Antiporda vs.

Garchitorena

G.R. No. L-133289, 321 SCRA 551, December 23, 1999

FACTS: Petitioners were charged with the crime of kidnapping one Elmer Ramos filed before
the Sandiganbayan without claiming that one of the accused is a public officer who took
advantage of his position. The information was amended to effectively describe the offense
charged herein and for the court to effectively exercise its jurisdiction over the same by
stating that Antiporda took advantage of his position. Accused filed a motion for new
preliminary investigation and to hold in abeyance and/or recall warrant of arrest issued. The
same was denied. The accused subsequently filed a motion to quash the amended
information for lack of jurisdiction over the offense charged because of the amended
information. This was denied as well as the MR on the same. Hence, this petition before the
Supreme Court.

ISSUE: Whether the Sandiganbayan has jurisdiction over the subject matter.

RULING: YES. They are estopped from assailing the jurisdiction of the Sandiganbayan. The
original Information filed with the Sandiganbayan did not mention that the offense
committed by the accused is office-related. It was only after the same was filed that the
prosecution belatedly remembered that a jurisdictional fact was omitted therein. However, we
hold that the petitioners are estopped from assailing the jurisdiction of the Sandiganbayan for
in the supplemental arguments to motion for reconsideration and/or reinvestigation dated
June 10, 1997 filed with the same court, it was they who "challenged the jurisdiction of the
Regional Trial Court over the case and clearly stated in their Motion for Reconsideration that
the said crime is work connected.

Jurisdiction is the power with which courts are invested for administering justice, that is, for
hearing and deciding cases. In order for the court to have authority to dispose of the case on
the merits, it must acquire jurisdiction over the subject matter and the parties. In the case of
Arula vs. Espino it was quite clear that all three requisites, i.e., jurisdiction over the offense,
territory and person, must concur before a court can acquire jurisdiction to try a case. It is
undisputed that the Sandiganbayan had territorial jurisdiction over the case. And we are in
accord with the petitioners when they contended that when they filed a motion to quash it
was tantamount to a voluntary submission to the Court's authority.
[G.R. No. 69863-65 :  December 10, 1990.]

LINO BROCKA vs.  JUAN PONCE ENRILE

FACTS:
 Jeepney strike called by the Alliance of Concerned Transport Organization (ACTO) a demonstration
held in sympathy of this strike, forcibly and violently dispersed a petitioners arrested by Northern
Police District Officers – Jan 28 ‘85
 Petitioners charged with Illegal Assembly RPC146 par.3 in 3 crim cases filed before RTC QC
 All petitioners released on bail – P3,000 each EXCEPT for Lino Brocka, Ben Cervantes, Cosme Garcia
and Rodolfo Santos (Brocka, et al.), who were charged as leaders of the offense of Illegal Assembly for
whom no bail was recommended
 Urgent petition for bail filed before the RTC a daily hearings held between Feb.1-7 ’85 a On Feb. 7 or
9 ’85, RTC QC Judge Miriam Defensor Santiago ordered Brocka, et al’s provisional release;
recommended bail at P6,0000 each a Brocka, et al filed respective bail bonds BUT…
 Despite service of release order, Brocka, et al remained in detention a respondents-police officers
invoked Preventive Detention Action (PDA) allegedly issued against Brocka, et al on Jan. 28 ‘85
o Neither original nor certified true copy of this PDA was shown to Brocka, et al.
 Feb 11 ’85 – Brocka, et al charged with Inciting to Sedition in 3 crim cases; hasty and spurious filing of
this second offense as follows:
o 10:30 AM counsel informed by phone that Brocka, et al will be brought before the QC Fiscal at
2:30PM for undisclosed reasons a another phone call subsequently received informing counsel
that appearance of Brocka, et al was to be at 2:00PM
o 2:00PM Brocka, et al arrived at office of Asst. City Fiscal a complainants’ affidavits had not yet
been received
o 3:00PM representative of the military arrived with alleged statements of complainants against
Brocka, et al for alleged inciting to sedition
o 3:15PM counsel inquired from Records Custodian when the charges against Brocka, et al had
been officially received a informed that said charges were never coursed through the Records
Office
o ALSO, utterances allegedly constituting Inciting to Sedition under RPC142 are, almost verbatim,
the same utterances which are the subject of the crim cases for Illegal Assembly for which Brocka,
et al are entitled to be relased on bail as a matter of Constitutional right a appears that
respondents have conspired to deprive Brocka, et al of the right to bail
o AND, panel of assistant fiscals demanded that Brocka, et al sign a waiver of their rights under
RPC125 as a condition for the grant of the counsel’s request that they be given 7 days within
which counsel may conferwith their clients a no such requirement required under the rules
 Brocka, et al released provisionally on Feb.14 ’85 on orders of then Pres. Marcos a release narrated in
Court’s resolution in petition for habeas corpus filed by Sedfrey Ordonez in behalf of Brocka, et al:
o In Return of the Writ of Habeas Corpus, respondents said all accused had already been released a
four on Feb15 ’85 and one on Feb.8 ’85
o Petitioners, nevertheless, still argue that the petition has not become moot and academic because
the accused continue to be in the custody of the law under an invalid charge of inciting to
sedition.
 Hence, this petition. Brocka, et al contend:
1. bad faith and/or harassment sufficient
bases for enjoining their criminal prosecution
 2. second offense of Inciting to Sedition
manifestly illegal – premised on one and the same act of participating in the ACTO jeepney strike
a matter of defense in sedition charge so, only issue here is…

ISSUE: Whether or not criminal prosecution of a case may be enjoined – YES

RULING: We rule in favor of Brocka, et al. and enjoin their criminal prosecution for the second offense of
inciting to sedition.

 GEN. RULE: Criminal prosecution may not be restrained or stayed by injunction, preliminary or final

 EXCEPTIONS:
1. To afford adequate protection to the constitutional rights of the accused
2. When necessary for the orderly administration of justice or to avoid oppression or multiplicity
of actions
3. When there is no prejudicial question which is subjudice
4. When the acts of the officer are without or in excess of authority
5. Where the prosecution is under an invalid law, ordinance or regulation
6. When double jeopardy is clearly apparent
7. When the court has no jurisdiction over the offense
8. Where it is a case of persecution rather than prosecution
9. Where the charges are manifestly false and motivated by lust for vengeance
10. When there is clearly no prima facie case against the accused and a motion to quash on that
ground had been denied
11. Preliminary injunction has been issued by the SC to prevent the threatened unlawful
arrest of petitioners

In the case at bar, criminal proceedings had become a case of persecution, have been undertaken by state
officials in bad faith:
1. Respondents invoked a spurious PDA in refusing Brocka, et al’s release from detention BUT this
PDA was issued on Jan.28 ’85 and invoked only on Feb.9 ’85 upon receipt of TC’s order of release
a violates guideline that PDA shall be invoked within 24 hrs in Metro, Manila or 48 hours outside
Metro, Manila
Despite subpoenas for PDA’s production, prosecution merely presented a purported xeerox copy of it
a violates Court pronouncement that “individuals against whom PDAs have been issued should be
furnished with the original, and the duplicate original, and a certified true copy issued by the
official having official custody of the PDA, at the time of the apprehension (Ilagan v Enrile)
2. SolGen’s manifestation: Brocka, et al should have filed a motion to quash the information instead of
a petition for Habeas Corpus

The Court agreed with the contention of the SolGen. However, it noted that such course of action would
have been a futile move, considering the circumstances then prevailing:
1.   Spurious and inoperational PDA
2.   Sham and hasty Preliminary Investigation
Clear signals that the prosecutors intended to keep Brocka, et al in detention until the second offense
could be facilitated and justified without need of issuing a warrant of arrest anew
"Infinitely more important than conventional adherence to general rules of criminal procedure is respect
for the citizen's right to be free not only from arbitrary arrest and punishment but also from unwarranted
and vexatious prosecution.

If there is manifest bad faith that accompanies the filing of criminal charges (as in this case where
petitioners were barred from enjoying provisional release until such time that charges were filed)
and where a sham preliminary investigation was hastily conducted THEN charges that are filed as a
result should lawfully be enjoined.
The petition is hereby GRANTED. The trial court is PERMANENTLY ENJOINED from proceeding in any
manner with the cases subject of the petition. No costs.

