Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. No. 157472               September 28, 2007

SSGT. JOSE M. PACOY, Petitioner, vs.HON. AFABLE E. CAJIGAL, PEOPLE OF THE PHILIPPINES and OLYMPIO L. ESCUETA, Respondents.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court filed by SSGT. Jose M. Pacoy1(petitioner) seeking to annul and set aside the Orders dated October 25, 20022 and December 18, 20023 issued by Presiding Judge Afable E. Cajigal (respondent judge) of the Regional Trial Court (RTC), Branch 68, Camiling, Tarlac in Criminal Case No. 02-42.

On July 4, 2002, an Information for Homicide was filed in the RTC against petitioner committed as follows:

That on or about the 18th day of March 2002, in the Municipality of Mayantoc, Province of Tarlac, Philippines and within the jurisdiction of this Honorable Court, the said accused with intent to kill, did then and there wilfully, unlawfully and feloniously shot his commanding officer 2Lt. Frederick Esquita with his armalite rifle hitting and sustaining upon 2Lt. Frederick Esquita multiple gunshot wounds on his body which caused his instantaneous death.

With the aggravating circumstance of killing, 2Lt. Frederick Esquita in disregard of his rank.4

On September 12, 2002, upon arraignment, petitioner, duly assisted by counsel de parte, pleaded not guilty to the charge of Homicide. Respondent Judge set the pre-trial conference and trial on October 8, 2002.5

However, on the same day and after the arraignment, the respondent judge issued another Order,6 likewise dated September 12, 2002, directing the trial prosecutor to correct and amend the Information to Murder in view of the aggravating circumstance of disregard of rank alleged in the Information which public respondent registered as having qualified the crime to Murder.

Acting upon such Order, the prosecutor entered his amendment by crossing out the word "Homicide" and instead wrote the word "Murder" in the caption and in the opening paragraph of the Information. The accusatory portion remained exactly the same as that of the original Information for Homicide, with the correction of the spelling of the victim’s name from "Escuita" to "Escueta."7

On October 8, 2002, the date scheduled for pre-trial conference and trial, petitioner was to be re-arraigned for the crime of Murder. Counsel for petitioner objected on the ground that the latter would be placed in double jeopardy, considering that his Homicide case had been terminated without his express consent, resulting in the dismissal of the case. As petitioner refused to enter his plea on the amended Information for Murder, the public respondent entered for him a plea of not guilty.8

On October 28, 2002, petitioner filed a Motion to Quash with Motion to Suspend Proceedings Pending the Resolution of the Instant Motion9 on the ground of double jeopardy. Petitioner alleged that in the Information for Homicide, he was validly indicted and arraigned before a competent court, and the case was terminated without his

express consent; that when the case for Homicide was terminated without his express consent, the subsequent filing of the Information for Murder in lieu of Homicide placed him in double jeopardy.

In an Order10 dated October 25, 2002,11 the respondent judge denied the Motion to Quash. He ruled that a claim of former acquittal or conviction does not constitute double jeopardy and cannot be sustained unless judgment was rendered acquitting or convicting the defendant in the former prosecution; that petitioner was never acquitted or convicted of Homicide, since the Information for Homicide was merely corrected/or amended before trial commenced and did not terminate the same; that the Information for Homicide was patently insufficient in substance, so no valid proceedings could be taken thereon; and that with the allegation of aggravating circumstance of "disregard of rank," the crime of Homicide is qualified to Murder.

Petitioner filed a Motion to Inhibit with attached Motion for Reconsideration. In his Motion to Inhibit, he alleged that the respondent judge exercised jurisdiction in an arbitrary, capricious and partial manner in mandating the amendment of the charge from Homicide to Murder in disregard of the provisions of the law and existing jurisprudence.

In his Motion for Reconsideration, petitioner reiterated that the case against him was dismissed or otherwise terminated without his express consent, which constitutes a ground to quash the information for murder; and that to try him again for the same offense constitutes double jeopardy. Petitioner stated that contrary to respondent judge's conclusion that disregard of rank qualifies the killing to Murder, it is a generic aggravating circumstance which only serves to affect the imposition of the period of the penalty. Petitioner also argued that the amendment and/or correction ordered by the respondent judge was substantial; and under Section 14, Rule 110 of the Revised Rules of Criminal Procedure, this cannot be done, since

petitioner had already been arraigned and he would be placed in double jeopardy.

In his Order dated December 18, 2002,12 the respondent judge denied the Motion to Inhibit and granted the Motion for Reconsideration, thus:

WHEREFORE, in view of the foregoing, the Motion to Inhibit is hereby DENIED while the Motion for Reconsideration is hereby GRANTED.

Unless ordered otherwise by the Highest Court, the presiding judge shall continue hearing this case. Further, the Order dated October 25, 2002 is reconsidered and the original information charging the crime of homicide stands.13

In granting the Motion for Reconsideration, respondent judge found that a close scrutiny of Article 248 of the Revised Penal Code shows that "disregard of rank" is merely a generic mitigating14 circumstance which should not elevate the classification of the crime of homicide to murder.

On April 30, 2003, petitioner filed herein petition for certiorari on the following grounds:

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND EXCEEDED HIS JURISDICTION IN ORDERING THE AMENDMENT OF THE INFORMATION FROM HOMICIDE TO MURDER.

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND VIOLATED THE LAW IN DENYING THE MOTION TO QUASH THE INFORMATION FOR MURDER.

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND EXCEEDED HIS JURISDICTION AND VIOLATED THE LAW IN ORDERING THE REINSTATEMENT OF THE INFORMATION FOR HOMICIDE WHICH WAS ALREADY TERMINATED.15

Petitioner alleges that despite having entered his plea of not guilty to the charge of Homicide, the public respondent ordered the amendment of the Information from Homicide to Murder because of the presence of the aggravating circumstance of "disregard of rank," which is in violation of Section 14, Rule 110 of the Revised Rules of Criminal Procedure; that the public respondent’s ruling that "disregard of rank" is a qualifying aggravating circumstance which qualified the killing of 2Lt. Escueta to murder is erroneous since, under paragraph 3, Article 14 of the Revised Penal Code, disregard of rank is only a generic aggravating circumstance which serves to affect the penalty to be imposed upon the accused and does not qualify the offense into a more serious crime; that even assuming that disregard of rank is a qualifying aggravating circumstance, such is a substantial amendment which is not allowed after petitioner has entered his plea.

Petitioner next contends that the respondent judge gravely abused his discretion when he denied the Motion to Quash the Information for Murder, considering that the original Information for Homicide filed against him was terminated without his express consent; thus, prosecuting him for the same offense would place him in double jeopardy.

Petitioner further argues that although the respondent judge granted his Motion for Reconsideration, he did not in fact grant the motion, since petitioner's prayer was for the respondent judge to grant the Motion to Quash the Information for Murder on the ground of double jeopardy; that his Motion for Reconsideration did not seek the reinstatement of the Information for Homicide upon the dismissal of the Information for Murder, as he would again be placed in double

jeopardy; thus, the respondent judge committed grave abuse of discretion in reinstating the Homicide case.

In his Comment, the Solicitor General argues that the respondent judge's Order reinstating the Information to Homicide after initially motu proprio ordering its amendment to Murder renders herein petition moot and academic; that petitioner failed to establish the fourth element of double jeopardy, i.e., the defendant was acquitted or convicted, or the case against him was dismissed or otherwise terminated without his consent; that petitioner confuses amendment with substitution of Information; that the respondent judge's Order dated September 12, 2002 mandated an amendment of the Information as provided under Section 14, Rule 110 of the Revised Rules of Criminal Procedure; and that amendments do not entail dismissal or termination of the previous case.

Private respondent Col. Olimpio Escueta, father of the victim, filed his Comment alleging that no grave abuse of discretion was committed by the respondent judge when he denied petitioner's Motion to Quash the Amended Information, as petitioner was not placed in double jeopardy; that the proceedings under the first Information for homicide has not yet commenced, and the case was not dismissed or terminated when the Information was amended.

In his Reply, petitioner reiterates his contention that the amendment of the charge of Homicide to Murder after his arraignment would place him in double jeopardy, considering that said amendment was without his express consent; and that such amendment was tantamount to a termination of the charge of Homicide.

The parties filed their respective Memoranda.

Generally, a direct resort to us in a petition for certiorari is highly improper, for it violates the established policy of strict observance of the judicial hierarchy of courts. However, the judicial hierarchy of courts is not an iron-clad rule.16 A strict application of the rule of

hierarchy of courts is not necessary when the cases brought before the appellate courts do not involve factual but legal questions.17

In the present case, petitioner submits pure questions of law involving the proper legal interpretation of the provisions on amendment and substitution of information under the Rules of Court. It also involves the issue of double jeopardy, one of the fundamental rights of the citizens under the Constitution which protects the accused not against the peril of second punishment but against being tried for the same offense. These important legal questions and in order to prevent further delay in the trial of the case warrant our relaxation of the policy of strict observance of the judicial hierarchy of courts.

The Court’s Ruling

The petition is not meritorious.

We find no merit in petitioner's contention that the respondent judge committed grave abuse of discretion in amending the Information after petitioner had already pleaded not guilty to the charge in the Information for Homicide. The argument of petitioner --

Considering the fact that the case for Homicide against him was already terminated without his express consent, he cannot anymore be charged and arraigned for Murder which involve the same offense. The petitioner argued that the termination of the information for Homicide without his express consent is equivalent to his acquittal. Thus, to charge him again, this time for Murder, is tantamount to placing the petitioner in Double Jeopardy.18

is not plausible. Petitioner confuses the procedure and effects of amendment or substitution under Section 14, Rule 110 of the Rules of Court, to wit --

SEC. 14. Amendment or substitution. — A complaint or information may be amended, in form or in substance, without leave of court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made with leave of court and when it can be done without causing prejudice to the rights of the accused.

x x x

If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Rule 119, Section 11, provided the accused would not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their appearance at the trial.

with Section 19, Rule 119 of which provides:

SEC. 19. When mistake has been made in charging the proper offense. - When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information.

First, a distinction shall be made between amendment and substitution under Section 14, Rule 110. For this purpose, Teehankee v. Madayag19 is instructive, viz:

The first paragraph provides the rules for amendment of the information or complaint, while the second paragraph refers to the substitution of the information or complaint.

It may accordingly be posited that both amendment and substitution of the information may be made before or after the defendant pleads, but they differ in the following respects:

1. Amendment may involve either formal or substantial changes, while substitution necessarily involves a substantial change from the original charge;

2. Amendment before plea has been entered can be effected without leave of court, but substitution of information must be with leave of court as the original information has to be dismissed;

3. Where the amendment is only as to form, there is no need for another preliminary investigation and the retaking of the plea of the accused; in substitution of information, another preliminary investigation is entailed and the accused has to plead anew to the new information; and

4. An amended information refers to the same offense charged in the original information or to an offense which necessarily includes or is necessarily included in the original charge, hence substantial amendments to the information after the plea has been taken cannot be made over the objection of the accused, for if the original information would be withdrawn, the accused could invoke double jeopardy. On the other hand, substitution requires or presupposes that the new information involves a different offense which does not include or is not necessarily included in the original charge, hence the accused cannot claim double jeopardy.

In determining, therefore, whether there should be an amendment under the first paragraph of Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is that where the second information involves the same offense, or an offense which necessarily includes or is necessarily included in the

first information, an amendment of the information is sufficient; otherwise, where the new information charges an offense which is distinct and different from that initially charged, a substitution is in order.

There is identity between the two offenses when the evidence to support a conviction for one offense would be sufficient to warrant a conviction for the other, or when the second offense is exactly the same as the first, or when the second offense is an attempt to commit or a frustration of, or when it necessarily includes or is necessarily included in, the offense charged in the first information. In this connection, an offense may be said to necessarily include another when some of the essential elements or ingredients of the former, as this is alleged in the information, constitute the latter. And, vice-versa, an offense may be said to be necessarily included in another when the essential ingredients of the former constitute or form a part of those constituting the latter.20

In the present case, the change of the offense charged from Homicide to Murder is merely a formal amendment and not a substantial amendment or a substitution as defined in Teehankee.

While the amended Information was for Murder, a reading of the Information shows that the only change made was in the caption of the case; and in the opening paragraph or preamble of the Information, with the crossing out of word "Homicide" and its replacement by the word "Murder." There was no change in the recital of facts constituting the offense charged or in the determination of the jurisdiction of the court. The averments in the amended Information for Murder are exactly the same as those already alleged in the original Information for Homicide, as there was not at all any change in the act imputed to petitioner, i.e., the killing of 2Lt. Escueta without any qualifying circumstance. Thus, we find that the amendment made in the caption and preamble from "Homicide" to "Murder" as purely formal.21

Section 14, Rule 110 also provides that in allowing formal amendments in cases in which the accused has already pleaded, it is necessary that the amendments do not prejudice the rights of the accused. The test of whether the rights of an accused are prejudiced by the amendment of a complaint or information is whether a defense under the complaint or information, as it originally stood, would no longer be available after the amendment is made; and when any evidence the accused might have would be inapplicable to the complaint or information.22 Since the facts alleged in the accusatory portion of the amended Information are identical with those of the original Information for Homicide, there could not be any effect on the prosecution's theory of the case; neither would there be any possible prejudice to the rights or defense of petitioner.

While the respondent judge erroneously thought that "disrespect on account of rank" qualified the crime to murder, as the same was only a generic aggravating circumstance,23 we do not find that he committed any grave abuse of discretion in ordering the amendment of the Information after petitioner had already pleaded not guilty to the charge of Homicide, since the amendment made was only formal and did not adversely affect any substantial right of petitioner.

Next, we determine whether petitioner was placed in double jeopardy by the change of the charge from Homicide to Murder; and subsequently, from Murder back to Homicide. Petitioner's claim that the respondent judge committed grave abuse of discretion in denying his Motion to Quash the Amended Information for Murder on the ground of double jeopardy is not meritorious.

