CONSTITUTIONAL LAW II NOTES & DOCTRINES 1
SAN BEDA COLLEGE OF LAW - MANILA
CONSTITUTIONAL LAW II NOTES & DOCTRINES
ARTICLE III Bill of Rights
SECTION 21
DOUBLE JEOPARDY
PHILIPPINE SAVINGS BANK vs. BERMOY
Paragraph 1, Section 7, Rule 117 of the 1987 Rules on Criminal
Procedure on double jeopardy
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.
Elements in the first criminal case for double jeopardy to apply
1. The complaint or information or other formal charge was
sufficient in form and substance to sustain a conviction;
2. The court had jurisdiction;
3. The accused had been arraigned and had pleaded; and
4. He was convicted or acquitted or the case was dismissed
without his express consent
Dismissal with the express consent of the accused
On the last element, the rule is that a dismissal with the express consent
or upon motion of the accused does not result in double jeopardy.
However, this rule is subject to two exceptions, namely,
1. if the dismissal is based on insufficiency of evidence or
2. on the denial of the right to speedy trial.
A dismissal upon demurrer to evidence falls under the first
exception. Since such dismissal is based on the merits, it amounts to
an acquittal.
These elements are present in the case at bar
1. Thus, the Information for estafa through falsification of a
public document against respondent spouses was sufficient
in form and substance to sustain a conviction.
2. The trial court had jurisdiction over the case and the
persons of respondent spouses.
3. Respondent spouses were arraigned during which they
entered not guilty pleas.
4. Finally, Criminal Case No. 96-154193 was dismissed for
insufficiency of evidence.
Consequently, the right not to be placed twice in jeopardy of
punishment for the same offense became vested on respondent
spouses.
When right against double jeopardy can be invoked
1. the accused is charged with the same offense in two separate
pending cases, or
2. the accused is prosecuted anew for the same offense after he
had been convicted or acquitted of such offense, or
3. the prosecution appeals from a judgment in the same
case
The last is based on Section 2, Rule 122 of the Rules of Court which
provides that [a]ny party may appeal from a final judgment or
order, except if the accused would be placed thereby in double
jeopardy.
Strict rule against appellate review of judgments of acquittal
humanity of the laws and in a jealous watchfulness over the
rights of the citizen, when brought in unequal contest with
the State x x x x
the State with all its resources and power should not be
allowed to make repeated attempts to convict an
individual for an alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling him to
live in a continuing state of anxiety and insecurity, as well as
enhancing the possibility that even though innocent, he may
be found guilty.
Absolute nature of acquittals
The philosophy underlying this rule establishing the absolute nature of
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acquittals is part of the paramount importance criminal justice
system attaches to the protection of the innocent against wrongful
conviction.
The interest in the finality-of-acquittal rule, confined exclusively to
verdicts of not guilty, is easy to understand: it is a need for repose, a
desire to know the exact extent of ones liability. With this right of
repose, the criminal justice system has built in a protection to insure
that the innocent, even those whose innocence rests upon a jurys
leniency, will not be found guilty in a subsequent proceeding.
PEOPLE vs. OBSANIA
Doctrine of waiver of double jeopardy
Salico Doctrine
The doctrine of waiver of double jeopardy was enunciated and
formally labelled as such for the first time in 1949 in People vs. Salico:
Rejecting the claim of the accused that the appeal placed him in double
jeopardy, this Court held that the dismissal was erroneous because the
evidence on record showed that the crime was committed in the town
of Victorias and the trial judge should have taken judicial notice that
the said municipality was included within the province of Negros
Occidental and therefore the offense charged was committed within
the jurisdiction of the court of first instance of the said province.
... when the case is dismissed with the express consent of the
defendant, the dismissal will not be a bar to another prosecution for
the same offense; because, his action in having the case dismissed
constitutes a waiver of his constitutional right or privilege, for the
reason that he thereby prevents the court from proceeding to the trial
on the merits and rendering a judgment of conviction against him.

