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E. MOTION TO QUASH THE COMPLAINT OR INFORMATION
(Rule 117)
*SECTION 1. Time to move to quash. At any time before
entering his plea, the accused may move to quash the
complaint or information. (1)
*Motion necessary except if ground is lack of jurisdiction over
the subject matter
People v. Nitafan, 302 SCRA 424
Issue:
May the judge quash an information without any
motion from the accused?
Held:
No. It is clear from Sec. 1,2,3 and 9 of Rule 117 of the
Rules of Court that the right to file a motion to quash belongs
only to the accused. There is nothing in the rules which authorizes
the court or judge to motu proprio initiate a motion to quash if
no such motion was filed by the accused. A motion
contemplates an initial action originating from the accused. It is
the latter who is in the best position to know on what ground/s
he will base his objection to the information. Otherwise, if the
judge initiates the motion to quash, then he is not only pre-
judging the case of the prosecution but also takes side with the
accused.
*2. Motion to quash after arraignment on any of the following
grounds: 1. lack of jurisdiction over the subject matter; 2. failure
to charge an offense; 3. extinction of offense or penalty; and 4.
double jeopardy
Marcos v. Sandiganbayan, 326 SCRA 473
Issue:
May an accused file a motion to quash after his
arraignment?
Held:
Yes. Under Rule 117, Sec. 9, of the Rules of Court, a
motion to quash is not improper even after arraignment accused
had been arraigned if the same is grounded on failure to charge
an offense and lack of jurisdiction of the offense charged,
extinction of the offense or penalty and double jeopardy.
Motion to quash not allowed under the Rules on Summary
Procedure/Exception
*A motion to quash is generally not allowed in a summary
procedure except on the ground of *lack of jurisdiction over
the subject matter or failure to comply with the barangay
conciliation proceedings in Sec. 18 of the 1991 Rule on
Summary Procedure (Sec. 19, Rule on Summary Procedure)
When motion to quash is denied
Joel Galzote y Soriaga v. Jonathan Briones and People of the
Philippines, G.R. No. 164682, September 14, 2011.
In the usual course of procedure, a denial of a motion to quash
filed by the accused results in the continuation of the trial and
the determination of the guilt or innocence of the accused. If a
judgment of conviction is rendered and the lower courts
decision of conviction is appealed, the accused can then raise
the denial of his motion to quash not only as an error committed
by the trial court but as an added ground to overturn the latters
ruling.
In this case, the petitioner did not proceed to trial but opted to
immediately question the denial of his motion to quash via a
special civil action for certiorari under Rule 65 of the Rules of
Court. As a rule, the denial of a motion to quash is an
interlocutory order and is not appealable; an appeal from an
interlocutory order is not allowed under Section 1(b), Rule 41 of
the Rules of Court. Neither can it be a proper subject of a
petition for certiorari which can be used only in the absence of
an appeal or any other adequate, plain and speedy remedy.
The plain and speedy remedy upon denial of an interlocutory
order is to proceed to trial as stated above. A direct resort to a
special civil action for certiorari is an exception rather than the
general rule, and is a recourse that must be firmly grounded on
compelling reasons.
SEC. 2. Form and contents.
*Form and Contents of a Motion to Quash:
1. Form:
1. It must be in writing, and
2. It must be signed by the accused or his counsel
2. Contents:
*1. General Rule The motion shall distinctly specify its factual and legal grounds and the court will not
consider any ground not stated in the motion (Omnibus
motion rule)
2. Exception The only ground that the court may consider motu propio,
even if not raised in the motion, is lack of jurisdiction
over the offense
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charged
*1. Courts cannot consider facts contrary to those alleged in the
information except when ground is: 1. extinction of criminal
liability; or 2. prescription, or 3. double jeopardy
Milo v. Salanga, 152 SCRA 113
Issue:
May accused raise factual issues contrary to what
appear on the face of the information as ground for a motion to
quash?
Held:
No. Factual allegations can only be raised as a defense
at the trial as they traverse what is alleged in the information. In
resolving a motion to quash, courts cannot consider facts
contrary to those alleged in the information or which do not
appear on the face of the information. This is because a motion
to quash is a hypothetical admission of the facts alleged in the
information. Matters of defense cannot be proved during the
hearing of such a motion, except where the Rules expressly
permit, such as extinction of criminal liability, prescription, and
former jeopardy. A motion to quash on the ground that the facts
charged do not constitute an offense cannot allege new facts
which are not only different but also diametrically opposed to
those alleged in the complaint. This rule admits of only one
exception and that is when such facts are admitted by the
prosecution.
Exception to the rule
Garcia v. CA, 266 SCRA 678
Facts:
Accused filed a motion to quash the information for
bigamy against him on the ground of prescription. While the
information alleged that the offense was discovered in 1989,
accused claims that complainant discovered it actually in 1974
as shown by his testimony in a case before the Civil Service
Commission.
Issue:
May a motion to quash go beyond the allegations
found in the information?
Held:
Yes. Sec.2, Rule 117 of the Rules of Court provides that
the motion to quash shall specify distinctly the factual and legal
grounds therefor and the court shall consider no grounds other
than those stated therein, except lack of jurisdiction over the
offense charged. A motion to quash may be based on factual
and legal grounds, and since extinction of criminal liability and
double jeopardy are retained as among the grounds for a
motion to quash in Sec. 3, it necessarily follows that facts outside
the information itself may be introduced to prove such grounds.
In fact, inquiry into such facts may be allowed where the ground
invoked is that the allegations in the information do not
constitute the offense charged.
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,
at anytime before entering the plea, the accused may move to
quash the complaint or information.
Motion to quash an omnibus motion-
Take note that under Section 2, 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
jurisdiction over the offense charged, even if not raised in the
motion to quash. The theory is that: No amount of silence on the
party of the accused will grant the court jurisdiction over the
subject matter of the case. Jurisdiction over the subject matter
is conferred by law.
*SEC. 3. Grounds. The accused may move to quash
the complaint or information on any of the following
grounds:
(a) That the facts charged do not
constitute an offense;
(b) That the court trying the case has no
jurisdiction over the offense charged;
(c) That the court trying the case has no
jurisdiction over the person of the accused;
(d) That the officer who filed the
information had no authority to do so;
(e) That it does not conform substantially
to the prescribed form;
(f) That more than one offense is charged
except when a single punishment for various
offenses is prescribed by law;
(g) That the criminal action or liability has
been extinguished;
(h) That it contains averments which, if
true, would constitute a legal excuse or
justification; and
(i) That the accused has been previously
convicted or acquitted of the offense
charged, or the case against him was
dismissed or otherwise terminated without his
express consent. (3a)
*1. Exclusiveness of grounds enumerated
Execution of an affidavit of desistance or pardon is not a ground
for a motion to quash. It is not one of those enumerated (Cabico
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v. Dimaculangan-Querijero, 522 SCRA 300; Peoplev. Salazar, GR
No. 181900, Oct. 20,2010)
Matter of defense cannot be grounds for motion to quash;
present them at the trial.
In Antone v. Beronilla, G.R. No. 183824, December 8,
2010, Perez, J, in 1978, the parties got married, but in 1991, the
respondent contracted a subsequent marriage. The information
was filed in 2007. The information was filed in 2007. The accused
filed a Motion to Quash on the ground that the facts alleged do
not constitute an offense and submitted a decree declaring
their marriage void in 2007. He argued that since the marriage
has been declared void from the beginning, there was actually
no first marriage to speak of. Absent a first valid marriage, the
facts alleged in the information do not constitute bigamy. The
prosecution contended that he committed the act before the
declaration of nullity of their marriage. It likewise contended that
a MTQ is a hypothetical admission of the facts alleged in the
information and the facts contrary thereto are matters of
defense which may be raised during the trial.