Petitioner's Motion to Quash was anchored on Section 3, Rule 117 of the Rules of Court, which provides:

SEC. 3. Grounds. - The accused may move to quash the complaint or information on any of the following grounds:

x x x x

(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.

Section 7 of the same Rule lays down the requisites in order that the defense of double jeopardy may prosper, to wit:

SEC. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.

Thus, there is double jeopardy when the following requisites are present: (1) a first jeopardy attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a second jeopardy is for the same offense as in the first.24

As to the first requisite, the first jeopardy attaches only (a) after a valid indictment; (b) before a competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) when the accused was acquitted or convicted, or the case was dismissed or otherwise terminated without his express consent.25

It is the conviction or acquittal of the accused or the dismissal or termination of the case that bars further prosecution for the same offense or any attempt to commit the same or the frustration thereof; or prosecution for any offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information.26

Petitioner's insistence that the respondent judge dismissed or terminated his case for homicide without his express consent, which is tantamount to an acquittal, is misplaced.

Dismissal of the first case contemplated by Section 7 presupposes a definite or unconditional dismissal which terminates the case.27 And for the dismissal to be a bar under the jeopardy clause, it must have the effect of acquittal.1âwphi1

The respondent judge's Order dated September 12, 2002 was for the trial prosecutor to correct and amend the Information but not to dismiss the same upon the filing of a new Information charging the proper offense as contemplated under the last paragraph of Section 14, Rule 110 of the Rules of Court -- which, for convenience, we quote again --

If it appears at anytime before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not be placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial.

and Section 19, Rule 119, which provides:

SEC. 19.- When mistake has been made in charging the proper offense - When it becomes manifest at any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be convicted of the offense charged or any other offense necessarily included therein, the accused shall not be discharged if there appears good cause to detain him. In such case, the court shall commit the accused to answer for the proper offense and dismiss the original case upon the filing of the proper information.

Evidently, the last paragraph of Section 14, Rule 110, applies only when the offense charged is wholly different from the offense proved, i.e., the accused cannot be convicted of a crime with which he was not charged in the information even if it be proven, in which case, there must be a dismissal of the charge and a substitution of a new information charging the proper offense. Section 14 does not apply to a second information, which involves the same offense or an offense which necessarily includes or is necessarily included in the first information. In this connection, the offense charged necessarily includes the offense proved when some of the essential elements or ingredients of the former, as alleged in the complaint or information, constitute the latter. And an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form a part of those constituting the latter.28

Homicide is necessarily included in the crime of murder; thus, the respondent judge merely ordered the amendment of the Information and not the dismissal of the original Information. To repeat, it was the same original information that was amended by merely crossing out the word "Homicide" and writing the word "Murder," instead, which showed that there was no dismissal of the homicide case.

Anent the last issue, petitioner contends that respondent judge gravely abused his discretion in ordering that the original Information for Homicide stands after realizing that disregard of rank does not qualify the killing to Murder. That ruling was again a violation of his right against double jeopardy, as he will be prosecuted anew for a charge of Homicide, which has already been terminated earlier.

We are not convinced. Respondent judge did not commit any grave abuse of discretion.

A reading of the Order dated December 18, 2002 showed that the respondent judge granted petitioner's motion for reconsideration, not on the ground that double jeopardy exists, but on his realization that "disregard of rank" is a generic aggravating circumstance which does

not qualify the killing of the victim to murder. Thus, he rightly corrected himself by reinstating the original Information for Homicide. The requisite of double jeopardy that the first jeopardy must have attached prior to the second is not present, considering that petitioner was neither convicted nor acquitted; nor was the case against him dismissed or otherwise terminated without his express consent.29

WHEREFORE, the petition is DISMISSED, there being no grave abuse of discretion committed by respondent Judge.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 173588               April 22, 2009

ARIEL M. LOS BAÑOS, on behalf of P/Supt. Victor Arevalo, SPO2 Marcial Olympia, SPO1 Rocky Mercene and PO1 Raul Adlawan, and in his personal capacity, Petitioner, vs.JOEL R. PEDRO, Respondent.

D E C I S I O N

BRION, J.:

We review in this petition for review on certiorari1 the September 19, 2005 decision2 and the July 6, 2006 resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 80223. The petition seeks to revive the case against respondent Joel R. Pedro (Pedro) for election gun ban violation after the CA declared the case permanently dismissed pursuant to Section 8, Rule 117 of the Rules of Court.

THE ANTECEDENTS

Pedro was charged in court for carrying a loaded firearm without the required written authorization from the Commission on Elections (Comelec) a day before the May 14, 2001 national and local elections. The Information reads:

That on or about the 13th day of May 2001 at about 4:00 o’clock in the afternoon, in [S]itio Bantauyan, [B]arangay Bantad, Municipality of Boac, Province of Marinduque, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused did then and there, willfully, unlawfully and feloniously carry a Revolver Cal. 357, Magnum Ruger 100 loaded with six (6) ammunitions, with Serial No. 173-56836 outside his residence during the election period, without authorization in writing from the Commission on Election[s].

CONTRARY TO LAW.4

The accusation was based on Batas Pambansa Bilang 881 or the Omnibus Election Code (Code) after the Marinduque Philippine National Police (PNP) caught Pedro illegally carrying his firearm at a checkpoint at Boac, Marinduque. The Boac checkpoint team was composed of Police Senior Inspector Victor V. Arevalo, SPO2 Marshal Olympia, SPO1 Rocky Mercene, and PO1 Raul Adlawan. The team stopped a silver-gray Toyota Hi-Ace with plate number WHT-371 on the national highway, coming from the Boac town proper. When Pedro (who was seated at the rear portion) opened the window, Arevalo saw a gun carry case beside him. Pedro could not

show any COMELEC authority to carry a firearm when the checkpoint team asked for one, but he opened the case when asked to do so. The checkpoint team saw the following when the case was opened: 1) one Revolver 357 Magnum Ruger GP100, serial number 173-56836, loaded with six ammunitions; 2) one ammunition box containing 100 bullets; 3) two pieces speed loader with six ammunitions each; and 4) one set ear protector. Pedro was with three other men. The checkpoint team brought all of them to the Boac police station for investigation.

The Boac election officer filed a criminal complaint against Pedro for violating the election gun ban, i.e., for carrying a firearm outside of his residence or place of business without any authority from the Comelec. After an inquest, the Marinduque provincial prosecutor filed the above Information against Pedro with the Marinduque Regional Trial Court (RTC) for violation of the Code’s Article XXII, Section 261 (q),5 in relation to Section 264.6

Pedro filed a Motion for Preliminary Investigation, which the RTC granted.7 The preliminary investigation, however, did not materialize. Instead, Pedro filed with the RTC a Motion to Quash, arguing that the Information "contains averments which, if true, would constitute a legal excuse or justification8 and/or that the facts charged do not constitute an offense."9 Pedro attached to his motion a Comelec Certification dated September 24, 2001 that he was "exempted" from the gun ban. The provincial prosecutor opposed the motion.

The RTC quashed the Information and ordered the police and the prosecutors to return the seized articles to Pedro.10

The petitioner, private prosecutor Ariel Los Baños (Los Baños), representing the checkpoint team, moved to reopen the case, as Pedro’s Comelec Certification was a "falsification," and the prosecution was "deprived of due process" when the judge quashed the information without a hearing. Attached to Los Baños’ motion were two Comelec certifications stating that: (1) Pedro was not

exempted from the firearm ban; and (2) the signatures in the Comelec Certification of September 24, 2001 were forged.

The RTC reopened the case for further proceedings, as Pedro did not object to Los Baños’ motion.11 Pedro moved for the reconsideration of the RTC’s order primarily based on Section 8 of Rule 117,12 arguing that the dismissal had become permanent. He likewise cited the public prosecutor’s lack of express approval of the motion to reopen the case.

The public prosecutor, however, manifested his express conformity with the motion to reopen the case. The trial court, for its part, rejected the position that Section 8, Rule 117 applies, and explained that this provision refers to situations where both the prosecution and the accused mutually consented to the dismissal of the case, or where the prosecution or the offended party failed to object to the dismissal of the case, and not to a situation where the information was quashed upon motion of the accused and over the objection of the prosecution. The RTC, thus, set Pedro’s arraignment date.

Pedro filed with the CA a petition for certiorari and prohibition to nullify the RTC’s mandated reopening.13 He argued that the RTC committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that the dismissal contemplated under Section 8, Rule 117 refers to situations where either the prosecution and the accused mutually consented to, or where the prosecution alone moved for, the provisional dismissal of the case; in rejecting his argument that the prescriptive periods under Article 90 of the Revised Penal Code14 or Act No. 332615 find no application to his case as the filing of the Information against him stopped the running of the prescriptive periods so that the prescription mandated by these laws became irrelevant; and, in setting the case for arraignment and pre-trial conference, despite being barred under Section 8 of Rule 117.

THE COURT OF APPEALS DECISION

The CA initially denied Pedro’s petition. For accuracy, we quote the material portions of its ruling:

The petition lacks merit.

The trial court erred in ruling that Section 8, Rule 117 does not apply to provisional dismissals on motion of the accused. The Rule merely provides that a case shall not be provisionally dismissed, except with the express consent of the accused and with notice to the offended party. Nothing in the said rule proscribes its application to dismissal on motion of the accused.

Nevertheless, we find no basis for issuing the extraordinary writs of certiorari and prohibition, as there is no showing that the error was tainted with grave abuse of discretion. Grave abuse of discretion implies capricious and whimsical exercise of judgment amounting to lack of jurisdiction. The grave abuse of discretion must be so patent and gross as to amount to an evasion or refusal to perform a duty enjoined by law.

Before the petitioner may invoke the time-bar in Section 8, he must establish the following:

1. the prosecution, with the express conformity of the accused or the accused moves for a provisional (sin perjuicio) dismissal of the case; or both the prosecution and the accused move for a provisional dismissal of the case;

2. the offended party is notified of the motion for a provisional dismissal of the case;

3. the court issues an order granting the motion and dismissing the case provisionally;

4. the public prosecutor is served, with a copy of the order of provisional dismissal of the case.

Although the second paragraph of Section 8 states that the order of dismissal shall become permanent one year after the issuance thereof, without the case having been revived, such provision should be construed to mean that the dismissal shall become permanent one year after service of the order of dismissal on the public prosecutor, as the public prosecutor cannot be expected to comply with the timeliness requirement unless he is served with a copy of the order of dismissal.

In the instant, case, the records are bereft of proof as to when the public prosecutor was served the order of dismissal dated 22 November 2001. Absent such proof, we cannot declare that the State is barred from reviving the case.

WHEREFORE, the petition is DENIED.

In his motion for reconsideration, Pedro manifested the exact date and time of the Marinduque provincial prosecutor’s receipt of the quashal order to be "2:35 p.m., December 10, 2001," and argued that based on this date, the provisional dismissal of the case became "permanent" on December 10, 2002. Based on this information, the CA reversed itself, ruling as follows:

On 9 September 2005, we ruled that Section 8, Rule 117 is applicable to a dismissal on motion of the accused. However, we did not issue the writs of certiorari and prohibition, because it was shown that the trial court committed grave abuse of discretion in ordering the reopening of the case. Moreover, we stated that we cannot rule on the issue of whether or not the State is barred from reopening the case because it was not shown when the public prosecutor was served the order of dismissal.

x x x

The arguments raised in the respondents’ motion for modification were duly passed upon in arriving at the decision dated 9 September 2005, and no new matters were raised which would warrant a reconsideration thereof.

On the other hand, the petitioner was able to prove that the motion to reopen the case was filed after the lapse of more than one year from the time the public prosecutor was served the notice of dismissal. Therefore, the state is barred from reopening the case.

WHEREFORE, petitioner Joel Pedro’s motion for partial reconsideration is hereby GRANTED, and respondent Ariel Los Banos’ motion for modification of judgment is, accordingly, DENIED.

To summarize this ruling, the appellate court, while initially saying that there was an error of law but no grave abuse of discretion that would call for the issuance of a writ, reversed itself on motion for reconsideration; it then ruled that the RTC committed grave abuse of discretion because it failed to apply Section 8, Rule 17 and the time-bar under this provision.

THE PETITION

Los Baños prays in his petition that the case be remanded to the RTC for arraignment and trial, or that a new charge sheet be filed against Pedro, or that the old information be re-filed with the RTC. He contends that under Section 6 of Rule 117, an order sustaining a motion to quash does not bar another prosecution for the same offense, unless the motion was based on the grounds specified in Section 3(g)16 and (i)17 of Rule 117. Los Baños argues that the dismissal under Section 8 of Rule 117 covers only situations where both the prosecution and the accused either mutually consented or agreed to, or where the prosecution alone moved for the provisional dismissal of the case; it can also apply to instances of failure on the part of the prosecution or the offended party to object, after having been forewarned or cautioned that its case will be dismissed. It does

not apply where the information was quashed. He adds that although the trial court granted the motion to quash, it did not categorically dismiss the case, either provisionally or permanently, as the judge simply ordered the return of the confiscated arms and ammunition to Pedro. The order was "open-ended," and did not have the effect of provisionally dismissing the case under Section 8 of Rule 117.

Los Baños also contends that the CA gravely erred when: (1) it ruled in effect that the Order dated November 22, 2001 granting the motion to quash is considered a provisional dismissal, which became permanent one year from the prosecutor’s receipt of the order; the order to quash the Information was based on Section 3 of Rule 117, not on Section 8 of this Rule; (2) it granted Pedro’s motion for reconsideration and denied Los Baños’ motion for modification of judgment, when Section 6 of Rule 117 clearly provides that an order granting a motion to quash is not a bar to another prosecution for the same offense.