Marapao Doctrine
In Marapao, the defendant was indicted for slight physical injuries in
the municipal court of Sibonga, Cebu. After the prosecution had rested
its case, a continuance was had, and when trial was resumed, the court,
upon motion of the defense, ordered the case dismissed for failure of
the prosecution to appear. Subsequently, the accused was charged in
the Court of First Instance of Cebu with the offense of assault upon a
person in authority, based on the same facts alleged in the former
complaint for slight physical injuries.
... it appears that the appellee was neither convicted nor acquitted of
the previous charge against him for slight physical injuries, for that
case was dismissed upon his own request before trial could be finished.
Having himself asked for such dismissal, before a judgment of
conviction or acquittal could have been rendered, the appellee is not
entitled to invoke the defense of double jeopardy...
Gandicela Doctrine reiterating Salico Doctrine
But where a defendant expressly consents to, by moving for, the
dismissal of the case against him, as in the present case, even if the
court or judge states in the order that the dismissal is definite or does
not say that the dismissal is without prejudice on the part of the fiscal
to file another information, the dismissal will not be a bar to a
subsequent prosecution of the defendant for the same offense.
Co Te Hue Doctrine subscribing to Salico Doctrine
In essence, this Court held that where a criminal case is dismissed
provisionally not only with the express consent of the accused but
even upon the urging of his counsel, there can be no double jeopardy
under section 9, Rule 113, if the indictment against him is revived by
the fiscal.
Fajardo Doctrine reiterating Salico Doctrine
Consequently, even under the theory enunciated in some decisions of
this Court that if a valid and sufficient information is erroneously
dismissed upon motion of the defendant he is deemed to have waived
the plea of double jeopardy in connection with an appeal from the order
of dismissal, appellees here are not precluded from making such plea.
To paraphrase, had the dismissal been anchored on the motion to
dismiss, the defendants would not have been entitled to protection
against double jeopardy.
Desalisa Doctrine reaffirming Salico Doctrine
... The ruling in the case of Salico, that the act of the defendant in
moving for the dismissal of the case constitutes a waiver of the right to
avail of the defense of double jeopardy, insofar as it applies to
dismissals which do not amount to acquittal or dismissal of the case
on the merits, cannot be considered to have been abandoned by the
subsequent decisions on the matter.
When appeal by the prosecution would not constitute double
jeopardy
... an appeal of the prosecution from the order of dismissal (of the
criminal complaint) by the trial court will not constitute double
jeopardy if
1. the dismissal is made upon motion, or with the express
consent, of the defendant, and
2. the dismissal is not an acquittal or based upon consideration
of the evidence or of the merits of the case; and
CONSTITUTIONAL LAW II NOTES & DOCTRINES 2
3. the question to be passed upon by the appellate court is
purely legal; so that should the dismissal be found incorrect,
the case would have to be remanded to the court of origin for
further proceedings, to determine the guilt or innocence of
the defendant.
Doctrine of Estoppel in relation to Double Jeopardy
The doctrine of estoppel in relation to the plea of double jeopardy was
first enunciated in Acierto which held that when the trial court
dismisses a case on a disclaimer of jurisdiction, upon the instigation of
the accused, the latter is estopped on appeal from asserting the
jurisdiction of the lower court in support of his plea of second
jeopardy.
Doctrine of Estoppel and Doctrine of Waiver
The doctrine of estoppel is in quintessence the same as the doctrine of
waiver: the thrust of both is that a dismissal, other than on the merits,
sought by the accused in a motion to dismiss, is deemed to be with his
express consent and bars him from subsequently interposing the
defense of double jeopardy on appeal or in a new prosecution for the
same offense.
Acierto Ruling on the Doctrine of Estoppel
Irrespective of the correctness of the views of the Military
authorities, the defendant was estopped from demurring to the
Philippine court's jurisdiction and pleading double jeopardy on the
strength of his trial by the court-martial, A party will not be allowed
to make a mockery of justice by taking inconsistent positions which
if allowed would result in brazen deception. It is trifling with the
courts, contrary to the elementary principles of right dealing and good
faith, for an accused to tell one court that it lacks authority to try him
and, after he has succeeded in his effort, to tell the court to which he
has been turned over that the first has committed error in yielding to
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his plea.
People vs. Amada Reyes Ruling on the Doctrine of Estoppel
it is well established doctrine that for jeopardy to attach, there must be
an information sufficient in form and substance to sustain a conviction.
Lastly, the herein accused having successfully contended that the
information in the former case was insufficient to sustain a
conviction, they cannot turn around now and claim that such
information was after all, sufficient and did place them in danger of
jeopardy of being convicted thereunder. If, as they formerly contended,
no conviction could be had in the previous case, they are in estoppel to
contend now that the information in the second case places them in
jeopardy for the second time. Their case comes within the spirit of the
rule laid down in People vs. Acierto.
People vs. Casiano Ruling identical to Acierto Doctrine
The elementary principles of fair dealing and good faith demand,
accordingly, that she be estopped now from taking the opposite
stand in order to pave the way for a plea of double jeopardy, unless
the rule of estoppel laid down in the Acierto case is revoked.
Rule of Estoppel should be maintained
1. It is basically and fundamentally sound and just.
2. It is in conformity with the principles of legal ethics, which
demand good faith of the higher order in the practice of law.
3. It is well settled that parties to a judicial proceeding may not,
on appeal, adopt a theory inconsistent with that which they
sustained in the lower court.

