G.R. No.
L-26376 August 31, 1966 Court of Appeals on July 14, 1966, as involving questions purely of law (Sec.
THE PEOPLE OF THE PHILIPPINES, plaintiff and appellant,
vs.
AURELIO BALISACAN, defendant and appellee.
Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General
I. C. Borromeo and T. M. Dilig for plaintiff and appellant.
Rolando de la Cuesta for defendant and appellee.
BENGZON, J.P., J.:
This is an appeal by the prosecution from a decision of acquittal.
On February 1, 1965, Aurelio Balisacan was charged with homicide in the
Court of First Instance of Ilocos Norte. The information alleged:
That on or about December 3, 1964, in the Municipality of Nueva Era,
province of Ilocos Norte, Philippines, and within the jurisdiction of this
Honorable Court, the herein accused, with intent to kill, did then and there
willfully, unlawfully and feloniously attack, assault and stab one, Leonicio
Bulaoat, inflicting upon the latter wounds that immediately caused his death.
CONTRARY TO LAW.
To this charge the accused, upon being arraigned, entered a plea of guilty. In
doing so, he was assisted by counsel. At his de oficio counsel's petition,
however, he was allowed to present evidence to prove mitigating
circumstances. Thereupon the accused testified to the effect that he stabbed
the deceased in self-defense because the latter was strangling him. And he
further stated that after the incident he surrendered himself voluntarily to the
police authorities.
Subsequently, on March 6, 1965, on the basis of the above-mentioned
testimony of the accused, the court a quo rendered a decision acquitting the
accused. As stated, the prosecution appealed therefrom.
This appeal was first taken to the Court of Appeals. Appellant filed its brief
on September 9, 1965. No appellee's brief was filed. After being submitted
for decision without appellee's brief, the appeal was certified to Us by the
17, Republic Act 296). And on August 5, 1966, We ordered it docketed
herein.1äwphï1.ñët
The sole assignment of error is:
THE TRIAL COURT ERRED IN ACQUITTING THE ACCUSED OF THE
OFFENSE CHARGED DESPITE THE LATTER'S PLEA OF GUILTY
WHEN ARRAIGNED.
Appellant's contention is meritorious. 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. (People v.
Ng Pek, 81 Phil. 563). 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.
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
1
conclude the same. The argument by either attorney may be oral or written, It should be noted that in rendering the judgment of acquittal, the trial judge
or partly written, but only the written arguments, or such portions of the same below already gave credence to the testimony of the accused. In fairness to
as may be in writing, shall be preserved in the record of the case. the prosecution, without in any way doubting the integrity of said trial judge,
We deem it proper to remand this case to the court a quo for further
In deciding the case upon the merits without the requisite trial, the court a quo proceedings under another judge of the same court, in one of the two other
not only erred in procedure but deprived the prosecution of its day in court branches of the Court of First Instance of Ilocos Norte sitting at Laoag.
and right to be heard.
Wherefore, the judgment appealed from is hereby set aside and this case is
This Court now turns to Section 2, Rule 122 of the Rules of Court, which remanded to the court a quo for further proceedings under another judge of
provides that: "The People of the Philippines can not appeal if the defendant said court, that is, for plea by the defendant, trial with presentation of
would be placed thereby in double jeopardy." The present state of evidence for the prosecution and the defense, and judgment thereafter, No
jurisprudence in this regard is that the above provision applies even if the costs. So ordered.
accused fails to file a brief and raise the question of double jeopardy (People
v. Ferrer, L-9072, October 23, 1956; People v. Bao, L-12102, September 29, Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Zaldivar, Sanchez and
1959; People v. De Golez, L-14160, June 30, 1960). Castro, JJ., concur.
Regala and Makalintal, JJ., took no part.
The next issue, therefore, is whether this appeal placed the accused in double
jeopardy. It is settled that the existence of a plea is an essential requisite to
double jeopardy (People v. Ylagan, 58 Phil. 851; People v. Quimsing, L-
19860, December 23, 1964). 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. 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.1

Furthermore, as afore-stated, the court a quo decided the case upon the merits
without giving the prosecution any opportunity to present its evidence or even
to rebut the testimony of the defendant. In doing so, it clearly acted without
due process of law. And for lack of this fundamental prerequisite, its action
is perforce null and void. The acquittal, therefore, being a nullity for want of
due process, is no acquittal at all, and thus can not constitute a proper basis
for a claim of former jeopardy (People v. Cabero, 61 Phil. 121; 21 Am. Jur.
2d. 235; McCleary v. Hudspeth 124 Fed. 2d. 445).

2
G.R. No. 44205 February 16, 1993
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. GREGORIO G. PINEDA, Branch XXI, Court of First Instance of
Rizal, and CONSOLACION NAVAL, respondents.
The Solicitor General for petitioner.
Salonga. Ordoñez, Yap & Associates for private respondent.
MELO, J.:
When Consolacion Naval, the herein private respondent, was separately
accused of having committed the crime of estafa in Criminal Case No. 15795
before Branch 19, and of falsification in Criminal Case No. 15796 before
Branch 21, both of the then Court of First Instance of Rizal of the Seventh
Judicial District stationed at Pasig, Rizal, she sought the quashal of the latter
charge on the supposition that she is in danger of being convicted for the same
felony (p. 16, Record). Her first attempt in this respect did not spell success
(p. 34, Record) but the Honorable Gregorio G. Pineda, Presiding Judge of
Branch 21 was persuaded to the contrary thereafter on the belief that the
alleged falsification was a necessary means of committing estafa (p. 149,
Record). It is this perception, along with the denial of the motion for re-
evaluation therefrom (p. 66, Record) which the People impugns via the
special civil action for certiorari now before Us.
The indictment for estafa against Consolacion Naval and her co-accused
Anacleto Santos, reads:
That on or about March 23, 1973 and soon thereafter, in the municipality of
Pasig, province of Rizal, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping and aiding one another, by means of deceit and
with intent to defraud, knowing that their parcel of land among others,
situated in Malaking Bundok, Barrio Dolores, Taytay, Rizal, and more
particularly described as follows, to wit:
OJA No. 5851
Isang lagay na lupa (bulubundukin) na nasa lugar ng Malaking Bundok, Bo.
Dolores, Taytay, Rizal, na may lawak na 14,615.5 metrong parisukat na may
tasang P580.00 at may hanggahang gaya ng sumusunod: Hilagaan-
Hermogenes Naval (now part of Rev. Tax Dec. 9284; Silanganan-Nicolas del
Rosario (now Jaime del Rosario); Timugan-Eduvigis, Consolacion,
Apolinaria, Naval; Kanluran-Creek (sapang bato)
was already sold and encumbered to one Edilberto V. Ilano as can be gleaned
from a document entitled "Kasulatan ng Bilihan Ng Lupa Na May Pasubali
O Condicion" sometime on August 12, 1969; and the latter having paid the
partial amount of P130,850.00 to the herein accused and without informing
said Edilberto V. Ilano, the herein accused Consolacion Naval executed and
filed an Application for Registration over the same parcel of land among
others, which document is designated as LRC Case No. N-7485,
"Consolacion, Eduvigis and Apolinaria, all surnamed Naval" of the Court of
First Instance of Rizal, Pasig, Rizal, as a result of which the Presiding Judge
of Branch XIII to which said case was assigned issued Original Certificate of
Title No. 9332 in her name, which area was reduced to 10,075 sq. meters as
appearing in item No. 2 in said OCT and subsequently referred to in TCT No.
370870 in favor of said accused Naval through Rodolfo Mendoza, sold more
than one-half (1/2) of said parcel of land in her name in favor of Maria,
Anacleto, Carmelo, Mariano, Cecilia and Teodorica, all surnamed Santos and
Iluminada Tambalo, Pacita Alvarez and Pedro Valesteros which sales were
registered and annotated with the Register of Deeds of Rizal at Pasig, Rizal;
and likewise a portion of which was partitioned to herein accused Anacleto
Santos; that despite repeated demands the accused refused and still refuse to
return said amount and/or fulfill their obligations under said "Kasulatan Ng
Bilihan Ng Lupa Na May Pasubali O Condicion", to the damage and
prejudice of said Edilberto V. Ilano in the aforementioned amount of
P130,850.00. (pp. 44-45, Rollo)
while the charge for falsification narrates:
That on or about the 17th day August, 1971, in the municipality of Pasig,
province of Rizal, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, being then private individual did then and
there wilfully, unlawfully and feloniously falsify a public document by
making untruthful statements in a narration of facts, committed as follows:
the said accused on August 17, 1971, executed a document entitled
3
"Application For Registration" for parcels of land located at Taytay, Rizal, to
the effect that "She is the exclusive owner in fee simple of a parcel of land
situated in Malaking Bundok, Barrio Dolores, Taytay, Rizal with Psu-248206
and that she "does not know any mortgage or encumbrance of any kind
whatsoever affecting said land or that any person has estate or interest therein,
legal or equitable, in possession remainder, reversion or expectancy", as a
result of which the Court in its Decision of March 22, 1972 declared the
herein accused the true and absolute owner of said parcel of land free from
all liens and encumbrances of any nature, when in truth and in fact the herein
accused has already sold and encumbered to one Edilberto V. Ilano said
parcel of land referred to above as can be gleaned from a document entitled
"Kasulatan Ng Bilihan Ng Lupa Na May Pasubali O Condicion" dated
August 12, 1969 and said Edilberto V. Ilano has already paid partial amount
of P130,850.00 to the herein accused.
Contrary to law. (p. 2, Rollo)
The confluence of the foregoing assertions disclose that Consolacion Naval
sold the subject realty on August 12, 1969 to Edilberto Ilano who made a
partial payment of P130,850.00. About two years later, or on August 17,
1971, an application for registration under the Land Registration Act was
submitted by Consolacion wherein she stated that she owned the same lot and
that it was unencumbered. For those reasons, the corresponding title was
issued in her name but she allegedly disposed of the half portion of the
property to nine other persons.
These antecedents spawned the simultaneous institution of the charges on
September 17, 1975.
On October 28, 1975, private respondent Consolacion Naval moved to quash
the information for falsification, premised, among other things, on the
apprehension that she is in danger of being condemned for an identical
offense. The following day, Naval pleaded not guilty to the charge levelled
against her for falsification (p. 22, Record) and on December 22, 1975, the
court a quo denied her motion to quash (p. 34, Record).
As earlier intimated, the magistrate below thereafter reconsidered his order
of denial which gave rise to the corresponding unsuccessful bid by the People
for reinstatement of the information for falsification.
Hence the instant petition, which practically reiterates the same
disqualification put forward in the proceedings below (p. 7, Petition; p. 47,
Rollo).
The issue of whether the court below correctly quashed the information for
falsification must be answered in the negative for the following reasons:
1. Assuming in gratia argumenti that falsification was indeed
necessary to commit estafa, which ordinarily constitutes a complex crime
under Article 48 of the Revised Penal Code and thus susceptible to challenge
via a motion to quash under Section 2 (e), Rule 117 vis-a-vis Section 12, Rule
110 (Moran, Rules of Court, Vol. 4, 1980 Ed., p. 42; 230), still, it was serious
error on the part of the magistrate below to have appreciated this discourse in
favor of private respondent since this matter was not specifically raised in the
motion to quash filed on October 28, 1975 (p. 16, Record). It was only in the
motion for reconsideration where private respondent pleaded this additional
ground after her motion to quash was denied (p. 39, Record). The legal
proscription against entertaining another saving clause to abate the charge for
falsification is very explicit under Section 3, Rule 117 of the Revised Rules
of Court:
Sec. 3. Motion to quash — Form and contents — Failure to state objection
— Entry of record — Failure to record. — The motion to quash shall be in
writing signed by the defendant or his attorney. It shall specify distinctly the
ground of objection relied on and the court shall hear no objection other than
that stated in the motion. It shall be entered of record but a failure to so enter
it shall not affect the validity of any proceeding in the case.
It must be observed that the denial of the motion to quash was re-examined
not in the light of "res judicata dressed in prison grey" but on the aspect of
whether falsification was supposedly perpetrated to commit estafa. The
course of action pursued by the trial court in this context may not even be
justified under Section 10 of Rule 117 which says that:
Sec. 10. Failure to move to quash — Effect of — Exceptions. — If the
defendant does not move to quash the complaint or information before he
pleads thereto he shall be taken to have waived all objections which are
grounds for a motion to quash except when the complaint or information does
not charge an offense, or the court is without jurisdiction of the same. If,
however, the defendant learns after he has pleaded or has moved to guash on
4
some other ground that the offense for which he is now charged is an offense
for which he has been pardoned, or of which he has been convicted or
acquitted or been in jeopardy, the court may in its discretion entertain at any
time before judgment a motion to quash on the ground of such pardon,
conviction, acquittal or jeopardy.
for the simple reason that the theory of a single crime advanced by private
respondent in her belated, nay, "second" motion to quash couched as motion
for reconsideration is not synonymous with "pardon, conviction, acquittal or
jeopardy". In effect, therefore, respondent judge accommodated another basis
for the quashal of the information albeit the same was not so stated in the
motion therefor. This should not have been tolerated because it is anathema
to the foregoing proviso (Moran, supra, at p. 283, citing Suy Sui vs. People,
49 O.G. 967). This caveat is now amplified in Section 8 of Rule 117 as
amended, thus:
Sec. 8. Failure to move to quash or to allege any ground therefor. — The
failure of the accused to assert any ground of a motion to quash before he
pleads to the complaint or information, either because he did not file a motion
to quash or failed to allege the same in said motion shall be deemed a waiver
of the grounds of a motion to quash, except the grounds of no offense charged,
lack of jurisdiction over the offense charged, extinction of the offense or
penalty and jeopardy, as provided for in paragraphs (a), (b), (f) and (h) of
Section 3 of this Rule.
At any rate, it is virtually unacceptable to suppose that private respondent
concocted the sinister scheme of falsification in 1971 precisely to facilitate
the commission of estafa in 1973 such that both crimes emanated from a
single criminal impulse. Otherwise, an unfounded verisimilitude of this
nature will run afoul with what this Court already observed in People vs.
Penas (68 Phil. 533 [1939]; 1 Aquino, Revised Penal Code, 1976 Ed., p. 574)
to the effect that the eleven estafas through falsification which the same
accused therein committed between November 24, 1936 and January 3, 1937
including the falsification which he committed on January 8, 1937 were
considered distinct offenses, not one complex crime, because they were
committed on different dates, not to mention the discrepancy in places where
they were accomplished.
In the same breath, it necessarily follows that the suspended hiatus, between
1971 and 1973 in the case at bar will not afford the occasion to buttress the
unwarranted submission that the first is an integral part of or intimately
interwoven with the second felony. A simple perusal of the two informations
will disclose, and this cannot be gainsaid, that the recitals thereof radically
differ with each other. The indictment for falsification allegedly perpetrated
in 1971 was levelled against private respondent because of the pretense in the
application for registration of her exclusive dominion over a parcel of land
notwithstanding the previous sale of the same lot in 1969 to Edilberto V.
Ilano. By contrast, the inculpatory aspersions against private respondent in
1973 for estafa have their roots in the overt act of disposing the same piece
of lot in favor of other persons subsequent to the conveyance in favor of
Edilberto V. Ilano in 1969. Indeed, the intent to prevaricate on a piece of
document for the purpose of securing a favorable action for registration
within the context of Article 171 (4) in conjunction with Article 172 of the
Revised Penal Code is definitely distinct from the perceived double sale
contemplated by the first paragraph under Article 316 of the same code.
2. It was similarly fallacious for the lower court to have shared the notion that
private respondent is in danger of being convicted twice for the same criminal
act, a circumstance recognized under Section 2(h) Rule 117 of the Old Rules
as suggested in the motion to quash, because this plea is understood to
presuppose that the other case against private respondent has been dismissed
or otherwise terminated without her express consent, by a court of competent
jurisdiction, upon a valid complaint or information, and after the defendant
had pleaded to the charge (People of the Philippines versus Hon. Maximiano
C. Asuncion, et al., G.R. Nos. 83837-42, April 22, 1992; Section 7, Rule 117,
1985 Rules on Criminal Procedure, as amended). In the Asuncion case,
Justice Nocon said that:
. . . 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.
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
5
of the case without the consent of the accused (People vs. Miraflores, 115
SCRA 586 [1982]; Nierras vs. Dacuycuy, 181 SCRA 8 [1990]).
In People vs. Miraflores (supra), the accused therein, after he had pleaded to
the charge of multiple frustrated murder in Criminal Case No. 88173 and
subsequent to his arraignment on a separate charge of Murder in Criminal
Case No. 88174, invoked the plea of double jeopardy but Justice Barredo who
spoke for the Court was far from convinced:
But the more untenable aspect of the position of appellant is that when he
invoked the defense of double jeopardy, what could have been the first
jeopardy had not yet been completed or even began. It is settled jurisprudence
in this Court that the mere filing of two informations or complaints charging
the same offense does not yet afford the accused in those cases the occasion
to complain that he is being placed in jeopardy twice for the same offense,
for the simple reason that the primary basis of the defense of double jeopardy
is that the accused has already been convicted or acquitted in the first case or
that the same has been terminated without his consent. (Bulaong vs. People,
L-19344, July 27, 1966, 17 SCRA 746; Silvestre vs. Military Commission
No. 21, No. L-46366, March 8, 1978, Buscayno vs. Military Commissions
Nos. 1, 2, 6 and 25, No. L-58284, Nov. 19, 1981, 109 SCRA 273).
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 (at page 13: People
vs. Ylagan, 58 Phil. 851; People vs. Consulta, 70 SCRA 277; Andres v.
Cacdac, 113 SCRA 216; People vs. Bocar, et al., 132 SCRA 166; Gaspar vs.
Sandiganbayan, 144 SCRA 415) and echoed the requisites of legal jeopardy
as announced in People vs. Bocar thus:
Legal jeopardy attaches only (a) upon a valid indictment, (b) before a
competent court, (c) after arraignment, (d) a valid plea having been entered,
and (e) the case was dismissed or otherwise terminated without the express
consent of the accused. (at p. 193.)
To be sure, Chief Justice Moran said in his treatise on the subject under
consideration that:
Where there is no former conviction, acquittal, dismissal or termination of a
former case for the same offense, no jeopardy attaches. (Comments on the
Rules of Court, by Moran, Vol. 4, 1980 Ed., p. 281)
Of course, We are not unmindful of the erudite remarks of Mr. Justice Florenz
D. Regalado, in his Remedial Law Compendium that:
It would now appear that prior conviction or acquittal in the first case, as long
as the accused had entered his plea therein is no longer required in order that
the accused may move to quash a second prosecution for the same offense on
the ground of double jeopardy. (Volume 2, 1988 Edition, page 323; 339)
xxx xxx xxx
Jeopardy attaches from the entry of his plea at the arraignment (People vs.
City Court of Manila, et al., L-3642, April 27, 1983). (Vide page 327).
The sentiments expressed in this regard by Our distinguished colleague which
rest on the ruling of this Court in People vs. City Court of Manila, Branch XI
(121 SCRA 637 [1983], cited by Regalado, Vide, at p. 339 to the effect that
jeopardy would already attach when the accused enters his plea due to the
obiter dictum of the ponente in that case, based on the following factual
backdrop:
The question presented in this case is whether a person who has been
prosecuted for serious physical injuries thru reckless imprudence and
convicted thereof may be prosecuted subsequently for homicide thru reckless
imprudence if the offended party dies as a result of the same injuries he had
suffered.
xxx xxx xxx
In the case at bar, the incident occurred on October 17, 1971. The following
day, October 18, an information for serious physical injuries thru reckless
imprudence was filed against private respondent driver of the truck. On the
same day, the victim Diolito de la Cruz died.
6

On October 20, 1972, private respondent was arraigned on the charge of
serious physical injuries thru reckless imprudence. He pleaded guilty, was
sentenced to one (1) month and one (1) day of arresto mayor, and commenced
serving sentence.
On October 24, 1972, an information for homicide thru reckless imprudence
was filed against private respondent.
On November 17, 1972, the City Court of Manila, upon motion of private
respondent, issued an order dismissing the homicide thru reckless
imprudence case on the ground of double jeopardy.
where it was opined, thus:
Well-settled is the rule that one who has been charged [implying that there is
no need to show previous conviction, acquittal, or dismissal of a similar or
identical charge] with an offense cannot be charged again with the same or
identical offense though the latter be lesser or greater than the former.
(Emphasis supplied.)
From the conclusion thus reached, it would appear that one simply "charged"
may claim possible jeopardy in another case. However, a closer study of the
case adverted to reveals that the ponente may have overlooked the fact that
the accused therein was not only charged, but he actually admitted his guilt
to the charge of serious physical injuries through reckless imprudence and
more importantly, he was convicted of such crime and commenced serving
sentence. Verily, there was no occasion in said case to speak of jeopardy
being properly invoked by a person simply charged with an offense if he is
again charged for the same or identical offense. It may be observed that in
City Court of Manila the accused therein pleaded on the first offense of which
he was charged and subsequently convicted, unlike in the scenario at bar
where private respondent entered her plea to the second offense. But the
variance on this point is of no substantial worth because private respondent's
plea to the second offense is, as aforesaid, legally incomplete to sustain her
assertion of jeopardy for probable conviction of the same felony, absent as
there is the previous conviction, acquittal, or termination without her express
consent of the previous case for estafa, and it being plain and obvious that the
charges did not arise from the same acts. 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. (Tolentino vs. De la Costa, 66 Phil. 97 [1938]).
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 a
4. Valid plea (People vs. Ylagan, 58 Phil. 851; 853)
5. The defendant was acquitted or convicted or the case was dismissed
or otherwise terminated without the express consent of the accused (People
vs. Declaro, G.R. No. 64362, February 9, 1989, 170 SCRA 142; See also
People vs. Santiago, 174 SCRA 143; People vs. Gines, G.R. No. 83463, May
27, 1991, 197 SCRA 481; Que vs. Cosico, 177 SCRA 410 [1989]; Caes vs.
Intermediate Appellate Court, 179 SCRA 54; Lamera vs. Court of Appeals,
198 SCRA 186 [1991]). (Herrera, Remedial Law, 1992 Ed., Volume 4, p.
417).
Citing cases, both old and of recent vintage, Justice Herrera continues to
submit the idea that:
The first jeopardy is said to have validly terminated upon conviction,
acquittal or dismissal of the case or otherwise terminated without the express
consent of defendant (People vs. Garcia, 30 SCRA 150; People vs. Ledesma,
73 SCRA 77; People vs. Pilpa, 79 SCRA 81; Buscayno vs. Military
Commission, 109 SCRA 273; People vs. Cuevo, 104 SCRA 319; Galman, et
al. vs. Sandiganbayan, G.R. No. 72670, September 12, 1987.) (Vide, at page
423).
In People vs. Ledesma (73 SCRA 77 [1976]), Justice Martin declared in no
uncertain terms:
. . . In the case before Us, accused-appellee was charged with estafa in
Criminal Case No. 439 before a competent court under a valid information
and was duly convicted as charged. He was therefore placed in legal jeopardy
for the crime of estafa in Criminal Case No. 439 for having failed to turn over
7
the proceeds of the sale of an Avegon radio in the amount of P230.00 to the
offended party. . . . (at p. 81)
The same observation was made by then Justice, later Chief Justice Aquino
in People vs. Pilpa (79 SCRA 81 [1977]):
In synthesis, there is former jeopardy when in the first case there was a valid
complaint or information filed in a court of competent jurisdiction, and after
the defendant had pleaded to the charge, he was acquitted or convicted or the
case against him was terminated without his express consent (People vs.
Consulta, L-41251, March 31, 1976, 70 SCRA 277; People vs. Ylagan, 58
Phil. 851, 853). (86)
At any rate, and inasmuch as this Court has spoken quite recently in People
vs. Asuncion, (G.R. Nos. 83837-42, April 22, 1992), the ambiguity stirred by
the imprecise observation in People vs. City Court of Manila, a 1983 case,
can now be considered modified in that a prior conviction, or acquittal, or
termination of the case without the express acquiescence of the accused is
still required before the first jeopardy can be pleaded to abate a second
prosecution.
While We are at a loss as to the status of the progress of the estafa case on
account of private respondent's apathy towards Our order for the parties
herein to "MOVE IN THE PREMISES" (p. 125, Rollo) which information
could substantially affect the results of this case, from all indications it
appears that the estafa case has not yet been terminated.
WHEREFORE, the petition is GRANTED and the Orders of respondent
judge dated January 23, 1976 quashing the information for falsification, and
March 23, 1976 denying the People's motion for reconsideration therefrom
are hereby REVERSED and SET ASIDE. Let the information for falsification
be reinstated and this case be remanded to the lower court for further
proceedings and trial. No special pronouncement is made as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Griño-Aquino, Davide, Jr., Romero, Nocon, Bellosillo
and Campos, Jr., JJ., concur.
Quiason, J., took no part.
Gutierrez, Jr., J., on leave.
Separate Opinions
REGALADO, J., concurring and dissenting:
I concur in the result reached in the eloquently articulated and well researched
ponencia of Mr. Justice Melo in that the assailed order of respondent judge
quashing the information for falsification should be reversed and the case be
remanded to the lower court for appropriate proceedings. I regret, however,
that some of the reasons advanced for that conclusion do not square with my
own views as I shall shortly explain.
1. First, on the concessible areas of concurrence. The majority holds
that private respondent Consolacion Naval failed to seasonably raise the
issue, and respondent judge correspondingly erred in declaring, that she was
supposedly being prosecuted for falsification perpetrated to commit estafa.
The specific contention of the accused that she was charged with the complex
crime of estafa through falsification, in connection with her submission on
double jeopardy, was allegedly not raised in a motion to quash but only
subsequently in a motion for reconsideration of the denial of the preceding
motion, hence under the omnibus motion rule expressed in Section 3, Rule
117 of the 1964 Rules of Court that ground was waived and could not be
made the basis for the quashal complained of.
To be more accurate, however, the accused did raise in her basic motion to
quash filed on October 28, 1975 in Criminal Case No. 15796, not with the
desirable explicitness required by the rules on pleadings but acceptable under
a liberal application thereof, the issue of double jeopardy in this wise:
8
3. That accused is in jeopardy of being convicted for a similar offense
that is pending in court.
Attached to this motion is a zerox copy of the information in Criminal Case
No. 15795, CFI, Rizal, which alleges the identical fact of giving alleged false
testimony in the land registration proceedings that is alleged in the
information before this Honorable Court. The defense of jeopardy is
applicable not only to a situation where the accused has in fact been convicted
but also to a situation where he is in danger of being convicted for the same
offense.1
At any rate, I would go a little farther, beyond that mere procedural lapse,
especially since the main decision took recourse to that bar under the Rules
prefaced by the assumption "in gratia argumenti that falsification was indeed
necessary to commit estafa." During the deliberations in this case, I advanced
the view that even under substantive law, specifically the provisions of and
the jurisprudence on Article 48 of the Revised Penal Code, the offenses of
which private respondent stands charged cannot be considered together as
component offenses constitutive of a single complex crime. I am gratified
that in the revised ponencia, the majority now shares my position.
Private respondent was charged on the same day with estafa in Criminal Case
No. 15795 before Branch 19, and with falsification in Criminal Case No.
15796 before Branch 21, both of the then Court of First Instance of Rizal.
From the indictments in these two cases which are reproduced in the decision,
the majority notes that "(t)he confluence of the foregoing assertions disclose
that Consolacion Naval sold the subject realty on August 12, 1969 to
Edilberto Ilano who made a partial payment of P130,850.00. About two years
later, or on August 17, 1971, an application for registration under the Land
Registration Act was submitted by Consolacion wherein she stated that she
owned the same lot and that it was unencumbered. . . ."
The foregoing allegations constitute the basis for the falsification charge for,
as the information therein states, because of her aforesaid representations that
"(s)he is the exclusive owner in fee simple" of the land and that she "does not
know of any mortgage or encumbrance of any kind whatsoever affecting said
land, . . . the Court in its Decision of March 22, 1972 declared the herein
accused the true and absolute owner of said parcel of land free from all liens
and encumbrances of any nature . . ."
On the other hand, the charge for estafa in Criminal Case No. 15795 alleges
that on or about March 23, 1973, private respondent and one Anacleto Santos,
"without informing said Edilberto V. Ilano, . . . executed and filed an
Application for Registration over the same parcel of land among others, as a
result of which the Presiding Judge of Branch XIII to which said case was
assigned issued Original Certificate of Title No. 9332 in her name, . . ." and
"sold more than one-half (1/2) of said parcel of land" to nine (9) other persons
named therein.
In his challenged order 2 rendered on January 23, 1976 quashing the
information in the falsification case (Criminal Case No. 15796), and with
express reference to the "information for estafa . . . previously filed against
the accused, docketed as Criminal Case No. 15795 assigned to Branch XIX
of this Court," respondent judge arrived at the following conclusion:
This Court, therefore, finds the contention of the accused that the crime of
falsification charged in the present case and the estafa case pending in Branch
XIX of this Court constitute the so-called complex crime. The falsification
charge in the case at bar was the means for committing crime of estafa now
pending in Branch XIX. In justice to the accused considering that if this case
should not be dismissed she stands in danger of being convicted twice for the
same criminal act that she
allegedly committed, this court is constrained to grant the motion for
reconsideration. 3
I regret that I cannot follow the logic in the aforesaid disposition. The
falsification charged in Criminal Case No-15796 was allegedly committed on
August 17, 1971 with an application for land registration containing false
statements. No private offended parties, other than Edilberto Ilano, were
contemplated therein since no other sales of the land or portions thereof were
alleged to have been effected. On the other hand, the estafa charged in
Criminal Case No. 15795 was supposedly committed almost two (2) years
later, on March 23, 1973, allegedly by the filing of another application for
registration of parts of the same parcel of land, portions of which were
thereafter sold to nine (9) other persons who would be the potential aggrieved
parties. It is hard to conceive of how a falsification committed in 1971 which,
at that time, had no probable or direct connection with the estafa committed
in 1973, could be considered as the necessary means to commit the latter such
that both could be considered a single complex crime.
9
In this type of complex crime under Article 48 of the Revised Penal Code
known in Spanish law as a delito complejo, there must be a direct connection,
both in point of time and intention, that the first felony committed by the
offender was deliberately adopted by him as a necessary means to commit
the other. That singularity of purpose, or unity of criminal intent, is the basis
for penalizing both offenses with a single penalty, albeit in the maximum
period of that for the graver offense, since this is the so-called case of formal
or ideal plurality of crimes which is generated by a single criminal resolution.
4 would like to make some respectful observations.
Thus, in Regis vs. People, 5 we stressed:
. . . The statement in the appealed decision that there was only one intention
to commit the falsification and the malversation of April 30 and May 2, 1931
is not supported by the facts of the case. They were committed on different
dates sufficiently distant from each other (April 30 and May 2, 1931). It does
not appear that when the malversation and the falsification were committed
on April 30, it was already the intention of the appellant to commit also the
falsification and the malversation of May 2, 1931, the same being necessary
to justify the finding that, although they were committed on different dates, a
single intention determined the commission of both. The acts being
independent from each other and executed by different voluntary actions,
each constitutes an independent offense.
While the foregoing discussion may also apply to plurality of complex crimes
committed on different dates, the rationale is the same. As already
emphasized, there must be an evident nexus between the first and the second
felonies, in that the first was resorted to precisely to ensure the commission
and in anticipation of the second. Here, it defies sober analysis as to how the
falsification in 1971 and the estafa in 1973 could be the component felonies
of a single complex crime.
On both procedural and substantive legal considerations, therefore, I hold that
public respondent erred in quashing the information for falsification on the
theory that, together with the estafa, a complex crime is involved, hence to
charge private respondent in two separate criminal cases using each offense
as the respective subject of each charge would put her in double jeopardy.
Private respondent, under the factual milieu of this case, cannot be in double
jeopardy. She is being charged with two separate and distinct crimes. On top
of that, the thesis of the majority is that she even failed to duly raise the issue
of a complex crime vis-a-vis the rule of double jeopardy in the manner which
public respondent seized upon for the quashal of Criminal Case No. 15796.
We could, therefore, stop here and write finis to the posturings of private
respondent in this recourse, leaving the inquiry into the case on the merits to
the court a quo. The majority, however, discourses on certain aspects of the
doctrine of double jeopardy which, although obiter in light of the foregoing
premises, warrants more than just the proverbial second look and on which I
2. It is the postulation of the majority that "(t)he 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." This would be correct if what had transpired was the mere
filing of the two informations charging identical offenses, but what about the
situation where the accused has already entered a plea to the first charge and
is now confronted with a second charge for the same offense? To this, the
majority ripostes that "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."
In fine, what the majority posits is that the doctrine of double jeopardy can
be invoked only if there was a previous conviction, acquittal, or unconsented
dismissal in the first case against the accused and he is now charged again
with the same offense. Ergo, even if he was already arraigned on the first
charge, or even if he was undergoing trial therein when the same offense is
made the subject of a second charge, he cannot, for lack of a prior conviction,
acquittal or unconsented dismissal in the first charge, move to quash the
second identical indictment on the ground of double jeopardy since putatively
there is still no first jeopardy to speak of.
This will necessitate an inquiry into and require clarification as to stage of or
point in time in the criminal proceedings when an accused is considered as
already in legal jeopardy or in danger of conviction either for the first or
second time. Since our basic rules on double jeopardy are admittedly of
American judicial origin, the rulings in that jurisdiction would be instructive.
We find these annotations in Corpus Juris Secundum:
10
The general rule established by the preponderance of judicial opinion and by
the best considered cases is that, when a person has been placed on trial on a
valid indictment or information before a court of competent jurisdiction, has
been arraigned, and has pleaded, and a jury has been impaneled and sworn,
he is in jeopardy, but that, until these things have been done, jeopardy does
not attach. 6
xxx xxx xxx
If jeopardy is considered to attach when the jury are sworn or when the first
witness is heard, it is not ordinarily necessary that the prior trial shall have
resulted in a valid judgment either of conviction or acquittal: it is sufficient if
the prisoner was actually placed in jeopardy in that he was in danger of having
a valid judgment pronounced as the result of the trial: it is not the verdict or
judgment which places a prisoner in jeopardy.
In those jurisdictions which follow the generally recognized rule, jeopardy
attaches at the time the trial commences, and if the trial is to a jury, the trial
commences when the jury are impaneled and sworn, and thus it is said that
jeopardy attaches when the jury are impaneled and sworn. If the trial is to the
court without a jury, it is well settled that, for the purpose of determining
when the jeopardy attaches, the trial begins at the time of the commencement
of the taking of testimony, that is, when the first witness is duly sworn, and,
accordingly, in such a case, jeopardy begins after accused has been indicted,
arraigned, and has pleaded, and the court has begun to hear the evidence, or
the trial has begun to hear the evidence, or the trial has begun by the reading
of the indictment to the court. In the application of these principles it is
assumed that there has been a plea of not guilty, and that the court has
jurisdiction.7 (Emphasis supplied)
The doctrine above discussed to the effect that the accused is in legal jeopardy
from the moment he enters a valid plea to the indictment is not terra incognita
in our jurisdiction.
As early as 1933, in applying Section 28 of the then Code of Criminal
Procedure which was substantially incorporated in Section 9, Rule 117 of the
1964 Rules of Court (now Section 7, Rule 117 of the 1985 Rules of Criminal
Procedure), this Court, with minor allowances for our procedural differences
with criminal proceedings in American jurisdiction, substantially reiterated
the above-quoted doctrines as a basic proposition of law.
It seems clear that under the foregoing provisions of law, a defendant in a
criminal prosecution is in legal jeopardy when placed on trial under the
following conditions: (1) In a court of competent jurisdiction; (2) upon a valid
complaint or information; (3) after he has been arraigned; and (4) after he has
pleaded to the complaint or information. Tested by this standard, we are of
the opinion that the appellee has been once in jeopardy for the offense for
which she is now prosecuted. . . . All that the law requires is that the accused
has been brought to trial "in a court of competent jurisdiction, upon a valid
complaint or information or other formal charge sufficient in form and
substance to sustain a conviction, after issue properly joined." Under our
system of criminal procedure, issue is properly joined after the accused has
entered a plea of not guilty. The mere calling of a witness would not add to
the danger, annoyance, and vexation suffered by the accused, after going
through the process of being arrested, subjected to preliminary investigation,
arraigned and required to plead and stand trial.8 (Emphasis mine.)
This is reiterated and clarified by a recognized authority who explains that
legal jeopardy exists from the moment the accused has pleaded to the charge,
and that the disposition of his case thereafter is merely the consequence of
the former as to constitute a bar to another prosecution, thus:
. . ., legal jeopardy does not exist and a plea to that effect is not accordingly
available but under the following conditions: (a) upon a valid complaint or
informations: (b) before a court of competent jurisdictions: and (c) after he
has been arraigned and has pleaded to the complaint or information. When
all of these conditions are shown to exist, the subsequent acquittal or
conviction of the accused, or the dismissal or termination of the case without
his express consent constitutes res adjudicata and, therefore, 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. 9
In other words, the concurrence of the three conditions above enumerated
having placed the accused in legal jeopardy, he can invoke the ground in
Section 3(h) of the present Rule 117; and after judgment has been rendered
therein, the ground for quashal is furnished by Section 7 of the same rule
which speaks of previous conviction, acquittal or unconsented dismissal.
Parenthetically, the overriding significance of a plea is underscored when we
recall that after a plea has been entered, there can be no amendment in
11
substance of the information or complaint, but only in form and this by leave
and at the discretion of the court if it can be done without prejudice to the
accused. 10 And, of course, it is fundamental that there can be no valid
judgment without a valid standing plea to the charge. 11
It is regrettable that the role of a plea entered to an indictment appears to have
been denigrated in our decisional rulings on double jeopardy. While in almost
all cases decided by the Court double jeopardy was sustained because of a
previous conviction, acquittal or dismissal of the case without the consent of
the accused, these were so because the facts thereof really made out in each
a case of autrefois aquit or autrefois convict. In addition, with the specific
provision of then Section 9 (now Section 7) of Rule 117 providing for the
requirements, and under the heading of "Former conviction or acquittal or
former jeopardy" (now rephrased as such epigraph reading "Former
conviction or acquittal; double jeopardy."), the impression created was that
the doctrine of double jeopardy can be invoked only if there was prior
conviction, acquittal or dismissal of the case involving the same offense of
which the accused is charged again. The writer respectfully submits
otherwise.
It has long been my position that the issue of double jeopardy arises in three
different ways, that is, when: (a) the accused is charged with the same offense
in two separate pending cases, in one of which he has validly pleaded; (b)
The accused is prosecuted anew for the same offense after he has been
previously convicted or acquitted thereof or the charge therefor had been
dismissed without his consent; or (c) the prosecution makes a legally
unauthorized appeal from a judgment in the same case. The first instance is
contemplated in then Section 2 (now Section 3), paragraph (h), Rule 117; the
second is covered by Section 7 of the same Rule; and the third is governed
by Section 2, Rule 122.
That the first and the third instances are rarely involved in cases or found in
our jurisprudential annals is to the credit of our prosecutorial agencies which,
with respect to the first instance, can seldom be faulted with simultaneously
or successively charging the same person twice with the same offense in
separate cases and, regarding the third instance, of scrupulously avoiding the
proscribed appeals. Evidently, this is not to be construed to mean, however,
that only the second instance, or "former jeopardy," can be the basis of a
motion to quash.
Section 3 of Rule 117 provides the ground for a motion to quash and, just like
the provisions of the 1964 Rules of Court, includes therein as paragraph "(h)
That the accused has been previously convicted or in jeopardy of being
convicted or acquitted of the offense charged." Indisputably, the first part of
this paragraph regarding previous conviction refers to the "former jeopardy"
embraced in the present Section 7 of this Rule.
Now, unless we are prepared to treat the second part therein as faulty drafting
or linguistic surplusage, that second part referring to the accused as "in
jeopardy of being convicted or acquitted of the offense charged" necessarily
presupposes that he has not yet been convicted or acquitted of an offense
identical to that with which he is again indicted. Since double jeopardy
requires, aside from the other requisites, at least two cases involving identity
of offenses but wherein the accused is in legal jeopardy in at least one of
them, this consequently envisages the situation where the accused, who has
already entered a plea to the first charge but wherein no final adjudication has
yet been rendered, is again charged with the same offense. It is, to paraphrase
from the American expression quoted in the main opinion, a proper case of
"litis pendentia in prison grey" and wherein quashal of the second case may
accordingly be sought pursuant to said Rule.
Spelled out to the point of elemental details, said paragraph (h) actually
provides for two modes constitutive of separate grounds for quashal of a
second indictment for the same offense. Recasting its provisions for greater
clarity, the first mode allows quashal where the accused has been previously
convicted or acquitted of the same offense with which he is again presently
charged and in danger of a second conviction. This would correspond, in civil
procedure, to res judicata as a ground for dismissal. The second mode stated
in the same paragraph contemplates the situation where the accused is only
in jeopardy or danger of being convicted in the first case, since no judgment
or final order has yet been rendered therein, and he is now charged anew with
the same offense. This is equivalent, in civil case, to litis pendentia or auter
action pendant, likewise a ground for dismissal.
Now, in criminal procedure, these two variant grounds are provided for in a
single paragraph but definitely not as identical, but alternative and discrete,
grounds although embraced in the same concept of double jeopardy. While
the censorious would prefer a more felicitous term for the second mode,
instead of also referring to it as double jeopardy, this is a matter properly
addressed to the framers of the rule or law thereon. I can very well live with
12
that term since, whether or not the liability of the accused has been adjudged
or still awaiting adjudication in the first prosecution, what is sought to be
avoided is his subjection to another danger or jeopardy or being again
convicted and sentenced for an identical offense.
Judicial proceedings and determinations should never be the victims of the
tyranny of labels. What should control is the legislative intendment and the
purpose to be subserved. If we were to be squeamish about terminology, we
need merely note that improper venue is not a ground for a motion to quash.
Its counterpart in criminal procedure is lack of jurisdiction of the trial court
over the offense charged, under Section 3(b) of Rule 117, since in criminal
cases venue is jurisdictional as the court has no jurisdiction to try an offense
committed outside its territorial jurisdiction. 12 Yet, we still have to hear any
strident objection to the practice equating both terms as virtually synonymous
objections to the validity of a criminal prosecution.
Coming back to my preceding disquisition on double jeopardy, I humbly
submit that a view contrary thereto could be productive of mischievous, if not
preposterous, results. While, as earlier observed, it is a little remote for the
same authority to charge the same accused with two criminal suits involving
the same offense, this is not an absolute improbability, as witness politically-
motivated harassment prosecutions. It is also possible that duplicity of suits
on identical offenses may be brought about by acts of different authorities in
separate local jurisdictions.
Thus, to illustrate, 13 if forcible abduction is committed and commenced in
Manila and the victim is taken to Tarlac and thence to Cagayan, being a
continuing crime the criminal action therefor may be instituted in the proper
court of any province in which the offense is continued. If, by error or design,
three cases involving the same parties and offense are lodged in Manila,
Tarlac and Cagayan, either categorized under the same offense of forcible
abduction or with two of them dissembled as different offenses of arbitrary
detention or grave coercion through the expedient of variations in the
particulars of the indictment, we would have the not improbable scenario of
the same accused enmeshed in three different criminal actions which actually
involve the same offense.
Where, thereafter, the accused upon arraignment pleaded not guilty in
Manila, it would be a judicial travesty that for lack of a final disposition in
said case he cannot be allowed to move to quash the other two pending cases
on the ground of double jeopardy, in the hearing of which motion the identity
of the offenses can be proved and the dismissal of the other two actions could
accordingly be ordered.
Again, since the majority insists that a final judgment in the first case is a sine
qua non for a motion to quash the other two cases, if the accused was
convicted in the first case and said conviction is brought on appeal where it
may remain pending for years, what happens to the other two cases? Shall
they instead be consolidated for trial with the inevitable inconvenience and
expenses necessitated by transfer of venue and production of witnesses from
a different vicinage, not to speak of the awkward and improbable situation of
two of the same cases being each consolidated with itself and with the court
having to resolve all? Shall they be allowed to proceed on independent trial
utilizing the same evidence or shall the proceedings therein be indefinitely
suspended to await the ultimate outcome of the first?
The absurdity of having to be unnecessarily confronted with the aforesaid
options is further underscored by the fact that howsoever the first case is
disposed of, the other two cases would be barred by previous jeopardy under
Section 7 of Rule 117, hence the independent proceedings that may have been
conducted or the suspension thereof in those two cases would be completely
pointless and unnecessary. Permitting the accused to move to quash the said
two cases after he had pleaded to the first would have obviated the impasse
created by requiring a prior final decision and spared him the vexation and
expenses for fees and bail in the other two improvident prosecutions.
..........MISSING LINE..........
This is where Section 3(h) of the same rule could have been overlooked,
misconstrued, or altogether ignored.
One final word. The majority points out that it was obiter for the Court to rule
in People vs. City Court of Manila, Branch XI 14 that the accused therein was
in double jeopardy because he had already been charged for the same offense,
emphasizing that such imprecision of language would give the impression
that one simply charged may claim possible jeopardy in another case. This
writer is aware that the ponente therein committed an innocent oversight
hence in my comment thereon, as quoted in the main decision, it was
explained that this would be so as long as the accused had entered his plea
therein. Aware that such statement in that case could further be, as it is now,
13
blandly dismissed as obiter, I also made the qualification that my comment
was as the doctrine "would now appear" based on the holding in said case.
Yet, as a statement of a rule of procedure, I believe that, properly and
completely expressed, the view of the ponente in that case was in the right
direction on that score. Also, we have held that while an obiter dictum is
generally not binding as authority or precedent within the stare decisis rule,
it may be followed if sufficiently persuasive. 15 I make this observation since
it may also be argued that the present discussion regarding the bases of my
dissent would be orbiter if we hold that in the present case the issue of double
jeopardy is not really involved since the private respondent is not being
charged with a complex crime, the component felonies of which have been
made subject of separate suits, but of two distinct and independent crimes.
Nonetheless, as ultimate arbiters of the law, we cannot and we should not
continue to cleave with obstinate tenacity or persist in citing with rote-like
consistency clearly inapposite or inapplicable doctrines catalogued in works
notable not for logical analysis but by their reliance on the numerical weight
of cases decided on the bases of disparate factual situations, or by reason of
a slavish obsession for footnotes. Perpetuating a misconception spawned by
the inertia of cavalier reliance on supposed precedents is a disservice to the
doctrine of stare decisis.
As earlier stated, therefore, since my present dissent is on an issue which I
believe this court should soonest clarify, on the considerations hereinbefore
expressed. I categorically submit that where an accused has validly pleaded
to the appropriate indictment sufficiently charging him with an offense in a
court of competent jurisdiction, he can seek and obtain the quashal of a
subsequent charge for the same offense on the ground of double jeopardy
even before the final disposition of the first case.
Narvasa, C.J. and Feliciano, J., concur.
# Separate Opinions
REGALADO, J., concurring and dissenting:
I concur in the result reached in the eloquently articulated and well researched
ponencia of Mr. Justice Melo in that the assailed order of respondent judge
quashing the information for falsification should be reversed and the case be
remanded to the lower court for appropriate proceedings. I regret, however,
that some of the reasons advanced for that conclusion do not square with my
own views as I shall shortly explain.
1. First, on the concessible areas of concurrence. The majority holds
that private respondent Consolacion Naval failed to seasonably raise the
issue, and respondent judge correspondingly erred in declaring, that she was
supposedly being prosecuted for falsification perpetrated to commit estafa.
The specific contention of the accused that she was charged with the complex
crime of estafa through falsification, in connection with her submission on
double jeopardy, was allegedly not raised in a motion to quash but only
subsequently in a motion for reconsideration of the denial of the preceding
motion, hence under the omnibus motion rule expressed in Section 3, Rule
117 of the 1964 Rules of Court that ground was waived and could not be
made the basis for the quashal complained of.
To be more accurate, however, the accused did raise in her basic motion to
quash filed on October 28, 1975 in Criminal Case No. 15796, not with the
desirable explicitness required by the rules on pleadings but acceptable under
a liberal application thereof, the issue of double jeopardy in this wise:
3. That accused is in jeopardy of being convicted for a similar offense
that is pending in court.
Attached to this motion is a zerox copy of the information in Criminal Case
No. 15795, CFI, Rizal, which alleges the identical fact of giving alleged false
testimony in the land registration proceedings that is alleged in the
information before this Honorable Court. The defense of jeopardy is
applicable not only to a situation where the accused has in fact been convicted
but also to a situation where he is in danger of being convicted for the same
offense.1
At any rate, I would go a little farther, beyond that mere procedural lapse,
especially since the main decision took recourse to that bar under the Rules
prefaced by the assumption "in gratia argumenti that falsification was indeed
necessary to commit estafa." During the deliberations in this case, I advanced
14
the view that even under substantive law, specifically the provisions of and
the jurisprudence on Article 48 of the Revised Penal Code, the offenses of
which private respondent stands charged cannot be considered together as
component offenses constitutive of a single complex crime. I am gratified
that in the revised ponencia, the majority now shares my position.
Private respondent was charged on the same day with estafa in Criminal Case
No. 15795 before Branch 19, and with falsification in Criminal Case No.
15796 before Branch 21, both of the then Court of First Instance of Rizal.
From the indictments in these two cases which are reproduced in the decision,
the majority notes that "(t)he confluence of the foregoing assertions disclose
that Consolacion Naval sold the subject realty on August 12, 1969 to
Edilberto Ilano who made a partial payment of P130,850.00. About two years
later, or on August 17, 1971, an application for registration under the Land
Registration Act was submitted by Consolacion wherein she stated that she
owned the same lot and that it was unencumbered. . . ."
The foregoing allegations constitute the basis for the falsification charge for,
as the information therein states, because of her aforesaid representations that
"(s)he is the exclusive owner in fee simple" of the land and that she "does not
know of any mortgage or encumbrance of any kind whatsoever affecting said
land, . . . the Court in its Decision of March 22, 1972 declared the herein
accused the true and absolute owner of said parcel of land free from all liens
and encumbrances of any nature . . ."
On the other hand, the charge for estafa in Criminal Case No. 15795 alleges
that on or about March 23, 1973, private respondent and one Anacleto Santos,
"without informing said Edilberto V. Ilano, . . . executed and filed an
Application for Registration over the same parcel of land among others, as a
result of which the Presiding Judge of Branch XIII to which said case was
assigned issued Original Certificate of Title No. 9332 in her name, . . ." and
"sold more than one-half (1/2) of said parcel of land" to nine (9) other persons
named therein.
In his challenged order 2 rendered on January 23, 1976 quashing the
information in the falsification case (Criminal Case No. 15796), and with
express reference to the "information for estafa . . . previously filed against
the accused, docketed as Criminal Case No. 15795 assigned to Branch XIX
of this Court," respondent judge arrived at the following conclusion:
This Court, therefore, finds the contention of the accused that the crime of
falsification charged in the present case and the estafa case pending in Branch
XIX of this Court constitute the so-called complex crime. The falsification
charge in the case at bar was the means for committing crime of estafa now
pending in Branch XIX. In justice to the accused considering that if this case
should not be dismissed she stands in danger of being convicted twice for the
same criminal act that she
allegedly committed, this court is constrained to grant the motion for
reconsideration. 3
I regret that I cannot follow the logic in the aforesaid disposition. The
falsification charged in Criminal Case No-15796 was allegedly committed on
August 17, 1971 with an application for land registration containing false
statements. No private offended parties, other than Edilberto Ilano, were
contemplated therein since no other sales of the land or portions thereof were
alleged to have been effected. On the other hand, the estafa charged in
Criminal Case No. 15795 was supposedly committed almost two (2) years
later, on March 23, 1973, allegedly by the filing of another application for
registration of parts of the same parcel of land, portions of which were
thereafter sold to nine (9) other persons who would be the potential aggrieved
parties. It is hard to conceive of how a falsification committed in 1971 which,
at that time, had no probable or direct connection with the estafa committed
in 1973, could be considered as the necessary means to commit the latter such
that both could be considered a single complex crime.
In this type of complex crime under Article 48 of the Revised Penal Code
known in Spanish law as a delito complejo, there must be a direct connection,
both in point of time and intention, that the first felony committed by the
offender was deliberately adopted by him as a necessary means to commit
the other. That singularity of purpose, or unity of criminal intent, is the basis
for penalizing both offenses with a single penalty, albeit in the maximum
period of that for the graver offense, since this is the so-called case of formal
or ideal plurality of crimes which is generated by a single criminal resolution.
4
Thus, in Regis vs. People, 5 we stressed:
. . . The statement in the appealed decision that there was only one intention
to commit the falsification and the malversation of April 30 and May 2, 1931
is not supported by the facts of the case. They were committed on different
15
dates sufficiently distant from each other (April 30 and May 2, 1931). It does
not appear that when the malversation and the falsification were committed
on April 30, it was already the intention of the appellant to commit also the
falsification and the malversation of May 2, 1931, the same being necessary
to justify the finding that, although they were committed on different dates, a
single intention determined the commission of both. The acts being
independent from each other and executed by different voluntary actions,
each constitutes an independent offense.
While the foregoing discussion may also apply to plurality of complex crimes
committed on different dates, the rationale is the same. As already
emphasized, there must be an evident nexus between the first and the second
felonies, in that the first was resorted to precisely to ensure the commission
and in anticipation of the second. Here, it defies sober analysis as to how the
falsification in 1971 and the estafa in 1973 could be the component felonies
of a single complex crime.
On both procedural and substantive legal considerations, therefore, I hold that
public respondent erred in quashing the information for falsification on the
theory that, together with the estafa, a complex crime is involved, hence to
charge private respondent in two separate criminal cases using each offense
as the respective subject of each charge would put her in double jeopardy.
Private respondent, under the factual milieu of this case, cannot be in double
jeopardy. She is being charged with two separate and distinct crimes. On top
of that, the thesis of the majority is that she even failed to duly raise the issue
of a complex crime vis-a-vis the rule of double jeopardy in the manner which
public respondent seized upon for the quashal of Criminal Case No. 15796.
We could, therefore, stop here and write finis to the posturings of private
respondent in this recourse, leaving the inquiry into the case on the merits to
the court a quo. The majority, however, discourses on certain aspects of the
doctrine of double jeopardy which, although obiter in light of the foregoing
premises, warrants more than just the proverbial second look and on which I
would like to make some respectful observations.
2. It is the postulation of the majority that "(t)he 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." This would be correct if what had transpired was the mere
filing of the two informations charging identical offenses, but what about the
situation where the accused has already entered a plea to the first charge and
is now confronted with a second charge for the same offense? To this, the
majority ripostes that "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."
In fine, what the majority posits is that the doctrine of double jeopardy can
be invoked only if there was a previous conviction, acquittal, or unconsented
dismissal in the first case against the accused and he is now charged again
with the same offense. Ergo, even if he was already arraigned on the first
charge, or even if he was undergoing trial therein when the same offense is
made the subject of a second charge, he cannot, for lack of a prior conviction,
acquittal or unconsented dismissal in the first charge, move to quash the
second identical indictment on the ground of double jeopardy since putatively
there is still no first jeopardy to speak of.
This will necessitate an inquiry into and require clarification as to stage of or
point in time in the criminal proceedings when an accused is considered as
already in legal jeopardy or in danger of conviction either for the first or
second time. Since our basic rules on double jeopardy are admittedly of
American judicial origin, the rulings in that jurisdiction would be instructive.
We find these annotations in Corpus Juris Secundum:
The general rule established by the preponderance of judicial opinion and by
the best considered cases is that, when a person has been placed on trial on a
valid indictment or information before a court of competent jurisdiction, has
been arraigned, and has pleaded, and a jury has been impaneled and sworn,
he is in jeopardy, but that, until these things have been done, jeopardy does
not attach. 6
xxx xxx xxx
If jeopardy is considered to attach when the jury are sworn or when the first
witness is heard, it is not ordinarily necessary that the prior trial shall have
resulted in a valid judgment either of conviction or acquittal: it is sufficient if
the prisoner was actually placed in jeopardy in that he was in danger of having
a valid judgment pronounced as the result of the trial: it is not the verdict or
judgment which places a prisoner in jeopardy.
16
In those jurisdictions which follow the generally recognized rule, jeopardy
attaches at the time the trial commences, and if the trial is to a jury, the trial
commences when the jury are impaneled and sworn, and thus it is said that
jeopardy attaches when the jury are impaneled and sworn. If the trial is to the
court without a jury, it is well settled that, for the purpose of determining
when the jeopardy attaches, the trial begins at the time of the commencement
of the taking of testimony, that is, when the first witness is duly sworn, and,
accordingly, in such a case, jeopardy begins after accused has been indicted,
arraigned, and has pleaded, and the court has begun to hear the evidence, or
the trial has begun to hear the evidence, or the trial has begun by the reading
of the indictment to the court. In the application of these principles it is
assumed that there has been a plea of not guilty, and that the court has
jurisdiction.7 (Emphasis supplied)
The doctrine above discussed to the effect that the accused is in legal jeopardy
from the moment he enters a valid plea to the indictment is not terra incognita
in our jurisdiction.
As early as 1933, in applying Section 28 of the then Code of Criminal
Procedure which was substantially incorporated in Section 9, Rule 117 of the
1964 Rules of Court (now Section 7, Rule 117 of the 1985 Rules of Criminal
Procedure), this Court, with minor allowances for our procedural differences
with criminal proceedings in American jurisdiction, substantially reiterated
the above-quoted doctrines as a basic proposition of law.
It seems clear that under the foregoing provisions of law, a defendant in a
criminal prosecution is in legal jeopardy when placed on trial under the
following conditions: (1) In a court of competent jurisdiction; (2) upon a valid
complaint or information; (3) after he has been arraigned; and (4) after he has
pleaded to the complaint or information. Tested by this standard, we are of
the opinion that the appellee has been once in jeopardy for the offense for
which she is now prosecuted. . . . All that the law requires is that the accused
has been brought to trial "in a court of competent jurisdiction, upon a valid
complaint or information or other formal charge sufficient in form and
substance to sustain a conviction, after issue properly joined." Under our
system of criminal procedure, issue is properly joined after the accused has
entered a plea of not guilty. The mere calling of a witness would not add to
the danger, annoyance, and vexation suffered by the accused, after going
through the process of being arrested, subjected to preliminary investigation,
arraigned and required to plead and stand trial.8 (Emphasis mine.)
This is reiterated and clarified by a recognized authority who explains that
legal jeopardy exists from the moment the accused has pleaded to the charge,
and that the disposition of his case thereafter is merely the consequence of
the former as to constitute a bar to another prosecution, thus:
. . ., legal jeopardy does not exist and a plea to that effect is not accordingly
available but under the following conditions: (a) upon a valid complaint or
informations: (b) before a court of competent jurisdictions: and (c) after he
has been arraigned and has pleaded to the complaint or information. When
all of these conditions are shown to exist, the subsequent acquittal or
conviction of the accused, or the dismissal or termination of the case without
his express consent constitutes res adjudicata and, therefore, 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. 9
In other words, the concurrence of the three conditions above enumerated
having placed the accused in legal jeopardy, he can invoke the ground in
Section 3(h) of the present Rule 117; and after judgment has been rendered
therein, the ground for quashal is furnished by Section 7 of the same rule
which speaks of previous conviction, acquittal or unconsented dismissal.
Parenthetically, the overriding significance of a plea is underscored when we
recall that after a plea has been entered, there can be no amendment in
substance of the information or complaint, but only in form and this by leave
and at the discretion of the court if it can be done without prejudice to the
accused. 10 And, of course, it is fundamental that there can be no valid
judgment without a valid standing plea to the charge. 11
It is regrettable that the role of a plea entered to an indictment appears to have
been denigrated in our decisional rulings on double jeopardy. While in almost
all cases decided by the Court double jeopardy was sustained because of a
previous conviction, acquittal or dismissal of the case without the consent of
the accused, these were so because the facts thereof really made out in each
a case of autrefois aquit or autrefois convict. In addition, with the specific
provision of then Section 9 (now Section 7) of Rule 117 providing for the
requirements, and under the heading of "Former conviction or acquittal or
former jeopardy" (now rephrased as such epigraph reading "Former
conviction or acquittal; double jeopardy."), the impression created was that
the doctrine of double jeopardy can be invoked only if there was prior
17
conviction, acquittal or dismissal of the case involving the same offense of
which the accused is charged again. The writer respectfully submits
otherwise.
It has long been my position that the issue of double jeopardy arises in three
different ways, that is, when: (a) the accused is charged with the same offense
in two separate pending cases, in one of which he has validly pleaded; (b)
The accused is prosecuted anew for the same offense after he has been
previously convicted or acquitted thereof or the charge therefor had been
dismissed without his consent; or (c) the prosecution makes a legally
unauthorized appeal from a judgment in the same case. The first instance is
contemplated in then Section 2 (now Section 3), paragraph (h), Rule 117; the
second is covered by Section 7 of the same Rule; and the third is governed
by Section 2, Rule 122.
That the first and the third instances are rarely involved in cases or found in
our jurisprudential annals is to the credit of our prosecutorial agencies which,
with respect to the first instance, can seldom be faulted with simultaneously
or successively charging the same person twice with the same offense in
separate cases and, regarding the third instance, of scrupulously avoiding the
proscribed appeals. Evidently, this is not to be construed to mean, however,
that only the second instance, or "former jeopardy," can be the basis of a
motion to quash.
Section 3 of Rule 117 provides the ground for a motion to quash and, just like
the provisions of the 1964 Rules of Court, includes therein as paragraph "(h)
That the accused has been previously convicted or in jeopardy of being
convicted or acquitted of the offense charged." Indisputably, the first part of
this paragraph regarding previous conviction refers to the "former jeopardy"
embraced in the present Section 7 of this Rule.
Now, unless we are prepared to treat the second part therein as faulty drafting
or linguistic surplusage, that second part referring to the accused as "in
jeopardy of being convicted or acquitted of the offense charged" necessarily
presupposes that he has not yet been convicted or acquitted of an offense
identical to that with which he is again indicted. Since double jeopardy
requires, aside from the other requisites, at least two cases involving identity
of offenses but wherein the accused is in legal jeopardy in at least one of
them, this consequently envisages the situation where the accused, who has
already entered a plea to the first charge but wherein no final adjudication has
yet been rendered, is again charged with the same offense. It is, to paraphrase
from the American expression quoted in the main opinion, a proper case of
"litis pendentia in prison grey" and wherein quashal of the second case may
accordingly be sought pursuant to said Rule.
Spelled out to the point of elemental details, said paragraph (h) actually
provides for two modes constitutive of separate grounds for quashal of a
second indictment for the same offense. Recasting its provisions for greater
clarity, the first mode allows quashal where the accused has been previously
convicted or acquitted of the same offense with which he is again presently
charged and in danger of a second conviction. This would correspond, in civil
procedure, to res judicata as a ground for dismissal. The second mode stated
in the same paragraph contemplates the situation where the accused is only
in jeopardy or danger of being convicted in the first case, since no judgment
or final order has yet been rendered therein, and he is now charged anew with
the same offense. This is equivalent, in civil case, to litis pendentia or auter
action pendant, likewise a ground for dismissal.
Now, in criminal procedure, these two variant grounds are provided for in a
single paragraph but definitely not as identical, but alternative and discrete,
grounds although embraced in the same concept of double jeopardy. While
the censorious would prefer a more felicitous term for the second mode,
instead of also referring to it as double jeopardy, this is a matter properly
addressed to the framers of the rule or law thereon. I can very well live with
that term since, whether or not the liability of the accused has been adjudged
or still awaiting adjudication in the first prosecution, what is sought to be
avoided is his subjection to another danger or jeopardy or being again
convicted and sentenced for an identical offense.
Judicial proceedings and determinations should never be the victims of the
tyranny of labels. What should control is the legislative intendment and the
purpose to be subserved. If we were to be squeamish about terminology, we
need merely note that improper venue is not a ground for a motion to quash.
Its counterpart in criminal procedure is lack of jurisdiction of the trial court
over the offense charged, under Section 3(b) of Rule 117, since in criminal
cases venue is jurisdictional as the court has no jurisdiction to try an offense
committed outside its territorial jurisdiction. 12 Yet, we still have to hear any
strident objection to the practice equating both terms as virtually synonymous
objections to the validity of a criminal prosecution.
18
Coming back to my preceding disquisition on double jeopardy, I humbly
submit that a view contrary thereto could be productive of mischievous, if not
preposterous, results. While, as earlier observed, it is a little remote for the
same authority to charge the same accused with two criminal suits involving
the same offense, this is not an absolute improbability, as witness politically-
motivated harassment prosecutions. It is also possible that duplicity of suits
on identical offenses may be brought about by acts of different authorities in
separate local jurisdictions.
Thus, to illustrate, 13 if forcible abduction is committed and commenced in
Manila and the victim is taken to Tarlac and thence to Cagayan, being a
continuing crime the criminal action therefor may be instituted in the proper
court of any province in which the offense is continued. If, by error or design,
three cases involving the same parties and offense are lodged in Manila,
Tarlac and Cagayan, either categorized under the same offense of forcible
abduction or with two of them dissembled as different offenses of arbitrary
detention or grave coercion through the expedient of variations in the
particulars of the indictment, we would have the not improbable scenario of
the same accused enmeshed in three different criminal actions which actually
involve the same offense.
Where, thereafter, the accused upon arraignment pleaded not guilty in
Manila, it would be a judicial travesty that for lack of a final disposition in
said case he cannot be allowed to move to quash the other two pending cases
on the ground of double jeopardy, in the hearing of which motion the identity
of the offenses can be proved and the dismissal of the other two actions could
accordingly be ordered.
Again, since the majority insists that a final judgment in the first case is a sine
qua non for a motion to quash the other two cases, if the accused was
convicted in the first case and said conviction is brought on appeal where it
may remain pending for years, what happens to the other two cases? Shall
they instead be consolidated for trial with the inevitable inconvenience and
expenses necessitated by transfer of venue and production of witnesses from
a different vicinage, not to speak of the awkward and improbable situation of
two of the same cases being each consolidated with itself and with the court
having to resolve all? Shall they be allowed to proceed on independent trial
utilizing the same evidence or shall the proceedings therein be indefinitely
suspended to await the ultimate outcome of the first?
The absurdity of having to be unnecessarily confronted with the aforesaid
options is further underscored by the fact that howsoever the first case is
disposed of, the other two cases would be barred by previous jeopardy under
Section 7 of Rule 117, hence the independent proceedings that may have been
conducted or the suspension thereof in those two cases would be completely
pointless and unnecessary. Permitting the accused to move to quash the said
two cases after he had pleaded to the first would have obviated the impasse
created by requiring a prior final decision and spared him the vexation and
expenses for fees and bail in the other two improvident prosecutions.
..........MISSING LINE..........
This is where Section 3(h) of the same rule could have been overlooked,
misconstrued, or altogether ignored.
One final word. The majority points out that it was obiter for the Court to rule
in People vs. City Court of Manila, Branch XI 14 that the accused therein was
in double jeopardy because he had already been charged for the same offense,
emphasizing that such imprecision of language would give the impression
that one simply charged may claim possible jeopardy in another case. This
writer is aware that the ponente therein committed an innocent oversight
hence in my comment thereon, as quoted in the main decision, it was
explained that this would be so as long as the accused had entered his plea
therein. Aware that such statement in that case could further be, as it is now,
blandly dismissed as obiter, I also made the qualification that my comment
was as the doctrine "would now appear" based on the holding in said case.
Yet, as a statement of a rule of procedure, I believe that, properly and
completely expressed, the view of the ponente in that case was in the right
direction on that score. Also, we have held that while an obiter dictum is
generally not binding as authority or precedent within the stare decisis rule,
it may be followed if sufficiently persuasive. 15 I make this observation since
it may also be argued that the present discussion regarding the bases of my
dissent would be orbiter if we hold that in the present case the issue of double
jeopardy is not really involved since the private respondent is not being
charged with a complex crime, the component felonies of which have been
made subject of separate suits, but of two distinct and independent crimes.
Nonetheless, as ultimate arbiters of the law, we cannot and we should not
continue to cleave with obstinate tenacity or persist in citing with rote-like
19
consistency clearly inapposite or inapplicable doctrines catalogued in works
notable not for logical analysis but by their reliance on the numerical weight
of cases decided on the bases of disparate factual situations, or by reason of
a slavish obsession for footnotes. Perpetuating a misconception spawned by
the inertia of cavalier reliance on supposed precedents is a disservice to the
doctrine of stare decisis.