In his MTQ, he relied on the case of Morigo v. People,
and the court quashed the information applying
Morigov.People, G.R. No. 145226, February 6, 2004, 422 SCRA 376
and ruled:
The first element of bigamy as a crime requires
that the accused must have been legally married. But in this
case, legally speaking, the petitioner was never married to Lucia
Barrete. Thus, there is no first marriage to speak of. Under the
principle of retroactivity of a marriage being declared void ab
initio, the two were never married from the beginning. xxx The existence and the validity of the first marriage being an essential
element of the crime of bigamy, it is but logical that a conviction
for said offense cannot be sustained where there is no first
marriage to speak of. xxx
The prosecution moved for reconsideration of the said
Order on the ground that the facts and the attending
circumstances in Morigoare not on all fours with the case at bar.
It likewise pointed out that, in Mercado v. Tan, G.R. No. 137110,
August 1, 2000, 337 SCRA 122, it was settled that (a) declaration of the absolute nullity of a marriage is now explicitly required
either as a cause of action or a ground for defense.
Is the quashal of the information valid? Why?
Held: No, because it contain all the elements of the crime of
Bigamy under Article 349 of the Revised Penal Code hereunder
enumerated:
(1) That the offender has been legally married;
(2) That the first marriage has not yet been legally
dissolved or, in case his or her spouse is absent, the
absent spouse could not yet be presumed dead
according to the Civil Code;
(3) That he contracts a second or subsequent
marriage; and
(4) That the second or subsequent marriage has all
the essential requisites for validity.
The documents showing that: (1) the court has decreed that the
marriage of petitioner and respondent is null and void from the
beginning; and (2) such judgment has already become final
and executor and duly registered with the Municipal Civil
Registrar of Naval, Biliran are pieces of evidence that seek to
establish a fact contrary to that alleged in the information that a first valid marriage was subsisting at the time the respondent
contracted a subsequent marriage. This should not have been
considered at all because cannot be raised in a motion to
quash.
There is no justifiable reason for sustaining the motion to
squash even after taking into consideration the established
exceptions to the rule earlier recognized by this Court, among
others: (1) when the new allegations are admitted by the
prosecution; (People v. Navarro, 75 Phil. 516 (1945)); (2) when the
Rules so permit, such as upon the grounds of extinction of
criminal liability and double jeopardy.
In People v. Mendoza and Morigo declaring that: (a) a
case for bigamy based on a void ab initio marriage will not
prosper because there is no need for a judicial decree to
establish that a void ab initio marriage is invalid; and (b) a
marriage declared void abinitio has retroactive legal effect
such that there would be no first valid marriage to speak of after
all, which renders the elements of bigamy incomplete, run
contrary to the new provision of the Family Code, a few years
before respondents subsequent marriage was celebrated in 1991.
The specific provision, which reads:
ART. 40. The absolute nullity of a previous
marriage may be invoked for purposes of remarriage on the
basis solely of a final judgment declaring such marriage void.
Was exclusively discussed in Mercado, where the Court settled
the conflicting jurisprudence on the end for a judicial declaration of nullity of the previous marriage. After establishing that Article 40 is a new provision expressly requiring a judicial
declaration of nullity of a prior marriage and examining a long
line of cases, the Court, concluded, in essence, that under the
Family Code a subsequent judicial declaration of the nullity of
the first marriage is immaterial in a bigamy case because, by
then, the crime had already consummated. Otherwise started,
the Court declared that a person, who contacts a subsequent
marriage absent a prior judicial declaration of nullity of a
previous one, is guilty of bigamy.
Notably, Morigo, was indeed promulgated years after
Mercado. The Order of the trial court which maintained that
Morigohas already superseded Mercadois not correct. In fact, in
Morigo, the Court clearly distinguished the two (2) cases form
one another, and explained:
The present case is analogous to, but must be
distinguished from Mercado v. Tan. In the latter case,
the judicial declaration of nullity of the first marriage
was likewise obtained after the second marriage was
already celebrated. xxx
To Mercado, the first marriage was actually
solemnized xxx. Ostensibly, at least the first marriage
appeared to have transpired, although later declared
void
abinitio.
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InMorigo, however, no marriage ceremony at
all was performed by a duly authorized solemnizing
officer. The parties merely signed a marriage contract
on their own. The mere private act of signing a
marriage contract bears no semblance to a valid
marriage for which petitioner might be held liable for
bigamy unless he first secures a judicial declaration of
nullity before he contracts a subsequent marriage.
(Note: How about the principle of putative marriage
and that the authority to solemnized is a mere formal
requisite.).
The application of Mercado to the cases following
Morigo even reinforces the position of the Court to give full
meaning to Article 40 of the Family Code. Thus, in 2004, the court
ruled in Tenebro v. Court of Appeals:
Although the judicial declaration of the nullity
of a marriage on the ground of psychological
incapacity retroacts to the date of the celebration of
the marriage insofar as the vinculumbetween the
spouses are concerned, xxx said marriage is not without
legal effects. Among these effects is that children
conceived or born before the judgment of absolute
nullity of the marriage shall be considered legitimate.
There is therefore a recognition writteninto law itselfthat
such a marriage, although void ab initio, may still
produce legal consequences. Among these legal
consequences is incurring criminal liability for bigamy.
xxx.
Finally, in Re: Complaint of Mrs. Corazon S. Salvador
against Spouses Noel and Amelia Serafica, (A.M. No. 2008-20-SC,
March 15, 2010), the Court pronounced:
In acatena of cases, the Court has consistently held
that a judicial declaration of nullity is required before a valid
subsequent marriage can be contracted; or else, what transpires
is a bigamous marriage, reprehensible and immoral. (Morigo v.
People, G.R. No. 145226, February 6, 2004, 422 SCRA 376;
Domingo v. Court of Appeals, G.R. No. 104818, September 17,
1993, 226 SCRA 572; Terre v. Terre, A.C. No. 2349, Ju;y 3, 1992, 211
SCRA 7; Wiegel v. Sempio-Diy, No. L-53703, August 19, 1986, 143
SCRA 499; Vda de Consuegra v. Government Service Insurance
System, No.L-28093, January 30, 1971, 37 SCRA 315; Gomez v.
Lipana, No. L-23214, June 30, 1970, 33 SCRA 614).
To conclude, the issue on the declaration of nullity of
the marriage between petitioner and respondent only after the
latter contracted the subsequent marriage is, therefore,
immaterial for the purpose of establishing that the facts alleged
in the information for Bigamy does not constitute an offense.
Following the same rationale, neither may such defense be
interposed by the respondent in his motion to quash by way of
exception to the established rule that facts contrary to the
allegations in the information are matters of defense which may
be raised only during the presentation of evidence.
Absence of preliminary investigation
Villaflor v. Vivar, 349 SCRA 194
Issue:
Is the absence of a preliminary investigation a ground
for a motion to quash?
Held:
No. The absence of a preliminary investigation does not
impair the validity of the information or otherwise render it
defective. Neither does it affect the jurisdiction of the court over
the case or constitute a ground for quashing the information. It is
not among those listed under Sec. 3, Rule 117 of the Rules of
Court as a ground for a motion to quash.
Lack of probable cause
People v. Sandiganbayan, 439 SCRA 390
Facts:
Accused was charged before the Sandiganbayan for
violation of R.A. 3019. He filed a motion to quash the information.
The SB granted the motion and acquitted the accused
reasoning that based on the records, there was no probable
cause to charge him of the crime.
Issue:
Is lack of probable cause a ground for a motion to
quash?
Held:
No. A motion to quash may be filed only for grounds
stated under Sec. 3, Rule 117, of the Rules of Court. To quash
means to annul, vacate or overthrow. The absence of probable
cause for the issuance of a warrant of arrest is not a ground for
the quashal of the information but is a ground for the dismissal of
the case. The absence or presence of probable cause is to be
determined from the material averments of the information and
the appendages thereof, as enumerated in Rule 112, Sec. 8. By
quashing the information on the premise of lack of probable
cause instead of merely dismissing the case, the SB acted in
violation of case law and, thus, acted with grave abuse of its
discretion amounting to excess or lack of jurisdiction.