He notes that the grounds Pedro relied upon in his motion to quash are not subsections (g) or (i) of Rule 117, but its subsections (a) – that the facts charged do not constitute an offense, and (h) – that it contains averments which if true would constitute a legal justification. Pedro’s cited grounds are not the exceptions that would bar another prosecution for the same offense.18 The dismissal of a criminal case upon the express application of the accused (under subsections [a] and [h]) is not a bar to another prosecution for the same offense, because his application is a waiver of his constitutional prerogative against double jeopardy.

In response to all these, respondent Pedro insists and fully relies on the application of Section 8 of Rule 117 to support his position that the RTC should not have granted Los Banos’ motion to reopen the case.

THE ISSUES

The issue is ultimately reduced to whether Section 8, Rule 117 is applicable to the case, as the CA found. If it applies, then the CA ruling effectively lays the matter to rest. If it does not, then the revised RTC decision reopening the case should prevail.

OUR RULING

We find the petition meritorious and hold that the case should be remanded to the trial court for arraignment and trial.

Quashal v. Provisional Dismissal

a. Motion to Quash

A motion to quash is the mode by which an accused assails, before entering his plea, the validity of the criminal complaint or the criminal information filed against him for insufficiency on its face in point of law, or for defect apparent on the face of the Information.19 The motion, as a rule, hypothetically admits the truth of the facts spelled out in the complaint or information. The rules governing a motion to quash are found under Rule 117 of the Revised Rules of Court. Section 3 of this Rule enumerates the grounds for the quashal of a complaint or information, as follows:

(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.

b. Provisional Dismissal

On the other hand, Section 8, Rule 117 that is at the center of the dispute states that:

SEC.8. Provisional dismissal. — A case shall not be provisionally dismissed except with the express consent of the accused and with notice to the offended party.

The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been revived. With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal shall become permanent two (2) years after issuance of the order without the case having been revived.

A case is provisionally dismissed if the following requirements concur:

1) the prosecution with the express conformity of the accused, or the accused, moves for a provisional dismissal (sin perjuicio) of his case; or both the prosecution and the accused move for its provisional dismissal;

2) the offended party is notified of the motion for a provisional dismissal of the case;

3) the court issues an order granting the motion and dismissing the case provisionally; and

4) the public prosecutor is served with a copy of the order of provisional dismissal of the case.20

In People v. Lacson,21 we ruled that there are sine quanon requirements in the application of the time-bar rule stated in the second paragraph of Section 8 of Rule 117. We also ruled that the time-bar under the foregoing provision is a special procedural limitation qualifying the right of the State to prosecute, making the time-bar an essence of the given right or as an inherent part thereof, so that the lapse of the time-bar operates to extinguish the right of the State to prosecute the accused.

c. Their Comparison

An examination of the whole Rule tells us that a dismissal based on a motion to quash and a provisional dismissal are far different from one another as concepts, in their features, and legal consequences. While the provision on provisional dismissal is found within Rule 117 (entitled Motion to Quash), it does not follow that a motion to quash results in a provisional dismissal to which Section 8, Rule 117 applies.

A first notable feature of Section 8, Rule 117 is that it does not exactly state what a provisional dismissal is. The modifier "provisional" directly suggests that the dismissals which Section 8

essentially refers to are those that are temporary in character (i.e., to dismissals that are without prejudice to the re-filing of the case), and not the dismissals that are permanent (i.e., those that bar the re-filing of the case). Based on the law, rules, and jurisprudence, permanent dismissals are those barred by the principle of double jeopardy,22 by the previous extinction of criminal liability,23 by the rule on speedy trial,24 and the dismissals after plea without the express consent of the accused.25 Section 8, by its own terms, cannot cover these dismissals because they are not provisional.

A second feature is that Section 8 does not state the grounds that lead to a provisional dismissal. This is in marked contrast with a motion to quash whose grounds are specified under Section 3. The delimitation of the grounds available in a motion to quash suggests that a motion to quash is a class in itself, with specific and closely-defined characteristics under the Rules of Court. A necessary consequence is that where the grounds cited are those listed under Section 3, then the appropriate remedy is to file a motion to quash, not any other remedy. Conversely, where a ground does not appear under Section 3, then a motion to quash is not a proper remedy. A motion for provisional dismissal may then apply if the conditions required by Section 8 obtain.

A third feature, closely related to the second, focuses on the consequences of a meritorious motion to quash. This feature also answers the question of whether the quashal of an information can be treated as a provisional dismissal. Sections 4, 5, 6, and 7 of Rule 117 unmistakably provide for the consequences of a meritorious motion to quash. Section 4 speaks of an amendment of the complaint or information, if the motion to quash relates to a defect curable by amendment. Section 5 dwells on the effect of sustaining the motion to quash - the complaint or information may be re-filed, except for the instances mentioned under Section 6. The latter section, on the other hand, specifies the limit of the re-filing that Section 5 allows – it cannot be done where the dismissal is based on extinction of criminal liability or double jeopardy. Section 7 defines

double jeopardy and complements the ground provided under Section 3(i) and the exception stated in Section 6.1awwphi1

Rather than going into specifics, Section 8 simply states when a provisional dismissal can be made, i.e., when the accused expressly consents and the offended party is given notice. The consent of the accused to a dismissal relates directly to what Section 3(i) and Section 7 provide, i.e., the conditions for dismissals that lead to double jeopardy. This immediately suggests that a dismissal under Section 8 – i.e., one with the express consent of the accused – is not intended to lead to double jeopardy as provided under Section 7, but nevertheless creates a bar to further prosecution under the special terms of Section 8.

This feature must be read with Section 6 which provides for the effects of sustaining a motion to quash – the dismissal is not a bar to another prosecution for the same offense – unless the basis for the dismissal is the extinction of criminal liability and double jeopardy. These unique terms, read in relation with Sections 3(i) and 7 and compared with the consequences of Section 8, carry unavoidable implications that cannot but lead to distinctions between a quashal and a provisional dismissal under Section 8. They stress in no uncertain terms that, save only for what has been provided under Sections 4 and 5, the governing rule when a motion to quash is meritorious are the terms of Section 6. The failure of the Rules to state under Section 6 that a Section 8 provisional dismissal is a bar to further prosecution shows that the framers did not intend a dismissal based on a motion to quash and a provisional dismissal to be confused with one another; Section 8 operates in a world of its own separate from motion to quash, and merely provides a time-bar that uniquely applies to dismissals other than those grounded on Section 3. Conversely, when a dismissal is pursuant to a motion to quash under Section 3, Section 8 and its time-bar does not apply.

Other than the above, we note also the following differences stressing that a motion to quash and its resulting dismissal is a unique class that should not be confused with other dismissals:

First, a motion to quash is invariably filed by the accused to question the efficacy of the complaint or information filed against him or her (Sections 1 and 2, Rule 117); in contrast, a case may be provisionally dismissed at the instance of either the prosecution or the accused, or both, subject to the conditions enumerated under Section 8, Rule 117.26

Second, the form and content of a motion to quash are as stated under Section 2 of Rule 117; these requirements do not apply to a provisional dismissal.

Third, a motion to quash assails the validity of the criminal complaint or the criminal information for defects or defenses apparent on face of the information; a provisional dismissal may be grounded on reasons other than the defects found in the information.

Fourth, a motion to quash is allowed before the arraignment (Section 1, Rule 117); there may be a provisional dismissal of the case even when the trial proper of the case is already underway provided that the required consents are present.27

Fifth, a provisional dismissal is, by its own terms, impermanent until the time-bar applies, at which time it becomes a permanent dismissal. In contrast, an information that is quashed stays quashed until revived; the grant of a motion to quash does not per se carry any connotation of impermanence, and becomes so only as provided by law or by the Rules. In re-filing the case, what is important is the question of whether the action can still be brought, i.e., whether the prescription of action or of the offense has set in. In a provisional dismissal, there can be no re-filing after

the time-bar, and prescription is not an immediate consideration.

To recapitulate, quashal and provisional dismissal are different concepts whose respective rules refer to different situations that should not be confused with one another. If the problem relates to an intrinsic or extrinsic deficiency of the complaint or information, as shown on its face, the remedy is a motion to quash under the terms of Section 3, Rule 117. All other reasons for seeking the dismissal of the complaint or information, before arraignment and under the circumstances outlined in Section 8, fall under provisional dismissal.

Thus, we conclude that Section 8, Rule 117 does not apply to the reopening of the case that the RTC ordered and which the CA reversed; the reversal of the CA’s order is legally proper.

Pedro’s Motion to Quash

The merits of the grant of the motion to quash that the RTC initially ordered is not a matter that has been ruled upon in the subsequent proceedings in the courts below, including the CA. We feel obliged to refer back to this ruling, however, to determine the exact terms of the remand of the case to the RTC that we shall order.

The grounds Pedro cited in his motion to quash are that the Information contains averments which, if true, would constitute a legal excuse or justification [Section 3(h), Rule 117], and that the facts charged do not constitute an offense [Section 3(a), Rule 117]. We find from our examination of the records that the Information duly charged a specific offense and provides the details on how the offense was committed.28 Thus, the cited Section 3(a) ground has no merit. On the other hand, we do not see on the face or from the averments of the Information any legal excuse or justification. The cited basis, in fact, for Pedro’s motion to quash was a Comelec Certification (dated September 24, 2001, issued by Director Jose P. Balbuena, Sr. of the Law Department, Committee on Firearms and

Security Personnel of the Comelec, granting him an exemption from the ban and a permit to carry firearms during the election period)29 that Pedro attached to his motion to quash. This COMELEC Certification is a matter aliunde that is not an appropriate motion to raise in, and cannot support, a motion to quash grounded on legal excuse or justification found on the face of the Information. Significantly, no hearing was ever called to allow the prosecution to contest the genuineness of the COMELEC certification.30

Thus, the RTC grossly erred in its initial ruling that a quashal of the Information was in order. Pedro, on the other hand, also misappreciated the true nature, function, and utility of a motion to quash. As a consequence, a valid Information still stands, on the basis of which Pedro should now be arraigned and stand trial.

One final observation: the Information was not rendered defective by the fact that Pedro was charged of violating Section 261(q) of the Code, instead of Section 32 of R.A. No. 7166, which amended Section 261(q); these two sections aim to penalize among others, the carrying of firearms (or other deadly weapons) in public places during the election period without the authority of the Comelec. The established rule is that the character of the crime is not determined by the caption or preamble of the information or from the specification of the provision of law alleged to have been violated; the crime committed is determined by the recital of the ultimate facts and circumstances in the complaint or information31 Further, in Abenes v. Court of Appeals,32 we specifically recognized that the amendment under Section 32 of R.A. No. 7166 does not affect the prosecution of the accused who was charged under Section 261(q) of the Code.

WHEREFORE, we hereby GRANT the petition and accordingly declare the assailed September 19, 2005 decision and the July 6, 2006 resolution of the Court of Appeals in CA-G.R. SP No. 80223 respectively MODIFIED and REVERSED. The case is remanded to the Regional Trial Court of Boac, Marinduque for the arraignment

and trial of respondent Joel R. Pedro, after reflecting in the Information the amendment introduced on Section 261(q) of the Code by Section 32 of Republic Act No. 7166.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

G.R. No. 183824               December 8, 2010

MYRNA P. ANTONE, Petitioner, vs.LEO R. BERONILLA, Respondent.

D E C I S I O N

PEREZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to nullify and set aside the issuances of the Court of Appeals in CA-G.R. SP No. 102834, to wit: (a) the Resolution1 dated 29 April 2008 dismissing the petition for certiorari under Rule 65, which assailed the trial court’s Orders2 dated 20 September 2007 and 6 December 2007 in Criminal Case No. 07-0907-CFM for Bigamy; and (b) the Resolution3 dated 18 July 2008 denying the motion for reconsideration of the first resolution.

The trial court quashed the Information on the ground that the elements of Bigamy were rendered incomplete after herein respondent presented documents to prove a fact, which the court believed would negate the allegation in the Information that there was a first valid marriage. The evidence presented showed that respondent later obtained a judicial declaration of nullity of the first union following the celebration of a subsequent marriage.

The Antecedents

On 12 March 2007, herein petitioner Myrna P. Antone executed an Affidavit-Complaint4 for Bigamy against Leo R. Beronilla before the Office of the City Prosecutor of Pasay City. She alleged that her marriage with respondent in 1978 had not yet been legally dissolved when the latter contracted a second marriage with one Cecile Maguillo in 1991.

On 21 June 2007, the prosecution filed the corresponding Information5 before the Regional Trial Court, Pasay City. The case was docketed as Criminal Case No. 07-0907-CFM and raffled to Branch 115.

Pending the setting of the case for arraignment, herein respondent moved to quash the Information on the ground that the facts charged do not constitute an offense.6 He informed the court that his marriage with petitioner was declared null and void by the Regional Trial Court, Branch 16, Naval, Biliran on 26 April 2007;7 that the decision became final and executory on 15 May 200[7];8 and that such decree has already been registered with the Municipal Civil Registrar on 12 June 2007.9 He argued that since the marriage had been declared null and 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 the crime of bigamy.10

In its comment/opposition to the motion,11 the prosecution, through herein petitioner, maintained that the respondent committed an act

which has all the essential requisites of bigamy. The prosecution pointed out that the marriage of petitioner and respondent on 18 November 1978 has not yet been severed when he contracted a second marriage on 16 February 1991, for which reason, bigamy has already been committed before the court declared the first marriage null and void on 27 April 2007.12 The prosecution also invoked the rulings of the Supreme Court holding that a motion to quash is a hypothetical admission of the facts alleged in the information, and that facts contrary thereto are matters of defense which may be raised only during the presentation of evidence.13

After a hearing on the motion,14 the court quashed the Information.15 Applying Morigo v. People,16 it ruled:

Hence, contrary to what was stated in the Information, accused Beronilla was actually never legally married to Myrna Antone. On this score alone, the first element appears to be missing. Furthermore, the statement in the definition of Bigamy which reads "before the first marriage has been legally dissolved" clearly contemplates that the first marriage must at least be annullable or voidable but definitely not void, as in this case. xxx [I]n a similar case, [the Supreme Court] had the occasion to state:

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. xxx17

The prosecution, through herein petitioner, moved for reconsideration of the said Order18 on the ground, among others, that the facts and the attending circumstances in Morigo are not on all

fours with the case at bar. It likewise pointed out that, in Mercado v. Tan,19 this Court has already 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."20

In its Order of 6 December 2007,21 the court denied the motion for reconsideration stating that Mercado has already been superseded by Morigo.