PEOPLE OF THE PHILIPPINES vs. MA. THERESA PANGILINAN II G.R. No.

152662
G.R. No. 152662                                June 13, 2012
PEOPLE OF THE PHILIPPINES
vs.
MA. THERESA PANGILINAN

FACTS:
Virginia Malolos filed an affidavit-complaint for estafa and violation of Batas Pambansa Blg.22 against the
respondent, Pangilinan on September 16, 1997 with the Office of the City Prosecutor of Quezon City.
On December 5, 1997, a civil case was commenced by Pangilinan against Malolos for accounting, recovery
of commercial documents, enforceability and effectivity of contract and specific performance before the
Regional Trial Court of Valenzuela City.
Five days thereafter or on December 10, 1997, Pangilinan filed a “Petition to Suspend Proceedings on the
Ground of Prejudicial Question” before the Office of the City Prosecutor of Quezon City, citing as basis the
pendency of the civil action she filed with the RTC of Valenzuela City. The City Prosecutor approved the
petition upon the recommendation of the assistant City Prosecutor on March 2, 1998.
Malolos appealed the decision of the City Prosecutor to the Department of Justice. On January 5, 1999,
reversed the resolution of the City Prosecutor and ordered the filing of informations on violations of Batas
Pambansa Blg.22. Said cases were filed before the Metropolitan Trial Court of Quezon City on November
18, 1999.
Pangilinan filed an “Omnibus Motion to Quash the Information and to Defer the Issuance of Warrant of
Arrest” before MeTC, Branch 31, Quezon City.  She alleged that her criminal liability has been extinguished
by reason of prescription.

ISSUE:
                        Whether or not prescription has set in.

HELD:
                        No, the action has not prescribed.
            Act No. 3326 entitled “An Act to Establish Prescription for Violations of Special Acts and Municipal
Ordinances and to Provide When Prescription Shall Begin,” as amended, is the law applicable to BP Blg. 22
cases. Appositely, the law reads: 
SECTION 1.  Violations penalized by special acts shall, unless otherwise provided in such acts, prescribe in
accordance with the following rules:  (a) xxx; (b) after four years for those punished by imprisonment for
more than one month, but less than two years; (c) xxx.
SECTION 2.  Prescription shall begin to run from the day of the commission of the violation of the law,
and if the same be not known at the time, from the discovery thereof and the institution of judicial
proceedings for its investigation and punishment.
The prescription shall be interrupted when proceedings are instituted against the guilty person, and shall
begin to run again if the proceedings are dismissed for reasons not constituting jeopardy.
Since BP Blg. 22 is a special law that imposes a penalty of imprisonment of not less than thirty (30)
days but not more than one year or by a fine for its violation, it therefor prescribes in four (4) years
in accordance with the aforecited law.  The running of the prescriptive period, however, should be
tolled upon the institution of proceedings against the guilty person.

STATE PROSECUTOR RINGCAR B. PINOTE v. JUDGE ROBERTO L. AYCO

502 SCRA 446 (2006)

The judge’s act of allowing the presentation of the defense witnesses in the absence of
public prosecutor or a private prosecutor designated for the purpose is a clear
transgression of the Rules.

Judge Roberto L. Ayco of Regional Trial Court (RTC) of South Cotabato allowed the

defense in a criminal case to present evidence consisting of the testimony of two
witnesses, even in the absence of State Prosecutor Ringcar B. Pinote who was
prosecuting the case. State Prosecutor Pinote was at that time undergoing medical
treatment at the Philippine Heart Center in Quezon City.

On the subsequent scheduled hearings of the criminal case, Pinote refused to cross-

examine the two defense witnesses, despite being ordered by Judge Ayco, maintaining
that prior proceedings conducted in his absence were void. Judge Ayco considered the
prosecution to have waived its right to cross-examine the two defense witnesses.

Hence, arose the present administrative complaint lodged by Pinote against Judge Ayco

for “Gross Ignorance of the Law, Grave Abuse of Authority and Serious Misconduct.”

ISSUE:

Whether or not Judge Ayco violated the Rules on Criminal Procedure for allowing the

defense to present evidence in the absence of a prosecutor

HELD:
As a general rule, all criminal actions shall be prosecuted under the control and direction
of the public prosecutor. If the schedule of the public prosecutor does not permit,
however, or in case there are no public prosecutors, a private prosecutor may be
authorized in writing by the Chief of the Prosecution Office or the Regional State
Prosecution Office to prosecute the case, subject to the approval of the court. Once so
authorized, the private prosecutor shall continue to prosecute the case until the
termination of the trial even in the absence of a public prosecutor, unless the authority
is revoked or otherwise withdrawn.

Violation of criminal laws is an affront to the People of the Philippines as a whole and
not merely to the person directly prejudiced, he being merely the complaining witness.
It is on this account that the presence of a public prosecutor in the trial of criminal
cases is necessary to protect vital state interests, foremost of which is its interest to
vindicate the rule of law, the bedrock of peace of the people.

Judge Ayco’s intention to uphold the right of the accused to a

speedy disposition of the case, no matter how noble it may be, cannot justify
a breach of the Rules. If the accused is entitled to due process, so is the State.

Judge Ayco’s lament about Pinote’s failure to inform the  court of his inability to
attend the hearings or to file a motion for postponement thereof or to
subsequently file a motion for reconsideration of his Orders allowing the defense
to present its two witnesses on said dates may be mitigating. It does not
absolve Judge Ayco of his utter disregard of the Rules.

OF VS. ILARDE

Good Law
SECOND DIVISION G.R. No. 58595, October 10, 1983 PEOPLE OF THE PHILIPPINES,
PETITIONER, VS. HON. RICARDO M. ILARDE, IN HIS CAPACITY AS PRESIDING JUDGE, CFI
OF ILOILO, BR. V, CECILE SANTIBAÑEZ AND AVELINO T. JAVELLANA, RESPONDENTS.

DECISION

ESCOLIN, J.:

Petition for review on certiorari of the order of the then Court of First Instance (now
Regional Trial Court) of Iloilo, Branch V, presided by the respondent Judge Ricardo
M. Ilarde, granting the motion to quash the information in Criminal Case No. 13086,
entitled, "People of the Philippines, plaintiff, versus
Cecile Santibañez and Avelino T. Javellana, accused."

The information in Criminal Case No. 13086 was filed on March 4, 1981 by City Fiscal
Ricardo P. Galvez. It reads:

"The undersigned City Fiscal upon sworn complaint originally filed by the offended
party  Efraim  Santibañez, copies of which are thereto attached as Annexes 'A' and 'B'
hereby accused CECILE SANTIBAÑEZ and AVELINO T. JAVELLANA of the crime of
adultery, committed as follows:

"That on or about the 3rd day of November, 1980, in the City of Iloilo, Philippines, and
within the jurisdiction of this Court, said accused Cecile  Santibañez  being lawfully
married to  Efraim  Santibañez, which marriage at that time has not been legally dissolved,
with deliberate intent, did then and there  wilfully, maliciously and criminally have sexual
intercourse with her co-accused  Avelino  T.  Javellana, a man not her husband and who in
turn knowing fully well that his co-accused was then lawfully married
to  Efraim  Santibañez, did then and there  wilfully, maliciously and criminally have sexual
intercourse with her.

"CONTRARY TO LAW.[1]
Annex "A" referred to in the information is the sworn complaint for adultery filed
by Efraim Santibañez against herein private respondents,
Cecile Santibañez and Avelino T. Javellana, with the Integrated National Police, Iloilo
Metro Police District, Iloilo City, on November 4, 1980, which complaint was immediately
forwarded to the Office of the City Fiscal for preliminary investigation. Said complaint
reads:

"C O M P L A I N T

"The undersigned accuses ATTY. AVELINO JAVELLANA, a resident of CPU

Compound,  Jaro, Iloilo City, and Cecile  Santibañez, a resident of  Candido  Subdivision,
Iloilo City, for the crime of adultery  x  x  x
xxxxxxxxx

(Sgd.)  EFRAIM SANTIBAÑEZ

(Signature of complainant)
"SUBSCRIBED AND SWORN to before me this 4th day of November, 1980 in the
City  of  Iloilo.