Failure to furnish resolution to accused
Vasquez v. Hobilla-Alinio, 271 SCRA 67
Issue:
May a court quash the information on the ground that
accused has not been furnished with a copy of the resolution of
the prosecutor finding probable cause?
Held:
No. Under Sec. 3, Rule 117, of the Rules of Court, failure
of the prosecution to furnish copy of the resolution to accused is
not one of the grounds to quash an information.
An incomplete preliminary investigation does not
warrant the quashal of the information, nor should it obliterate
the proceedings already had. Neither is the courts jurisdiction nor validity of an information adversely affected by deficiencies
in the preliminary investigation. Instead, the court must hold in
abeyance any further proceedings therein and to remand the
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case to the proper officer for the completion of the preliminary
investigation, the outcome of which shall then be indorsed to
court for its appropriate action.
*Matters of defense, as a rule, are not grounds for a motion to
quash (People vs. Miranda 2 SCRA 261) Thus, if the accused files
a motion to quash the information for homicide because he only
acted in self defense, and such fact is not alleged in the
information, the court should proceed with the case and
determine the validity and truth of the defense in a full-blown
trial.
*Exception: double jeopardy or extinguishment of the criminal
liability.
1ST GROUND: (A) THAT THE FACTS CHARGED DO NOT CONSTITUTE
AN OFFENSE;
Basis of determination whether facts constitute offense
Mendoza-Ong v. People, 414 SCRA 181
Question:
What is the test to determine whether or not the
information charges an offense?
Answer:
*The fundamental test of the viability of a motion to
quash on the ground that the facts averred in the information do
not amount to an offense is whether the facts alleged would
establish the essential elements of the crime as defined by law.
In this examination, matters aliunde are not considered.
*In other words, the information must allege clearly and
accurately the elements of the crime charged (Lazarte vs.
Sandiganbayan GR No. 180122, March 13, 2009)
2ND GROUND: (B) THAT THE COURT TRYING THE CASE HAS NO
JURISDICTION OVER THE OFFENSE CHARGED;
Basis for determining jurisdiction
Macasaet v. People, 452 SCRA 365
Question:
In resolving a motion to dismiss based on lack of
jurisdiction, what principle should guide the court?
Answer:
*Jurisdiction over a criminal case is determined by the
allegations of the complaint. In resolving such motion, as a
general rule, the facts contained in the complaint should be
taken as they are. The exception is where the Rules of Court
allow the investigation of facts alleged in a motion to quash
such as when the ground invoked is the extinction of criminal
liability, prescriptions, double jeopardy, or insanity of the
accused. In these instances, it is incumbent upon the trial court
to conduct a preliminary trial to determine the merit of the
motion to dismiss.
*3RD GROUND: (C) THAT THE COURT TRYING THE CASE HAS NO
JURISDICTION OVER THE PERSON OF THE ACCUSED;
*Effect of voluntary submission on jurisdiction over the subject
matter
Arnado v. Buban, 430 SCRA 382
Facts:
Two counts of estafa for the amount of P818,510.20 and
P59,968.00 were filed against accused before the MTC. The
judge issued a warrant of arrest and scheduled the arraignment.
Accused posted bail and filed a motion to quash on the ground
of lack of jurisdiction considering the imposable penalties for
both offenses are more than 6 years.
Issue:
Did accused submit himself to the jurisdiction of the
court by posting bail?
Held:
No. The power and authority of a court to hear, try and
decide a case is defined as jurisdiction. Elementary is the
distinction between jurisdiction over the subject-matter and
jurisdiction over the person.
Jurisdiction over the subject-matter is conferred by the
Constitution or by law. It is so essential that erroneous assumption
of such jurisdiction carries with it the nullity of the entire
proceedings in the case. At the first instance or even on appeal,
and although the parties do not raise the issue of jurisdiction,
courts are not precluded from ruling that they have no
jurisdiction over the subject-matter if such indeed is the situation.
In contrast, jurisdiction over the person is acquired by
the court by virtue of the partys or the voluntary submission of the accused to the authority of the court or through the exercise
of its coercive processes. To prevent the loss or waiver of this
defense, the accused must raise the lack of jurisdiction
seasonably by motion for the purpose of objecting to the
jurisdiction of the court; otherwise, he shall be deemed to have
submitted himself or his person to that jurisdiction. In other words,
jurisdiction over the subject-matter which is neither subject to
agreement nor conferred by consent of the parties.
Instances when the court has no jurisdiction:
1. the court has no jurisdiction to try the case
because of the penalty;
2. the court has no jurisdiction to try the offense
because it is committed in another place territorial jurisdiction; or
3. the court has no jurisdiction over the person of the
accused because the latter has never been
arrested and never surrendered himself.
4TH GROUND: (D) THAT THE OFFICER WHO FILED THE
INFORMATION HAD NO AUTHORITY TO DO SO;
Who has the authority to file the case?
Prosecutor. In private crimes however, the offended party.
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Effect of lack of authority
People v. Garfin, 426 SCRA 393
Issue:
What is the effect when the officer is without authority
to file the information?
Held:
*The trial court cannot acquire jurisdiction over the
case. In fact, under Sec. 3(d), Rule 117 of the Rules of Court,
that the officer who filed the information had no authority to do so is a ground for a motion to quash. The plea of accused to an information may be a waiver of all formal objections to the said
information but not when there is want of jurisdiction. Questions
relating to lack of jurisdiction may be raised at any stage of the
proceeding. An infirmity in the information, such as lack of
authority of the officer signing it, cannot be cured by silence,
acquiescence, or even by express consent.
*CUDIA vs. COURT OF APPEALS, January 16, 1998
HELD: An infirmity in the information, such as lack of
authority of the officer signing it, cannot be cured by
silence, acquiescence, or even by express consent.
*5TH GROUND: (E) THAT IT DOES NOT CONFORM SUBSTANTIALLY
TO THE PRESCRIBED FORM;
You know very well the form of complaint or information. You go
back to Rule 110 you state the time, the place, etc. then in
Rule 112 a certification is required. The fiscal will certify that I
have conducted the preliminary investigation, 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.
Now, what is your ground to quash?
You say, It does not comply with the prescribed form because
the correct form requires certification. It is a ground for a motion
to quash.
What happens when the defense fails to file a Motion To Quash
based on this ground before arraignment?
There is a waiver because the defect is formal not jurisdictional.
*6TH GROUND: (F) THAT MORE THAN ONE OFFENSE IS CHARGED
EXCEPT WHEN A SINGLE PUNISHMENT FOR VARIOUS OFFENSES IS
PRESCRIBED BY LAW;
This refers to a duplicitous complaint or information when it
charges more than one offense under Rule 110, Section 13. It is
not allowed. However under Rule 120, Section 3 it is waivable. If
the accused fails to object 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
*Validity of duplicitous information when there is failure to move
to quash
Dimayacyac v. CA, 430 SCRA 121
Question:
Is a duplicitous information a valid indictment?
Answer:
Yes. An accused , who fails to object prior to
arraignment to a duplicitous information, may be found guilty of
any or all of the crimes alleged therein and duly proven during
the trial, for the allegation of the elements of such component
crimes in the said information has satisfied the constitutional
guarantee that an accused be informed of the nature of the
offense with which he or she is being charged. Verily, a
duplicitous information is valid since such defect may be waived
and the accused, because of such waiver, could be convicted
of as many offenses as those charged.
Multiple offenses in a single complaint
People v. Conte, 247 SCRA 583
Issue:
May an accused be convicted of 11 counts of rape
alleged in a single complaint?
Held:
Yes. While the complaint charges accused of several
crimes of rape, in violation of Sec. 13, Rule 110 of the Rules of
Court, which provides that a complaint or information must
charge but one offense, under Sec. 1 & 3(e) of Rule 117, the
accused, before entering his plea, should have moved to quash
the complaint for being duplicitous. For his failure to do so, he is
deemed to have waived the defect. Hence, the court could
convict him as many offenses as are charged and proved, and
impose on him the penalty for each and every one of them.