In the interim, in a Petition for Relief from Judgment22 before the Regional Trial Court of Naval, Biliran, petitioner questioned the validity of the proceedings in the petition for the declaration of nullity of marriage in Civil Case No. B-1290 on 5 October 2007. On 24 March 2008, the court set aside its Decision of 26 April 2007 declaring the marriage of petitioner with respondent null and void, and required herein petitioner (respondent in Civil Case No. B-1290) to file her "answer to the complaint."23 On 21 July 2008, the court DISMISSED the petition for nullity of marriage for failure of herein respondent (plaintiff in Civil Case No. B-1290) to submit his pre-trial brief.24Respondent, however, challenged the orders issued by the court before the Court of Appeals.25 The matter is still pending resolution thereat.26

Meanwhile, in a petition for certiorari under Rule 65 of the Rules of Court filed on 26 March 2008 before the Court of Appeals,27 herein petitioner alleged that the Pasay City trial court acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction when it dismissed the case of bigamy and denied her motion for reconsideration.

In its Resolution of 29 April 2008, the Court of Appeals dismissed the petition stating that:

The present petition xxx is fatally infirm in form and substance for the following reasons:

1. The verification is defective as it does not include the assurance that the allegations in the petition are based on authentic records.

2. Since the petition assails the trial court’s dismissal of the criminal information for bigamy filed against private respondent Leo Beronilla, the petition, if at all warranted, should be filed in behalf of the People of the Philippines by the Office of the Solicitor General, being its statutory counsel in all appealed criminal cases.

3. There is a violation of the rule on double jeopardy as the dismissal of the subject criminal case is tantamount to an acquittal based on the trial court’s finding that the first essential element of bigamy, which is a first valid marriage contracted by private respondent is wanting. There is no clear showing in the petition that the dismissal was tainted with arbitrariness which violated petitioner’s right to due process. Notably, petitioner filed her comment/opposition to private respondent’s motion to quash before the trial court issued its Order dated September 20, 2007 dismissing the information. Hence, if there is no denial of due process, there can be no grave abuse of discretion that would merit the application of the exception to the double jeopardy rule. 28

On 18 July 2008, the Court of Appeals denied respondent’s Motion for Reconsideration of the aforequoted Resolution for lack of merit. 29

Hence, this petition.30

Our Ruling

I

We are convinced that this petition should be given due course despite the defect in the pleading and the question of legal standing to bring the action.

The Rules of Court provides that a pleading required to be verified which lacks a proper verification shall be treated as unsigned pleading.31

This, notwithstanding, we have, in a number of cases, opted to relax the rule in order that the ends of justice may be served.32 The defect being merely formal and not jurisdictional, we ruled that the court may nevertheless order the correction of the pleading, or even act on the pleading "if the attending circumstances are such that xxx strict compliance with the rule may be dispensed with in order that the ends of justice xxx may be served."33 At any rate, a pleading is required to be verified only to ensure that it was prepared in good faith, and that the allegations were true and correct and not based on mere speculations.34

There is likewise no dispute that it is the Office of the Solicitor General (OSG) which has the authority to represent the government in a judicial proceeding before the Court of Appeals. The Administrative Code specifically defined its powers and functions to read, among others:

Sec. 35. Powers and Functions. - The Office of the Solicitor General shall represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of lawyers. xxx It shall have the following specific powers and functions:

(1) Represent the Government in the Supreme Court and the Court of Appeals in all criminal proceedings; represent the Government and its officers in the Supreme Court, Court of Appeals, and all other courts or tribunals in all civil actions and special proceedings in

which the Government or any officer thereof in his official capacity is a party.35

As an exception to this rule, the Solicitor General is allowed to:

(8) Deputize legal officers of government departments, bureaus, agencies and offices to assist the Solicitor General and appear or represent the Government in cases involving their respective offices, brought before the courts and exercise supervision and control over such legal officers with respect to such cases.36

Thus, in Republic v. Partisala,37 we held that the summary dismissal of an action in the name of the Republic of the Philippines, when not initiated by the Solicitor General, is in order.38 Not even the appearance of the conformity of the public prosecutor in a petition for certiorari would suffice because the authority of the City Prosecutor or his assistant to represent the People of the Philippines is limited to the proceedings in the trial court.39

We took exceptions, however, and gave due course to a number of actions even when the respective interests of the government were not properly represented by the Office of the Solicitor General.

In Labaro v. Panay,40 this Court dealt with a similar defect in the following manner:

It must, however, be stressed that if the public prosecution is aggrieved by any order or ruling of the trial judge in a criminal case, the OSG, and not the prosecutor, must be the one to question the order or ruling before us.41 xxx

Nevertheless, since the challenged order affects the interest of the State or the plaintiff People of the Philippines, we opted not to dismiss the petition on this technical ground. Instead, we required the OSG to comment on the petition, as we had done before in some cases.42 In light of its Comment, we rule that the OSG has ratified

and adopted as its own the instant petition for the People of the Philippines. (Emphasis supplied.)

In Cooperative Development Authority v. Dolefil Agrarian Reform Beneficiaries Cooperative, Inc.,43 without requiring the Office of the Solicitor General to file a comment on the petition, this Court determined the merits of the case involving a novel issue on the nature and scope of jurisdiction of the Cooperative Development Authority to settle cooperative disputes as well as the battle between two (2) factions concerning the management of the Dolefil Agrarian Reform Beneficiaries Cooperative, Inc. (DARBCI) "that inevitably threatens the very existence of one of the country’s major cooperatives."44

And, lest we defeat the ends of justice, we opt to look into the merit of the instant petition even absent the imprimatur of the Solicitor General. After all, "for justice to prevail, the scales must balance, for justice is not to be dispensed for the accused alone."45 To borrow the words of then Justice Minita V. Chico-Nazario in another case where the dismissal of a criminal case pending with the trial court was sought:

[T]he task of the pillars of the criminal justice system is to preserve our democratic society under the rule of law, ensuring that all those who [come or are brought to court] are afforded a fair opportunity to present their side[s]. xxx The State, like any other litigant, is entitled to its day in court, and to a reasonable opportunity to present its case.46

II

We cannot agree with the Court of Appeals that the filing of this petition is in violation of the respondent’s right against double jeopardy on the theory that he has already been practically acquitted when the trial court quashed the Information.

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.47

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.48

We reiterate, time and again, that jeopardy does not attach in favor of the accused on account of an order sustaining a motion to quash.49 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."50 Thus:

It will be noted that the order sustaining the motion to quash the complaint against petitioner was based on Subsection (a) of Section 2 of Rule 117 of the Rules of Court – that the facts charged in the complaint do not constitute an offense. If this is so then the dismissal of said complaint will not be a bar to another prosecution for the same offense, for it is provided in Section 8 of Rule 117 of the Rules of Court [now Section 6 of the 2000 Rules of Criminal Procedure] that an order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in Section 2, Subsection[s] (f) and (h) of this rule [now substantially reproduced in Section 3, Subsections (g) and (i) of the 2000 Rules of Criminal Procedure] xxx.51

III

We now determine the merit of the petition ˗ did the trial court act without or in excess of jurisdiction or grave abuse of discretion when it sustained respondent’s motion to quash on the basis of a fact contrary to those alleged in the information?

Petitioner maintains that the trial court did so because the motion was a hypothetical admission of the facts alleged in the information and any evidence contrary thereto can only be presented as a matter of defense during trial.

Consistent with existing jurisprudence, we agree with the petitioner.

We define a motion to quash an Information as ˗

the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information.52

This motion is "a hypothetical admission of the facts alleged in the Information,"53 for which reason, the court cannot consider allegations contrary to those appearing on the face of the information.54

As further elucidated in Cruz, Jr. v. Court of Appeals:55

It is axiomatic that a complaint or information must state every single fact necessary to constitute the offense charged; otherwise, a motion to dismiss/quash on the ground that it charges no offense may be properly sustained. The fundamental test in considering a motion to quash on this ground is whether the facts alleged, if hypothetically admitted, will establish the essential elements of the offense as defined in the law.

Contrary to the petitioner’s contention, a reading of the information will disclose that the essential elements of the offense charged are sufficiently alleged. It is not proper therefore to resolve the charges at the very outset, in a preliminary hearing only and without the benefit of a full-blown trial. The issues require a fuller examination. Given the circumstances of this case, we feel it would be unfair to shut off the prosecution at this stage of the proceedings and to dismiss the informations on the basis only of the petitioner’s evidence, such as [this].56

As in the recent case of Los Baños v. Pedro,57 where we found no merit in respondent’s allegation that the facts charged do not constitute an offense because "the Information duly charged a specific offense and provide[d] the details on how the offense was committed,"58 we see no apparent defect in the allegations in the Information in the case at bar. Clearly, the facts alleged in its accusatory portion, which reads:

That on or about the 16th day of February, 1991, in Pasay City, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, LEO R. BERONILLA, having been united in a lawful marriage with one MYRNA A. BERONILLA, which marriage is still in force and subsisting and without having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second marriage with one Cecile Maguillo, which subsequent marriage of the accused has all the essential requisites for validity.59

sufficiently constitute an offense. It contained 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 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.60

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 executory 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 matters of defense cannot be raised in a motion to quash.

Neither do we find a justifiable reason for sustaining the motion to quash 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;61 (2) when the Rules so permit, such as upon the grounds of extinction of criminal liability and double jeopardy;62 and (3) when facts have been established by evidence presented by both parties which destroyed the prima facie truth of the allegations in the information during the hearing on a motion to quash based on the ground that the facts charged do not constitute an offense, and "it would be pure technicality for the court to close its eyes to said facts and still give due course to the prosecution of the case already shown to be weak even to support possible conviction xxx."63

For of what significance would the document showing the belated dissolution of the first marriage offer? Would it serve to prevent the impracticability of proceeding with the trial in accordance with People

v. dela Rosa thereby warranting the non-observance of the settled rule that a motion to quash is a hypothetical admission of the facts alleged in the information? We quote:

[W]here in the hearing on a motion to quash predicated on the ground that the allegations of the information do not charge an offense, facts have been brought out by evidence presented by both parties which destroy theprima facie truth accorded to the allegations of the information on the hypothetical admission thereof, as is implicit in the nature of the ground of the motion to quash, it would be pure technicality for the court to close its eyes to said facts and still give due course to the prosecution of the case already shown to be weak even to support possible conviction, and hold the accused to what would clearly appear to be a merely vexatious and expensive trial, on her part, and a wasteful expense of precious time on the part of the court, as well as of the prosecution.64(Emphasis supplied.)

We find that there is none.

With the submission of the documents showing that the court has declared the first marriage void ab initio, respondent heavily relied on the rulings65 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;66 and (b) a marriage declared void ab initio 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.67

Both principles, however, run contrary to the new provision of the Family Code, which was promulgated by the late President Corazon C. Aquino in 1987, a few years before respondent’s 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 exhaustively discussed in Mercado,68 where this Court settled the "conflicting" jurisprudence on "the need 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,69 this 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 been consummated. Otherwise stated, this Court declared that a person, who contracts a subsequent marriage absent a prior judicial declaration of nullity of a previous one, is guilty of bigamy.70

Notably, Morigo, was indeed promulgated years after Mercado. Nevertheless, we cannot uphold the Order dated 6 December 2007 of the trial court, which maintained that Morigo has already superseded Mercado. In fact, in Morigo, this Court clearly distinguished the two (2) cases from 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

It bears stressing though that in Mercado, the first marriage was actually solemnized xxx. Ostensibly, at least, the first marriage appeared to have transpired, although later declared void ab initio.

In the instant case, however, no marriage ceremony at all was performed by a duly authorized solemnizing officer. Petitioner and Lucia Barrete merely signed a marriage contract on their own. The mere private act of signing a marriage contract bears no semblance to a valid marriage and thus, needs no judicial declaration of nullity.

Such act alone, without more, cannot be deemed to constitute an ostensibly 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.71

The application of Mercado to the cases following Morigo even reinforces the position of this Court to give full meaning to Article 40 of the Family Code. Thus, in 2004, this Court ruled in Tenebro v. Court of Appeals:72

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 vinculum between the spouses is concerned, xxx said marriage is not without legal effects.1avvphil.zw+ 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 written into the law itself that such a marriage, although void ab initio, may still produce legal consequences. Among these legal consequences is incurring criminal liability for bigamy. xxx.73 (Emphasis supplied.)

Finally, in Re: Complaint of Mrs. Corazon S. Salvador against Spouses Noel and Amelia Serafico,74 this Court pronounced:

In a catena of cases,75 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. xxx

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.

All considered, we find that the trial court committed grave abuse of discretion when, in so quashing the Information in Criminal Case No. 07-0907-CFM, it considered an evidence introduced to prove a fact not alleged thereat disregarding the settled rules that a motion to quash is a hypothetical admission of the facts stated in the information; and that facts not alleged thereat may be appreciated only under exceptional circumstances, none of which is obtaining in the instant petition.

WHEREFORE, the Orders dated 20 September 2007 and 6 December 2007 of the Regional Trial Court, Branch 115, Pasay City as well as the Resolutions dated 29 April 2008 and 18 July 2008 of the Court of Appeals are hereby SET ASIDE. Criminal Case No. 07-0907-CFM is REMANDED to the trial court for further proceedings.

SO ORDERED.