(Sgd.)  RICARDO P. GALVEZ

City Fiscal"

Annex "B" of the information is the affidavit-complaint dated November 6,

1980 executed by Efraim Santibañez, sworn to and filed before City
Fiscal Galvezon November 7, 1980, wherein Santibañez recounted in detail the
antecedents which brought about the apprehension inflagranteof private respondents.
The same is quoted as follows:

"I, EFRAIM SANTIBAÑEZ, of age, married, and a resident of  Fundidor,  Molo, Iloilo City,
after having been duly sworn to according to law depose and say:
"That I am legally married to Cecile  Sorianosos  in a Civil Marriage solemnized by Judge
Vicente Santos, City Court of  Pasay  City on March 22, 1974 but subsequently remarried in
a  religious  ceremony before Rev.  Panfilo  T.  Brasil  at the Parish Church of La Paz, Iloilo
City on July 18, 1974,  xerox  copies of the aforesaid marriage contracts are hereto
attached as Annexes 'A' and 'B', forming integral parts of this affidavit;

"After  our  marriage, I built a house for our permanent residence and as our conjugal
home in  Fundidor,  Molo,  Iloilo  City and furnished it  with all  the  comforts well within my
means;
"At the start of our marriage, I was led to believe by my wife of her total concern, love and
devotion to me and in turn I lavished her with all the material comfort at my command
and even tried to build up her social status by sending her as a delegate to
the  Zonta  World Conference at Washington, D.C. last July, 1980 without my company. As
a token of my love and unfailing trust we went sight-seeing  and on our  second
honeymoon to  Hongkong  only last month.
"Sometime during the last week of October, 1980, while I went on my normal work
routine to  Passi  Sugar  Millsite  in  Passi, Iloilo, my son Edmund took me aside in
confidence and told me that he has some very delicate matters to take up with me which
may be misinterpreted by me or may be taken by me in a wrong light; however, he said
that the honor and dignity of the family is at stake and I have to know it whatever be the
consequence. After I gave him the go signal, he narrated to me that my wife
Cecile  Sorianosos  has been unfaithful to me and has been having illicit relationship with
another man. Of course, I was taken aback and stunned so I asked him for the source of
his information. He informed me that our maid Elsa  Barios  and our driver
Loreto  Reales  had been aware of the illicit relationship and the man usually went to my
house and even slept there whenever I was in Manila. I got angry and blamed our maid
and the driver for not telling me but Edmund told me that they were afraid to tell because
they were threatened. After I have calmed down, I commented that if I confront my wife
about her illicit relationship, she will surely deny it. So I thought that the best way was to
catch her red-handed in the act of infidelity so that she could not deny it anymore. I
suggested to Edmund to think of a plan so we can catch my wife red-handed.

"After several days of planning we agreed to put our plan of action in operation on
November 3, 1980 since I will be leaving for Manila in the morning of that day. Our
problem was how to catch my wife in the very act of having sexual intercourse with her
lover considering the fact that our master's room was air-conditioned with all windows
framed by glass jalousies closed and covered by curtains. At first we thought of breaking
down the main door with a sledge hammer so we could take them by surprise, later we
abandoned the idea because of legal complications.
"Finally, I thought of removing a glass of the  jalousy  so the inside of the bedroom can be
seen from the outside once the curtain can be brushed aside by means of a thin wire and
the persons on bed could be seen clearly since the bed is on the same level as the opening
of the window. After several experiments whenever my wife was out, I found out that my
wife cannot notice the removal of the glass  jalousy  since our windows are screened from
the inside of our room.
"As pre-arranged, I removed one  jalousy  glass of the window of our master room so that
the people inside our room could be seen actually from the outside and the moment my
wife and her lover is seen in the act of sexual intercourse.

"Having completed all the plans to  effect  our plan of operation, I told my wife that I was
leaving in the morning of November 3, 1980 for Manila and actually I took the plane for
Manila on that day. I instructed my son Edmund to inform me immediately of the result of
the plan of action as soon  as  possible.

"Almost midnight of November 3, 1980, I was informed by my daughter-in-law Rebecca

that the operation was successful and resulted in the arrest of my wife and Atty.
Bob  Javellana  inside our bedroom.
"I know Atty. Bob  Javellana  for quite a time and we have been close friends. As a friend
he has come to our house at  Molo, Iloilo City oftentimes to discuss matters about the
court case between the Iloilo City Government and St. Therese Memorial Chapel which is a
business which I have given to my wife Cecile. Atty.  Javellana  knew that
Cecile  Sorianosos  is my legally married wife.

"When I returned to Iloilo City from Manila on November 4, 1980, I was shown the
photographs taken inside our master bedroom and I am attaching hereto the photographs
which are marked as Annexes "C", "D", "E", "F", "G", "H", "I" and "J".
"That I am formally charging my wife, Cecile  Sorianosos  and Atty. Bob  Javellana  of the
crime of adultery and would request that this affidavit  be  considered as a formal
complaint against them" (pp. 4-5, Original Records).
Sometime in January 1981, i.e., before the conclusion of the preliminary investigation
then being conducted by the Fiscal's Office, Efraim Santibañez learned that he was sick
of cancer and decided to leave for the United States for medical treatment. Before his
departure, he executed a holographic will, dated January 10, 1981, a portion of which
provided:

"I do hereby disinherit my second wife, Cecilia  Sorianosos  of any and all inheritance she is
entitled under the law as my wife on the ground that she had given cause for legal
separation by committing acts of adultery with Atty. Bob  Javellana  in the evening of
November 3, 1980 in my conjugal abode at  Candido  Subdivision and as a result of which
I charged her and Atty. Bob  Javellana  for adultery with the  Fiscal's  Office and I filed a
case of legal separation against her in Civil Case No.  SP-11-309 of the Juvenile and
Domestic Relations Court in  IloiloCity  for which act of infidelity, I can never forgive
her."[2]

On January 15, 1981, after several requests for postponement, private respondents
submitted their memorandum to the Fiscal's Office; and on February 19, 1981,
Fiscal Galvez issued a resolution finding the existence of a prima facie case for adultery
against private respondents.

On February 26, 1981, Fiscal Galvez was informed by relatives of Efraim Santibañez that

the latter had died in the United States on February 16, 1981. This notwithstanding, he
prepared the information in question on March 3, 1981, and on the following day, filed
the same with the Court of First Instance of Iloilo.

Private respondents filed a motion to quash the information on the ground that the
court did not acquire jurisdiction over the offense charged, as the offended party had
not filed the required complaint pursuant to the provisions of Article 344 of the Revised
Penal Code and Section 4, Rule 110 of the Rules of Court to the effect that "the crimes
of adultery and concubinage shall not be prosecuted except upon a complaint filed by
the offended spouse."

Finding merit in the position taken by private respondents, respondent judge granted
the motion and dismissed the case. The city fiscal moved for a reconsideration, but the
same was denied. Hence, the present recourse.
The sole issue to be resolved is whether or not there has been compliance with the
requirement of Article 344 of the Revised Penal Code, reiterated in Section 4, Rule 110
of the Rules of Court, that "the crimes of adultery and concubinage shall not be
prosecuted except upon a complaint filed by the offended party."

We rule in the affirmative.

We are aware that in a long line of decisions,[3] this Court has maintained strict
adherence to the requirement imposed by Article 344 of the Revised Penal Code.

It must be borne in mind, however, that this legal requirement was imposed "out of
consideration for the aggrieved party who might prefer to suffer the outrage in silence
rather than go through the scandal of a public trial."[4] Thus, the law leaves it to the
option of the aggrieved spouse to seek judicial redress for the affront committed by the
erring spouse. And this, to Our mind, should be the overriding consideration in
determining the issue of whether or not the condition precedent prescribed by said
Article 344 has been complied with. For needless to state, this Court should be guided
by the spirit, rather than the letter, of the law.

In the case at bar, the desire of the offended party, Efraim Santibañez, to bring his wife
and her alleged paramour to justice is only too evident. Such determination of purpose
on his part is amply demonstrated in the dispatch by which he filed his complaint with
the police [Annex 'A', supra]; the strong and unequivocal statement contained in the
affidavit filed with the Fiscal's Office that "I am formally charging my wife
Cecile Sorianosos and Atty. Bob Javellana of the crime of adultery and would request
that this affidavit be considered as a formal complaint against them" [Annex
'B', supra]; his filing of a complaint for legal separation against Cecile Santibañez with
the local Juvenile and Domestic Relations Court; and finally, in disinheriting his wife in
his Last Will and Testament dated January 10, 1981.