As earlier stated, therefore, since my present dissent is on an issue which I

believe this court should soonest clarify, on the considerations hereinbefore
expressed. I categorically submit that where an accused has validly pleaded
to the appropriate indictment sufficiently charging him with an offense in a
court of competent jurisdiction, he can seek and obtain the quashal of a
subsequent charge for the same offense on the ground of double jeopardy
even before the final disposition of the first case.

20
[G.R. No. 102131. August 31, 1992.]
FRANCO GORION, Petitioner, v. REGIONAL TRIAL COURT OF CEBU,
Branch 17, presided by HON. JOSE BURGOS, PEOPLE OF THE
PHILIPPINES, represented by CITY PROSECUTOR RODULFO PEREZ
and BONIFACIO BACALTOS, Respondents.
Eutiquiano V. Bilocura for Petitioner.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; DOUBLE
JEOPARDY; NOT VIOLATED WHEN FIRST CASE CAPRICIOUSLY
AND ARBITRARILY DISMISSED. — It is obvious to this Court that the
trial court was, on 28 September 1990, divested of jurisdiction, pro hac vice,
to issue any order, much less one of dismissal, in Criminal Case No. CBU-
16727 for the simple reason that said case was already effectively removed
from its trial calendar for that date in view of the previous day’s order
cancelling the hearing of the case on 27 and 28 September 1990. Plainly, the
court should not have included the case for hearing in the 28 September 1990
trial calendar. The erroneous dismissal order of 28 September 1990 wad then
issued capriciously and arbitrarily; it unquestionably deprived the State of a
fair opportunity to present and prove its case. Thus, its right to due process
was violated. The said order is null and void and hence, cannot be pleaded by
the petitioner to bar the subsequent annulment of the dismissal order or a re-
opening of the case on the ground of double jeopardy. This is the rule
obtaining in this jurisdiction. The dismissal order of 28 September 1990 being
null and void because the trial court lost its jurisdiction to issue the same and
violated the right of the prosecution to due process, it follows that Criminal
Case No. CBU-16726 continues to remain at that stage before the said order
was issued. Consequently, the first jeopardy was not terminated and no
second jeopardy threatened the accused.
2. ID.; ID.; ID.; REQUISITES. — 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, (c)
after arraignment, (d) when a valid plea has been entered, and (e) when the
case was dismissed or otherwise terminated without the express consent of
the accused. (People v. Bocar, 138 SCRA 166 [1985]; Saldana v. Court of
Appeals, 190 SCRA 396 [1990]).
DECISION
DAVIDE, JR., J.:
May an order dismissing a criminal case after the accused had been arraigned,
issued in open court through inadvertence or mistake during a hearing that
had already been cancelled, be set aside by the court and the case tried without
placing the accused in double jeopardy?chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph
This is the issue in this case.
On 17 October 1989, after conducting the appropriate preliminary
investigation pursuant to a complaint filed by one Bonifacio Bacaltos, the
Office of the City Prosecutor of Cebu City filed with the Regional Trial Court
of Cebu an information charging the petitioner with the crime of Estafa
involving the amount of P50,000.00. The case was docketed as Criminal Case
No. CBU-16726 1 and was raffled to Branch 17 of said court.
Upon his arraignment on 12 March 1990, the petitioner entered a plea of not
guilty and the court set the pre-trial and trial of the case for 17 April 1990. 2
The pleadings of the parties do not reveal what transpired on 17 April 1990.
It appears, however, that hearing was again scheduled for 27 and 28
September 1990.
When the case was called for hearing on 27 September 1990, neither the
petitioner nor the accused was present. Not wanting to take advantage of their
absence, and considering that there were other cases to be heard, the
prosecutor moved for the cancellation of the hearing on that date as well as
the hearing to be held the following day, which the court granted. The hearing
was reset to 4 October 1990. The pertinent portions of the transcript of
21
stenographic notes of the proceedings on 27 September 1990
read:jgc:chanrobles.com.ph
"ATTY. GAMELO FAJARDO:chanrob1es virtual 1aw library
I appear as private prosecutor in this case, Your Honor.
FISCAL RODOLFO PEREZ:chanrob1es virtual 1aw library
For the Prosecution, Your Honor.
COURT:chanrob1es virtual 1aw library
Where is (sic) the accused and the defense counsel?.
ATTY. FAJARDO:chanrob1es virtual 1aw library
I have not seen them in the courtroom, Your Honor.
FISCAL PEREZ:chanrob1es virtual 1aw library
The private complainant is coming, Your Honor, but we do not want to take
advantage of the absence of the accused and his defense counsel. We are
willing to give them opportunity (sic) to present their evidence.chanrobles
lawlibrary : rednad
ATTY. FAJARDO:chanrob1es virtual 1aw library
Inasmuch as there are other cases to be heard by the Court this morning, we
might as well reset the hearing.
FISCAL PEREZ:chanrob1es virtual 1aw library
I suggest that we cancel the hearing scheduled for today and also for
tomorrow, September 28, 1990.
COURT:chanrob1es virtual 1aw library
What is your available calendar date?
(NOTE)
(The Fiscal, private prosecutor and the Court, after going over their available
calendar dates, finally agreed to call this case again on October 4, 1990 at
11:00 A.M.)
COURT:chanrob1es virtual 1aw library
Upon suggestion of the prosecution, cancel the hearing scheduled for today
and tomorrow, September 28, 1990, and reset the same to October 4, 1990,
at 11:00 A.M. in order to give the prosecution the last opportunity to present
its evidence. Fiscal Rodolfo Perez, and private prosecutor Atty. Gamelo
Fajardo are notified in open court. Furnish Atty. Eutiquiano Bilocura, defense
counsel, with a copy of this order. Notify the accused and the private
complainant." 3
Unfortunately, however, the case was still included in the trial calendar of the
court for 28 September 1990. When the case was called for hearing on that
date, only the Fiscal appeared for the prosecution. The court then issued the
following order dismissing the case:jgc:chanrobles.com.ph
"ORDER
When this case was called for hearing today for the presentation of evidence
for the prosecution, only the Fiscal appeared without his witnesses.
In view thereof, this case is hereby ordered DISMISSED for failure to
prosecute with costs de oficio.
Furnish the private complainant, the private prosecutor, defense counsel and
the accused each with a copy of this Order.chanrobles law library
SO ORDERED." 4
Counsel for the petitioner, Atty. Eutiquiano Bilocura, received a copy of this
order on 4 October 1990. However, he received a copy of the 27 September
1990 Order only on 15 June 1992. 5
The pleadings of the parties do not reveal what actually transpired on 4
October 1990. In any event, the case was called again on 31 May 1991, but
22
the Court reset the hearing to 18, 22, 23 and 25 July 1991 on the ground that
it had not yet received from the Chief Justice of this Court a reply to the
Presiding Judge’s request for an extension of the trial dates. 6
On 2 July 1991, petitioner filed a Motion to Dismiss 7 alleging therein that
the dismissal of the case by the court on 28 September 1990 without his
consent amounted to his acquittal; hence, he would be placed in double
jeopardy, prohibited under Section 21, Article III of the New Constitution in
relation to Section 3(h), Rule 117 of the 1985 Rules of Criminal Procedure,
if the case were to be "reopened or continued."cralaw virtua1aw library
The trial court set aside the dismissal order of 28 September 1990 in its Order
of 9 August 1991 on the ground that the court was only misled in issuing the
same due to the stenographer’s failure to transcribe the order given in open
court issued the previous day; hence, it was issued without due process.
Also on 9 August 1991, the court denied the petitioner’s motion to dismiss
on the ground that the order of dismissal of 28 September 1990 was set aside
in the aforesaid order of 9 August 1991. 8
On 16 September 1991, petitioner filed a motion to reconsider the order
denying his motion to dismiss; he alleges therein that he cannot be blamed or
faulted for (a) any error in the dismissal of the case, (b) the failure of the
stenographer to type the order, and (c) the inclusion of the case in the calendar
of 28 September 1990. And even assuming arguendo that the court
erroneously dismissed the information, he asserts that in accordance with this
Court’s ruling in People v. Hernandez, 9 People v. Ferrer, 10 People v. Borja
11 and People v. Gil, 12 the reopening, continuation thereof or appeal
therefrom by the State will place him in double jeopardy.
In its Order of 18 September 1991, the court denied the aforesaid motion for
reconsideration by reiterating the reasons upon which it anchored its denial
order of 9 August 1991, and holding that the cases abovecited are not
applicable since they involve dismissals grounded on lack of jurisdiction. 13
Hence this petition, filed on 2 October 1991, wherein petitioner reiterates the
issues raised and the arguments adduced before the trial court and asks this
Court to set aside the Orders of 9 August 1991 denying the motion to dismiss,
and 18 September 1991 denying the motion for reconsideration, for having
been rendered without or in excess of jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction. 14
On 10 March 1992, after extensions of time were granted them, public
respondents, through the Office of the Solicitor General, filed their Comment
to the petition in compliance with the Resolution of 6 November 1991. 15
They assert therein that the order of dismissal of 28 September 1990 was a
mistake and was thus issued without due process as there was in fact no
hearing on that date, hence, the dismissal was null and void and of no effect.
Besides, petitioner did not object to the dismissal; thus, he cannot invoke
double jeopardy.
Petitioner filed, on 24 February 1992, 16 a Reply to the Comment. In
refutation of the public respondents’ assertion that he did not object to the
dismissal, petitioner maintains that his silence or failure to object is not the
express consent contemplated by Section 7, Rule 117 of the Rules of Court
that would bar him from pleading double jeopardy.cralawnad
We resolved to give due course to the petition, consider the Comment as the
Answer and decide this case on the merits.
The petition must fail.
It is obvious to this Court that the trial court was, on 28 September 1990,
divested of jurisdiction, pro hac vice, to issue any order, much less one of
dismissal, in Criminal Case No. CBU-16727 for the simple reason that said
case was already effectively removed from its trial calendar for that date in
view of the previous day’s order cancelling the hearing of the case on 27 and
28 September 1990. Plainly, the court should not have included the case for
hearing in the 28 September 1990 trial calendar. The respondent Court
attributed the mistake to the stenographer’s failure to immediately transcribe
the order. This, of course, is passing the buck too far.
The Judge, Clerk of Court and the prosecution should shoulder the blame
because unless amnesia suddenly struck all of them simultaneously, it cannot
be imagined that in a brief span of about twenty-four (24) hours, they had all
forgotten about the order dictated in open court cancelling the hearing for 27
and 28 September 1990. For the prosecutor who orally moved for such
cancellation and the Judge himself who dictated the said order, no plausible
explanation may be offered for such lapse. Apparently, the latter did not read
23
the calendar before the start of the session that day, and the branch clerk of
court who probably prepared the same one or two days earlier, did not bother
to review it anymore. And in the event that said clerk of court failed to attend
the session, he or she did not read the minutes of the case as prepared by a
subordinate. Upon the other hand, the prosecutor literally slept on his duty
when he failed to immediately inform the court of the previous day’s order
of cancellation of hearing which obviously accounted for the absence of both
the witness and the private prosecutor, and kept his unusual silence in the face
of the open court dictation of the order of dismissal. This ineptitude cannot
be condoned. Prosecutors should always be mindful of the heavy burden of
responsibility which they bear in prosecuting criminal cases because they
represent no less than the People of the Philippines and the State.
The erroneous dismissal order of 28 September 1990 waa then issued
capriciously and arbitrarily; it unquestionably deprived the State of a fair
opportunity to present and prove its case. Thus, its right to due process was
violated. The said order is null and void and hence, cannot be pleaded by the
petitioner to bar the subsequent annulment of the dismissal order or a re-
opening of the case on the ground of double jeopardy. This is the rule
obtaining in this jurisdiction.
In People v. Balisacan, 17 the accused at his arraignment pleaded not guilty
and was allowed to present mitigating circumstances; he thus testified that he
stabbed the deceased in self-defense. The trial court thereafter, without
receiving the evidence for the prosecution, promulgated a decision acquitting
the accused; the prosecution appealed therefrom. We then rejected the plea
of double jeopardy therein not only because of the fatal procedural flaw of
failure to re-arraign the accused after he, in effect, vacated his plea of guilty
thus resulting in the absence of a plea which is an essential element of double
jeopardy, but also because:jgc:chanrobles.com.ph
". . . the court a quo decided the case upon the merits without giving the
prosecution an opportunity to present its evidence or even to rebut the
testimony of the defendant. In doing so, it clearly acted without due process
of law. And for lack of this fundamental prerequisite, its action is perforce
null and void. The acquittal, therefore, being a nullity for want of due process,
is no acquittal at all, and thus can not constitute a proper basis for a claim of
former jeopardy. (People v. Cabero, 61 Phil. 121; 21 Am. Jur. 2d. 235;
McCleary v. Hudspeth, 124 Fed. 2d. 445)." chanrobles.com : virtual law
library
In People v. Gomez, 18 where the motion of the Assistant City Fiscal to
postpone the hearing of a criminal case — because the Special Prosecutor
actively handling the case was not served with a notice of the said hearing
and the former was not ready because the records were with the latter — was
denied by the respondent judge in open court, resulting in the eventual
dismissal of the case, this Court ruled that such dismissal was capricious and
rendered with grave abuse of discretion amounting to an excess of
jurisdiction, thus depriving the state of a fair opportunity to prosecute and
convict. Such a dismissal order, made sua sponte, for no proper reason at all,
is void for being issued without authority.
In Serino v. Zosa, 19 where both the Assistant Provincial Fiscal and private
prosecutor were readily available, having merely stepped out of the
courtroom when the Judge announced that he would first finish the trial of
another case, but after said trial was completed and the criminal case was
called again, both were not yet around, thus prompting the court to issue an
order dismissing the case for failure to prosecute, which it nevertheless set
aside on a motion for reconsideration, this Court rejected the plea of double
jeopardy on the ground that the order of dismissal was null and void for lack
of due process, and hence was correctly set aside by the Judge himself.
In People v. Navarro, 20 this Court nullified a judgment of acquittal in a
criminal case for light threats which was erroneously decided together with a
case for frustrated theft against the same accused in a joint decision, despite
the fact that there was no joint trial in said cases and no hearing had as yet
been conducted in the light threats case, because in rendering the judgment
in the latter, the Judge acted with abuse of discretion amounting to excess or
lack of jurisdiction. It is therefore null and void ab initio. Having been
rendered by a court which had no power to do so, it is as though there had
been no judgment; it is coram non judice.
In People v. Pablo, 21 this Court struck down as having been issued with
grave abuse of discretion amounting to lack of jurisdiction an order of the
court acquitting the accused, later on amended to be merely one of dismissal
of the case, issued when the prosecution asked for a postponement upon its
inability to produce its last but vital and indispensable witness who would
have testified on the cause of death of the victim, the subpoena for whom was
received by his secretary, despite the fact that five (5) witnesses for the
24
prosecution had already testified. Said order could not be used to invoke
double jeopardy.
In People v. Bocar, 22 where after the accused entered their plea of not guilty,
the Judge, instead of receiving the evidence for the prosecution, conducted a
summary investigation by directing questions to both the complainant and the
accused and at the end thereof, issued an order dismissing the case on the
ground that it is more civil than criminal, this Court ruled that since no
evidence in law had as yet been entered into the records of the case, the
dismissal order was arbitrary, whimsical and capricious — a veritable abuse
of discretion which this Court cannot permit.
It having been shown that in this case, the requisites of a valid termination of
the first jeopardy are not present, the petitioner cannot hide behind the
protective mantle of double jeopardy.chanrobles.com : virtual law library
WHEREFORE, the petition is DISMISSED for lack of merit. The respondent
Court is hereby directed to immediately place in its trial calendar Criminal
Case No. CBU-16726 for the reception of the evidence of the parties and
thereafter to decide the same.

In Saldana v. Court of Appeals, 23 where the trial judge had earlier issued an
order sustaining the objection of the defense to the presentation of one Linel
Garcia Cuevas on the ground that being a mere member of the complaining
Valle Verde Bagong Lipunan Community Association, Inc., he cannot be
considered as the complainant, and thereafter not only denied a motion to
reconsider the said order but also barred the prosecution from presenting
other members of the association from testifying and thereupon terminated
the presentation of the prosecution, and, acting on a notion to dismiss the case
for insufficiency of evidence, dismissed the case on said ground, this Court
sustained the decision of the Court of Appeals annulling the said order and
reinstating the criminal case in a petition for certiorari brought before the
latter.cralawnad

Coming back to the instant case, the dismissal order of 28 September 1990
being null and void because the trial court lost its jurisdiction to issue the
same and violated the right of the prosecution to due process, it follows that
Criminal Case No. CBU-16726 continues to remain at that stage before the
said order was issued. Consequently, the first jeopardy was not terminated
and no second jeopardy threatened the accused.

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, (c) after arraignment, (d) when a valid plea has been
entered, and (e) when the case was dismissed or otherwise terminated without
the express consent of the accused. 24

25
G.R. No. L-66132 June 27, 1988
DR. FELIX ABAY, SR. AND FELIX ABAY, JR., petitioners,
vs.
The HON. FELINO A. GARCIA, Acting City Judge, City of Bacolod (now
Municipal Trial Court); PEOPLE OF THE PHILIPPINES, Represented by
the City Fiscal, Bacolod City, RAMIRO GARQUE and THE
INTERMEDIATE APPELLATE COURT, SECOND SPECIAL CASES
DIVISION, respondents.
MEDIALDEA, J.:
This is a petition for review under Rule 45 of the Rules of Court of the
decision of the Intermediate Appellate Court (now Court of Appeals) dated
April 15, 1983, affirming the decision of the Court of First Instance (now
Regional Trial Court) at Bacolod City, dismissing the petition for certiorari
which sought to annul and set aside the order of the City Court at Bacolod
City, dated July 1, 1977, in Criminal Case No. 29688.
The following antecedent facts are undisputed:
On May 21, 1973, Criminal Case No. 29688 for direct assault upon an agent
of a person in authority was filed against Felix Abay, Sr., Felix Abay, Jr., and
two other accused. Accused Felix Abay, Sr. and Felix Abay, Jr. were duly
arraigned on May 27, 1975, and both pleaded not guilty. Trial commenced
on July 26, 1976, with Ramiro Garque testifying on direct examination and
partly on cross-examination. The trial was transferred to September 14, 1976.
But again the cross-examination was not terminated so the case was reset to
July 1, 1977.
At the continuation of the trial on July 1, 1977, both accused appeared without
their counsel. The trial fiscal, Assistant Fiscal Angel Lobaton, was present,
but the complainant, Garque who was still to be cross-examined, failed to
appear despite due notice. The private prosecutor, Atty. Henry Trocino, also
failed to appear. Whereupon, City Judge Felino Garcia verbally ordered,
motu proprio, the dismissal of the case. Fiscal Lobaton did not object to the
dismissal. Both accused remained silent and later left the courtroom after the
judge dictated the order of dismissal.
At about 10:00 o'clock in the morning of the same day, Atty. Trocino,
together with Garque arrived in court and upon learning that Criminal Case
No. 29688 was ordered dismissed, verbally moved to have the order of
dismissal set aside.
In the presence of special counsel Navarro, Atty. Trocino was allowed to
present evidence in support of the verbal motion for reconsideration and to
explain the failure of Garque to appear on time. In his written order of July 1,
1977, Judge Garcia granted the verbal motion for reconsideration and set
aside the verbal order of dismissal. He further ordered the resetting of the case
for hearing on another date.
Subsequently, the accused, through counsel, filed a motion for
reconsideration of the order of July 1, 1977, invoking double jeopardy,
claiming that the verbal order of dismissal, even if provisional, was rendered
without the express consent of the accused. The motion for reconsideration
was denied, after which the accused filed a petition for certiorari, which
sought to annul and set aside the order of the City Court dated July 1, 1977,
with the Court of First Instance at Bacolod City, with Judge Jose L.
Coscolluela, Jr., presiding.
On October 13, 1981, Judge Coscolluela dismissed the petition. The judge
upheld the questioned written order of July 1, 1977 on the ground that the
earlier verbal order of dismissal was not final, in fact, was ineffective,
because it left something to be done in line with the decision of this Court in
Cabarroguis vs. San Diego, L-19517, November 30, 1962, 6 SCRA 866. This
Court in said case ruled:
Petitioner's pretense is untenable. The verbal order of dismissal of said case
was withdrawn or set aside, as soon as it was dictated by respondent and
before it could be reduced to writing and signed by her. As a matter of fact,
it was never put in writing. Much less was it ever signed by respondent. For
this reason, respondent contended that said order of dismissal was incomplete
and did not have the effect of acquitting the accused before it was withdrawn.
Indeed, pursuant to section 2 of Rule 116 of he Rules of Court, "the judgment"
— and the order of dismissal in question had, it completed, such effect—
"must be written ... personally and directly prepared by the judge, and signed
by him. ...— The cases * cited by herein petitioner involved written orders of
26
dismissal, which were signed by the corresponding judges. Hence, said cases
are not controlling in the one at bar.

On April 15, 1983, the respondent Court of Appeals, in affirming the decision
rendered by Judge Coscolluela, said:

It is argued by appellants that the verbal order of dismissal, not having been
based on the merits of the case, but on the failure of the complainant to
appear, the ruling in the San Diego case is not applicable, considering that the
term 'judgment' as used in section 1, Rule 120 of the Rules of Court means
the adjudication by the court that the defendant is guilty or is not guilty of the
offense charged, and the imposition of the penalty provided for by law on the
defendant, who pleads or is found guilty thereof. But it must be remembered
that in the San Diego case, the Supreme Court through the ponente, Justice
Roberto Concepcion, did not distinguish as to whether the judgment was
based on the merits or not.

We fully agree with the findings of the respondent court. Where there is a
valid information and the accused has been arraigned, an order of dismissal
issued by the court, motu proprio, in the course of a trial of a criminal case,
whether based on the merits or for failure of prosecution witnesses to appear,
has the effect of a judgment of acquittal and double jeopardy attaches. The
order is also immediately executory. However, this order of dismissal must
be written in the official language, personally and directly prepared by the
judge and signed by him conformably with the provisions of Rule 120,
section 2 of the Rules of Court (now Rule 120, section 2 of the 1985 Rules
on Criminal Procedure). In the instant case, it is very clear that the order was
merely dictated in open court by the trial judge. There is now? showing that
this verbal order of dismissal was ever reduced to writing and duly signed by
him. Thus, it did not yet attain the effect of a judgment of acquittal, so that it
was still within the powers of the judge to set it aside and enter another order,
now in writing and duly signed by him, reinstating the case.

ACCORDINGLY, the petition is DENIED; the appealed decision of the

Court of Appeals is hereby affirmed. Costs against the petitioner.

This decision is immediately executory.

Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

27
G.R. No. 164185 July 23, 2008
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
THE SANDIGANBAYAN (FOURTH DIVISION) and ALEJANDRO A.
VILLAPANDO, Respondents.
DECISION
QUISUMBING, J.:
This petition for certiorari filed by the Office of the Ombudsman through the
Office of the Special Prosecutor assails the May 20, 2004 Decision1 of the
Sandiganbayan, Fourth Division, in Criminal Case No. 27465, granting
private respondent Alejandro A. Villapando’s Demurrer to Evidence2 and
acquitting him of the crime of unlawful appointment under Article 2443 of
the Revised Penal Code.
The facts culled from the records are as follows:
During the May 11, 1998 elections, Villapando ran for Municipal Mayor of
San Vicente, Palawan. Orlando M. Tiape (now deceased), a relative of
Villapando’s wife, ran for Municipal Mayor of Kitcharao, Agusan del Norte.
Villapando won while Tiape lost. Thereafter, on July 1, 1998, Villapando
designated Tiape as Municipal Administrator of the Municipality of San
Vicente, Palawan.4 A Contract of Consultancy5 dated February 8, 1999 was
executed between the Municipality of San Vicente, Palawan and Tiape
whereby the former employed the services of Tiape as Municipal
Administrative and Development Planning Consultant in the Office of the
Municipal Mayor for a period of six months from January 1, 1999 to June 30,
1999 for a monthly salary of ₱26,953.80.
On February 4, 2000, Solomon B. Maagad and Renato M. Fernandez charged
Villapando and Tiape for violation of Article 244 of the Revised Penal Code
before the Office of the Deputy Ombudsman for Luzon.6 The complaint was
resolved against Villapando and Tiape and the following Information7 dated
March 19, 2002 charging the two with violation of Article 244 of the Revised
Penal Code was filed with the Sandiganbayan:
xxxx
That on or about 01 July 1998 or sometime prior or subsequent thereto, in
San Vicente, Palawan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, ALEJANDRO A.
VILLAPANDO, a public officer, being then the Municipal Mayor of San
Vicente, Palawan, committing the crime herein charged, in relation to and
taking advantage of his official functions, conspiring and confederating with
accused Orlando M. Tiape, did then and there wilfully, unlawfully and
feloniously appoint ORLANDO M. TIAPE as a Municipal Administrator of
San Vicente, Palawan, accused Alejandro A. Villapando knowing fully well
that Orlando Tiape lacks the qualification as he is a losing mayoralty
candidate in the Municipality of Kitcharao, Agusan del Norte during the May
1998 elections, hence is ineligible for appointment to a public office within
one year (1) from the date of the elections, to the damage and prejudice of the
government and of public interest.
CONTRARY TO LAW.8
The Information was docketed as Criminal Case No. 27465 and raffled to the
Fourth Division of the Sandiganbayan.
Upon arraignment on September 3, 2002, Villapando pleaded not guilty.
Meanwhile, the case against Tiape was dismissed after the prosecution
proved his death which occurred on July 26, 2000.9
After the prosecution rested its case, Villapando moved for leave to file a
demurrer to evidence. The Sandiganbayan, Fourth Division denied his motion
but gave him five days within which to inform the court in writing whether
he will nonetheless submit his Demurrer to Evidence for resolution without
leave of court.10 Villapando then filed a Manifestation of Intent to File
Demurrer to Evidence,11 and was given 15 days from receipt to file his
Demurrer to Evidence. He filed his Demurrer to Evidence12 on October 28,
2003.
In a Decision dated May 20, 2004, the Sandiganbayan, Fourth Division found
Villapando’s Demurrer to Evidence meritorious, as follows:
The Court found the "Demurrer to Evidence" impressed with merit.
Article 244 of the Revised Penal Code provides:
28

Article 244. Unlawful appointments.–Any public officer who shall
knowingly nominate or appoint to any public office any person lacking the
legal qualifications therefor, shall suffer the penalty of arresto mayor and a
fine not exceeding 1,000 pesos. (underscoring supplied)
A dissection of the above-cited provision [yields] the following elements, to
wit:
1. the offender was a public officer;
2. accused nominated or appointed a person to a public office;
3. such person did not have the legal qualifications [therefor;] and,
4. the offender knew that his nominee or appointee did not have the legal
qualifications at the time he made the nomination or appointment.
Afore-cited elements are hereunder discussed.
1. Mayor Villapando was the duly elected Municipal Mayor of San Vicente,
Palawan when the alleged crime was committed.
2. Accused appointed Orlando Tiape as Municipal Administrator of the
Municipality of San Vicente, Palawan.
3. There appears to be a dispute. This Court is now called upon to determine
whether Orlando Tiape, at the time of [his] designation as Municipal
Administrator, was lacking in legal qualification. Stated differently, does
"legal qualification" contemplate the one (1) year prohibition on appointment
as provided for in Sec. 6, Art. IX-B of the Constitution and Sec. 94 (b) of the
Local Government Code, mandating that a candidate who lost in any election
shall not, within one year after such election, be appointed to any office in
the Government?
The Court answers in the negative.
In ascertaining the legal qualifications of a particular appointee to a public
office, "there must be a law providing for the qualifications of a person to be
nominated or appointed" therein. To illuminate further, Justice Rodolfo
Palattao succinctly discussed in his book that the qualification of a public
officer to hold a particular position in the government is provided for by law,
which may refer to educational attainment, civil service eligibility or
experience:
As the title suggests, the offender in this article is a public officer who
nominates or appoints a person to a public office. The person nominated or
appointed is not qualified and his lack of qualification is known to the party
making the nomination or appointment. The qualification of a public officer
to hold a particular position in the government is provided by law. The
purpose of the law is to ensure that the person appointed is competent to
perform the duties of the office, thereby promoting efficiency in rendering
public service.
The qualification to hold public office may refer to educational attainment,
civil service eligibility or experience. For instance, for one to be appointed as
judge, he must be a lawyer. So if the Judicial and Bar Council nominates a
person for appointment as judge knowing him to be not a member of the
Philippine Bar, such act constitutes a violation of the law under consideration.
In this case, Orlando Tiape was allegedly appointed to the position of
Municipal Administrator. As such, the law that provides for the legal
qualification for the position of municipal administrator is Section 480,
Article X of the Local Government Code, to wit:
"Section 480. Qualifications, Terms, Powers and Duties.–(a) No person shall
be appointed administrator unless he is a citizen of the Philippines, a resident
of the local government unit concerned, of good moral character, a holder of
a college degree preferably in public administration, law, or any other related
course from a recognized college or university, and a first grade civil service
eligible or its equivalent. He must have acquired experience in management
and administration work for at least five (5) years in the case of the provincial
or city administrator, and three (3) years in the case of the municipal
administrator.
xxx xxx x x x"
It is noteworthy to mention that the prosecution did not allege much less
prove that Mayor Villapando’s appointee, Orlando Tiape, lacked any of the
qualifications imposed by law on the position of Municipal Administrator.
29
Prosecution’s argument rested on the assertion that since Tiape lost in the
May 11, 1998 election, he necessarily lacked the required legal qualifications.
It bears stressing that temporary prohibition is not synonymous with absence
or lack of legal qualification. A person who possessed the required legal
qualifications for a position may be temporarily disqualified for appointment
to a public position by reason of the one year prohibition imposed on losing
candidates. Upon the other hand, one may not be temporarily disqualified for
appointment, but could not be appointed as he lacked any or all of the required
legal qualifications imposed by law.
4. Anent the last element, this Court deems it unnecessary to discuss the same.
WHEREFORE, finding the "Demurrer to Evidence" filed by Mayor
Villapando with merit, the same is hereby GRANTED. Mayor Villapando is
hereby ACQUITTED of the crime charged.
SO ORDERED.13
Thus, this petition by the Office of the Ombudsman, through the Office of the
Special Prosecutor, representing the People of the Philippines.
Villapando was required by this Court to file his comment to the petition.
Despite several notices, however, he failed to do so and in a Resolution14
dated June 7, 2006, this Court informed him that he is deemed to have waived
the filing of his comment and the case shall be resolved on the basis of the
pleadings submitted by the petitioner.
Petitioner raises the following issues:
I.
WHETHER THE RESPONDENT COURT ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OF OR EXCESS OF
JURISDICTION IN INTERPRETING THAT THE "LEGAL
DISQUALIFICATION" IN ARTICLE 244 OF THE REVISED PENAL
CODE DOES NOT INCLUDE THE ONE YEAR PROHIBITION
IMPOSED ON LOSING CANDIDATES AS ENUNCIATED IN THE
CONSTITUTION AND THE LOCAL GOVERNMENT CODE.
II.
WHETHER THE RESPONDENT COURT ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OF OR EXCESS OF
JURISDICTION IN GIVING DUE COURSE TO, AND EVENTUALLY
GRANTING, THE DEMURRER TO EVIDENCE.15
Simply, the issue is whether or not the Sandiganbayan, Fourth Division, acted
with grave abuse of discretion amounting to lack or excess of jurisdiction.
Petitioner argues that the Sandiganbayan, Fourth Division acted with grave
abuse of discretion amounting to lack or excess of jurisdiction because its
interpretation of Article 244 of the Revised Penal Code does not complement
the provision on the one-year prohibition found in the 1987 Constitution and
the Local Government Code, particularly Section 6, Article IX of the 1987
Constitution which states no candidate who has lost in any election shall,
within one year after such election, be appointed to any office in the
government or any government-owned or controlled corporation or in any of
their subsidiaries. Section 94(b) of the Local Government Code of 1991, for
its part, states that except for losing candidates in barangay elections, no
candidate who lost in any election shall, within one year after such election,
be appointed to any office in the government or any government-owned or
controlled corporation or in any of their subsidiaries. Petitioner argues that
the court erred when it ruled that temporary prohibition is not synonymous
with the absence of lack of legal qualification.
The Sandiganbayan, Fourth Division held that the qualifications for a position
are provided by law and that it may well be that one who possesses the
required legal qualification for a position may be temporarily disqualified for
appointment to a public position by reason of the one-year prohibition
imposed on losing candidates. However, there is no violation of Article 244
of the Revised Penal Code should a person suffering from temporary
disqualification be appointed so long as the appointee possesses all the
qualifications stated in the law.
There is no basis in law or jurisprudence for this interpretation. On the
contrary, legal disqualification in Article 244 of the Revised Penal Code
simply means disqualification under the law. Clearly, Section 6, Article IX
of the 1987 Constitution and Section 94(b) of the Local Government Code of
1991 prohibits losing candidates within one year after such election to be
30
appointed to any office in the government or any government-owned or
controlled corporations or in any of their subsidiaries.
Article 244 of the Revised Penal Code states:
Art. 244. Unlawful appointments. — Any public officer who shall knowingly
nominate or appoint to any public office any person lacking the legal
qualifications therefore, shall suffer the penalty of arresto mayor and a fine
not exceeding 1,000 pesos.
Section 94 of the Local Government Code provides:
SECTION 94. Appointment of Elective and Appointive Local Officials;
Candidates Who Lost in Election. - (a) No elective or appointive local official
shall be eligible for appointment or designation in any capacity to any public
office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position,
no elective or appointive local official shall hold any other office or
employment in the government or any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations or their
subsidiaries.
(b) Except for losing candidates in barangay elections, no candidate who lost
in any election shall, within one (1) year after such election, be appointed to
any office in the government or any government-owned or controlled
corporations or in any of their subsidiaries.
Section 6, Article IX-B of the 1987 Constitution states:
Section 6. No candidate who has lost in any election shall, within one year
after such election, be appointed to any office in the Government or any
Government-owned or controlled corporations or in any of their subsidiaries.
Villapando’s contention and the Sandiganbayan, Fourth Division’s
interpretation of the term legal disqualification lack cogency. Article 244 of
the Revised Penal Code cannot be circumscribed lexically. Legal
disqualification cannot be read as excluding temporary disqualification in
order to exempt therefrom the legal prohibitions under Section 6, Article IX
of the 1987 Constitution and Section 94(b) of the Local Government Code of
1991.
Although this Court held in the case of People v. Sandiganbayan16 that once
a court grants the demurrer to evidence, such order amounts to an acquittal
and any further prosecution of the accused would violate the constitutional
proscription on double jeopardy, this Court held in the same case that such
ruling on the matter shall not be disturbed in the absence of a grave abuse of
discretion.1avvphi1
Grave abuse of discretion defies exact definition, but it generally refers to
capricious or whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be patent and gross as to amount to
an evasion of a positive duty or a virtual refusal to perform a duty enjoined
by law, or to act at all in contemplation of law, as where the power is
exercised in an arbitrary and despotic manner by reason of passion and
hostility.17
In this case, the Sandiganbayan, Fourth Division, in disregarding basic rules
of statutory construction, acted with grave abuse of discretion. Its
interpretation of the term legal disqualification in Article 244 of the Revised
Penal Code defies legal cogency. Legal disqualification cannot be read as
excluding temporary disqualification in order to exempt therefrom the legal
prohibitions under the 1987 Constitution and the Local Government Code of
1991. We reiterate the legal maxim ubi lex non distinguit nec nos distinguere
debemus. Basic is the rule in statutory construction that where the law does
not distinguish, the courts should not distinguish. There should be no
distinction in the application of a law where none is indicated.
Further, the Sandiganbayan, Fourth Division denied Villapando’s Motion for
Leave to File Demurrer to Evidence yet accommodated Villapando by giving
him five days within which to inform it in writing whether he will submit his
demurrer to evidence for resolution without leave of court.
Notably, a judgment rendered with grave abuse of discretion or without due
process is void, does not exist in legal contemplation and, thus, cannot be the
source of an acquittal.18
The Sandiganbayan, Fourth Division having acted with grave abuse of
discretion in disregarding the basic rules of statutory construction resulting in
31
its decision granting Villapando’s Demurrer to Evidence and acquitting the
latter, we can do no less but declare its decision null and void.

WHEREFORE, the petition is GRANTED. The Decision dated May 20, 2004
of the Sandiganbayan, Fourth Division, in Criminal Case No. 27465, granting
private respondent Alejandro A. Villapando’s Demurrer to Evidence and
acquitting him of the crime of unlawful appointment under Article 244 of the
Revised Penal Code is hereby declared NULL and VOID. Let the records of
this case be remanded to the Sandiganbayan, Fourth Division, for further
proceedings.