4. The operation of the principle of estoppel on the question of
jurisdiction seemingly depends whether the lower court
actually had jurisdiction or not.
a. If it had no jurisdiction, but the case was tried and
decided upon the theory that it had jurisdiction, the
parties are not barred on appeal, from assailing such
jurisdiction, for the same "must exist as a matter of law,
and may not be conferred by consent of the parties or
by estoppel" (5 C.J.S. 861-863).
b. However, if the lower court had jurisdiction, and the
case was heard and decided upon a given theory, such,
for instance, as that the court had no jurisdiction, the
party who induced it to adopt such theory will not be
permitted, on appeal, to assume an inconsistent position
that the lower court had jurisdiction. Here, the
principle of estoppel applies. The rule that jurisdiction
is conferred by law, and does not depend upon the will
of the parties, has no bearing thereon.
New Doctrine from People vs. Archilla on Estoppel
Mr. Justice Felix Bautista Angelo, writing for the majority, ruled that
the trial court erred, and proceeded to emphasize that the accused
... cannot now be allowed to invoke the plea of double jeopardy after
inducing the trial court to commit an error which otherwise it would
not have committed.
In other words, appellee can not adopt a posture of double dealing
without running afoul with the doctrine of estoppel. It is well-settled
that the parties to a justiciable proceeding may not, on appeal, adopt
a theory inconsistent with that which they sustained in the lower
court.
Consequently, appellee is now estopped from invoking the plea of
double jeopardy upon the theory that she would still be convicted under
an information which she branded to be insufficient in the lower court.
Act of the counsel is binding to the defendant
The fact that the counsel for the defendant, and not the defendant
himself personally moved for the dismissal of the case against him, had
the same effect as if the defendant had personally moved for such
dismissal, inasmuch as the act of the counsel in the prosecution of the
defendant's cases was the act of the defendant himself , for the only
case in which the defendant cannot be represented by his counsel is in
pleading guilty according to Section 3, Rule 114, of the Rules of Court.
(People vs. Romero rectifying the error in People vs. Villarin)
Based on Speedy Trial
The gravamen of the foregoing decisions was reiterated in People vs.
Robles (L-12761, June 29, 1959) where the trial court, upon motion of
the defendant, dismissed the case on the ground that the failure of the
prosecution to present its evidence despite several postponements
granted at its instance, denied the accused a speedy trial. In rejecting
the appeal of the Government, this Court held:
In the circumstances, we find no alternative than to hold that the
dismissal of Criminal Case No. 11065 is not provisional in character
but one which is tantamount to acquittal that would bar further
prosecution of the accused for the same offense.
CONSTITUTIONAL LAW II NOTES & DOCTRINES 3
Ruling in the case at bar
Considering the factual setting in the case at bar, it is clear that there is
no parallelism between Cloribel and the cases cited therein, on the one
hand, and the instant case, on the other. Here the controverted
dismissal was predicated on the erroneous contention of the
accused that the complaint was defective and such infirmity
affected the jurisdiction of the court a quo, and not on the right of
the accused to a speedy trial and the failure of the Government to
prosecute.
The appealed order of dismissal in this case now under consideration
did not terminate the action on the merits, whereas in Cloribel and in
the other related cases the dismissal amounted to an acquittal because
the failure to prosecute presupposed that the Government did not have
a case against the accused, who, in the first place, is presumed
innocent.
Two conditions in the application of Doctrine of Estoppel and
Waiver
The application of the sister doctrines of waiver and estoppel requires
two sine qua non conditions:
1. the dismissal must be sought or induced by the defendant
personally or through his counsel; and
2. such dismissal must not be on the merits and must not
necessarily amount to an acquittal.
Indubitably, the case at bar falls squarely within the periphery of the
said doctrines which have been preserved unimpaired in the corpus of
our jurisprudence.
PAULIN vs. GIMENEZ
For double jeopardy to attach
JAMES BRYAN SUAREZ DEANG 2017 (09265563619/jbsdeang.jbd@gmail.com)
For double jeopardy to attach, the dismissal of the case must be
without the express consent of the accused. Where the dismissal was
ordered upon motion or with the express assent of the accused, he is
deemed to have waived his protection against double jeopardy. In the
case at bar, the dismissal was granted upon motion of petitioners.
Double jeopardy thus did not attach.
Distinction between acquittal and dismissal
. . . Acquittal is always based on the merits, that is, the defendant is
acquitted because the evidence does not show that defendant's guilt is
beyond reasonable doubt; but dismissal does not decide the case on
the merits or that the defendant is not guilty.
Dismissals terminate the proceedings, either because
a. the court is not a court of competent jurisdiction, or
b. the evidence does not show that the offense was committed
within the territorial jurisdiction of the court, or
c. the complaint or information is not valid or sufficient in form
and substance, etc. . .
MTC decision in the case does not amount to Acquittal
The MTC decision dismissing the case is not an acquittal from the
charge considering that no finding was made as to the guilt or
innocence of the petitioners.