In quashing the information, respondent judge relied upon Our decision in People vs.
Santos[5] to the effect that a "salaysay"' or sworn statement of the offended party, which
prompted the fiscal to conduct a preliminary investigation and then to file an
information in court, was not the complaint required by Article 344 of the Revised Penal
Code.

The ruling in Santos is not applicable to the case at bar. In that case, the "salaysay"
executed by complainant Bansuelo was not considered the complaint contemplated by
Article 344 of the Revised Penal Code because it was a mere narration of how the crime
of rape was committed against her. However, in the affidavit-complaint submitted
by Efraim Santibañez, the latter not only narrated the facts and circumstances
constituting the crime of adultery, but he also explicitly and categorically charged
private respondents with the said offense. Thus -

"That I am formally charging my wife Cecile  Sorianosos  and Atty. Bob  Javellana  of the
crime of adultery and would request that this affidavit  be  considered as a formal
complaint against them."

Moreover, in Santos, this Court noted that the information filed by Rizal Provincial
Fiscal Nicanor P. Nicolas "commenced with the statement 'the undersigned fiscal
accuses Engracio Santos with the crime of rape,' the offended party not having been
mentioned at all as one of the accusers." In the instant case, however, the information
filed by the city fiscal of Iloilo reads as follows:

"The undersigned city fiscal upon sworn statement originally filed by the offended
party  Efraim  Santibañez,  xerox  copies of which are hereto attached as Annexes 'A' and
'B'  x  x  x."

Undoubtedly, the complaint-affidavit filed by Santibañez contains all the elements of a

valid complaint, as "it states the names of the defendants, the designation of the offense
by the statute, the acts or omission complained of as constituting the offense; the name
of the offended party, the approximate time of the commission of the offense, and the
place wherein the offense was committed."[6]

What is more, said complaint-affidavit was attached to the information as an integral

part thereof, and duly filed with the court. As held in Fernandez vs. Lantin,[7] the filing in
court of such affidavit or sworn statement of the offended party, if it contains all the
allegations required of a criminal complaint under Section 5, Rule 110 of the Rules
of Court, constitutes sufficient compliance of the law. Thus:

"x  x  x  in a case where the Fiscal filed an Information charging the accused with 'telling
some people in the neighborhood that said  Fausta  Bravo (a married woman) was a
paramour of one  Sangalang, a man not her husband', and  Fausta  Bravo did not subscribe
to the complaint, this Court held that the trial court had no jurisdiction over the case. It
ruled that since the accused imputed to  Fausta  Bravo the commission of adultery, a crime
which cannot be prosecuted de  oficio, the Information filed by the Fiscal cannot confer
jurisdiction upon the court of origin.
"It must be noted, however, that this error could be corrected without sustaining the
motion to quash and dismissing the case. Pursuant to section 1 of paragraph (a) of
Presidential Decree No. 77, under which the Assistant City Fiscal conducted the
preliminary investigation, the statement of the complainant was sworn to before the
aforesaid Investigating Fiscal. Assuming that the recitals in said sworn statement contain
all those required of a complaint under the rules, a copy of said verified statement of the
complainant should be filed with respondent Court in order to comply with the
requirements of Article 360 of the Revised Penal Code; otherwise, the respondent Fiscal
should file with said court a verified complaint of the offended party."
Upon these premises, We cannot but conclude that the adultery charge against private
respondents is being prosecuted "upon complaint filed by the offended party."

WHEREFORE, the petition is hereby granted. The orders of the Court of First Instance of
Iloilo, Branch V, in Criminal Case No. 13086, dated May 21 and September 14, 1981, are
hereby set aside, and respondent judge is directed to proceed with the trial of the case
on the merits. No costs.

SO ORDERED.

Makasiar, (Chairman), Aquino, Guerrero, Abad Santos, and Relova, JJ., concur.

Concepcion, Jr., J., on leave.
De Castro, J., on sick leave.

[1]
 p. 1, Original Records.

[2]
 pp. 92-93, Original Records.

 U.S. v. Gomez, 12 Phil. 279; U.S. v. Narvas, 14 Phil. 410; U.S. v. dela Cruz, 17 Phil. 139;
[3]

U.S. v. Castañares, 18 Phil. 210; U.S. v. Salazar, 19 Phil. 233; Quilatan and

Santiago v. Caruncho, 21 Phil. 399; People v. Martinez, 76 Phil. 559.

[4]
 Samilin vs.  CFI of Pangasinan, 57 Phil. 298, 304.

[5]
 101 Phil. 798.
  "SEC. 5. Sufficiency of complaint or information. - A complaint or information is
[6]

sufficient if it states the name of the defendant; the designation of the offense by the
statute; the acts or omissions complained of as constituting the offense; the name of the
offended party; the approximate time of the commission of the offense, and the place
wherein the offense was committed. x x x "

[7]
 74 SCRA 338, 343, 344.

 
 
YALONG VS. PEOPLE
Not Cited Recently
SECOND DIVISION G.R. No. 187174, August 28, 2013 FELY Y. YALONG, PETITIONER, VS.
PEOPLE OF THE PHILIPPINES AND LUCILA C. YLAGAN, RESPONDENTS.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari[1] are the Resolutions dated August 1,
2008[2] and March 10, 2009[3] of the Court of Appeals (CA) in CA-G.R. SP No. 104075
which dismissed petitioner Fely Y. Yalong's (Yalong) Petition for Review [4] dated June 26,
2008 (subject petition for review), finding the same to be the improper mode of appeal.

The Facts

Stemming from a complaint filed by respondent Lucila C. Ylagan (Ylagan), an

Information was filed before the Municipal Trial Court in Cities of Batangas City, Branch
1 (MTCC), docketed as Criminal Case No. 45414, charging Yalong for the crime of
violation of Batas Pambansa Bilang 22 [5] (BP 22) as follows:

That on or about April 2, 2002 at Batangas City, Philippines and within the jurisdiction of
this Honorable Court, the above-named accused, well-knowing that she does not have
funds in or credit with the Export and Industry Bank, Juan Luna Branch, did then and there
wilfully, unlawfully and feloniously draw, make and issue to Major Lucila Ylagan, Export
and Industry Bank Check No. 0002578833 dated May 3, 2002 in the amount of FOUR
HUNDRED FIFTY THOUSAND PESOS (P450,000.00), Philippine Currency, to apply on
account or for value, but when said check was presented for full payment with the drawee
bank, the same was dishonored by the drawee bank on the ground of "Account Closed,"
which in effect is even more than a dishonor for insufficiency of funds, despite notice of
dishonor and demands made upon her to make good her check by making proper
arrangement with the drawee bank or pay her obligation in full directly to Major Lucila
Ylagan, accused failed and refused to do so, which acts constitute a clear violation of the
aforecited law, to the damage and prejudice of transaction in commercial documents in
general and of Major Lucila Ylagan in particular in the aforementioned amount.

CONTRARY TO LAW.  [6]

Upon arraignment, Yalong pleaded not guilty to the aforesaid charge. Hence, the case
was set for pre-trial and thereafter, trial ensued. [7]

During trial, Ylagan testified that sometime on April 2, 2002, Yalong borrowed from her
the amount of P450,000.00 with a verbal agreement that the same would be paid back
to her in cash and, as payment thereof, issued to her, inter alia, a postdated check dated
May 3, 2002 in the similar amount of P450,000.00 (subject check). However, when
Ylagan presented the subject check for payment on August 27, 2002, it was dishonored
and returned to her for the reason "Account Closed." As verbal and written demands
made on Yalong to pay her loan proved futile, Ylagan was constrained to file the instant
criminal case.[8]

In her defense, Yalong averred that she already paid her loan but did not require Ylagan
to issue a receipt or acknowledge the same. Likewise, she claimed that the subject check
belonged to her husband and that while she knew that the said check was not covered
by sufficient funds, it was already signed by her husband when she handed it to Ylagan. [9]

The MTCC Ruling and Subsequent Proceedings

On August 24, 2006, the MTCC rendered its Judgment [10] (MTCC Decision), finding
Yalong guilty beyond reasonable doubt of the crime of violation of BP 22 and
accordingly sentenced her to suffer the penalty of imprisonment for a term of one year
and ordered her to pay Ylagan the amount of P450,000.00, with legal interest of 12% per
annum from October 10, 2002, including P25,000.00 as attorney's fees and costs of suit.
[11]

The MTCC found all the elements of the crime charged to have been duly established. It
did not give credence to Yalong's defense that she did not own the checking account
and that she was not the one who issued the subject check. On this score, it cited the
case of Ruiz v. People[12] wherein it was held that "[BP 22] is broad enough to include,
within its coverage, the making and issuing of a check by one who has no account with
a bank, or where such account was already closed when the check was presented for
payment."[13] Further, it observed that Yalong failed to prove by clear and convincing
evidence that she has completely paid the loan and thus, such defense must likewise fail.
[14]

Yalong filed a Supplemental Motion for Reconsideration and Recall the Warrant of
Arrest[15] dated October 15, 2006 which the MTCC treated as an original motion for
reconsideration. The said motion was, however, denied in an Order [16] dated December 5,
2006.
Consequently, Yalong filed a Notice of Appeal[17] dated January 2, 2007 which was denied
due course in an Order[18] dated January 19, 2007, considering that the judgment against
her was promulgated in absentia on account of her unjustified absence.