32

G.R. No. L-24447 June 29, 1968
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,
vs.
WILLY OBSANIA, defendant-appellee.
Office of the Solicitor General for plaintiff-appellant.
Maximo V. Cuesta, Jr. for defendant-appellee.
CASTRO, J.:
Before us for review, on appeal by the People of the Philippines, is an order,
dated January 8, 1965, of the Court of First Instance of Pangasinan
dismissing, upon motion of the defense, an indictment for rape against Willy
Obsania.
On November 22, 1964, barely a day after the occurence of the alleged crime,
Erlinda Dollente, the 14-year old victim, and her parents, Ciriaco Dollente
and Carmelita Lureta, filed in the municipal court of Balungao, Pangasinan a
complaint for rape with robbery, 1 alleging
That on or about the 21st day of November 1964, at around 2:00 to 3:00 in
the afternoon, particularly in sitio Cawakalan, barrio of Capulaan,
municipality of Balungao, Province of Pangasinan, Philippines and within the
jurisdiction of the Honorable Court, the said accused Willy Obsania, armed
with a dagger, by means of violence and intimidation, willfully, unlawfully
and feloniously did then and there have carnal knowledge of the complainant
Erlinda Dollente, against her will and on the roadside in the ricefields at the
above-mentioned place while she was alone on her way to barrio San
Raymundo.
After the case was remanded to the Court of First Instance of Pangasinan for
further proceedings, the assistant provincial fiscal filed an information for
rape against the accused, embodying the allegations of the above complaint,
with an additional averment that the offense was committed "with lewd
designs".
The accused pleaded not guilty upon arraignment, and forthwith his counsel
moved for the dismissal of the case, contending that the complaint was fatally
defective for failure to allege "lewd designs" and that the subsequent
information filed by the fiscal which averred "lewd designs" did not cure the
jurisdictional infirmity. The court a quo granted the motion and ordered
dismissal of the action, ruling that "the failure of the complaint filed by the
offended party to allege that the acts committed by the accused were with
'lewd designs' does not give this Court jurisdiction to try the case." From this
order, the fiscal brought the instant appeal.
Two issues are tendered for resolution, namely: first, are "lewd designs" an
indispensable element which should be alleged in the complaint?, and,
second, does the present appeal place the accused in double jeopardy?
Both must be answered in the negative.
The accused, in his motion to dismiss, as well as the trial judge, in his order
of dismissal, rely basically on the ruling in People vs. Gilo (L-18202, April
30, 1964). In the case which involved a prosecution for acts of lasciviousness
this Court, in passing, opined that "lewd design" is
... an indispensable element of all crimes against chastity, such as abduction,
seduction and rape, including acts of lasciviousness ... an element that
characterizes all crimes against chastity, apart from the felonious or criminal
intent of the offender, and such element must be always present in order that
they may be considered in contemplation of law.
Nothing in the foregoing statement can be reasonably interpreted as requiring
an explicit allegation of "lewd design" in a complaint for rape. We hold in no
uncertain terms that in a complaint for rape it is not necessary to allege "lewd
design" or "unchaste motive", for to require such averment is to demand a
patent superfluity. Lascivious intent inheres in rape and the unchaste design
is manifest in the very act itself — the carnal knowledge of a woman through
force or intimidation, or when the woman is deprived of reason or otherwise
unconscious, or when the woman is under twelve years of age. 2
It is clear that the complaint here satisfies the requirements of legal
sufficiency of an indictment for rape as it unmistakably alleges that the
accused had carnal knowledge of the complainant by means of violence and
intimidation. We therefore hold that the trial judge erred in dismissing the
case on the proffered grounds that the complaint was defective for failure to
allege "lewd design" and, as a consequence of such infirmity, that the court a
33
quo did not acquire jurisdiction over the case. The error of the trial judge was
in confusing the concept of jurisdiction with that of insufficiency in substance
of an indictment.
We come now to the more important issue of double jeopardy. The accused
maintains that "assuming, arguendo, that the argument is right that the court
a quo has jurisdiction, the appeal of the Government constitutes double
jeopardy."
An appeal by the prosecution in a criminal case is not available if the
defendant would thereby be placed in double jeopardy. 3 Correlatively,
section 9, Rule 117 of the Revised Rules of Court provides:
When a defendant shall have been convicted or acquitted, or the case against
him dismissed or otherwise terminated without the express consent of the
defendant, 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 defendant had pleaded to the charge, the conviction
or acquittal of the defendant 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.
In order that the protection against double jeopardy may inure in favor of an
accused, the following requisites must have obtained in the original
prosecution: (a) a valid complaint or information; (b) a competent court; (c)
the defendant had pleaded to the charge; and (d) the defendant was acquitted,
or convicted, or the case against him was dismissed or otherwise terminated
without his express consent.
The complaint filed with the municipal court in the case at bar was valid; the
court a quo was a competent tribunal with jurisdiction to hear the case; the
record shows that the accused pleaded not guilty upon arraignment. Hence,
the only remaining and decisive question is whether the dismissal of the case
was without the express consent of the accused.
The accused admits that the controverted dismissal was ordered by the trial
judge upon his motion to dismiss. However, he vehemently contends that
under the prevailing jurisprudence, citing People vs. Bangalao, et al. (94 Phil.
354, February 17, 1954), People vs. Labatete (L-12917, April 27, 1960),
People vs. Villarin (L-19795, July 31, 1964), and People vs. Cloribel (L-
20314, August 31, 1964), an erroneous dismissal of a criminal action, even
upon the instigation of the accused in a motion to quash or dismiss, does not
bar him from pleading the defense of double jeopardy in a subsequent appeal
by the Government or in a new prosecution for the same offense. The accused
suggests that the above-enumerated cases have abandoned the previous ruling
of this Court to the effect that when a case is dismissed, other than on the
merits, upon motion of the accused personally or through counsel, such
dismissal is to be regarded as with the express consent of the accused and
consequently he is deemed to have waived 4 his right to plead double
jeopardy and/or he is estopped 5 from claiming such defense on appeal by the
Government or in another indictment for the same offense.
This particular aspect of double jeopardy — dismissal or termination of the
original case without the express consent of the defendant — has evoked
varied and apparently conflicting rulings from this Court. We must untangle
this jurisprudential maze and fashion out in bold relief a ruling not susceptible
of equivocation. Hence, a searching extended review of the pertinent cases is
imperative.
The doctrine of waiver of double jeopardy was enunciated and formally
labelled as such for the first time in 1949 in People vs. Salico, supra, with
three justices dissenting. 6 In that case, the provincial fiscal appealed from
the order of the trial court dismissing, upon motion of the defendant made
immediately after the prosecution had rested its case, an indictment for
homicide, on the ground that the prosecution had failed to prove that the crime
was committed within the territorial jurisdiction of the trial court, or, more
specifically, that the municipality of Victorias in which the crime was
allegedly committed was compromised within the province of Negros
Occidental. 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. In ruling that the appeal by the
Government did not put the accused in peril of a second jeopardy, this Court
stressed that with "the dismissal of the case by the court below upon motion
of the defendant, the latter has not been in jeopardy," and "assuming,
34
arguendo, that the defendant had been already in jeopardy in the court below
and would be placed in double jeopardy by the appeal, the defendant has
waived his constitutional right not to be put in danger of being convicted
twice for the same offense." Mr. Justice Felicisimo Feria, speaking for the
majority, reasoned that
... 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.
The Salico doctrine was adhered to and affirmed in People vs. Marapao (85
Phil. 832, March 30, 1950), Gandicela vs. Lutero (88 Phil. 299, March 5,
1951), People vs. Pinuela, et al. (91 Phil. 53, March 28, 1952), Co Te Hue vs.
Encarnacion (94 Phil. 258, January 26, 1954), and People vs. Desalisa (L-
15516, December 17, 1966).
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. However, the court reconsidered this order upon representation of the
fiscal who appeared moments later, and ordered the defense to present its
evidence. The accused moved to get aside the latter order on the ground that
it placed him in double jeopardy. Acceding to this motion, the court dismissed
the case. 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. Again,
upon motion of the accused, the trial court dismissed the new indictment on
the ground of double jeopardy. From this order, the prosecution appealed. In
upholding the appeal of the Government, this Court observed that although
the information for assault necessarily embraced the crime of slight physical
injuries for which the accused was indicted in the justice of the peace court,
... 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...
In Gandicela, this Court had occasion to reiterate the Salico ruling:
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. (People vs. Ylagan, 58 Phil. 851; People vs. Salico, 84 Phil.
722.).
And in denying the motion for reconsideration filed by the accused in that
case, this Court held:
According to Section 9 of Rule 13, if a criminal case is dismissed otherwise
than upon the merits at any stage before judgment, without the express
consent of the defendant, by a court of competent jurisdiction, upon a valid
complaint or information, and after the defendant has pleaded to the charge,
the dismissal of the case shall be definite or a bar to another prosecution for
the same offense; but if it is dismissed upon the petition or with the express
consent of the defendant, the dismissal will be without prejudice or not a bar
to another prosecution for the same offense, because, in the last case, the
defendant's action in having the case dismissed constitutes a waiver of his
constitutional right not to be prosecuted again for the same offense.
In Pinuela, as in Salico, the prosecution had presented its evidence against
the defendant, and the trial court, upon motion of the accused, dismissed the
criminal action for lack of evidence showing that the crime charged was
committed within its territorial jurisdiction. On appeal by the Government,
this Court found that the evidence showed otherwise and, like in Salico, the
majority rejected the plea of double jeopardy interposed by the accused on
the ground that his virtual instigation of the erroneous dismissal amounted to
a waiver of his right against a second jeopardy.
In Co Te Hue, it was the theory of the petitioner that the charge of estafa filed
against him having been dismissed, albeit provisionally, without his express
consent, its revival constituted double jeopardy which bars a subsequent
prosecution for the same offense. This claim was traversed by the Solicitor
35
General who contended that considering what had transpired in the
conference between the parties, the provisional dismissal was no bar to the
subsequent prosecution for the reason that the dismissal was made with the
defendant's express consent. This Court sustained the view of the Solicitor
General, thus:
We are inclined to uphold the view of the Solicitor General. From the
transcript of the notes taken at the hearing in connection with the motion for
dismissal, it appears that a conference was held between petitioner and the
offended party in the office of the fiscal concerning the case and that as a
result of that conference the offended party filed the motion to dismiss. It also
appears that as no action has been taken on said motion, counsel for petitioner
invited the attention of the court to the matter who acted thereon only after
certain explanation was given by said counsel. And when the order came the
court made it plain that the dismissal was merely provisional in character. It
can be plainly seen that the dismissal was effected not only with the express
consent of the petitioner but even upon the urging of his counsel. This attitude
of petitioner, or his counsel, takes this case out of the operation of the rule.
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. This decision
subscribes substantially to the doctrine on waiver established in Salico.
The validity and currency of the Salico doctrine were intimated in the recent
case of People vs. Fajardo (L-18257, June 29, 1966), and six months later
were reaffirmed in People vs. Desalisa, supra.
In Fajardo, this Court, through Mr. Justice Querube Makalintal, observed:
The record does not reveal that appellees expressly agreed to the dismissal of
the information as ordered by the trial Judge or that they performed any act
which could be considered as express consent within the meaning of the rule.
While they did file a motion asking that the case be quashed or that a
reinvestigation thereof be ordered, the court granted neither alternative. What
it did was to order the prosecution to amend the complaint. This order was in
effect a denial of the motion to quash, and it was only after the prosecution
failed to amend that the court dismissed the case on that ground.
Consequently, even under the theory enunciated in some decisions of this
Court (People vs. Salico, etc.) 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.
Then in Desalisa, this Court, in a unanimous decision penned by Mr. Justice
Jesus Barrera, held that
... 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. (Emphasis supplied)
xxx xxx xxx
... 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 (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. (Emphasis
supplied)
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. 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
36
subsequently interposing the defense of double jeopardy on appeal or in a
new prosecution for the same offense.
In Acierto, the defendant was charged before a United States court-martial
with having defrauded the Government of the United States, through
falsification of documents, within a military base of the United States in the
Philippines. The challenge by the accused against the jurisdiction of the
military tribunal was brushed aside, and he was convicted. On review, the
verdict was reversed by the Commanding General who sustained Acierto's
position on the ground of lack of jurisdiction. Subsequently, he was convicted
of estafa and falsification based on the same facts by the Court of first
Instance of Rizal. On appeal to this Court, he claimed former jeopardy in the
court-martial proceedings, asserting that the military court actually had
jurisdiction. In a unanimous 7 decision, this Court, through Mr. Justice Pedro
Tuason, ruled:
This is the exact reverse of the position defendant took at the military trial.
As stated, he there attacked the court-martial's jurisdiction with the same
vigor that he now says the court-martial did have jurisdiction; and thanks to
his objections, so we incline to believe, the Commanding General, upon
consultation with, and the recommendation of, the Judge Advocate General
in Washington, disapproved the court-martial proceedings.
xxx xxx xxx
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 his plea.
(Emphasis supplied)
The Acierto ruling was reiterated in People vs. Amada Reyes, et al. (96 Phil.
827, April 30, 1955); People vs. Reyes, et al. (98 Phil. 646, March 23, 1956);
People vs. Casiano (L-15309, February 16, 1961), and People vs. Archilla (L-
15632, February 28, 1961).
The defendants in People vs. Amada Reyes, et al., were charged as
accessories to the crime of theft committed by their brother, Anselmo, the
principal accused. The latter pleaded guilty to simple theft and was sentenced
accordingly. The former pleaded not guilty and subsequently filed a motion
to quash on the ground that being brothers and sisters of the principal accused,
they were exempt from criminal responsibility for the acts charged against
them in the information. Thereupon, the prosecution moved to amend the
information so as to allege that the defendants profited from the effects of the
crime. In view of this development, counsel for the defendants moved to
withdraw their motion to quash, and objected to the proposed amendment
which sought to change materially the information after plea without the
consent of the accused. Without acting on the petition to withdraw the motion
to quash, the trial court denied the motion of the prosecution on the ground
that the proposed amendment would substantially affect the fundamental
rights of the accused who were exempt from liability under the information
because of their relation to the principal culprit. Then the prosecution moved
for the dismissal of the case against the alleged accessories with reservation
to file a new information. The court ordered the dismissal without ruling on
the reservation. Subsequently, a new information was filed virtually
reproducing the previous one except that now there was an added allegation
of intent to gain. The lower court quashed the new information upon motion
of the accused on the ground of double jeopardy. On appeal by the
prosecution, this Court, thru Mr. Justice J. B. L. Reyes, held that the plea of
double jeopardy was erroneously sustained because
In the first place, the accused-appellees herein filed a motion to quash on the
ground that they incurred no criminal liability under the facts alleged in the
information in the preceding case, No. Q-972, and the trial court instead of
allowing the withdrawal of the motion to quash, virtually sustained the same
when it denied the fiscal's motion to amend, thereby forcing the latter to
dismiss the case; hence, it can not be held that the former case was terminated
without the express consent of the accused. Secondly, the defendants
themselves showed that the information in the previous case was insufficient
to charge them with any criminal offense, in view of their relationship with
the principal accused; and 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
37
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.
Again, in People vs. Reyes, et al., supra, this Court, speaking thru Mr. Chief
Justice Paras, reiterated the Acierto ruling thus:
Where the complaint or information is in truth valid and sufficient, but the
case is dismissed upon the petition of the accused on the ground that the
complaint or information is invalid and insufficient, such dismissal will not
bar another prosecution for the same offense and the defendant is estopped
from alleging in the second information that the former dismissal was wrong
because the complaint or information was valid.
In this particular case, upon motion of the defendants, the trial court
dismissed the information because it did not allege the use of violence,
notwithstanding the fact that the offense charged was coercion under article
287 of the Revised Penal Code. On appeal, however, this Court ruled that the
dismissal was erroneous because "although the offense named in the
information is coercion, it does not necessarily follow that the applicable
provision is the first paragraph, since the second paragraph also speaks of
'coercions'. Inasmuch as the recitals in the information do not include
violence, the inevitable conclusion is that the coercion contemplated is that
described and penalized in the second paragraph."
We come now to the case of People vs. Casiano. In this case the accused was
charged with estafa in a complaint filed with the justice of the peace court of
Rosales, Pangasinan. The accused waived her right to preliminary
investigation and the record was accordingly forwarded to the Court of First
Instance of Pangasinan where the provincial fiscal filed an information for
"illegal possession and use of false treasury or bank notes." Upon arraignment
the defendant pleaded not guilty. Subsequently, the defense filed a motion to
dismiss on the thesis that there had been no preliminary investigation of the
charge of illegal possession and use of false treasury or bank notes, and that
the absence of such preliminary investigation affected the jurisdiction of the
trial court. The motion was granted on the ground that the waiver made by
the defendant in the justice of the peace court did not deprive her of the right
to a preliminary investigation of an entirely different crime. On appeal to this
Court, it was held that the dismissal was erroneous because the allegations of
the information filed in the Court of First Instance were included in those of
the complaint filed in the justice of the peace court where the defendant had
already waived her right to a preliminary investigation. On the question of
whether the appeal placed the defendant in double jeopardy, this Court, thru
Mr. Chief Justice (then Associate Justice) Concepcion, observed that the
situation of Casiano was identical to that of the accused in Acierto
... were she to plead double jeopardy in this case, for such plea would require
the assertion of jurisdiction of the court of first instance to try her and that the
same erred in yielding to her plea therein for lack of authority therefor. In the
language of our decision in the Acierto case, it is immaterial whether or not
the court a quo had said authority. It, likewise, makes no difference whether
or not the issue raised by defendant in the lower court affected its jurisdiction.
The fact is that she contested its jurisdiction and that, although such pretense
was erroneous, she led the court to believe that it was correct and to act in
accordance with such belief. 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. As a matter of
fact, said rule applies with greater force to the case at bar than to the Acierto
case, because the same involved two (2) separate proceedings before courts
deriving their authority from different sovereignties, whereas the appeal in
the case at bar is a continuation of the proceedings in the lower court, which
like this Supreme Court, is a creature of the same sovereignty. In short the
inconsistency and impropriety would be more patent and glaring in this case
than in that of Acierto, if appellant herein pleaded double jeopardy in this
instance.
This Court then forthnightly stated that "the rule of estoppel applied in the
Acierto case should be maintained, because:
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.
38
xxx xxx xxx
4. The operation of the principle of estoppel on the question of jurisdiction
seemingly depends whether the lower court actually had jurisdiction or not.
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).
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.
Twelve days after Casiano, this Court, in People vs. Archilla, supra, invoked
anew the doctrine of estoppel. In this case Alfreda Roberts, together with Jose
Archilla, was charged with bigamy. After pleading not guilty, Roberts,
through his counsel, filed a motion praying that the complaint be quashed
with regard to her on the ground that the facts alleged therein did not
constitute the offense charged for failure to aver that "insofar as Alfreda
Roberts is concerned, her marriage to Jose Luis Archilla was her second
marriage ..." On appeal, the prosecution contended that the trial court erred
in granting the motion to quash, because the complaint was sufficient and at
least charged the accused as an accomplice. The defendant maintained that
even if that were true, the quashing of the information amounted to her
acquittal which prevented the prosecution from taking the said appeal as it
would place her in double jeopardy. 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 (Williams v.
McMicking, 17 Phil. 408; Molina v. Somes, etc.). 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.
The accused in this case now before us nevertheless insists that the Salico
doctrine and "necessarily analogous doctrines" were abandoned by this Court
in Bangalao, Labatete, Villarin and Cloribel.
In Bangalao, the complaint filed by the victim's mother alleged that the rape
was committed "by means of force and intimidation" while the information
filed by the fiscal alleged that the offended party was a "minor and demented
girl" and that the defendants "successively had sexual intercourse with her by
means of force and against the will of Rosita Palban." After the accused had
pleaded not guilty, the defense counsel moved for the dismissal of the case
on the ground that the trial court lacked jurisdiction to try the offense of rape
charged by the fiscal since it was distinct from the one alleged in the
complaint which did not aver that the victim was a demented girl". The lower
court sustained the motion and dismissed the case for lack of jurisdiction. On
appeal by the prosecution, this Court held that the trial judge erred in
dismissing the case for lack of jurisdiction, but ruled, however, that the appeal
could not prosper because it placed the accused in double jeopardy.
As the court below had jurisdiction to try the case upon the filing of the
complaint by the mother of the offended party, the defendants-appellees
would be placed in double jeopardy if the appeal is allowed.
After mature analysis, we cannot agree that this Court in Bangalao impliedly
abandoned the Salico doctrine on waiver. Bangalao was decided solely on the
question of jurisdiction. This Court, however, after holding that the lower
tribunal had jurisdiction, decided outright to repress the appeal by the
Government on the ground of double jeopardy without considering whether
the appealed order of dismissal was issued with or without the express
consent of the accused (this aspect of double jeopardy not being in issue).
Hence, the ruling in Salico — that the dismissal was with the express consent
of the accused because it was granted upon his instigation thru a motion to
dismiss — was not passed upon in Bangalao.
A case of striking factual resemblance with Salico is People vs. Ferrer (100
Phil. 124, October 23, 1956). In this case, after the prosecution had rested,
the accused filed a motion to dismiss on the ground that the territorial
jurisdiction of the trial court had not been published. Acting on this motion,
39
the lower court dismissed the case. The prosecution appealed. This Court
found that the evidence on record, contrary to the finding of the trial court,
amply proved the jurisdiction of the lower tribunal. However, without the
defendant interposing the plea of double jeopardy, this Court held that "the
Government however meritorious its case cannot appeal the order of
dismissal without violating the right of the defendant not to be placed in
double jeopardy." Again, like in Bangalao, this Court did not consider the
nature of dismissal — whether it was with or without the express consent of
the defendant.
The accused in the case at bar avers that the Salico doctrine was formally and
expressly abandoned in People vs. Labatete, supra. In the latter case, the trial
court, upon motion of the defendant, dismissed the original information for
estafa on the ground that it did not allege facts constituting the offense
charged. The information recited that the accused had contracted a loan from
the complainant, giving as security the improvements and products of his
property (a piece of land), without averring that the said property, which was
allegedly mortgaged by the accused to the Rehabilitation Finance
Corporation, formed part of the security. Consequently, the fiscal filed an
amended complaint alleging that the accused also gave as security the land in
question, which he later mortgaged to the damage and prejudice of the
complaining creditor. This amended information was also dismissed upon
motion of the defendant on the ground of double jeopardy. This Court, in
sustaining the appealed order of dismissal, held:
If the amended information were to be admitted, the accused will be deprived
of his defense of double jeopardy because by the amended information he is
sought to be made responsible for the same act of borrowing on a mortgage
for which he had already begun to be tried and acquitted by the dismissal of
the original information.
xxx xxx xxx
... the trial court found that the accused could not be found guilty of any
offense under the information. The judgment entered was not one of dismissal
but of acquittal, and whether the judgment is correct or incorrect, the same
constitutes a bar to the presentation of the amended information sought to be
introduced by the fiscal. (Emphasis supplied)
In not applying the Salico doctrine, this Court, through Mr. Justice Alejo
Labrador, expounded:
... The judgment of the trial court (in People vs. Salico) was in fact an
acquittal because of the failure on the part of the fiscal to prove that the crime
was committed within the jurisdiction of the court. The judgment was in fact
a final judgment of acquittal. The mere fact that the accused asked for his
acquittal after trial on the merits (after the prosecution had rested its case) is
no reason for saying that the case was "dismissed" with his express consent
and he may again be subjected to another prosecution.
From the above named statement, it is clear that what in Salico was repudiated
in Labatete was the premise that the dismissal therein was not on the merits
and not the conclusion that a dismissal, other than on the merits, sought by
the accused, is deemed to be with his express consent and therefore
constitutes a waiver of his right to plead double jeopardy in the event of an
appeal by the prosecution or a second indictment for the same offense. This
Court, in Labatete, merely pointed out that the controverted dismissal in
Salico was in fact an acquittal." Reasoning a contrario, had the dismissal not
amounted to acquittal, then the doctrine of waiver would have applied and
prevailed. As a matter of fact we believe with the majority in Salico that the
dismissal therein was not on the merits and therefore did not amount to an
acquittal:
If the prosecution fails to prove that the offense was committed within the
territorial jurisdiction of the court and the case is dismissed, the dismissal is
not an acquittal, inasmuch as if it were so the defendant could not be again
prosecuted for the same offense before a court of competent jurisdiction; and
it is elemental that in such case the defendant may again be prosecuted for
the same offense before a court of competent jurisdiction.
Granting, however, that the Salico doctrine was abandoned in Labatete, it was
resurrected in Desalisa. Moreover, Labatete never mentioned the doctrine of
estoppel enunciated in Acierto which had been repeatedly reaffirmed.
To bolster his contention that the Salico doctrine has been dropped from the
corpus of our jurisprudence, the accused cites People vs. Villarin, supra. Here
the accused appealed to the Court of First instance his conviction in the
inferior court for acts of lasciviousness with consent. After conducting the
preliminary investigation, the fiscal charged the accused with corruption of
40
minors. Villarin pleaded not guilty, and before the case could be heard, his
counsel filed a motion to dismiss on the ground that the information did not
allege facts constituting the crime charged. Acting on this motion, the trial
court dismissed the case. On appeal by the prosecution, this Court thru Mr.
Justice Felix Angelo Bautista, held that the dismissal was erroneous, but that
this error
... cannot now be remedied by setting aside the order dismissal of the court a
quo and by remanding the case to it for further proceedings as now suggested
by the prosecution considering that the case was dismissed without the
express consent of the accused even if it was upon the motion of his counsel,
for to do so would place the accused in double jeopardy. The only exception
to the rule on the matter is when the dismissal is with the consent of the
accused, and here this consent has not been obtained. (Emphasis supplied)
Villarin gives the impression, as gleaned from the above statement, that this
Court therein sustained the plea of double jeopardy on the ground that
dismissal was without the express consent of the defendant as it was ordered
"upon the motion of his counsel" and not upon motion of the defendant
himself. This conclusion is rather unfortunate and must be rectified, for the
settled rule is that the acts of counsel in a criminal prosecution bind his client.
Thus, in People vs. Romero (89 Phil. 672, July 31, 1951), this Court held
categorically that
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. (Emphasis supplied)
On this consideration alone, we cannot agree with the accused in the case at
bar that this Court in Villarin intended to abandon the Salico ruling. Had the
motion to dismiss filed by Villarin's counsel been considered as one made by
the defendant himself, as should have been done, the Villarin case should
have been resolved consistent with the doctrine of waiver in Salico and/or
that of estoppel in Acierto.
As a final citation in support of his theory, the accused in the case at bar
invokes People vs. Clolibel, supra, where this Court, in sustaining the plea of
double jeopardy interposed by the defendants, stated inter alia:
In asserting that Criminal Case No. 45717 may still be reinstated, the
petitioner adopts the ruling once followed by the Court to the effect that a
dismissal upon the defendant's own motion is a dismissal consented to by him
and, consequently, 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. (People v. Salico, 84 Phil. 772) But, this authority
has long been abandoned and the ruling therein expressly repudiated.
Thus, in the case of People v. Robles, G.R. No. L-12761, June 29, 1959, citing
People v. Bangalao, L-5610, February 17, 1954; People v. Diaz, L-6518,
March 30, 1954; People v. Abano, L-7862, May 17, 1955; and People v.
Ferrer, L-9072, October 23, 1956, We said:
... In reaching the above conclusion, this Court has not overlooked the ruling
in People vs. Salico, 47 O.G. 4765, to the effect that a dismissal upon
defendant's motion will not be a bar to another prosecution for the same
offense as said dismissal was not without the express consent of the
defendant, which ruling the prosecution now invokes in support of its appeal;
but said ruling is not now controlling, having been modified or abandoned in
subsequent cases wherein this Court sustained the theory of double jeopardy
despite the fact that dismissal was secured upon motion of the accused.
(Emphasis supplied)
Also, the rule that a dismissal upon defendant's motion will not be a bar to
another prosecution for the same offense as said dismissal is not without the
express consent of the defendant, has no application to a case where the
dismissal, as here, is predicated on the right of a defendant to a speedy trial.
(People vs. Tacneng, et al., G.R. No. L-12082, April 30, 1959). (emphasis
supplied)
The above statements must be taken in the proper context and perspective.
As previously explained, Bangalao, Ferrer, and even Labatete, did not
actually abandon the doctrine of waiver in Salico (and not one of the said
cases even implied the slightest departure from the doctrine of estoppel
41
established in Acierto). In Diaz, Abaño, Tacneng and Robles which are cited
above, like in Cloribel, the dismissals therein, all sought by the defendants,
were considered acquittals because they were all predicated on the right of a
defendant to a speedy trial and on the failure of the Government to prosecute.
Therefore, even if such dismissals were induced by the accused, the doctrines
of waiver and estoppel were obviously inapplicable for these doctrines
presuppose a dismissal not amounting to an acquittal.
This Court, through Mr. Justice Marceliano Montemayor, held in People vs.
Diaz (94 Phil. 714, March 30, 1954):
Here the prosecution was not even present on the day of trial so as to be in a
position to proceed with the presentation of evidence to prove the guilt of the
accused. The case was set for hearing twice and the prosecution without
asking for postponement or giving any explanation, just failed to appear. So
the dismissal of the case, though at the instance of defendant Diaz may,
according to what we said in the Gandicela case, be regarded as an acquittal.
(emphasis supplied)
A similar result was reached by this Court thru Mr. Justice Sabino Padilla, in
People vs. Abano (97 Phil. 28, May 27, 1955), in this wise:
After a perusal of the documents attached to the petition for a writ of
certiorari, we fail to find an abuse of discretion committed by the respondent
judge. He took pains to inquire about the nature of the ailment from which
the complaining witness claimed she was suffering. He continued the trial
three times, to wit: on 27 May, 1 and 12 June. The defendant was entitled to
a speedy trial. When on 15 June, the last day set for the resumption of the
trial, the prosecution failed to secure the continuance thereof and could not
produce further evidence because of the absence of the complaining witness,
the respondent judge was justified in dismissing the case upon motion of the
defense ... The defendant was placed in jeopardy for the offense charged in
the information and the annulment or setting aside of the order of dismissal
would place him twice in jeopardy of punishment for the same offense.
(emphasis supplied)
Then in People vs. Tacneng (L-12082, April 30, 1959), Mr. Justice Pastor
Endencia, speaking for a unanimous Court, stressed that
... when criminal case No. 1793 was called for hearing for the third time and
the fiscal was not ready to enter into trial due to the absence of his witnesses,
the herein appellees had the right to object to any further postponement and
to ask for the dismissal of the case by reason of their constitutional right to a
speedy trial; and if pursuant to that objection and petition for dismissal the
case was dismissed, such dismissal ammounted to an acquittal of the herein
appellees which can be invoked, as they did, in a second prosecution for the
same offense. (emphasis supplied)
And this Court proceeded to distinguish the case from People vs. Salico, thus:
We are fully aware that pursuant to our ruling in the case of Peo. v. Salico,
45 O.G. No. 4, 1765-1776, and later reiterated in Peo vs. Romero, L-4517-
20, July 31, 1951, a dismissal upon defendant's motion will not be a bar to
another prosecution for the same offense as said dismissal was not without
the express consent of the defendant. This ruling, however, has no application
to the instant case, since the dismissal in those cases was not predicated, as
in the case at bar, on the right of a defendant to a speedy trial, but on different
grounds. In the Salico case, the dismissal was based on the ground that the
evidence for the prosecution did not show that the crime was committed
within the territorial jurisdiction of the court which, on appeal, we found that
it was, so the case was remanded for further proceedings; and in the Romero
case the dismissal was due to the non-production of other important witnesses
by the prosecution on a date fixed by the court and under the understanding
that no further postponement at the instance of the government would be
entertained. In both cases, the right of a defendant to a speedy trial was never
put in issue. (emphasis supplied)
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.
42
In Cloribel, the case dragged for three years and eleven months, that is, from
September 27, 1958 when the information was filed to August 15, 1962 when
it was called for trial, after numerous postponements, mostly at the instance
of the prosecution. On the latter date, the prosecution failed to appear for trial,
and upon motion of defendants, the case was dismissed. This Court held "that
the dismissal here complained of was not truly a 'dismissal' but an acquittal.
For it was entered upon the defendants' insistence on their constitutional right
to speedy trial and by reason of the prosecution's failure to appear on the date
of trial." (Emphasis supplied.)

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.

The application of the sister doctrines of waiver and estoppel requires two
sine qua non conditions: first, the dismissal must be sought or induced by the
defendant personally or through his counsel; and second, 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.

ACCORDINGLY, the order appealed from is set aside. This case is hereby
remanded to the court of origin for further proceedings in accordance with
law. No costs.

43
G.R. No. L-49375 February 28, 1979
LEOPOLDO SALCEDO, petitioner,
vs.
HONORABLE JUDGE FILEMON H. MENDOZA and THE PEOPLE OF
THE PHILIPPINES, respondents.
Atienza Law Office for petitioner.
Office of the Solicitor General for respondents.
MAKASIAR, J.:
This is a petition for review on certiorari with preliminary injunction of the
order of respondent Judge Filemon H. Mendoza, dated May 8, 1978, setting
aside the order of dismissal dated March 28,1978 issued by him in Criminal
Case No. C-1061 entitled "People of the Philippines, Plaintiff, versus
Leopoldo Salcedo, Accused."
The record shows that on November 11, 1977, Provincial Fiscal Nestor M.
Andrada of Oriental Mindoro filed a criminal information of homicide
through reckless imprudence against the herein petitioner Leopoldo Salcedo,
docketed as Criminal Case No. C-1061 of the Court of First Instance of
Oriental Mindoro, Branch I.
Upon arraignment on December 19, 1977, petitioner entered a plea of not
guilty and the case was then set for trial on the merits on January 25, 1978.
When the case was called for trial on that date, Provincial Fiscal Nestor M.
Andrada asked for postponement to February 22, 1978, which was granted,
for trial on February 22, 1978, which was granted, because the accused failed
to appear. When the case was called for trial on February 22, 1978, the
prosecution, through Assistant Provincial Fiscal Emmanuel S. Panaligan,
once more moved for its postponement and the case was reset for trial on
March 28, 1987.
On March 28, 1987, when the case was called for trial, no prosecuting fiscal
appeared for the prosecution. A private prosecutor, Atty. Juan P. Adzuarra,
who withdrew his appearance from the case and reserved the right to file a
separate civil action, moved for its postponement in order to give the
prosecution another chance because they intend to request the Ministry of
Justice to appoint a special prosecutor to handle the case. The trial court,
however, denied the said motion. Whereupon, the petitioner, through counsel,
Atty. Edgardo
Aceron, moved for the dismissal of the criminal case against him invoking
his constitutional right to speedy trial and respondent Judge issued an order
dismissing the case, the pertinent portion of which reads as follows:
Atty. Edgardo Aceron moved that considering the fact that this is the third
time that this case was postponed always at the instance of the fiscal although
the first postponement was made by the provincial fiscal in behalf of the
accused who failed to appear, the Court orders the dismissal of this case with
costs de officio.
Although the government is interested in the prosecution of this case, the
Court must also take into consideration the interest of the accused for under
the Constitution he is entitled to a speedy administration of justice, hence the
dismissal of the case.
IT IS SO ORDERED. (pp. 2-3, Annex A, Petition for Certiorari, pp. 14-14A,
rec.).
On the same day, the prosecution, through Assistant Provincial Fiscal Arthur
B. Panganiban, filed a motion to reconsider the above order (Annex B,
Petition, p. 15. rec.). In an order dated March 29, 1978, the trial court denied
the motion "for lack of merit, there being no assurance that the procecuting
fiscal will promptly and adequately prosecute the case (Annex C, Petition, p.
16, rec.). His first motion for reconsideration having been denied, Assistant
Provincial Fiscal filed a filed a second motion for reconsideration which the
court set for hearing to April 20, 1978 (Annex D, Petition, p. 17, rec.).
It appears that on April 20, 1978, the trial court issued an order requiring both
parties to submit within five (5) days from that date their respective pleadings
(Annex E, Petition, p. 19, rec.). However, the parties failed to comply with
the said order. On May 8, 1978, respondent Judge entered the order here
asked to be reviewed, setting aside the order of dismissal dated March 28,
1978 and ordering that the case be set for trial on June 5, 1978, as follows:
44
Considering that both parties failed to comply with the order of the is Court
dated April 20, 1978 giving them five to days from that date to submit before
the Court their respective pleadings. the Court in the interest of justice sets
aside the order of this Court dated March 28, 1978.
Conformably with the above, let the trial of this case be set to June 5, 1978 at
1:30 o'clock in the afternoon.
Let the parties be notified accordingly.
SO ORDERED. (Annex E, Petition, p. 19, emphasis supplied).
Petitioner learned for the first time about the existence of the above order an
June 5, 1978, thus he filed on June 16, 1978 a motion for reconsideration of
the said order alleging that the dismissal of the criminal case against him was
equivalent to an acquittal and reinstatement of the same would place him
twice in joepardy for the same offense (Annex F, Petition, p. 20, rec.).
On June 20, 1978, the trial court issued an order denying petitioner's motion
for reconsideration and setting the case for trial on July 20, 1978 (Annex G,
Petition, p. 24, rec.). Unable to obtain reconsideration of the May 8, 1978
order, petitioner filed the present petition for certiorari with preliminary
injunction on November 29, 1978 reiterating his contention that the dismissal
of the criminal case. which was upon his motion, predicate on his
constitutional right to a speedy trial, amounts to an acquittal, and therefore
the reinstatement of the same criminal case against him would violate his
right against double jeopardy.
In our resolution of December 8, 1978. the Court required the respondents to
comment on the petition. The Solicitor General, on behalf of the respondents,
filed his comment on January 26, 1979 agreeing with the petitioner that "a
reinstatement of this case would operate to violate his right against double
jeopardy" (p. 4, Comment, p. 31, rec.).
The Stand of the petitioner and the solicitor General is well taken. Time and
again, We have said that the dismissal of a criminal case predicated on the
right of the accused to speedy trial, amounts to an acquittal on the merits
which bars the subsequent prosecution of the accused for the same offense.
Thus, in the case of Gandicela vs. Lutero (88 Phil. 299, 307, May 21, 1951),
We said:
If the defendant wants to exercise his constitutional right to a speedy trial, he
should ask, not for the dismissal but for the trial of the case. If the prosecution
asks for the postponement of the hearing and the court believes that the
hearing cannot be postponed anymore without violating the night of the
accused to a speedy trial, the court shall deny the postponement and proceed
with the trial and require the fiscal to present the witnesses for the
prosecution; and if the fiscal does not or cannot produce his evidence and
consequently fails to prove the defendant's guilt beyond reasonable doubt, the
Court, upon the motion of the defendant, shall dismiss the case. Such
dismissal is not in reality a mere dismissal although it is generally so called
but an acquittal of the defendant because of the prosecution's .failure to prove
the guilt of the defendant, and it will be a bar to another prosecution for the
same offense even though it was ordered by the Court upon motion or with
the express consent of the defendants, in exactly the same way as a judgment
of acquittal obtained upon the defendants motion (People vs. Salico, 84 Phil.
722). (emphasis supplied).
And in the case of People vs. Diaz (94 Phil. 714, 717, March 30, 1954),
wherein the prosecution failed to appear on the day of the trial, We reiterated
the Gandicela case, doctrine stating that:
... Here the prosecution was not even present on the day of the trial so as to
be in a position to proceed with the presentation of evidence to prove the guilt
of the accused. The case was set for hearing twice and the prosecution without
asking for postponement or giving any explanation, just failed to appear. So
the dismissal of the case, tho at the Instance of defendant Diaz may, according
to what we said in the Gandicela case,be regarded as an acquittal. (emphasis
supplied).
Likewise, in People vs. Abano (97 Phil. 28, May 17, 1955), wherein the court
dismissed the case upon the motion of the accused for failure of the
prosecution to produce its evidence, We held that:
The defendant was entitled to a speedy trial, ... The defendant was placed in
jeopardy of punishment for the offense charged in the information and the
annulment or setting aside of the order of dismissal would place him twice in
jeopardy of punishment for the same offense.
45

Furthermore, in People vs. Tacneng (L-12082, April 30, 1959), where the
Court ordered the dismissal of the case upon the motion of the accused
because the prosecution was not ready for trial after several postponements,
this court held that:
... when criminal case No. 1793 was called for hearing for the third time and
the fiscal was not ready to enter into trial due to the absence of his witnesses,
the herein appellees had the right to object to any further postponement and
to ask for the dismissal of the case by reason of their constitutional right to a
speedy trial; and if pursuant to that objection and petitioner for dismissal the
case was dismissed, such dismissal amounted to an acquittal o" the herein
appellees which can be invoked as they did, in a second prosecution for the
same offense. (emphasis supplied).
Then, in People vs. Robles (105 Phil. 1016, June 29, 1959), a case with a
similar factual setting as that of People vs, Tacneng, supra We ruled that:
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.
Later, in the 1960 case of People vs. Lasarte (107 Phil, 697, April 27, 1960),
this Court pointed out that:
... where the fiscal fails to prosecute and the judge dismiss the case, the
termination is not real dismissal but acquittal because the prosecution failed
to prove the case when the trial ,wherefore came.
And in Lagunilla vs. Honorable Reyes and Motas (1 SCRA 1364, April 29,
1961), where the court dismissed the case because of the apparent lack of
interest of the complainant to prosecute the case, this Court again ruled that:
Such dismissal made unconditionally and without reservation, after plea of
not guilty, and apparently predicated on the constitutional right of the accused
to a speedy trial is, ... equivalent to an acquittal. And being an order of
acquittal, it became final immediately after promulgation and could no longer
be recalled for correction or reconsideration (People vs. Sison, L-11669,
January 30, 1959; Catilo Abaya, 94 Phil. 1014; 50 Off. Gaz., [6] 2477; People
vs. Yelo, 83 Phil. 618; 46 Off. Gaz. [11th Supp.] 71), with or without good
reason.
In the more recent case of People vs. Cloribel (11 SCRA 805, August 31,
1964) where the Court again ordered the dismissal of the case upon notion of
the accused because of the failure of the prosecution to appear, WE had
occasion again to reiterate Our previous rulings, thus:
... the dismissal here complained of was not truly a a "dismissal" but an
acquittal. For it was entered upon the defendant's insistence on their
contitutional right to speedy trial and by reason of the prosecution's failure to
appear on the date of trial.
In the present case, the respondent Judge dismissed the case, upon the motion
of the petitioner invoking his constitutional right to speedy trial, because the
prosecution failed to appear on the day of the trial on March 28, 1978 after it
had previously been postponed twice, the first on January 26, 1978 and the
second on February 22, 1978.
The effect of such dismissal is at once clear Following the established
jurisprudence, a dismiss predicated on the right of the accused to speedy trial
upon his own motion or express consent, amounts to an acquittal which will
bar another prosecution of the accused for the same offense This is an
exception to the rule that a dismissal upon the motion or with the express
consent of the accused win not be a bar to the subsequent prosecution of the
accused for the same offense as provided for in Section 9, Rule 113 of the
Rules of Court. The moment the dismissal of a criminal case is predicated on
the right of the accused to speedy trial even if it is upon his own motion or
express consent, such dismissal is equivalent to acquittal And any attempt to
prosecute the accused for the same offense will violate the constitutional
prohibition that "no person shall be twice put in jeopardy of punishment for
the same offense (New Constitution, Article IV, Sec 22).
The setting aside by the respondent Judge on May 8, 1978 of the order of
dismissal of March 28, 1978 and thereby reviving or reinstating Criminal
Case No. C-1061 places the petitioner twice in jeopardy for the offense The
respondent Judge therefore committed a grave abuse of discretion in issuing
the order of May 8, 1978 setting aside the order of dismiss issued on March
28, 1978.
46
WHEREFORE, THE PETITION IS HEREBY GRANTED AND THE
CHALLENGED ORDER DATED MAY 8, 1978, IS HEREBY SET ASIDE
AS NULL AND VOID. NO COSTS.

47
G.R. No. 171671 June 18, 2012
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
ARISTEO E. ATIENZA, RODRIGO D. MANONGSONG, CRISPIN M.
EGARQUE, and THE HON. SANDIGANBAYAN (THIRD DIVISION),
Respondents.
DECISION
PERALTA, J.:
This is a petition for review on certiorari assailing the Resolution1 dated
February 28, 2006 of the Sandiganbayan (Third Division) granting the
Demurrer to Evidence filed by respondents Aristeo E. Atienza and Rodrigo
D. Manongsong, which effectively dismissed Criminal Case No. 26678 for
violation of Section 3 (e) of Republic Act No. 3019.
The factual and procedural antecedents are as follows:
In an Information2 filed on June 19, 2001, respondents Aristeo E. Atienza
(Mayor Atienza), then Municipal Mayor of Puerto Galera, Oriental Mindoro,
Engr. Rodrigo D. Manongsong (Engr. Manongsong), then Municipal
Engineer of Puerto Galera and Crispin M. Egarque (Egarque), a police officer
stationed in Puerto Galera, were charged before the Sandiganbayan violation
of Section 3 (e) of Republic Act No. 3019 (RA 3019), or the Anti-Graft and
Corrupt Practices Act in Criminal Case No. 26678. The Information alleged:
That on or about 04 July 2000, or sometime prior or subsequent thereto, in
the Municipality of Puerto Galera, Province of Oriental Mindoro, Philippines,
and within the jurisdiction of this Honorable Court, the above-named
accused, ARISTEO E. ATIENZA, Municipal Mayor of Puerto Galera,
Oriental Mindoro, conspiring and confederating with co-accused RODRIGO
MANONGSONG, Municipal Engineer, and CRISPIN EGARQUE, PNP
Officer, while in the performance of their official functions, committing the
offense in relation to their offices, and taking advantage of their official
positions, acting with manifest partiality, evident bad faith, did then and there
wilfully, unlawfully and criminally destroy, demolish, and dismantle the
riprap/fence of the new HONDURA BEACH RESORT owned by
complainant EDMUNDO A. EVORA located at Hondura, Puerto Galera,
Oriental Mindoro, causing undue injury to complainant in the amount of
₱8,000.00
CONTRARY TO LAW.3
Duly arraigned, respondents entered their respective pleas of not guilty to the
crime charged against them.4 After pre-trial,5 trial on the merits ensued.
To establish its case, the prosecution presented the testimonies of Mercedita
Atienza (Mercedita), Alexander Singson (Alexander), Edmundo Evora
(Edmundo), and Acting Barangay Chairman Concepcion Escanillas
(Escanillas).
Mercedita testified that she was the caretaker of Hondura Beach Resort, a
resort owned by Edmundo in Puerto Galera, Oriental Mindoro. She narrated
that on July 3, 2000, Edmundo caused the construction of a fence made of
coco lumber and G.I. sheets worth ₱5,000.00 on his resort. On July 4, 2000,
she found out that the fence that was just recently built was destroyed. Upon
the instruction of Edmundo, she reported the incident to the barangay
authorities. On July 5, 2000, Edmundo again caused the construction of a
second fence on the same property worth ₱3,000.00. However, on the day
following, the fence was again destroyed. Mercedita stated that she was
informed by some people who were there that a policeman and Engr.
Manongsong were the ones who destroyed the fence.6
Mercedita further testified that Edmundo instructed her to report the matter
to the police. When she inquired at the police station, Egarque admitted that
he destroyed the fence upon the order of Mayor Atienza. When she asked
Mayor Atienza about the incident, the latter informed her that the fence was
not good for Puerto Galera since the place was a tourist destination and that
the land was intended for the fishermen association. Mercedita added that
Engr. Manongsong admitted that he destroyed the fence upon the order of the
mayor for lack of municipal permit and that the land was intended for the
fishermen. Mercedita also stated that she reported to acting Barangay
Chairman Escanillas that it was Engr. Manongsong and Egarque who
destroyed the fence upon the order of the mayor.7
Alexander testified that he and a certain Reynaldo Gumba constructed the
fence twice on the subject property. On the morning of July 6, 2000, he saw
the fence being destroyed by Engr. Manongsong and Egarque. He said that
48
he informed Mercedita about the incident and he accompanied the latter to
the police station and the offices of Mayor Atienza and Engr. Manongsong.
They eventually reported the incident to acting Barangay Chairman
Escanillas.8
Private complainant Edmundo corroborated the testimony of Mercedita and
further stated that due to the incident, he requested the barangay chairman for
a meeting. On July 24, 2000, acting Barangay Chairman Escanillas, the
barangay secretary, Engr. Manongsong, Mercedita, Alexander, and a certain
Aguado attended the meeting at the barangay hall. Edmundo stated that when
Engr. Manongsong was asked why Edmundo was not notified of the
destruction of the fence, Engr. Manongsong replied, "Sino ka para padalhan
ng Abiso?" Edmundo said that they eventually failed to settle the case
amicably.9
Acting Barangay Chairman Escanillas testified that Mercedita and Alexander
went to her on July 4, 2000 and July 6, 2000 to report that the fence
constructed on the property of Edmundo was destroyed by Engr.
Manongsong and Egarque upon the order of Mayor Atienza. She added that
upon the request of Mercedita, she wrote Engr. Manongsong for a meeting
with Edmundo, but the parties failed to settle the dispute on the scheduled
meeting.
All the exhibits offered by the prosecution were marked in evidence and were
admitted on September 21, 2005, which consisted of, among others, machine
copies of transfer certificates of title, affidavits, and barangay blotters.10
Meanwhile, on September 22, 2004, petitioner filed a Motion to Suspend
Accused Pendente Lite,11 which was opposed by Mayor Atienza and Engr.
Manongsong. On August 4, 2005, the Sandiganbayan granted the motion.
Mayor Atienza then filed a Motion for Reconsideration,12 which petitioner
opposed.
Thereafter, on October 11, 2005, Mayor Atienza and Engr. Manongsong filed
a Motion for Leave of Court to File Motion to Acquit by Way of Demurrer
to Evidence,13 which petitioner opposed. On December 6, 2005, the court a
quo issued a Resolution14 which granted the motion. In the same resolution,
the court a quo also held in abeyance the resolution of Mayor Atienza’s
motion for reconsideration of the resolution granting his suspension from
office.
On January 9, 2006, Mayor Atienza and Engr. Manongsong filed a Demurrer
to Evidence (Motion to Acquit),15 which was anchored on the credibility of
the witnesses for the prosecution. Respondents maintain that the evidence
presented were not sufficient to hold them guilty of the offense charged. On
January 19, 2006, petitioner filed its Comment/Opposition.16
On January 23, 2006, albeit belatedly, Egarque filed a Manifestation17 that
he was adopting the Demurrer to Evidence filed by his co-accused.
On February 28, 2006, the Sandiganbayan (Third Division) issued the
assailed Resolution which, among other things, granted the Demurrer to
Evidence and dismissed the case. The decretal potion of which reads:
WHEREFORE, for lack of sufficient evidence to prove the guilt of all the
accused beyond reasonable doubt, the Demurrer to Evidence is hereby
GRANTED. This case is hereby ordered DISMISSED.
The bail bonds posted by all accused is hereby ordered CANCELLED and
RETURNED to them, subject to the usual accounting rules and regulations.
The Hold Departure Order issued by this Court against all of the accused in
this case are hereby LIFTED and SET ASIDE. Let the Commissioner of the
Bureau of Immigration and Deportation be notified accordingly.
Consequently, the Motion for Reconsideration, dated August 31, 2005, filed
by accused Atienza regarding his suspension from office pendent lite, is
hereby rendered moot and academic.
SO ORDERED.18
In granting the Demurrer to Evidence, the Sandiganbayan ratiocinated that
not all the elements of the crime charged were established by the prosecution,
particularly the element of manifest partiality on the part of respondents. The
Sandiganbayan held that the evidence adduced did not show that the
respondents favored other persons who were similarly situated with the
private complainant.
Hence, the petition assigning the following errors:
49
I.
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN
DENYING THE PEOPLE DUE PROCESS WHEN IT RESOLVED ISSUES
NOT RAISED BY RESPONDENTS IN THEIR DEMURRER TO
EVIDENCE, WITHOUT AFFORDING THE PROSECUTION AN
OPPORTUNITY TO BE HEARD THEREON.
II.
WHETHER OR NOT THE COURT A QUO GRAVELY ERRED IN
DECIDING A QUESTION OF SUBSTANCE NOT IN ACCORD WITH
LAW OR EXISTING JURISPRUDENCE WHEN IT CONSIDERED
MATTERS OF DEFENSE.19
Petitioner contends that the prosecution was not afforded due process when
the Sandiganbayan granted the Demurrer to Evidence based on the ground
that the prosecution failed to establish bad faith on the part of the respondents.
Petitioner argues that the Sandiganbayan should have resolved the Demurrer
to Evidence based on the argument of the respondent questioning the
credibility of petitioner’s witnesses and the admissibility of their testimonies
in evidence, not upon an issue which petitioner was not given an opportunity
to be heard, thus, effectively denying the prosecution due process of law.
Petitioner maintains that contrary to the conclusion of the court a quo there
was evident bad faith on the part of the respondents. Petitioner insists that the
act itself of demolishing a fence erected upon private property without giving
notice of the intended demolition, and without giving the owner of the same
the opportunity to be heard or to rectify matters, is evident bad faith.
Petitioner also contends that the element of manifest partiality was
sufficiently established when the fence was destroyed on the rationale that
they do not have a permit to erect the fence; the place was intended for the
benefit of fishermen; and it was a tourist spot. Moreover, the demolition was
allegedly done in the guise of official business when the fence was
demolished on the basis of the above-stated purpose.
Finally, petitioner argues that the constitutional proscription on double
jeopardy does not apply in the present case.
On their part, respondents argue that the Sandiganbayan was correct in
granting the Demurrer to Evidence and dismissing the case. Respondents
allege that the prosecution was not denied due process of law. Respondents
maintain that the prosecution was given every opportunity to be heard. In fact,
the assailed resolution was issued after the prosecution has rested its case.
Moreover, respondents insist their right against double jeopardy must be
upheld.
The petition is bereft of merit.
SEC. 3. Corrupt practices of public officers. — In addition to acts or
omissions of public officers already penalized by existing law, the following
shall constitute corrupt practices of any public officer and are hereby declared
to be unlawful:
xxxx
(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or preference
in the discharge of his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence. This
provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other
concessions.
This crime has the following essential elements:
1. The accused must be a public officer discharging administrative, judicial
or official functions;
2. He must have acted with manifest partiality, evident bad faith or gross
inexcusable negligence; and
3. His action caused any undue injury to any party, including the government,
or gave any private party unwarranted benefits, advantage or preference in
the discharge of his functions.20
In the case at bar, the Sandiganbayan granted the Demurrer to Evidence on
the ground that the prosecution failed to establish the second element of
violation of Section 3 (e) of RA 3019.
50
The second element provides the different modes by which the crime may be
committed, that is, through "manifest partiality," "evident bad faith," or
"gross inexcusable negligence."21 In Uriarte v. People,22 this Court
explained that Section 3 (e) of RA 3019 may be committed either by dolo, as
when the accused acted with evident bad faith or manifest partiality, or by
culpa, as when the accused committed gross inexcusable negligence. There
is "manifest partiality" when there is a clear, notorious, or plain inclination or
predilection to favor one side or person rather than another. "Evident bad
faith" connotes not only bad judgment but also palpably and patently
fraudulent and dishonest purpose to do moral obliquity or conscious
wrongdoing for some perverse motive or ill will. "Evident bad faith"
contemplates a state of mind affirmatively operating with furtive design or
with some motive of self-interest or ill will or for ulterior purposes. "Gross
inexcusable negligence" refers to negligence characterized by the want of
even the slightest care, acting or omitting to act in a situation where there is
a duty to act, not inadvertently but wilfully and intentionally, with conscious
indifference to consequences insofar as other persons may be affected.23
As aptly concluded by the Sandiganbayan in the assailed resolution, the
second element of the crime as charged was not sufficiently established by
the prosecution, to wit:
I.
The presence of the first element of this offense was not disputed. The
prosecution established that accused-movants were public officers, being
then the Mayor, Municipal Engineer, and member of the PNP, at the time
alleged in the information.
II.
Anent the second element, did the act of destroying the subject fences on July
4, 2000 and on July 6, 2000 allegedly by accused Manongsong and Egarque,
without giving any notice to the private complainant, amount to manifest
partiality and/or evident bad faith as indicated in the information?
Manifest partiality and evident bad faith are modes that are separate and
distinct from each other so that the existence of any of these two modes would
be sufficient to satisfy the second element. x x x
xxxx
Manifest partiality was not present in this case. The evidence adduced did not
show that accused-movants favored other persons who were similarly
situated with the private complainant.
Eyewitness Alexander Singson categorically pointed accused Manongsong
and Egarque as the persons who destroyed/removed the second fence. Private
complainant lamented that he was not even given notice of their intent to
destroy the fence. However, the same could not be considered evident bad
faith as the prosecution evidence failed to show that the destruction was for a
dishonest purpose, ill will or self interest. In fact, the following testimonial
evidence presented by the prosecution itself showed that:
1. Mercedita Atienza revealed that when she confronted Manongsong why he
destroyed the subject fences, the latter replied that "You don’t have permit
and the land is for the fishermen";
2. Alexander Singson corroborated that Manongsong told them that "they
destroyed the fence because it is a tourist spot and it is also a port for the
fishermen"; and
3. Mercedita Atienza also testified that when she asked accused Atienza about
the incident, the latter told her "Masama and pinabakod mo. Alam mo
namang tourist spot ang Puerto Galera at para sa fishermen’s association
yan."
III.
Considering that the second element was not present, the Court deemed it
proper not to discuss the third element.24
Moreover, contrary to petitioner’s contention, the prosecution was not denied
due process. It is to be noted that the prosecution participated in all the
proceedings before the court a quo and has filed numerous pleadings and
oppositions to the motions filed by respondent. In fact, the prosecution has
already rested its case and submitted its evidence when the demurrer was
filed. Where the opportunity to be heard, either through verbal arguments or
pleadings, is accorded, and the party can present its side or defend its interests
51
in due course, there is no denial of procedural due process.25 What is present its case or where the trial was a sham, thus, rendering the assailed
repugnant to due process is the denial of the opportunity to be heard,26 which judgment void. The burden is on the petitioner to clearly demonstrate that the
is not present here. trial court blatantly abused its authority to a point so grave as to deprive it of
its very power to dispense justice.31 In the present case, no such
Clearly, double jeopardy has set in. The elements of double jeopardy are (1) circumstances exist to warrant a departure from the general rule and reverse
the complaint or information was sufficient in form and substance to sustain the findings of the Sandiganbayan.1âwphi1
a conviction; (2) the court had jurisdiction; (3) the accused had been arraigned
and had pleaded; and (4) the accused was convicted or acquitted, or the case WHEREFORE, premises considered, the petition is DENIED. The
was dismissed without his express consent.27 Resolution dated February 28, 2006 of the Sandiganbayan, in Criminal Case
No. 26678, is AFFIRMED.
The above elements are all attendant in the present case: (1) the Information
filed before the Sandiganbayan in Criminal Case No. 26678 against SO ORDERED.
respondents were sufficient in form and substance to sustain a conviction; (2)
the Sandiganbayan had jurisdiction over Criminal Case No. 26678; (3)
respondents were arraigned and entered their respective pleas of not guilty;
and (4) the Sandiganbayan dismissed Criminal Case No. 26678 on a
Demurrer to Evidence on the ground that not all the elements of the offense
as charge exist in the case at bar, which amounts to an acquittal from which
no appeal can be had.