*7TH GROUND: (G) THAT THE CRIMINAL ACTION OR LIABILITY HAS
BEEN EXTINGUISHED
Q: How is criminal liability extinguished?
A: Under Article 89 of the RPC:
1. by death of the convict;
2. by service of sentence;
3. by amnesty;
4. by absolute pardon;
5. by prescription of the crime;
6. by prescription of the penalty
Basis of computing prescription
People v. Maravilla, 165 SCRA 392
Facts:
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Accused, a lawyer, was charged with acts of
lasciviousness for grabbing the breast of a sales lady.
The case was, however, dismissed so that an amended
complaint for unjust vexation was filed against him 83
days after the commission of the offense. Accused filed
a motion to quash on the ground of prescription.
Issue:
Should the period of prescription be reckoned
based on the filing of the original complaint for acts of
lasciviousness or the amended information for unjust
vexation?
Held:
Prescription stopped from the time the
complaint for acts of lasciviousness was filed. The crime
of unjust vexation, while concededly different from the
crime of acts of lasciviousness, is embraced by the
latter and prosecution for this crime will suspend the
period of prescription for the former crime. A common
characteristic of the 2 offenses is molestation of the
offended party. Where it is not shown that this was
accompanied by lewd designs, the accused may not
be convicted of acts of lasciviousness but may
nevertheless be held guilty of unjust vexation, as the
lesser offense.
It is settled that what controls is not the
designation of the offense but its description in the
complaint or information. Hence, even if the crime
alleged in the complaint first filed, was expressly
denominated acts of lasciviousness, the prescriptive
period for the crime of unjust vexation was interrupted
because that was the crime described by the
complainant. The erroneous designation may be
disregarded as superfluity.
*8TH GROUND: (H) THAT IT CONTAINS AVERMENTS WHICH, IF TRUE,
WOULD CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION
The complaint or information contains averments which if true
would show that you are NOT liable.
SITUATION: 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 self-defense. Prosecutor himself admits that Rose
acted in self-defense. Therefore, the information admits the
existence of a justifying circumstance.
SITUATION: You are charged for committing a crime and when
you committed it, you are out of your mind. Thus, it admits
insanity. So you can move to quash on the ground that the
information admits that you are insane.
*But if not stated in the information insanity cannot be a ground
for a motion to quash because of the rule of exclusiveness of the
grounds. It should proven during the trial.
That is what is meant by a complaint or information which
contains averments which if true, constitute a legal excuse or
justification. Of course this is very rare. Why will the fiscal allege in
the information something that is favorable to you? This is very
queer.
One of the most interesting case here is the 1994 case of
DANGUILAN-VITUG vs. COURT OF APPEAL, 232 SCRA 460
[1994]
FACTS: Danguilan was a columnist in a newspaper and was
charged for libel for writing in a column something which is
discriminating. According to her the information should be
quashed because it was a privileged communication.
HELD: NO, it cannot be quashed because of paragraph
[g] of Section 3 Rule 117 which states that the accused may
move to quash the complaint or information where it
contains averments which, if true, would constitute a legal
excuse or justification. Hence, for the alleged privilege to be
a ground for quashing the information, the same should
have been averred in the information itself. Meaning, 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 absolute, not only qualified.
Where, however, these circumstances are not alleged in
the information, quashal is not proper as they should be
raised and proved as defenses. With 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 justifiable 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.
*9TH GROUND: (I) THAT THE ACCUSED HAS BEEN PREVIOUSLY
CONVICTED OR ACQUITTED OF THE OFFENSE CHARGED, OR THE
CASE AGAINST HIM WAS DISMISSED OR OTHERWISE TERMINATED
WITHOUT HIS EXPRESS CONSENT.
This is known as the defense against double jeopardy. The
double jeopardy as a ground for a motion to quash is the most
complicated ground. This is related to Section 7.
Q: Define jeopardy?
*A: 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. (Commonwealth vs.
Fitzpatrick, 1 LRA 451)
Jeoaprdy in the legal sense, is the "danger of conviction
and punishment which the defendant in a criminal action incurs
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when a valid indictment has been found..." (Hanley v. State 83
Nevada 461 cited in Black's Law Dictionary 5th ed. p. 749)
Section 21, Article III of the 1987 Constitution states:
Section 21. No person shall be twice put in jeopardy of
punishment for the same offense. If an act is punished by a law
and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act.
*Under Article 3, Section 21, there are two (2) sentences:
1. No person shall be twice put in jeopardy of punishment for the same offense. and
2. 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 first sentence is what you call protection against double
jeopardy of punishment for the same offense.
* The second sentence is what you call the protection against
double jeopardy for the punishment of the same act.
*However, Section 7 is not concerned with the second sentence
but with the first sentence the protection against double
jeopardy from being punished for the same offense. This is similar
to res adjudicate in civil cases.
Double jeopardy of being punished for the same act-
The second sentence says that the act is punished by a law
passed by Congress and it iis also punished for example, by an
ordinance passed by the City or Municipal Council. So 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.
However 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 vice-versa. You are protected for the same act not
for the same offense.
Now, the best illustrative case comparing the first and the
second sentences is the 1987 case of PEOPLE vs. RELOVA, infra
where Justice Feliciano traced the history of double jeopardy
staring from the 1935 Constitution.
PEOPLE vs. RELOVA,148 SCRA 292
FACTS: The accused installed an electrical connection
without permit. He was charged with theft under the RPC
theft of electricity. And 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.
So he was charged both for violation of the RPC 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 prosecution contended
that the first charge was theft under the RPC and the
prosecution is charging him not for theft but for illegal
electrical connection under the municipal ordinance.
ISSUE #1: What is the reason why there are 2 rules in the
provision on double jeopardy?
HELD: If the second sentence of the double jeopardy
provision had not been written into the Constitution,
conviction or acquittal under a municipal ordinance would
never constitute a bar to another prosecution for the same
act under a national statute. An offense penalized by
municipal ordinance is, by definition, different from an
offense under a statute. The two offenses would never
constitute the same offense having been promulgated by
different rule-making authorities though one be
subordinate to the other and the plea of double
jeopardy would never be. The discussions during the 1934-
1935 Constitutional Convention show that the second
sentence was inserted precisely for the purpose of
extending the constitutional protection against double
jeopardy to a situation which would not otherwise be
covered by the first sentence.
ISSUE #2: Was there double jeopardy?
HELD: 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. Since you are acquitted
or convicted under the national law, you cannot be
prosecuted under a municipal law. You are protected by
the second sentence of double jeopardy in the
Constitution: 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 SC explained the rational behind the double jeopardy rule in
the case of
MALLARI vs. PEOPLE,168 SCRA 422
HELD: The rule against double jeopardy protects the
accused not against the peril of second punishment but
against being tried for the same offense. Without 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, subject 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.
Section 7, Rule 117 of the Revised Rules on Criminal Procedure
provides:
SEC. 7. Former conviction or acquittal; double jeopardy.
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*Requisites to Place the Accused in Double Jeopardy
A. Attachment of jeopardy
1. The accused was charged upon a valid complaint or
information;
2. He was tried in a court of competent jurisdiction;
3. He has been arraigned and has pleaded to the charge made
against him;
B. Termination of first jeopardy
4. He has been convicted or acquitted, or the case against him
dismissed or
otherwise terminated without his express consent
C. Prosecution anew for the same offense
5. He is prosecuted anew for:
1. The offense charged, or
2. Any attempt to commit the same, or any frustration
thereof,
3. Any offense which:
1. necessarily includes the offense charged in
the former complaint or information, or
2. is necessarily included in the offense
charged in the former complaint or information
*When the conviction of accused shall not be a bar to another
prosecution for an offense which necessarily includes the offense
charged in the former complaint or information:
1. The graver offense developed due to supervening facts arising
from the same act or omission constituting the former charge;
2. The facts constituting the graver charge became known or
were discovered only after a plea was entered in the former
complaint or information; or
3. The plea of guilty to the lesser offense was made without the
consent of:
1. the prosecutor, and
2. the offended party except when:
1. the offended party fails to appear despite
due notice, or
2. there is no private offended party
*Effect of pendency of two (2) cases/litis pendentia not a ground
for motion to quash
People v. Pineda, 219 SCRA 1
Question:
While the 2 informations for the same offense are still
pending against accused, may he file a motion to quash
invoking double jeopardy?