Rule 110 of the 1985 Rules on Criminal Procedure
Under Section 14, Rule 110 of the 1985 Rules on Criminal
Procedure, as amended, it is stated:
Sec. 14. Amendments. . . .
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, Sec. 11 . . .
In Section 11 of the same Rule, it is provided:
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 of any other offense necessarily
included therein, the accused shall not be discharged, if there appears
to be 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. (Id., Sec. 11, Rule 119.)
Case at bar was dismissed because there was no proper charge
In the case at bar, the original case was dismissed without the proper
information having been filed, it appearing that the proper charge
should have been, "disturbance of public performance,"
punishable under Article 153 of the Revised Penal Code instead of
"grave threats," under Article 282 of the same penal code.
Exceptional circumstances when dismissal may be deemed final
Jurisprudence recognizes exceptional instances when the dismissal
may be held to be final, disposing of the case once and for all even if
the dismissal was made on motion of the accused himself, to wit:
1. Where the dismissal is based on a demurrer to evidence filed
by the accused after the prosecution has rested, which has
the effect of a judgment on the merits and operates as an
acquittal.
2. Where the dismissal is made, also on motion of the accused,
because of the denial of his right to a speedy trial which is
in effect a failure to prosecute.
Demurrer of evidence
Demurrer to evidence due to its insufficiency pre-supposes that the
prosecution had already rested its case (Sec. 15, Rule 119, 1985,
Rules on Criminal Procedure). Hence, the motion is premature if
interposed at a time when the prosecution is still in the process of
presenting its evidence, as what happened in this case.
Rule on Summary Procedure
Sec. 14. Procedure of Trial. Upon a plea of not guilty being entered,
the trial shall immediately proceed. The affidavits submitted by the
parties shall constitute the direct testimonies of the witnesses who
executed the same. Witnesses who testified may be subjected to cross-
examination. Should the affiant fail to testify, his affidavit shall not be
considered as competent evidence for the party presenting the
affidavit, but the adverse party may utilize the same for any admissible
purpose.
No witness shall be allowed to testify unless he had previously
submitted an affidavit to the court in accordance with Sections 9 and
10 hereof.
CONSTITUTIONAL LAW II NOTES & DOCTRINES 4
ICASIANO vs. SANDIGANBAYAN
Prosecution in one is not bar to the other proceeding
After a closer look at the records of the case, the Court is of the view
that the distinction between administrative and criminal proceedings
must be upheld, and that a prosecution in one is not a bar to the other.
It is, therefore, correct for the Sandiganbayan to hold that double
jeopardy does not apply in the present controversy because the
Supreme Court case (against the herein petitioner) was administrative
in character while the Sandiganbayan case also against said petitioner
is criminal in nature.
Difference between the handling of the SC and the Sandiganbayan
When the Supreme Court acts on complaints against judges or any of
the personnel under its supervision and control, it acts as personnel
administrator, imposing discipline and not as a court judging
justiciable controversies. Administrative procedure need not strictly
adhere to technical rules. Substantial evidence is sufficient to sustain
conviction.
Criminal proceedings before the Sandiganbayan, on the other hand,
while they may involve the same acts subject of the administrative
case, require proof of guilt beyond reasonable doubt.
Elements of Double Jeopardy does not apply to administrative
proceedings
All these elements do not apply vis-a-vis the administrative case,
which should take care of petitioner's contention that said
administrative case against him before the Supreme Court, which was,
as aforestated, dismissed, entitles him to raise the defense of double
jeopardy in the criminal case in the Sandiganbayan.
Dismissial by the Tanodbayan of the first complaint cannot bar the
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present prosecution
In any case, the dismissal by the Tanodbayan of the first complaint
cannot bar the present prosecution, since double jeopardy does not
apply. As held in Cirilo Cinco, et al. vs. Sandiganbayan and the
People of the Philippines, a preliminary investigation (assuming one
had been conducted in TBP-87- 00924) is not a trial to which double
jeopardy attaches.
LEJANO vs. PEOPLE OF THE PHILIPPINES
Judgment of Acquittal policy
[A]t the heart of this policy is the concern that permitting the sovereign
freely to subject the citizen to a second judgment for the same offense
would arm the government with a potent instrument of oppression.
The provision therefore guarantees that the State shall not be
permitted to make repeated attempts to convict an individual for an
alleged offense, thereby subjecting him to embarrassment, expense,
and ordeal and compelling him to live in a continuing state of anxiety
and insecurity, as well as enhancing the possibility that even though
innocent he may be found guilty.
Societys awareness of the heavy personal strain which a criminal trial
represents for the individual defendant is manifested in the willingness
to limit the government to a single criminal proceeding to vindicate its
very vital interest in the enforcement of criminal laws.