Dissatisfied, Yalong filed a Petition for Relief from Order and Denial of Appeal [19] which
was dismissed in an Order[20] dated July 25, 2007 on the ground that Yalong had lost the
remedies available to her under the law when she: (a) failed to appear without justifiable
reason at the scheduled promulgation of the MTCC Decision; (b) did not surrender
within 15 days from the date of such promulgation; (c) did not file a motion for leave of
court to avail of the remedies under the law; and (d) remained at large. Yalong moved
for reconsideration[21] which was, however, denied in an Order [22] dated October 25, 2007.
Aggrieved, Yalong filed a Petition for Certiorari with Petition for Bail (certiorari petition),
docketed as Civil Case No. 8278, before the Regional Trial Court of Batangas City,
Branch 7 (RTC).[23]

The RTC Ruling

In a Resolution[24] dated April 2, 2008 (RTC Resolution), the RTC denied

Yalong's certiorari petition, finding the promulgation of the MTCC Decision in
absentia to be valid as Yalong was duly notified of the scheduled date of promulgation
on October 6, 2006 and yet failed to appear thereat. [25] Furthermore, the RTC observed
that Yalong did not make any effort to surrender within the time allowed by the rules
and thus, lost the remedies available to her under the law. [26]

Yalong filed a motion for reconsideration on April 30, 2008 [27] which was eventually
denied in an Order[28] dated May 27, 2008. As such, on June 26, 2008, she filed the
subject petition for review before the CA. [29]

The CA Ruling

In a Resolution[30] dated August 1, 2008, the CA dismissed the subject petition for review
on the ground that the "Order of the [RTC] was issued in the exercise of its original
jurisdiction where appeal [by filing a notice of appeal with the RTC] and not a petition
for review is the proper remedy."

Yalong filed a motion for reconsideration dated November 20, 2008 [31] which was,
however, denied in a Resolution[32] dated March 10, 2009. Hence, this petition.

The Issue Before the Court

The essential issue in this case is whether or not the CA properly dismissed the subject
petition for review on the ground of improper appeal.

The Court's Ruling

The petition is bereft of merit.

While the Rules of Court (Rules) do not specifically state that the inappropriate filing of
a petition for review instead of a required notice of appeal is dismissible (unlike its
converse, i.e., the filing of a notice of appeal when what is required is the filing of a
petition for review),[33] Section 2(a), Rule 41 of the Rules nonetheless provides that
appeals to the CA in cases decided by the RTC in the exercise of its original jurisdiction
shall be taken by filing a notice of appeal with the latter court. The said provision reads:

SEC. 2.  Modes of appeal. br/>

(a)  Ordinary appeal.  The appeal to the Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original jurisdiction shall be taken by
filing a notice of appeal with the court which rendered the judgment or final order
appealed from  and serving a copy thereof upon the adverse party. No record on appeal
shall be required except in special proceedings and other cases of multiple or separate
appeals where the law or these Rules so require. In such cases, the record on appeal shall
be filed and served in like manner. (Emphasis and underscoring supplied)

In the case at bar, records reveal that Yalong filed a petition for certiorari with the RTC
and that the latter court rendered a Resolution dated April 2, 2008 dismissing the same.
It is fundamental that a petition for certiorari is an original action[34] and, as such, it
cannot be gainsaid that the RTC took cognizance of and resolved the aforesaid petition
in the exercise of its original jurisdiction. Hence, based on the above-cited rule, Yalong
should have filed a notice of appeal with the RTC instead of a petition for review with
the CA. As a consequence of Yalong's failure to file a notice of appeal with the RTC
within the proper reglementary period, the RTC Decision had attained finality which
thereby bars Yalong from further contesting the same.

In this relation, it must be pointed out that Yalong's contention that a petition for review
may be treated as a notice of appeal since the contents of the former already include
the required contents of the latter cannot be given credence since these modes of
appeal clearly remain distinct procedures which cannot, absent any compelling reason
therefor, be loosely interchanged with one another. For one, a notice of appeal is filed
with the regional trial court that rendered the assailed decision, judgment or final order,
while a petition for review is filed with the CA. Also, a notice of appeal is required when
the RTC issues a decision, judgment or final order in the exercise of its original
jurisdiction, while a petition for review is required when such issuance was in the
exercise of its appellate jurisdiction. Thus, owing to these differences, Yalong's filing of
the subject petition for review cannot be simply accorded the same effect as the filing of
a notice of appeal.

Verily, jurisprudence dictates that the perfection of an appeal within the period and in
the manner prescribed by law is jurisdictional and non-compliance with such
requirements is considered fatal and has the effect of rendering the judgment final and
executory. To be sure, the rules on appeal must be strictly followed as they are
considered indispensable to forestall or avoid unreasonable delays in the administration
of justice, to ensure an orderly discharge of judicial business, and to put an end to
controversies. Though as a general rule, rules of procedures are liberally construed, the
provisions with respect to the rules on the manner and periods for perfecting appeals
are strictly applied and are only relaxed in very exceptional circumstances on equitable
considerations, which are not present in the instant case. [35] As it stands, the subject
petition for review was the wrong remedy and perforce was properly dismissed by the
CA.

Besides, even discounting the above-discussed considerations, Yalong's appeal still

remains dismissible on the ground that, inter alia, the MTCC had properly acquired
jurisdiction over Criminal Case No. 45414. It is well-settled that violation of BP 22 cases
is categorized as transitory or continuing crimes, which means that the acts material and
essential thereto occur in one municipality or territory, while some occur in another.
Accordingly, the court wherein any of the crime's essential and material acts have been
committed maintains jurisdiction to try the case; it being understood that the first court
taking cognizance of the same excludes the other. Stated differently, a person charged
with a continuing or transitory crime may be validly tried in any municipality or territory
where the offense was in part committed. [36] Applying these principles, a criminal case for
violation of BP 22 may be filed in any of the places where any of its elements occurred in
particular, the place where the check is drawn, issued, delivered, or dishonored. [37]

In this case, while it is undisputed that the subject check was drawn, issued, and
delivered in Manila, records reveal that Ylagan presented the same for deposit and
encashment at the LBC Bank in Batangas City where she learned of its dishonor. [38] As
such, the MTCC correctly took cognizance of Criminal Case No. 45414 as it had the
territorial jurisdiction to try and resolve the same. In this light, the denial of the present
petition remains warranted.

As the Court finds the above-stated reasons already sufficient to deny the present
petition, it is unnecessary to delve on the other ancillary issues in this case.
WHEREFORE, the petition is DENIED. Accordingly, the Resolutions dated August 1,
2008 and March 10, 2009 of the Court of Appeals in CA-G.R. SP. No. 104075 are
hereby AFFIRMED.

SO ORDERED.

IVLER vs. HON. MODESTO

G.R. No. 172716, November 17, 2010

FACTS: Following a vehicular collision in August 2004, petitioner Jason Ivler was charged before the Metropolitan
Trial Court of Pasig City (MeTC), with two separate offenses: (1) reckless imprudence resulting in slight physical
injuries for injuries sustained by respondent Evangeline L. Ponce; and (2) reckless imprudence resulting in homicide
and damage to property for the death of respondent Ponce’s husband Nestor C. Ponce and damage to the spouses
Ponce’s vehicle.