Republic of the PhilippinesSUPREME COURTManila

THIRD DIVISION

G.R. No. 134744       January 16, 2001

GIAN PAULO VILLAFLOR, petitioner, vs.DINDO VIVAR y GOZON, respondent.

PANGANIBAN, J.:

The absence of a preliminary investigation does not impair the validity of an information or render it defective. Neither does it affect the jurisdiction of the court or constitute a ground for quashing the information. Instead of dismissing the information, the court should hold the proceeding in abeyance and order the public prosecutor to conduct a preliminary investigation.1âwphi1.nêt

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to set aside the Orders issued by the Regional Trial Court (RTC) of Muntinlupa City (Branch 276) in Civil Case No. 97-134.1 Dated January 20, 1998,2 the first Order granted the Motion to Quash the Informations and ordered the Dismissal of the two criminal cases. The second Order dated July 6, 1998, denied the Motion for Reconsideration.

The Facts

Culled from the records and the pleadings of the parties are the following undisputed facts.

An Information3 for slight physical injuries, docketed as Criminal Case No. 23365, was filed against Respondent Dindo Vivar on February 7, 1997. The case from the alleged mauling of Petitioner Gian Paulo Villaflor by respondent around 1:00 a.m. on January 27, 1997 outside the Fat Tuesday Bar at the Ayala Alabang Town Center, Muntinlupa City. After the severe beating he took from respondent, petition again met respondent who told him, "Sa susunod gagamitin ko na itong baril ko"4 ("Next time, I will use my gun on you").

When the injuries sustained by petitioner turned out to be more serious than they had appeared at first, an Information5 for more

serious physical injuries, docketed as Criminal Case No. 23787, was filed against respondent.6 The earlier charge of slight physical injuries was withdrawn.

At the same time, another Information7 for grave threats, docketed as Criminal Case No. 237288, was filed against respondent on March 17, 1997.

On April 14, 1997, respondent posted a cash bond of P6,000 in Criminal Case No. 23787 (for serious physical injuries)9. Instead of filing a counter-affidavit as required by the trial court, he filed on April 21, 1997, a Motion to Quash the Information in Criminal Case No. 23787 (for grave threats). He contended that the latter should have absorbed the threat, having been made in connection with the charge of serious physical injuries. Thus, he concluded, Criminal Case No. 23728 should be dismissed, as the trial court did not acquire jurisdiction over it.10

In an Order dated April 28, 1997 in Criminal Case No. 23728, the Metropolitan Trial Court (MTC) denied the Motion to Quash, as follows:

"For consideration is a motion to quash filed by accused counsel. Considering that jurisdiction is conferred by law and the case filed is grave threats which is within the jurisdiction of this Court and considering further that a motion to quash is a prohibited [pleading] under the rule on summary procedure, the motion to quash filed by the accused counsel is DENIED.

WHEREFORE, the motion to quash filed by accused counsel is hereby DENIED and let the arraignment of the accused be set on June 25, 1997 at 2:00 0'clock in the afternoon."11

The Motion for Reconsideration filed by Respondent was denied by the MTC on June 17, 1997.12 Thus, he was duly arraigned in Criminal Case No. 23728 (for grave threats), and he pleaded not guilty.

On July 18, 1997, respondent filed a Petition for Certiorari with the RTC of Muntinlupa City. This was docketed as Civil Case No. 97-134. On July 20, 1998, after the parties submitted their respective Memoranda, the RTC issued the assailed Order, which reads as follows:

"The Judicial Officer appears to have acted with grave abuse of discretion amounting to lack of jurisdiction in declaring and denying the MOTION TO QUASH as a prohibitive motion. The same should have been treated and [should have] proceeded under the regular rules of procedure. The MOTION TO QUASH THE INFORMATION filed without preliminary investigation is therefore granted and these cases should have been dismissed.

Let this Petition be turned to the Metropolitan Trial Court, Branch 80-Muntinlupa City for appropriate action."13

The RTC, in an Order dated July 6, 1998, denied the unopposed Motion for Reconsideration, as follows:

"Submitted for resolution is the unopposed Motion for Reconsideration filed by Private Respondent.

The Court agrees with the contention of private respondent that the Motion quash filed by petitioner in the interior court is a prohibited pleading under Rules on Summary Procedure so that its denial is tenable. However, it would appear that the criminal charges were filed without the preliminary investigation having been conducted by the Prosecutor's Office. Although preliminary investigation in cases triable by interior courts is not a matter of right, the provision of Sec.

51 par 3(a) of Republic Act 7926 entitled "An Act Converting the Municipality of Muntinlupa Into Highly Urbanized City To Be Known as the City of Muntinlupa" provides that the city prosecutor shall conduct preliminary investigations of ALL crimes, even violations of city ordinances. This Act amended the Rules on Criminal Procedure. Since this procedure was not taken against accused, the Order dated January 20, 1998 stands.

The Motion for Reconsideration is therefore denied."14

Hence, this Petitioner.15

The Issues

Petitioner submitted the following issues for our consideration:16

"I

Can the court motu propio order the dismissal of two (2) criminal cases for serious physical injuries and grave threats on the ground that the public prosecutor failed to conduct a preliminary investigation?

"II

Should the failure of the public prosecutor to conduct a preliminary investigation be considered a ground to quash the criminal Informations for serious physical injuries and grave threats filed against the accused-respondent?

"III

Should respondent's entry of plea in the [grave] threats case and posting of cash bond waiver of this right, if any, to preliminary investigation?"

The Court Ruling

The Petitioner is meritorious.

First Issue:

Lack of Preliminary Investigation

Preliminary investigation is "an inquiry or proceeding to determine whether sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial."17 A component part of due process in criminal justice, preliminary investigation is a statutory and substantive right accorded to the accused before trial. To deny their claim to a preliminary investigation would be to deprive them of the full measure of their right to due process.18

However, the absence of a preliminary investigation does not impair the validity of the information or otherwise render it defective.19 Neither does it affect the jurisdiction of the court or constitute a ground for quashing the information.20 The trial court, instead of dismissing the information, should hold in abeyance the proceedings and order the public prosecutor to conduct a preliminary investigation.

Hence, the RTC in this case erred when it dismissed the two criminal cases for serious physical injuries (Criminal case No. 23787) and grave threats (Criminal Case No. 23728) on the ground that the public prosecutor had failed to conduct a preliminary investigation.

Furthermore, we do not agree that a preliminary investigation was not conducted. In fact, the assistant city prosecutor of Muntinlupa City made a preliminary investigation for slight physical injuries. The said Information was, however, amended when petitioner's injuries turned out to be more serious and did not heal within the period specified in the Revised Penal Code.21

We believe that a new preliminary investigation cannot be demanded by respondent. This is because the charge made by the public prosecutor was only a formal amendment.22

The filing of the Amended Information, without a new preliminary investigation, did not violate the right of respondent to be protected from a hasty, malicious and oppressive prosecution; an open and public accusation of a crime; or from the trouble, the expenses and the anxiety of a public trial. The Amended Information could not have come as a surprise to him for the simple and obvious reason that it charged essentially the same offense as that under the original Information. Moreover, if the original charge was related to the amended one, such that an inquiry would elicit substantially the same facts, then a new preliminary investigation was not necessary.23

Second Issue:

Motion to Quash

As previously stated, 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.24

Section 3, Rule 117 of the Revised Rules of Criminal Procedure provides the grounds on which an accused can move to quash the complaint or information. These are: (a) the facts charged do not constitute an offense; (b) the court trying the case has no jurisdiction

over the offense charged (c) the court trying the case has no jurisdiction over the person of the accused; (d) the officer who filed the information had no authority to do so; (e) the information does not conform substantially to the prescribed form; (f) more than one offense is charged, except in those cases in which existing laws prescribe a single punishment for various offense; (g) the criminal action or liability has been extinguished; (h) information contains averments which, if true, would constitute a legal excuse or justification; and (I) the accused has been previously convicted or is in jeopardy of being convicted or acquitted of the offense charged.25

Nowhere in the above-mentioned section is there any mention of a lack of a preliminary investigation as a ground for a motion to quash. Moreover, such motion is a prohibited pleading under Section 19 of the Revised Rules on Summary Procedure. In the present case, the RTC therefore erred in granting herein respondent's Motion to Quash.

Furthermore, we stress that the failure of the accused to assert any ground for a motion to quash before arraignment, either because he had not filed the motion or had failed to allege the grounds therefor, shall be deemed a waiver of such grounds.26 In this case, he waived his right to file such motion when he pleaded not guilty to the charge of grave threats.1âwphi1.nêt

In view of the foregoing, we find no more need to resolve the other points raised by petitioner.

WHEREFORE, the petition is GRANTED, and the assailed Orders of the Regional Trial Court of Muntinlupa City are REVERSED. No costs.

SO ORDERED.

Melo, Vitug, Gonzaga-Reyes, and Sandoval-Gutierrez JJ., concur.

Republic of the PhilippinesSUPREME COURT

SECOND DIVISION

G.R. No. 143044. July 14, 2005

WILLIAM MADARANG and EVANS KHO, Petitioners, vs.HON. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, HON. OFELIA ARELLANO-MARQUEZ, Presiding Judge of the METROPOLITAN TRIAL COURT OF QUEZON CITY, BRANCH 32 and JANICE YOUNG-CHUA, Respondents.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court which seeks the reversal of the Decision,1 dated April 18, 2000, of the Court of Appeals (CA) in CA-G.R. SP No. 58038 dismissing petitioners’ petition for certiorari.

The factual background of the case is as follows:

On February 11, 1994, private respondent Janice Young-Chua and her husband, Eduardo Chan-Chua, filed a complaint for replevin and damages against petitioners William Madarang and Evans Kho in the Regional Trial Court of Quezon City, docketed as Civil Case No. Q-94-19266 and raffled to Branch 84 (RTC, Branch 84). The complaint alleged that private respondent is the owner of a 1990 dark gray Kia

Pride car, evidenced by Certificate of Registration No. 086058002 dated May 31, 1991; and that on January 29, 1994, petitioners, through force and intimidation, took possession of the subject car by virtue of a falsified Deed of Sale dated December 3, 1993 allegedly executed by private respondent in favor of petitioner Madarang.3

On May 12, 1994, upon complaint of private respondent, petitioner Madarang was charged with Falsification of Public Document in the Metropolitan Trial Court of Quezon City (MeTC) which was docketed as Criminal Case No. 94-24930 and raffled to Branch 32.4 On the same date, petitioners were charged with Grave Coercion in the same MeTC which was docketed as Criminal Case No. 94-24931, also raffled to Branch 32.5 The cases were consolidated and jointly tried.

On August 8, 1996, a Motion to Suspend Criminal Proceedings on the ground of prejudicial question was filed by petitioner Madarang in the MeTC, claiming that the issues presented in the replevin case pending in RTC, Branch 84 are intimately related to the issues pending before the MeTC, the resolution of which would necessarily determine the guilt of the accused in the criminal case for falsification.6

On October 1, 1996, the MeTC denied petitioner Madarang’s motion to suspend proceedings on the ground that the decision in the civil case for replevin will not be determinative of the guilt of the accused in the criminal charge for falsification.7

On March 7, 1997, RTC, Branch 84 dismissed the complaint for replevin upon finding that the deed of sale is genuine and that private respondent voluntarily surrendered possession of the car to the petitioners.8 Private respondent filed a timely appeal with the CA, docketed as CA-G.R. CV No. 57597.

On June 13, 1997, petitioner Madarang filed a Motion to Dismiss the falsification case on the ground that the decision dismissing the replevin suit in RTC, Branch 84 involving the same parties absolved him of criminal liability in the falsification case.9 On January 22, 1998, the MeTC granted the Motion to Dismiss of petitioner Madarang.10On February 27, 1998, a Motion for Reconsideration was filed by the prosecution on the ground that the dismissal was unwarranted since the decision dismissing the replevin suit in RTC, Branch 84 is not yet final and executory, as it is pending appeal before the CA and the accused deliberately omitted to send the private prosecutor a copy of said Motion to Dismiss.11 On July 27, 1998, the MeTC recalled the dismissal of the case for falsification.12

Petitioners filed a Second Omnibus Motion to Quash Criminal Case Nos. 94-24930 and 94-24931 on the ground that the findings of RTC, Branch 84 that the signature of private respondent in the deed of sale is not falsified and that private respondent voluntarily surrendered possession of the car to the petitioners bar the prosecution for falsification and grave coercion. Petitioners alleged that the findings of the RTC are binding and must be given due respect by the MeTC notwithstanding the appeal taken by private respondent.13

In its Opposition, the prosecution alleged that: the motion to quash is a mere scrap of paper as it is contrary to Section 1, Rule 117 of the Rules of Court that a Motion to Quash must be filed before arraignment of accused and such failure to move to quash before entering his plea, accused is deemed to have waived his right to file the same; and, the replevin suit is an independent civil action, separate and distinct from these cases for falsification of public document and grave coercion.14

On March 26, 1999, the MeTC denied petitioners’ motion to quash, ruling that the decision rendered by the RTC, Branch 84 in the replevin case cannot absolve petitioners of the charges in the criminal cases as said decision has not attained finality since it is

pending appeal before the CA; and that petitioners waived any grounds of a Motion to Quash pursuant to Section 1, Rule 117 of the Rules of Court.15

Petitioners then filed a petition for certiorari before the RTC, Branch 77, Quezon City (RTC, Branch 77), docketed as Civil Case No. Q-99-37324. They assailed the MeTC’s denial of their motion to quash the informations for falsification of public document and grave coercion and alleged that the MeTC should have adopted the factual findings of RTC, Branch 84 in the Decision dated March 7, 1997 in the replevin case as res judicata.16

On October 8, 1999, the RTC, Branch 77 dismissed petitioners’ petition for certiorari upon holding that: res judicata cannot be invoked considering that the Decision dated March 7, 1997 of RTC, Branch 84 in the replevin case is not yet a final and executory judgment, being on appeal; in any event, a final judgment rendered in a civil action absolving the defendant from civil liability is not a bar to criminal action; the issues of falsification and coercion were not made the subject of a full-dressed hearing in the replevin case; and, the motion to quash was filed only after their arraignment in violation of the well-settled doctrine that a motion to quash may be filed only before the accused has entered his plea to the accusatory pleading.17

Petitioners’ filed a motion for reconsideration18 but was denied in an Order dated February 29, 2000.19

Undaunted, petitioners filed a petition for certiorari before the CA which, on April 18, 2000, was dismissed. In dismissing the petition, the CA held that the writ of certiorari is not the proper remedy where a motion to quash an information is denied. It further held that the People of the Philippines was not impleaded as a respondent in the case nor was the Office of the Solicitor General furnished a copy of the petition when the Informations were filed in the name of the

People of the Philippines and necessarily it is the party interested in sustaining the proceedings in the court.20

Hence, the present petition for review on certiorari anchored on the following grounds:

THE HONORABLE COURT OF APPEALS HAS DECIDED THE ISSUES PRESENTED PROBABLY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT.