Difference with Galman vs. Sandiganbayan
Complainant Vizconde cites the decision in Galman v. Sandiganbayan
as authority that the Court can set aside the acquittal of the accused in
the present case. But the government proved in Galman that the
prosecution was deprived of due process since the judgment of
acquittal in that case was dictated, coerced and scripted. It was a sham
trial. Here, however, Vizconde does not allege that the Court held a
sham review of the decision of the CA. He has made out no case that
the Court held a phony deliberation in this case such that the seven
Justices who voted to acquit the accused, the four who dissented, and
the four who inhibited themselves did not really go through the
process.
PEOPLE vs. BALISACAN
Plea of Guilt
A plea of guilty is an unconditional admission of guilt with respect to
the offense charged. It forecloses the right to defend oneself from said
charge and leaves the court with no alternative but to impose the
penalty fixed by law under the circumstances.
In this case, the defendant was only allowed to testify in order to
establish mitigating circumstances, for the purposes of fixing the
penalty. Said testimony, therefore, could not be taken as a trial on
the merits, to determine the guilt or innocence of the accused.
The court a quo should have proceeded with the trial
In view of the assertion of self-defense in the testimony of the accused,
the proper course should have been for the court a quo to take
defendant's plea anew and then proceed with the trial of the case, in the
order set forth in Section 3 of Rule 119 of the Rules of Court:
SEC. 3. Order of trial. The plea of not guilty having been entered,
the trial must proceed in the following order:
a. The fiscal, on behalf of the People of the Philippines, must
offer evidence in support of the charges.
b. The defendant or his attorney may offer evidence in support of
the defense.
c. The parties may then respectively offer rebutting evidence
only, unless the court, in furtherance of justice, permit them to
offer new additional evidence bearing upon the main issue in
question.
d. When the introduction of evidence shall have been concluded,
unless the case is submitted to the court without argument, the
fiscal must open the argument, the attorney for the defense
must follow, and the fiscal may conclude the same. The
argument by either attorney may be oral or written, or partly
written, but only the written arguments, or such portions of the
same as may be in writing, shall be preserved in the record of
the case.
In deciding the case upon the merits without the requisite trial, the
court a quo not only erred in procedure but deprived the prosecution
of its day in court and right to be heard.
Existence of a plea is an essential requisite in double jeopardy
It is settled that the existence of a plea is an essential requisite to double
jeopardy.
In the present case, it is true, the accused had first entered a plea of
guilty. Subsequently, however, he testified, in the course of being
allowed to prove mitigating circumstances, that he acted in complete
self-defense.
CONSTITUTIONAL LAW II NOTES & DOCTRINES 5
Said testimony, therefore as the court a quo recognized in its
decision had the effect of vacating his plea of guilty and the court a
quo should have required him to plead a new on the charge, or at least
direct that a new plea of not guilty be entered for him. This was not
done. It follows that in effect there having been no standing plea at
the time the court a quo rendered its judgment of acquittal, there can
be no double jeopardy with respect to the appeal herein.
PEOPLE vs. CITY COURT OF SILAY
Prosecution has finished presenting evidence in this case
It is true that the criminal case of falsification was dismissed on motion
of the accused; however, this was a motion filed after the prosecution
had rested its case, calling for an appreciation of the evidence adduced
and its sufficiency to warrant conviction beyond reasonable doubt,
resulting in a dismissal of the case on the merits, tantamount to an
acquittal of the accused.
Inherent power of the courts to modify does not include acquittal
The inherent powers of a court to modify its order or decision, under
section 5, Rule 124 of the Rules of Court claimed for the respondent
to set aside his order of dismissal, does not extend to an order of
dismissal which amounts to a judgment of acquittal in a criminal
case; and the power of a court to modify a judgment or set it aside
before it has become final or an appeal has been perfected, under
section 7, Rule 116 of the Rules of Court, refers to a judgment of
conviction and does not and cannot include a judgment of acquittal.
In conclusion, we hold that to continue the criminal case against the
petitioner after he had already been acquitted would be putting him
twice in jeopardy of punishment for the same offense. ...
ESMENA vs. POGOY
Legal jeopardy
JAMES BRYAN SUAREZ DEANG 2017 (09265563619/jbsdeang.jbd@gmail.com)
In order that legal jeopardy may exist, there should be
1. a valid complaint or information
2. before a court of competent jurisdiction and
3. the accused has been arraigned and has pleaded to the
complaint or information.
When these three conditions are present, the acquittal or conviction of
the accused or the dismissal or termination of the case without his
express consent constitutes res judicata and is 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 included therein.
Previous acquittal (autrefois acquit), previous conviction (autrefois
convict) or the dismissal or termination of the case without his
consent precludes his subsequent indictment for the same offense as
defined in section 9.
Dismissal placed the accused in jeopardy
The petitioners were insisting on a trial. They relied on their
constitutional right to have a speedy trial. The fiscal was not ready
because his witness was not in court. Respondent judge on his own
volition provisionally dismissed the case. The petitioners did not
expressly manifest their conformity to the provisional dismissal.
Hence, the dismissal placed them in jeopardy.
Even if the petitioners, after invoking their right to a speedy trial,
moved for the dismissal of the case and, therefore, consented to it, the
dismissal would still place them in jeopardy. The use of the word
"provisional" would not change the legal effect of the dismissal.