In People v. Sandiganbayan,28 this Court elucidated the general rule that the
grant of a demurrer to evidence operates as an acquittal and is, thus, final and
unappealable, to wit:

The demurrer to evidence in criminal cases, such as the one at bar, is "filed
after the prosecution had rested its case," and when the same is granted, it
calls "for an appreciation of the evidence adduced by the prosecution 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."
Such dismissal of a criminal case by the grant of demurrer to evidence may
not be appealed, for to do so would be to place the accused in double
jeopardy. The verdict being one of acquittal, the case ends there.29

Verily, in criminal cases, the grant of demurrer30 is tantamount to an acquittal

and the dismissal order may not be appealed because this would place the
accused in double jeopardy. Although the dismissal order is not subject to
appeal, it is still reviewable but only through certiorari under Rule 65 of the
Rules of Court. For the writ to issue, the trial court must be shown to have
acted with grave abuse of discretion amounting to lack or excess of
jurisdiction such as where the prosecution was denied the opportunity to

52
[G.R. No. 127444. September 13, 2000]
PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. TIRSO D. C.
VELASCO in his capacity as the Presiding Judge, RTC-Br. 88, Quezon City,
and HONORATO GALVEZ, respondents.
DECISION
BELLOSILLO, J.:
This case nudges the Court to revisit the doctrine on double jeopardy, a
revered constitutional safeguard against exposing the accused to the risk of
answering twice for the same offense. In this case, after trial on the merits,
the accused was acquitted for insufficiency of the evidence against him in the
cases for murder and frustrated murder (although his co-accused was
convicted), and finding in the illegal carrying of firearm that the act charged
did not constitute a violation of law. But the State through this petition for
certiorari would want his acquittal reversed.
We narrate a brief factual backdrop.
The idyllic morning calm in San Ildefonso, Bulacan, a small town north of
Manila, was shattered by gunshots fired in rapid succession. The shooting
claimed the life of young Alex Vinculado and seriously maimed his twin
brother Levi who permanently lost his left vision. Their uncle, Miguel
Vinculado, Jr. was also shot. A slug tunneled through his right arm, pierced
the right side of his body and burrowed in his stomach where it remained until
extracted by surgical procedure.
As a consequence, three (3) criminal Informations - one (1) for homicide and
two (2) for frustrated homicide - were originally filed before the Regional
Trial Court of Malolos, Bulacan, against Honorato Galvez, Mayor of San
Ildefonso, and Godofredo Diego, a municipal employee and alleged
bodyguard of the mayor. On 14 December 1993, however, the charges were
withdrawn and a new set filed against the same accused upgrading the crimes
to murder (Crim. Case No. 4004-M-93) and frustrated murder (Crim. Cases
Nos. 4005-M-93 and 4006-M-93). Mayor Galvez was charged, in addition,
with violation of PD 1866 (Crim. Case No. 4007-M-94) for unauthorized
carrying of firearm outside his residence; hence, a fourth Information had to
be filed.
After a series of legal maneuvers by the parties, venue of the cases was
transferred to the Regional Trial Court of Quezon City, Metro Manila. There
the cases were stamped with new docket numbers (Nos. Q-94-55484, Q-94-
55485, Q-94-55486 and Q-94-55487, respectively), and raffled to Branch 103
presided over by Judge Jaime Salazar, Jr. In the course of the proceedings,
the judge inhibited himself and the cases were re-raffled to respondent Judge
Tirso D.C. Velasco of Branch 89.
On 8 October 1996 a consolidated decision on the four (4) cases was
promulgated. The trial court found the accused Godofredo Diego guilty
beyond reasonable doubt of the crimes of murder and double frustrated
murder. However, it acquitted Mayor Honorato Galvez of the same charges
due to insufficiency of evidence. It also absolved him from the charge of
illegal carrying of firearm upon its finding that the act was not a violation of
law.
The acquittal of accused Honorato Galvez is now vigorously challenged by
the Government before this Court in a Petition for Certiorari under Rule 65
of the Rules of Court and Sec. 1, Art. VIII, of the Constitution. It is the
submission of petitioner that the exculpation of the accused Galvez from all
criminal responsibility by respondent Judge Tirso Velasco constitutes grave
abuse of discretion amounting to lack of jurisdiction. Allegedly, in holding in
favor of Galvez, the judge deliberately and wrongfully disregarded certain
facts and evidence on record which, if judiciously considered, would have led
to a finding of guilt of the accused beyond reasonable doubt. Petitioner
proposes that this patently gross judicial indiscretion and arbitrariness should
be rectified by a re-examination of the evidence by the Court upon a
determination that a review of the case will not transgress the constitutional
guarantee against double jeopardy. It is urged that this is necessary because
the judgment of acquittal should be nullified and substituted with a verdict of
guilt.
The main hypothesis of the Government is that elevating the issue of criminal
culpability of private respondent Galvez before this Tribunal despite acquittal
by the trial court should not be considered violative of the constitutional right
of the accused against double jeopardy, for it is now settled constitutional
doctrine in the United States that the Double Jeopardy Clause permits a
review of acquittals decreed by US trial magistrates where, as in this case, no
retrial is required should judgment be overturned.[1] Since Philippine
53
concepts on double jeopardy have been sourced from American constitutional
principles, statutes and jurisprudence, particularly the case of Kepner v.
United States,[2] and because similarly in this jurisdiction a retrial does not
follow in the event an acquittal on appeal is reversed, double jeopardy should
also be allowed to take the same directional course. Petitioner in this regard
urges the Court to take a second look at Kepner, it being the "cornerstone of
the battlement of the Double Jeopardy Clause" in the Philippines[3] and
seriously examine whether the precedents it established almost a century ago
are still germane and useful today in view of certain modifications wrought
on the doctrine by the succeeding American cases of United States v.
Wilson[4] and United States v. Scott.[5]
Two (2) threshold issues therefore, interlocked as they are, beg to be
addressed. One is the propriety of certiorari as an extraordinary mode of
review under Rule 65 of the Rules of Court where the result actually intended
is the reversal of the acquittal of private respondent Galvez. The other is the
permissibility of a review by the Court of a judgment of acquittal in light of
the constitutional interdict against double jeopardy.
The recent untimely demise of respondent Galvez at the hands of alleged
assassins (not discounting too the earlier dismissal of respondent judge from
the service) may arguably have rendered these matters moot and academic,
thus calling for a dismissal of the petition on this basis alone. The Court
however is not insensitive to nor oblivious of the paramount nature and object
of the pleas forcefully presented by the Government considering especially
the alleged new directions in American jurisprudence taken by the doctrine
of double jeopardy. We are thus impelled to respond to the issues advanced
by petitioner for these bear unquestionably far-reaching contextual
significance and implications in Philippine juristic philosophy and
experience, demanding no less, explicit and definitive rulings.
For it may be argued from a historico-analytical perspective that perhaps none
of the constitutionally ensconced rights of men has followed a more
circuitous and tortuous route in the vast sea of jurisprudence than the right of
a person not to be tried or prosecuted a second time for the same offense.[6]
This prohibition does not consist merely of one rule but several, each rule
applying to a different situation, each rule marooned in a sea of exceptions.[7]
It must have been this unique transpiration that prompted even the
redoubtable Mr. Justice Rehnquist of the U.S. Supreme Court to remark in
Albernaz v. United States[8] that "the decisional law (in the area of double
jeopardy) is a veritable Sargasso Sea which could not fail to challenge the
most intrepid judicial navigator." It is therefore necessary that, in forming a
correct perspective and full understanding of the doctrine on double jeopardy
and the rules so far established relative to the effect thereon of appeals of
judgments of acquittal, a compendious review of its historical growth and
development be undertaken. This approach is particularly helpful in properly
situating and analyzing landmark interpretive applications of the doctrine in
light of the varying legal and factual milieu under which it evolved.
Jeopardy, itself "a fine poetic word,"[9] derives from the Latin "jocus"
meaning joke, jest or game,[10] and also from the French term "jeu perdre"
which denotes a game that one might lose. Similarly, the Middle English
word "iuparti" or "jupartie" means an uncertain game.[11] The genesis of the
concept itself however rests deep in the ancient Grecian view of tragedy and
suffering and in the old Roman legal concepts of punishment. Greek law
bound prosecutor and judge to the original verdict as can be seen in the
remark of Demosthenes in 355 B. C. that "the laws forbid the same man to be
tried twice on the same issue."[12] The Justinian Digest[13] providing that
"(a) governor should not permit the same person to be again accused of crime
of which he has been acquitted,"[14] suggests certain philosophical
underpinnings believed to have been influenced by works of the great Greek
tragedians of the 5th century B.C. reflecting mans "tragic vision" or the tragic
view of life. For the ancient Greeks believed that man was continuously pitted
against a superior force that dictated his own destiny. But this prevailing view
was not to be taken in the sense of man passing from one misfortune to
another without relief, as this idea was repugnant to Greek sensibilities.
Rather, it expressed a universal concept of catharsis or vindication that meant
misfortune resolving itself into a final triumph, and persecution, into freedom
and liberation. To suffer twice for the same misfortune was anathema to
ancient thought.
The 18th century B. C. Babylonian king and lawgiver Hammurabi recognized
that humans could err in prosecuting and rendering judgment, thus limits
were needed on prosecutors and judges. A gruesome but effective way of
preventing a second trial by the same prosecutor after an acquittal can be
found in the first law of the Hammurabic Code: "If a man has accused a man
and has charged him with manslaughter and then has not proved [it against
him], his accuser shall be put to death."[15]
54
The repugnance to double trials strongly expressed by the Catholic Church is
consistent with the interpretation by St. Jerome in 391 A. D. of the promise
by God to his people through the prophet Nahum that "(a)ffliction shall not
rise up the second time"[16] and "(t)hough I have afflicted thee, I will afflict
thee no more."[17] Taken to mean that God does not punish twice for the
same act, the maxim insinuated itself into canon law as early as 847 A. D.,
succintly phrased as "(n)ot even God judges twice for the same act."[18]
The most famous cause clbre on double jeopardy in the Middle Ages was the
dispute between the English King Henry II and his good friend, Thomas
Becket, Archbishop of Canterbury. Henry wished to continue the observance
of certain customs initiated by his predecessors called "avitae consuetudines,"
one of the known purposes of which was that clerics convicted of crimes
before Church courts be delivered to lay tribunals for punishment. He
asserted in the Constitutions of Clarendon that the clergy were also subject to
the kings punishment. This was met with stinging criticism and stiff
opposition by the Archbishop who believed that allowing this practice would
expose the clergy to double jeopardy. The issue between the two erstwhile
friends was never resolved and remained open-ended, for Thomas was later
on mercilessly murdered in his cathedral, allegedly at the instance of his
king.[19]
It was in England though, a century ago, that double jeopardy was formally
institutionalized "as a maxim of common law"[20] based on the universal
principles of reason, justice and conscience, about which the Roman Cicero
commented: "Nor is it one thing at Rome and another at Athens, one now and
another in the future, but among all nations, it is the same."[21] But even as
early as the 15th century, the English courts already began to use the term
"jeopardy" in connection with the doctrine against multiple trials.[22]
Thereafter, the principle appeared in the writings of Hale (17th c.), Lord Coke
(17th c.) and Blackstone (18th c.).[23] Lord Coke for instance described the
protection afforded by the rule as a function of three (3) related common law
pleas: autrefois acquit, autrefois convict and pardon.[24] In Vauxs Case,[25]
it was accepted as established that "the life of a man shall not be twice put in
jeopardy for one and the same offense, and that is the reason and cause that
autrefois acquitted or convicted of the same offense is a good plea x x x x"
Blackstone likewise observed that the plea of autrefois acquit or a formal
acquittal is grounded on the universal maxim of the common law of England
that "(n)o man is to be brought into jeopardy of his life more than once for
the same offense. And hence, it is allowed as a consequence that when a man
is once fairly found not guilty upon any indictment, or other prosecution
before any court having competent jurisdiction of the offense, he may plead
such acquittal in bar of any subsequent accusation for the same crime.[26]
The English dogma on double jeopardy, recognized as an indispensable
requirement of a civilized criminal procedure, became an integral part of the
legal system of the English colonies in America. The Massachusetts Body of
Liberties of 1641, an early compilation of principles drawn from the statutes
and common law of England, grandly proclaimed that "(n)o man shall be
twise sentenced by Civill Justice for one and the same crime, offence or
Trespasse" and that "(e)verie Action betweene partie and partie, and
proceedings against delinquents in Criminall causes shall be briefly and
destinctly entered on the Rolles of every Court by the Recorder thereof."[27]
Ineluctably, this pronouncement became the springboard for the proposal of
the First Congress of the United States that double jeopardy be included in
the Bill of Rights. It acknowledged that the tradition against placing an
individual twice in danger of a second prosecution for the same offense
followed ancient precedents in English law and legislation derived from
colonial experiences and necessities. Providing abundant grist for
impassioned debate in the US Congress, the proposal was subsequently
ratified as part of the Fifth Amendment to the Constitution.
In 1817 the Supreme Court of Tennessee dismissed an appeal by the State
after an acquittal from perjury, declaring that: A writ of error, or appeal in the
nature of a writ of error, will not lie for the State in such a case. It is a rule of
common law that no one shall be brought twice into jeopardy for one and the
same offense. Were it not for this salutary rule, one obnoxious to the
government might be harassed and run down by repeated attempts to carry
on a prosecution against him. Because of this rule, a new trial cannot be
granted in a criminal case where the defendant is acquitted. A writ of error
will lie for the defendant, but not against him.[28] Verily, these concepts were
founded upon that great fundamental rule of common law, "Nemo debet bis
vexari pro una et eadem causa," in substance expressed in the Constitution of
the United States as: "Nor shall any person be subject for the same offense,
to be twice put into jeopardy of life or limb." It is in the spirit of this benign
rule of the common law, embodied in the Federal Constitution - a spirit of
liberty and justice, tempered with mercy - that, in several states of the Union,
in criminal cases, a writ of error has been denied to the State.[29]
55
The relationship between the prohibition against second jeopardy and the
power to order a new trial following conviction or dismissal stirred a no small
amount of controversy in United States v. Gibert.[30] There, Mr. Justice
Story, on circuit, declared that "the court had no power to grant a new trial
when the first trial had been duly had on a valid indictment before a court of
competent jurisdiction." The opinion formulated was that the prohibition
against double jeopardy applied equally whether the defendant had been
acquitted or convicted.
But it must be noted that even in those times, the power to grant a new trial
in the most serious cases was already being exercised by many American
courts, the practice having been observed from an early date, in spite of
provisions of law against double jeopardy.[31] For this reason, the rule in
Gibert was stoutly resisted.[32] As if to taunt Gibert, the 1839 case of United
States v. Keen[33] declared that the constitutional provision did not prohibit
a new trial on defendants motion after a conviction. In Hopt v. Utah,[34] the
defendant was retried three (3) times following reversals of his convictions.
Then in 1896 the U.S. Supreme Court in United States v. Ball[35] affirmed
that the double jeopardy rule did not prevent a second trial when, on appeal,
a conviction had been set aside. It declared that a defendant who procured on
appeal a reversal of a judgment against him could be tried anew upon the
same indictment or upon another indictment for the same offense of which he
had been convicted. This principle of autrefois convict was expanded nine (9)
years later in Trono v. United States[36] where the Court affirmed the
judgment of the Supreme Court of the Philippines by holding that "since the
plaintiffs in error had appealed their convictions of the lower offense in order
to secure a reversal, there was no bar to convicting them of the higher offense
in proceedings in the appellate court that were tantamount to a new trial." Mr.
Justice Peckham, holding for the Court, concluded that "the better doctrine is
that which does not limit the court or the jury upon a new trial, to a
consideration of the question of guilt of the lower offense of which the
accused was convicted on the first trial, but that the reversal of the judgment
of conviction opens up the whole controversy and acts upon the original
judgment as if it had never been."[37] It was ratiocinated that the result was
justified not only on the theory that the accused had waived their right not to
be retried but also on the ground that "the constitutional provision was really
never intended to x x x cover the case of a judgment x x x which has been
annulled at the request of the accused x x x x"
It must be stressed though that Ball also principally ruled that it had long been
settled under the Fifth Amendment that a verdict of acquittal is final, ending
a defendants jeopardy, and, even when not followed by any judgment, is a
bar to a subsequent prosecution for the same offense. It is one of the elemental
principles of our criminal law that the Government cannot secure a new trial
by means of an appeal, even though an acquittal may appear to be erroneous.
In 1891 the United States Judiciary Act was passed providing that appeals or
writs of error may be taken from the district court or from the existing circuit
courts direct to the Supreme Court in any case that involved the construction
of the Constitution. The following year an issue was raised in United States
v. Sanges[38] on whether this Act conferred upon the government the right
to sue out a writ of error in any criminal case. In that case, existing rules on
double jeopardy took a significant turn when the United States Supreme
Court observed that while English law was vague on the matter, it had been
settled by overwhelming American authority that the State had no right to sue
out a writ of error upon a judgment in favor of the defendant in a criminal
case, except under and in accordance with express statutes, whether that
judgment was rendered upon a verdict of acquittal, or upon the determination
by the court of a question of law. The Court noted that in a few states,
decisions denying a writ of error to the State after a judgment for the
defendant on a verdict of acquittal proceeded upon the ground that to grant it
would be to put him twice in jeopardy, in violation of the constitutional
provision.[39] Sanges therefore fixed the rule that absent explicit legislative
authority, the United States Government had no right of appeal in criminal
cases in case of an acquittal as it would expose the defendant twice to
jeopardy.
Notably, however, in 1892 the Attorneys General of the United States began
to recommend the passage of legislation allowing the Government to appeal
in criminal cases. Their primary objective was to resist the power of a single
district judge (under the law then obtaining) by dismissing an indictment to
defeat any criminal prosecution instituted by the Government. No action was
taken on the proposal until 1906 when President Theodore Roosevelt in his
annual message to the US Congress demanded the enactment of legislation
on the matter. Consequently, on 2 March 1907 such legislative authority was
provided when the Criminal Appeals Act became a law[40]40 Ch. 2564, 34
Stat. 1246.40 permitting the United States to seek a writ of error from the
Supreme Court from any decision dismissing all indictment on the basis of
the "invalidity or construction of the statute upon which the indictments is
56
founded."[41] The law narrowed the right to appeal by the Government to
cases in which the ground of the District Courts decision was invalidity or
construction of the statute upon which the charge was founded, and that a
verdict in favor of the defendant based on evidence could not be set aside on
appeal no matter how erroneous the legal theory upon which it may be based.
For these purposes, it made no difference whether the verdict be the result of
the jurys decision or that of the judge. In other words, Government could
appeal from a decision dismissing an indictment or arresting judgment on the
basis of the statutory invalidity or misconstruction of the pertinent criminal
statute and from a decision sustaining a special plea in bar, so long as the
defendant would not be put in jeopardy.[42]
On 10 December 1898 the Philippine Islands was ceded by Spain to the
United States by virtue of the Treaty of Paris of 1898 which was ratified by
the State Parties on 11 April 1899. The Islands was placed under military rule
until the establishment of the Philippine Commission in 1902. On 23 April
1900 the military government issued General Order No. 58 which amended
the Code of Criminal Procedure then in force by, among others, extending to
the Islands the double jeopardy provision under the Fifth Amendment of the
US Constitution. This was pursuant to the 7 April 1900 Instructions of
President McKinley issued to the Philippine Commission headed by William
Howard Taft. The Instructions read in part: x x x the Commission should bear
in mind, and the people of the Islands should be made to understand, that
there are certain great principles of government which have been made the
basis of our governmental system, which we deem essential to the rule of law
x x x and maintained in their islands for the sake of their liberty and
happiness, however much they may conflict with the customs or laws of
procedure with which they are familiar x x x x Upon every division and
branch of the Government of the Philippines therefore must be imposed these
inviolable rules: x x x that x x x no person shall be put twice in jeopardy for
the same offense x x x x"[43]
General Order No. 58 was amended by Act No. 194 which permitted an
appeal by the government after acquittal. The Philippine Civil Government
Act of 1 July 1902 of the U.S. Congress repealed the Act, adopted and
restored the same principle in Gen. Order No. 58 as enunciated in the Fifth
Amendment and in McKinleys Instructions by providing immunity from
second jeopardy for the same criminal offense. It did not take long however
for the meaning and significance of the doctrine held forth in McKinleys
Instructions to be placed under severe test and scrutiny.
In 1901 Mr. Thomas E. Kepner, a practicing lawyer in Manila, Philippines,
was charged with embezzlement of funds (estafa). He was tried by a court of
first instance, minus a jury, and was acquitted of the crime. The U.S.
Government appealed to the Supreme Court of the Philippine Islands and
judgment was reversed. Kepner was sentenced with imprisonment and
suspended from public office or place of trust.
Questioning his conviction before the US Supreme Court, Kepner argued that
the appeal by the US government to the Philippine Supreme Court of his
judgment of acquittal constituted double jeopardy construed in light of
existing US jurisprudence. On the other hand, the Attorney General for the
Philippines and the Solicitor General of the United States jointly contended
that the Philippine Bill of 1 July 1902 which included the prohibition against
double jeopardy should be construed from the perspective of the system of
laws prevailing in the Philippines prior to its cession to the United States.
Under this system, the Audiencia (Supreme Court) could entertain an appeal
of a judgment of acquittal since the proceedings before it were regarded not
as a new trial but an extension of preliminary proceedings in the court of first
instance. The entire proceedings constituted one continuous trial and the
jeopardy that attached in the court of first instance did not terminate until final
judgment had been rendered by the Audiencia. Double jeopardy was
described not only in the Spanish law Fuero Real[44] as: After a man accused
of any crime has been acquitted by the court, no one can afterwards accuse
him of the same offense (except in certain specified cases), but also in the
Siete Partidas[45] which provided that: If a man is acquitted by a valid
judgment of any offense of which he has been accused, no other person can
afterwards accuse him of the offense x x x x Under this system of law, a
person was not regarded as jeopardized in the legal sense until there had been
a final judgment in the court of last resort. The lower courts then were deemed
examining courts, exercising preliminary jurisdiction only, and the accused
was not finally convicted or acquitted until the case had been passed upon in
the Audiencia or Supreme Court, whose judgment was subject to review by
the Supreme Court in Madrid (Spain) for errors of law, with power to grant a
new trial.
The U.S. Supreme Court however threw out the Governments argument and
held that the proceedings after acquittal had placed the accused Kepner twice
in jeopardy. It declared in no uncertain terms that the appeal of the judgment
of conviction was in essence a trial de novo and that, whatever the Spanish
57
tradition was, the purpose of Congress was to carry some at least of the
essential principles of American constitutional jurisprudence to the Islands
and to engraft them upon the law of these people newly subject to its
jurisdiction. There was little question therefore that Kepner soldered into
American jurisprudence the precedent that as to the defendant who had been
acquitted by the verdict duly returned and received, the court could take no
other action than to order his discharge. x x x (I)t is then the settled law of
this court that former jeopardy includes one who has been acquitted by a
verdict duly rendered, although no judgment be entered on the verdict, and it
was found upon a defective indictment. The protection is not x x x against the
peril of second punishment, but against being tried again for the same
offense."[46]
This doctrine was echoed in United States v. Wills[47] where the Court
further clarified that jeopardy implies an exposure to a lawful conviction for
an offense of which a person has already been acquitted x x x x It was
reiterated in 1957 in Green v. United States[48] in which Mr. Justice Black,
writing for the Court, professed that the constitutional prohibition against
double jeopardy was designed to protect an individual from being subjected
to the hazards of trial and possible conviction more than once for an alleged
offense. Thus, under the Fifth Amendment, a verdict of acquittal was
considered final, ending the accuseds jeopardy and that once a person has
been acquitted of an offense, he cannot be prosecuted again on the same
charge.
American jurisprudence on the effect of appealed acquittals on double
jeopardy since then sailed on, following the main sea lanes charted by
Kepner, but not without encountering perturbance along the way. For it may
be mentioned, albeit en passant, that the case of Bartkus v. Illinois[49] did
cause some amount of judicial soul-shaking in 1959 when it burst into the
scene. Alfonse Bartkus was tried before a federal district court in Illinois and
was later acquitted by the jury. Less than a year later, Bartkus was indicted
this time by an Illinois grand jury on facts substantially identical to those of
the federal charge and was subsequently convicted. His conviction was
affirmed by the Illinois Supreme Court.
On certiorari, the U.S. Supreme Court, by a close vote of 5 to 4, affirmed the
conviction. The Court, speaking through Mr. Justice Frankfurter, declared
that the Fifth Amendments double jeopardy provision was inapplicable to
states so that an acquittal of a federal indictment was no bar to a prosecution
by a state based on the same charge. Since there was no proof offered to show
that the participation of the federal authorities in the Illinois state prosecution
was of such nature as to render the state proceedings a mere cover for a
federal prosecution to render the state indictment essentially a
constitutionally prohibited second prosecution, no double jeopardy attached.
Mr. Justice Black dissented, joined in by Mr. Chief Justice Warren and Mr.
Justice Douglas, with Mr. Justice Brennan writing a separate dissenting
opinion. Black rued that the Courts ruling by a majority of one only resulted
in "further limiting the already weakened constitutional guarantees against
double prosecution," citing the earlier case of United States v. Lanza,[50]
where the Court allowed the federal conviction and punishment of a man
previously convicted and punished for identical acts by a state court. The
dissent called attention to the fact that in Bartkus, for the first time in its
history, the Court allowed the state conviction of a defendant already
acquitted of the same offense in the federal court. This, Mr. Justice Black
asserted, was unacceptable, for as the Court previously found in Palko v.
Connecticut,[51] "double prosecutions for the same offense are so contrary
to the spirit of our free country that they violate even the prevailing view of
the Fourteenth Amendment since some of the privileges and immunities of
the Bill of Rights . . . have been taken over and brought within the Fourteenth
Amendment by process of absorption x x x x One may infer, from the fewness
of the cases, that retrials after acquittal have been considered particularly
obnoxious, worse even, in the eyes of many, than retrials after conviction."
Whether such forceful pronouncements steered back into course meandering
views on double jeopardy is open to question. Nonetheless, the case of Fong
Foo v. United States,[52] decided per curiam, reaffirmed the pronouncements
in Ball and Kepner that "the verdict of acquittal was final, and could not be
reviewed x x x without putting (the petitioners) twice in jeopardy, and thereby
violating the Constitution."
In the meantime, from 1907 up to 1970 the Criminal Appeals Act underwent
significant alterations. The 1942 amendment of its Section 682 permitted for
the first time appeals to the circuit appeals court from orders sustaining
demurrer to indictment in cases not directly appealable to the Supreme
Court.[53] However, due to the many modifications the law was subjected to,
construction and interpretation became more laborious, effectively
transforming appeals into highly technical procedures. As such, the Criminal
Appeals Act developed into a judicial bete noire, for even the U.S. Supreme
58
Court itself had "to struggle in a number of occasions with the vagaries of the
said Act."[54] In one of those unhappy efforts, it concluded that the Act was
"a failure x x x a most unruly child that has not improved with age."[55]
The U.S. Congress finally got rid of the dismal statute in 1970 and replaced
it with a new Criminal Appeals Act intended to broaden the right of
Government to appeal whenever the Constitution would permit. It was
apparent that the legislative body left to the courts the prerogative to draw the
constitutional limits of double jeopardy rather than define them itself. Since
then, pronouncements by the courts on the jouble jeopardy guarantee of the
Fifth Amendment focused on three (3) related protections: against a second
prosecution for the same offense after acquittal; against a second prosecution
for the same offense after conviction; and, against multiple punishments for
the same offense.[56]
In Wilson,[57] the Court expressed that the interests underlying these three
(3) protections are quite similar. Thus, when a defendant has been once
convicted and punished for a particular crime, principles of fairness and
finality require that he be not subjected to the possibility of further
punishment by being tried or sentenced for the same offense.[58] And when
a defendant has been acquitted of an offense, the Clause guarantees that the
State shall not be permitted to make repeated attempts to convict him,
"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."[59] It can thus be inferred from these cases that the policy of avoiding
multiple trials has been considered paramount so that exceptions to the rule
have been permitted only in few instances and under rigid conditions.
Accordingly, in United States v. Scott[60] the US Supreme Court synthesized
two (2) venerable principles of double jeopardy jurisprudence: first, the
successful appeal of a judgment of conviction on any ground other than the
insufficiency of the evidence to support the verdict poses no bar to further
prosecution on the same charge; and second, a judgment of acquittal, whether
based on a jury verdict of not guilty or on a ruling by the court that the
evidence is insufficient to convict, may not be appealed and terminates the
prosecution when a second trial would be necessitated by a reversal.[61] It
would seem that the conditionality of when a second trial would be
necessitated by a reversal was attached thereto because ordinarily, the
procedure obtaining was that if on appeal a judgment of acquittal is reversed,
i. e., a finding is had against the defendant, a remand of the case for another
trial may be allowed if needed.
At this juncture, it must be explained that under existing American law and
jurisprudence, appeals may be had not only from criminal convictions but
also, in some limited instances, from dismissals of criminal charges,
sometimes loosely termed "acquittals." But this is so as long as the judgments
of dismissals do not involve determination of evidence, such as when the
judge: (a) issues a post-verdict acquittal, i.e., acquits the defendant on a matter
of law after a verdict of guilty has been entered by a trier of facts (a jury); (b)
orders the dismissal on grounds other than insufficiency of evidence, as when
the statute upon which the indictment was based is defective; (c) conducts a
judicial process that is defective or flawed in some fundamental respect, such
as incorrect receipt or rejection of evidence, incorrect instructions, or
prosecutorial misconduct; (d) issues an order arresting judgment, i.e., an act
of a trial judge refusing to enter judgment on the verdict because of an error
appearing on the face of the record that rendered the judgment;[62] or, (e)
pronounces judgment on a special plea in bar (a non obstante plea) - one that
does not relate to the guilt or innocence of the defendant, but which is set up
as a special defense relating to an outside matter but which may have been
connected with the case.[63] Interestingly, the common feature of these
instances of dismissal is that they all bear on questions of law or matters
unrelated to a factual resolution of the case which consequently, on appeal,
will not involve a review of evidence. Its logical effect in American law is to
render appeals therefrom non-repugnant to the Double Jeopardy Clause.
This contextual situation in which appeals from dismissals of criminal cases
are allowed under American rules of procedure does not obtain in the
Philippines. To be sure, United States v. Scott positively spelled out that if an
acquittal was based on an appreciation of the evidence adduced, no appeal
would lie. Mr. Justice Rehnquist explained that what may seem superficially
to be a "disparity in the rules governing a defendants liability to be tried
again" refers to the underlying purposes of the Double Jeopardy Clause. He
elaborated that "(a)s Kepner and Fong Foo illustrate, the law attaches
particular significance to an acquittal. To permit a second trial after an
acquittal however mistaken x x x would present an unacceptably high risk
that the Government, with its vastly superior resources, might wear down the
defendant so that even though innocent he may be found guilty. x x x x On
the other hand, to require a criminal defendant to stand trial again after he has
successfully invoked the statutory right of appeal to upset his first conviction
59
is not an act of governmental oppression of the sort against which the x x x
Clause was intended to protect."
In proposing a re-evaluation of Philippine jurisprudence on double jeopardy,
petitioner insists that Wilson and Scott have unquestionably altered the
seascape of double jeopardy previously navigated by Kepner and Ball. Using
as its flagship the pronouncement in Wilson that appeals of acquittal are
possible provided the accused will not be subjected to a second trial, it argues
that this should apply to the case at bar because, anyway, a review of the
acquittal of private respondent Honorato Galvez will not result in another trial
inasmuch as the Court will only have to examine the evidence adduced below
to pass final judgment on the culpability of the accused.
Petitioners own hermeneutic sense of the phrase "another trial" is that which
solely adverts to a proceeding before a competent trial court that rehears the
case and receives evidence anew to establish the facts after the case has been
finally disposed of by the Supreme Court. Obviously, it adheres to the
Holmesian hypothesis in Kepner and, for that matter, the concept under
Spanish law then applicable in the Philippines before the American
colonization, that a trial consists of one whole continuing process from
reception of evidence by a trier of facts up to its final disposition by the
Supreme Court. But petitioner conveniently forgets that this theory has been
consistently spurned by both American and Philippine jurisprudence that has
faithfully adhered to the doctrine that an appeal of a judgment after the
defendant had been acquitted by the court in a bench trial is, quintessentially,
a new trial. In Kepner, the Court regarded the two (2) events, i. e., trial by the
lower court and the appellate proceedings, as equivalent to two (2) separate
trials, and the evil that the Court saw in the procedure was plainly that of
multiple prosecutions.[64] Although Kepner technically involved only one
proceeding, the Court deemed the second factfinding, that is, the review by
the appellate court, as the equivalent of a second trial. Accordingly, in
subsequent cases, the Court has treated the Kepner principle as being
addressed to the evil of successive trials.[65]
No less than the case of Wilson,[66] petitioners main anchor for its
propositions, affirms this rule. There, the Court emphasized that it has, up to
the present, rejected the theory espoused by the dissenting Mr. Justice Holmes
in Kepner that " a man cannot be said to be more than once in jeopardy in the
same cause however often he may be tried. The jeopardy is one continuing
jeopardy, from its beginning to the end of the cause." It declared
unequivocally that "we continue to be of the view that the policies underlying
the Double Jeopardy Clause militate against permitting the Government to
appeal after a verdict of acquittal." Wilson therefore pronounced that if
acquittal is declared on the basis of evidence adduced, double jeopardy
attaches for that particular cause.
To explain further, Wilson involved an appeal by Government of a post-
verdict ruling of law issued by the trial judge resulting in the acquittal of the
defendant due to pre-indictment delay (a delay between the offense and the
indictment prejudiced the defendant) after a verdict of guilty had been entered
by the jury. But it was not an acquittal that involved factual resolution. It was
one anchored on an extraneous cause. Factual resolution is defined in United
States v. Sorenson[67] following the rulings in Ball, Fong Foo and Sisson as
the finding that government failed to prove all the elements of the offense. It
is clear therefore that the acquittal of Wilson, not being based on evidence,
could be appealed. The rule therefore fixed in Wilson is that where a judge
holds for the defendant on a ruling of law, and not on the basis of evidence,
after a jury entered a verdict of guilty, the prosecution may appeal the
acquittal without violating double jeopardy, as this is allowed under the
pertinent law.[68] This is so since no second trial will ensue, as a reversal on
appeal would merely reinstate the jurys verdict.[69] And if the prosecution is
upheld, the case simply goes back to the trial court for disposition of the
remaining matters. It bears emphasis that in Wilson, no double jeopardy
problem was presented because the appellate court, upon reviewing the
asserted legal errors of the trial judge, could simply order the jurys guilty
verdict reinstated, no new factfinding would be necessary, and the defendant
would not be put twice in jeopardy.[70]
The case of Scott, also considerably relied upon by petitioner, involved an
accused who, having been indicted for several offenses, himself moved for
the dismissal of two (2) counts of the charges on the ground that his defense
was prejudiced by pre-indictment delay. The trial judge granted the motion.
Government appealed the dismissals but the appellate court rejected the
appeal on the basis of double jeopardy. This time the US Supreme Court
reversed, holding that "(w)here a defendant himself seeks to avoid his trial
prior to its conclusion by a motion for a mistrial, the Double Jeopardy Clause
is not offended by a second prosecution. Such a motion by the defendant is
deemed to be a deliberate election on his part to forego his valued right to
have his guilt or innocence determined by the first trier of facts."
60
The inapplicability of this ruling to the case at bar is at once discernible. The
dismissal of the charges against private respondent Galvez was not upon his
own instance; neither did he seek to avoid trial, as it was in Scott, to be
considered as having waived his right to be adjudged guilty or innocent. Here,
trial on the merits was held during which both government and accused had
their respective day in court.
We are therefore insufficiently persuaded to adopt petitioners concept of
"another trial" because, as discussed above, it disregards the contextual
interpretation of the term in light of the legal and factual morphology of the
double jeopardy principle obtaining in Wilson and Scott. To sum up, in the
cause before us, the records show that respondent trial judge based his finding
of acquittal, no matter how erroneous it might seem to petitioner, upon the
evidence presented by both parties. The judgment here was no less than a
factual resolution of the case. Thus, to the extent that the post-verdict acquittal
in Wilson was based on a ruling of law and not on a resolution of facts,
Wilson is not, to reiterate, pertinent to nor persuasive in the case at bar. The
same observation holds true for Scott. That it was the defendant who secured
the dismissal of the charges against him without any submission to either
judge or jury as to his guilt or innocence, but on a ground totally outside
evidentiary considerations, i.e., pre-indictment delay, definitely forecloses
the applicability, if not relevance, of Scott to the instant case.
Wilson, Scott and all other pertinent American case law considered, it still
behooves us to examine if at this time there is need to rethink our juristic
philosophy on double jeopardy vis--vis acquittals. In this respect, it would be
instructive to see how Philippine law and jurisprudence have behaved since
Kepner. Has the principle since then beneficially evolved, or has it remained
an "unruly child that has not improved with age?"
The moorings of double jeopardy in the Philippines, as Mr. Justice Manuel
Moran observed in People v. Tarok,[71] are not indigenous but are a matter
of constitutional or statutory history. Enunciated in the Constitution of the
United States, from there it found its way into this country, first, in the
Philippine Bill of 1902, then in the Jones Law of 1916, and finally, in the
1935 Philippine Constitution. Being thus a mere recognition of the maxim of
the common law, and adopted from the Constitution of the United States, the
principle of double jeopardy followed in this jurisdiction the same line of
development - no narrower nor wider - as in the Anglo-Saxon jurisprudence.
While some reservations may be had about the contemporary validity of this
observation considering the variety of offsprings begotten, at least in the
United States, by the mother rule since then, perhaps it is safer to say that not
much deviation has occurred from the general rule laid out in Kepner. For
Kepner may be said to have been the lighthouse for the floundering issues on
the effect of acquittals on jeopardy as they sail safely home. The cases of
People v. Bringas,[72] People v. Hernandez,[73] People v. Montemayor,[74]
City Fiscal of Cebu v. Kintanar,[75] Republic v. Court of Appeals,[76] and
Heirs of Tito Rillorta v. Firme,[77] to name a few, are illustrative. Certainly,
the reason behind this has not been due to a stubborn refusal or reluctance to
keep up with the Joneses, in a manner of speaking, but to maintain fidelity to
the principle carefully nurtured by our Constitution, statutes and
jurisprudence. As early as Julia v. Sotto[78] the Court warned that without
this safeguard against double jeopardy secured in favor of the accused, his
fortune, safety and peace of mind would be entirely at the mercy of the
complaining witness who might repeat his accusation as often as dismissed
by the court and whenever he might see fit, subject to no other limitation or
restriction than his own will and pleasure.
The 1935 Philippine Constitution provided in its Sec. 20, Art. III, that "(n)o
person shall be twice put in jeopardy of punishment for the same offense. If
an act is punished by a law and an ordinance, conviction or acquittal under
either shall constitute a bar to another prosecution for the same act." The
discussions by the members of the Constitutional Convention of 1934 on the
effect on double jeopardy of an appeal from a judgment of acquittal are
enlightening. Foreclosing appeal on a judgment of acquittal was recognized
by the Convention and the proposal to make an appeal from acquittal
permissible even only "on questions of law provided that a verdict in favor of
the defendant shall not be set aside by reason thereof" was strongly voted
down. Thus -
MR. GULLAS: Dear Colleagues x x x x I wish to summarize our points. The
amendment is commendable, but we submit that the reason against far
outweighs the reason in favor of it. In the first place, it would tend to
multiplicity of suits and thus increase the burden of the Supreme Court.
Second, suits will be expensive if we meet fiscals who have an exaggerated
opinion of themselves, who have more ego than gray matter or more amor
propio. In the third place, as has been stated by a certain Gentleman, the
provision would convert the Supreme Court into a sort of academy of
consulting body. In the fourth place, as pointed out by Mr. Sevilla, fights in
61
the Supreme Court would be one-sided. In the fifth place, as demonstrated by
Delegate Labrador, the matter should be procedural rather than constitutional.
And lastly, as explained by Delegate Singson Encarnacion, should the
Supreme Court reverse the judgment of the lower court, the defendant would
suffer morally for the rest of his life. He would walk around under a veil of
humiliation, carrying with him a stigma.
For all these reasons, Mr. President, we oppose the amendment.
PRESIDENT: We can vote on the amendment. (Various delegates: YES).
Those who are in favor of the amendment please say YES. (A minority:
YES). Those against the amendment say NO. (A majority: NO). The
amendment is rejected x x x x
(1934 Constitutional Convention Record, Journal No. 95, November 24,
1934, p. 361)
The case of People v. Bringas[79] was the first case to be decided under this
Constitution pertinent to the matter at hand. There the Supreme Court, guided
by Kepner, cited its finding in United States v. Tam Yung Way[80] against
the right of appeal by the government from a judgment discharging the
defendant in a criminal case after he has been brought to trial, whether
defendant was acquitted on the merits or whether his discharge was based
upon the trial courts conclusion of law that the trial had failed for some reason
to establish his guilt as charged.
The Bill of Rights of the 1973 Constitution, specifically Sec. 22, Art. IV
thereof, reproduced verbatim the same double jeopardy provision of the 1935
Constitution. So did the 1987 Freedom Constitution drafted by the 1986
Constitutional Commission.
Noteworthy is that during the deliberations by the 1986 Constitutional
Commission attempts were made to introduce into the Fundamental Law the
right of government to appeal verdicts of acquittal promulgated by trial
courts. The proposed text for Sec. 14, Art. VIII, on the Judicial Department
read as follows -
Sec. 12. - x x x x An appeal by the State and/or offended party from a
judgment of acquittal may be allowed in the discretion of the Supreme Court
by a petition for review on certiorari on the ground that it is manifestly against
the evidence with grave abuse of discretion amounting to lack of
jurisdiction.[81]
This proposal was strongly opposed, the controlling consideration as
expressed by Commissioner Rustico de los Reyes being the "inequality of the
parties in power, situation and advantage in criminal cases where the
government, with its unlimited resources, trained detectives, willing officers
and counsel learned in the law, stands arrayed against a defendant unfamiliar
with the practice of the courts, unacquainted with their officers or attorneys,
often without means and frequently too terrified to make a defense, if he had
one, while his character and his life, liberty or property rested upon the result
of the trial."[82]
Commissioner Joaquin Bernas likewise articulated his fear that we could be
subjecting an accused individual to a very serious danger of harassment from
a prosecutor x x x x The harm, however, which will follow from waving this
flag of possibility of appeal x x x could be much more than letting a guilty
person go."[83] Put to a vote, the proposal was defeated.[84]
Then again, during the debates on double jeopardy under Sec. 23, Art. III, on
the Bill of Rights of the Constitution, Commissioner Ambrosio B. Padilla
reopened the matter already settled at the deliberations on the article on the
Judiciary. The following exchanges ensued:
MR. PADILLA. x x x On Section 23, on double jeopardy, there was Davide
resolution which allowed an appeal in a judgment of acquittal in a criminal
case that states: An acquittal by a trial court is, however, appealable provided
that in such event, the accused shall not be detained or put up bail. This has
been deleted by the Commission x x x x
FR. BERNAS. Yes.
MR. PADILLA. I recall that when this same idea, but in different
phraseology, was presented and approved by the Committee on the Judiciary,
the great objection was that it would violate the immunity against double
jeopardy. But I recall, the sponsor admitted, after I had explained the day
before, that it did not violate double jeopardy but it was unnecessary and
harmful. What is the real position, Mr. Presiding Officer? Is it in violation of
double jeopardy or is it just because it need not be stated in the Bill of Rights
nor in the Article on the Judiciary?
62

FR. BERNAS: I explained my position on that, Mr. Presiding Officer, when
we considered the matter in the Article on the Judiciary. The position I took
was that it was not a departure from existing jurisprudence. In fact, it was
more strict than existing jurisprudence in that it required not just abuse of
discretion but it also required that the judgment be clearly against the
evidence.
MR. PADILLA. That is correct, Mr. Presiding Officer, because we want to
make the exercise of that right by the state or offended party restrictive not
only through a petition for review on certiorari in the discretion of the
Supreme Court which may dismiss it outright, but also on certain grounds
that are really covered by "in excess or lack of jurisdiction."
But my common impression, Mr. Presiding Officer, is that most lawyers are
of the opinion that when a judgment of acquittal is rendered by a trial court,
that is final, executory and not appealable.
Does not the sponsor think, Mr. Presiding Officer, an appeal from an arbitrary
judgment of acquittal rendered by a few corrupt judges of the offended party
or the state will improve the administration of justice?
FR. BERNAS. Mr. Presiding Officer, I have expressed my position on this
when we voted on Third Reading on the Article on the Judiciary. But if the
Commissioner wants to raise the matter for reconsideration, he can present a
motion on the floor.
Padilla did not ask for a reconsideration.[85]
The Rules of Court on Criminal Procedure relative to double jeopardy and
the effect thereon of acquittals adhere strictly to constitutional provisions.
The pertinent portions of Sec. 7 of Rule 117 thereof provide -
Sec. 7. Former conviction or acquittal; double jeopardy. - When an accused
has been convicted or acquitted, or the case against him dismissed or
otherwise terminated without his express consent by a court of competent
jurisdiction, upon a valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and after the accused
had pleaded to the charge, the conviction or acquittal of the accused or the
dismissal of the case shall be a bar to another prosecution for the offense
charged, or for any attempt to commit the same or frustration thereof, or for
any offense which necessarily includes or is necessarily included in the
offense charged in the former complaint or information x x x x
From this procedural prescription alone, there can be no mistaking the
requisites for invoking double jeopardy: (a) a valid complaint or information;
(b) before a competent court before which the same is filed; (c) the defendant
had pleaded to the charge; and, (d) the defendant was acquitted, or convicted,
or the case against him dismissed or otherwise terminated without his express
consent.[86] It bears repeating that where acquittal is concerned, the rules do
not distinguish whether it occurs at the level of the trial court or on appeal
from a judgment of conviction. This firmly establishes the finality-of-
acquittal rule in our jurisdiction. Therefore, as mandated by our Constitution,
statutes and cognate jurisprudence, an acquittal is final and unappealable on
the ground of double jeopardy, whether it happens at the trial court level or
before the Court of Appeals.
In general, the rule is that a remand to a trial court of a judgment of acquittal
brought before the Supreme Court on certiorari cannot be had unless there is
a finding of mistrial, as in Galman v. Sandiganbayan.[87] Condemning the
trial before the Sandiganbayan of the murder of former Senator Benigno
"Ninoy" Aquino, which resulted in the acquittal of all the accused, as a sham,
this Court minced no words in declaring that "[i]t is settled doctrine that
double jeopardy cannot be invoked against this Court's setting aside of the
trial court's judgment of acquittal where the prosecution which represents the
sovereign people in criminal cases is denied due process x x x x [T]he sham
trial was but a mock trial where the authoritarian president ordered
respondents Sandiganbayan and Tanodbayan to rig the trial, and closely
monitored the entire proceedings to assure the predetermined final outcome
of acquittal and absolution as innocent of all the respondent-accused x x x x
Manifestly, the prosecution and the sovereign people were denied due process
of law with a partial court and biased Tanodbayan under the constant and
pervasive monitoring and pressure exerted by the authoritarian president to
assure the carrying out of his instructions. A dictated, coerced and scripted
verdict of acquittal, such as that in the case at bar, is a void judgment. In legal
contemplation, it is no judgment at all. It neither binds nor bars anyone. Such
a judgment is a lawless thing which can be treated as an outlaw. It is a terrible
and unspeakable affront to the society and the people. 'To paraphrase
Brandeis: If the authoritarian head of government becomes the lawbreaker,
he breeds contempt for the law; he invites every man to become a law unto
63
himself; he invites anarchy. The contention of respondent-accused that the
Sandiganbayan judgment of acquittal ended the case and could not be
appealed or reopened without being put in double jeopardy was forcefully
disposed of by the Court in People v. Court of Appeals:[88]
x x x x That is the general rule and presupposes a valid judgment. As earlier
pointed out, however, respondent Court's Resolution of acquittal was a void
judgment for having been issued without jurisdiction. No double jeopardy
attaches, therefore. A void judgment is, in legal effect, no judgment at all. By
it no rights are divested. Through it, no rights can be attained. Being
worthless, all proceedings founded upon it are equally worthless. It neither
binds nor bars anyone. All acts performed under it and all claims flowing out
of it are void x x x x Private respondents invoke 'justice for the innocent.' For
justice to prevail the scales must balance. It is not to be dispensed for the
accused alone. The interests of the society which they have wronged, must
also be equally considered. A judgment of conviction is not necessarily a
denial of justice. A verdict of acquittal neither necessarily spells a triumph of
justice. To the party wronged, to the society offended, it could also mean
injustice. This is where the Courts play a vital role. They render justice where
justice is due.
Thus, the doctrine that "double jeopardy may not be invoked after trial" may
apply only when the Court finds that the criminal trial was a sham because
the prosecution representing the sovereign people in the criminal case was
denied due process.[89] The Court in People v. Bocar[90] rationalized that
the "remand of the criminal case for further hearing and/or trial before the
lower courts amounts merely to a continuation of the first jeopardy, and does
not expose the accused to a second jeopardy."[91]
The fundamental philosophy highlighting the finality of an acquittal by the
trial court cuts deep into "the 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"[92] Thus Green expressed the concern that "(t)he
underlying idea, one that is deeply ingrained in at least the Anglo-American
system of jurisprudence, is that 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."[93]
It is axiomatic that on the basis of humanity, fairness and justice, an acquitted
defendant is entitled to the right of repose as a direct consequence of the
finality of his acquittal. The philosophy underlying this rule establishing the
absolute nature of acquittals is "part of the paramount importance criminal
justice system attaches to the protection of the innocent against wrongful
conviction."[94] 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 one's liability.[95] 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.[96]
Related to his right of repose is the defendants interest in his right to have his
trial completed by a particular tribunal.[97] This interest encompasses his
right to have his guilt or innocence determined in a single proceeding by the
initial jury empanelled to try him, for societys awareness of the heavy
personal strain which the criminal trial represents for the individual defendant
is manifested in the willingness to limit Government to a single criminal
proceeding to vindicate its very vital interest in enforcement of criminal
laws.[98] The ultimate goal is prevention of government oppression; the goal
finds its voice in the finality of the initial proceeding.[99] As observed in
Lockhart v. Nelson,[100] "(t)he fundamental tenet animating the Double
Jeopardy Clause is that the State should not be able to oppress individuals
through the abuse of the criminal process. Because the innocence of the
accused has been confirmed by a final judgment, the Constitution
conclusively presumes that a second trial would be unfair.[101]
Petitioner resists the applicability of the finality-of-acquittal doctrine to the
Philippine adjudicative process on the ground that the principle is endemic to
the American justice system as it has specific application only to jury verdicts
of acquittal, and thus finds no valid use in our jurisdiction since the
underlying rationale of jury acquittals, a special feature of American
constitutional law, has no parallel nor analogy in the Philippine legal system.
This is a rather strained if not facile approach to the issue at hand, for it
attempts to introduce the theory that insofar as the objective of factfinding is
concerned, factfinding forming the core of the philosophy behind double
jeopardy, there exists a difference between a jury acquittal and a judge
acquittal, Philippine version. To support its contention, petitioner sedulously
explains that in the United States there is an emerging consensus to
64
differentiate the constitutional impact of jury verdicts of acquittal vis--vis
judgments of acquittal rendered by the bench. While this consensus may have
emerged in the United States, it is not difficult to surmise that it must have
been so because of countless instances of conflict between jury verdicts and
judgments of trial judges in the same case. Resultantly, procedural statutes
and jurisprudence have been wont to draw lines of distinction between the
two, hopefully to keep each other at bay. Since this phenomenon does not
occur in our jurisdiction, as we have no juries to speak of, petitioners
hypothesis is inappropriate.
Be that as it may, the invalidity of petitioners argument lies in its focus on the
instrumentality empowered to rule against the evidence, i.e., the American
jury versus the Philippine judge, no matter how emphatic it qualifies its
proposition with the phrase "underlying rationale of jury acquittals," rather
than on the essential function of factfinding itself which consists of reception,
sifting and evaluation of evidence. Where the main task of factfinding is
concerned, there exists no difference between the American jury and the
Philippine trial judge. Both are triers of facts. This much petitioner has to
concede. The attempt therefore to close the door on the applicability of the
finality rule to our legal system abjectly fails when one considers that,
universally, the principal object of double jeopardy is the protection from
being tried for the second time, whether by jury or judge. Thus, "emerging
American consensus on jury acquittals" notwithstanding, on solid
constitutional bedrock is well engraved our own doctrine that acquittals by
judges on evidentiary considerations cannot be appealed by government. The
jurisprudential metes and bounds of double jeopardy having been clearly
defined by both constitution and statute, the issue of the effect of an appeal
of a verdict of acquittal upon a determination of the evidence on the
constitutionally guaranteed right of an accused against being twice placed in
jeopardy should now be finally put to rest.
Petitioner assails the decision rendered by the court a quo as blatantly
inconsistent with the material facts and evidence on record, reason enough to
charge respondent judge with grave abuse of discretion amounting to lack of
jurisdiction resulting in a denial of due process. Citing People v. Pablo,[102]
it alleges that "respondent aggravated his indiscretion by not x x x reviewing
the evidence already presented for a proper assessment x x x x It is in
completely ignoring the evidence already presented x x x that the respondent
judge committed a grave abuse of discretion." It adds that "discretion must
be exercised regularly, legally and within the confines of procedural due
process, i.e., after evaluation of the evidence submitted by the prosecution.
Any order issued in the absence thereof is not a product of sound judicial
discretion but of whim and caprice and outright arbitrariness."[103]
Private respondent remonstrates against the propriety of petitioners certiorari
as a mode of impugning the judgment of acquittal not only as a strategy to
camouflage the issue of double jeopardy but also for the fact that, contrary to
petitioners assertions, evidence in the case at bar was subjected to scrutiny,
review, assessment and evaluation by respondent trial judge. By reason
thereof, there cannot be perceived grave abuse of discretion on the part of the
judge to warrant issuance of the great writ of certiorari.
We agree. The office of the common law writ of certiorari is to bring before
the court for inspection the record of the proceedings of an inferior tribunal
in order that the superior court may determine from the face of the record
whether the inferior court has exceeded its jurisdiction, or has not proceeded
according to the essential requirements of the law. However, the original
function and purpose of the writ have been so modified by statutes and
judicial decisions. It is particularly so in the field of criminal law when the
state is applying for the writ and problems arise concerning the right of the
state to appeal in a criminal case. As a general rule, the prosecution cannot
appeal or bring error proceedings from a judgment in favor of the defendant
in a criminal case in the absence of a statute clearly conferring that right. The
problem comes into sharper focus when the defendant contends, in effect, that
the prosecution is attempting to accomplish by the writ what it could not do
by appeal, and that his constitutional rights are being thus encroached
upon.[104]
Generally, under modern constitutions and statutes, provisions are available
as guides to the court in determining the standing of the prosecution to secure
by certiorari a review of a lower court decision in a criminal case which has
favored the defendant. In most instances, provisions setting forth the scope
and function of certiorari are found together with those relating to the right
of the state to appeal or bring error in criminal matters. There is some
indication that courts view the writ of certiorari as an appeal in itself where
the applicant shows that there is no other adequate remedy available,[105]
and it is not uncommon to find language in cases to the effect that the state
should not be permitted to accomplish by certiorari what it cannot do by
appeal.[106] Thus, if a judgment sought to be reviewed was one entered after
an acquittal by a jury or the discharge of the accused on the merits by the trial
65
court, the standing of the prosecution to review it by certiorari is far more
likely to be denied than if it were such an order as one sustaining a demurrer
to, or quashing the indictment, or granting a motion for arrest of judgment
after a verdict of guilty.[107]
Philippine jurisprudence has been consistent in its application of the Double
Jeopardy Clause such that it has viewed with suspicion, and not without good
reason, applications for the extraordinary writ questioning decisions
acquitting an accused on ground of grave abuse of discretion.
The petition at hand which seeks to nullify the decision of respondent judge
acquitting the accused Honorato Galvez goes deeply into the trial court's
appreciation and evaluation in esse of the evidence adduced by the parties. A
reading of the questioned decision shows that respondent judge considered
the evidence received at trial. These consisted among others of the
testimonies relative to the positions of the victims vis--vis the accused and
the trajectory, location and nature of the gunshot wounds, and the opinion of
the expert witness for the prosecution. While the appreciation thereof may
have resulted in possible lapses in evidence evaluation, it nevertheless does
not detract from the fact that the evidence was considered and passed upon.
This consequently exempts the act from the writs limiting requirement of
excess or lack of jurisdiction. As such, it becomes an improper object of and
therefore non-reviewable by certiorari. To reiterate, errors of judgment are
not to be confused with errors in the exercise of jurisdiction.
WHEREFORE, the instant petition for certiorari is DISMISSED.
SO ORDERED.
Vitug, Kapunan, Mendoza, Quisumbing, Purisima, Pardo, Buena, Gonzaga-
Reyes, and De Leon, Jr., JJ., concur.
Davide, Jr., C.J., and Puno, J., agree with J. Panganibans separate opinion.
Melo, J., in the result.
Panganiban, J., see separate opinion.
Ynares-Santiago, J., on leave.
SEPARATE OPINION
PANGANIBAN, J.:
I concur with Justice Josue N. Bellosillo that the Petition at bar should be
dismissed on two grounds: (1) the private respondent (defendant in the
criminal case below) is already dead, so this Petition has become moot and
academic;1 and, in any event, (2) the petitioner has failed to show that public
respondent, in issuing the assailed Decision, had acted without jurisdiction or
with grave abuse of discretion amounting to lack or excess of jurisdiction.
I write, however, to stress that a petition for certiorari under Rule 65 of the
Rules of Court is a proper remedy to challenge an acquittal on the ground that
the trial court had acted without jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction. This is a hornbook doctrine. As
held by the Court in People v. Court of Appeals & Maquiling:2
To question the jurisdiction of the lower court or agency exercising judicial
or quasi-judicial functions, the remedy is a special civil action for certiorari
under Rule 65 of the Rules of Court. The petitioner in such cases must clearly
show that the public respondent acted without jurisdiction or with grave abuse
of discretion amounting to lack or excess of jurisdiction.3 By grave abuse of
discretion is meant such capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must be patent and
gross as to amount to an evasion of positive duty or a virtual refusal to
perform a duty enjoined by law, or to act at all in contemplation of law, as
where the power is exercised in an arbitrary and despotic manner by reason
of passion and hostility.4
xxx [H]owever, xxx no grave abuse of discretion may be attributed to the
public respondent on the ground of misappreciation of facts and evidence.5
A writ of certiorari may not be used to correct a lower tribunals evaluation of
the evidence and factual findings. In other words, it is not a remedy for mere
errors of judgment, which are correctible by an appeal or a petition for review
under Rules 45 of the Rules of Court.6
In fine, certiorari will issue only to correct errors of jurisdiction, not errors of
procedure or mistakes in the findings or conclusions of the lower court.7 As
long as a court acts within its jurisdiction, any alleged errors committed in
the exercise of its discretion will amount to nothing more than errors of
66
judgment, which are reviewable by timely appeal, not by a special civil action
for certiorari.8

By contending that the challenged Decision is void for having been issued
with grave abuse of discretion amounting to lack or excess of jurisdiction, the
petition does not violate the right of the accused against double jeopardy. It
is elementary that double jeopardy attaches only when the following elements
concur: (1) the accused are charged under a complaint or information
sufficient in form and substance to sustain their conviction; (2) the court has
jurisdiction; (3) the accused have been arraigned and have pleaded; and (4)
they are convicted or acquitted, or the case is dismissed without their
consent.9

Thus, even assuming that a writ of certiorari is granted, the accused would
not be placed in double jeopardy because, from the very beginning, the lower
tribunal had acted without jurisdiction. Precisely, any ruling issued without
jurisdiction is, in legal contemplation, necessarily null and void and does not
exist.10 In criminal cases, it cannot be the source of an acquittal.

