts:
People of the Philippines seek to set aside the orders of the
respondent Judge 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.
Members of the Batangas City Police equipped with a search
warrant, 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" These
electric devices and contraptions were "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."
JLM/ConstiDigests
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".
Accused pleaded not guilty. 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.
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
Fourteen (14) days later, 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.
Before he could be arraigned thereon, Manuel Opulencia filed a
Motion to Quash, 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.
respondent Judge granted the accused's Motion to Quash and
ordered the case dismissed.
Section 21, Article III Bill of Rights
Issue:
whether the dismissal of the first case can be properly pleaded by the
accused in the motion to quash.
Held:
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 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 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 notnecessarily included in the offense charged in the
first information".
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
JLM/ConstiDigests
or acquittal under either shall constitute a bar to another
prosecution for the same act."
The first sentence 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.
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.
If the second sentence of the double jeopardy provision had not been
written into the Constitution, conviction or acquittal under a
Section 21, Article III Bill of Rights
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 lie. 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.
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.
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 harrassment 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.
It remains to point out that the dismissal by the Batangas City Court
of the information for violation of the Batangas City Ordinance upon
JLM/ConstiDigests
the ground that such offense had already prescribed, amounts to an
acquittal of the accused of that offense
It is not without reluctance that we deny the people's petition
for certiorari and mandamus in this case.
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.
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.
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.