The case at bar
The dismissal of a criminal case upon motion of the accused because
the prosecution was not prepared for trial since the complainant and
his witnesses did not appear at the trial is a dismissal equivalent to an
acquittal that would bar further prosecution of the defendant for the
same offense.
PEOPLE vs. PINEDA
In order that accused may allege former jeopardy
. . . according to a long line of cases, in order that a defendant may
successfully allege former jeopardy, it is necessary that he had
previously been
1. convicted or
2. acquitted, or
3. in jeopardy of being convicted of the offense charged, that
is, that the former case against him for the same offense has
been dismissed or otherwise terminated without his express
consent, by a court of competent jurisdiction, upon a valid
complaint or information, and after the defendant had
pleaded to the charge.
Mere filing is not appropriate basis
Withal, the mere filing of two informations charging the same offense
is not an appropriate basis for the invocation of double jeopardy since
the first jeopardy has not yet set in by a previous conviction, acquittal
or termination of the case without the consent of the accused.
Accused has not yet been arraigned
Moreover, it appears that private respondent herein had not yet been
arraigned in the previous case for estafa. Thus, there is that other
missing link, so to speak, in the case at bar which was precisely the
same reason utilized by Justice Davide, Jr. in Lamera vs. Court of
Appeals (198 SCRA 186 [1991]) when he brushed aside the claim of
double jeopardy of the accused therein who was arraigned in the
previous case only after the judgment of conviction was promulgated
in the other case.
The ponente cited a plethora of cases in support of the proposition that
arraignment of the accused in the previous case is a condition sine
qua non for double jeopardy to attach and echoed the requisites of
legal jeopardy.
In order for first jeopardy to attach
In short, in order for the first jeopardy to attach, the plea of the accused
to the charge must be coupled with either conviction, acquittal, or
termination of the previous case without his express consent thereafter.
Elements of First Jeopardy
Justice Oscar Herrera, in his book "Remedial Law" enumerates the
elements constitutive of first jeopardy, to wit:
1. Court of competent jurisdiction;
2. Valid complaint or information;
3. Arraignment and
4. Valid plea
5. The defendant was acquitted or convicted or the case was
dismissed or otherwise terminated without the express
consent of the accused.
CONSTITUTIONAL LAW II NOTES & DOCTRINES 6
PEOPLE vs. TAMPAL
Determining the Right of the accused to Speedy Trial
In determining the right of an accused to speedy trial, courts should do
more than a mathematical computation of the number of
postponements of the scheduled hearings of the case. What offends the
right of the accused to speedy trial are unjustified postponements
which prolong trial for an unreasonable length of time. We reiterate
our ruling in Gonzales vs. Sandiganbayan:
. . . The right to a speedy disposition of a case, like the right to speedy
trial, is deemed violated only when the proceeding is attended
by vexatious, capricious or oppressive delays; or when unjustified
postponements of trial are asked for and secured; or when without
cause or justifiable motive, a long period of time is allowed to elapse
without the party having his case tried. Equally applicable is the
balancing test used to determine whether a defendant has been denied
his right to a speedy trial, or a speedy disposition of a case for that
matter in which the conduct of both the prosecution and the defense
are weighed, and such factors as length of delay, the defendant's
assertion or non-assertion of his right and prejudice to the defendant
resulting from the delay, are considered.
Requisites of Double Jeopardy
Private respondents cannot also invoke their right against double
jeopardy. The three (3) requisites of double jeopardy are:
1. a first jeopardy must have attached prior to the second,
2. the first jeopardy must have been validly terminated, and
3. a second jeopardy, must be for the same offense as that in
the first.
Legal jeopardy attaches only:
a. upon a valid indictment,
b. before a competent court,
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c. after arraignment
d. when a valid plea has been entered, and
e. when the defendant was acquitted or convicted , or the case
was dismissed or otherwise terminated without the express
consent of the accused.
MELO vs. PEOPLE
Rule of Double Jeopardy
It meant that when a person is charged with an offense and the case is
terminated either by acquittal or conviction or in any other manner
without the consent of the accused, the latter cannot again be charged
with the same or identical offense.
This principle is founded upon the law of reason, justice and
conscience.
Legal Maxim
It is embodied in the maxim of the civil law non bis in idem, in the
common law of England, and undoubtedly in every system of
jurisprudence, and instead of having specific origin it simply always
existed. It found expression in the Spanish Law and in the Constitution
of the United States and is now embodied in our own Constitution as
one of the fundamental rights of the citizen.
Same Offense
The phrase same offense, under the general rule, has always been
construed to mean not only the second offense charged is exactly the
same as the one alleged in the first information, but also that the two
offenses are identical.