The instant Petition for Certiorari, however, fails to show grave abuse of
discretion amounting to lack or excess of jurisdiction on the part of the trial
court. Rather, it effectively urges this Court to re-evaluate the lower courts
appreciation of the evidence, which cannot be done by certiorari. As held also
in Maquiling:

While certiorari may be used to correct an abusive acquittal, the petitioner in

such extraordinary proceeding must clearly demonstrate that the lower court
blatantly abused its authority to a point so grave as to deprive it of its very
power to dispense justice. On the other hand, if the petition, regardless of its
nomenclature, merely calls for an ordinary review of the findings of the court
a quo, the constitutional right against double jeopardy would be violated.
Such recourse is tantamount to converting the petition for certiorari into an
appeal, contrary to the express injunction of the Constitution, the Rules of
Court and prevailing jurisprudence on double jeopardy.

67
85 Phil. 766
MORAN, J.:
Petitioner Conrado Melo was charged in the Court of First Instance of Rizal,
on December 27, 1949, with frustrated homicide, for having allegedly
inflicted upon Benjamin Obillo, with a kitchen knife and with intent to kill,
several serious wounds on different parts of the body, requiring medical
attendance for a period of more than 30 days, and incapacitating him from
performing his habitual labor for the same period of time. On December 29,
1949, at eight o'clock in the morning, the accused pleaded not guilty to the
offense charged, and at 10:15 in the evening of the same day Benjamin Obillo
died from his wounds. Evidence of death was available to the prosecution
only on January 3, 1950, and on the following day, January 4, 1950, an
amended information was filed charging the accused with consummated
homicide. The accused filed a motion to quash the amended information
alleging double jeopardy, motion that was denied by the respondent court;
hence, the instant petition for prohibition to enjoin the respondent court from
further entertaining the amended information.
Brushing aside technicalities of procedure and going into the substance of the
issues raised, it may readily be stated that the amended information was
rightly allowed to stand. Rule 106, sec.13, 2d paragraph, is as follows:
"If it appears at any time before judgment that a mistake has been made in
charging the proper offense, the court may dismiss the original complaint or
information and order the filing of a new one charging the proper offense,
provided the defendant would not be placed thereby in double jeopardy, and
may also require the witnesses to give bail for their appearance at the trial."
Under this provision, it was proper for the Court to dismiss the first
information and order the filing of a new one for the reason that the proper
offense was not charged in the former and the latter did not place the accused
in a second jeopardy for the same or identical offense.
"No person shall be twice put in jeopardy of punishment for the same
offense," according to Art. III, section 1 (20) of our Constitution. The rule of
"double jeopardy" had a settled meaning in this jurisdiction at the time our
Constitution was promulgated. 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. 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 citizens.
It must be noticed that the protection of the Constitutional inhibition is against
a second jeopardy for the same offense, the only exception being, as stated in
the same Constitution, that "if an act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute a bar to another
prosecution for the same act." The phrase same offense, under the general
rule, has always been construed to mean not only that the second offense
charged is exactly the same as the one alleged in the first information, but
also that the two offenses are identical. 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 necessarily includes or is necessarily
Included in the offense charged in the first information. (Rule 113, sec. 9;
U.S. vs. Lim Suco, 11 Phil. 484; U.S. vs. Ledesma, 29 Phil. 431; People vs.
Martinez, 55 Phil. 6). 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, one 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 begin with the highest,
and then go down step by 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." (People vs. Cox, 107 Mich.
435, quoted with approval in U.S. vs. Lim Suco, 11 Phil. 484; see also U.S.
vs. Ledesma, 29 Phil. 431 and People vs. Martinez, 55 Phil. 6, 10).
68
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. This is the ruling laid down by the Supreme
Court of the United States In the Philippine case of Diaz vs. U.S., 223 U.S.
442, followed by this Court in People vs. Espino, G.R. No. L-4-6123, 69
Phil., 471, and these two cases are similar to the instant case. Stating it in
another form, the rule is that "where after the first prosecution a new fact
supervenes for which the defendant is responsible, which changes the
character of the offense and, together with the facts existing at the time,
constitutes a new and distinct offense" (15 Am. Jur. 66), the accused cannot
be said to be in second jeopardy if indicted for the new offense.
This is the meaning of "double jeopardy" as intended by our Constitution for
it was the one prevailing in the jurisdiction at the time the Constitution was
promulgated, and no other meaning could have been intended by our Rules
of Court.
Accordingly, an offense may be said to necessarily include or to be
necessarily included in another offense, for the purpose of determining the
existence of double jeopardy, when both offenses were in existence during
the pendency of the first prosecution, for otherwise, if the second offense was
then inexistent, no Jeopardy could attach therefor during the first prosecution,
and consequently a subsequent charge for the same cannot constitute second
jeopardy. By the very nature of things there can be no double jeopardy under
such circumstance, and our Rules of Court cannot be construed to recognize
the existence of a condition where such condition in reality does not exist.
General terms of a statute or regulation should be so limited in their
application as not to lead to injustice, oppression, or an absurd consequence.
It will always, therefore, be presumed that exceptions have been intended to
their language which would avoid results of this character. (In re Allen 2 Phil.
641).
When the Rules of Court were drafted, there was absolutely no intention of
abandoning the ruling laid down in the Diaz ease, and the proof of this is that
although the said Rules were approved on December 1939, yet on January
30, 1940, this Court decided the Espino case reiterating therein the Diaz
doctrine. Had that doctrine been abandoned deliberately by the Rules of Court
as being unwise, unjust or obnoxious, logically it would have likewise been
repudiated in the Espino case by reason of consistency and as a matter of
justice to the accused, who should In consequence have been acquitted
instead of being sentenced to a heavy penalty upon the basis of a doctrine that
had already been found to be throng. There was absolutely no reason to
preclude this Court from repealing the doctrine in the Espino case, for as a
mere doctrine it could be repealed at any time in the decision of any case
where it is invoked. The fact that it was not so abandoned but reiterated, is a
clear proof that the mind of the Court, even after the approval of the Rules,
was not against but in favor of said doctrine.
For these reasons we expressly repeal the ruling laid down In People vs.
Tarok, 73 Phil., 260, as followed in People vs. Villasis, 46 Off. Gaz. (Supp.
to No. 1), p. 268. Such ruling is not only contrary to the real meaning of
"double jeopardy" as intended by the Constitution and by the Rules of Court
but is also obnoxious to the administration of justice. If, in obedience to the
mandate of the law, the prosecuting officer files an information within six
hours after the accused is arrested, and the accused claiming his constitutional
right to a speedy trial is immediately arraigned, and later on a new fact
supervenes which, together with the facts existing at the time, constitutes a
more serious offense, under the Tarok ruling, no way is open by which the
accused may be penalized in proportion to the enormity of his guilt.
Furthermore, such a ruling may open the way to suspicions or charges of
collusion between the prosecuting officers and the accused, to the grave
detriment of public interest and confidence in the administration of justice,
which cannot happen under the Diaz ruling.
Before closing, it is well to observe that when a person who has already
suffered his penalty for an offense, is charged with a new and greater offense
under the Diaz doctrine herein reiterated, said penalty may be credited to him
in case of conviction for the second offense.
For all the foregoing, the petition is denied, and the respondent Court may
proceed to the trial of the criminal case under the amended information.
Without costs.
Ozaeta, Pablo, Padilla, Tuason, Montemayor, and Reyes, JJ., concur.
69

G.R. No. L-13315 April 27, 1960
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
BUENAVENTURA, defendant-appellant.
Assistant Solicitor General Esmeraldo Umali and Solicitor Emerito M. Salva
for appellee.
Francisco A. Puray for appellant.
LABRADOR, J.:
Appeal from a judgment of the Court of First Instance of Leyte, Hon.
Gaudencio Cloribel, presiding, finding the accused Buenaventura Buling
guilty of serious physical injuries and sentencing him to imprisonment of four
months of arresto mayor, as minimum, to one year of prision correccional, as
maximum, and to indemnify the offended party.
The following uncontroverted facts appear in the record: On December 7,
1956, the accused was charged in the Justice of the Peace Court of Cabalian,
Leyte, with the crime of less serious physical injuries for having inflicted
wounds on complaining witness Isidro Balaba, which according to the
complaint would "require, medical attendance for a period from 10 to 15 days
and will incapacitate the said Isidro Balaba from the performance of his
customary labors for the game period of time." The accused pleaded guilty to
the complaint and was on December 8, 1957 found guilty of the crime
charged and sentenced to 1 month and 1 day of arresto mayor and to pay
damages to the offended party in the sum of P20.00, with subsidiary
imprisonment in case of insolvency. On the same day he began to serve his
sentence and has fully served the same.
However, Balaba's injuries did not heal within the period estimated, and so
on February 20, 1957, the Provincial Fiscal filed an information against the
accused before the Court of First Instance of Leyte, charging him of serious
physical injuries. The information alleges that the wounds inflicted by the
accused on Isidro Balaba require medical attendance and incapacitated him
for a period of from 1 ½ months to 2 ½ months. After trial the accused was
found guilty of serious physical injuries and sentenced in the manner
indicated in first paragraph hereof. This is the decision now sough to be set
aside and reversed in this appeal.
The only question for resolution by this Court whether the prosecution and
conviction of Balaba for less serious physical injuries is a bar to the second
prosecution for serious physical injuries.
Two conflicting doctrines on double jeopardy have been enunciated by this
Court, one in the cases of People vs. Tarok, 73 Phil., 260 and People vs.
Villasis, 81 Phil., 881, and the other, in the cases of Melo vs. People, 85 Phil.,
766, People vs. Manolong, 85 Phil., 829 and People vs. Petilla, 92 Phil., 395.
But in Melo vs. People, supra, we expressly repealed our ruling in the case of
People vs. Tarok, supra, and followed in the case of People vs. Villasis, supra.
In the Melo vs. People case, we stated the ruling to be that:
. . . Stating it in another form, the rule is that "where after the first prosecution
a new fact supervenes for which the defendant is responsible, which changes
the character of the offense and, together with the facts existing at the time,
constitutes a new and distinct offense" (15 Am. Jur., 66), the accused cannot
be said to be in second jeopardy if indicted for the new offense. (85 Phil.,
769-770).
Do the facts in the case at bar justify the application of the new ruling? In
other words, has a new fact supervened, like death in the case of Melo vs.
People, which changes the character of the offense into one which was not in
existence at the time the case for less serious physical injuries was filed? We
do not believe that a new fact supervened, or that a new fact has come into
existence. What happened is that the first physician that examined the wounds
of the offended party certified on December 10, 1956 that the injury was as
follows: "wound, incised, wrist lateral, right, 3/4 inch long, sutured" and that
the same would take from 10 to 15 days to heal and incapacitated (the
wounded man) for the same period of time from his usual work (Exh. 3). It
was on the basis of this certificate that on December 8, 1956, defendant-
appellant was found guilty of less serious physical injuries and sentenced to
imprisonment of 1 month and 1 day of arresto mayor, etc.
But on January 18, 1957, another physician examined the offended party,
taking an X-ray picture of the arm of the offended party which had been
wounded. The examination discloses, according to the physician, the
following injuries:
70

Old stab wound 4 inches long. With infection, distal end arm, right. X-ray
plate finding after one month and 12 days — Fracture old oblique, incomplete
distal end, radius right, with slight calus. (Exh. "E").
and the certification is to the effect that treatment will take from 1 ½ months
to 2 ½ months barring complications.
Counsel for the appellant claims that no fact had supervened in the case at
bar, as a result of which another offense had been ommitted. It is argued that
the injury and the condition thereof was the same when the first examination
was made on December 10, 1956, as when the examination was made on
January 18, 1957, and that if any new fact had been disclosed in the latter
examination failure of this new fact to be disclosed in the previous
examination may be attributed to the incompetence on the part of the
examining physician. We find much reason in this argument. What happened
is no X-ray examination of the wounded hand was made during the first
examination, which was merely superficial. The physician who made the first
examination could not have seen the fracture at the distal end of the right arm,
and this could only be apparent or visible by X-ray photography.
Under the circumstances above indicated, we are inclined to agree with the
contention made on behalf of appellant that no new supervening fact has
existed or occurred, which has transformed the offense from less serious
physical injuries to serious physical injuries.
But the Solicitor General cites the case of People vs. Manolong, supra, and
argues that our ruling in said case should apply to the case at bar, for the
reason that in the said case the first crime with which the accused was charged
was less serious physical injuries and the second one was serious physical
injuries and yet we held that there was no jeopardy. We have carefully
examined this case and have found that the first examination made of the
offended party showed injuries which would take from 20 to 30 days to heal,
whereas the subsequent examination disclosed that the wound of the offended
party would require medical attendance and incapacitate him for labor for a
period of 90 days, "causing deformity and the loss of the use of said member".
No finding was made in the first examination that the injuries had caused
deformity and the loss of the use of the right hand. As nothing was mentioned
in the first medical certificate about the deformity and the loss of the use of
the right hand, we presume that such fact was not apparent or could not have
been discernible at the time the first examination was made. The course (not
the length), of the healing of an injury may not be determined before hand; it
can only be definitely known after the period of healing has ended. That is
the reason why the court considered that there was a supervening fact
occurring since the filing of the original information.
But such circumstances do not exist in the case at bar. If the X-ray
examination discloses the existence of a fracture on January 17, 1957, that
fracture must have existed when the first examination was made on December
10, 1956. There is, therefore, no now or supervening fact that could be said
to have developed or arisen since the filing of the original action, which
would justify the application of the ruling enunciated by us in the cases of
Melo vs. People and People vs. Manolong, supra. We attribute the new
finding of fracture, which evidently lengthened the period of healing of the
wound, to the very superficial and inconclusive examination made on
December 10, 1956. Had an X-ray examination taken at the time, the fracture
would have certainly been disclosed. The wound causing the delay in healing
was already in existence at the time of the first examination, but said delay
was caused by the very superficial examination then made. As we have stated,
we find therefore that no supervening fact had occurred which justifies the
application of the rule in the case of Melo vs. People and People vs.
Manolong, for which reason we are constrained to apply the general rule of
double jeopardy.
We take this opportunity to invite the attention of the prosecuting officers that
before filing informations for physical injuries, thorough physical and
medical examinations of the injuries should first be made to avoid instances,
like the present, where by reason of the important Constitutional provision of
double jeopardy, the accused can not be held to answer for the graver offense
committed.
The decision appealed from is hereby reversed. The judgment of conviction
is set aside and the defendant-appellant acquitted of the charge of serious
physical injuries. Without costs.
71
G.R. Nos. 59568-76 January 11, 1990
PETER NIERRAS, petitioner,
vs.
HON. AUXENCIO C. DACUYCUY and HON. ANTONIO S. LOPEZ, in
their capacity as Presiding Judge, Branch IV, Court of First Instance of Leyte,
Palo, Leyte, and City Fiscal of Tacloban City, Leyte, respectively,
respondents.
Victor C. Veloso for petitioner.
PARAS, J.:
Before Us is a petition for certiorari with preliminary injunction for the
annulment of the resolution dated September 17, 1981 of the respondent
Judge Auxencio C. Dacuycuy in nine (9) criminal cases, entitled "People of
the Philippines v. Peter Nierras" docketed as Criminal Cases Nos. 4379,
4380, 4381, 4382, 4383, 4384, 4385, 4386 and 4387, for estafa under Article
315 (2-d) of the Revised Penal Code which denied petitioner's motion to
quash. Said motion to quash was filed by petitioner on the ground of double
jeopardy as these offenses were already included in Criminal Cases Nos.
3790, 3791, 3792, 3793, 4085, 4122, 4123, 4124, and 4125, entitled "People
of the Philippines v. Peter Nierras," for violation of the Bouncing Checks
Law or Batas Pambansa Blg. 22, pending before the lower court. In both sets
of criminal cases, petitioner entered a plea of not guilty upon arraignment
before the lower court. However, immediately after his plea of not guilty in
these estafa cases, petitioner moved in open court to be allowed to withdraw
his plea of not guilty upon his filing of a motion to quash, which was denied
by respondent Judge ruling as follows:
The motion to quash should be and is hereby denied. Accused Peter Nierras
allegedly issued the checks in favor of complainant Pilipinas Shell Petroleum
Corporation in payment of oil products which the latter delivered to him
simultaneously with the issuance of the checks.
xxx xxx xxx
. . . The crime of estafa committed by means of bouncing checks is not
committed by mere issuance of a check. Under Art. 315, par. 2 (d) of the
Revised Penal Code, as amended by Republic Act 4885, the following are the
elements of estafa: (1) the postdating or issuance of a check in payment of an
obligation contracted at the time the check was issued; (2) lack of or
insufficiency of funds to cover the check; and (3) damage to the payee thereof
(People v. Sabio, 86 SCRA 568). Under Batas Pambansa Bilang 22 (1979)
the mere issuance of a check without sufficient funds issued in payment of a
simultaneous obligation and the check was dishonored upon presentation for
that estafa is committed under the Revised Penal Code. At the same time, the
drawer will also be liable under Batas Pambansa Bilang 22 for offense of
issuing a check without sufficient funds (pp. 1-2, Resolution On Motion To
Quash dated September 17, 1981; Annex "MM", Petition). (p. 100, Rollo)
The issue now submitted for Our consideration is whether the filing of the
nine (9) other informations for estafa against petitioner under the Revised
Penal Code after he had earlier been charged with violation of Batas
Pambansa Blg. 22 for issuing the same bouncing checks will put him in
jeopardy of being convicted twice for the same offenses. In other words, can
petitioner be held liable for the nine criminal cases for violation of Batas
Pambansa Blg. 22, and separately also be held liable for the crime of estafa
under Article 315 (2-d) of the Revised Penal Code for the issuance of the
same bouncing checks?
It appears that petitioner, a customer of Pilipinas Shell Petroleum
Corporation, purchased oil products from it. Simultaneous with the delivery
of the products, he issued nine (9) checks in payment thereof. Upon
presentation to the Philippine National Bank at Naval, Leyte, said checks
were dishonored for the reason that his account was already closed.
Thereafter, Pilipinas Shell Petroleum Corporation repeatedly demanded of
petitioner either to deposit funds for his checks or pay for the oil products he
had purchased but he failed and refused to do either.
Petitioner argues that he would be placed in double jeopardy as all the
elements of estafa under Article 315 (2-d) of the Revised Penal Code are also
present in that crime punishable under Batas Pambansa Bilang 22 namely (1)
"the postdating or issuance of a check in payment of an obligation contracted
at the time the check was issued; (2) lack or insufficiency of funds to cover
the check and (3) damage to the payee thereof."
Petitioner's contentions are devoid of merit.
72
Petitioner is charged with two (2) distinct and separate offenses, first under
Section 1 of Batas Pambansa Bilang 22 approved on April 3, 1979 which
provides that:
Any person who makes or draws and issues any check to apply on account or
for value, knowing at the time of issue that he does not have sufficient funds
in or credit with the drawee bank for the payment of such check in full upon
its presentment, which check is subsequently dishonored by the drawee bank
for insufficiency of funds or credit or would have been dishonored for the
same reason had not the drawer, without any valid reason ordered the bank to
stop payment, shall be punished by imprisonment of not less than thirty days
but not more than one (1) year or by a fine of not less than but not more than
double the amount of the check which fine shall in no case exceed TWO
HUNDRED THOUSAND PESOS or both such fine and imprisonment at the
discretion of the court.
and, second, under Article 315, (2-d) of the Revised Penal Code which states
as follows:
Art. 315.Swindling (estafa). Any person who shall defraud another by any of
the means mentioned herein below . . .
xxx xxx xxx
2. By means of any of the following false pretenses or fraudulent acts,
executed prior to or simultaneously with the commission of the fraud;
xxx xxx xxx
(d) By postdating a check or issuing a check in payment of an obligation
when the offender had no funds in the bank, or his funds deposited therein
were not sufficient to cover the amount of the check.
What petitioner failed to mention in his argument is the fact that deceit and
damage are essential elements in Article 315 (2-d) Revised Penal Code, but
are not required in Batas Pambansa Bilang 22. Under the latter law, mere
issuance of a check that is dishonored gives rise to the presumption of
knowledge on the part of the drawer that he issued the same without sufficient
funds and hence punishable (People v. Veridiano, 132 SCRA 523) which is
not so under the Penal Code. Other differences between the two also include
the following: (1) a drawer of a dishonored check may be convicted under
Batas Pambansa Bilang 22 even if he had issued the same for a pre-existing
obligation, while under Article 315 (2-d) of the Revised Penal Code such
circumstance negates criminal liability; (2) specific and different penalties
are imposed in each of the two offenses; (3) estafa is essentially a crime
against property, while violation of Batas Pambansa Bilang 22 is principally
a crime against public interest as it does injury to the entire banking system;
(4) violations of Article 315 of the Revised Penal Code are mala in se, while
those of Batas Pambansa Bilang 22 are mala prohibita.
These differences are better understood by presenting the pertinent
discussions on the passage of Batas Pambansa Bilang 22 between the author
of the bill, former Solicitor General and Member of the Batasang Pambansa,
the Honorable Estelito P. Mendoza, presented in the memorandum for the
government as follows:
MR. MENDOZA. If there is evidence demonstrating that the act
committed does not only violate this proposed Act but also the Revised Penal
Code, there will be further prosecution under the Revised Penal Code. That
is why it is proposed in this Act that there be a single uniform penalty for all
violations in this Act. However the court is given the discretion whether to
impose imprisonment or fine or both or also in whatever severity the court
may consider appropriate under the circumstances.
xxx xxx xxx
MR. VELOSO, F. The other way around, it is not so. So precisely, if
I file a case for estafa against a particular person for issuance of a bouncing
check, then necessarily I can also be prosecuted under this proposed bill. On
the other hand, if a person is prosecuted under the proposed bill, it does not
necessarily follow that he can be prosecuted for estafa.
MR. MENDOZA. This is simply because that in a certain set of
circumstances, the offense under this Act is the only offense committed while
under a different set of circumstances, not only the offense described in this
Act is committed but also estafa. So that, for example, if a check with
sufficient funds is issued in payment of a pre-existing obligation and the
position of the Government should turn out to be correct that there is no
estafa, then the drawer of the check would only be liable under this Act but
not under the Revised Penal Code. But if he issues a check in payment, or
73
contemporaneously with incurring, of an obligation, then he will be liable not
only for estafa but also for violation for this Act. There is a difference
between the two cases. In that situation where the check was issued in
payment of a pre-existing obligation, the issuance of the check does not cause
damage to the payee and so it is but appropriate that he should not be held for
estafa but only for violating this Act. But if he issued a check to induce
another, to part with a valuable consideration and the check bounces, then he
does inflict an injury to the payee of the check apart from violating this law.
In that case, it should be but fair that he be subject to prosecution not only for
estafa but also for violating this law.
MR. VELOSO, F. Yes, I agree with the Solicitor General on that
point but my worry is with respect to situations where there is prosecution
first to estafa.
MR. MENDOZA. Well, if there is estafa . . .
MR. VELOSO, F. Estafa committed by the issuance of a bouncing
check, in which case it will be mandatory on the part of the prosecuting
official to also file a case for violation of this offense under the proposed bill.
MR. MENDOZA. Yes, that is correct. In such a situation because if the
offender did not only cause injury on account of the issuance of the check but
did issue a bouncing check penalized under this Act, then he will be liable for
prosecution under both laws. I would admit that perhaps in such situation, the
penalty may be somewhat severe. As a matter of fact, in other jurisdictions,
the issuance of bouncing checks is penalized with substantially lower penalty.
However, because of the situation in the Philippines, the situation being now
relatively grave that practically everybody is complaining about bouncing
checks, may be it is necessary at least initially, at this point in time for us to
impose a rather severe penalty and even allow liability not only under this
Act but also for estafa. Then perhaps, after the necessary discipline has been
inculcated in our people and that the incidence of the offense has been
reduced, we may then decide to amend the law and reduce the penalty. But at
this time, shall we say the evil is of such magnitude that only a dramatic and
expeditious effort to prosecute persons who issue bouncing checks may be
necessary to curb quickly this evil. (explanations given by Solicitor General
ESTELITO P. MENDOZA at the Batasan Pambansa during his sponsorship
speech of BP 22 which he authored, pages 1037-1038, Record of the Batasan,
Plenary Session No. 70, Dec. 4, 1978). (Emphasis supplied). (pp. 115-117,
Rollo or pp. 9-11, Memorandum for respondents).
Furthermore, Section 5 of Batas Pambansa Bilang 22 provides that:
Prosecution under this Act shall be without prejudice to any liability for
violation of any provision of the Revised Penal Code.
While the filing of the two sets of Information under the provisions of Batas
Pambansa Bilang 22 and under the provisions of the Revised Penal Code, as
amended, on estafa, may refer to identical acts committed by petitioner, the
prosecution thereof cannot be limited to one offense, because a single
criminal act may give rise to a multiplicity of offenses and where there is
variance or differences between the elements of an offense in one law and
another law as in the case at bar there will be no double jeopardy because
what the rule on double jeopardy prohibits refers to identity of elements in
the two (2) offenses. Otherwise stated prosecution for the same act is not
prohibited. What is forbidden is prosecution for the same offense. Hence, the
mere filing of the two (2) sets of information does not itself give rise to double
jeopardy (People v. Miraflores, 115 SCRA 570).
In the instant petition, certiorari is not the proper remedy. We have held in
Acharon v. Purisima, et al. (13 SCRA 309) that "when a motion to quash a
criminal case is denied, remedy is not certiorari but to go to court without
prejudice to reiterating special defenses invoked in the motion, and if after
trial on the merits, an adverse decision is rendered, to appeal therefrom in the
manner authorized by law," invoking the rule laid down in People v.
Magdaluyo (1 SCRA 990). If the petitioner cannot appeal at this state of the
proceeding, it is because there is still a necessity for the trial on the merits
wherein the parties may present proofs in support of their contentions and not
because the remedy of appeal is unavailing.
WHEREFORE, premises considered, the petition for certiorari is hereby
DISMISSED for lack of merit.
SO ORDERED.
74
G.R. No. 160959 April 3, 2007
ANTONIO DIAZ, Petitioner,
vs.
DAVAO LIGHT AND POWER CO., INC., MANUEL M. ORIG and
ELISEO R. BRAGANZA, JR., Respondents.
DECISION
CALLEJO, SR., J.:
This is a Petition for Review on Certiorari of the Decision1 of the Court of
Appeals (CA) in CA-G.R. CV No. 68709, which affirmed the Decision2 of
the Regional Trial Court (RTC) of Davao City, Branch 11, in Civil Case No.
21,655-92.
Antecedents
Antonio G. Diaz was the president of Diaz and Co., Inc. He was also vice-
president of Diaz Realty Inc. which, in turn, owned the Doña Segunda Hotel,3
formerly known as the Davao Imperial Hotel (Imperial Hotel Building),4
located along C.M. Recto Avenue, Davao City. Davao Light and Power Co.,
Inc. (DLPC), on the other hand, is a public utility duly franchised to provide
light, heat and power to its customers in Davao City and the municipalities of
Panabo, Santo Tomas and Carmen, in Davao del Norte.5 Manuel Orig was
the resident manager/vice-president for Administration of DLPC,6 while
Eliseo R. Braganza was its in-house lawyer.7 DLPC supplied the Doña
Segunda Building (Imperial Hotel Building) with electricity service8 under
Account No. 087-10669 and with Meter No. 36510.9
On July 25, 1983, DLPC sent a Notice of Disconnection10 to Diaz and Co.,
Inc. informing it that, as of June 13, 1983, the hotel’s unpaid electric
consumption bill amounted to ₱190,111.02.11 It also warned that if the
amount was not paid, DLPC would be impelled to discontinue its service.
Since Diaz and Co., Inc. ignored the letter, Meter No. 36510 was
disconnected on July 29, 1983.12
DLPC then filed a complaint for collection before the RTC, Cebu City, which
case was docketed as Civil Case No. CEB-1049.
Meanwhile, in 1984, the National Food Authority (NFA) established its
KADIWA13 store at C.M. Recto Avenue, Davao City.14 It leased a portion
of the ground floor of the Imperial Hotel Building from Diaz and Co., Inc.15
NFA/KADIWA also applied for electricity service with DLPC, and a
contract16 was later executed between the parties. On March 15, 1984, DLPC
connected the area leased by NFA/KADIWA to its electric grid17 under
Account No. 091-12643,18 and installed Meter No. 8473819 to measure
NFA/KADIWA’s monthly electric consumption.
In August 1986, the Kadiwa Center IV closed, and NFA/KADIWA vacated
the Doña Segunda Building.20 In a letter21 dated August 11, 1986,
NFA/KADIWA Provincial Manager, Roberta R. Melendres, informed DLPC
that the light and power connection of NFA/KADIWA would be left behind;
its right to the connection would be transferred to Diaz.22 She also informed
DLPC that the ₱1,020.00 deposit of NFA/KADIWA for the power
connection had been refunded to it by Diaz.23
In a letter24 dated September 2, 1986, Diaz informed respondent Manuel
Orig that he had leased the untenanted portions of the Doña Segunda Building
from Diaz and Co., Inc., and requested that a new electrical connection for
the building in his name be installed, separate from the one assigned to him
by NFA.25
On September 15, 1986, DLPC denied the request on the ground that since
Diaz and Co., Inc. is a closed family corporation whose stockholders are the
immediate members of the Diaz family, the lease in favor of Diaz could be
simulated.26 DLPC, however, reminded Diaz that it would be too happy to
grant his request "if he and/or Diaz and Co., Inc. would pay what is due and
owing to it."27
Diaz and Co., Inc. sent a letter28 to DLPC dated September 17, 1986
declaring that it had assumed the electrical bills of NFA/KADIWA under
Account No. 091-12643, and requested that the monthly bills/statements be
sent to it. In its reply, DLPC rejected the request and declared that it was not
aware that Diaz and Co., Inc. had refunded the NFA/KADIWA its ₱1,020.00
deposit.29
On September 26, 1986, Diaz filed a petition for mandamus30 before the
RTC, Davao City. He alleged that as a holder of a certificate of public
75
convenience, DLPC is mandated by law to provide him with electric service;
the grounds relied upon by respondent Orig in denying his application are
anchored on bias and prejudice, since he (Diaz) is one of the stockholders of
Diaz and Co. Inc., the owner of the Davao Imperial Hotel; and the civil case
filed by DLPC is against Diaz and Co., Inc. and not personally against him.31
The complaint was docketed as Civil Case No. 18,288.
Meanwhile, on September 23, 1986, the portion of the building formerly
leased by NFA/KADIWA was leased to Matias Mendiola.32 Because he
needed more electricity than what could be provided by the existing electrical
wirings, Mendiola opted to change the electrical installation from a one-phase
meter to a three-phase meter connection.33 Mendiola’s application was
approved by DLPC. On December 19, 1986, DLPC and Mendiola executed
a service Contract34 for electricity service.
On January 7, 1987, Diaz filed an application for preliminary injunction in
Sp. Civil Case No. 18,28835 to enjoin DLPC from disconnecting the electric
connections to Meter No. 84738 under Account No. 091-12643. Also, an
Inter-Office Memo36 dated January 7, 1987, signed by Officer-in-Charge,
Rebecca Madrid, was issued to all security guards of the Doña Segunda
Building who were ordered to prevent anyone from disturbing Meter No.
84738.37 Because of this, DLPC failed to substitute its single-phase meter
with a three-phase meter. DLPC’s linemen thus installed the three-phase
meter without removing the single-phase meter.381a\^/phi1.net
On March 12, 1987, the RTC in Sp. Civil Case No. 18,288, denied the motion
for issuance of a writ of preliminary injunction39 filed by Diaz. He moved
for a reconsideration, which was, however, denied in the Order40 dated
August 20, 1987. DLPC then removed its single-phase meter on November
20, 1987, which rendered almost half of the building without power.41 That
same day, Diaz went to the DLPC building and threw stones at it, breaking
four glass windows in the process.42 He then bought his own electric meter,
Meter No. 86673509,43 had it calibrated by the Board of Energy, and
unilaterally replaced Meter No. 84738. The electricity in the building was
then restored.44
On November 24, 1987, Diaz filed a Complaint for Damages with Prayer for
Preliminary Prohibitory and Mandatory Injunction and Restraining Order45
before the RTC, Davao City, docketed as Civil Case No. 18,855-87. In the
said complaint, Diaz claimed that DLPC arbitrarily and illegally removed
Meter No. 84738 in violation of their business franchise and Article 19 of the
New Civil Code, and had threatened to remove Meter No. 86673509.46
DLPC, for its part, filed a counter-application for preliminary mandatory
injunction47 in the same case to compel the removal of Meter No. 86673509
which Diaz had installed without DLPC’s consent and authority.48 The RTC
issued an Order49 dated March 30, 1988 denying Diaz’s application for
prohibitory and mandatory injunction, and granting DLPC’s counter-
application for preliminary mandatory injunction. The RTC ordered Diaz to
immediately remove Meter No. 86673509 and disconnect the electrical
wirings he had unilaterally connected to the upper floor rooms. Diaz filed a
motion for reconsideration but was denied.1a\^/phi1.net On June 13, 1998,
the sheriff, with the aid of DLPC personnel, caused the removal of Meter No.
86673509.50
Aggrieved, Diaz assailed the orders via petition for certiorari before the CA.
The petition was docketed as CA-G.R. SP No. 14909. On October 19, 1988,
the CA rendered a Decision51 granting Diaz’s petition, to wit:
Wherefore, in view of the foregoing, the petition is hereby granted and the
orders of the lower court dated March 30, 1988 and June 1, 1988 are set aside.
Private respondents are thus ordered to maintain the status quo ante which
existed before the issuance of the orders complained against, or else to
connect its own electric meter to the premises, on the understanding, of
course, that petitioner pays his electric bills and without prejudice to the
continuance of the collection case against Diaz and Company.52
DLPC elevated the decision before this Court, via petition for review on
certiorari. The petition was docketed as G.R. No. 85445.53
Meanwhile, on December 19, 1998, the parties in Civil Case No. CEB-
104954 executed a Compromise Agreement,55 wherein they stipulated the
following:
1. Plaintiff-appellee hereby reduces its total claims in the complaint to only
₱385,000.00 and further waives any claim in excess of said amount in the
same case, and the defendant-appellant shall pay said amount in full
immediately upon the execution of this agreement. The latter also waives its
counterclaims against the former in the above-entitled case.
76
2. Upon receipt of the payment of the aforesaid sum, plaintiff-appellee shall
immediately grant and install in favor of defendant-appellant or Antonio G.
Diaz electric service for the Doña Segunda Building, popularly known as
Imperial Hotel Building, or for portions thereof designated by either
including the tenants or lessees occupying the same, upon proper application
therefor and the presentation of the requisite electrical permit.
3. the parties agree to the dismissal of Civil Case No. 18,288 of the Regional
Trial Court of Davao City, pending in Branch XVI thereof, entitled "Diaz vs.
Davao Light & Power Co., Inc. and Manuel Orig." for Mandamus inclusive
of the counter-claim therein, the same having become moot and academic.
WHEREFORE, it is most respectfully prayed that this Honorable Court
approves the foregoing compromise agreement and render judgment based
thereon, and enjoin the parties to comply strictly with the terms thereof.
The RTC, in Civil Case No. CEB-1049, rendered a Decision56 approving the
compromise on January 5, 1989.
In Sp. Civil Case No. 18,288, the parties also filed a Joint Motion to
Dismiss57 based on the Compromise Agreement, and the RTC thereafter
ordered the dismissal of the case.58
On April 17, 1989, this Court in G.R. No. 85445, issued a Resolution,59
denying the petition for review on certiorari questioning the CA decision in
CA-G.R. SP No. 14909 for being moot and academic. The resolution reads:
After deliberating on the allegations made, the issues raised, and the
arguments advanced in the Petition, the Comment and the Reply, and it
appearing that petitioner is now providing electrical service to private
respondent’s entire building, the Court RESOLVED to DENY the petition
for having become moot and academic. The Court makes the admonition,
however, that connections of electrical service and installations of electric
meters should always be upon mutual contract of the parties, and that
payments for electrical consumption should also be made promptly whenever
due. Contracts lay down the law between the parties and obligations arising
therefrom should be complied with.
Meanwhile, on June 30, 1997, the RTC rendered a Decision60 in Civil Case
No. 18,855-87 dismissing the case filed by Diaz.61
Diaz appealed the decision with the CA in CA-G.R. CV No. 63236,62 which
appeal is still pending before the appellate court.
Based on the aforestated facts, on July 11, 1988, DLPC filed a complaint for
theft of electricity against Diaz with the City Prosecutor’s Office, Davao City;
respondent Braganza submitted an Affidavit63 to support the charge. In
defense, Diaz alleged the following: (1) that the complaint was intended to
harass him; (2) he was entitled to electric service by virtue of his subrogation
to the right of NFA/KADIWA; (3) the installation of Meter No. 86673509
was made with the knowledge and consent of DLPC; (4) there is a pending
case between the parties regarding Meter Nos. 84738 and 86673509; and (5)
the filing of the action is premature. The complaint was docketed as I.S. No.
593.
On March 21, 1989, Lolito O. Evangelino, 4th Asst. City Prosecutor, City
Prosecutor’s Office of Davao City, issued a Resolution64 recommending the
dismissal of the charge. He opined that the correspondence to DLPC Manager
Orig negated DLPC’s claim of lack of consent and knowledge, and since the
issue is still pending litigation in court, the determination of whether there is
theft of electricity is premature (Sp. Civil Case No. 18288 and Civil Case No.
18,855-87).
DLPC filed a Motion for Reconsideration65 which the City Prosecutor
denied on the ground that DLPC failed to establish the elements of unlawful
taking and intent to gain. DLPC appealed the dismissal to the Secretary of
Justice,66 who, however, dismissed the appeal in a letter67 dated August 2,
1990. The Motion for Reconsideration68 filed by DLPC was likewise denied
in the letter69 dated September 6, 1990.
Undaunted, DLPC filed a criminal complaint70 against Diaz for Violation of
P.D. 401,71 as amended by B.P. Blg. 87672 with the City Prosecutor’s
Office, Davao City.73 The complaint was docketed as I.S. No. 92-4590. In
his counter-affidavit dated September 19, 1992, Diaz alleged that a similar
complaint (I.S. No. 593) had been filed by DLPC against him.74 In a
Resolution75 dated October 23, 1992, Calixto A. Esparagoza, 2nd Asst. City
Prosecutor, dismissed the case. The Public Prosecutor likewise denied the
motion for reconsideration of DLPC on November 26, 1992.
77
Meanwhile Diaz, Ramos, and Arguellas, as complainants, filed a criminal
complaint with the Office of the Provincial Fiscal of Davao del Norte
charging the officers of DLPC with estafa through falsification of public
documents. They also alleged that the officers of DLPC exacted additional
and illegal profits from its consumers by devising a deceptive Varying
Discount Formula; based on the alleged misrepresentation of said officers,
the Board of Energy (BOE) granted DLPC provisional authority to apply the
formula, thereby resulting in losses of more or less ₱300,000.00 to Diaz,
Ramos, and Arguelles.76 As regards the charge of falsification, the
complainants alleged that DLPC had its properties appraised by the Technical
Management Services, Philippines, Inc. (TAMSPHIL), and included non-
existent properties that did not belong to it; it also recorded the TAMSPHIL
appraisal in its books of account even before it had been approved by the
BOE; and submitted financial statements containing the appraisal to the
Securities and Exchange Commission and the BOE.77
The Investigating Prosecutor found probable cause against the respondents.
An Information was filed before the then Court of First Instance (CFI) of
Tagum, Davao del Norte, docketed as Crim. Case No. 5800. Respondents
appealed the resolution of the public prosecutor finding probable cause
against them. The appeal was granted. On motion of the Prosecutor, the RTC
dismissed the case in an Order dated July 13, 1983.78
On August 9, 1983, the officers of DLPC, Eduardo J. Aboitiz, Luis Aboitiz,
Jr., Roberto E. Aboitiz, Jon R. Aboitiz, and Edson H. Canova, as plaintiffs,
filed a Complaint against Diaz, Isagani T. Fuentes (Provincial Fiscal of
Davao del Norte), Petronilo D. Ramos (Municipal Mayor of Carmen, Davao
del Norte), Gabriel Arguelles (Municipal Attorney of Panabo, Davao del
Norte) before the RTC, Cebu City, for damages and attorney’s fees against
the defendants for malicious prosecution.79
The case was docketed as CEB Case No. 1055. After trial on the merits, the
RTC rendered a Decision80 on April 30, 1992, dismissing the complaint. The
fallo of the decision reads:
WHEREFORE, premises considered, plaintiffs’ complaint and defendants’
counterclaim are hereby DISMISSED for lack of cause of action with costs
de oficio.
SO ORDERED.81
Both parties appealed the decision before the CA, docketed as CA-G.R. CV
No. 41399.1ªvvphi1.nét
Diaz, et al. relied on the following grounds:
I
TRIAL COURT ERRED IN IGNORING PLAINTIFF-APPELLANT’S
(SIC) EVIDENCE OF CONSPIRACY AMONG ALL DEFENDANT-
APPELLANTS (SIC) AND IN MAKING NO FINDING THAT THERE
WAS A CONSPIRACY TO PROSECUTE PLAINTIFF-APPELLANTS
(SIC) CRIMINALLY FOR USE AS LEVERAGE IN ORDER TO OBTAIN
CONCESSIONS FROM DAVAO LIGHT & POWER CO.
II
TRIAL COURT ERRED IN HOLDING THAT PLAINTIFF-APPELLANTS
(SIC) HAVE NO CAUSE OF ACTION BY COMMITTING THE
FOLLOWING ERRORS:
(a) IN FINDING THAT THERE WAS NO PROSECUTION AND NO
ACQUITTAL;
(b) IN FINDING THAT THERE WAS PROBABLE CAUSE FOR
DEFENDANT-APPELLANT’S (SIC) CHARGE OF ESTAFA THROUGH
FALSIFICATION;
(c) BY IGNORING THE FACT THAT THERE WAS NO EVIDENCE
LINKING PLAINTIFF-APPELLANTS (SIC) TO THE CRIME
CHARGED;
(d) BY IGNORING THE CIRCUMSTANCES THAT MANY
ALLEGATIONS IN THE JOINT AFFIDAVIT OF DEFENDANT-
APPELLANTS (SIC) ARE INADMISSIBLE;
(e) BY IGNORING THE FACT THAT DAVAO LIGHT’S USE OF THE
VARYING DISCOUNT FORMULA WAS ADMITTEDLY
PROVISIONALLY AUTHORIZED BY THE BOE WHICH AUTHORITY
78
WAS IN FORCE DURING THE FILING AND PENDENCY OF THE
CHARGE;
(f) BY IGNORING THE FACT THAT THE VARYING DISCOUNT
FORMULA WAS A FORMULA TO DETERMINE THE AMOUNT OF
DISCOUNT DEDUCTIBLE FROM THE RATES EARLIER FIXED BY
THE BOE RESULTING FROM THE COST SAVINGS REALIZABLE
FROM THE CHEAPER COST OF ELECTRIC POWER SOLD BY NPC
TO DAVAO LIGHT, AND ITS NEGATIVE ASPECT WAS MERELY AN
INCORPORATION INTO SAID FORMULA OF THE FUEL CLAUSE
ADJUSTMENT ALREADY AUTHORIZED IN THE DECISION OF SAID
BOARD IN CASE NO. 73-146;
(g) BY BEING OBLIVIOUS OF THE CIRCUMSTANCE THAT THERE
WAS NO FRAUD OR DECEIT IN SECURING SAID PROVISIONAL
AUTHORITY, AND THE BOARD MADE NO SUCH FINDING;
(h) BY IGNORING THE UNREBUTTED EVIDENCE THAT
APPELLANT FUENTES DISOBEYED THE DIRECTIVE OF HIS
SUPERIOR, THE CHIEF STATE PROSECUTOR TO HOLD IN
ABEYANCE FURTHER PROCEEDINGS IN I.S. NO. 82-115, AND THAT
HE FILED AN INFORMATION CHARGING PLAINTIFF-APPELLANTS
(SIC) WITH AN OFFENSE DIFFERENT FROM THAT SUBJECT OF HIS
PRELIMINARY INVESTIGATION;
(i) IN FINDING THAT DEFENDANT-APPELLANTS (SIC) DID NOT
ACT WITH MALICE AND HAD ACTED IN GOOD FAITH IN FILING
SAID CHARGE.
III
TRIAL COURT ERRED IN NOT AWARDING DAMAGES TO
PLAINTIFF-APPELLANTS (SIC).82
For their part, DLPC, et al. alleged the following:
I 1) Immediately issue a temporary restraining order ex-parte precluding
THAT THE TRIAL COURT ERRED IN HOLDING THAT DEFENDANTS
APPELLANTS’ COUNTERCLAIMS HAVE NO CAUSE OF ACTION.
II
THAT THE TRIAL COURT ERRED IN NOT AWARDING DAMAGES
AND ATTORNEY’S FEES.83
On October 30, 2001, the CA rendered a Decision84 affirming the decision
of the RTC.
Diaz, et al. appealed the decision before this Court, docketed as G.R. No.
154378. On November 13, 2002, this Court resolved to dismiss the petition
for lack of merit.85 On April 15, 2003, as per Entry of Judgment,86 the
resolution of this Court became final and executory.
On June 10, 1992, DLPC instituted a civil action for Damages,87 before the
RTC, Cebu City, against Diaz for defamatory and libelous remarks and for
abuse of rights. The plaintiff alleged that Diaz, motivated by malice and ill-
will, had taken it upon himself to find fault in DLPC’s acts and oppose all its
application with the BOE, using the media to assault its good name by
circulating or publishing libelous and false statements in the newspapers. The
case was docketed as Civil Case No. CEB-11843.
DLPC further alleged that Diaz published and disseminated a handbill
claiming that there was something irregular and anomalous regarding the
Energy Regulation Board’s approval of the appraisal of the properties and
equipment of DLPC, because of which the customers of DLPC could expect
a ₱5.00 per kilowatt charge in the future. Diaz allegedly gave identical
interviews with the Mindanao Daily Mirror and the Ang Peryodiko Dabaw
reiterating what he said in the handbill.88 In addition, Diaz, in an interview
with the People’s Daily Forum, claimed that the National Power Corporation
sold two (2) generating sets to DLPC for only ₱1.00 each.89
Consequently, DLPC suffered besmirched reputation and public humiliation,
and damage to its business standing. The complaint contained the following
prayer:
defendant from committing further acts of tort or libel against plaintiff, and
after the hearing of plaintiff’s application for preliminary injunction, issue
such writ after posting of the required injunction bond;
79