Crimes charged: 1) reckless imprudence resulting in slight physical injuries; and 2) reckless imprudence resulting in
homicide and damage to property

On September 7, 2004, Ivler pleaded guilty to the charge in reckless imprudence resulting in slight physical injuries
and was meted out the penalty of public censure. Invoking this conviction, Ivler moved to quash the Information of
reckless imprudence resulting in homicide and damage to property for placing him in jeopardy of second punishment
for the same offense of reckless imprudence.

MeTC: denied the motion to quash

RTC: denied Ivler’s Petition for Certiorari in dismissing his Motion to Quash

ISSUE: Whether or not Ivler’s constitutional right under the Double Jeopardy Clause bars further proceedings in the
information charging him with reckless imprudence resulting in homicide and damage to property (YES)

Defense: Ivler argues that his constitutional right not to be placed twice in jeopardy of punishment for the same
offense bars his prosecution in reckless imprudence resulting in homicide and damage to property having been
previously convicted in reckless imprudence resulting in slight physical injuries for injuries for the same offense. Ivler
submits that the multiple consequences of such crime are material only to determine his penalty

HELD: The Supreme Court reversed the ruling of the RTC. Petitioner’s conviction in the case of reckless imprudence
resulting in slight physical injuries bars his prosecution in criminal reckless imprudence resulting in homicide and
damage to property
1) Reckless Imprudence is a Single Crime; its Consequences on Persons and Property are Material Only to
Determine the Penalty

Quasi-offenses penalize “the mental attitude or condition behind the act, the dangerous recklessness, lack of care or
foresight, the imprudencia punible,” 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.

2) Prior Conviction or Acquittal of Reckless Imprudence Bars Subsequent Prosecution for the Same Quasi-
offense

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 cannot be split into different crimes and
prosecutions.

3) Article 48 Does Not Apply to Acts Penalized Under Article 365 of 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
felonies); 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 behind
the act, the dangerous recklessness, lack of care or foresight, a single mental attitude regardless of the resulting
consequences. Thus, Article 365 was crafted as one quasi-crime resulting in one or more consequences. Article 48 is
incongruent to the notion of quasi-crime resulting in one or more consequences.

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) an offense which is a
necessary means for committing another.

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.
Case Brief: Cerezo v People

Facts:
Petitioner Joseph Cerezo filed a complaint for libel against respondents Juliet Yaneza,
Pablo Abunda, Jr., and Vicente Afulugencia (respondents), as well as Oscar Mapalo
(Mapalo). Finding probable cause to indict respondents,  the Quezon City Prosecutors
Office (OP-QC) filed the corresponding Information against them before the RTC.
Respondents thereafter filed a Motion for Reconsideration and/or Motion to Re-
evaluate Prosecutions Evidence before the OP-QC. In its resolution, the OP-QC reversed
its earlier finding and recommended the withdrawal of the Information. Consequently, a
Motion to Dismiss and Withdraw Information was filed before the RTC on December 3,
2003. During the intervening period, specifically on November 24, 2003, respondents
were arraigned. All of them entered a not guilty plea. In deference to the prosecutor’s
last resolution, the RTC ordered the criminal case dismissed in its Order.

Aggrieved, petitioner moved for reconsideration of the said Order, arguing that the OP-
QC resolution has not yet attained finality, considering that the same was the subject of
a Petition for Review filed before the Department of Justice (DOJ). The RTC deferred
action on the said motion to await the resolution of the DOJ. The Secretary of Justice
promulgated his resolution reversing and setting aside the OP-QCs resolution, and
directing the latter to refile the earlier Information for libel. The RTC issued its first
assailed Order granting petitioners motion for reconsideration, conformably with the
resolution of the DOJ Secretary and setting aside its last Order granting the dismissal of
the case against the respondents and order the reinstatement of the case.

Respondents moved for reconsideration, but the motion was denied in the RTC.

The respondents elevated their predicament to the CA arguing that the RTC Orders
violated their constitutional right against double jeopardy. The CA found the RTC to
have gravely abused its discretion in ordering the reinstatement of the case. The CA
annulled the impugned RTC Orders, ruling that all the elements of double jeopardy
exist. There was a valid Information sufficient in form and substance filed before a court
of competent jurisdiction to which respondents had pleaded, and that the termination
of the case was not expressly consented to by respondents; hence, the same could not
be revived or refiled without transgressing respondents right against double jeopardy.
The CA further found that the DOJ Secretary improperly took cognizance of the Petition
for Review because DOJ Department Order No. 223 mandates that no appeal shall be
entertained if the accused has already been arraigned or, if the arraignment took place
during the pendency of the appeal, the same shall be dismissed.
Petitioner interposed the instant appeal when his motion for reconsideration of the CA
Decision was denied.

Issue:
Whether there was a valid termination of the case so as to usher in the impregnable wall
of double jeopardy.
Ruling:
The Court held that in resolving a motion to dismiss a case or to withdraw an
Information, the trial court should not rely solely and merely on the findings of the
public prosecutor or the Secretary of Justice.  It is the courts bounden duty to assess
independently the merits of the motion, and this assessment must be embodied in a
written order disposing of the motion. While the recommendation of the prosecutor or
the ruling of the Secretary of Justice is persuasive, it is not binding on courts.
The Court noticed that it is obvious from the Order of the RTC, dismissing the criminal
case, that the RTC judge failed to make his own determination of whether or not there
was a prima facie  case to hold respondents for trial. He failed to make an independent
evaluation or assessment of the merits of the case. The RTC judge blindly relied on the
manifestation and recommendation of the prosecutor when he should have been more
circumspect and judicious in resolving the Motion to Dismiss and Withdraw Information
especially so when the prosecution appeared to be uncertain, undecided, and irresolute
on whether to indict respondents. The same holds true with respect to the Order, which
reinstated the case. The RTC judge failed to make a separate evaluation and merely
awaited the resolution of the DOJ Secretary.
By relying solely on the manifestation of the public prosecutor and the resolution of the
DOJ Secretary, the trial court abdicated its judicial power and refused to perform a
positive duty enjoined by law.  The said Orders were thus stained with grave abuse of
discretion and violated the complainant’s right to due process. They were void, had no
legal standing, and produced no effect whatsoever.

The Court remanded the case to the RTC, so that the latter can rule on the merits of the
case to determine if a prima facie case exists and consequently resolve the Motion to
Dismiss and Withdraw Information anew.
The Court also held that double jeopardy did not set in. Double jeopardy exists 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. A 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 has been acquitted or convicted, or the case
dismissed or otherwise terminated without his express consent.
Since the Court have held Order granting the motion to dismiss was committed with
grave abuse of discretion, then respondents were not acquitted nor was there a valid
and legal dismissal or termination of the case. The fifth requisite which requires the
conviction and acquittal of the accused, or the dismissal of the case without the
approval of the accused, was not met. Thus, double jeopardy has not set in. The petition
was granted and the Supreme Court remanded the case to QC-RTC for evaluation on
whether probable cause exists to hold respondents for trial.

HAROLD V. TAMARGO v. ROMULO AWINGAN, GR No. 177727, 2010-

01-19
Facts:

Atty. Franklin V. Tamargo and his eight-year-old daughter, Gail... shot and killed

The police had no leads on the perpetrators of the crime until a certain Reynaldo

Geron surfaced and executed an affidavit

He stated that a certain Lucio Columna told him during a drinking spree that Atty. Tamargo was
ordered killed by

Lloyd Antiporda and that he (Columna) was one of those who killed Atty. Tamargo. He... added
that he told the Tamargo family what he knew and that the sketch of the suspect closely
resembled Columna

After conducting a preliminary investigation and on the strength of Geron's affidavit, the
investigating prosecutor[5] issued a resolution... and three John Does.

corresponding Informations for murder were filed against them in the Regional Trial Court (RTC)
of Manila

Columna was arrested

Columna (whose real name was Manuel, Jr.) executed an affidavit wherein he admitted his
participation as "look out" during the shooting and implicated

Romulo Awingan (alias "Mumoy") as the gunman and one Richard Mecate.

also tagged as masterminds

Licerio Antiporda, Jr. and his son

Lloyd Antipord... former was the ex-mayor and the latter the mayor of Buguey, Cagayan at that
time. When the killing took place, Licerio Antiporda was in detention for a kidnapping case in...
which Atty. Tamargo was acting as private prosecutor

Pursuant to this affidavit, petitioner Harold V. Tamargo (brother of Atty. Tamargo) filed a
complaint against those implicated by Columna in the Office of the City Prosecutor of Manila
Columna affirmed his affidavit before the investigating prosecutor[11] who subjected him to
clarificatory questions

Respondents denied any involvement... lleged that Licerio was a candidate for mayor... ical
opponents in order to derail his candidacy.