Answer:
No. The mere filing of 2 informations charging the same
offense does not yet afford the accused in those cases the
occasion to complain that he is being placed in jeopardy twice
for the same offense, for the simple reason that the primary basis
of the defense of double jeopardy is that the accused has
already been convicted or acquitted in the first case or that the
same has been terminated without his consent.
Requisites for double jeopardy
People v. Sandiganbayan, et al., G.R. No. 153304-05, February 7,
2012
- As a rule, once the court grants demurrer to evidence,
the grant amounts to an acquittal; any further
prosecution of the accused would violate the
constitutional proscription on double jeopardy.
Notably, the proscription against double jeopardy only
envisages appeals based on errors of judgment, but
not errors of jurisdiction. Jurisprudence recognizes two
(2) grounds where double jeopardy will not attach and
these are:
a. On the ground of abuse of discretion amounting to
lack or excess of jurisdiction;
b. Whether there is a denial of a partys due process rights. (People v. Velasco, G.R. No. 127444, September
13, 2000, 340 SCRA 207).
Mari v. Hon. Gonzales, September 12, 2011
- Rape case was dismissed on the ground of
nolleprosque.
- People filed a Special Civil Action for Certiorari under
Rule 65 with the SC
- Ordinarily, it is dismissible. But this is an exception
because of the issue of double jeopardy. The court
must look into the merits. If dismissal was with grave
abuse of discretion amounting to lack of jurisdiction or
the State was deprived of its right to due process, there
is no double jeopardy. (Galman v. Pamaran)
- See: Carriaga v. People, July 30, 2010)
- Dismissal of appeal if erroneously taken.
- Exception in criminal cases where the life or liberty of a
person is in danger of deprivation.
- The rule must be liberally construed.
LitoBaustista, et al. v. Sharon G. Cuneta-Pangilinan, G.R. No.
189754, October 24, 2012
- Double jeopardy
- The authority to represent the State in appeals in
criminal cases before the SC and CA is solely vested in
the OSG (Sec.35(1), Chapter 12, Title III, Book Iv of the
1987 Administrative Code).
- Acquittal of an accused or the dismissal of the case
against him can only be appealed by the OSG acting
in behalf of the State.
- Private complainant can question such acquittal or
dismissal only insofar as the civil liability of the accused
is concerned.
- If it is the complainant who appeals it, then, it must be
outrightly dismissed.
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- The granting of the Demurrer to Evidence amounted to
dismissal of the case on the merits (Rule 119, Sec. 23).
Any further prosecution of the accused would amount
to double jeopardy.
MTQ on the ground that the facts charged do not
constitute an offense; if granted, no double jeopardy if
there is MR or appeal.
in a case, the RTC granted a motion to quash on the
ground that the facts alleged in the information do not constitute
an offense. A petition to question its validity was filed with the
CA which ruled that it would amount to double jeopardy. Is the
ruling correct? Why?
Well settled is the rule that for jeopardy to attach, the
following requisites must concur:
(1) There is a complaint or information or
other formal charge sufficient in form and
substance to sustain a conviction; (2) the
same is filed before a court of competent
jurisdiction; (3) there is a valid
arraignment or plea to the charges; and
(4) the accused is convicted or acquitted
or the case is otherwise dismissed or
terminated without his express consent.
(Javier v. Sandiganbayan, First Division,
G.R. Nos. 147026-27, 11 September 2009,
599 SCRA 324, 343-344 citing Cabo v.
Sandiganbayan, G.R. 69509, 16 June
2006, 491 SCRA 264).
The third and fourth requisites are clearly wanting in the
instant case as (a) respondent has not yet entered his plea to
the charge when he filed the Motion to Quash the information,
and (2) the case was dismissed not merely with his consent but,
in fact, at his instance. (Milo v. Salanga, 152 SCRA 113 (1987).
Jeopardy does not attach in favour of the accused on
account of an order sustaining a motion to quash. (Sec. 7, Rule
117, Rules of Court; Andres v. Cacdac, Jr., 113 SCRA 216). More
specifically, the granting of a motion to quash anchored on the
ground that the facts charged do not constitute an offense is
not a bar to another prosecution for the same offense. (People v. Consulta, 70 SCRA 277; Antone v. Beronilla, G.R. No.
183824, December 8, 2010).
Alonto v. People, 445 SCRA 624
Question:
What are the requisites for the defense of double
jeopardy?
Answer:
The following are the requisites for the defense of
double jeopardy to be available: [1] a complaint of information
or other formal charge sufficient in form and substance to sustain
a conviction; [2] the complaint or information must be filed
before a court of competent jurisdiction; [3] the accused has
been arraigned and has pleaded to the charge; [4] the
accused must have been convicted or acquitted or the case
against him was dismissed or otherwise terminated without his
express consent.
When all the above elements concur, a second
prosecution for [a] the same offense, or [b] an attempt to
commit the said offense, or [c] a frustration of the said offense,
or [d] any offense which necessarily includes, or is necessarily
included in, the first offense charged, is barred.
PEOPLE vs. BOCAR (138 SCRA 166) reiterated in
PANGAN vs. PEOPLE (155 SCRA 45)
HELD: To raise the defense of double jeopardy, three (3)
requisites must be present:
1. The first jeopardy must have been
attached prior to the second;
2. The first jeopardy must be validly
terminated; and
3. The second jeopardy must be for the
same offense as that of the first.
When does the first jeopardy attach?
A: It attaches when the following requisites are present:
1. The former complaint or information is valid;
2. It was filed in a court of competent jurisdiction;
3. The accused had been arraigned under said
complaint or information; and
4. The accused had pleaded to the same.
THE FORMER COMPLAINT OR INFORMATION IS VALID
Q: When is a complaint or information valid within the meaning
of the double jeopardy rule?
A: The requisites are:
1. if it charges an offense; (People vs. Austria, 94 Phil.
897)
2. if it is filed by a person or officer legally authorized
to do so. (People vs. Kho, 97 Phil. 825)
*CASE: An information was filed against Mr. Acelarfor theft.
Mr. Acelar moved to quash on the ground that the information
does not charge any offense. The court agreed and the
information was quashed. So, the fiscal corrected the
information and re-filed it. Mr. Acelar moved to quash on the
ground of double jeopardy. Is there double jeopardy?
A: There is no double jeopardy for the following reasons:
1. The dismissal of the first information was on motion
of the accused. Therefore, it was a dismissal with
his express consent.
2. *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. So, the
accused was never in jeopardy. (People vs. Reyes,
98 Phil. 646)
Valid complaint or information
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Filing by unauthorized officer
Cudia v. CA, 284 SCRA 173,
Facts:
For possessing a .38 revolver in Mabalacat, Pampanga, the
Angeles City Prosecutor filed a case for illegal possession of
firearms against accuse which was raffled to RTC, Branch 56, in
Angeles City. Four months later, he Pampanga Provincial
Prosecutor filed a similar case against accued for the same
incident which was raffled also to the same Branch. As the crime
was within the jurisdiction of the Pampanga Provincial
Prosecutor, the Angeles City Prosecutor moved to dismiss the
case he filed which was granted over the objection of accused.
Later, accused also moved for the dismissal of the remaining
case on the ground of double jeopardy.
Issue:
Is accused correct?