2) After trial, render judgment in favor of plaintiff and against defendant
Antonio Diaz making the injunction permanent, and ordering the latter to pay
the former –
a) The sum of ₱10,000,000.00 as moral damages anddamages to its business
standing;
b) The sum of ₱300,000.00 as exemplary damages;
c) The sum of ₱500,000.00 as attorney’s fees and expenses of litigation;
d) The cost of suit.90
After trial, the RTC in Civil Case No. CEB-11843 rendered a Decision91 in
favor of DLPC and against Diaz, awarding more than ₱1,500,000.00 in
damages to DLPC and dismissing the counterclaim of Diaz. The decretal
portion reads:
WHEREFORE, premises above set-forth, the Court hereby renders judgment
in favor of plaintiff Davao Light & Power Co., Inc. and against defendant
Antonio Diaz ordering said defendant:
1. To pay plaintiff the amount of ₱1,500,000.00 by way of moral damages
for besmirched reputation, loss of business standing and goodwill;
2. To pay plaintiff the amount of ₱300,000.00 in exemplary damages by way
of example or correction for the public good; and
3. To pay plaintiff the amount of ₱500,000.00 in attorney’s fees and litigation
expenses and to pay the costs.
Defendant takes nothing from his counterclaim.
SO ORDERED.92
Both parties appealed the decision to the CA in CA-G.R. CV No. 65082,
which appeal is still pending.
On October 30, 1992, Diaz, as plaintiff, filed a complaint for Damages,
Injunction with Writ of Preliminary Injunction and Temporary Restraining
Order, Plus Attorney’s Fee93 against DLPC before the RTC, Davao City; the
case was docketed as Civil Case No. 21,655-92. Diaz alleged that DLPC’s
filing of criminal cases, I. S. No. 593 for theft of electricity and I.S. No. 92-
4590 for violation of P.D. 401, as amended by B.P. Blg. 876), were intended
to harass and humiliate him before the public and government authorities and
ruin his image;94 he was seriously prejudiced by the filing of an ₱11.6
Million damage suit in Civil Case No. CEB-1055 and a ₱10.8 Million damage
suit in Civil Case No. CEB-11843;95 defendants, by their common and joint
acts, were motivated by evident bad faith and intentionally caused injustice
to his person in violation of Article 19 of the New Civil Code.96 Diaz thus
prayed:
WHEREFORE, and in view of the foregoing, it is most respectfully prayed
of the Honorable Court:
a) Before notice and hearing to issue a temporary restraining order enjoining
defendants from committing any unlawful, illegal, tortiuous (sic) and
inequitable act which may affect the individual rights of plaintiff, and after
hearing to issue writ of preliminary injunction for the same purpose upon
posting of the bond;
b) After trial on the merits, to make the writ of injunction as permanent;
c) To order defendants to pay plaintiff, jointly and severally, moral damages
in the amount of ₱10,000,000.00, attorney’s fee in the amount of
₱500,000.00, litigation expenses in the amount of ₱100,000.00 and
exemplary damage in the amount of ₱100,000.00; and,
d) To grant to plaintiff such other relief proper and equitable under the
premises.97
On November 4, 1992, the RTC issued a TRO98 in favor of Diaz, directing
DLPC or any person acting for and in its behalf, to desist and refrain from
committing any unlawful, tortuous and inequitable conduct which may affect
the former for a period of twenty (20) days.
During the pre-trial, the parties limited the issue to "whether or not the
plaintiff is entitled to damages by virtue of the filing of the criminal cases
80
against him for theft of electricity and violation of P.D. 401, both of which
were already dismissed." Due to the pendency of various actions before
several courts, the trial court opted to segregate the issues. It focused only on
the alleged malicious prosecution with regard to the filing of the criminal
action for theft, I. S. No. 593, and for Violation of P.D. 401, as amended by
B.P. Blg. 876, I.S. No. 92-4590. The RTC reasoned in this wise:
The records show that plaintiff’s first cause of action, which is damages for
defendant’s refusal to grant him electric service, has become moot and
academic by virtue of the compromise agreement executed by the plaintiff
and the defendant in the mandamus case docketed as Civil Case No. 18288
of this Court. The parties filed a Joint Motion to Dismiss based on the
Compromise Agreement which was granted by this Court and which led to
the eventual dismissal of the case with prejudice.
In summary, plaintiff asks for damages for defendant’s alleged malicious
prosecution of a criminal case of theft of electricity against him, for plaintiff’s
filing of a charge of violation of P.D. 401 as amended after dismissal of the
theft case, the filing of a damage suit against him before the RTC of Cebu
City which was dismissed and the filing of another damage suit before the
same Cebu RTC which is still pending. Damages are also being sought for
defendant’s removal of Electric Meter No. 847328 (sic). But this is a subject
matter of a case pending before Branch 13 of this Court and therefore said
court retains jurisdiction over the said cause of action. x x x99
On May 22, 2000, the RTC rendered a Decision100 dismissing the complaint.
The fallo reads:
In view of all the foregoing, finding no merit in plaintiff’s complaint,
judgment is hereby rendered dismissing said complaint with costs de oficio.
SO ORDERED.101
The RTC held that while the City Prosecutor, and later the Secretary of
Justice, concluded that there was no probable cause for the crime of theft, this
did not change the fact that plaintiff made an illegal connection for
electricity.102 A person’s right to litigate should not be penalized by holding
him liable for damages.
Diaz appealed the decision to the CA, alleging that:
I ― THE TRIAL COURT ERRED IN HOLDING THAT “WHEN THE
DEFENDANTS FILED THE CASES OF THEFT, THEY DID SO IN
HONEST BELIEF THAT PLAINTIFF IS CRIMINALLY LIABLE”.
II ― THE TRIAL COURT ERRED IN DISMISSING THE CASE AT BAR
AND WITHOUT GRANTING THE AWARD OF DAMAGES.103
On October 1, 2003, the CA affirmed the decision of the RTC.104 It
concluded that the evidence on hand showed good faith on the part of DLPC
in filing the subject complaints. It pointed out that Diaz had been using the
electrical services of DLPC without its consent. As to the effect of the
compromise agreement, the CA ruled that it did not bar the filing of the
criminal action. Thus, under the principle of damnum absque injuria, the
legitimate exercise of a person’s right, even if it causes loss to another, does
not automatically result in an actionable injury.105
Diaz, now petitioner, comes before this Court in this petition for review on
certiorari, raising the following errors:
a) "Proof of moral suffering must be introduced, otherwise the award of moral
damage is not proper. In this case, the evidence presented by the appellant is
insufficient to overcome the presumption of good faith." (Decision, p. 10)
b) "In view of the foregoing, it is clear that the subject complaints were filed
so as to protect appellee DLPC’s interest. In this regard, it must be borne in
mind that no person should be penalized for the exercise of the right to
litigate." (Decision, p. 12)106
The issues raised in the present action can be summarized as follows: (1)
whether or not the compromise agreement entered into between DLPC and
Diaz barred the former from instituting further actions involving electric
Meter No. 84736 or 86673509; (2) whether or not DLPC acted in bad faith in
instituting the criminal cases against Diaz; and (3) whether or not Diaz is
entitled to damages.
The petition is without merit.
Petitioner insists that the compromise agreement as well as the decision of
the CA in CA-G.R. SP No. 14909 already settled the controversies between
81
them; yet, DLPC instituted the theft case against Diaz, and worse, instituted
another action for violation of P.D. 401, as amended by B.P. Blg. 876. Thus,
the only conclusion that can be inferred from the acts of DLPC is that they
were designed to harass, embarrass, prejudice, and ruin him. He further avers
that the compromise agreement in Civil Case No. CEB-1049 completely
erased litigious matters that could necessarily arise out of either Electric
Meter No. 84736 or 86673509.107 Moreover, Diaz asserts that the evidence
he presented is sufficient to prove the damages he suffered by reason of the
malicious institution of the criminal cases.
We do not agree.
Article 2028 of the Civil Code defines a compromise as a contract whereby
the parties, by making reciprocal concessions, avoid litigation or put an end
to one already commenced. The purpose of compromise is to settle the claims
of the parties and bar all future disputes and controversies. However, criminal
liability is not affected by compromise for it is a public offense which must
be prosecuted and punished by the Government on its own motion, though
complete reparation should have been made of the damages suffered by the
offended party. A criminal case is committed against the People, and the
offended party may not waive or extinguish the criminal liability that the law
imposes for the commission of the offense.108 Moreover, a compromise is
not one of the grounds prescribed by the Revised Penal Code for the
extinction of criminal liability.109
As can be inferred from the compromise agreement, Diaz and DLPC merely
agreed to (1) reduce the latter’s total claims to only ₱385,000.00; (2) for
DLPC to waive its counterclaims against Diaz; and (3) upon receipt of the
amount, for DLPC to immediately install the necessary electric service to the
building. The parties likewise agreed to the dismissal of Sp. Civil Case No.
18,288 for being moot and academic. Nowhere in said agreement did the
parties agree that DLPC was barred from instituting any further action
involving electric Meter No. 84736 or 86673509.
We find that petitioner is not entitled to damages under Articles 19,110
20[111 and 21,112 and Articles 2217113 and 2219(8)114 of the New Civil
Code.
The elements of abuse of rights are the following: (a) the existence of a legal
right or duty; (b) which is exercised in bad faith; and (c) for the sole intent of
prejudicing or injuring another.115 Thus, malice or bad faith is at the core of
the above provisions.116 Good faith refers to the state of the mind which is
manifested by the acts of the individual concerned. It consists of the intention
to abstain from taking an unconscionable and unscrupulous advantage of
another.117 Good faith is presumed and he who alleges bad faith has the duty
to prove the same.118 Bad faith, on the other hand, does not simply connote
bad judgment to simple negligence, dishonest purpose or some moral obloquy
and conscious doing of a wrong, a breach of known duty due to some motives
or interest or ill-will that partakes of the nature of fraud. Malice connotes ill-
will or spite and speaks not in response to duty. It implies an intention to do
ulterior and unjustifiable harm. Malice is bad faith or bad motive. 119
The evidence presented by respondents negates malice or bad faith. Petitioner
himself alleged in his complaint that he unilaterally installed Meter No.
86673509 to replace Meter No. 84738 after it was removed by DLPC. No less
than this Court, in G.R. No. 85445, admonished petitioner and reminded him
that connections of electrical service and installations of electric meters
should always be upon mutual contract of the parties, and that payments for
electrical consumption should also be made promptly whenever due.120
Based on these established facts, petitioner has not shown that the acts of
respondent were done with the sole intent of prejudicing and injuring him.
Petitioner may have suffered damages as a result of the filing of the
complaints. However, there is a material distinction between damages and
injury. Injury is the illegal invasion of a legal right; damage is the loss, hurt
or harm which results from the injury; and damages are the recompense or
compensation awarded for the damage suffered. Thus, there can be damage
without injury in those instances in which the loss or harm was not the result
of a violation of a legal duty. In such cases, the consequences must be borne
by the injured person alone; the law affords no remedy for damages resulting
from an act which does not amount to a legal injury or wrong. These
situations are often called damnum absque injuria.121 Whatever damages
Diaz may have suffered would have to be borne by him alone since it was his
acts which led to the filing of the complaints against him.
On the other hand, malicious prosecution has been defined as an action for
damages brought by or against whom a criminal prosecution, civil suit or
other legal proceeding has been instituted maliciously and without probable
cause, after the termination of such prosecution, suit, or other proceeding in
favor of the defendant therein.122 It is an established rule that in order for
82
malicious prosecution to prosper, the following requisites must be proven by
petitioner: (1) the fact of prosecution and the further fact that the defendant
(respondent) was himself the prosecutor, and that the action finally
terminated with an acquittal; (2) that in bringing the action, the prosecutor
acted without probable cause; and (3) that the prosecutor was actuated or
impelled by legal malice, that is, by improper or sinister motive.123 The
foregoing are necessary to preserve a person’s right to litigate which may be
emasculated by the undue filing of malicious prosecution cases.124 From the
foregoing requirements, it can be inferred that malice and want of probable
cause must both be clearly established to justify an award of damages based
on malicious prosecution.125
The Court notes that respondents initiated two separate criminal actions, one
for theft of electricity, Inv. Sheet No. 593 July/1988, and the other, for
Violation of P.D. 401, as amended by B.P. Blg. 876, I.S. No. 92-4590. It must
be stressed that theft of electricity is a felony defined and penalized under the
Revised Penal Code, while Violation of P.D. 401, as amended by B.P. Blg.
876, is an offense punished by a special law. What generally makes the
former a felony is criminal intent (dolo) or negligence (culpa); what makes
the latter a crime is the special law enacting it.126 In addition, the elements
of the two (2) offenses are different from one another. In theft, the elements
are: (1) intent to gain; (2) unlawful taking; (3) personal property belonging to
another; (4) and absence of violence or intimidation against persons or force
upon things.127 On the other hand, the crime of Violation of P.D. 401, as
amended by B.P. Blg. 876, is mala prohibita. The criminal act is not
inherently immoral but becomes punishable only because the law says it is
forbidden. With these crimes, the sole issue is whether the law has been
violated. Criminal intent is not necessary.128
While the institution of separate criminal actions under the provisions of P.D.
401, as amended by B.P. Blg. 876, and under the provisions of the Revised
Penal Code on theft may refer to identical acts committed by petitioner, the
prosecution thereof cannot be limited to one offense because a single criminal
act may give rise to a multiplicity of offenses; and where there is variance or
difference between the elements of an offense in one law and another law, as
in the case at bar, there will be no double jeopardy because what the rule on
double jeopardy prohibits refers to identity of elements in the two (2)
offenses. Otherwise stated, prosecution for the same act is not prohibited;
what is forbidden is prosecution for the same offense.129 Hence, no fault
could be attributed to respondent DLPC when it instituted the two separate
actions.
As earlier stated, a claim for damages based on malicious prosecution will
prosper only if the three elements aforecited are shown to exist. We find that
none of the requisites are attendant here.
First. Although respondent DLPC initiated before the prosecutor’s office Inv.
Sheet No. 593 July/1988 for theft of electricity, and I.S. No. 92-4590 for
Violation of P.D. 401, as amended by B.P. Blg. 876, no information was ever
filed in court. The cases were eventually dropped or dismissed before they
could be filed in court. Ultimately, both actions could not end in an acquittal.
Second. It cannot be concluded that respondent DLPC acted without probable
cause when it instituted the actions. The events which led to the filing of the
complaints are undisputed, and respondent DLPC cannot be faulted for filing
them. In the early case of Buchanan v. Esteban,130 this Court had already
stressed that "one cannot be held liable in damages for maliciously instituting
a prosecution where he acted with probable cause." As Justice Moreland
explained in that case:
Probable cause is the existence of such facts and circumstances as would
excite the belief, in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of the crime
for which he was prosecuted. The general rule is well settled that one cannot
be held liable in damages for maliciously instituting a prosecution where he
acted with probable cause. In other words, a suit will lie only in cases where
a legal prosecution has been carried on without probable cause. And the
reason for the rule as stated by Blackstone, is that it would be a very great
discouragement to public justice if prosecutors, who had a tolerable ground
of suspicion, were liable to be sued at law when their indictments miscarried.
Thus, the element of malice and the absence of probable cause must be
proved.131 There must be proof that the prosecution was prompted by a
sinister design to vex and humiliate a person, and that it was initiated
deliberately knowing that the charge was false and baseless to entitle the
victims to damages.132 The two elements must simultaneously exist;
otherwise, the presence of probable cause signifies, as a legal consequence,
the absence of malice.133 In the instant case, it is evident that respondent
DLPC was not motivated by malicious intent or by a sinister design to unduly
83
harass petitioner, but only by a well-founded anxiety to protect its rights.
Respondent DLPC cannot therefore be faulted in availing of the remedies
provided for by law.

In a free society, controversies are heard and settled under the rule of law in
the forum of the courts of justice. It is one of the virtues of our system of
government that a person who feels aggrieved does not have to take the law
into his or her hands or resort to the use of force for the vindication of injury.
The courts are there to hear and act on the complaint. The right to litigate is
an escape valve to relieve the pressures of personal disagreements that might
otherwise explode in physical confrontation. It is necessary not only for
upholding one’s claims when they are unjustly denied but also for the
maintenance of peace, if not goodwill, among incipient antagonists. Without
the right to litigate, conflicting claims cannot be examined and resolved in
accordance with one of the primary purposes of government, which is to
provide for a just and orderly society.134 Hence, the mere act of submitting
a case to the authorities for prosecution does not render a person liable for
malicious prosecution should he or she be unsuccessful, for the law could not
have meant to impose a penalty on the right to litigate.135

IN LIGHT OF THE FOREGOING, the petition is DENIED. The Decision of

the Court of Appeals in CA-G.R. CV No. 68709 is AFFIRMED.

84
G.R. No. 172716 November 17, 2010
JASON IVLER y AGUILAR, Petitioner,
vs.
HON. MARIA ROWENA MODESTO-SAN PEDRO, Judge of the
Metropolitan Trial Court, Branch 71, Pasig City, and EVANGELINE
PONCE, Respondents.
DECISION
CARPIO, J.:
The Case
The petition seeks the review1 of the Orders2 of the Regional Trial Court of
Pasig City affirming sub-silencio a lower court’s ruling finding inapplicable
the Double Jeopardy Clause to bar a second prosecution for Reckless
Imprudence Resulting in Homicide and Damage to Property. This, despite
the accused’s previous conviction for Reckless Imprudence Resulting in
Slight Physical Injuries arising from the same incident grounding the second
prosecution.
The Facts
Following a vehicular collision in August 2004, petitioner Jason Ivler
(petitioner) was charged before the Metropolitan Trial Court of Pasig City,
Branch 71 (MeTC), with two separate offenses: (1) Reckless Imprudence
Resulting in Slight Physical Injuries (Criminal Case No. 82367) for injuries
sustained by respondent Evangeline L. Ponce (respondent Ponce); and (2)
Reckless Imprudence Resulting in Homicide and Damage to Property
(Criminal Case No. 82366) for the death of respondent Ponce’s husband
Nestor C. Ponce and damage to the spouses Ponce’s vehicle. Petitioner posted
bail for his temporary release in both cases.
On 7 September 2004, petitioner pleaded guilty to the charge in Criminal
Case No. 82367 and was meted out the penalty of public censure. Invoking
this conviction, petitioner moved to quash the Information in Criminal Case
No. 82366 for placing him in jeopardy of second punishment for the same
offense of reckless imprudence.
The MeTC refused quashal, finding no identity of offenses in the two cases.3
After unsuccessfully seeking reconsideration, petitioner elevated the matter
to the Regional Trial Court of Pasig City, Branch 157 (RTC), in a petition for
certiorari (S.C.A. No. 2803). Meanwhile, petitioner sought from the MeTC
the suspension of proceedings in Criminal Case No. 82366, including the
arraignment on 17 May 2005, invoking S.C.A. No. 2803 as a prejudicial
question. Without acting on petitioner’s motion, the MeTC proceeded with
the arraignment and, because of petitioner’s absence, cancelled his bail and
ordered his arrest.4 Seven days later, the MeTC issued a resolution denying
petitioner’s motion to suspend proceedings and postponing his arraignment
until after his arrest.5 Petitioner sought reconsideration but as of the filing of
this petition, the motion remained unresolved.
Relying on the arrest order against petitioner, respondent Ponce sought in the
RTC the dismissal of S.C.A. No. 2803 for petitioner’s loss of standing to
maintain the suit. Petitioner contested the motion.
The Ruling of the Trial Court
In an Order dated 2 February 2006, the RTC dismissed S.C.A. No. 2803,
narrowly grounding its ruling on petitioner’s forfeiture of standing to
maintain S.C.A. No. 2803 arising from the MeTC’s order to arrest petitioner
for his non-appearance at the arraignment in Criminal Case No. 82366. Thus,
without reaching the merits of S.C.A. No. 2803, the RTC effectively affirmed
the MeTC. Petitioner sought reconsideration but this proved unavailing.6
Hence, this petition.
Petitioner denies absconding. He explains that his petition in S.C.A. No. 2803
constrained him to forego participation in the proceedings in Criminal Case
No. 82366. Petitioner distinguishes his case from the line of jurisprudence
sanctioning dismissal of appeals for absconding appellants because his appeal
before the RTC was a special civil action seeking a pre-trial relief, not a post-
trial appeal of a judgment of conviction.7
Petitioner laments the RTC’s failure to reach the merits of his petition in
S.C.A. 2803. Invoking jurisprudence, petitioner argues that his constitutional
right not to be placed twice in jeopardy of punishment for the same offense
bars his prosecution in Criminal Case No. 82366, having been previously
85
convicted in Criminal Case No. 82367 for the same offense of reckless
imprudence charged in Criminal Case No. 82366. Petitioner submits that the
multiple consequences of such crime are material only to determine his
penalty.
Respondent Ponce finds no reason for the Court to disturb the RTC’s decision
forfeiting petitioner’s standing to maintain his petition in S.C.A. 2803. On the
merits, respondent Ponce calls the Court’s attention to jurisprudence holding
that light offenses (e.g. slight physical injuries) cannot be complexed under
Article 48 of the Revised Penal Code with grave or less grave felonies (e.g.
homicide). Hence, the prosecution was obliged to separate the charge in
Criminal Case No. 82366 for the slight physical injuries from Criminal Case
No. 82367 for the homicide and damage to property.
In the Resolution of 6 June 2007, we granted the Office of the Solicitor
General’s motion not to file a comment to the petition as the public
respondent judge is merely a nominal party and private respondent is
represented by counsel.
The Issues
Two questions are presented for resolution: (1) whether petitioner forfeited
his standing to seek relief in S.C.A. 2803 when the MeTC ordered his arrest
following his non-appearance at the arraignment in Criminal Case No. 82366;
and (2) if in the negative, whether petitioner’s constitutional right under the
Double Jeopardy Clause bars further proceedings in Criminal Case No.
82366.
The Ruling of the Court
We hold that (1) petitioner’s non-appearance at the arraignment in Criminal
Case No. 82366 did not divest him of personality to maintain the petition in
S.C.A. 2803; and (2) the protection afforded by the Constitution shielding
petitioner from prosecutions placing him in jeopardy of second punishment
for the same offense bars further proceedings in Criminal Case No. 82366.
Petitioner’s Non-appearance at the Arraignment in
Criminal Case No. 82366 did not Divest him of Standing
to Maintain the Petition in S.C.A. 2803
Dismissals of appeals grounded on the appellant’s escape from custody or
violation of the terms of his bail bond are governed by the second paragraph
of Section 8, Rule 124,8 in relation to Section 1, Rule 125, of the Revised
Rules on Criminal Procedure authorizing this Court or the Court of Appeals
to "also, upon motion of the appellee or motu proprio, dismiss the appeal if
the appellant escapes from prison or confinement, jumps bail or flees to a
foreign country during the pendency of the appeal." The "appeal"
contemplated in Section 8 of Rule 124 is a suit to review judgments of
convictions.
The RTC’s dismissal of petitioner’s special civil action for certiorari to
review a pre-arraignment ancillary question on the applicability of the Due
Process Clause to bar proceedings in Criminal Case No. 82366 finds no basis
under procedural rules and jurisprudence. The RTC’s reliance on People v.
Esparas9 undercuts the cogency of its ruling because Esparas stands for a
proposition contrary to the RTC’s ruling. There, the Court granted review to
an appeal by an accused who was sentenced to death for importing prohibited
drugs even though she jumped bail pending trial and was thus tried and
convicted in absentia. The Court in Esparas treated the mandatory review of
death sentences under Republic Act No. 7659 as an exception to Section 8 of
Rule 124.10
The mischief in the RTC’s treatment of petitioner’s non-appearance at his
arraignment in Criminal Case No. 82366 as proof of his loss of standing
becomes more evident when one considers the Rules of Court’s treatment of
a defendant who absents himself from post-arraignment hearings. Under
Section 21, Rule 11411 of the Revised Rules of Criminal Procedure, the
defendant’s absence merely renders his bondsman potentially liable on its
bond (subject to cancellation should the bondsman fail to produce the accused
within 30 days); the defendant retains his standing and, should he fail to
surrender, will be tried in absentia and could be convicted or acquitted.
Indeed, the 30-day period granted to the bondsman to produce the accused
underscores the fact that mere non-appearance does not ipso facto convert the
accused’s status to that of a fugitive without standing.
Further, the RTC’s observation that petitioner provided "no explanation why
he failed to attend the scheduled proceeding"12 at the MeTC is belied by the
records. Days before the arraignment, petitioner sought the suspension of the
MeTC’s proceedings in Criminal Case No. 82366 in light of his petition with
the RTC in S.C.A. No. 2803. Following the MeTC’s refusal to defer
86
arraignment (the order for which was released days after the MeTC ordered
petitioner’s arrest), petitioner sought reconsideration. His motion remained
unresolved as of the filing of this petition.
Petitioner’s Conviction in Criminal Case No. 82367
Bars his Prosecution in Criminal Case No. 82366
The accused’s negative constitutional right not to be "twice put in jeopardy
of punishment for the same offense"13 protects him from, among others,
post-conviction prosecution for the same offense, with the prior verdict
rendered by a court of competent jurisdiction upon a valid information.14 It
is not disputed that petitioner’s conviction in Criminal Case No. 82367 was
rendered by a court of competent jurisdiction upon a valid charge. Thus, the
case turns on the question whether Criminal Case No. 82366 and Criminal
Case No. 82367 involve the "same offense." Petitioner adopts the affirmative
view, submitting that the two cases concern the same offense of reckless
imprudence. The MeTC ruled otherwise, finding that Reckless Imprudence
Resulting in Slight Physical Injuries is an entirely separate offense from
Reckless Imprudence Resulting in Homicide and Damage to Property "as the
[latter] requires proof of an additional fact which the other does not."15
We find for petitioner.
Reckless Imprudence is a Single Crime,
its Consequences on Persons and
Property are Material Only to Determine
the Penalty
The two charges against petitioner, arising from the same facts, were
prosecuted under the same provision of the Revised Penal Code, as amended,
namely, Article 365 defining and penalizing quasi-offenses. The text of the
provision reads:
Imprudence and negligence. — Any person who, by reckless imprudence,
shall commit any act which, had it been intentional, would constitute a grave
felony, shall suffer the penalty of arresto mayor in its maximum period to
prision correccional in its medium period; if it would have constituted a less
grave felony, the penalty of arresto mayor in its minimum and medium
periods shall be imposed; if it would have constituted a light felony, the
penalty of arresto menor in its maximum period shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act
which would otherwise constitute a grave felony, shall suffer the penalty of
arresto mayor in its medium and maximum periods; if it would have
constituted a less serious felony, the penalty of arresto mayor in its minimum
period shall be imposed.
When the execution of the act covered by this article shall have only resulted
in damage to the property of another, the offender shall be punished by a fine
ranging from an amount equal to the value of said damages to three times
such value, but which shall in no case be less than twenty-five pesos.
A fine not exceeding two hundred pesos and censure shall be imposed upon
any person who, by simple imprudence or negligence, shall cause some
wrong which, if done maliciously, would have constituted a light felony.
In the imposition of these penalties, the court shall exercise their sound
discretion, without regard to the rules prescribed in Article sixty-four.
The provisions contained in this article shall not be applicable:
1. When the penalty provided for the offense is equal to or lower than those
provided in the first two paragraphs of this article, in which case the court
shall impose the penalty next lower in degree than that which should be
imposed in the period which they may deem proper to apply.
2. When, by imprudence or negligence and with violation of the Automobile
Law, to death of a person shall be caused, in which case the defendant shall
be punished by prision correccional in its medium and maximum periods.
Reckless imprudence consists in voluntary, but without malice, doing or
failing to do an act from which material damage results by reason of
inexcusable lack of precaution on the part of the person performing or failing
to perform such act, taking into consideration his employment or occupation,
degree of intelligence, physical condition and other circumstances regarding
persons, time and place.
Simple imprudence consists in the lack of precaution displayed in those cases
in which the damage impending to be caused is not immediate nor the danger
clearly manifest.
87

The penalty next higher in degree to those provided for in this article shall be
imposed upon the offender who fails to lend on the spot to the injured parties
such help as may be in this hand to give.
Structurally, these nine paragraphs are collapsible into four sub-groupings
relating to (1) the penalties attached to the quasi-offenses of "imprudence"
and "negligence" (paragraphs 1-2); (2) a modified penalty scheme for either
or both quasi-offenses (paragraphs 3-4, 6 and 9); (3) a generic rule for trial
courts in imposing penalties (paragraph 5); and (4) the definition of "reckless
imprudence" and "simple imprudence" (paragraphs 7-8). Conceptually,
quasi-offenses penalize "the mental attitude or condition behind the act, the
dangerous recklessness, lack of care or foresight, the imprudencia
punible,"16 unlike willful offenses which punish the intentional criminal act.
These structural and conceptual features of quasi-offenses set them apart
from the mass of intentional crimes under the first 13 Titles of Book II of the
Revised Penal Code, as amended.
Indeed, the notion that quasi-offenses, whether reckless or simple, are distinct
species of crime, separately defined and penalized under the framework of
our penal laws, is nothing new. As early as the middle of the last century, we
already sought to bring clarity to this field by rejecting in Quizon v. Justice
of the Peace of Pampanga the proposition that "reckless imprudence is not a
crime in itself but simply a way of committing it x x x"17 on three points of
analysis: (1) the object of punishment in quasi-crimes (as opposed to
intentional crimes); (2) the legislative intent to treat quasi-crimes as distinct
offenses (as opposed to subsuming them under the mitigating circumstance
of minimal intent) and; (3) the different penalty structures for quasi-crimes
and intentional crimes:
The proposition (inferred from Art. 3 of the Revised Penal Code) that
"reckless imprudence" is not a crime in itself but simply a way of committing
it and merely determines a lower degree of criminal liability is too broad to
deserve unqualified assent. There are crimes that by their structure cannot be
committed through imprudence: murder, treason, robbery, malicious
mischief, etc. In truth, criminal negligence in our Revised Penal Code is
treated as a mere quasi offense, and dealt with separately from willful
offenses. It is not a mere question of classification or terminology. In
intentional crimes, the act itself is punished; in negligence or imprudence,
what is principally penalized is the mental attitude or condition behind the
act, the dangerous recklessness, lack of care or foresight, the imprudencia
punible. x x x x
Were criminal negligence but a modality in the commission of felonies,
operating only to reduce the penalty therefor, then it would be absorbed in
the mitigating circumstances of Art. 13, specially the lack of intent to commit
so grave a wrong as the one actually committed. Furthermore, the theory
would require that the corresponding penalty should be fixed in proportion to
the penalty prescribed for each crime when committed willfully. For each
penalty for the willful offense, there would then be a corresponding penalty
for the negligent variety. But instead, our Revised Penal Code (Art. 365) fixes
the penalty for reckless imprudence at arresto mayor maximum, to prision
correccional [medium], if the willful act would constitute a grave felony,
notwithstanding that the penalty for the latter could range all the way from
prision mayor to death, according to the case. It can be seen that the actual
penalty for criminal negligence bears no relation to the individual willful
crime, but is set in relation to a whole class, or series, of crimes.18 (Emphasis
supplied)
This explains why the technically correct way to allege quasi-crimes is to
state that their commission results in damage, either to person or property.19
Accordingly, we found the Justice of the Peace in Quizon without jurisdiction
to hear a case for "Damage to Property through Reckless Imprudence," its
jurisdiction being limited to trying charges for Malicious Mischief, an
intentional crime conceptually incompatible with the element of imprudence
obtaining in quasi-crimes.
Quizon, rooted in Spanish law20 (the normative ancestry of our present day
penal code) and since repeatedly reiterated,21 stands on solid conceptual
foundation. The contrary doctrinal pronouncement in People v. Faller22 that
"[r]eckless impudence is not a crime in itself x x x [but] simply a way of
committing it x x x,"23 has long been abandoned when the Court en banc
promulgated Quizon in 1955 nearly two decades after the Court decided
Faller in 1939. Quizon rejected Faller’s conceptualization of quasi-crimes by
holding that quasi-crimes under Article 365 are distinct species of crimes and
not merely methods of committing crimes. Faller found expression in post-
Quizon jurisprudence24 only by dint of lingering doctrinal confusion arising
from an indiscriminate fusion of criminal law rules defining Article 365
crimes and the complexing of intentional crimes under Article 48 of the
88
Revised Penal Code which, as will be shown shortly, rests on erroneous
conception of quasi-crimes. Indeed, the Quizonian conception of quasi-
crimes undergirded a related branch of jurisprudence applying the Double
Jeopardy Clause to quasi-offenses, barring second prosecutions for a quasi-
offense alleging one resulting act after a prior conviction or acquittal of a
quasi-offense alleging another resulting act but arising from the same reckless
act or omission upon which the second prosecution was based.
Prior Conviction or Acquittal of
Reckless Imprudence Bars
Subsequent Prosecution for the Same
Quasi-Offense
The doctrine that reckless imprudence under Article 365 is a single quasi-
offense by itself and not merely a means to commit other crimes such that
conviction or acquittal of such quasi-offense bars subsequent prosecution for
the same quasi-offense, regardless of its various resulting acts, undergirded
this Court’s unbroken chain of jurisprudence on double jeopardy as applied
to Article 365 starting with People v. Diaz,25 decided in 1954. There, a full
Court, speaking through Mr. Justice Montemayor, ordered the dismissal of a
case for "damage to property thru reckless imprudence" because a prior case
against the same accused for "reckless driving," arising from the same act
upon which the first prosecution was based, had been dismissed earlier. Since
then, whenever the same legal question was brought before the Court, that is,
whether prior conviction or acquittal of reckless imprudence bars subsequent
prosecution for the same quasi-offense, regardless of the consequences
alleged for both charges, the Court unfailingly and consistently answered in
the affirmative in People v. Belga26 (promulgated in 1957 by the Court en
banc, per Reyes, J.), Yap v. Lutero27 (promulgated in 1959, unreported, per
Concepcion, J.), People v. Narvas28 (promulgated in 1960 by the Court en
banc, per Bengzon J.), People v. Silva29 (promulgated in 1962 by the Court
en banc, per Paredes, J.), People v. Macabuhay30 (promulgated in 1966 by
the Court en banc, per Makalintal, J.), People v. Buan31 (promulgated in
1968 by the Court en banc, per Reyes, J.B.L., acting C. J.), Buerano v. Court
of Appeals32 (promulgated in 1982 by the Court en banc, per Relova, J.), and
People v. City Court of Manila33 (promulgated in 1983 by the First Division,
per Relova, J.). These cases uniformly barred the second prosecutions as
constitutionally impermissible under the Double Jeopardy Clause.
The reason for this consistent stance of extending the constitutional
protection under the Double Jeopardy Clause to quasi-offenses was best
articulated by Mr. Justice J.B.L. Reyes in Buan, where, in barring a
subsequent prosecution for "serious physical injuries and damage to property
thru reckless imprudence" because of the accused’s prior acquittal of "slight
physical injuries thru reckless imprudence," with both charges grounded on
the same act, the Court explained:34
Reason and precedent both coincide in that once convicted or acquitted of a
specific act of reckless imprudence, the accused may not be prosecuted again
for that same act. For the essence of the quasi offense of criminal negligence
under article 365 of the Revised Penal Code lies in the execution of an
imprudent or negligent act that, if intentionally done, would be punishable as
a felony. The law penalizes thus the negligent or careless act, not the result
thereof. The gravity of the consequence is only taken into account to
determine the penalty, it does not qualify the substance of the offense. And,
as the careless act is single, whether the injurious result should affect one
person or several persons, the offense (criminal negligence) remains one and
the same, and can not be split into different crimes and prosecutions.35 x x x
(Emphasis supplied)
Evidently, the Diaz line of jurisprudence on double jeopardy merely extended
to its logical conclusion the reasoning of Quizon.
There is in our jurisprudence only one ruling going against this unbroken line
of authority. Preceding Diaz by more than a decade, El Pueblo de Filipinas v.
Estipona,36 decided by the pre-war colonial Court in November 1940,
allowed the subsequent prosecution of an accused for reckless imprudence
resulting in damage to property despite his previous conviction for multiple
physical injuries arising from the same reckless operation of a motor vehicle
upon which the second prosecution was based. Estipona’s inconsistency with
the post-war Diaz chain of jurisprudence suffices to impliedly overrule it. At
any rate, all doubts on this matter were laid to rest in 1982 in Buerano.37
There, we reviewed the Court of Appeals’ conviction of an accused for
"damage to property for reckless imprudence" despite his prior conviction for
"slight and less serious physical injuries thru reckless imprudence," arising
from the same act upon which the second charge was based. The Court of
Appeals had relied on Estipona. We reversed on the strength of Buan:38
89
Th[e] view of the Court of Appeals was inspired by the ruling of this Court
in the pre-war case of People vs. Estipona decided on November 14, 1940.
However, in the case of People vs. Buan, 22 SCRA 1383 (March 29, 1968),
this Court, speaking thru Justice J. B. L. Reyes, held that –
Reason and precedent both coincide in that once convicted or acquitted of a
specific act of reckless imprudence, the accused may not be prosecuted again
for that same act. For the essence of the quasi offense of criminal negligence
under Article 365 of the Revised Penal Code lies in the execution of an
imprudent or negligent act that, if intentionally done, would be punishable as
a felony. The law penalizes thus the negligent or careless act, not the result
thereof. The gravity of the consequence is only taken into account to
determine the penalty, it does not qualify the substance of the offense. And,
as the careless act is single, whether the injurious result should affect one
person or several persons, the offense (criminal negligence) remains one and
the same, and can not be split into different crimes and prosecutions.
xxxx
. . . the exoneration of this appellant, Jose Buan, by the Justice of the Peace
(now Municipal) Court of Guiguinto, Bulacan, of the charge of slight physical
injuries through reckless imprudence, prevents his being prosecuted for
serious physical injuries through reckless imprudence in the Court of First
Instance of the province, where both charges are derived from the
consequences of one and the same vehicular accident, because the second
accusation places the appellant in second jeopardy for the same offense.39
(Emphasis supplied)
Thus, for all intents and purposes, Buerano had effectively overruled
Estipona.
It is noteworthy that the Solicitor General in Buerano, in a reversal of his
earlier stance in Silva, joined causes with the accused, a fact which did not
escape the Court’s attention:
Then Solicitor General, now Justice Felix V. Makasiar, in his
MANIFESTATION dated December 12, 1969 (page 82 of the Rollo) admits
that the Court of Appeals erred in not sustaining petitioner’s plea of double
jeopardy and submits that "its affirmatory decision dated January 28, 1969,
in Criminal Case No. 05123-CR finding petitioner guilty of damage to
property through reckless imprudence should be set aside, without costs." He
stressed that "if double jeopardy exists where the reckless act resulted into
homicide and physical injuries. then the same consequence must perforce
follow where the same reckless act caused merely damage to property-not
death-and physical injuries. Verily, the value of a human life lost as a result
of a vehicular collision cannot be equated with any amount of damages
caused to a motors vehicle arising from the same mishap."40 (Emphasis
supplied)
Hence, we find merit in petitioner’s submission that the lower courts erred in
refusing to extend in his favor the mantle of protection afforded by the Double
Jeopardy Clause. A more fitting jurisprudence could not be tailored to
petitioner’s case than People v. Silva, 41 a Diaz progeny. There, the accused,
who was also involved in a vehicular collision, was charged in two separate
Informations with "Slight Physical Injuries thru Reckless Imprudence" and
"Homicide with Serious Physical Injuries thru Reckless Imprudence."
Following his acquittal of the former, the accused sought the quashal of the
latter, invoking the Double Jeopardy Clause. The trial court initially denied
relief, but, on reconsideration, found merit in the accused’s claim and
dismissed the second case. In affirming the trial court, we quoted with
approval its analysis of the issue following Diaz and its progeny People v.
Belga:42
On June 26, 1959, the lower court reconsidered its Order of May 2, 1959 and
dismissed the case, holding: —
[T]he Court believes that the case falls squarely within the doctrine of double
jeopardy enunciated in People v. Belga, x x x In the case cited, Ciriaco Belga
and Jose Belga were charged in the Justice of the Peace Court of Malilipot,
Albay, with the crime of physical injuries through reckless imprudence
arising from a collision between the two automobiles driven by them (Crim.
Case No. 88). Without the aforesaid complaint having been dismissed or
otherwise disposed of, two other criminal complaints were filed in the same
justice of the peace court, in connection with the same collision one for
damage to property through reckless imprudence (Crim. Case No. 95) signed
by the owner of one of the vehicles involved in the collision, and another for
multiple physical injuries through reckless imprudence (Crim. Case No. 96)
signed by the passengers injured in the accident. Both of these two complaints
were filed against Jose Belga only. After trial, both defendants were acquitted
of the charge against them in Crim. Case No. 88. Following his acquittal, Jose
90
Belga moved to quash the complaint for multiple physical injuries through
reckless imprudence filed against him by the injured passengers, contending
that the case was just a duplication of the one filed by the Chief of Police
wherein he had just been acquitted. The motion to quash was denied and after
trial Jose Belga was convicted, whereupon he appealed to the Court of First
Instance of Albay. In the meantime, the case for damage to property through
reckless imprudence filed by one of the owners of the vehicles involved in
the collision had been remanded to the Court of First Instance of Albay after
Jose Belga had waived the second stage of the preliminary investigation.
After such remand, the Provincial Fiscal filed in the Court of First Instance
two informations against Jose Belga, one for physical injuries through
reckless imprudence, and another for damage to property through reckless
imprudence. Both cases were dismissed by the Court of First Instance, upon
motion of the defendant Jose Belga who alleged double jeopardy in a motion
to quash. On appeal by the Prov. Fiscal, the order of dismissal was affirmed
by the Supreme Court in the following language: .
The question for determination is whether the acquittal of Jose Belga in the
case filed by the chief of police constitutes a bar to his subsequent prosecution
for multiple physical injuries and damage to property through reckless
imprudence.
In the case of Peo[ple] v. F. Diaz, G. R. No. L-6518, prom. March 30, 1954,
the accused was charged in the municipal court of Pasay City with reckless
driving under sec. 52 of the Revised Motor Vehicle Law, for having driven
an automobile in a ῾fast and reckless manner ... thereby causing an accident.’
After the accused had pleaded not guilty the case was dismissed in that court
῾for failure of the Government to prosecute’. But some time thereafter the city
attorney filed an information in the Court of First Instance of Rizal, charging
the same accused with damage to property thru reckless imprudence. The
amount of the damage was alleged to be ₱249.50. Pleading double jeopardy,
the accused filed a motion, and on appeal by the Government we affirmed the
ruling. Among other things we there said through Mr. Justice Montemayor
— that the facts of the case at bar, fall squarely on the ruling of the Belga case x
The next question to determine is the relation between the first offense of
violation of the Motor Vehicle Law prosecuted before the Pasay City
Municipal Court and the offense of damage to property thru reckless
imprudence charged in the Rizal Court of First Instance. One of the tests of
double jeopardy is whether or not the second offense charged necessarily
includes or is necessarily included in the offense charged in the former
complaint or information (Rule 113, Sec. 9). Another test is whether the
evidence which proves one would prove the other that is to say whether the
facts alleged in the first charge if proven, would have been sufficient to
support the second charge and vice versa; or whether one crime is an
ingredient of the other. x x x
xxxx
The foregoing language of the Supreme Court also disposes of the contention
of the prosecuting attorney that the charge for slight physical injuries through
reckless imprudence could not have been joined with the charge for homicide
with serious physical injuries through reckless imprudence in this case, in
view of the provisions of Art. 48 of the Revised Penal Code, as amended. The
prosecution’s contention might be true. But neither was the prosecution
obliged to first prosecute the accused for slight physical injuries through
reckless imprudence before pressing the more serious charge of homicide
with serious physical injuries through reckless imprudence. Having first
prosecuted the defendant for the lesser offense in the Justice of the Peace
Court of Meycauayan, Bulacan, which acquitted the defendant, the
prosecuting attorney is not now in a position to press in this case the more
serious charge of homicide with serious physical injuries through reckless
imprudence which arose out of the same alleged reckless imprudence of
which the defendant have been previously cleared by the inferior court.43
Significantly, the Solicitor General had urged us in Silva to reexamine Belga
(and hence, Diaz) "for the purpose of delimiting or clarifying its
application."44 We declined the invitation, thus:
The State in its appeal claims that the lower court erred in dismissing the case,
on the ground of double jeopardy, upon the basis of the acquittal of the
accused in the JP court for Slight Physical Injuries, thru Reckless
Imprudence. In the same breath said State, thru the Solicitor General, admits
x x, upon which the order of dismissal of the lower court was anchored. The
Solicitor General, however, urges a re-examination of said ruling, upon
certain considerations for the purpose of delimiting or clarifying its
application. We find, nevertheless, that further elucidation or disquisition on
the ruling in the Belga case, the facts of which are analogous or similar to
those in the present case, will yield no practical advantage to the government.
91
On one hand, there is nothing which would warrant a delimitation or
clarification of the applicability of the Belga case. It was clear. On the other,
this Court has reiterated the views expressed in the Belga case, in the identical
case of Yap v. Hon. Lutero, etc., L-12669, April 30, 1959.45 (Emphasis
supplied)
Article 48 Does not Apply to Acts Penalized
Under Article 365 of the Revised Penal Code
The confusion bedeviling the question posed in this petition, to which the
MeTC succumbed, stems from persistent but awkward attempts to harmonize
conceptually incompatible substantive and procedural rules in criminal law,
namely, Article 365 defining and penalizing quasi-offenses and Article 48 on
complexing of crimes, both under the Revised Penal Code. Article 48 is a
procedural device allowing single prosecution of multiple felonies falling
under either of two categories: (1) when a single act constitutes two or more
grave or less grave felonies (thus excluding from its operation light
felonies46); and (2) when an offense is a necessary means for committing the
other. The legislature crafted this procedural tool to benefit the accused who,
in lieu of serving multiple penalties, will only serve the maximum of the
penalty for the most serious crime.
In contrast, Article 365 is a substantive rule penalizing not an act defined as
a felony but "the mental attitude x x x behind the act, the dangerous
recklessness, lack of care or foresight x x x,"47 a single mental attitude
regardless of the resulting consequences. Thus, Article 365 was crafted as
one quasi-crime resulting in one or more consequences.
Ordinarily, these two provisions will operate smoothly. Article 48 works to
combine in a single prosecution multiple intentional crimes falling under
Titles 1-13, Book II of the Revised Penal Code, when proper; Article 365
governs the prosecution of imprudent acts and their consequences. However,
the complexities of human interaction can produce a hybrid quasi-offense not
falling under either models – that of a single criminal negligence resulting in
multiple non-crime damages to persons and property with varying penalties
corresponding to light, less grave or grave offenses. The ensuing
prosecutorial dilemma is obvious: how should such a quasi-crime be
prosecuted? Should Article 48’s framework apply to "complex" the single
quasi-offense with its multiple (non-criminal) consequences (excluding those
amounting to light offenses which will be tried separately)? Or should the
prosecution proceed under a single charge, collectively alleging all the
consequences of the single quasi-crime, to be penalized separately following
the scheme of penalties under Article 365?
Jurisprudence adopts both approaches. Thus, one line of rulings (none of
which involved the issue of double jeopardy) applied Article 48 by
"complexing" one quasi-crime with its multiple consequences48 unless one
consequence amounts to a light felony, in which case charges were split by
grouping, on the one hand, resulting acts amounting to grave or less grave
felonies and filing the charge with the second level courts and, on the other
hand, resulting acts amounting to light felonies and filing the charge with the
first level courts.49 Expectedly, this is the approach the MeTC impliedly
sanctioned (and respondent Ponce invokes), even though under Republic Act
No. 7691,50 the MeTC has now exclusive original jurisdiction to impose the
most serious penalty under Article 365 which is prision correccional in its
medium period.
Under this approach, the issue of double jeopardy will not arise if the
"complexing" of acts penalized under Article 365 involves only resulting acts
penalized as grave or less grave felonies because there will be a single
prosecution of all the resulting acts. The issue of double jeopardy arises if one
of the resulting acts is penalized as a light offense and the other acts are
penalized as grave or less grave offenses, in which case Article 48 is not
deemed to apply and the act penalized as a light offense is tried separately
from the resulting acts penalized as grave or less grave offenses.
The second jurisprudential path nixes Article 48 and sanctions a single
prosecution of all the effects of the quasi-crime collectively alleged in one
charge, regardless of their number or severity,51 penalizing each
consequence separately. Thus, in Angeles v. Jose,52 we interpreted paragraph
three of Article 365, in relation to a charge alleging "reckless imprudence
resulting in damage to property and less serious physical injuries," as follows:
[T]he third paragraph of said article, x x x reads as follows:
When the execution of the act covered by this article shall have only resulted
in damage to the property of another, the offender shall be punished by a fine
ranging from an amount equal to the value of said damage to three times such
value, but which shall in no case be less than 25 pesos.
92
The above-quoted provision simply means that if there is only damage to
property the amount fixed therein shall be imposed, but if there are also
physical injuries there should be an additional penalty for the latter. The
information cannot be split into two; one for the physical injuries, and another
for the damage to property, x x x.53 (Emphasis supplied)
By "additional penalty," the Court meant, logically, the penalty scheme under
Article 365.
Evidently, these approaches, while parallel, are irreconcilable. Coherence in
this field demands choosing one framework over the other. Either (1) we
allow the "complexing" of a single quasi-crime by breaking its resulting acts
into separate offenses (except for light felonies), thus re-conceptualize a
quasi-crime, abandon its present framing under Article 365, discard its
conception under the Quizon and Diaz lines of cases, and treat the multiple
consequences of a quasi-crime as separate intentional felonies defined under
Titles 1-13, Book II under the penal code; or (2) we forbid the application of
Article 48 in the prosecution and sentencing of quasi-crimes, require single
prosecution of all the resulting acts regardless of their number and severity,
separately penalize each as provided in Article 365, and thus maintain the
distinct concept of quasi-crimes as crafted under Article 365, articulated in
Quizon and applied to double jeopardy adjudication in the Diaz line of
cases.1avvphi1
A becoming regard of this Court’s place in our scheme of government
denying it the power to make laws constrains us to keep inviolate the
conceptual distinction between quasi-crimes and intentional felonies under
our penal code. Article 48 is incongruent to the notion of quasi-crimes under
Article 365. It is conceptually impossible for a quasi-offense to stand for (1)
a single act constituting two or more grave or less grave felonies; or (2) an
offense which is a necessary means for committing another. This is why, way
back in 1968 in Buan, we rejected the Solicitor General’s argument that
double jeopardy does not bar a second prosecution for slight physical injuries
through reckless imprudence allegedly because the charge for that offense
could not be joined with the other charge for serious physical injuries through
reckless imprudence following Article 48 of the Revised Penal Code:
The Solicitor General stresses in his brief that the charge for slight physical
injuries through reckless imprudence could not be joined with the accusation
for serious physical injuries through reckless imprudence, because Article 48
of the Revised Penal Code allows only the complexing of grave or less grave
felonies. This same argument was considered and rejected by this Court in
the case of People vs. [Silva] x x x:
[T]he prosecution’s contention might be true. But neither was the prosecution
obliged to first prosecute the accused for slight physical injuries through
reckless imprudence before pressing the more serious charge of homicide
with serious physical injuries through reckless imprudence. Having first
prosecuted the defendant for the lesser offense in the Justice of the Peace
Court of Meycauayan, Bulacan, which acquitted the defendant, the
prosecuting attorney is not now in a position to press in this case the more
serious charge of homicide with serious physical injuries through reckless
imprudence which arose out of the same alleged reckless imprudence of
which the defendant has been previously cleared by the inferior court.
[W]e must perforce rule that the exoneration of this appellant x x x by the
Justice of the Peace x x x of the charge of slight physical injuries through
reckless imprudence, prevents his being prosecuted for serious physical
injuries through reckless imprudence in the Court of First Instance of the
province, where both charges are derived from the consequences of one and
the same vehicular accident, because the second accusation places the
appellant in second jeopardy for the same offense.54 (Emphasis supplied)
Indeed, this is a constitutionally compelled choice. By prohibiting the
splitting of charges under Article 365, irrespective of the number and severity
of the resulting acts, rampant occasions of constitutionally impermissible
second prosecutions are avoided, not to mention that scarce state resources
are conserved and diverted to proper use.
Hence, we hold that prosecutions under Article 365 should proceed from a
single charge regardless of the number or severity of the consequences. In
imposing penalties, the judge will do no more than apply the penalties under
Article 365 for each consequence alleged and proven. In short, there shall be
no splitting of charges under Article 365, and only one information shall be
filed in the same first level court.55
Our ruling today secures for the accused facing an Article 365 charge a
stronger and simpler protection of their constitutional right under the Double
Jeopardy Clause. True, they are thereby denied the beneficent effect of the
favorable sentencing formula under Article 48, but any disadvantage thus
93
caused is more than compensated by the certainty of non-prosecution for
quasi-crime effects qualifying as "light offenses" (or, as here, for the more
serious consequence prosecuted belatedly). If it is so minded, Congress can
re-craft Article 365 by extending to quasi-crimes the sentencing formula of
Article 48 so that only the most severe penalty shall be imposed under a single
prosecution of all resulting acts, whether penalized as grave, less grave or
light offenses. This will still keep intact the distinct concept of quasi-offenses.
Meanwhile, the lenient schedule of penalties under Article 365, befitting
crimes occupying a lower rung of culpability, should cushion the effect of
this ruling.