Identity between the two offenses; Same-evidence Test
There is identity between the two offenses when the evidence to
support a conviction for one offense would be sufficient to warrant a
conviction for the other.
This so called "same-evidence test" which was found to be vague and
deficient, was restated by the Rules of Court in a clearer and more
accurate form.
Under said Rules there is identity between two offenses not only when
the second offense is exactly the same as the first, but also when the
second offense is an attempt to commit the first or a frustration
thereof, or when it necessary includes or is necessarily included in the
offense charged in the first information.
When offense is said to necessarily include another
In this connection, an offense may be said to necessarily include
another when some of the essential ingredients of the former as
alleged in the information constitute the latter. And vice-versa, an
offense may be said to be necessarily included in another when all the
ingredients of the former constitute a part of the elements
constituting the latter (Rule 116, sec. 5.)
In other words, on who has been charged with an offense cannot be
again charged with the same or identical offense though the latter be
lesser or greater than the former.
"As the Government cannot be with the highest, and then go down step
to step, bringing the man into jeopardy for every dereliction included
therein, neither can it begin with the lowest and ascend to the highest
with precisely the same result."
When Rule of Identity does not apply
This rule of identity does not apply, however when the second offense
was not in existence at the time of the first prosecution, for the simple
reason that in such case there is no possibility for the accused, during
the first prosecution, to be convicted for an offense that was then
inexistent.
Thus, where the accused was charged with physical injuries and after
conviction the injured person dies, the charge for homicide against the
same accused does not put him twice in jeopardy.
PEOPLE vs. ADIL
When accused cannot be said in second jeopardy
Stated differently, if after the first. prosecution 'a new fact supervenes
on which defendant may be held liable, resulting in altering the
character of the crime and giving rise to a new and distinct offense,
'the accused cannot be said to be in second jeopardy if indicted for the
new offense.
PEOPLE vs. RELOVA
General Rule and Exception
The basic difficulty with the petitioner's position is that it must be
examined, not under the terms of the first sentence of Article IV (22)
of the 1973 Constitution, but rather under the second sentence of the
same section.
The first sentence of Article IV (22) sets forth the general rule: the
constitutional protection against double jeopardy is not available
where the second prosecution is for an offense that is different from
the offense charged in the first or prior prosecution, although both the
first and second offenses may be based upon the same act or set of acts.
CONSTITUTIONAL LAW II NOTES & DOCTRINES 7
The second sentence of Article IV (22) embodies an exception to the
general proposition: the constitutional protection, against double
jeopardy is available although the prior offense charged under an
ordinance be different from the offense charged subsequently under a
national statute such as the Revised Penal Code, provided that both
offenses spring from the same act or set of acts. This was made clear
sometime ago in Yap vs. Lutero.
Thus, the first sentence prohibits double jeopardy of punishment for
the same offense, whereas the second contemplates double jeopardy
of punishment for the same act.
Under the first sentence, one may be twice put in jeopardy of
punishment of the same act provided that he is charged with different
offenses, or the offense charged in one case is not included in or does
not include, the crime charged in the other case.
The second sentence applies, even if the offenses charged are not the
same, owing to the fact that one constitutes a violation of an ordinance
and the other a violation of a statute. If the two charges are based on
one and the same act conviction or acquittal under either the law or
the ordinance shall bar a prosecution under the other.
Identity of Offense and Identity of Acts
Put a little differently, where the offenses charged are penalized either
by different sections of the same statute or by different statutes, the
important inquiry relates to the identity of offenses charge: the
constitutional protection against double jeopardy is available only
where an Identity is shown to exist between the earlier and the
subsequent offenses charged.
In contrast, where one offense is charged under a municipal ordinance
while the other is penalized by a statute, the critical inquiry is to
JAMES BRYAN SUAREZ DEANG 2017 (09265563619/jbsdeang.jbd@gmail.com)
the identity of the acts which the accused is said to have committed
and which are alleged to have given rise to the two offenses: the
constitutional protection against double jeopardy is available so long
as the acts which constitute or have given rise to the first offense under
a municipal ordinance are the same acts which constitute or have given
rise to the offense charged under a statute.
Question of identity or lack of identity
The question of Identity or lack of Identity of offenses is addressed by
examining the essential elements of each of the two offenses charged,
as such elements are set out in the respective legislative definitions of
the offenses involved.
The question of Identity of the acts which are claimed to have
generated liability both under a municipal ordinance and a national
statute must be addressed, in the first instance, by examining the
location of such acts in time and space.
When the acts of the accused as set out in the two informations are so
related to each other in time and space as to be reasonably regarded
as having taken place on the same occasion and where those acts have
been moved by one and the same, or a continuing, intent or voluntary
design or negligence, such acts may be appropriately characterized as
an integral whole capable of giving rise to penal liability
simultaneously under different legal enactments (a municipal
ordinance and a national statute).
 CONSTITUTIONAL LAW II NOTES & DOCTRINES 8