Before the killing, Atty. Tamargo filed an election case against Lloyd and a kidnapping case in
the Sandiganbayan against Licerio.

However, they claimed that both cases were dismissed

During the preliminary investigation

Licerio presented Columna's unsolicited handwritten letter... disowned the contents of his March
8, 2004 affidavit and narrated... how he had been tortured until he signed the extrajudicial
confession

Licerio also submitted an affidavit of Columna dated May 25, 2004 wherein the latter
essentially... repeated the statements in his handwritten letter.

Due to the submission of Columna's letter and affidavit, the investigating prosecutor set a
clarificatory hearing, to enable Columna to clarify his contradictory affidavits and his unsolicited
letter. During the hearing held on October 22, 2004, Columna categorically admitted... the
authorship and voluntariness of the unsolicited letter. He affirmed the May 25, 2004 affidavit
and denied that any violence had been employed to obtain or extract the affidavit from him.

investigating prosecutor recommended the dismissal of the charges. This was approved by the
city prosecutor... in another handwritten letter

Columna said that he was only forced to withdraw all his statements against respondents... his
life... inside the jail. He requested that he be transferred to another detention center.

Aggrieved by the dismissal of the charges, petitioner filed an appeal to the Department of
Justice (DOJ)

Secretary Raul M. Gonzalez, reversed the dismissal and ordered the filing of the Informations
for... murder

He opined that the March 8, 2004 extrajudicial confession was not effectively impeached by the
subsequent recantation and that there was enough evidence to prove the probable guilt of
respondents

However, on August 12, 2005, Secretary Gonzales granted the Antipordas' motion for
reconsideration (MR) and directed the withdrawal of the Informations.[21] This time, he declared
that the extrajudicial confession of Columna was inadmissible against... respondents and that,
even if it was admissible, it was not corroborated by other evidence.

trial prosecutor filed a motion to withdraw the Informations.

RTC... granted the motion to withdraw... cases were re-raffled... to

Judge Zenaida R. Daguna

Judge Daguna granted the MR... ruled that, based on Columna's... investigating prosecutor,
there was probable cause to hold... the accused for trial

CA ruled that the RTC judge gravely abused her discretion because she arbitrarily left out of her
assessment and evaluation the substantial matters that the DOJ Secretary had fully taken into
account in... concluding that there was no probable cause against all the accused. It also held
that Columna's extrajudicial confession was not admissible against the respondents because,
aside from the recanted confession, there was no other piece of evidence presented to establish
the... existence of the conspiracy. Additionally, the confession was made only after Columna was
arrested and not while the conspirators were engaged in carrying out the conspiracy.

Issues:

whether or not the CA erred in finding that Judge Daguna had committed grave abuse of
discretion in denying the withdrawal of the Informations for murder against respondents.

Petitioner argues that, based on the independent assessment of Judge Daguna, there was
probable cause based on the earlier affidavit of Columna. She considered all the pieces of
evidence but did not give credit to Columna's recantation.

Respondents counter that Judge Daguna committed grave abuse of discretion by limiting her
evaluation and assessment only to evidence that supported probable cause while completely
disregarding contradicting evidence. They also contend that Columna's extrajudicial confession
was... inadmissible against respondents because of the rule on res inter alios acta.

Ruling:

We agree with the CA that Judge Daguna limited herself only to

Columna's affidavit... wherein he implicated the respondents in the murders; (2) his affirmation
of this affidavit... his letter

DOJ resolution upholding the prosecutor's recommendation to file the murder charges.

Judge Daguna failed to consider that Columna's extrajudicial confession in his March 8, 2004
affidavit was not admissible as evidence against respondents in view of the rule on res inter alios
acta

Res inter alios acta alteri nocere non debet. The rule on res inter alios acta provides that the
rights of a party cannot be prejudiced by an act, declaration, or omission of another.

Here, aside from the extrajudicial confession, which was later on recanted, no other piece of
evidence was presented to prove the alleged conspiracy. There was no other prosecution
evidence, direct or circumstantial, which the extrajudicial confession could corroborate.

Therefore, the recanted confession of Columna, which was the sole evidence against
respondents, had no probative value and was inadmissible as evidence against them.
Considering the paucity and inadmissibility of the evidence presented against the respondents,
it would be unfair to hold them for trial. Once it is ascertained that no probable cause exists to
form a sufficient belief as to the guilt of the accused, they should be relieved from... the pain of
going through a full blown court case

Indeed, at that stage of the proceedings, the duty of Judge Daguna was only to satisfy herself
whether there was probable cause or sufficient ground to hold respondents for trial as co-
conspirators. Given that she had no sufficient basis for a finding of probable cause against...
respondents, her orders denying the withdrawal of the Informations for murder against them
were issued with grave abuse of discretion

Principles:

Res inter alios acta alteri nocere non debet. The rule on res inter alios acta provides that the
rights of a party cannot be prejudiced by an act, declaration, or omission of another.[32]
Consequently, an extrajudicial confession is binding... only on the confessant, is not admissible
against his or her co-accused[33] and is considered as hearsay against them.[34] The reason for
this rule is that:... on a principle of good faith and mutual convenience, a man's own acts are
binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it
would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound
by... the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts
of strangers, neither ought their acts or conduct be used as evidence against him

An exception to the res inter alios acta rule is an admission made by a conspirator under Section
30, Rule 130 of the Rules of Court:

Admission by conspirator. -- The act or declaration of a conspirator relating to the conspiracy

and during its existence, may be given in evidence against the co-conspirator after the
conspiracy is shown by evidence other than such act or declaration.

rule prescribes that the act or declaration of the conspirator relating to the conspiracy and
during its existence may be given in evidence against co-conspirators provided that the
conspiracy is shown by independent evidence aside from the extrajudicial... confession.[36] Thus,
in order that the admission of a conspirator may be received against his or her co-conspirators,
it is necessary that (a) the conspiracy be first proved by evidence other than the admission itself
(b) the admission relates to the... common object and (c) it has been made while the declarant
was engaged in carrying out the conspiracy.[37] Otherwise, it cannot be used against the alleged
co-conspirators without violating their constitutional right to be confronted with the witnesses...
against them and to cross-examine them

DIMATULAC v VILLON
Facts:

§   In the prosecution of the Yabuts for the murder of Dimatulac, the Office of the Public
Prosecutor (particularly the Asst Prosecutor) and two Judges (who handled the case) committed
serious procedural flaws resulting in the impairment of due process (prejudicial to both the
offended party and the accused).

§   Procedural irregularities in the Office of the Provincial Prosecutor:

o    Warrants of arrest were issued by the MCTC, with no bail recommended, but the Yabuts
were not arrested or were never brought unto the custody of the law. Yet, Asst Fiscal Alfonso-
Reyes conducted a reinvestigation. Though a prosecutor may disagree with the findings of the
judge who conducted the preliminary investigation (and conduct his own), the circumstance that
the accused waived the filing of their counter-affidavits left Alfonso-Reyes no other choice but
to sustain the MCTC findings—which she did not do. And later on, Alfonso-Reyes allowed the
Yabuts to file their counter-affidavits without first demanding that they surrender by virtue of
the standing warrants of arrest.

o    Alfonso-Reyes recommended a bond of 20k for the Yabuts despite the fact that they were
charged of homicide and that they were fugitives from justice (having avoided service of warrant
of arrest).

o    Alfonso-Reyes was aware of the private prosecution’s appeal to the DOJ from her resolution.
(The subsequent resolution of the DOJ Secretary exposed her blatant errors.) And despite the
pending appeal, she filed the Information. It would be more prudent to wait for the DOJ
resolution.

o     Office of the Prosecutor did not even inform the trial court of the pending appeal to the
DOJ Secretary.