WHEREFORE, we GRANT the petition. We REVERSE the Orders dated 2

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

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

94
G.R. No. L-45129 March 6, 1987
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
THE HONORABLE BENJAMIN RELOVA, in his capacity as Presiding
Judge of the Court of First Instance of Batangas, Second Branch, and
MANUEL OPULENCIA, respondents.
FELICIANO, J.:
In this petition for certiorari and mandamus, the People of the Philippines
seek to set aside the orders of the respondent Judge of the Court of First
Instance of Batangas in Criminal Case No. 266, dated 12 August 1976 and 8
November 1976, respectively, quashing an information for theft filed against
private respondent Manuel Opulencia on the ground of double jeopardy and
denying the petitioner's motion for reconsideration.
On 1 February 1975, members of the Batangas City Police together with
personnel of the Batangas Electric Light System, equipped with a search
warrant issued by a city judge of Batangas City, searched and examined the
premises of the Opulencia Carpena Ice Plant and Cold Storage owned and
operated by the private respondent Manuel Opulencia. The police discovered
that electric wiring, devices and contraptions had been installed, without the
necessary authority from the city government, and "architecturally concealed
inside the walls of the building" 1 owned by the private respondent. These
electric devices and contraptions were, in the allegation of the petitioner
"designed purposely to lower or decrease the readings of electric current
consumption in the electric meter of the said electric [ice and cold storage]
plant." 2 During the subsequent investigation, Manuel Opulencia admitted in
a written statement that he had caused the installation of the electrical devices
"in order to lower or decrease the readings of his electric meter. 3
On 24 November 1975, an Assistant City Fiscal of Batangas City filed before
the City Court of Batangas City an information against Manuel Opulencia for
violation of Ordinance No. 1, Series of 1974, Batangas City. A violation of
this ordinance was, under its terms, punishable by a fine "ranging from Five
Pesos (P5.00) to Fifty Pesos (P50.00) or imprisonment, which shall not
exceed thirty (30) days, or both, at the discretion of the court." 4 This
information reads as follows:
The undersigned, Assistant City Fiscal, accuses Manuel Opulencia y Lat of
violation of Sec. 3 (b) in relation to Sec. 6 (d) and Sec. 10 Article II, Title IV
of ordinance No. 1, S. 1974, with damage to the City Government of
Batangas, and penalized by the said ordinance, committed as follows:
That from November, 1974 to February, 1975 at Batangas City, Philippines
and within the jurisdiction of this Honorable Court, the above-named
accused, with intent to defraud the City Government of Batangas, without
proper authorization from any lawful and/or permit from the proper
authorities, did then and there wilfully, unlawfully and feloniously make
unauthorized installations of electric wirings and devices to lower or decrease
the consumption of electric fluid at the Opulencia Ice Plant situated at
Kumintang, Ibaba, this city and as a result of such unathorized installations
of electric wirings and devices made by the accused, the City Government of
Batangas was damaged and prejudiced in the total amount of FORTY ONE
THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS
(P41,062.16) Philippine currency, covering the period from November 1974
to February, 1975, to the damage and prejudice of the City Government of
Batangas in the aforestated amount of P41,062.16, Philippine currency.
The accused Manuel Opulencia pleaded not guilty to the above information.
On 2 February 1976, he filed a motion to dismiss the information upon the
grounds that the crime there charged had already prescribed and that the civil
indemnity there sought to be recovered was beyond the jurisdiction of the
Batangas City Court to award. In an order dated 6 April 1976, the Batangas
City Court granted the motion to dismiss on the ground of prescription, it
appearing that the offense charged was a light felony which prescribes two
months from the time of discovery thereof, and it appearing further that the
information was filed by the fiscal more than nine months after discovery of
the offense charged in February 1975.
Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of Batangas
City filed before the Court of First Instance of Batangas, Branch 11, another
information against Manuel Opulencia, this time for theft of electric power
under Article 308 in relation to Article 309, paragraph (1), of the Revised
Penal Code. This information read as follows:
95
The undersigned Acting City Fiscal accuses Manuel Opulencia y Lat of the
crime of theft, defined and penalized by Article 308, in relation to Article
309, paragraph (1) of the Revised Penal Code, committed as follows:
That on, during, and between the month of November, 1974, and the 21st day
of February, 1975, at Kumintang, lbaba, Batangas City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused,
with intent of gain and without the knowledge and consent of the Batangas
Electric Light System, did then and there, wilfully, unlawfully and
feloniously take, steal and appropriate electric current valued in the total
amount of FORTY ONE THOUSAND, SIXTY TWO PESOS AND
SIXTEEN CENTAVOS (P41,062.16) Philippine Currency, to the damage
and prejudice of the said Batangas Electric Light System, owned and operated
by the City Government of Batangas, in the aforementioned sum of
P41,062.16.
The above information was docketed as Criminal Case No. 266 before the
Court of First Instance of Batangas, Branch II. Before he could be arraigned
thereon, Manuel Opulencia filed a Motion to Quash, dated 5 May 1976,
alleging that he had been previously acquitted of the offense charged in the
second information and that the filing thereof was violative of his
constitutional right against double jeopardy. By Order dated 16 August 1976,
the respondent Judge granted the accused's Motion to Quash and ordered the
case dismissed. The gist of this Order is set forth in the following paragraphs:
The only question here is whether the dismissal of the first case can be
properly pleaded by the accused in the motion to quash.
In the first paragraph of the earlier information, it alleges that the prosecution
"accuses Manuel Opulencia y Lat of violation of Sec. 3(b) in relation to Sec.
6(d) and Sec. 10 Article II, Title IV of Ordinance No. 1, s. 1974, with damage
to the City Government of Batangas, etc. " (Emphasis supplied). The first
case, as it appears, was not simply one of illegal electrical connections. It also
covered an amount of P41,062.16 which the accused, in effect, allegedly with
intent to defraud, deprived the city government of Batangas. If the charge had
meant illegal electric installations only, it could have alleged illegal
connections which were done at one instance on a particular date between
November, 1974, to February 21, 1975. But as the information states "that
from November, 1974 to February 1975 at Batangas City, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused
with intent to defraud the City Government of Batangas, without proper
authorization from any lawful and/or permit from the proper authorities, did
then and there wilfully, unlawfully and feloniously make unauthorized
installations of electric wirings and devices, etc." (Emphasis supplied), it was
meant to include the P 41,062.16 which the accused had, in effect, defrauded
the city government. The information could not have meant that from
November 1974 to 21 February 1975, he had daily committed unlawful
installations.
When, therefore, he was arraigned and he faced the indictment before the City
Court, he had already been exposed, or he felt he was exposed to
consequences of what allegedly happened between November 1974 to
February 21, 1975 which had allegedly resulted in defrauding the City of
Batangas in the amount of P 41,062.16. (Emphases and parentheses in the
original)
A Motion for Reconsideration of the above-quoted Order filed by the
petitioner was denied by the respondent Judge in an Order dated 18
November 1976.
On 1 December 1976, the present Petition for certiorari and mandamus was
filed in this Court by the Acting City Fiscal of Batangas City on behalf of the
People.
The basic premise of the petitioner's position is that the constitutional
protection against double jeopardy is protection against a second or later
jeopardy of conviction for the same offense. The petitioner stresses that the
first information filed before the City Court of Batangas City was one for
unlawful or unauthorized installation of electrical wiring and devices, acts
which were in violation of an ordinance of the City Government of Batangas.
Only two elements are needed to constitute an offense under this City
Ordinance: (1) that there was such an installation; and (2) no authority
therefor had been obtained from the Superintendent of the Batangas City
Electrical System or the District Engineer. The petitioner urges that the
relevant terms of the City Ordinance — which read as follows:
Section 3.-Connection and Installation
(a) xxx
96
(b) The work and installation in the houses and building and their
connection with the Electrical System shall be done either by the employee
of the system duly authorized by its Superintendent or by persons adept in the
matter duly authorized by the District Engineer. Applicants for electrical
service permitting the works of installation or connection with the system to
be undertaken by the persons not duly authorized therefor shall be considered
guilty of violation of the ordinance.
would show that:
The principal purpose for (sic) such a provision is to ensure that electrical
installations on residences or buildings be done by persons duly authorized
or adept in the matter, to avoid fires and accidents due to faulty electrical
wirings. It is primarily a regulatory measure and not intended to punish or
curb theft of electric fluid which is already covered by the Revised Penal
Code. 5
The gist of the offense under the City Ordinance, the petitioner's argument
continues, is the installing of electric wiring and devices without authority
from the proper officials of the city government. To constitute an offense
under the city ordinance, it is not essential to establish any mens rea on the
part of the offender generally speaking, nor, more specifically, an intent to
appropriate and steal electric fluid.
In contrast, the petitioner goes on, the offense of theft under Article 308 of
the Revised Penal Code filed before the Court of First Instance of Batangas
in Criminal Case No. 266 has quite different essential elements. These
elements are:
1. That personal property be taken;
2. That the personal property (taken) belongs to another;
3. That the taking be done with intent of gain;
4. That the taking be done without the consent of the owner; and
5. That the taking be accomplished without violence against or
intimidation of persons or force upon things. 6
The petitioner also alleges, correctly, in our view, that theft of electricity can
be effected even without illegal or unauthorized installations of any kind by,
for instance, any of the following means:
1. Turning back the dials of the electric meter;
2. Fixing the electric meter in such a manner that it will not register the
actual electrical consumption;
3. Under-reading of electrical consumption; and
4. By tightening the screw of the rotary blade to slow down the rotation
of the same. 7
The petitioner concludes that:
The unauthorized installation punished by the ordinance [of Batangas City]
is not the same as theft of electricity [under the Revised Penal Code]; that the
second offense is not an attempt to commit the first or a frustration thereof
and that the second offense is not necessarily included in the offense charged
in the first inforrnation 8
The above arguments made by the petitioner are of course correct. This is
clear both from the express terms of the constitutional provision involved —
which reads as follows:
No person shall be twice put in jeopardy of punishment for the same offense.
If an act is punished by a law and an ordinance, conviction or acquittal under
either shall constitute a bar to another prosecution for the same act. (Emphasis
supplied; Article IV (22), 1973 Constitution) 9
and from our case law on this point. 10 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. The
second sentence of Article IV (22) embodies an exception to the general
97
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. 11
In Yap, petitioner Manuel Yap was charged in Criminal Case No. 16054 of
the Municipal Court of Iloilo City, with violation of Article 14 of Ordinance
No. 22, Series of 1951, in relation to Ordinance No. 15, Series of 1954, of the
City of Iloilo. The information charged him with having "wilfully, unlawfully
and feloniously drive[n] and operate[d]" an automobile — "recklessly and
without reasonable caution thereby endangering other vehicles and
pedestrians passing in said street." Three months later, Yap was again charged
in Criminal Case No. 16443 of the same Municipal Court, this time with
serious physical injuries through reckless imprudence. The information
charged him with violation of the Revised Motor Vehicle Law (Act No. 3992
as amended by Republic Act No. 587) committed by driving and operating
an automobile in a reckless and negligent manner and as a result thereof
inflicting injuries upon an unfortunate pedestrian. Yap moved to quash the
second information upon the ground that it placed him twice in jeopardy of
punishment for the same act. This motion was denied by the respondent
municipal judge. Meantime, another municipal judge had acquitted Yap in
Criminal Case No. 16054. Yap then instituted a petition for certiorari in the
Court of First Instance of Iloilo to set aside the order of the respondent
municipal judge. The Court of First Instance of Iloilo having reversed the
respondent municipal judge and having directed him to desist from
continuing with Criminal Case No. 16443, the respondent Judge brought the
case to the Supreme Court for review on appeal. In affirming the decision
appealed from and holding that the constitutional protection against double
jeopardy was available to petitioner Yap, then Associate Justice and later
Chief Justice Roberto Concepcion wrote:
To begin with, the crime of damage to property through reckless driving —
with which Diaz stood charged in the court of first instance — is a violation
of the Revised Penal Code (third paragraph of Article 365), not the
Automobile Law (Act No. 3992, as amended by Republic Act No. 587).
Hence, Diaz was not twice accused of a violation of the same law. Secondly,
reckless driving and certain crimes committed through reckless driving are
punishable under different provisions of said Automobile Law. Hence —
from the view point of Criminal Law, as distinguished from political or
Constitutional Law — they constitute, strictly, different offenses, although
under certain conditions, one offense may include the other, and, accordingly,
once placed in jeopardy for one, the plea of double jeopardy may be in order
as regards the other, as in the Diaz case. (Emphases in the original)
Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The
first sentence of clause 20, section 1, Article III of the Constitution, ordains
that "no person shall be twice put in jeopardy of punishment for the same
offense." (Emphasis in the original) The second sentence of said clause
provides that "if an act is punishable by a law and an ordinance, conviction
or acquittal under either shall constitute a bar to another prosecution for the
same act." 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. 12 Incidentally, such conviction or acquittal is not indispensable to
sustain the plea of double jeopardy of punishment for the same offense. So
long as jeopardy has attached under one of the informations charging said
offense, the defense may be availed of in the other case involving the same
offense, even if there has been neither conviction nor acquittal in either case.
The issue in the case at bar hinges, therefore, on whether or not, under the
information in case No. 16443, petitioner could — if he failed to plead double
jeopardy — be convicted of the same act charged in case No. 16054, in which
he has already been acquitted. The information in case No. 16054 alleges,
substantially, that on the date and in the place therein stated, petitioner herein
had wilfully, unlawfully and feloniously driven and operated "recklessly and
without reasonable caution" an automobile described in said information.
Upon the other hand, the information in case No. 16443, similarly states that,
on the same date and in the same place, petitioner drove and operated the
aforementioned automobile in a "reckless and negligent manner at an
excessive rate of speed and in violation of the Revised Motor Vehicle Law
(Act No. 3992), as amended by Republic Act No. 587, and existing city
ordinances." Thus, if the theories mentioned in the second information were
98
not established by the evidence, petitioner could be convicted in case No.
16443 of the very same violation of municipal ordinance charged in case No.
16054, unless he pleaded double jeopardy.
It is clear, therefore, that the lower court has not erred eventually sustaining
the theory of petitioner herein.
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 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.
The question may be raised why one rule should exist where two offenses
under two different sections of the same statute or under different statutes are
charged, and another rule for the situation where one offense is charged under
a municipal ordinance and another offense under a national statute. If the
second sentence of the double jeopardy provision had not been written into
the Constitution, conviction or acquittal under a municipal ordinance would
never constitute a bar to another prosecution for the same act under a national
statute. An offense penalized by municipal ordinance is, by definition,
different from an offense under a statute. The two offenses would never
constitute the same offense having been promulgated by different rule-
making authorities — though one be subordinate to the other — and the plea
of double jeopardy would never lie. The discussions during the 1934-1935
Constitutional Convention show that the second sentence was inserted
precisely for the purpose of extending the constitutional protection against
double jeopardy to a situation which would not otherwise be covered by the
first sentence. 13
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).
In Yap, the Court regarded the offense of reckless driving under the Iloilo
City Ordinance and serious physical injuries through reckless imprudence
under the Revised Motor Vehicle Law as derived from the same act or sets of
acts — that is, the operation of an automobile in a reckless manner. The
additional technical element of serious physical injuries related to the
physical consequences of the operation of the automobile by the accused, i.e.,
the impact of the automobile upon the body of the offended party. Clearly,
such consequence occurred in the same occasion that the accused operated
the automobile (recklessly). The moral element of negligence permeated the
acts of the accused throughout that occasion.
In the instant case, the relevant acts took place within the same time frame:
from November 1974 to February 1975. During this period, the accused
Manuel Opulencia installed or permitted the installation of electrical wiring
and devices in his ice plant without obtaining the necessary permit or
authorization from the municipal authorities. The accused conceded that he
effected or permitted such unauthorized installation for the very purpose of
reducing electric power bill. This corrupt intent was thus present from the
very moment that such unauthorized installation began. The immediate
physical effect of the unauthorized installation was the inward flow of electric
current into Opulencia's ice plant without the corresponding recording thereof
in his electric meter. In other words, the "taking" of electric current was
integral with the unauthorized installation of electric wiring and devices.
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
99
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. 14 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. As
Associate Justice and later Chief Justice Ricardo Paras cautioned in People
vs. del Carmen et al., 88 Phil. 51 (1951):
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)
By the same token, acts of a person which physically occur on the same
occasion and are infused by a common intent or design or negligence and
therefore form a moral unity, should not be segmented and sliced, as it were,
to produce as many different acts as there are offenses under municipal
ordinances or statutes that an enterprising prosecutor can find
It remains to point out that the dismissal by the Batangas City Court of the
information for violation of the Batangas City Ordinance upon the ground
that such offense had already prescribed, amounts to an acquittal of the
accused of that offense. Under Article 89 of the Revised Penal Code,
"prescription of the crime" is one of the grounds for "total extinction of
criminal liability." Under the Rules of Court, an order sustaining a motion to
quash based on prescription is a bar to another prosecution for the same
offense. 15
It is not without reluctance that we deny the people's petition for certiorari
and mandamus in this case. It is difficult to summon any empathy for a
businessman who would make or enlarge his profit by stealing from the
community. Manuel Opulencia is able to escape criminal punishment because
an Assistant City Fiscal by inadvertence or otherwise chose to file an
information for an offense which he should have known had already
prescribed. We are, however, compelled by the fundamental law to hold the
protection of the right against double jeopardy available even to the private
respondent in this case.
The civil liability aspects of this case are another matter. Because no
reservation of the right to file a separate civil action was made by the
Batangas City electric light system, the civil action for recovery of civil
liability arising from the offense charged was impliedly instituted with the
criminal action both before the City Court of Batangas City and the Court of
First Instance of Batangas. The extinction of criminal liability whether by
prescription or by the bar of double jeopardy does not carry with it the
extinction of civil liability arising from the offense charged. In the present
case, as we noted earlier, 16 accused Manuel Opulencia freely admitted
during the police investigation having stolen electric current through the
installation and use of unauthorized elibctrical connections or devices. While
the accused pleaded not guilty before the City Court of Batangas City, he did
not deny having appropriated electric power. However, there is no evidence
in the record as to the amount or value of the electric power appropriated by
Manuel Opulencia, the criminal informations having been dismissed both by
the City Court and by the Court of First Instance (from which dismissals the
Batangas City electric light system could not have appealed 17) before trial
could begin. Accordingly, the related civil action which has not been waived
expressly or impliedly, should be remanded to the Court of First Instance of
Batangas City for reception of evidence on the amount or value of the electric
power appropriated and converted by Manuel Opulencia and rendition of
judgment conformably with such evidence.
WHEREFORE, the petition for certiorari and mandamus is DENIED. Let the
civil action for related civil liability be remanded to the Court of First Instance
of Batangas City for further proceedings as indicated above. No
pronouncement as to costs.
100

CARMELL v. TEXAS
CERTIORARI TO THE COURT OF APPEALS OF TEXAS, SECOND
DISTRICT
No. 98-7540. Argued November 30, 1999-Decided May 1,2000
In 1996, petitioner was convicted on 15 counts of committing sexual offenses
against his stepdaughter from 1991 to 1995, when she was 12 to 16 years old.
Before September 1, 1993, Tex. Code Crim. Proc. Ann., Art. 38.07, specified
that a victim's testimony about a sexual offense could not support a conviction
unless corroborated by other evidence or the victim informed another person
of the offense within six months of its occurrence, but that, if a victim was
under 14 at the time of the offense, the victim's testimony alone could support
a conviction. A 1993 amendment allowed the victim's testimony alone to
support a conviction if the victim was under 18. The validity of four of
petitioner's convictions depends on which version of the law applies to him.
Before the Texas Court of Appeals, he argued that the four convictions could
not stand under the pre-1993 version of the law, which was in effect at the
time of his alleged conduct, because they were based solely on the testimony
of the victim, who was not under 14 at the time of the offenses and had not
made a timely outcry. The court held that applying the 1993 amendment
retrospectively did not violate the Ex Post Facto Clause, and the State Court
of Criminal Appeals denied review.
Held: Petitioner's convictions on the counts at issue, insofar as they are not
corroborated by other evidence, cannot be sustained under the Ex Post Facto
Clause. Pp. 521-553.
(a) In Calder v. Bull, 3 Dall. 386, 390, Justice Chase stated that the
proscription against ex post facto laws was derived from English common
law well known to the Framers, and set out four categories of ex post facto
criminal laws: "1st. Every law that makes an action done before the passing
of the law, and which was innocent when done, criminal; and punishes such
action. 2d. Every law that aggravates a crime, or makes it greater than it was,
when committed. 3d. Every law that changes the punishment, and inflicts a
greater punishment, than the law annexed to the crime, when committed. 4th.
Every law that alters the legal rules of evidence, and receives less, or
different, testimony, than the law required at the time of the commission of
the offence, in order to convict the offender." The Court has repeatedly
endorsed this understanding, including the fourth category. Both Justice
Chase and the common-law treatise on which he drew heavily cited
514
Syllabus
the case of Sir John Fenwick as an example of the fourth category. England
charged Fenwick with high treason in the late 17th century, but, under an Act
of Parliament, he could not be convicted without the testimony of two
witnesses. Parliament passed a bill of attainder making the two-witness rule
inapplicable, and Fenwick was convicted on the testimony of only one
witness. Pp. 521-530.
(b) Article 38.07 plainly fits within Calder's fourth category. Requiring only
the victim's testimony to convict, rather than that testimony plus
corroborating evidence, is surely "less testimony required to convict" in any
straightforward sense of those words. Indeed, the circumstances here parallel
those of Fenwick's case. That Article 38.07 neither increases the punishment
for, nor changes the elements of, the offense simply shows that the
amendment does not fit within Calder's first or third categories. Pp. 530-531.
(c) The fourth category resonates harmoniously with one of the principal
interests that the Ex Post Facto Clause was designed to serve, fundamental
justice. A law reducing the quantum of evidence required to convict is as
grossly unfair as retrospectively eliminating an element of the offense,
increasing punishment for an existing offense, or lowering the burden of
proof. In each instance, the government refuses, after the fact, to play by its
own rules, altering them in a way that is advantageous only to the State, to
facilitate an easier conviction. There is plainly a fundamental fairness interest
in having the government abide by the rules of law it establishes to govern
the circumstances under which it can deprive a person of his or her liberty or
life. Indeed, Fenwick's case itself illustrates this principle. Pp. 531-534.
(d) None of the reasons that the United States as amicus advances for
abandoning the fourth category is persuasive. It asserts that the fact that
neither Blackstone nor ex post facto clauses in Ratification-era state
constitutions mention the fourth category shows that Justice Chase simply got
it wrong. Accepting this assertion would require the Court to abandon the
101
third category as well, for it is also not mentioned in any of those sources.
And it does not follow from the fact that Fenwick was convicted by a bill of
attainder that his case cannot also be an example of an ex post facto law. In
fact, all of the specific examples that Justice Chase listed in Calder were
passed as bills of attainder. Nor, as the United States and Texas argue, was
the fourth category effectively cast out in Collins v. Youngblood, 497 U. S.
37, which actually held that it was a mistake to stray beyond Calder's four
categories, not that the fourth category was itself mistaken. Pp. 534-539.
(e) Texas' additional argument that the fourth category is limited to laws that
retrospectively alter the burden of proof is also rejected.
515
The Court's decision in Cummings v. Missouri, 4 Wall. 277, nowhere
suggests that a reversal of the burden of proof is all the fourth category
encompasses; and laws that lower the burden of proof and laws that reduce
the quantum of evidence necessary to meet that burden are indistinguishable
in all meaningful ways relevant to concerns of the Ex Post Facto Clause.
Texas' assertion that Fenwick's case concerns only a reduction in the burden
of proof is based on a mistaken historical premise. And its argument that the
present case is controlled by Hopt v. Territory of Utah, 110 U. S. 574, and
Thompson v. Missouri, 171 U. S. 380, is also unpersuasive. Unlike the
witness competency rules at issue there, Article 38.07 is a sufficiency of the
evidence rule. It does not merely regulate the mode in which the facts
constituting guilt may be placed before the jury, but governs the sufficiency
of those facts for meeting the burden of proof. Indeed, Hopt expressly
distinguished witness competency laws from laws altering the amount or
degree of proof needed for conviction. Moreover, a sufficiency of the
evidence rule resonates with the interests to which the Ex Post Facto Clause
is addressed, in particular the elements of unfairness and injustice in
subverting the presumption of innocence. Pp. 539-547.
963 S. W. 2d 833, reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which SCALIA,
SOUTER, THOMAS, and BREYER, JJ., joined. GINSBURG, J., filed a
dissenting opinion, in which REHNQUIST, C. J., and O'CONNOR and
KENNEDY, JJ., joined, post, p. 553.
Richard D. Bernstein, by appointment of the Court, 527 U. S. 1051, argued
the cause for petitioner. With him on the briefs were Carter G. Phillips,
Katherine L. Adams, and Paul A. Hemmersbaugh.
John Cornyn, Attorney General of Texas, argued the cause for respondent.
With him on the brief were Andy Taylor, First Assistant Attorney General,
Linda S. Eads, Deputy Attorney General, Gregory S. Coleman, Solicitor
General, and Philip A. Lionberger, Assistant Solicitor General.
Beth S. Brinkmann argued the cause for the United States as amicus curiae
urging affirmance. With her on the brief were Solicitor General Waxman,
Assistant Attorney
516
General Robinson, Deputy Solicitor General Dreeben, and Vicki S. Marani.
*
JUSTICE STEVENS delivered the opinion of the Court. An amendment to a
Texas statute that went into effect on September 1, 1993, authorized
conviction of certain sexual offenses on the victim's testimony alone. The
previous statute required the victim's testimony plus other corroborating
evidence to convict the offender. The question presented is whether that
amendment may be applied in a trial for offenses committed before the
amendment's effective date without violating the constitutional prohibition
against state "ex post facto" laws.
I
In 1996, a Texas grand jury returned a is-count indictment charging petitioner
with various sexual offenses against his stepdaughter. The alleged conduct
took place over more than four years, from February 1991 to March 1995,
when the victim was 12 to 16 years old. The conduct ceased after the victim
told her mother what had happened. Petitioner was convicted on alliS counts.
The two most serious counts charged him with aggravated sexual assault, and
petitioner was sentenced to life imprisonment on those two counts.
*Robert P. Marcovitch and Barbara Bergman filed a brief for the National
Association of Criminal Defense Lawyers as amicus curiae urging reversal.
102
A brief of amici curiae urging affirmance was filed for the State of Kansas et
al. by Carla J. Stovall, Attorney General of Kansas, and Stephen R.
McAllister, State Solicitor, joined by the Attorneys General for their
respective States as follows: Janet Napolitano of Arizona, M. Jane Brady of
Delaware, Robert A. Butterworth of Florida, Jeffrey A. Modisett of Indiana,
Richard P. Ieyoub of Louisiana, Jennifer M. Granholm of Michigan, Joe
Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of
Nevada, Betty D. Montgomery of Ohio, W A. Drew Edmondson of
Oklahoma, Charles M. Condon of South Carolina, Jan Graham of Utah,
William H. Sorrell of Vermont, and Christine O. Gregoire of Washington.
517
For each of the other 13 offenses (5 counts of sexual assault and 8 counts of
indecency with a child), petitioner received concurrent sentences of 20 years.
Until September 1, 1993, the following statute was in ef-
fect in Texas:
"A conviction under Chapter 21, Section 22.011, or Section 22.021, Penal
Code, is supportable on the uncorroborated testimony of the victim of the
sexual offense if the victim informed any person, other than the defendant, of
the alleged offense within six months after the date on which the offense is
alleged to have occurred. The requirement that the victim inform another
person of an alleged offense does not apply if the victim was younger than 14
years of age at the time of the alleged offense." Tex. Code Crim. Proc. Ann.,
Art. 38.07 (Vernon 1983).1
We emphasize three features of this law that are critical to petitioner's case.
The first is the so-called "outcry or corroboration" requirement. Under that
provision, a victim's testimony can support a conviction for the specified
offenses only if (1) that testimony is corroborated by other evidence, or (2)
the victim informed another person of the offense within six months of its
occurrence (an "outcry"). The second feature is the "child victim" provision,
which is an exception to the outcry or corroboration requirement. According
to this provision, if the victim was under 14 years old at the time of the alleged
offense, the outcry or corroboration requirement does not apply and the
victim's testimony alone can support a conviction-even without any
corroborating evidence or outcry. The third feature is that Article 38.07
establishes a suffi-
1 The chapter and sections to which this statute refers cover all the charges
contained in the 15-count indictment against petitioner. Chapter 21 includes
the offense of indecency with a child; § 22.011 covers sexual assault; §
22.021 criminalizes aggravated sexual assault.
518
ciency of the evidence rule respecting the minimum quantum of evidence
necessary to sustain a conviction. If the statute's requirements are not met (for
example, by introducing only the uncorroborated testimony of a 15-year-old
victim who did not make a timely outcry), a defendant cannot be convicted,
and the court must enter a judgment of acquittal. See Leday v. State, 983 S.
W. 2d 713, 725 (Tex. Crim. App. 1998); Scoggan v. State, 799 S. W. 2d 679,
683 (Tex. Crim. App. 1990). Conversely, if the requirements are satisfied, a
conviction, in the words of the statute, "is supportable," and the case may be
submitted to the jury and a conviction sustained. See Vickery v. State, 566 S.
W. 2d 624, 626-627 (Tex. Crim. App. 1978); see also Burnham v. State, 821
S. W. 2d 1, 3 (Tex. Ct. App. 1991).2
Texas amended Article 38.07, effective September 1, 1993.
The amendment extended the child victim exception to victims under 18
years old.3 For four of petitioner's counts,
2 Texas courts treat Article 38.07 as a sufficiency of the evidence rule, rather
than as a rule concerning the competency or admissibility of evidence.
Ordinarily, when evidence that should have been excluded is erroneously
admitted against a defendant, the trial court's error is remedied on appeal by
reversing the conviction and remanding for a new trial. See, e. g., Miles v.
State, 918 S. W. 2d 511, 512 (Tex. Crim. App. 1996); Beltran v. State, 728
S. W. 2d 382, 389 (Tex. Crim. App. 1987). A trial court's failure to comply
with the requirements of Article 38.07, by contrast, results not in a remand
for a new trial, but in the reversal of conviction and remand for entry of an
order of acquittal. See, e. g., Scoggan, 799 S. W. 2d, at 683. At oral argument,
Texas agreed that the foregoing is an accurate description of Texas law. See
Tr. of Oral Arg. 28-29, 32, 40-41.
103
3 The new statute read in full:
"A conviction under Chapter 21, Section 22.011, or Section 22.021, Penal
Code, is supportable on the uncorroborated testimony of the victim of the
sexual offense if the victim informed any person, other than the defendant, of
the alleged offense within one year after the date on which the offense is
alleged to have occurred. The requirement that the victim inform another
person of an alleged offense does not apply if the victim was younger than 18
years of age at the time of the alleged offense." Tex. Code Crim. Proc. Ann.,
Art. 38.07, as amended by Act of May 29, 1993, 73d Leg., Reg.
519
that amendment was critical. The "outcry or corroboration" requirement was
not satisfied for those convictions; 4 they rested solely on the victim's
testimony. Accordingly, the verdicts on those four counts stand or fall
depending on whether the child victim exception applies. Under the old law,
the exception would not apply, because the victim was more than 14 years
old at the time of the alleged offenses. Under the new law, the exception
would apply, because the victim was under 18 years old at that time. In short,
the validity of four of petitioner's convictions depends on whether the old or
new law applies to his case, which, in turn, depends on whether the Ex Post
Facto Clause prohibits the application of the new version of Article 38.07 to
his case.
As mentioned, only 4 of petitioner's 15 total convictions are implicated by the
amendment to Article 38.07; the other 11 counts-including the 2 convictions
for which petitioner received life sentences-are uncontested. Six counts are
uncontested because they were committed when the victim was under 14
years old, so his convictions stand even under the old law; the other five
uncontested counts were committed after the new Texas law went into effect,
so there could be no ex post facto claim as to those convictions. See
Sess., ch. 900, § 12.01, 1993 Tex. Gen. Laws 3765, 3766, and Act of May
10, 1993, 73d Leg., Reg. Sess., ch. 200, § 1, 1993 Tex. Gen. Laws 387, 388.
4 The victim did not make an outcry until March 1995, more than six months
after the alleged offenses. Although the 1993 amendment to Article 38.07
extended the outcry period from six months to one year, see n. 3, supra, the
victim's outcry did not come within that time period either. Accordingly, that
change in the outcry provision is immaterial to this case.
The State argues that there is evidence corroborating the victim's testimony,
so it does not help petitioner even if the old law applies. See Brief for
Respondent 4, n. 2. Before the state court, however, petitioner argued that
"there was nothing to corroborate [the victim's] version of events," 963 S. W.
2d 833, 836 (Tex. Ct. App. 1998), and that court accepted the contention as
correct for the purposes of its decision. We do the same here.
520
Weaver v. Graham, 450 U. S. 24, 31 (1981) ("The critical question [for an ex
post facto violation] is whether the law changes the legal consequences of
acts completed before its effective date"). What are at stake, then, are the four
convictions on counts 7 through 10 for offenses committed between June
1992 and July 1993 when the victim was 14 or 15 years old and the new
Texas law was not in effect.
Petitioner appealed his four convictions to the Court of Appeals for the
Second District of Texas in Fort Worth. See 963 S. W. 2d 833 (1998).
Petitioner argued that under the pre-1993 version of Article 38.07, which was
the law in effect at the time of his alleged conduct, those convictions could
not stand, because they were based solely on the victim's testimony, and the
victim was not under 14 years old at the time of the offenses, nor had she
made a timely outcry.
The Court of Appeals rejected petitioner's argument.
Under the 1993 amendment to Article 38.07, the court observed, petitioner
could be convicted on the victim's testimony alone because she was under 18
years old at the time of the offenses. The court held that applying this
amendment retrospectively to petitioner's case did not violate the Ex Post
Facto Clause:
"The statute as amended does not increase the punishment nor change the
elements of the offense that the State must prove. It merely 'removes existing
restrictions upon the competency of certain classes of persons as witnesses'
and is, thus, a rule of procedure. Hopt v. Utah, 110 U. S. 574, 590 ... (1884)."
Id., at 836.
104

The Texas Court of Criminal Appeals denied discretionary review. Because
the question whether the retrospective application of a statute repealing a
corroboration requirement has given rise to conflicting decisions,5 we
granted peti-
5 Compare Utah v. Schreuder, 726 P. 2d 1215 (Utah 1986) (finding ex post
facto violation); Virgin Islands v. Civil, 591 F.2d 255 (CA3 1979) (same),
with New York v. Hudy, 73 N. Y. 2d 40, 535 N. E. 2d 250 (1988) (no ex post
521
tioner's pro se petition for certiorari, 527 U. S. 1002 (1999), and appointed
counsel, id., at 1051.
II
To prohibit legislative Acts "contrary to the first principles of the social
compact and to every principle of sound legislation," 6 the Framers included
provisions they considered to be "perhaps greater securities to liberty and
republicanism than any [the Constitution] contains." 7 The provisions
declare:
"No State shall ... pass any Bill of Attainder, ex post facto Law, or Law
impairing the Obligation of Contracts .... " u. S. Const., Art. I, § 10.8
The proscription against ex post facto laws "necessarily requires some
explanation; for, naked and without explanation, it is unintelligible, and
means nothing." Calder v. Bull, 3 Dall. 386, 390 (1798) (Chase, J.). In Calder
v. Bull, Justice Chase stated that the necessary explanation is derived from
English common law well known to the Framers: "The expressions 'ex post
facto laws,' are technical, they had been in use long before the Revolution,
and had acquired an appropriate meaning, by Legislators, Lawyers, and
Authors." Id., at 391; see also id., at 389 ("The prohibition ... very probably
arose from the knowledge, that the Parliament of Great Britain claimed and
exercised a power to pass such laws ... "); id., at 396 (Paterson, J.).
Specifically, the
facto violation); Murphy v. Sowders, 801 F.2d 205 (CA6 1986) (same);
Murphy v. Kentucky, 652 S. W. 2d 69 (Ky. 1983) (same). See also Idaho v.
Byers, 102 Idaho 159, 627 P. 2d 788 (1981) (judicial change in witness
corroboration rule may not be applied retroactively); Bowyer v. United
States, 422 A. 2d 973 (DC 1980) (same).
6 The Federalist No. 44, p. 282 (C. Rossiter ed. 1961) (J. Madison). 7Id., No.
84, at 511 (A. Hamilton).
8 Article I, § 9, cl. 3, has a similar prohibition applicable to Congress:
"No Bill of Attainder or ex post facto Law shall be passed."
522
phrase "ex post facto " referred only to certain types of criminal laws. Justice
Chase cataloged those types as follows:
"I will state what laws I consider ex post facto laws, within the words and the
intent of the prohibition. 1st. Every law that makes an action done before the
passing of the law, and which was innocent when done, criminal; and
punishes such action. 2d. Every law that aggravates a crime, or makes it
greater than it was, when committed. 3d. Every law that changes the
punishment, and inflicts a greater punishment, than the law annexed to the
crime, when committed. 4th. Every law that alters the legal rules of evidence,
and receives less, or different, testimony, than the law required at the time of
the commission of the offence, in order to convict the offender." Id., at 390
(emphasis in original).9
It is the fourth category that is at issue in petitioner's case.
The common-law understanding explained by Justice Chase drew heavily
upon the authoritative exposition of one of the great scholars of the common
law, Richard Wooddeson. See id., at 391 (noting reliance on Wooddeson's
treatise).l0
9 Elsewhere in his opinion, Justice Chase described his taxonomy of ex post
facto laws as follows:
"Sometimes [ex post facto laws] respected the crime, by declaring acts to be
treason, which were not treason, when committed; at other times, they
violated the rules of evidence (to supply a deficiency of legal proof) by
105
admitting one witness, when the existing law required two; by receiving
evidence without oath; or the oath of the wife against the husband; or other
testimony, which the courts of justice would not admit; at other times they
inflicted punishments, where the party was not, by law, liable to any
punishment; and in other cases, they inflicted greater punishment, than the
law annexed to the offence." 3 Dall., at 389 (emphasis deleted).
lOWooddeson was well known for his treatise on British common law, A
Systematical View of the Laws of England, which collected various lectures
he delivered as the Vinerian Professor and Fellow of Magdalen College at
Oxford. Though not as well known today, Justice Chase noted
523
Wooddeson's classification divided ex post facto laws into three general
categories: those respecting the crimes themselves; those respecting the legal
rules of evidence; and those affecting punishment (which he further
subdivided into laws creating a punishment and those making an existing
punishment more severe)Y See 2 R. Wooddeson, A Systematical View of the
Laws of England 625-640 (1792) (Lecture 41) (hereinafter Wooddeson).
Those three categories (the last of which was further subdivided) correlate
precisely to Calder's four categories. Justice Chase also used language in
describing the categories that corresponds directly to Wooddeson's
phrasing.12 Finally, in four
that Wooddeson was William Blackstone's successor, 3 Dall., at 391
(Blackstone held the Vinerian chair at Oxford until 1766), and his treatise
was repeatedly cited in the years following the ratification by lawyers
appearing before this Court and by the Court itself. See, e. g., Trustees of
Dartmouth College v. Woodward, 4 Wheat. 518, 562-563 (1819) (argument
of Daniel Webster); id., at 668, 676 (Story, J.); Town of Pawlet v. Clark, 9
Cranch 292, 326, 329 (1815) (Story, J.); The Nereide, 9 Cranch 388, 449
(1815) (Story, J.); Cooper v. Telfair, 4 Dall. 14,16-17 (1800) (arguments of
Edward Tilghman, Jared Ingersoll, and Alexander Dallas); Hannum v. Spear,
2 Dall. 291 (Err. App. Pa. 1795); Glass v. Sloop Betsey, 3 Dall. 6, 8 (1794).
11 Specifically, in the former category Wooddeson included those laws that
make "some innovation, or creat[e] some forfeiture or disability, not incurred
in the ordinary course of law." 2 R. Wooddeson, A Systematical View of the
Laws of England 638 (1792). In the latter category, he placed those laws that
"imposed a sentence more severe than could have been awarded by the
inferior courts." Id., at 639. As examples of the former category Wooddeson
cited the bills passed by Parliament that banished Lord Clarendon in 1669
and Bishop Atterbury in 1723. Those punishments were considered
"innovation[s] ... not incurred in the ordinary course of law" because
banishment, at those times, was simply not a form of penalty that could be
imposed by the courts. Ibid. See 11 W. Holdsworth, A History of English
Law 569 (1938); Craies, The Compulsion of Subjects to Leave the Realm, 6
L. Q. Rev. 388, 396 (1890).
12 See 2 Wooddeson 631 (referring to laws that "respec[t] the crime,
determining those things to be treason, which by no prior law or adjudication
could be or had been so declared"); id., at 633-634 (referring to laws
"respecting ... the rules of evidence [rectifying] a deficiency of
524
footnotes in Justice Chase's opinion, he listed examples of various Acts of
Parliament illustrating each of the four categories. See 3 Dall., at 389, nn. *,
t, :!:, 11.13 Each of these examples is exactly the same as the ones
Wooddeson himself used in his treatise. See 2 Wooddeson 629 (case of the
Earl of Strafford); id., at 634 (case of Sir John Fenwick); id., at 638
(banishments of Lord Clarendon and of Bishop Atterbury); id., at 639
(Coventry Act).
Calder's four categories, which embraced Wooddeson's formulation, were, in
turn, soon embraced by contemporary scholars. Joseph Story, for example, in
writing on the Ex Post Facto Clause, stated:
"The general interpretation has been, and is, ... that the prohibition reaches
every law, whereby an act is declared a crime, and made punishable as such,
when it was not a crime, when done; or whereby the act, if a crime, is
aggravated in enormity, or punishment; or whereby different, or less
evidence, is required to convict an offender, than was required, when the act
was committed." 3 Commentaries on the Constitution of the United States §
1339, p. 212 (1833).
James Kent concurred in this understanding of the Clause: "[T]he words ex
post facto laws were technical expressions, and meant every law that made
106
an act done before the passing of the law, and which was innocent when done,
criminal; or which aggravated a crime, and
legal proof" created when only one witness was available but "a statute then
lately made requiring two witnesses" had been in effect); id., at 638
(describing "acts of parliament, which principally affect the punishment,
making therein some innovation, or creating some forfeiture or disability, not
incurred in the ordinary course of law"); id., at 639 (referring to instances
where "the legislature ... imposed a sentence more severe than could have
been awarded by the inferior courts"). Cf. n. 9, supra.
13 The instances cited were the case of the Earl of Strafford, the case of Sir
John Fenwick, the banishments of Lord Clarendon and of Bishop Atterbury,
and the Coventry Act.
525
made it greater than it was when committed; or which changed the
punishment, and inflicted a greater punishment than the law annexed to the
crime when committed; or which altered the legal rules of evidence, and
received less or different testimony than the law required at the time of the
commission of the offence, in order to convict the offender." 1 Commentaries
on American Law 408 (3d ed. 1836) (Lecture 19).
This Court, moreover, has repeatedly endorsed this understanding, including,
in particular, the fourth category (sometimes quoting Chase's words verbatim,
sometimes simply paraphrasing). See Lynce v. Mathis, 519 U. S. 433, 441,
n. 13 (1997); Dobbert v. Florida, 432 U. S. 282, 293 (1977); Malloy v. South
Carolina, 237 U. S. 180, 183-184 (1915); Mallett v. North Carolina, 181 U.
S. 589, 593-594 (1901); Thompson v. Missouri, 171 U. S. 380, 382, 387
(1898); Hawker v. New York, 170 U. S. 189, 201 (1898) (Harlan, J.,
dissenting); Gibson v. Mississippi, 162 U. S. 565, 589-590 (1896); Duncan
v. Missouri, 152 U. S. 377, 382 (1894); Hopt v. Territory of Utah, 110 U. S.
574, 589 (1884); Kring v. Missouri, 107 U. S. 221, 228 (1883), overruled on
other grounds, Collins v. Youngblood, 497 U. S. 37 (1990); Gut v. State, 9
Wall. 35, 38 (1870); Ex parte Garland, 4 Wall. 333, 390-391 (1867) (Miller,
J., dissenting); Cummings v. Missouri, 4 Wall. 277, 325-326, 328 (1867).
State courts, too, in the years following Calder, adopted Justice Chase's four-
category formulation. See Boston & Gunby v. Cummins, 16 Ga. 102, 106
(1854); Martindale v. Moore, 3 Blackf. 275, 277 (Ind. 1833); Davis v.
Ballard, 24 Ky. 563, 578 (1829); Strong v. State, 1 Blackf. 193,196 (Ind.
1822); Dickinson v. Dickinson, 7 N. C. 327, 330 (1819); see also Woart v.
Winnick, 3 N. H. 473, 475 (Super. Ct. 1826).14
14 The reception given the four categories contrasts with that given to
Calder's actual holding-that the Ex Post Facto Clause applies only to criminal
laws, not to civil laws. The early criticism levied against that holding, see, e.
g., Satterlee v. Matthewson, 2 Pet. 380,416,681-687 (App. I)
526
III
As mentioned earlier, Justice Chase and Wooddeson both cited several
examples of ex post facto laws, and, in particular, cited the case of Sir John
Fenwick as an example of the fourth category. To better understand the type
of law that falls within that category, then, we turn to Fenwick's case for
preliminary guidance.
Those who remained loyal to James II after he was deposed by King William
III in the Revolution of 1688 thought their opportunity for restoration had
arrived in 1695, following the death of Queen Mary. 9 T. Macaulay, History
of England 31 (1899) (hereinafter Macaulay). Sir John Fenwick, along with
other Jacobite plotters including George Porter and Cardell Goodman, began
concocting their scheme in the spring of that year, and over the next several
months the original circle of conspirators expanded in number. Id., at 32, 47-
48, 109-110. Before the conspirators could carry out their machinations,
however, three members of the group disclosed the plot to William. Id., at
122-125. One by one, the participants were arrested, tried, and convicted of
treason. Id., at 127-142. Fenwick, though, remained in hiding while the rest
of the cabal was brought to justice. During that time, the trials of his
accomplices revealed that there were only two witnesses among them who
could prove Fenwick's guilt, Porter and Goodman. Id., at 170171. As luck
would have it, an act of Parliament proclaimed that two witnesses were
necessary to convict a person of high treason. See An Act for Regulateing of
Tryals in
(1829) (Johnson, J., concurring); Stoddart v. Smith, 5 Binn. 355, 370 (Pa.
1812) (Brackenridge, J.), was absent with respect to the four categories.
Although Justice Chase's opinion may have somewhat dampened the appetite
107
for further debate in the courts, that consideration would not necessarily have
an effect on scholarly discourse, nor does it explain why judges would be
reluctant to express criticism of the four categories, yet harbor no
compunction when it came to criticizing the actual holding of the Court.
527
Cases of Treason and Misprision of Treason, 7 & 8 Will. III, ch. 3, § 2 (1695-
1696), in 7 Statutes of the Realm 6 (reprint 1963).15 Thus, Fenwick knew
that if he could induce either Porter or Goodman to abscond, the case against
him would vanish. 9 Macaulay 171.
Fenwick first tried his hand with Porter. Fenwick sent his agent to attempt a
bribe, which Porter initially accepted in exchange for leaving for France. But
then Porter simply pocketed the bribe, turned in Fenwick's agent (who was
promptly tried, convicted, and pilloried), and proceeded to testify against
Fenwick (along with Goodman) before a grand jury. Id., at 171-173. When
the grand jury returned an indictment for high treason, Fenwick attempted to
flee the country himself, but was apprehended and brought before the Lord
Justices in London. Sensing an impending conviction, Fenwick threw himself
on the mercy of the court and offered to disclose all he knew of the Jacobite
plotting, aware all the while that the judges would soon leave the city for their
circuits, and a delay would thus buy him a few weeks time. Id., at 173-174.
Fenwick was granted time to write up his confession, but rather than betray
true Jacobites, he concocted a confession calculated to accuse those loyal to
William, hoping to introduce embarrassment and perhaps a measure of
instability to the current regime. Id., at 175-178. William, however, at once
perceived Fenwick's design and rejected the confession, along with any
expectation of mercy. Id., at 178-
15 That Act read, in relevant part:
"And bee it further enacted That ... noe Person or Persons whatsoever shall
bee indicted tryed or attainted of High Treason ... but by and upon the Oaths
and Testimony of Two lawfull Witnesses either both of them to the same
Overtact or one of them to one and another of them to another Overtact of the
same Treason unlesse the Party indicted and arraigned or tryed shall willingly
without violence in open Court confesse the same or shall stand Mute or
refuse to plead or in cases of High Treason shall peremptorily challenge
above the Number of Thirty five of the Jury .... "
528
180, 194. Though his contrived ploy for leniency was unsuccessful in that
respect, it proved successful in another: during the delay, Fenwick's wife had
succeeded in bribing Goodman, the other witness against him, to leave the
country. Id., at 194-195.16
Without a second witness, Fenwick could not be convicted of high treason
under the statute mentioned earlier. For all his plotting, however, Fenwick
was not to escape. After Goodman's absence was discovered, the House of
Commons met and introduced a bill of attainder against Fenwick to correct
the situation produced by the combination of bribery and the two-witness law.
Id., at 198-199. A lengthy debate ensued, during which the Members
repeatedly discussed whether the two-witness rule should applyP Ultimately,
the bill passed by a close vote of 189 to 156, id., at 210, notwithstanding the
objections of Members who (foreshadowing Calder's fourth category)
complained that Fenwick was being attainted "upon less Evidence" than
16 This time, Fenwick's wife handled the bribe with a deftness lacking in the
first attempt. Not only was Goodman (popularly called "Scum Goodman,"
see 9 Macaulay 32) an easier target, but Lady Fenwick's agent gave Goodman
an offer he couldn't refuse: abscond and be rewarded, or have his throat cut
on the spot. Id., at 195. Goodman's instinct for selfpreservation prevailed, and
the agent never parted company with him until they both safely reached
France. Ibid.
17 See, e. g., The Proceedings Against Sir John Fenwick Upon a Bill of
Attainder for High Treason 40 (1702) (hereinafter Proceedings) (" 'Tis
Extraordinary that you bring Sir John Fenwick, here to Answer for Trea- son,
when ... you have but one Witness to that Treason ... Treason be not Treason
unless it be proved by two Witnesses ... "); id., at 103 ("It hath been objected,
That there ought to be two Witnesses, by the late Statute"); id., at 227 ("I do
take it to be part of the Law of the Land, That no Man should be condemned
for Treason without two Witnesses"); id., at 256-257 ("[I]f we sit here to
Judge, we sit to Judge him according to the Law of England .... Will you set
up a Judgment ... upon one Witness, when the Law says you shall have two;
and after all, say 'tis a reasonable Proceeding?").
108

529
would be required under the two-witness law,18 and despite the repeated
importuning against the passing of an ex post facto law.19 The bill then was
taken up and passed by the
18 See, e. g., id., at 270 ("I believe this House can't take away any Persons
Life upon less Evidence than Inferiour Courts could do"); id., at 288 ("Shall
we that are the Supream Authority ... go upon less Evidence to satisfie
ourselves of Sir John Fenwick's Guilt, than other Courts?"); id., at 317 ("I
can't satisfie my self in my Conscience, and should think some misfortune
might follow me and my Posterity, if I passed Sentence upon Sir John
Fenwick's Life, upon less Evidence than the Law of England requires"); id.,
at 342 ("But the Liberty of the People of England is very much concerned in
the Revocation of that Act; and none of the Arguments that have been used
can Convince me, That I ought to give Judgment upon less Evidence than is
required by that Act").
19 See, e. g., id., at 145 ("I can't say, but those Persons, who in the last
Sessions of Parliament, were Imprisoned by an Act Ex Post Facto, and
subsequent to the Fact Complained of, yet when it was passed into a Law,
they were Legally Detained: but, I hope, I may take notice of their Case, as
some kind of Reason against this, to the end that those Laws may not grow
familiar, that they may not easily be obtained; because Precedents generally
grow, and as that Law Ex Post Facto, extended to Liberty, so this extends to
Life ... "); id., at 152-153 ("It would be too much at once to make a subsequent
Law to condemn a Man to Death .... I am afraid none are safe if that be
admitted, That a subsequent Law may take away a Man's Life ... " (emphasis
added)); id., at 197 ("Sir, It hath been urged to you, of what ill Consequence
it would be, and how much Injustice to make a Law to Punish a Man, Ex post
Facto ... "); id., at 256 ("But how shall they Judge? By the Laws in being ...
That you may Judge that to be Treason in this House, that was not so by the
Law before. So that give me leave to say, therefore there is no such Power
reserved to the Parliament, to Declare any thing Treason that is not Treason
before" (emphasis added)); id., at 282-283 ("[F]or according to your Law, no
Man shall be declared Guilty of Treason, unless there be two Witnesses
against him .... But how can a Man satisfie his own Conscience, to Condemn
any Man by a Law that is subsequent to the Fact? For that is the Case ... "
(emphasis added)); id., at 305 ("I think I may confidently affirm, there is not
so much as one Precedent where a Person ... was taken away from his Tryal,
... and cut off extrajudicially by an Act made on purpose, Ex post Facto"); id.,
at 331-332 ("Those Acts that have been made since, are made certainly to
provide, That in no Case whatsoever, a Man should be so much as accused
without two Witnesses
530
House of Lords, and the King gave his assent. Id., at 214225; see also An Act
to Attaint Sir John Fenwick Baronet of High Treason, 8 Will. III, ch. 4 (1696).
On January 28, 1697, Sir John Fenwick was beheaded. 9 Macaulay 226-227.
IV
Article 38.07 is unquestionably a law "that alters the legal rules of evidence,
and receives less, or different, testimony, than the law required at the time of
the commission of the offence, in order to convict the offender." Under the
law in effect at the time the acts were committed, the prosecution's case was
legally insufficient and petitioner was entitled to a judgment of acquittal,
unless the State could produce both the victim's testimony and corroborative
evidence. The amended law, however, changed the quantum of evidence
necessary to sustain a conviction; under the new law, petitioner could be (and
was) convicted on the victim's testimony alone, without any corroborating
evidence. Under any commonsense understanding of Calder's fourth
category, Article 38.07 plainly fits. Requiring only the victim's testimony to
convict, rather than the victim's testimony plus other corroborating evidence
is surely "less testimony required to convict" in any straightforward sense of
those words.
Indeed, the circumstances of petitioner's case parallel those of Fenwick's case
300 years earlier. Just as the relevant law in Fenwick's case required more
than one witness' testimony to support a conviction (namely, the testimony of
a second witness), Texas' old version of Article 38.07 required more than the
victim's testimony alone to sustain a conviction (namely, other corroborating
evidence).2o And just like Fen-
of the Treason .... Then this is a Law; ex post facto, and that hath been always
condemned ... ").
109
20 Texas argues that the corroborative evidence required by Article 38.07
"need not be more or different from the victim's testimony; it may be entirely
cumulative of the victim's testimony." Brief for Respondent 19;
531
wick's bill of attainder, which permitted the House of Commons to convict
him with less evidence than was otherwise required, Texas' retrospective
application of the amendment to Article 38.07 permitted petitioner to be
convicted with less than the previously required quantum of evidence. It is
true, of course, as the Texas Court of Appeals observed, that "[t]he statute as
amended does not increase the punishment nor change the elements of the
offense that the State must prove." 963 S. W. 2d, at 836. But that observation
simply demonstrates that the amendment does not fit within Calder's first and
third categories. Likewise, the dissent's remark that "Article 38.07 does not
establish an element of the offense," post, at 559, only reveals that the law
does not come within Calder's first category. The fact that the amendment
authorizes a conviction on less evidence than previously required, however,
brings it squarely within the fourth category.
V In short, the Ex Post Facto Clause was designed as "an additional bulwark in
The fourth category, so understood, resonates harmoniously with one of the
principal interests that the Ex Post Facto Clause was designed to serve,
fundamental justice.21
see also post, at 561, n. 6 (dissenting opinion). The trouble with that argument
is that the same was true in Fenwick's case. The relevant statute there required
the "Testimony of Two lawfull Witnesses either both of them to the same
Overtact or one of them to one and another of them to another Overtact of the
same Treason." See n. 15, supra (emphasis added).
21 The Clause is, of course, also aimed at other concerns, "namely, that
legislative enactments give fair warning of their effect and permit individuals
to rely on their meaning until explicitly changed," Miller v. Florida, 482 U.
S. 423, 430 (1987) (internal quotation marks omitted), and at reinforcing the
separation of powers, see Weaver v. Graham, 450 U. S. 24, 29, n. 10 (1981).
But those are not its only aims, and the absence of a reliance interest is not an
argument in favor of abandoning the category itself. If it were, the same
conclusion would follow for Calder's third category (increases in
punishment), as there are few, if any, reliance interests in planning future
criminal activities based on the expectation of less severe repercussions.
532
Justice Chase viewed all ex post facto laws as "manifestly unjust and
oppressive." Calder, 3 Dall., at 391. Likewise, Blackstone condemned them
as "cruel and unjust," 1 Commentaries on the Laws of England 46 (1765), as
did every state constitution with a similar clause, see n. 25, infra. As Justice
Washington explained in characterizing "[t]he injustice and tyranny" of ex
post facto laws:
"Why did the authors of the constitution turn their attention to this subject,
which, at the first blush, would appear to be peculiarly fit to be left to the
discretion of those who have the police and good government of the State
under their management and control? The only answer to be given is, because
laws of this character are oppressive, unjust, and tyrannical; and, as such, are
condemned by the universal sentence of civilized man." Ogden v. Saunders,
12 Wheat. 213, 266 (1827).
favour of the personal security of the subject," Calder, 3 Dall., at 390 (Chase,
J.), to protect against "the favorite and most formidable instruments of
tyranny," The Federalist No. 84, p. 512 (C. Rossiter ed. 1961) (A. Hamilton),
that were "often used to effect the most detestable purposes," Calder, 3 Dall.,
at 396 (Paterson, J.).
Calder's fourth category addresses this concern precisely.
A law reducing the quantum of evidence required to convict an offender is as
grossly unfair as, say, retrospectively eliminating an element of the offense,
increasing the punishment for an existing offense, or lowering the burden of
proof (see infra, at 540-544). In each of these instances, the government
subverts the presumption of innocence by reducing the number of elements it
must prove to overcome that presumption; by threatening such severe
punishment so as to induce a plea to a lesser offense or a lower sentence; or
by making it easier to meet the threshold for overcoming the presumption.
Reducing the quantum of evidence necessary
533
110

to meet the burden of proof is simply another way of achieving the same
end.22 All of these legislative changes, in a sense, are mirror images of one
another. In each instance, the government refuses, after the fact, to play by its
own rules, altering them in a way that is advantageous only to the State, to
facilitate an easier conviction. There is plainly a fundamental fairness
interest, even apart from any claim of reliance or notice, in having the
government abide by the rules of law it establishes to govern the
circumstances under which it can deprive a person of his or her liberty or
life.23
Indeed, Fenwick's case is itself an illustration of this principle. Fenwick could
claim no credible reliance interest in the two-witness statute, as he could not
possibly have known that only two of his fellow conspirators would be able
to testify as to his guilt, nor that he would be successful in bribing one of them
to leave the country. Nevertheless, Parliament had enacted the two-witness
law, and there was
22 Lowering the burden of persuasion, to be sure, is not precisely the same
thing as lowering (as a matter of law) the amount of evidence necessary to
meet that burden. But it does not follow, as the dissent appears to think, that
only the former subverts the presumption of innocence. Post, at 560-561
(opinion of GINSBURG, J.).
23 We do not mean to say that every rule that has an effect on whether a
defendant can be convicted implicates the Ex Post Facto Clause. Ordinary
rules of evidence, for example, do not violate the Clause. See infra, at 543-
547. Rules of that nature are ordinarily evenhanded, in the sense that they
may benefit either the State or the defendant in any given case. More
crucially, such rules, by simply permitting evidence to be admitted at trial, do
not at all subvert the presumption of innocence, because they do not concern
whether the admissible evidence is sufficient to overcome the presumption.
Therefore, to the extent one may consider changes to such laws as "unfair" or
"unjust," they do not implicate the same kind of unfairness implicated by
changes in rules setting forth a sufficiency of the evidence standard.
Moreover, while the principle of unfairness helps explain and shape the
Clause's scope, it is not a doctrine unto itself, invalidating laws under the Ex
Post Facto Clause by its own force. Cf. W S. Kirkpatrick & Co. v.
Environmental Tectonics Corp., Int'l, 493 U. S. 400, 409 (1990).
534
a profound unfairness in Parliament's retrospectively altering the very rules it
had established, simply because those rules prevented the conviction of the
traitor-notwithstanding the fact that Fenwick could not truly claim to be
"innocent." (At least one historian has concluded that his guilt was clearly
established, see 9 Macaulay 203-204, and the debate in the House of
Commons bears out that conclusion, see, e. g., Proceedings 219, 230, 246,
265, 289.) Moreover, the pertinent rule altered in Fenwick's case went
directly to the general issue of guilt, lowering the minimum quantum of
evidence required to obtain a conviction. The Framers, quite clearly, viewed
such maneuvers as grossly unfair, and adopted the Ex Post Facto Clause
accordingly.24
VI
The United States as amicus asks us to revisit the accuracy of the fourth
category as an original matter. None of its reasons for abandoning the
category is persuasive.
24 Fenwick's case also illustrates how such ex post facto laws can operate
similarly to retrospective increases in punishment by adding to the coercive
pressure to accept a plea bargain. When Fenwick was first brought before the
Lord Justices, he was given an opportunity to make a confession to the King.
Though he squandered the opportunity by authoring a plain contrivance,
Fenwick could have reasonably assumed that a sincere confession would
have been rewarded with leniency-the functional equivalent of a plea bargain.
See 9 Macaulay 125. When the bill of attainder was taken up by the House of
Commons, there is evidence that this was done to pressure Fenwick into
making the honest confession he had failed to make before. See, e. g.,
Proceedings 197 (" 'Tis a Matter of Blood, 'tis true, but I do not aim at this
Gentleman's Life in it ... all I Propose by it, is to get his Confession"); id., at
235 ("[W]e do not aim at Sir John Fenwick's Blood, (God forbid we should)
but at his Confession"); id., at 255 ("Why, give me leave to say to you, 'tis a
new way not known in England, that you will Hang a Man unless he will
Confess or give Evidence ... "). And before the House of Lords, Fenwick was
explicitly threatened that unless he confessed, they would proceed to consider
the bill against him. 9 Macaulay 218.
535
111