Held:
No. For jeopardy to attach there must be a valid complaint or
information. The information filed by the Angeles City Prosecutor
is defective since he is not the proper officer who is authorized
by law to prepare informations for offenses committed in
Pampanga but outside Angeles City. As said city prosecutor had
no authority to file the information, the dismissal of the first
information would not be a bar to a subsequent prosecution. In
addition, it is not correct to say that failure of the accused to
assert the lack of authority of the city prosecutor during
arraignment is deemed a waiver. Only a valid information
confers jurisdiction on the court and questions of jurisdiction may
be raised at any stage of the proceedings.
*b. Falsified or tampered information
Lasoy v. Senarosa, 455 SCRA 360
Facts:
Accused was charged of selling 42.4 kilos of
marijuana. Before arraignment, someone tampered
with the information to make it appear that he only sold
42.4 grams. On arraignment, he pleaded guilty and
was sentenced to imprisonment of 6 months and 1 day.
Thereafter, he applied for probation. After discovering
the falsification of the information, the prosecutor
amended the information to charge him with the sale
of 42.4 kilos of marijuana.
Issue:
After an information has been filed and
accused had been arraigned, pleaded guilty and was
convicted and after he had applied for probation, may
the information be amended and the accused
arraigned anew on the ground that the information
was allegedly altered/tampered with?
Held:
No. The information charging accused of
possession of 42.4 grams of marijuana is valid
considering that it sufficiently alleges the manner by
which the crime was committed. Art. III, Sec. 21, of the
1987 Constitution mandates that no person shall be
twice put in jeopardy of punishment for the same
offense. In this case, it bears repeating that the
accused had been arraigned and convicted under
the information. Granting that the alteration took place
and accused had a hand in it, this does not justify the
setting aside of the decision. The tampering allegedly
participated in by the accused may well be the
subject of another inquiry.
*IT IS FILED IN A COURT OF COMPETENT JURISDICTION
CASE: A case of homicide is filed in the MTC; that will be
dismissed in MTC for lack of jurisdiction. But that can be cured if
the fiscal will file the information of homicide in the RTC. Is there
double jeopardy?
A: None. The accused was never in jeopardy because the
first information was filed before the wrong court. There was no
danger of being convicted based on the case filed. (People vs.
Salico, 84 Phil. 722)
Filing before competent court
Where court has no jurisdiction
Binay v. Sandiganbayan, 316 SCRA 65
Facts:
On May 16, 1995, R.A. 7975 took effect vesting in the
Snadiganbayab [SB] exclusive jurisdiction to try certain criminal
cases committed by municipal mayors, among others. On Aug.
11, 1995, despite the new law, the Ombudsman charged
accused municipal mayor before the RTC with violation of Sec.
3(e) of R.A. 3019. On Feb. 9, 1996, another information for the
same offense was filed by the Ombudsman against the
accused, this time before the SB. After pleading not guilty to the
charge before the RTC, accused moved to quash the
information in the SB on the ground of double jeopardy.
Issue:
Is accused correct?
Held:
The filing of the information in the SB did not put accused in
double jeopardy even though he had pleaded not guilty to the information earlier filed in the RTC. The first jeopardy never
attached in the first place, the RTC not being a court of
competent jurisdiction. There can be no double jeopardy where
the accused entered a plea in a court that had no jurisdiction.
The remedy of the accused, therefore, was not to move for the
quashal of the information pending in the SB on the ground of
double jeopardy. Their remedy should have been to move for
the quashal of the information pending in the RTC on the ground
of lack of jurisdiction.
*4. Accused has been arraigned
Dismissal before arraignment
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Flores v. Joven, 394 SCRA 339
Facts:
Accused was charge with rape. Before arraignment, he filed a
Motion to Quash the information, which was granted by the RTC
on the ground that accused was not identified as one of the
culprits by the victim and the information failed to show his
participation. The private prosecutor filed a special civil action
for certiorari to question the order of the RTC.
Issue:
Will review of the order violate the right of the accused to
double jeopardy?
Held:
No. The requisites that must be present for double jeopardy to
attach are: (a) a valid complaint or information; (b) a court of
competent jurisdiction; (c) the accused has pleaded to the
charge; and (d) the accused has been convicted or acquitted
or the case dismissed or terminated without his express consent.
The third requisite is not present in this case because accused
has not been arraigned.
Conditional arraignment
People v. Espinosa, 409 SCRA 256
Facts:
Accused was charged with attempted estafa and attempted
corruption of public officers before the Sandiganbayan. He
moved for reinvestigation so that the case was remanded to the
Ombudsman for reevaluation of evidence. Meanwhile, since he
filed a motion to travel abroad, he was conditionally arraigned
and thereafter was allowed to travel. As a result of its
reinvestigation, the Ombudsman moved to withdraw the 2 cases
which was granted. Thereafter, the Ombudsman filed 7 charges
for Malversation of Public Funds against accused. Accused filed
a motion to quash based on double jeopardy.
Issue:
Was there a waiver of the right against double jeopardy
considering that accused agreed to a conditional arraignment?
Held:
No. There was a valid information, filed before a competent
court, accused was arraigned and the cases were dismissed
without his consent. The conditional arraignment does not
amount to a waiver of the right against double jeopardy.
Considering that it is a constitutional right, waiver must be clear,
categorical and knowing. Thus, any condition attached to the
arraignment must be unmistakable and express. Otherwise, it is
deemed to be unconditional.
Invalid arraignment
Dimatulac v. Villon, 297 SCRA 679
Facts:
The Provincial Prosecutor resolved that accused be charged
with homicide and correspondingly filed an information.
Dissatisfied, the offended party appealed to the Department of
Justice (DOJ) to upgrade the charge to murder. Meanwhile,
despite a Motion to Defer Proceedings filed by the offended
party so as to await the resolution of his appeal, the court
arraigned the accused. Later, the DOJ ordered the Provincial
Prosecutor to amend the Information to murder.
Issue:
Can accused plead double jeopardy?
Held:
No. It is settled that when the State is deprived of due process,
the acquittal of accused or the dismissal of the case will not give
rise to double jeopardy. Similarly, this applies where the
arraignment and plea of not guilty are void. In this case, the
actuation of the Provincial Prosecutor caused grave prejudice to
the State. Among others, he showed bias for the accused.
Despite the pendency of an appeal, he filed the information for
homicide in court and did not move for deferment of the
arraignment. The trial judge, likewise, committed grave abuse of
discretion in rushing the arraignment of accused for homicide
despite the pendency of the appeal.
*THERE IS A TERMINATION OF THE FIRST
When is there termination?
A: In the following:
1. when the accused had been previously
convicted;
2. when the accused had been previously acquitted;
and
3. when the case against the accused had been
dismissed or otherwise terminated without his
express consent.
PEOPLE vs. PINEDA, 219 SCRA 1
HELD: The mere filing of two (2) informations charging the
same offense is not an appropriate basis for the invocation
of double jeopardy since the first jeopardy has not yet set in
by a previous conviction, acquittal or termination of the
case without the consent of the accused.
The ambiguity stirred by the imprecise
observation in People vs. City Court of Manila, a
1983 case, can now he considered modified in
that a prior conviction, or acquittal, or termination
of the case without the express acquiescence of
the accused is still required before the first
jeopardy can be pleaded to abate a second
prosecution.
Now, the law says that you have been convicted or acquitted,
or a case against you have been dismissed without you express
consent. That is what you mean by the first jeopardy has
already been terminated. But take note that this is not a key for
the prosecutors to file several the same cases against the
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accused. The law only provides that you cannot raise the
defense of double jeopardy in this situation.
*But you can question the acts of the prosecution to his superior
or you may file an injunction case citing the case of Brocka vs.
Enrile. But definitely you cannot use double jeopardy as defense
What is the difference between acquittal and dismissal of the
case?
A: Generally, dismissal is not on the merits. But there are
dismissals which are classified as acquittal, like demurrer to
evidence, or dismissal because of the violation of the right of the
accused to speedy trial.
In the same manner, for double jeopardy to attach, the law
says, the case must have been dismissed without your express
consent. So, as a general rule, when the accused himself files a
motion to dismiss, he cannot invoke double jeopardy because
he himself intended the dismissal of his case; it is with his express
consent.