§   Judge Roura’s procedural lapses:

o    Deferred resolution on the motion for a hold departure order until “such time that all the
accused who are out on bail are arraigned”

o    Denied the motion to defer proceedings for the reason that “private prosecution has not
shown any indication that the appeal was given due course by DOJ”

§   Judge Villon’s procedural lapses:

o    Ordered arraignment despite: a motion to defer proceedings; a ten-day period with which
the complainants can file petition with the CA; resolution of the CA ordering the Yabuts to
comment on the complainants’ action; pending appeal with the DOJ.

Issue:

Can the orders of Judge Roura and Judge Villon be sustained despite procedural defects?
Held:

No. The orders of Judge Roura denying Motion to Defer proceedings are void and set aside. The
order of Judge Villon on the arraignment, and the subsequent arraignment of the Yabuts are
void and set aside. Office of the Provincial Prosecutor is ordered to comply with the DOJ
Secretary’s resolution.

Prosecutors are the representatives not of an ordinary party to a controversy, but of a

sovereignty whose obligation to govern impartially is as compelling as its obligation to govern
at all; and whose interest in a criminal prosecution is not that it shall win every case but that
justice be done.  They are servants of the law whose two-fold aim is that guilt shall not escape
and innocence shall not suffer.

The judge “should always be imbued with a high sense of duty and responsibility in the
discharge of his obligation to promptly and properly administer justice”. The judge’s action must
not impair the substantial rights of the accused, nor the right of the State and offended party.

When the State is deprived of due process in a criminal case by reason of grave abuse of
discretion on the part of the trial court, the acquittal of the accused or dismissal of the case is
void.

JOSE C. MIRANDA, ALBERTO P. DALMACIO, and ROMEO B.

OCON
vs.
VIRGILIO M. TULIAO
FACTS:
Two informations for murder were filed against SPO1 Wilfredo Leaño, SPO1 Ferdinand Marzan, SPO1
Ruben B. Agustin, SPO2 Alexander Micu, SPO2 Rodel Maderal, and SPO4 Emilio Ramirez for the deaths of
Vicente Bauzon and Elizer Tuliao in the Regional Trial Court (RTC) of Santiago City.
The venue was later transferred to Manila. On 22 April 1999, the RTC of Manila convicted all of the
accused and sentenced them to two counts of reclusion perpetua except SPO2 Maderal who was yet to
be arraigned at that time, being at large. The case was appealed to this Court on automatic review where
we, on 9 October 2001, acquitted the accused therein on the ground of reasonable doubt.
Sometime in September 1999, SPO2 Maderal was arrested. On 27 April 2001, he executed a sworn
confession and identified petitioners Jose C. Miranda, PO3 Romeo B. Ocon, and SPO3 Alberto P. Dalmacio,
a certain Boyet dela Cruz and Amado Doe, as the persons responsible for the deaths of Vicente Bauzon
and Elizer Tuliao. Respondent Tuliao filed a criminal complaint for murder against petitioners, Boyet dela
Cruz, and Amado Doe, and submitted the sworn confession of SPO2 Maderal. On 25 June 2001, Acting
Presiding Judge Wilfredo Tumaliuan issued warrants of arrest against petitioners and SPO2
Maderal.          
On 29 June 2001, petitioners filed an urgent motion to complete preliminary investigation, to
reinvestigate, and to recall and/or quash the warrants of arrest.      
In the hearing of the urgent motion on 6 July 2001, Judge Tumaliuan noted the absence of petitioners
and issued a Joint Order denying said urgent motion on the ground that, since the court did not acquire
jurisdiction over their persons, the motion cannot be properly heard by the court.

ISSUE:
Whether or not the court has lawfully acquired jurisdiction over the person of the accused.

HELD:
Yes, in criminal cases, jurisdiction over the person of the accused is deemed waived by the accused when
he files any pleading seeking an affirmative relief, except in cases when he invokes the special jurisdiction
of the court by impugning such jurisdiction over his person. Therefore, in narrow cases involving special
appearances, an accused can invoke the processes of the court even though there is neither jurisdiction
over the person nor custody of the law. However, if a person invoking the special jurisdiction of the court
applies for bail, he must first submit himself to the custody of the law.
In cases not involving the so-called special appearance, the general rule applies, i.e., the accused is
deemed to have submitted himself to the jurisdiction of the court upon seeking affirmative relief.
Notwithstanding this, there is no requirement for him to be in the custody of the law. The following cases
best illustrate this point, where we granted various reliefs to accused who were not in the custody of the
law, but were deemed to have placed their persons under the jurisdiction of the court. Note that none of
these cases involve the application for bail, nor a motion to quash an information due to lack of
jurisdiction over the person, nor a motion to quash a warrant of arrest

MIGUEL P. PADERANGA vs. COURT OF APPEALS and PEOPLE OF

THE PHILIPPINES
G.R. No. 11540 August 28, 1995

Facts: Petitioner was belatedly charged in an amended information as a co-conspirator in the crime of multiple
murder in the Regional Trial Court for the killing of members of the Bucag family sometime in 1984 in Gingoog City of
which petitioner was the mayor at the time.
The trial of the base was all set to start with the issuance of an arrest warrant for petitioner’s apprehension but, before
it could be served on him, petitioner through counsel, a motion for admission to bail with the trial court which set the
same for hearing.
As petitioner was then confined at the Cagayan Capitol College General Hospital, his counsel manifested that they
were submitting custody over the person of their client to the local chapter president of the integrated Bar of the
Philippines and that, for purposes of said hearing of his bail application, he considered being in the custody of the
law.
The prosecution was neither supporting nor opposing the application for bail and that they were submitting the same
to the sound discretion of the trail judge
Upon further inquiries from the trial court, Prosecutor Abejo announced that he was waiving any further presentation
of evidence. On that note and in a resolution, the trial court admitted petitioner to bail in the amount of P200,000.00

Issue: Whether or not the grant of bail was tainted with grave abuse of discretion

Held: None.
As a paramount requisite, only those persons who have either been arrested, detained, or other wise deprived of their
freedom will ever have occasion to seek the protective mantle extended by the right to bail.
A person is considered to be in the custody of the law (a) when he is arrested either by virtue of a warrant of
arrest issued or by warrantless arrest or (b) when he has voluntarily submitted himself to the jurisdiction of
the court by surrendering to the proper authorities.
In the case of herein petitioner, it may be conceded that he had indeed filed his motion for admission to bail before
he was actually and physically placed under arrest. He may, however, at that point and in the factual ambience
therefore, be considered as being constructively and legally under custody.
Through his lawyers, he expressly submitted to physical and legal control over his person.
Thus in the likewise peculiar circumstance which attended the filing of his bail application with the trail court, for
purposes of the hearing thereof he should be deemed to have voluntarily submitted his person to the custody of the
law and, necessarily, to the jurisdiction of the trial court which thereafter granted bail as prayed for. In fact, an arrest is
made either by actual restraint of the arrestee or merely by his submission to the custody of the person making the
arrest. 19 The latter mode may be exemplified by the so-called “house arrest” or, in case of military offenders, by
being “confined to quarters” or restricted to the military camp area
The general rule is that prior to conviction by the regional trial court of a criminal offense, an accused is entitled to be
released on bail as a matter of right, the present exceptions thereto being the instances where the accused is charged
with a capital offense or an offense punishable by reclusion perpetua or life imprisonment and the evidence of guilt is
strong. Under said general rule, upon proper application for admission to bail, the court having custody of the
accused should, as a matter of course, grant the same after a hearing conducted to specifically determine the
conditions of the bail in accordance with Section 6 (now, Section 2) of Rule 114. On the other hand, as the grant of
bail becomes a matter of judicial discretion on the part of the court under the exceptions to the rule, a hearing,
mandatory in nature and which should be summary or otherwise in the discretion of the court is required with the
participation of both the defense and a duly notified representative of the prosecution, this time to ascertain whether
or not the evidence of guilt is strong for the provisional liberty of the applicant. Of course, the burden of proof is on
the prosecution to show that the evidence meets the required quantum.

SSGT. JOSE M. PACOY v. AFABLE E. CAJIGAL, GR No. 157472, 2007-09-

28
Facts:

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

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.[

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 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
mitigating[14] circumstance which should not elevate the classification of... the crime of
homicide to murder.

Issues:

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.[

Ruling:

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.[... 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.
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.

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:

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

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;

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

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
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

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.

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

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

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.

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.
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

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