THE HONORABLE COURT OF APPEALS HAS SO FAR DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS OR SO FAR SANCTIONED SUCH DEPARTURE BY THE LOWER COURT AS TO CALL FOR AN EXERCISE OF THE POWER OF SUPERVISION.21

Petitioners claim that the MeTC Judge committed grave abuse of discretion when she denied their motion to quash the Informations and refused to dismiss the charges against them since the charges against them pending before her court were "obliterated" by the positive factual findings of RTC, Branch 84 in its Decision dated March 7, 1997 that the signature of private respondent in the Deed of Sale dated December 3, 1993 is genuine and she voluntarily surrendered the car to petitioners. They maintain that such factual findings of RTC, Branch 84 in its Decision dated March 7, 1997 bar their prosecution in the criminal cases for falsification of public document and grave coercion. They submit that once a court of competent jurisdiction puts to finish an issue of fact, it cannot be disturbed by the lower court and, accordingly, the factual findings of RTC, Branch 84 cannot be overturned by the MeTC.

The Solicitor General, on the other hand, avers that the decision in the replevin suit cannot foreclose or suspend the prosecution of the criminal cases for falsification and grave coercion as replevin is an entirely separate and distinct remedy allowed by the rules. He states

that res judicata cannot apply for lack of the essential elements of identity of parties and finality of the decision in the replevin suit.

As for private respondent, she argues that the decision of RTC, Branch 84 can not be conclusive upon the MeTC because it is not a final and executory judgment, being on appeal in the CA, and, even if final, the rules provide that such final decision does not foreclose prosecution of the criminal action. She insists that the MeTC Judge did not act beyond her jurisdiction as the denial of the motion to quash was in accordance with law and jurisprudence and, thus, petitioners’ resort to certiorari was improper and appropriately dismissed by the RTC and the CA.

At the outset, we observe that while the assigned errors appear to raise errors of judgment committed by the CA, the arguments of the petitioners purely dwell on the alleged grave abuse of discretion or error of jurisdiction committed by the MeTC in denying the Motion to Quash, the very issue they raised in the petition for certioraribefore the RTC, when the issues that should have been raised in the petition for review on certiorari before us are the errors of judgment that the CA may have committed in dismissing their petition for certiorari. Petitioners’ utter failure to bring up the matter concerning the CA’s bases in dismissing their petition shows that they are evading the issues.

Nonetheless, we find that the CA is correct in dismissing petitioners’ petition for certiorari.

First. We note that the petitions for certiorari in the RTC and CA are defective since petitioners failed to implead the People of the Philippines as respondent therein. As provided in Section 5,22 Rule 110 of the Rules of Criminal Procedure, all criminal actions are prosecuted under the direction and control of the public prosecutor. The prosecution of offenses is thus the concern of the government prosecutors. It behooved the petitioners to implead the People of the Philippines as respondent in the RTC and in the CA to enable the

public prosecutor or Solicitor General, as the case may be, to comment on the petitions. The failure to implead is fatal to petitioners’ cause.

Second. It is settled that a special civil action for certiorari and prohibition is not the proper remedy to assail the denial of a motion to quash an information. The established rule is that when such an adverse interlocutory order is rendered, the remedy is not to resort forthwith to certiorari or prohibition, but to continue with the case in due course and, when an unfavorable verdict is handed down to take an appeal in the manner authorized by law.23Only when the court issued such order without or in excess of jurisdiction or with grave abuse of discretion and when the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford adequate and expeditious relief will certiorari be considered an appropriate remedy to assail an interlocutory order.24 No such special circumstances are present in the case at bar.

The declaration of RTC, Branch 84 in its Decision dated March 7, 1997 that the signature of private respondent in the Deed of Sale dated December 3, 1993 is genuine and she voluntarily surrendered the car to petitioners is notres judicata in the criminal cases for falsification and grave coercion because there is no identity of parties as the People of the Philippines is not a party in the replevin suit and cannot be bound by the factual findings therein. Besides, the decision of RTC, Branch 84 is still pending appeal with the CA. Hence, at the time the MeTC, the RTC and the CA rendered their assailed order, decision and resolution, respectively, there existed no special circumstance to warrant a dismissal of the cases pending in the MeTC.

It is noted that during the pendency of the case before us, the CA has rendered a Decision dated April 19, 2005 modifying the Decision dated March 7, 1997 of RTC, Branch 84, in this wise:

WHEREFORE, the application for a Writ of Replevin is hereby DENIED, the plaintiff Janice Chua having executed a Deed of Sale in favor of defendant William Madarang.

The Deed of Sale is however, hereby declared as an equitable mortgage and, therefore, plaintiff Janice Chua possesses the right of redemption pursuant to Article 1606 of the New Civil Code.

SO ORDERED.

However, records before us do not show that this decision had become final and executory. As a natural or inherent and inevitable consequence of said declaration, a decision which has not become final and executory has no conclusive effect.

Third. Section 3, Rule 117 of the 1985 Rules of Criminal Procedure, the governing law at the time of the filing of the indictments, provides the grounds on which an accused can move to quash the complaint or information. These are: (a) the facts charged do not constitute an offense; (b) the court trying the case has no jurisdiction over the offense charged; (c) the court trying the case has no jurisdiction over the person of the accused; (d) the officer who filed the information had no authority to do so; (e) the information does not conform substantially to the prescribed form; (f) more than one offense is charged, except in those cases in which existing laws prescribe a single punishment for various offenses; (g) the criminal action or liability has been extinguished; (h) the information contains averments which, if true, would constitute a legal excuse or justification; and (i) the accused has been previously convicted or is in jeopardy of being convicted or acquitted of the offense charged.25

Section 8 of the same Rule specifically provides:

SEC. 8. Failure to move to quash or to allege any ground therefor. – The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he

did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty and jeopardy, as provided for in paragraphs (a), (b), (f) and (h) of Section 3 of this Rule. (10a)

Thus, a motion to quash may still be filed after pleading to the complaint or information where the grounds are that no offense is charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty and jeopardy. Nowhere in the enumerated excepted grounds is there any mention of res judicata as a ground to quash an information.

Fourth. Section 4, Rule 111 of the Rules of Court explicitly recognizes that "a final judgment rendered in a civil action absolving the defendant from civil liability is no bar to a criminal action." 26

Fifth. Article 3327 of the Civil Code provides that in cases involving alleged fraudulent acts, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution and shall require only a preponderance of evidence. It is clear, therefore, that the civil case for replevin may proceed independently of the criminal cases for falsification and grave coercion, especially because while both cases are based on the same facts, the quantum of proof required for holding the parties liable therein differs.28

All told, the petitioners failed to show why the actions of the MeTC, RTC and the CA which have passed upon the same issue should be reversed. We are thus convinced that the CA committed no reversible error in its challenged Decision.

WHEREFORE, the present petition is DENIED. The assailed Decision of the Court of Appeals, dated April 18, 2000, is AFFIRMED. Costs against petitioners.

SO ORDERED.

Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. 172716               November 17, 2010

JASON IVLER y AGUILAR, Petitioner, vs.HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the Metropolitan Trial Court, Branch 71, Pasig City, and EVANGELINE PONCE, Respondents.

D E C I S I O N

CARPIO, J.:

The Case

The petition seeks the review1 of the Orders2 of the Regional Trial Court of Pasig City affirming sub-silencio a lower court’s ruling finding inapplicable the Double Jeopardy Clause to bar a second prosecution for Reckless Imprudence Resulting in Homicide and Damage to Property. This, despite the accused’s previous conviction

for Reckless Imprudence Resulting in Slight Physical Injuries arising from the same incident grounding the second prosecution.

The Facts

Following a vehicular collision in August 2004, petitioner Jason Ivler (petitioner) was charged before the Metropolitan Trial Court of Pasig City, Branch 71 (MeTC), with two separate offenses: (1) Reckless Imprudence Resulting in Slight Physical Injuries (Criminal Case No. 82367) for injuries sustained by respondent Evangeline L. Ponce (respondent Ponce); and (2) Reckless Imprudence Resulting in Homicide and Damage to Property (Criminal Case No. 82366) for the death of respondent Ponce’s husband Nestor C. Ponce and damage to the spouses Ponce’s vehicle. Petitioner posted bail for his temporary release in both cases.

On 7 September 2004, petitioner pleaded guilty to the charge in Criminal Case No. 82367 and was meted out the penalty of public censure. Invoking this conviction, petitioner moved to quash the Information in Criminal Case No. 82366 for placing him in jeopardy of second punishment for the same offense of reckless imprudence.

The MeTC refused quashal, finding no identity of offenses in the two cases.3

After unsuccessfully seeking reconsideration, petitioner elevated the matter to the Regional Trial Court of Pasig City, Branch 157 (RTC), in a petition for certiorari (S.C.A. No. 2803). Meanwhile, petitioner sought from the MeTC the suspension of proceedings in Criminal Case No. 82366, including the arraignment on 17 May 2005, invoking S.C.A. No. 2803 as a prejudicial question. Without acting on petitioner’s motion, the MeTC proceeded with the arraignment and, because of petitioner’s absence, cancelled his bail and ordered his arrest.4 Seven days later, the MeTC issued a resolution denying petitioner’s motion to suspend proceedings and postponing his

arraignment until after his arrest.5 Petitioner sought reconsideration but as of the filing of this petition, the motion remained unresolved.

Relying on the arrest order against petitioner, respondent Ponce sought in the RTC the dismissal of S.C.A. No. 2803 for petitioner’s loss of standing to maintain the suit. Petitioner contested the motion.

The Ruling of the Trial Court

In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803, narrowly grounding its ruling on petitioner’s forfeiture of standing to maintain S.C.A. No. 2803 arising from the MeTC’s order to arrest petitioner for his non-appearance at the arraignment in Criminal Case No. 82366. Thus, without reaching the merits of S.C.A. No. 2803, the RTC effectively affirmed the MeTC. Petitioner sought reconsideration but this proved unavailing.6

Hence, this petition.

Petitioner denies absconding. He explains that his petition in S.C.A. No. 2803 constrained him to forego participation in the proceedings in Criminal Case No. 82366. Petitioner distinguishes his case from the line of jurisprudence sanctioning dismissal of appeals for absconding appellants because his appeal before the RTC was a special civil action seeking a pre-trial relief, not a post-trial appeal of a judgment of conviction.7

Petitioner laments the RTC’s failure to reach the merits of his petition in S.C.A. 2803. Invoking jurisprudence, petitioner argues that his constitutional right not to be placed twice in jeopardy of punishment for the same offense bars his prosecution in Criminal Case No. 82366, having been previously convicted in Criminal Case No. 82367 for the same offense of reckless imprudence charged in Criminal Case No. 82366. Petitioner submits that the multiple consequences of such crime are material only to determine his penalty.

Respondent Ponce finds no reason for the Court to disturb the RTC’s decision forfeiting petitioner’s standing to maintain his petition in S.C.A. 2803. On the merits, respondent Ponce calls the Court’s attention to jurisprudence holding that light offenses (e.g. slight physical injuries) cannot be complexed under Article 48 of the Revised Penal Code with grave or less grave felonies (e.g. homicide). Hence, the prosecution was obliged to separate the charge in Criminal Case No. 82366 for the slight physical injuries from Criminal Case No. 82367 for the homicide and damage to property.

In the Resolution of 6 June 2007, we granted the Office of the Solicitor General’s motion not to file a comment to the petition as the public respondent judge is merely a nominal party and private respondent is represented by counsel.

The Issues

Two questions are presented for resolution: (1) whether petitioner forfeited his standing to seek relief in S.C.A. 2803 when the MeTC ordered his arrest following his non-appearance at the arraignment in Criminal Case No. 82366; and (2) if in the negative, whether petitioner’s constitutional right under the Double Jeopardy Clause bars further proceedings in Criminal Case No. 82366.

The Ruling of the Court

We hold that (1) petitioner’s non-appearance at the arraignment in Criminal Case No. 82366 did not divest him of personality to maintain the petition in S.C.A. 2803; and (2) the protection afforded by the Constitution shielding petitioner from prosecutions placing him in jeopardy of second punishment for the same offense bars further proceedings in Criminal Case No. 82366.

Petitioner’s Non-appearance at the Arraignment inCriminal Case No. 82366 did not Divest him of Standing to Maintain the Petition in S.C.A. 2803

Dismissals of appeals grounded on the appellant’s escape from custody or violation of the terms of his bail bond are governed by the second paragraph of Section 8, Rule 124,8 in relation to Section 1, Rule 125, of the Revised Rules on Criminal Procedure authorizing this Court or the Court of Appeals to "also, upon motion of the appellee or motu proprio, dismiss the appeal if the appellant escapes from prison or confinement, jumps bail or flees to a foreign country during the pendency of the appeal." The "appeal" contemplated in Section 8 of Rule 124 is a suit to review judgments of convictions.