Previous conviction
Pendency of several cases
People v. Nitafan, 302 SCRA 424
Facts:
Imelda Marcos was facing 3 criminal cases for violation of
Central Bank Circular No. 960 before the RTC branch 158-Pasig.
The Solicitor General, after arraignment, move to consolidate the
cases with the 21 others against her before RTC Branch 26-
Manila on the ground that the acts form part of and are related
to a series of similar transactions. On his own initiative and after
giving a chance to the prosecution to present its side, the RTC
Judge of Branch 52-Manila where the cases were re-raffled
quashed the 3 informations on the ground of double jeopardy.
Issue:
Was the quashal proper?
Held:
No. An essential requisite of double jeopardy is that the first
jeopardy must have attached. Other than the Solicitor Generals allegation of the pending cases in Branch 26-Manila, the judge
cannot tell whether accused had been arraigned. Even
assuming that there was already an arraignment and plea with
respect to those cases in Branch 26-Manila which the judge used
as basis to quash the 3 informations pending in his sala, still the
first jeopardy has not yet terminated. Precisely, those cases are
still pending and there was as yet no judgment on the merits.
Accused was not convicted, acquitted nor the case against her
dismissed or otherwise terminated.
*b. Void conviction due to an invalid plea bargaining
People v. Magat, 332 SCRA 517
Facts:
Accused was charged with 2 counts of incestuous rape. He
pleaded guilty but bargained for a lesser penalty, and was
sentenced to 10 years imprisonment for each offense. Three
months later, complainant moved for the revival of the cases on
the ground that the penalty was too light. The judge granted the motion.
Issue:
Can the cases be revived without placing accused in double
jeopardy?
Held:
Yes. The order of the trial court convicting him based on his own
plea of guilt is null and void. It must be emphasized that accused
pleaded guilty to the rape charges, but only bargained for a
lesser penalty. He did not plea bargain but made conditions on
the penalty to be imposed. This is erroneous because by
pleading guilty to the offense charge, accused should be
sentenced to the penalty for the offense to which he pleaded. A
conditional plea of guilty, or one subject to a proviso that a
certain penalty be imposed upon him, is equivalent to a plea of
not guilty. Thus, the judgment rendered by the court based on a
void plea-bargaining is also void ab initio, so that double
jeopardy will not lie.
Appeal to increase penalty
People v. Dela Torre, 380 SCRA 596
Facts:
The RTC convicted accused of 2 counts of rape. Accused filed a
Motion for Reconsideration which was denied by the RTC. The
prosecution filed a notice of appeal. The Solicitor General
argued that the RTC erred in penalizing the accused with
reclusion perpetua in each of the 4 indictments for rape, instead
of imposing the death penalty as mandated by R.A. 7659.
Issue:
Can a judgment of conviction be appealed for the sole purpose
of increasing the penalty?
Held:
No. An appeal by the prosecution on the ground that the
accused should have been given a more severe penalty will
violate the right of the accused against double jeopardy. Even
assuming that the penalties imposed by the RTC were erroneous,
these cannot be corrected on appeal by the prosecution.
Whatever error may have been committed by the lower court
was merely an error of judgment and not of jurisdiction. It did not
affect the intrinsic validity of the decision. This is the kind of error
that can no longer be rectified on appeal by the prosecution no
matter how obvious the error may be.
d. Annulment of judgment
Palu-ay v. CA, 293 SCRA 358
Facts:
Palu-ay filed a case against Pulmones for frustrated homicide
but after trial Pulmones was convicted only of physical injuries
through reckless imprudence. Dissatisfied with the decision, Palu-
ay filed a case for annulment of judgment with the CA.
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Issue:
Can the case prosper?
Held:
No. A review of the decision at the instance of the prosecution
would violate the right of the accused against double jeopardy.
It cannot be argued that the decision is void for lack of due
process since Palu-ay was not deprived of the opportunity to be
heard. In this case, a hearing was held during which the
prosecution and the defense were heard on their evidence.
Thereafter, judgment was rendered on the basis of the evidence
presented. Consequently, any error made by the trial court in
the appreciation of evidence was only an error of judgment but
not of jurisdiction so as to render the judgment void.
*e. Effect of appeal by accused
People v. Rondero, 320 SCRA 383
Facts:
Accused was charged with rape with homicide. The RTC,
however, convicted him only of homicide and sentenced him to
suffer reclusion perpetua. He appealed his conviction to the
Supreme Court.
Issue:
May he be convicted of the original charge and sentenced to
death without double jeopardy?
Held:
Yes. When an accused appeals from the sentence of the trial
court, he waives his right against double jeopardy and throws
the whole case open for review of the appellate court, which is
then called to render judgment as the law and justice dictate,
whether favourable or unfavourable, and whether they are the
subject of the assigned errors or not. This precept should be
borne in mind by every lawyer of an accused who unwittingly
takes the risk involved when he decides to appeal a sentence.
*f. Appeal by employer of civil liability
Philippine Rabbit v. People, 427 SCRA 456
Facts:
Accused was found guilty of reckless imprudence resulting to
triple homicide, sentenced to suffer imprisonment and pay civil
liability to the heirs of the victims. During trial he jumped bail and
remained at-large at the time of conviction.
Issue:
Can his employer file a notice of appeal in its own behalf to
question the civil liability considering that it is subsidiarily liable in
the event that accused is insolvent?
Held:
No. When accused jumps bail, he is deemed to have
abandoned his appeal. Consequently, the judgment against
him has become final and executor. If his employer appeals, his
aim is to have the accused-employee absolved of his criminal
responsibility and the judgment reviewed as a whole. If the
present appeal is given due course, the whole case against the
accused becomes open to review. It thus follows that a penalty
higher than that which has already been imposed by the trial
court may be meted out to him. The appeal by his employer
would thus violate his right against double jeopardy, since the
judgment against him could become subject to modification
without his consent.
*6. Previous acquittal
Revising a judgment of acquittal
Argel v. Pascua, 363 SCA 381
Facts:
In a decision dated July 22, 1993, but promulgated only on Aug.
13, 1993, Judge Pascua acquitted accused of murder thinking
that there was no witness who positively identified him as the
perpetrator. After her attention was called by complainant, and
after reading the testimony of the witness which was not
attached to the records originally, Judge Pascua discovered her
error and revised her previous decision. On Aug. 19, 1993, Judge Pascua promulgated a new one convicting the accused
of the crime of murder.
Issue:
Can the judge revise the decision from acquittal to conviction?
Held:
No. It is an elementary rule that a decision once final is no longer
susceptible to amendment or alteration except to correct errors
which are clerical in nature. In criminal cases, a judgment of
acquittal is immediately final upon its promulgation. It cannot be
recalled for correction or amendment since the inherent power
of the court to modify its order does not extend to a judgment of
acquittal in a criminal case. The judge cannot therefore revise her decision without violating the constitutional proscription on
double jeopardy.
*As a rule, an acquittal rendered by a court of competent
jurisdiction after trial on the merits is immediately final and
executory and cannot be appealed as it will violate the right of
the accused against double jeopardy (People v.
Sandiganbayan, et al., GR No. 173396, Sept. 22, 2010).
*Exception
The only instance when double jeopardy will not attach is when
the trial court acted with grave abuse of discretion amounting to
lack or excess of jurisdiction, such as where the prosecution was
denied the opportunity to present its case or where the trial was
a sham. However, while certiorari may be availed of to correct
an erroneous acquittal, the petitioner in such an extraordinary
proceeding must clearly demonstrate that the trial court
blatantly abused its authority to a point so grave as to deprive it
of its very power to dispense justice (People v. Tan, GR No.
