O. Motion to Quash the Complaint or Information -R117

UNIVERSITY OF SAN CARLOS CRIMINAL PROCEDURE

Justice Gabriel T. Ingles Notes Compilation

USC Center For Legal Aid Work 2013 202

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




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




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.




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




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.




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:




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




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.




*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.




- 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




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




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




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.




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,




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:




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

O. Motion to Quash the Complaint or Information -R117

Documents

Transcript of O. Motion to Quash the Complaint or Information -R117