The RTC’s dismissal of petitioner’s special civil action for certiorari to review a pre-arraignment ancillary question on the applicability of the Due Process Clause to bar proceedings in Criminal Case No. 82366 finds no basis under procedural rules and jurisprudence. The RTC’s reliance on People v. Esparas9 undercuts the cogency of its ruling because Esparas stands for a proposition contrary to the RTC’s ruling. There, the Court granted review to an appeal by an accused who was sentenced to death for importing prohibited drugs even though she jumped bail pending trial and was thus tried and convicted in absentia. The Court in Esparas treated the mandatory review of death sentences under Republic Act No. 7659 as an exception to Section 8 of Rule 124.10

The mischief in the RTC’s treatment of petitioner’s non-appearance at his arraignment in Criminal Case No. 82366 as proof of his loss of standing becomes more evident when one considers the Rules of Court’s treatment of a defendant who absents himself from post-arraignment hearings. Under Section 21, Rule 11411 of the Revised Rules of Criminal Procedure, the defendant’s absence merely renders his bondsman potentially liable on its bond (subject to cancellation should the bondsman fail to produce the accused within 30 days); the defendant retains his standing and, should he fail to

surrender, will be tried in absentia and could be convicted or acquitted. Indeed, the 30-day period granted to the bondsman to produce the accused underscores the fact that mere non-appearance does not ipso facto convert the accused’s status to that of a fugitive without standing.

Further, the RTC’s observation that petitioner provided "no explanation why he failed to attend the scheduled proceeding"12 at the MeTC is belied by the records. Days before the arraignment, petitioner sought the suspension of the MeTC’s proceedings in Criminal Case No. 82366 in light of his petition with the RTC in S.C.A. No. 2803. Following the MeTC’s refusal to defer arraignment (the order for which was released days after the MeTC ordered petitioner’s arrest), petitioner sought reconsideration. His motion remained unresolved as of the filing of this petition.

Petitioner’s Conviction in Criminal Case No. 82367Bars his Prosecution in Criminal Case No. 82366

The accused’s negative constitutional right not to be "twice put in jeopardy of punishment for the same offense"13protects him from, among others, post-conviction prosecution for the same offense, with the prior verdict rendered by a court of competent jurisdiction upon a valid information.14 It is not disputed that petitioner’s conviction in Criminal Case No. 82367 was rendered by a court of competent jurisdiction upon a valid charge. Thus, the case turns on the question whether Criminal Case No. 82366 and Criminal Case No. 82367 involve the "same offense." Petitioner adopts the affirmative view, submitting that the two cases concern the same offense of reckless imprudence. The MeTC ruled otherwise, finding that Reckless Imprudence Resulting in Slight Physical Injuries is an entirely separate offense from Reckless Imprudence Resulting in Homicide and Damage to Property "as the [latter] requires proof of an additional fact which the other does not."15

We find for petitioner.

Reckless Imprudence is a Single Crime, its Consequences on Persons andProperty are Material Only to Determine the Penalty

The two charges against petitioner, arising from the same facts, were prosecuted under the same provision of the Revised Penal Code, as amended, namely, Article 365 defining and penalizing quasi-offenses. The text of the provision reads:

Imprudence and negligence. — Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its medium period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted a light felony, the penalty of arresto menor in its maximum period shall be imposed.

Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed.

When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damages to three times such value, but which shall in no case be less than twenty-five pesos.

A fine not exceeding two hundred pesos and censure shall be imposed upon any person who, by simple imprudence or negligence, shall cause some wrong which, if done maliciously, would have constituted a light felony.

In the imposition of these penalties, the court shall exercise their sound discretion, without regard to the rules prescribed in Article sixty-four.

The provisions contained in this article shall not be applicable:

1. When the penalty provided for the offense is equal to or lower than those provided in the first two paragraphs of this article, in which case the court shall impose the penalty next lower in degree than that which should be imposed in the period which they may deem proper to apply.

2. When, by imprudence or negligence and with violation of the Automobile Law, to death of a person shall be caused, in which case the defendant shall be punished by prision correccional in its medium and maximum periods.

Reckless imprudence consists in voluntary, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place.

Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest.

The penalty next higher in degree to those provided for in this article shall be imposed upon the offender who fails to lend on the spot to the injured parties such help as may be in this hand to give.

Structurally, these nine paragraphs are collapsible into four sub-groupings relating to (1) the penalties attached to the quasi-offenses of "imprudence" and "negligence" (paragraphs 1-2); (2) a modified penalty scheme for either or both quasi-offenses (paragraphs 3-4, 6

and 9); (3) a generic rule for trial courts in imposing penalties (paragraph 5); and (4) the definition of "reckless imprudence" and "simple imprudence" (paragraphs 7-8). Conceptually, quasi-offenses penalize "the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible,"16 unlike willful offenses which punish the intentional criminal act. These structural and conceptual features of quasi-offenses set them apart from the mass of intentional crimes under the first 13 Titles of Book II of the Revised Penal Code, as amended.

Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct species of crime, separately defined and penalized under the framework of our penal laws, is nothing new. As early as the middle of the last century, we already sought to bring clarity to this field by rejecting in Quizon v. Justice of the Peace of Pampanga the proposition that "reckless imprudence is not a crime in itself but simply a way of committing it x x x"17 on three points of analysis: (1) the object of punishment in quasi-crimes (as opposed to intentional crimes); (2) the legislative intent to treat quasi-crimes as distinct offenses (as opposed to subsuming them under the mitigating circumstance of minimal intent) and; (3) the different penalty structures for quasi-crimes and intentional crimes:

The proposition (inferred from Art. 3 of the Revised Penal Code) that "reckless imprudence" is not a crime in itself but simply a way of committing it and merely determines a lower degree of criminal liability is too broad to deserve unqualified assent. There are crimes that by their structure cannot be committed through imprudence: murder, treason, robbery, malicious mischief, etc. In truth, criminal negligence in our Revised Penal Code is treated as a mere quasi offense, and dealt with separately from willful offenses. It is not a mere question of classification or terminology. In intentional crimes, the act itself is punished; in negligence or imprudence, what is principally penalized is the mental attitude or condition behind the act, the dangerous recklessness, lack of care or foresight, the imprudencia punible. x x x x

Were criminal negligence but a modality in the commission of felonies, operating only to reduce the penalty therefor, then it would be absorbed in the mitigating circumstances of Art. 13, specially the lack of intent to commit so grave a wrong as the one actually committed. Furthermore, the theory would require that the corresponding penalty should be fixed in proportion to the penalty prescribed for each crime when committed willfully. For each penalty for the willful offense, there would then be a corresponding penalty for the negligent variety. But instead, our Revised Penal Code (Art. 365) fixes the penalty for reckless imprudence at arresto mayor maximum, to prision correccional [medium], if the willful act would constitute a grave felony, notwithstanding that the penalty for the latter could range all the way from prision mayor to death, according to the case. It can be seen that the actual penalty for criminal negligence bears no relation to the individual willful crime, but is set in relation to a whole class, or series, of crimes.18 (Emphasis supplied)

This explains why the technically correct way to allege quasi-crimes is to state that their commission results in damage, either to person or property.19

Accordingly, we found the Justice of the Peace in Quizon without jurisdiction to hear a case for "Damage to Property through Reckless Imprudence," its jurisdiction being limited to trying charges for Malicious Mischief, an intentional crime conceptually incompatible with the element of imprudence obtaining in quasi-crimes.

Quizon, rooted in Spanish law20 (the normative ancestry of our present day penal code) and since repeatedly reiterated,21 stands on solid conceptual foundation. The contrary doctrinal pronouncement in People v. Faller22that "[r]eckless impudence is not a crime in itself x x x [but] simply a way of committing it x x x,"23 has long been abandoned when the Court en banc promulgated Quizon in 1955 nearly two decades after the Court decided Faller in 1939. Quizon rejected Faller’s conceptualization of quasi-crimes by holding that

quasi-crimes under Article 365 are distinct species of crimes and not merely methods of committing crimes. Faller found expression in post-Quizon jurisprudence24 only by dint of lingering doctrinal confusion arising from an indiscriminate fusion of criminal law rules defining Article 365 crimes and the complexing of intentional crimes under Article 48 of the Revised Penal Code which, as will be shown shortly, rests on erroneous conception of quasi-crimes. Indeed, the Quizonian conception of quasi-crimes undergirded a related branch of jurisprudence applying the Double Jeopardy Clause to quasi-offenses, barring second prosecutions for a quasi-offense alleging one resulting act after a prior conviction or acquittal of a quasi-offense alleging another resulting act but arising from the same reckless act or omission upon which the second prosecution was based.

Prior Conviction or Acquittal ofReckless Imprudence BarsSubsequent Prosecution for the Same Quasi-Offense

The doctrine that reckless imprudence under Article 365 is a single quasi-offense by itself and not merely a means to commit other crimes such that conviction or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-offense, regardless of its various resulting acts, undergirded this Court’s unbroken chain of jurisprudence on double jeopardy as applied to Article 365 starting with People v. Diaz,25 decided in 1954. There, a full Court, speaking through Mr. Justice Montemayor, ordered the dismissal of a case for "damage to property thru reckless imprudence" because a prior case against the same accused for "reckless driving," arising from the same act upon which the first prosecution was based, had been dismissed earlier. Since then, whenever the same legal question was brought before the Court, that is, whether prior conviction or acquittal of reckless imprudence bars subsequent prosecution for the same quasi-offense, regardless of the consequences alleged for both charges, the Court unfailingly and consistently answered in the affirmative in People v. Belga26 (promulgated in 1957 by the Court en

banc, per Reyes, J.), Yap v. Lutero27 (promulgated in 1959, unreported, per Concepcion, J.), People v. Narvas28 (promulgated in 1960 by the Court en banc, per Bengzon J.), People v. Silva29(promulgated in 1962 by the Court en banc, per Paredes, J.), People v. Macabuhay30 (promulgated in 1966 by the Court en banc, per Makalintal, J.), People v. Buan31 (promulgated in 1968 by the Court en banc, per Reyes, J.B.L., acting C. J.), Buerano v. Court of Appeals32 (promulgated in 1982 by the Court en banc, per Relova, J.), and People v. City Court of Manila33 (promulgated in 1983 by the First Division, per Relova, J.). These cases uniformly barred the second prosecutions as constitutionally impermissible under the Double Jeopardy Clause.

The reason for this consistent stance of extending the constitutional protection under the Double Jeopardy Clause to quasi-offenses was best articulated by Mr. Justice J.B.L. Reyes in Buan, where, in barring a subsequent prosecution for "serious physical injuries and damage to property thru reckless imprudence" because of the accused’s prior acquittal of "slight physical injuries thru reckless imprudence," with both charges grounded on the same act, the Court explained:34

Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different crimes and prosecutions.35 x x x (Emphasis supplied)

Evidently, the Diaz line of jurisprudence on double jeopardy merely extended to its logical conclusion the reasoning of Quizon.

There is in our jurisprudence only one ruling going against this unbroken line of authority. Preceding Diaz by more than a decade, El Pueblo de Filipinas v. Estipona,36 decided by the pre-war colonial Court in November 1940, allowed the subsequent prosecution of an accused for reckless imprudence resulting in damage to property despite his previous conviction for multiple physical injuries arising from the same reckless operation of a motor vehicle upon which the second prosecution was based. Estipona’s inconsistency with the post-war Diaz chain of jurisprudence suffices to impliedly overrule it. At any rate, all doubts on this matter were laid to rest in 1982 in Buerano.37 There, we reviewed the Court of Appeals’ conviction of an accused for "damage to property for reckless imprudence" despite his prior conviction for "slight and less serious physical injuries thru reckless imprudence," arising from the same act upon which the second charge was based. The Court of Appeals had relied on Estipona. We reversed on the strength of Buan:38

Th[e] view of the Court of Appeals was inspired by the ruling of this Court in the pre-war case of People vs. Estipona decided on November 14, 1940. However, in the case of People vs. Buan, 22 SCRA 1383 (March 29, 1968), this Court, speaking thru Justice J. B. L. Reyes, held that –

Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under Article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious

result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different crimes and prosecutions.

x x x x

. . . the exoneration of this appellant, Jose Buan, by the Justice of the Peace (now Municipal) Court of Guiguinto, Bulacan, of the charge of slight physical injuries through reckless imprudence, prevents his being prosecuted for serious physical injuries through reckless imprudence in the Court of First Instance of the province, where both charges are derived from the consequences of one and the same vehicular accident, because the second accusation places the appellant in second jeopardy for the same offense.39 (Emphasis supplied)

Thus, for all intents and purposes, Buerano had effectively overruled Estipona.