167526, July 26, 2010)
A judgment rendered with grave abuse of discretion or without
without due process of law is void, does not exist in legal con
temptation and thus, cannot be the source of an acquittal
(People vs. Sandiganbayan [Fourth Division], 559 SCRA 449)
In People vs. Asis, GR No. 173089, Aug. 25, 2010 the Court
unequivocally ruled that a petition for certiorari under Rule 65,
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not appeal, is the remedy to question a verdict of acquittal
whether the at the trial court or at the appellate court.
*b. Previous dismissal by the prosecutor
Vincoy v. CA, 432 SCRA 36
Facts:
Accused was convicted of estafa by the RTC of Pasig which
conviction was affirmed by the CA. On appeal to the Supreme
Court, he alleged double jeopardy considering that a similar
complaint for estafa was previously filed by the same
complainant before the City Prosecutors Office of Pasay which was dismissed.
Issue:
Is the contention correct?
Held:
No. Dismissal of a case during preliminary investigation does not
constitute double jeopardy since a preliminary investigation is
not part of the trial and is not the occasion for the full and
exhaustive display of the parties evidence but only such as may engender a well-founded belief that an offense has been
committed and accused is probably guilty thereof. For this
reason, it cannot be considered equivalent to a judicial
pronouncement of acquittal.
Acquittal after trial on the merits
People v. Velasco, 340 SCRA 207
Facts:
Mayor Galvez was acquitted of murder and frustrated murder,
as well as of illegal possession of firearm after trial on the merits.
The ground for acquittal was insufficiency of evidence on the first
charge, and a finding that the act charged did not constitute a
violation of law in the second. Challenging the acquittal, the
Solicitor General filed a Petition for Certiorari contending that
Judge Velasco committed grave abuse of discretion and
arbitrariness. Pointing out that the judge deliberately disregarded
certain facts and evidence on record, he asks that the cases be
reviewed and the acquittal be nullified.
Issue:
Can a judgment of acquittal be reversed if no retrial is required
without placing the accused in double jeopardy?
Held:
No. The doctrine that double jeopardy may not be invoked after
trial may apply only when the Court finds that the criminal trial
was a sham because the prosecution was denied due process.
Here, trial on the merits was held during which both government
and accused had their respective day in court. The petition goes
deeply into the trial courts appreciation and evaluation of the evidence. A reading of the questioned decision shows that the
judge considered the evidence taken at the trial. While it may
have resulted in possible lapses in evidence evaluation, it
nevertheless does not detract from the fact that they were
considered. This consequently exempts the act from the writ of
certioraris requirement of excess or lack of jurisdiction. Errors of
judgment are not to be confused with errors in the exercise of
jurisdiction.
Acquittal due to legal error
People v. Laggui, 171 SCRA 305
Facts:
The judge erroneously acquitted the accused of violating B.P. 22
thinking that the information was defective for failure to state
that he knew, when he issued the check, that he would not
have sufficient funds for its payment in full upon its presentment
to the drawee bank. In the opinion of the trial judge, the
information did not charge an offense, hence, he dismissed it.
Issue:
May the acquittal be reviewed in a petition for certiorari?
Held:
No. Although its decision is erroneous, that decision may not be
annulled or set aside because it amounted to a judgment of
acquittal. It became final and executory upon its promulgation.
The State may not appeal that decision for it would place the
accused twice in jeopardy of punishment for the offense in
violation of his constitutional right against double jeopardy.
e. Acquittal on appeal
People v. CA, 423 SCRA 605
Facts:
Accused were convicted by the RTC of Homicide and
Attempted Murder. On appeal, the CA acquitted them. It ruled
that the sitting position of one accused made it impossible for
him to shoot the victim, while the other accused acted in self-
defense. Alleging that the CA committed grave abuse of
discretion in acquitting the accused despite overwhelming
evidence, the Solicitor General challenges the acquittal in a
Petition for Certiorari under Rule 65 of the Rules of Court.
Issue:
May the Supreme Court review the acquittal without violating
the rights of the accused against double jeopardy?
Held:
No. The acquittal of the accused by the lower court is not
subject to review via the extraordinary writ of certiorari as this
would constitute a violation of the Double Jeopardy Clause of
the Constitution. In the absence of a finding of mistrial, i.e. the
criminal trial was a sham, as in Galman v. Sandiganbayan, a
judgment of acquittal is final and unappealable on the ground
of double jeopardy, whether it happens at the trial court level or
at the CA.
f. Exception
Merciales v. CA, 379 SCRA 345
Facts:
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After presenting 7 witnesses in a trial for rape with homicide, the
prosecutor moved for the discharge of one accused to be state
witness. The judge required him to present evidence to warrant
the discharge but he refused contending that it was not
necessary since he had been admitted to the Witness Protection
Program. While the issue was being threshed before the SC, the
accused opposed any resetting on the ground of speedy trial.
Thus, instead of presenting additional witnesses, even if an NBI
agent was available, the prosecutor rested his case. The
accused filed a demurrer to evidence, and the judge dismissed
the cases on the ground of insufficient evidence. Private
complainant moved to annul the decision but accused claimed
double jeopardy.
Issue:
Is the accused correct?
Held:
No. Double jeopardy will not lie. The prosecutor was guilty of
nonfeasance when he failed to protect the interest of the State.
He knew that he had not presented sufficient evidence and yet
he deliberately failed to present an available witness. He also
violated the Rules of Court when he refused to present evidence
to support the discharge of one accused to be State witness. In
addition, the judge, too, was guilty of non-feasance, when
despite his knowledge that the evidence was insufficient, he
passively watched the prosecutor bungle the case. He should
have motu propio called additional witnesses for the purpose of
questioning them himself. Considering, therefore, that both the
State and complainant were deprived of their day in court, there
was a violation of due process so that the acquittal of accused
was null and void. Thus, double jeopardy will not apply.
*DISMISSAL WITHOUT THE EXPRESS CONSENT OF THE ACCUSED
PEOPLE vs. VERGARA, 221 SCRA 960
FACTS: Vergara was accused of frustrated murder for
allegedly conspiring with some people. While the case is
pending, the accused asked the provincial prosecutor for a
reinvestigation of the case. The request was granted. After
reinvestigation, the prosecutor made a finding that there
was no crime because the accused acted in self-defense.
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.
However, when the fiscal made a finding that there was no
probable cause, in the meantime the complainant
appealed such finding to the Secretary of Justice. The
recommendation of the prosecutor was disapproved. Sabi
ng DOJ, No, there is a case here. Provincial prosecutor, i-
re-file mo. So, there was another information for frustrated
murder filed against the same accused. This time, the
accused pleaded Double Jeopardy. Bakit? According to
the accused:
ACCUSED: The cases were dismissed upon motion of the
prosecutor; I was not the one who filed the motion. So,
when the case was dismissed, it was dismissed without my
express consent.
COMPLAINANT: No, why did you ask for reinvestigation? Di
ba, the purpose is that it will lead to the dismissal of the
case? So, when you filed a motion for reinvestigation, in
effect, you are seeking a dismissal with your express
consent.
ACCUSED: No! Express consent is different from intention.
When I filed a motion for reinvestigation, my intention was to
let the case be dismissed, but I did not give my express
consent. While I may have intended to let the case be
dismissed upon moving for reinvestigation, I never give my
express consent for the dismissal of the case. It was the
prosecutor himself who did it.
ISSUE: Is there double jeopardy?
HELD: YES, there is double jeopardy. When you say express
consent, the consent must be categorical, clear. You
cannot infer that by simply asking for reinvestigation. You
cannot infer that there is express consent; that is not within
the concept.
*Express 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.
What they did was merely to move for reinvestigation of the
case before the prosecutor. To equate this with express
consent of the accused to the dismissal of the case in the
lower court is to strain the meaning of express consent too
far. Simply, there was no express consent of the accused
when the prosecutor moved for the dismissal of the original
Informations.
Previous dismissal
Dismissal without consent
Tupaz v. Ulep, 316 SCRA 118
Facts:
Two informations were filed against the accused for non-
payment of deficiency corporate income tax in violation of the
Tax Code of 1977. After she was arraigned, the prosecutor