not with absolute literalness

It is perhaps important to note that the rule limiting the constitutional
protection against double jeopardy to a subsequent prosecution for the
same offense is not to be understood with absolute literalness.

The Identity of offenses that must be shown need not be absolute

Identity: the first and second offenses may be regarded as the "same
offense" where the second offense necessarily includes the first
offense or is necessarily included in such first offense or where the
second offense is an attempt to commit the first or a frustration thereof.

Thus, for the constitutional plea of double jeopardy to be available,

not all the technical elements constituting the first offense need be
present in the technical definition of the second offense. The law here
seeks to prevent harrassment of an accused person by multiple
prosecutions for offenses which though different from one another are
nonetheless each constituted by a common set or overlapping sets of
technical elements.

Accused should be protected from several prosecutions arising from

one act
While the rule against double jeopardy prohibits prosecution for the
same offense, it seems elementary that an accused should be shielded
against being prosecuted for several offenses made out from a single
act. Otherwise, an unlawful act or omission may give use to several
prosecutions depending upon the ability of the prosecuting officer to
imagine or concoct as many offenses as can be justified by said act or
omission, by simply adding or subtracting essential elements. Under
the theory of appellant, the crime of rape may be converted into a crime
of coercion, by merely alleging that by force and intimidation the
accused prevented the offended girl from remaining a virgin. (88 Phil.
at 53; emphases supplied)

JAMES BRYAN SUAREZ DEANG 2017 (09265563619/jbsdeang.jbd@gmail.com)