It is noteworthy that the Solicitor General in Buerano, in a reversal of his earlier stance in Silva, joined causes with the accused, a fact which did not escape the Court’s attention:

Then Solicitor General, now Justice Felix V. Makasiar, in his MANIFESTATION dated December 12, 1969 (page 82 of the Rollo) admits that the Court of Appeals erred in not sustaining petitioner’s plea of double jeopardy and submits that "its affirmatory decision dated January 28, 1969, in Criminal Case No. 05123-CR finding petitioner guilty of damage to property through reckless imprudence should be set aside, without costs." He stressed that "if double jeopardy exists where the reckless act resulted into homicide and physical injuries. then the same consequence must perforce follow where the same reckless act caused merely damage to property-not death-and physical injuries. Verily, the value of a human life lost as a result of a vehicular collision cannot be equated with any amount of

damages caused to a motors vehicle arising from the same mishap."40 (Emphasis supplied)

Hence, we find merit in petitioner’s submission that the lower courts erred in refusing to extend in his favor the mantle of protection afforded by the Double Jeopardy Clause. A more fitting jurisprudence could not be tailored to petitioner’s case than People v. Silva, 41 a Diaz progeny. There, the accused, who was also involved in a vehicular collision, was charged in two separate Informations with "Slight Physical Injuries thru Reckless Imprudence" and "Homicide with Serious Physical Injuries thru Reckless Imprudence." Following his acquittal of the former, the accused sought the quashal of the latter, invoking the Double Jeopardy Clause. The trial court initially denied relief, but, on reconsideration, found merit in the accused’s claim and dismissed the second case. In affirming the trial court, we quoted with approval its analysis of the issue following Diaz and its progeny People v. Belga:42

On June 26, 1959, the lower court reconsidered its Order of May 2, 1959 and dismissed the case, holding: —

[T]he Court believes that the case falls squarely within the doctrine of double jeopardy enunciated in People v. Belga, x x x In the case cited, Ciriaco Belga and Jose Belga were charged in the Justice of the Peace Court of Malilipot, Albay, with the crime of physical injuries through reckless imprudence arising from a collision between the two automobiles driven by them (Crim. Case No. 88). Without the aforesaid complaint having been dismissed or otherwise disposed of, two other criminal complaints were filed in the same justice of the peace court, in connection with the same collision one for damage to property through reckless imprudence (Crim. Case No. 95) signed by the owner of one of the vehicles involved in the collision, and another for multiple physical injuries through reckless imprudence (Crim. Case No. 96) signed by the passengers injured in the accident. Both of these two complaints were filed against Jose Belga only. After trial, both defendants were acquitted of the charge against them in

Crim. Case No. 88. Following his acquittal, Jose Belga moved to quash the complaint for multiple physical injuries through reckless imprudence filed against him by the injured passengers, contending that the case was just a duplication of the one filed by the Chief of Police wherein he had just been acquitted. The motion to quash was denied and after trial Jose Belga was convicted, whereupon he appealed to the Court of First Instance of Albay. In the meantime, the case for damage to property through reckless imprudence filed by one of the owners of the vehicles involved in the collision had been remanded to the Court of First Instance of Albay after Jose Belga had waived the second stage of the preliminary investigation. After such remand, the Provincial Fiscal filed in the Court of First Instance two informations against Jose Belga, one for physical injuries through reckless imprudence, and another for damage to property through reckless imprudence. Both cases were dismissed by the Court of First Instance, upon motion of the defendant Jose Belga who alleged double jeopardy in a motion to quash. On appeal by the Prov. Fiscal, the order of dismissal was affirmed by the Supreme Court in the following language: .

The question for determination is whether the acquittal of Jose Belga in the case filed by the chief of police constitutes a bar to his subsequent prosecution for multiple physical injuries and damage to property through reckless imprudence.

In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March 30, 1954, the accused was charged in the municipal court of Pasay City with reckless driving under sec. 52 of the Revised Motor Vehicle Law, for having driven an automobile in a ῾fast and reckless manner ... thereby causing an accident.’ After the accused had pleaded not guilty the case was dismissed in that court ῾for failure of the Government to prosecute’. But some time thereafter the city attorney filed an information in the Court of First Instance of Rizal, charging the same accused with damage to property thru reckless imprudence. The amount of the damage was alleged to be P249.50. Pleading double jeopardy, the accused filed a motion, and on appeal

by the Government we affirmed the ruling. Among other things we there said through Mr. Justice Montemayor —

The next question to determine is the relation between the first offense of violation of the Motor Vehicle Law prosecuted before the Pasay City Municipal Court and the offense of damage to property thru reckless imprudence charged in the Rizal Court of First Instance. One of the tests of double jeopardy is whether or not the second offense charged necessarily includes or is necessarily included in the offense charged in the former complaint or information (Rule 113, Sec. 9). Another test is whether the evidence which proves one would prove the other that is to say whether the facts alleged in the first charge if proven, would have been sufficient to support the second charge and vice versa; or whether one crime is an ingredient of the other. x x x

x x x x

The foregoing language of the Supreme Court also disposes of the contention of the prosecuting attorney that the charge for slight physical injuries through reckless imprudence could not have been joined with the charge for homicide with serious physical injuries through reckless imprudence in this case, in view of the provisions of Art. 48 of the Revised Penal Code, as amended. The prosecution’s contention might be true. But neither was the prosecution obliged to first prosecute the accused for slight physical injuries through reckless imprudence before pressing the more serious charge of homicide with serious physical injuries through reckless imprudence. Having first prosecuted the defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is not now in a position to press in this case the more serious charge of homicide with serious physical injuries through reckless imprudence which arose out of the same alleged reckless imprudence of which the defendant have been previously cleared by the inferior court.43

Significantly, the Solicitor General had urged us in Silva to reexamine Belga (and hence, Diaz) "for the purpose of delimiting or clarifying its application."44 We declined the invitation, thus:

The State in its appeal claims that the lower court erred in dismissing the case, on the ground of double jeopardy, upon the basis of the acquittal of the accused in the JP court for Slight Physical Injuries, thru Reckless Imprudence. In the same breath said State, thru the Solicitor General, admits that the facts of the case at bar, fall squarely on the ruling of the Belga case x x x, upon which the order of dismissal of the lower court was anchored. The Solicitor General, however, urges a re-examination of said ruling, upon certain considerations for the purpose of delimiting or clarifying its application. We find, nevertheless, that further elucidation or disquisition on the ruling in the Belga case, the facts of which are analogous or similar to those in the present case, will yield no practical advantage to the government. On one hand, there is nothing which would warrant a delimitation or clarification of the applicability of the Belga case. It was clear. On the other, this Court has reiterated the views expressed in the Belga case, in the identical case of Yap v. Hon. Lutero, etc., L-12669, April 30, 1959.45 (Emphasis supplied)

Article 48 Does not Apply to Acts Penalized Under Article 365 of the Revised Penal Code

The confusion bedeviling the question posed in this petition, to which the MeTC succumbed, stems from persistent but awkward attempts to harmonize conceptually incompatible substantive and procedural rules in criminal law, namely, Article 365 defining and penalizing quasi-offenses and Article 48 on complexing of crimes, both under the Revised Penal Code. Article 48 is a procedural device allowing single prosecution of multiple felonies falling under either of two categories: (1) when a single act constitutes two or more grave or less grave felonies (thus excluding from its operation light felonies46); and (2) when an offense is a necessary means for committing the

other. The legislature crafted this procedural tool to benefit the accused who, in lieu of serving multiple penalties, will only serve the maximum of the penalty for the most serious crime.

In contrast, Article 365 is a substantive rule penalizing not an act defined as a felony but "the mental attitude x x x behind the act, the dangerous recklessness, lack of care or foresight x x x,"47 a single mental attitude regardless of the resulting consequences. Thus, Article 365 was crafted as one quasi-crime resulting in one or more consequences.

Ordinarily, these two provisions will operate smoothly. Article 48 works to combine in a single prosecution multiple intentional crimes falling under Titles 1-13, Book II of the Revised Penal Code, when proper; Article 365 governs the prosecution of imprudent acts and their consequences. However, the complexities of human interaction can produce a hybrid quasi-offense not falling under either models – that of a single criminal negligence resulting in multiple non-crime damages to persons and property with varying penalties corresponding to light, less grave or grave offenses. The ensuing prosecutorial dilemma is obvious: how should such a quasi-crime be prosecuted? Should Article 48’s framework apply to "complex" the single quasi-offense with its multiple (non-criminal) consequences (excluding those amounting to light offenses which will be tried separately)? Or should the prosecution proceed under a single charge, collectively alleging all the consequences of the single quasi-crime, to be penalized separately following the scheme of penalties under Article 365?

Jurisprudence adopts both approaches. Thus, one line of rulings (none of which involved the issue of double jeopardy) applied Article 48 by "complexing" one quasi-crime with its multiple consequences48 unless one consequence amounts to a light felony, in which case charges were split by grouping, on the one hand, resulting acts amounting to grave or less grave felonies and filing the charge with the second level courts and, on the other hand, resulting

acts amounting to light felonies and filing the charge with the first level courts.49 Expectedly, this is the approach the MeTC impliedly sanctioned (and respondent Ponce invokes), even though under Republic Act No. 7691,50 the MeTC has now exclusive original jurisdiction to impose the most serious penalty under Article 365 which is prision correccional in its medium period.

Under this approach, the issue of double jeopardy will not arise if the "complexing" of acts penalized under Article 365 involves only resulting acts penalized as grave or less grave felonies because there will be a single prosecution of all the resulting acts. The issue of double jeopardy arises if one of the resulting acts is penalized as a light offense and the other acts are penalized as grave or less grave offenses, in which case Article 48 is not deemed to apply and the act penalized as a light offense is tried separately from the resulting acts penalized as grave or less grave offenses.

The second jurisprudential path nixes Article 48 and sanctions a single prosecution of all the effects of the quasi-crime collectively alleged in one charge, regardless of their number or severity,51 penalizing each consequence separately. Thus, in Angeles v. Jose,52 we interpreted paragraph three of Article 365, in relation to a charge alleging "reckless imprudence resulting in damage to property and less serious physical injuries," as follows:

[T]he third paragraph of said article, x x x reads as follows:

When the execution of the act covered by this article shall have only resulted in damage to the property of another, the offender shall be punished by a fine ranging from an amount equal to the value of said damage to three times such value, but which shall in no case be less than 25 pesos.

The above-quoted provision simply means that if there is only damage to property the amount fixed therein shall be imposed, but if there are also physical injuries there should be an additional penalty

for the latter. The information cannot be split into two; one for the physical injuries, and another for the damage to property, x x x.53(Emphasis supplied)

By "additional penalty," the Court meant, logically, the penalty scheme under Article 365.

Evidently, these approaches, while parallel, are irreconcilable. Coherence in this field demands choosing one framework over the other. Either (1) we allow the "complexing" of a single quasi-crime by breaking its resulting acts into separate offenses (except for light felonies), thus re-conceptualize a quasi-crime, abandon its present framing under Article 365, discard its conception under the Quizon and Diaz lines of cases, and treat the multiple consequences of a quasi-crime as separate intentional felonies defined under Titles 1-13, Book II under the penal code; or (2) we forbid the application of Article 48 in the prosecution and sentencing of quasi-crimes, require single prosecution of all the resulting acts regardless of their number and severity, separately penalize each as provided in Article 365, and thus maintain the distinct concept of quasi-crimes as crafted under Article 365, articulated in Quizon and applied to double jeopardy adjudication in the Diaz line of cases.1avvphi1

A becoming regard of this Court’s place in our scheme of government denying it the power to make laws constrains us to keep inviolate the conceptual distinction between quasi-crimes and intentional felonies under our penal code. Article 48 is incongruent to the notion of quasi-crimes under Article 365. It is conceptually impossible for a quasi-offense to stand for (1) a single act constituting two or more grave or less grave felonies; or (2) anoffense which is a necessary means for committing another. This is why, way back in 1968 in Buan, we rejected the Solicitor General’s argument that double jeopardy does not bar a second prosecution for slight physical injuries through reckless imprudence allegedly because the charge for that offense could not be joined with the

other charge for serious physical injuries through reckless imprudence following Article 48 of the Revised Penal Code:

The Solicitor General stresses in his brief that the charge for slight physical injuries through reckless imprudence could not be joined with the accusation for serious physical injuries through reckless imprudence, because Article 48 of the Revised Penal Code allows only the complexing of grave or less grave felonies. This same argument was considered and rejected by this Court in the case of People vs. [Silva] x x x:

[T]he prosecution’s contention might be true. But neither was the prosecution obliged to first prosecute the accused for slight physical injuries through reckless imprudence before pressing the more serious charge of homicide with serious physical injuries through reckless imprudence. Having first prosecuted the defendant for the lesser offense in the Justice of the Peace Court of Meycauayan, Bulacan, which acquitted the defendant, the prosecuting attorney is not now in a position to press in this case the more serious charge of homicide with serious physical injuries through reckless imprudence which arose out of the same alleged reckless imprudence of which the defendant has been previously cleared by the inferior court.

[W]e must perforce rule that the exoneration of this appellant x x x by the Justice of the Peace x x x of the charge of slight physical injuries through reckless imprudence, prevents his being prosecuted for serious physical injuries through reckless imprudence in the Court of First Instance of the province, where both charges are derived from the consequences of one and the same vehicular accident, because the second accusation places the appellant in second jeopardy for the same offense.54 (Emphasis supplied)

Indeed, this is a constitutionally compelled choice. By prohibiting the splitting of charges under Article 365, irrespective of the number and severity of the resulting acts, rampant occasions of constitutionally

impermissible second prosecutions are avoided, not to mention that scarce state resources are conserved and diverted to proper use.

Hence, we hold that prosecutions under Article 365 should proceed from a single charge regardless of the number or severity of the consequences. In imposing penalties, the judge will do no more than apply the penalties under Article 365 for each consequence alleged and proven. In short, there shall be no splitting of charges under Article 365, and only one information shall be filed in the same first level court.55

Our ruling today secures for the accused facing an Article 365 charge a stronger and simpler protection of their constitutional right under the Double Jeopardy Clause. True, they are thereby denied the beneficent effect of the favorable sentencing formula under Article 48, but any disadvantage thus caused is more than compensated by the certainty of non-prosecution for quasi-crime effects qualifying as "light offenses" (or, as here, for the more serious consequence prosecuted belatedly). If it is so minded, Congress can re-craft Article 365 by extending to quasi-crimes the sentencing formula of Article 48 so that only the most severe penalty shall be imposed under a single prosecution of all resulting acts, whether penalized as grave, less grave or light offenses. This will still keep intact the distinct concept of quasi-offenses. Meanwhile, the lenient schedule of penalties under Article 365, befitting crimes occupying a lower rung of culpability, should cushion the effect of this ruling.

WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2 February 2006 and 2 May 2006 of the Regional Trial Court of Pasig City, Branch 157. We DISMISS the Information in Criminal Case No. 82366 against petitioner Jason Ivler y Aguilar pending with the Metropolitan Trial Court of Pasig City, Branch 71 on the ground of double jeopardy.

Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of Representatives.

SO ORDERED.