First, pointing to Blackstone's Commentaries and a handful of state
constitutions cited by Justice Chase in Calder, see 3 Dall., at 391-392, the
United States asserts that Justice Chase simply got it wrong with his four
categories. Blackstone wrote: "There is still a more unreasonable method than
this, which is called making of laws ex post facto; when after an action is
committed, the legislator then for the first time declares it to have been a
crime, and inflicts a punishment upon the person who has committed it .... "
1 Commentaries on the Laws of England, at 46 (emphasis in original). The
ex post facto clauses in Ratification-era state constitutions to which Justice
Chase cited are of a piece.25 The United States directs our attention to the
fact that none of these definitions mentions Justice Chase's fourth category.
All of these sources, though, are perfectly consistent with Justice Chase's first
category of ex post facto laws. None of them is incompatible with his four-
category formulation, unless we accept the premise that Blackstone and the
state constitutions purported to express the exclusive definition of an ex post
facto law. Yet none appears to do so on its face. And if those definitions were
read as exclusive, the United
25 Massachusetts' clause read as follows: "Laws made to punish for actions
done before the existence of such laws, and which have not been declared
crimes by preceding laws, are unjust, oppressive, and inconsistent with the
fundamental principles of a free government." Constitution of Massachusetts,
Pt. I, Art. 24 (1780), in 5 W. Swindler, Sources and Documents of United
States Constitutions 95 (1975) (hereinafter Swindler). The Constitutions of
Maryland and North Carolina used identical words:
"That retrospective laws, punishing facts committed before the existence of
such laws, and by them only declared criminal, are oppressive, unjust, and
incompatible with liberty; wherefore no ex post facto law ought to be made."
Maryland Constitution, A Declaration of Rights, Art. 15 (1776), in 4 Swindler
373; North Carolina Constitution, A Declaration of Rights, Art. 24 (1776), in
7 Swindler 403. And Delaware's Declaration of Rights and Fundamental
Rules, Art. 11 (1776), in 2 Swindler 198, stated, "That retrospective Laws,
punishing Offenses committed before the Existence of such Laws, are
oppressive and unjust and ought not to be made."
536
States' argument would run up against a more troubling obstacle, namely, that
neither Blackstone nor the state constitutions mention Calder's third category
either (increases in punishment). The United States, in effect, asks us to
abandon two of Calder's categories based on the unsupported supposition that
the Blackstonian and state constitutional definitions were exclusive, and upon
the implicit premise that neither Wooddeson, Chase, Story, Kent, nor
subsequent courts (state and federal) realized that was so. We think that
simply stating the nature of the request demonstrates why it must be
rejected.26
Next, the United States contends Justice Chase was mistaken to cite the case
of Sir John Fenwick as an example of an ex post facto law, because it was
actually a bill of attainder. Fenwick was indeed convicted by a bill of
attainder, but it does not follow that his case cannot also be an example of an
ex post facto law. Clearly, Wooddeson thought it was, see 2 Wooddeson 641,
as did the House of Commons, see n. 19, supra, and we are aware of no rule
stating that a single historical event can explain one, but not two,
constitutional Clauses (actually, three Clauses, see Art. III, § 3 (Treason
Clause)). We think the United States' observation simply underscores the
kinship between bills of attainder and ex post facto laws, see Nixon v.
Administrator of General Services, 433 U. S. 425, 468, n. 30 (1977); United
States v. Lovett, 328 U. S. 303, 323 (1946) (Frankfurter, J., concurring); see
also Z. Chafee, Three Human Rights in the Constitution of 1787, pp. 92-93
(1956) (herein-
26 Nor does it help much to cite Justice Iredell's statement that ex post facto
laws include those that "inflict a punishment for any act, which was innocent
at the time it was committed; [or] increase the degree of punishment
previously denounced for any specific offence," Calder v. Bull, 3 Dall. 386,
400 (1798). The argument still requires us to believe that Justice Iredell-and
only Justice Iredell-got it right, and that all other authorities (now including
Blackstone and the state constitutions) somehow missed the point.
537
after Chafee), which may explain why the Framers twice placed their
respective prohibitions adjacent to one another. And if the United States
means to argue that category four should be abandoned because its illustrative
example was a bill of attainder, this would prove entirely too much, because
112
all of the specific examples listed by Justice Chase were passed as bills of
attainder.27
Finally, both Texas and the United States argue that we have already
effectively cast out the fourth category in Collins v. Youngblood, 497 U. S.
37 (1990). Collins held no such thing. That case began its discussion of the
Ex Post Facto Clause by quoting verbatim Justice Chase's "now familiar
opinion in Calder" and his four-category definition. Id., at 41-42. After noting
that "[e]arly opinions of the Court portrayed this as an exclusive definition of
ex post facto laws," id., at 42, the Court then quoted from our opinion in
Beazell v. Ohio, 269 U. S. 167 (1925):
"'It is settled, by decisions of this Court so well known that their citation may
be dispensed with, that any statute which punishes as a crime an act
previously committed, which was innocent when done; which makes more
burdensome the punishment for a crime, after its commission, or which
deprives one charged with crime of any defense available according to law at
the time when the act was committed, is prohibited as ex post
27 See An Act for the Attainder of Thomas Earle of Strafford of High
Treason, 16 Car. I, ch. 38 (1640), in 5 Statutes of the Realm 177 (reprint
1963); An Act for Banishing and Disenabling the Earl of Clarendon, 19 & 20
Car. II, ch. 2 (1667-1668), in 5 Statutes of the Realm, at 628; An Act to Inflict
Pains and Penalties on Francis (Atterbury) Lord Bishop of Rochester, 9 Geo.
I, ch. 17 (1722); An Act to Prevent Malicious Maiming and Wounding
(Coventry Act), 22 & 23 Car. II, ch. 1 (1670). While the bills against the Earl
of Clarendon and Bishop Atterbury appear to be bills of pains and penalties,
see Chafee 117, 136, as does the Coventry Act, see 2 Wooddeson 638-639,
those are simply a subspecies of bills of attainder, the only difference being
that the punishment was something less than death. See Drehman v. Stifle, 8
Wall. 595, 601 (1870).
538
facto.'" Collins, 497 U. S., at 42 (quoting Beazell, 269 U. S., at 169-170).
Collins then observed in a footnote: "The Beazell definition omits the
reference by Justice Chase in Calder v. Bull, to alterations in the 'legal rules
of evidence.' As cases subsequent to Calder make clear, this language was
not intended to prohibit the application of new evidentiary rules in trials for
crimes committed before the changes." 497 U. S., at 43, n.3 (citations
omitted). Collins then commented that "[t]he Beazell formulation is faithful
to our best knowledge of the original understanding of the Ex Post Facto
Clause." Id., at 43.
It seems most accurate to say that Collins is rather cryptic. While calling
Calder's four categories the "exclusive definition" of ex post facto laws, it
also calls Beazell's definition a "faithful" rendition of the "original
understanding" of the Clause, even though that quotation omitted category
four. And while Collins quotes a portion of Beazell omitting the fourth
category, the immediately preceding paragraph in Beazell explains that the
law at issue in that case did not change "[t]he quantum and kind of proof
required to establish guilt," 269 U. S., at 170, a statement distinguishing,
rather than overruling, Calder's fourth category.
If Collins had intended to resurrect a long forgotten original understanding of
the Ex Post Facto Clause shorn of the fourth category, we think it strange that
it would have done so in a footnote. Stranger still would be its reliance on a
single case from 1925, which did not even implicate, let alone purport to
overrule, the fourth category, and which did not even mention Fenwick's case.
But this Court does not discard longstanding precedent in this manner.
Further still, Collins itself expressly overruled two of our prior cases; if the
Court that day were intent on overruling part of Calder as well, it surely would
have said so directly, rather than act in such an ambiguous manner.
539
The better understanding of Co II ins' discussion of the Ex Post Facto Clause
is that it eliminated a doctrinal hitch that had developed in our cases, which
purported to define the scope of the Clause along an axis distinguishing
between laws involving "substantial protections" and those that are merely
"procedural." Both Kring v. Missouri, 107 U. S. 221 (1883), and Thompson
v. Utah, 170 U. S. 343 (1898)-the two cases Collins overruled-relied on just
that distinction. In overruling them, the Court correctly pointed out, "the
prohibition which may not be evaded is the one defined by the Calder
categories." 497 U. S., at 46. Accordingly, Collins held that it was a mistake
to stray beyond Calder's four categories, not that the fourth category was itself
mistaken.28
VII
113

Texas next argues that even if the fourth category exists, it is limited to laws
that retrospectively alter the burden of proof (which Article 38.07 does not
do). See also post, at 572 (dissenting opinion). It comes to this conclusion on
the basis of two pieces of evidence. The first is our decision in Cummings v.
Missouri, 4 Wall. 277 (1867). The second concerns Texas' historical
understanding of Fenwick's case.
28 The dissent would have us dismiss our numerous and repeated invocations
of the fourth category, see supra, at 525, because they were merely
"mechanical ... recitation[s]" in cases that did not depend on the fourth
category. Post, at 568. Instead, the dissent would glean original meaning from
Beazell v. Ohio, 269 U. S. 167 (1925), and Collins v. Youngblood, 497 U. S.
37 (1990). Post, at 567-568. First of all, the dissent is factually mistaken;
Cummings v. Missouri, 4 Wall. 277 (1867), relied on the fourth category in
invalidating the laws at issue there. See infra this page and 540-541. And
Hopt v. Territory of Utah, 110 U. S. 574 (1884) (discussed infra, at 542-547),
specifically distinguished category four. See post, at 570-571 ("Hopt ...
retain[ed] Calder's fourth category"). Second, as mentioned above, neither
Beazell nor Collins relied on the fourth category, so it is not apparent why the
dissent would place so much emphasis on those two cases that did not depend
on category four.
540
Cummings v. Missouri addressed an ex post facto challenge to certain
amendments to the Missouri State Constitution made in 1865. When read
together, those amendments listed a series of acts deemed criminal (all
dealing with the giving of aid or comfort to anyone engaged in armed hostility
against the United States), and then declared that unless a person engaged in
certain professions (e. g., lawyers and clergymen) swore an oath of loyalty,
he "shall, on conviction [for failing to swear the oath], be punished" by a fine,
imprisonment, or both. Id., at 279-281. We held that these provisions violated
the Ex Post Facto Clause.
Writing for the Court, Justice Field first observed that "[b]y an ex post facto
law is meant one which imposes a punishment for an act which was not
punishable at the time it was committed; or imposes additional punishment
to that then prescribed; or changes the rules of evidence by which less or
different testimony is sufficient to convict than was then required." Id., at
325-326. The Court then held the amendments violated the Ex Post Facto
Clause in all these respects: some of the offenses deemed criminal by the
amendments were not criminal acts before then, id., at 327-328; other acts
were previously criminal, but now they carried a greater criminal sanction,
id., at 328; and, most importantly for present purposes, the amendments
permitted conviction on less testimony than was previously sufficient,
because they "subvert the presumptions of innocence, and alter the rules of
evidence, which heretofore, under the universally recognized principles of
the common law, have been supposed to be fundamental and unchangeable,"
ibid. The Court continued: "They assume that the parties are guilty; they call
upon the parties to establish their innocence; and they declare that such
innocence can be shown only in one way-by an inquisition, in the form of an
expurgatory oath, into the consciences of the parties." Ibid.
It is correct that Cummings held Missouri's constitutional amendments
invalid under the fourth category because
541
they reversed the burden of proof. But Cummings nowhere suggests that a
reversal of the burden of proof is all the fourth category encompasses. And
we think there is no good reason to draw a line between laws that lower the
burden of proof and laws that reduce the quantum of evidence necessary to
meet that burden; the two types of laws are indistinguishable in all
meaningful ways relevant to concerns of the Ex Post Facto Clause. See supra,
at 530534; see also Cummings, 4 Wall., at 325 ("The legal result must be the
same, for what cannot be done directly cannot be done indirectly. The
Constitution deals with substance, not shadows").
As for Texas' second piece of evidence, it asserts that the law in Fenwick's
case, requiring two witnesses to convict a person for high treason, traces its
origins to the ancient Roman law concept known as the "rule of number,"
under which "the probative value of testimony would be increased if others
testifying to the same facts swore an oath." Brief for Respondent 20. The "less
testimony" to which Fenwick's case refers, the argument runs, concerns
lowering the probative value required to convict, i. e., a reduction in the
burden of proof.
Even if that historical argument were correct, the same response to Texas'
Cummings-based argument is applicable. But we think the historical premise
114
is mistaken. If the testimony of one witness rather than two truly reflected a
less credible showing, and if the House of Commons truly thought it labored
under a lesser burden of proof, then one would expect some sort of reference
to that in Fenwick's case. Yet the few direct references to the burden of proof
that were made during the debates are to the contrary; they indicate something
roughly the equivalent of a beyond-a-reasonabledoubt standard.29 And at
least one Member expressly de-
29 See, e. g., Proceedings 75 ("If upon what I hear, I am of Opinion, he is
notoriously Guilty, I shall freely pass the Bill. If I do so much as doubt that
he is Guilty, according to the old Rule, Quod dubitas ne feceris
542
dared that the number of witnesses testifying bore no relationship to the
overall credibility of the Crown's case.30 It also appears that "[a]fter the
middle of the 1600s there never was any doubt that the common law of
England in jury trials rejected entirely" the Roman law concept of the rule of
number. Wigmore, Required Numbers of Witnesses; A Brief History of the
Numerical System in England, 15 Harv. L. Rev. 83, 93 (1901). Though the
treason statute at issue in Fenwick's case, and related antecedent acts, have a
superficial resemblance to the rule of number, those acts in fact reflected a
concern with prior monarchical abuses relating to the specific crime of
treason, rather than any vestigial belief that the number of witnesses is a proxy
for probative value. Id., at 100-101; see also 7 J. Wigmore, Evidence § 2037,
pp. 353-354 (J. Chadbourn rev. 1978).
VIII
Texas argues (following the holding of the Texas Court of Appeals) that the
present case is controlled by Hopt v. Territory of Utah, 110 U. S. 574 (1884),
and Thompson v. Missouri, 171 U. S. 380 (1898). In Hopt, the defendant was
convicted of murder. At trial, the prosecution introduced the testimony of a
convicted felon that tended to inculpate the defendant. Hopt objected to the
competency of the witness on the basis of a law in place at the time of the
alleged murder, which stated: " '[T]he rules for determining the competency
of witnesses in civil actions are applicable also to criminal actions .... '" The
relevant civil rules, in turn, specified that "'all persons, without exception, ...
may be witnesses in any action or proceeding,'" but "'persons against whom
judgment has been rendered upon a conviction
[where you doubt, do nothing], I shall not be for it ... "). See also Coffin
30 "[O]ne single Witness, if credited by Twelve Jury-men, is sufficient; and
an Hundred Witnesses, if not so credited, is not sufficient to Convict a Person
of a Capital Crime." Proceedings 210; see also id., at 223-226.
543
for felony ... shall not be witnesses.'" 110 U. S., at 587-588. After the date of
the alleged offense, but prior to defendant's trial, the last provision (excluding
convicted felons from being witnesses) was repealed.
The defendant argued that the retrospective application of the felon witness-
competency provision violated the Ex Post Facto Clause. Because of the
emphasis the parties (and the dissent) have placed on Hopt, it is worth quoting
at length this Court's explanation for why it rejected the defendant's
argument:
"Statutes which simply enlarge the class of persons who may be competent
to testify in criminal cases are not ex post facto in their application to
prosecutions for crimes committed prior to their passage; for they do not
attach criminality to any act previously done, and which was innocent when
done; nor aggravate any crime theretofore committed; nor provide a greater
punishment therefor than was prescribed at the time of its commission; nor
do they alter the degree, or lessen the amount or measure, of the proofwhich
was made necessary to conviction when the crime was committed.
"The crime for which the present defendant was indicted, the punishment
prescribed therefor, and the quantity or the degree of proof necessary to
establish his guilt, all remained unaffected by the subsequent statute. Any
statutory alteration of the legal rules of evidence which would authorize
conviction upon less proof, in amount or degree, than was required when the
offence was committed, might, in respect of that offence, be obnoxious to the
constitutional inhibition upon ex post facto laws. But alterations which do not
increase the punishment, nor change the ingredients of the offence or the
ultimate facts necessary to establish guilt, but-leaving untouched the nature
of the crime and the amount or degree of proof essential to conviction-only
remove existing restrictions upon the compe-
115
544
tency of certain classes of persons as witnesses, relate to modes of procedure
only, in which no one can be said to have a vested right, and which the State,
upon grounds of public policy, may regulate at pleasure. Such regulations of
the mode in which the facts constituting guilt may be placed before the jury,
can be made applicable to prosecutions or trials thereafter had, without
reference to the date of the commission of the offence charged." Id., at 589-
590 (emphases added).
Thompson v. Missouri, also relied upon by Texas, involved a similar ex post
facto challenge to the retrospective application of a law permitting the
introduction of expert handwriting testimony as competent evidence, where
the rule in place at the time of the offense did not permit such evidence to be
introduced. Mainly on the authority of Hopt, the Court rejected Thompson's
ex post facto challenge as well.
Texas' reliance on Hopt is misplaced. Article 38.07 is simply not a witness
competency rule.31 It does not "simply enlarge the class of persons who may
be competent to testify," and it does not "only remove existing restrictions
upon the competency of certain classes of persons as witnesses." 110 U. S.,
at 589-590. Both before and after the amendment, the victim's testimony was
competent evidence. Texas Rule of Criminal Evidence 601(a) already
prescribes that "[e]very person is competent to be a witness except as
otherwise provided in these rules," and Rule 601(a)(2) already contains its
own provision respecting child wit-
31 We recognize that the Court of Appeals stated Article 38.07 "merely
'removes existing restrictions upon the competency of certain classes of
persons as witnesses,'" 963 S. W. 2d, at 836 (quoting Hopt, 110 U. S., at 590);
see supra, at 520. Whether a state law is properly characterized as falling
under the Ex Post Facto Clause, however, is a federal question we determine
for ourselves. Cf. Lindsey v. Washington, 301 U. S. 397, 400 (1937).
545
nesses.32 As explained earlier, see supra, at 517-518, 531533, Article 38.07
is a sufficiency of the evidence rule. As such, it does not merely "regulat[e]
... the mode in which the facts constituting guilt may be placed before the
jury," (Rule 601(a) already does that), but governs the sufficiency of those
facts for meeting the burden of proof. Indeed, Hopt expressly distinguished
witness competency laws from those laws that "alter the degree, or lessen the
amount or measure, of the proof which was made necessary to conviction
when the crime was committed." 110 U. S., at 589; see also id., at 590 (felon
witness law "leav[es] untouched ... the amount or degree of proof essential to
conviction").
It is profitable, in this respect, to compare the statutes in Hopt and Thompson
with the text of Article 38.07. The law in Hopt proscribed a "'rul[e] for
determining the competency of witnesses'" that stated "'persons ... convict[ed
of a] felony ... shall not be witnesses.'" 110 U. S., at 587-588. The statute in
Thompson, similarly, specified that "'comparison of a disputed writing ...
shall be permitted to be made by witnesses, and such writings ... may be
submitted to the court and jury as evidence.'" 171 U. S., at 381. Article 38.07,
however, speaks in terms of whether "[a] convic-
32 That subsection contains an exception for "[c]hildren or other persons
who, after being examined by the court, appear not to possess sufficient
intellect to relate transactions with respect to which they are interrogated."
It is also worth observing that before 1986, Rule 601(a) was codified as Tex.
Code Crim. Proc. Ann., Art. 38.06 (Vernon 1979)-the section immediately
preceding the law at issue in this case. (The provision then read: "All persons
are competent to testify in criminal cases," and contained a similar exception
for child witnesses.) We think it fair to infer that Texas was well aware of the
differences in the language used in these adjacent provisions, and understood
that the laws served two different functions. The dissent views Article 38.07
as an exception to the general rule of former Article 38.06. It finds it logical
that the exception would be placed next to the general rule, post, at 564, n. 8,
but does not suggest a reason why it would be logical for the supposed
exception to be phrased in language so utterly different from the general rule.
546
tion ... is supportable on" certain evidence. It is Rule 601(a), not Article 38.07,
that addresses who is "competent to testify." We think the differences in these
laws are plain.33
Moreover, a sufficiency of the evidence rule resonates with the interests to
which the Ex Post Facto Clause is addressed in a way that a witness
116
competency rule does not. In particular, the elements of unfairness and
injustice in subverting the presumption of innocence are directly implicated
by rules lowering the quantum of evidence required to convict. Such rules
will always run in the prosecution's favor, because they always make it easier
to convict the accused. This is so even if the accused is not in fact guilty,
because the coercive pressure of a more easily obtained conviction may
induce a defendant to plead to a lesser crime rather than run the risk of
conviction on a greater crime. Witness competency rules, to the contrary, do
not necessarily run in the State's favor. A felon witness competency rule, for
example, might help a defendant if a felon is able to relate credible
exculpatory evidence.
Nor do such rules necessarily affect, let alone subvert, the presumption of
innocence. The issue of the admissibility of evidence is simply different from
the question whether the properly admitted evidence is sufficient to convict
the defendant. Evidence admissibility rules do not go to the general issue of
guilt, nor to whether a conviction, as a matter of law, may be sustained.
Prosecutors may satisfy all the requirements of any number of witness
competency
33 The dissent seems unwilling to concede this distinction. Though it admits
that under Article 38.07 the uncorroborated victim is "not literally forbidden
from testifying," post, at 563, it also insists that testimony is "inadmissible,"
post, at 571, and that "the jury will not be permitted to consider it," post, at
555, n. 3. See also post, at 557, 565 (referring to Article 38.07 as a rule about
witness "credibility"); post, at 556, 570, 575 (referring to Texas' law as a rule
of "admissibility"); post, at 553, 557,563, 564, and n. 8, 575 (referring to the
law as one about "competency"). We think it is clear from the text of Article
38.07 and Rule 601, however, that the victim's testimony alone is not
inadmissible; it is just insufficient.
547
rules, but this says absolutely nothing about whether they have introduced a
quantum of evidence sufficient to convict the offender. Sufficiency of the
evidence rules (by definition) do just that-they inform us whether the
evidence introduced is sufficient to convict as a matter of law (which is not
to say the jury must convict, but only that, as a matter of law, the case may
be submitted to the jury and the jury may convict). In the words of Article
38.07, "[a] conviction ... is supportable" when its requirements are met.
IX
The dissent contends that Article 38.07 is not a sufficiency of the evidence
rule. It begins its argument by describing at length how the corroboration
requirement "is premised on a legislative judgment that accusations made by
sexual assault victims above a certain age are not independently trustworthy."
Post, at 556; see also post, at 557-559. But it does not follow from that
premise that Article 38.07 cannot be a sufficiency of the evidence rule. Surely
the legislature can address trustworthiness issues through witness
competency rules and sufficiency of the evidence rules alike. Indeed, the
statutory history to which the dissent points cuts against its own argument.
Article 38.07's statutory antecedent, the dissent says, was a "replac[ement]"
for the old common-law rule that seduced females were" 'incompetent'" as
witnesses. Post, at 557, 558. In 1891, Texas substituted a law stating that" 'the
female alleged to have been seduced shall be permitted to testify; but no
conviction shall be had upon the testimony of the said female, unless the same
is corroborated .... '" Post, at 558 (emphasis added). That statute was
recodified as Article 38.07 in 1965, was repealed in 1973, and then replaced
in 1975 by another version of Article 38.07. As reenacted, the law's language
changed from "no conviction shall be had" to its current language that "[a]
conviction ... is supportable." We think this legislative history, to the extent
it is relevant for interpreting the current
548
law, demonstrates that Texas perceived the issue of witness trustworthiness
as both an admissibility issue and as a sufficiency question; that it long ago
abandoned its rule that victims of these types of crimes are incompetent as
witnesses; and that Article 38.07 codifies Texas' sufficiency of the evidence
solution to the trustworthiness issue.
Next, the dissent argues that under Texas' law "the prosecution need not
introduce the victim's testimony at all, much less any corroboration of that
testimony." Post, at 559. Instead, "[u]nder both the old and new versions of
the statute, a conviction could be sustained on the testimony of a single third-
party witness, on purely circumstantial evidence, or in any number of other
ways." Ibid. Because other avenues of prosecution-besides the victim's
testimony (with or without corroboration or outcry)-remain available to the
State, Article 38.07 "did not change the quantity of proof necessary to convict
117
in every case." Post, at 560 (emphasis added in part and deleted in part); see
also post, at 561 ("Article 38.07 has never dictated what it takes in all cases
... for evidence to be sufficient to convict" (emphasis added)). Accordingly,
the dissent urges, more evidence (in the form of corroboration) is not really
required under Article 38.07. See post, at 560-561, 574. It is unclear whether
the dissent's argument is that laws cannot be sufficiency of the evidence rules
unless they apply to every conviction for a particular crime, or whether the
dissent means that sufficiency rules not applicable in every prosecution for a
particular crime do not fall within Calder's fourth category, which refers to
less testimony "required ... in order to convict the offender." 3 Dall., at 390
(emphasis added in part and deleted in part). Either way, the argument fails.
Fenwick's case once again provides the guide. The dissent agrees that "[t]he
treason statute in effect at the time of John Fenwick's conspiracy, like the
Treason Clause of our Constitution, embodied ... a quantitative sufficiency
[of the evidence] rule." Post, at 573. But, it argues, Fen-
549
wick's law and the Treason Clause are different from Article 38.07; with the
first two laws, "two witnesses [were] necessary to support a conviction," ibid.
(emphasis added), whereas with Article 38.07, the victim's testimony plus
corroboration is not "necessary to convict in every case," post, at 560
(emphasis added). But a closer look at Fenwick's law and at the Treason
Clause shows that this supposed distinction is simply incorrect. Fenwick's
law stated that no person could be convicted of high treason "but by and upon
the Oaths and Testimony of Two lawfull Witnesses ... unlesse the Party
indicted and arraigned or tryed shall willingly without violence in open Court
confesse the same or shall stand Mute or refuse to plead ... " See n. 15, supra
(emphasis added). And the Treason Clause, of course, states that "No Person
shall be convicted of Treason unless on the Testimony of two Witnesses to
the same overt Act, or on Confession in open Court." U. S. Const., Art. III, §
3 (emphasis added). Plainly, in neither instance were two witnesses
"necessary to support a conviction," as the dissent claims. Accordingly, its
assertion that Article 38.07 "is nothing like the two-witness rule on which
Fenwick vainly relied" appears erroneous, as does its accusation that our
reliance on Fenwick's case "simply will not wash." Post, at 573.34
The dissent's final argument relies upon Hopt and runs something like this.
The "effect" of Article 38.07, it claims, is the same, in certain cases, as a
witness credibility rule. See post, at 559, 563-566, 575. However differently
Hopt-
34 Perhaps one can draw a distinction between convictions based on
confessions in open court and convictions based on third-party evidence and
the like (though how such a distinction would comport with the language of
the fourth category is not apparent). For example, an accused's confession
might be thought to be outside of the State's control. But see n. 24, supra. It
is not clear at all, though, that the availability of evidence other than the
victim's testimony is any more within the State's control than is the
defendant's confession.
550
type laws and Article 38.07 may seem to operate on their face, in practical
application (at least in certain instances) their consequences are no different,
and, accordingly, they ought to be treated alike. For example, if there were a
rule declaring a victim to be incompetent to testify unless she was under a
certain age at the time of the offense, or had made an outcry within a specified
period of time, or had other corroborating evidence, and the prosecution
attempted to rest its case on the victim's testimony alone without satisfying
those requirements, the end result would be a judgment of acquittal. Post, at
564-565. Likewise, under Article 38.07, if the prosecution attempts to rest its
case on the victim's testimony alone without satisfying the Article's
requirements, the result would also be an acquittal. Thus, Hopt-type laws and
Article 38.07 should be treated the same way for ex post facto purposes.
This argument seeks to make Hopt controlling by ignoring what the case says.
Hopt specifically distinguished laws that "alter the degree, or lessen the
amount or measure, of the proof" required to convict from those laws that
merely respect what kind of evidence may be introduced at trial. See supra,
at 545. The above argument, though, simply denies any meaningful
distinction between those types of laws, on the premise that they produce the
same results in some situations. See post, at 563 ("Such a victim is of course
not literally forbidden from testifying, but that cannot make the difference for
Ex Post Facto Clause purposes between a sufficiency of the evidence rule and
a witness competency rule"); post, at 571 ("Hopt cannot meaningfully be
distinguished from the instant case"). In short, the argument finds Hopt
controlling by erasing the case's controlling distinction.
118
The argument also pays no heed to the example laid down by Fenwick's case.
Surely we can imagine a witness competency rule that would operate in a
manner similar to the law in that case (e. g., a witness to a treasonous act is
not
551
competent to testify unless corroborated by another witness). Plainly, the
imagined rule does not mean that Fenwick's case is not an example of an ex
post facto law. But if that is so, why should it be any different for Article
38.07? Just as we can imagine a witness competency rule that would operate
similarly to the statute in Fenwick's case, the above argument imagines a
witness competency rule that operates similarly to Article 38.07. If the former
does not change our view of the law in Fenwick's case, why should the latter
change our view in the present circumstances?
Moreover, the argument fails to account for what Calder's fourth category
actually says, and tells only half the story of what a witness competency rule
does. As for what Calder says, the fourth category applies to "[e]very law that
alters the legal rules of evidence, and receives less, or different, testimony,
than the law required at the time of the commission of the offence, in order
to convict the offender." 3 Dall., at 390 (emphasis deleted). The last six words
are crucial. The relevant question is whether the law affects the quantum of
evidence required to convict; a witness competency rule that (in certain
instances at least) has the practical effect of telling us what evidence would
result in acquittal does not really speak to Calder's fourth category.
As for relating only half the story, the dissent's argument rests on the assertion
that sometimes a witness competency rule will result in acquittals in the same
instances in which Article 38.07 would also demand an acquittal. That may
be conceded, but it is only half the story-and, as just noted, not the most
relevant half. The other half concerns what a witness competency rule has to
say about the evidence "required ... in order to convict the offender." The
answer is, nothing at all. As mentioned earlier, see supra, at 546547,
prosecutors may satisfy all the requirements of any number of witness
competency rules, but this says absolutely nothing about whether they have
introduced a quantum of
552
evidence sufficient to convict the offender. Sufficiency of the evidence rules,
however, tell us precisely that.35
X
For these reasons, we hold that petitioner's convictions on counts 7 through
10, insofar as they are not corroborated by other evidence, cannot be sustained
under the Ex Post Facto Clause, because Texas' amendment to Article 38.07
falls within Calder's fourth category. It seems worth remembering, at this
point, Joseph Story's observation about the Clause:
" 'If the laws in being do not punish an offender, let him go unpunished; let
the legislature, admonished of the
35 The dissent contends that the witness competency rule "would produce the
same results" as a sufficiency rule, post, at 564-565 (emphasis deleted), and
above we have been willing to assume as much for argument's sake. But the
dissent's statement is not entirely correct. It would not be the witness
competency rule that would produce the same result, but that rule in
combination with the normally operative sufficiency rule. Failure to comply
with the requirements of Article 38.07, by contrast, would mean that the
evidence is insufficient to convict by the force of that law alone. That
difference demonstrates the very distinction between witness competency
rules and sufficiency of the evidence rules, points to precisely the distinction
that Hopt drew, and illustrates why (contrary to the dissent's contention) our
conclusion about Article 38.07 does not apply to "countless evidentiary
rules." Post, at 571.
That is also why the dissent's statement that we have been "misdirected" by
the plain text of Article 38.07 is wrong. Post, at 564. The dissent asserts that
"any evidence" admitted under an applicable rule of evidence could
"potentially" support a conviction, ibid., and therefore Article 38.07's explicit
specification that a conviction "is supportable" if its requirements are met
does not distinguish it from ordinary rules of evidence. Once again, we point
out that whether certain evidence can support a conviction is not determined
by the rule of admissibility itself, but by some other, separate, normally
operative sufficiency of the evidence rule. The distinction the dissent finds
illusive is that Article 38.07 itself determines the evidence's sufficiency (that
is why it is a sufficiency of the evidence rule), while witness competency
119
rules and other ordinary rules of evidence do not (because they are
admissibility rules, not sufficiency rules). See also n. 23, supra.
553
defect of the laws, provide against the commission of future crimes of the
same sort. The escape of one delinquent can never produce so much harm to
the community, as may arise from the infraction of a rule, upon which the
purity of public justice, and the existence of civil liberty, essentially depend.'"
3 Commentaries on the Constitution § 1338, at 211, n. 2.
And, of course, nothing in the Ex Post Facto Clause prohibits Texas'
prospective application of its amendment. Accordingly, the judgment of the
Texas Court of Appeals is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE GINSBURG, with whom THE CHIEF JUSTICE, JusTICE
O'CONNOR, and JUSTICE KENNEDY join, dissenting.
The Court today holds that the amended version of Article 38.07 of the Texas
Code of Criminal Procedure reduces the amount of proof necessary to support
a sexual assault conviction, and that its retroactive application therefore
violates the Ex Post Facto Clause. In so holding, the Court misreads both the
Texas statute and our precedents concerning the Ex Post Facto Clause. Article
38.07 is not, as the Court would have it, most accurately characterized as a
"sufficiency of the evidence rule"; it is in its essence an evidentiary provision
dictating the circumstances under which the jury may credit victim testimony
in sexual offense prosecutions. The amended version of Article 38.07 does
nothing more than accord to certain victims of sexual offenses full testimonial
stature, giving them the same undiminished competency to testify that Texas
extends to witnesses generally in the State's judicial proceedings. Our
precedents make clear that such a witness competency rule validly may be
applied to offenses committed before its enactment. I therefore dissent.
554
***
Petitioner Scott Leslie Carmell began sexually abusing his stepdaughter, "K.
M.," in the spring of 1991, when K. M. was 13 years old. He continued to do
so through March 1995. The specific question before the Court concerns
Carmell's sexual assault on K. M. in June 1992, when K. M. was 14.1 K. M.
did not inform anyone about that assault or about any of Carmell's other
sexual advances toward her until sometime around March 1995, when she
told a friend and then her mother, Eleanor Alexander. Alexander went to the
police, and Carmell was arrested and charged in a is-count indictment.
Under Article 38.07 of the Texas Code of Criminal Procedure as it stood at
the time of the assault, a conviction for sexual assault was supportable on the
uncorroborated testimony of the victim if the victim was younger than 14
years old at the time of the offense. If the victim was 14 years old or older,
however, the victim's testimony could support a conviction only if that
testimony was corroborated by other evidence. One form of corroboration,
specifically described in Article 38.07 itself, was known as "outcry": The
victim's testimony could support a conviction if he or she had informed
another person, other than the defendant, about the offense within six months
of its occurrence. Tex. Code Crim. Proc. Ann., Art. 38.07 (Vernon 1983).
Article 38.07 was amended in 1993. Under the new version, which was in
effect at the time of Carmell's trial, the victim's uncorroborated testimony can
support a conviction as long as the victim was under 18 years of age at the
time of the offense. Tex. Code Crim. Proc. Ann., Art. 38.07 (Vernon Supp.
2000). The corroboration requirement con-
1 The Court correctly notes that Carmell's ex post facto challenge applies
equally to three other counts on which he was convicted. Ante, at 518519.
This Court's grant of review, however, was limited to the first question
presented in Carmell's petition for certiorari, which encompassed only the
count charging the June 1992 assault. Pet. for Cert. 4.
555
tinues in force for victims aged 18 or older, with a modified definition of
outcry not material here. Thus, under the version of Article 38.07 in effect at
the time of Carmen's trial but not the version in effect at the time of the
offense, his conviction was supportable by the uncorroborated testimony of
K. M. The new version of Article 38.07 was applied at Carmen's trial, and he
was convicted.2 Carmen argues that the application of the new version of
120
Article 38.07 to his trial violated the Ex Post Facto Clause, U. S. Const., Art.
I, § 10, cl. 1.
I evidence. Its purpose is to rein in the admissibility of testimony the legislature
A proper understanding of Article 38.07 of the Texas Code of Criminal
Procedure is central to this case. Accordingly, I turn first to the effect and
purpose of that statute.
The effect of Article 38.07 in sexual offense prosecutions is plain. If the
victim is of a certain age, the jury, in assessing whether the prosecution has
met its burden of demonstrating guilt beyond a reasonable doubt, must give
no weight to her testimony unless that testimony is corroborated, either by
other evidence going directly to guilt or by "outcry." 3 For victims (such as
K. M.) who were between the ages of 14 and
2 The Texas Court of Appeals did not rule on whether the State in fact did
corroborate K. M.'s testimony at trial. I note the testimony of K. M.'s mother
that when she visited Carmell in jail and told him he needed to confess if he
was sorry for what he had done, he wrote "'adultery with [K. M.]''' on a piece
of paper. 963 S. W. 2d 833, 835 (Tex. App. 1998). That testimony might
count as corroboration. Because this question is outside the grant of certiorari,
I (like the Court, see ante, at 519, n. 4) do not further address it.
3 At first glance one might object that the statute permits the jury to give such
testimony some weight, just not enough to support a conviction. See, e. g.,
ante, at 546, n. 33 (contending that under the old Article 38.07, "the victim's
testimony alone is not inadmissible, it is just insufficient"). A moment's
reflection should reveal, however, that this distinction is illusory. If a
particular item of evidence cannot by itself support a conviction, then the jury
will not be permitted to consider it unless and until corroborating evidence is
introduced.
556
18 at the time of the offense, the 1993 amendment repealed this corroboration
requirement. The amended version of Article 38.07 thus permits sexual
assault victims between 14 and 18 to have their testimony considered by the
jury in the same manner and with the same effect as that of witnesses
generally in Texas prosecutions.
This sort of corroboration requirement-still embodied in Article 38.07 for
victims aged 18 or older-is a common, if increasingly outmoded, rule of
has deemed insufficiently credible standing alone. Texas' requirement of
corroboration or outcry, like similar provisions in other jurisdictions, is
premised on a legislative judgment that accusations made by sexual assault
victims above a certain age are not independently trustworthy. See Villareal
v. State, 511 S. W. 2d 500, 502 (Tex. Crim. App. 1974) ("The basis of this
rule is that the failure to make an outcry or promptly report the rape
diminishes the credibility of the prosecutrix."); cf., e. g., Battle v. United
States, 630 A. 2d 211, 217 (D. C. 1993) (evidence of outcry "rebuts an
implied charge of recent fabrication, which springs from some jurors'
assumptions that sexual offense victims are generally lying and that the
victim's failure to report the crime promptly is inconsistent with the victim's
current statement that the assault occurred").
Legislatures in many States, including Texas, have enacted similar
evidentiary provisions requiring corroboration for the testimony of other
categories of witnesses, particularly accomplices. See, e. g., Tex. Code Crim.
Proc. Ann., Art. 38.14 (Vernon Supp. 2000) ("A conviction cannot be had
upon the testimony of an accomplice unless corroborated by other evidence
tending to connect the defendant with the offense committed .... "). Such
provisions-generally on the wane but still in force in several States-are, like
Article 38.07, designed to ensure the credibility of the relevant witness. See,
e. g., State v. Haugen, 448 N. W. 2d 191, 194
557
(N. D. 1989) ("The purpose of corroborating evidence is to show that
accomplices are reliable witnesses and worthy of credit."); Holladay v. State,
709 S. W. 2d 194, 196 (Tex. Grim. App. 1986) ("Because such a witness [i.
e., an accomplice] is usually deemed to be corrupt, his testimony is always
looked upon with suspicion."); Fleming v. State, 760 P. 2d 208, 209210
(Okla. Grim. App. 1988) ("The purpose behind the requirement of
corroboration is to protect an accused from being falsely implicated by
another criminal in the hope of clemency, a desire for revenge, or for any
other reason.").
121
I make no judgment here as to the propriety of the Texas Legislature's
decision to view the testimony of certain sexual assault victims in the same
light as that of accomplices. Ex post facto analysis does not depend on an
assessment of a statute's wisdom. For current purposes it suffices to note that
Article 38.07's corroboration requirement rests on the same rationale that
underpins accomplice corroboration requirements: the notion that a particular
witness, because of his or her role in the events at issue, might not give
trustworthy testimony. See Reed v. State, 991 S. W. 2d 354, 361 (Tex. App.
1999) ("Generally speaking, the need to corroborate the testimony of a sexual
assault victim stems from the notion that the victim, if over the age of consent,
could be an accomplice rather than a victim."); Hernandez v. State, 651 S. W.
2d 746, 751 (Tex. Grim. App. 1983) (concurring opinion adopted on
rehearing) (Article 38.07's corroboration requirement "was meant to deal only
with testimony of a victim of a sexual offense who, for one reason or another,
was held to be an 'accomplice witness' and, perforce, whose testimony must
be corroborated.").
The history of Article 38.07 bears out the view that its focus has always been
on the competency and credibility of the victim as witness. The origins of the
statute could be traced to the fact that in Texas, "for many years a seduced
female was an incompetent witness as a matter of law." Holladay, 709 S. W.
2d, at 200. See, e. g., Cole v. State, 40
558
Tex. 147 (1874); see also Hernandez, 651 S. W. 2d, at 751-752 (tracing the
current Article 38.07 to the earlier seduction victim competency rule). In
1891, this common-law disability was lifted by statute and replaced by a
corroboration requirement: "In prosecutions for seduction ... the female
alleged to have been seduced shall be permitted to testify; but no conviction
shall be had upon the testimony of the said female, unless the same is
corroborated by other evidence tending to connect the defendant with the
offense charged." Tex. Rev. Crim. Stat., Tit. 8, ch. 7, Art. 789 (1911). The
application of this statute to offenses committed before its enactment was
upheld by the Texas courts on the authority of Hopt v. Territory of Utah, 110
U. S. 574 (1884). See Mrous v. State, 31 Tex. Crim. App. 597, 21 S. W. 764
(1893). The corroboration requirement for seduction prosecutions, recodified
in 1965 at Tex. Code Crim. Proc. Ann., Art. 38.07, remained in effect until
1973, when the entire 1925 Penal Code (including the offense of seduction)
was repealed.
In 1975, Article 38.07 was enacted substantially in its present form. As
revised, the article covered all sexual offenses in Chapter 21 of the Texas
Penal Code; however, it contained no express exemption from the
corroboration requirement for the testimony of the youngest victims. Tex.
Code Crim. Proc. Ann., Art. 38.07 (Vernon 1979). The exemption for victims
under the age of 14 was added in 1983, and extended in 1993 to cover those
under the age of 18, as already described. As initially proposed, the 1993
change would have eliminated the corroboration/outcry requirement
altogether. House Research Organization, Texas House of Representatives,
Daily Floor Report 13 (Mar. 15, 1993), Lodging of Petitioner. Supporters of
the proposal maintained that "[v]ictims in sexual assault cases are no more
likely to fantasize or misconstrue the truth than the victims of most other
crimes, which do not require corroboration of testimony or previous 'outcry.'
Juries can decide if a witness is credible .... Most states no longer require this
type of corrobora-
559
tion; neither should Texas." Id., at 14. The historical development of Article
38.07 reveals a progressive alleviation of restrictions on the competency of
victim testimony, not a legislative emphasis on the quantum of evidence
needed to convict.
The version of Article 38.07 applied at Carmell's trial was thus, in both effect
and purpose, an evidentiary rule governing the weight that may be given to
the testimony of sexual assault victims who had attained the age of 14. The
Court's efforts to paint it as something more than that are detached from the
statute's moorings and are consequently unpersuasive.
To begin with, it is beyond doubt that Article 38.07 does not establish an
element of the offense. See Love v. State, 499 S. W. 2d 108, 108 (Tex. Crim.
App. 1973) ("[O]utcry is not one of the elements of the offense charged.").
To convict a defendant of sexual assault in Texas today as before 1993, the
prosecution need not introduce the victim's testimony at all, much less any
corroboration of that testimony. The Court is therefore less than correct in
asserting that "[u]nder the law in effect at the time the acts were committed,
the prosecution's case was legally insufficient and petitioner was entitled to a
judgment of acquittal, unless the State could produce both the victim's
testimony and corroborative evidence." Ante, at 530. Under both the old and
122
new versions of the statute, a conviction could be sustained on the testimony
of a single third-party witness, on purely circumstantial evidence, or in any
number of other ways-so long as the admissible evidence presented is
sufficient to prove all of the elements of the offense beyond a reasonable
doubt.4 And under either version of Article 38.07, of course,
4 Not only is corroborated victim testimony not necessary for a conviction
under the former version of Article 38.07, it is not always sufficient. Under
both the old and new versions of the statute, the prosecution's evidence will
not support a conviction unless it is adequate to prove all the elements of the
offense beyond a reasonable doubt.
560
the accused could be convicted, like any other defendant, on the basis of a
guilty plea or a voluntary confession. Article 38.07, in other words, does not
define "sexual assault proven by corroborated victim testimony" as a distinct
offense from "sexual assault." Rather, the measure operates only to restrict
the State's method of proving its case.5
And it does so without affecting in any way the burden of persuasion that the
prosecution must satisfy to support a conviction. Under both the old and new
versions of the statute, the applicable standard is proof beyond a reasonable
doubt. The amendment in 1993 that repealed the corroboration requirement
for victims between the ages of 14 and 18 did nothing to change that standard.
The Court recognizes that Article 38.07 does not affect the applicable burden
of persuasion, see ante, at 539, but several times it asserts that the amended
version of the statute "changed the quantum of evidence necessary to sustain
a conviction," ante, at 530 (emphasis added). See also ante, at 531 (amended
law "permitted petitioner to be convicted with less than the previously
required quantum of evidence"); ante, at 532-533 (amended law "[r]educ[es]
the quantum of evidence necessary to meet the burden of proof" (emphases
added)). If by the word "quantum" the Court means to refer to the burden of
persuasion, these statements are simply incorrect and contradict the Court's
own acknowledgment. And if, as appears more likely, "quantum" refers to
some required quantity or amount of proof, the Court is also wrong. The
partial repeal of Article 38.07's corroboration requirement did not change the
quantity of proof necessary to convict in every case, for the simple reason
that Texas has never required the prosecution to introduce any particular
5 By the same reasoning, the repeal of the corroboration requirement for
victims between the ages of 14 and 18 plainly did not deprive sexual assault
defendants of any defense they previously enjoyed.
561
number of witnesses or items of proof to support a sexual assault conviction.6
The Court also declares several times that the amended version of Article
38.07 "subverts the presumption of innocence." See ante, at 532; see also
ante, at 533, nn. 22, 23, 546. The phrase comes from Cummings v. Missouri,
4 Wall. 277 (1867), in which the Court struck down a series of post-Civil War
amendments to the Missouri Constitution that imposed penalties on persons
unable or unwilling to swear an oath that they had not aided the Confederacy.
The amendments, the Court said in Cummings, "subvert the presumptions of
innocence" because "[t]hey assume that the parties are guilty [and] ... call
upon [them] to establish their innocence" by swearing the oath. Id., at 328.
Nothing of the kind is involved here. Article 38.07 did not impose a
presumption of guilt on Carmell and then saddle him with the task of
overcoming it. The burden of persuasion remained at all times with the State.
See Tex. Code Crim. Proc. Ann., Art. 38.03 (Vernon Supp. 2000). Carmell's
presumption of innocence is thus untouched by the current Article 38.07's
recognition of K. M.'s full testimonial stature.
The Court places perhaps its greatest weight on the "sufficiency of the
evidence" label, see ante, at 547-552, but the label will not stick. As just
noted, Article 38.07 has never dictated what it takes in all cases,
quantitatively or qualitatively, for evidence to be sufficient to convict. To the
contrary, under both the old and new versions of the statute the
6 Moreover, even in a case founded on the victim's testimony, the pre1993
version of Article 38.07 would permit the prosecution to corroborate that
testimony without introducing any additional evidence going to the
defendant's guilt, because corroboration could be provided by outcry, which
is hearsay and inadmissible to prove the truth of the matter asserted. See
Heckathorne v. State, 697 S. W. 2d 8, 12 (Tex. App. 1985) ("[A]n outcry
should not be admitted for its truth, but merely as evidence that the victim
informed someone of the offense.").
123
562
prosecution's admissible evidence will be sufficient to support a conviction if
a rational factfinder presented with that evidence could find the defendant
guilty beyond a reasonable doubt. The 1993 repeal of the corroboration
requirement for victims between the ages of 14 and 18 did not lower that
"sufficiency of the evidence" hurdle; it simply expanded the range of methods
the State could use to surmount it.
To be sure, one might descriptively say in an individual case that the
uncorroborated testimony of the victim would be "sufficient" to convict under
the new version of Article 38.07 and "insufficient" under the old. But that
cannot be enough to invalidate a statute as ex post facto. If it were, then all
evidentiary rules that work to the defendant's detriment would be
unconstitutional as applied to offenses committed before their enactment-an
outcome our cases decisively reject. See infra, at 570-571 (discussing
Thompson v. Missouri, 171 U. S. 380 (1898), and Hopt v. Territory of Utah,
110 U. S. 574 (1884), which upheld the retroactive application of evidentiary
rules governing the authentication of documents and the competency of
felons to testify, respectively). A defendant whose conviction turned, for
example, on an item of hearsay evidence considered inadmissible at the time
of the offense but made admissible by a later enacted statute might accurately
describe the new statute as one that permits conviction on less evidence than
was "sufficient" under prior law. But our precedents establish that such a
defendant has no valid ex post facto claim. See infra, at 570-571. N either
does Carmell.
The Court attempts to distinguish Article 38.07 from garden-variety
evidentiary rules by asserting that the latter "are ordinarily evenhanded, in the
sense that they may benefit either the State or the defendant in any given
case." Ante, at 533, n. 23. The truth of this assertion is not at all clear.
Evidence is never admissible in its own right; it must be admitted for some
purpose. Rules of admissibility typically take that basic fact into account,
often restricting the
563
use of evidence in a way that systematically disadvantages one side.
Consider, for example, a rule providing that evidence of a rape victim's sexual
relations with persons other than the accused is admissible to prove consent,
or a rule providing that evidence of a sexual assault defendant's prior sexual
offenses is inadmissible to show a propensity to commit that type of crime.
A statute repealing either of the above rules would "always run in the
prosecution's favor ... [by] mak[ing] it easier to convict the accused." Ante,
at 546.7 Yet no one (until today) has suggested that such a statute would be
ex post facto as applied to offenses committed before its enactment.
The Court resists the conclusion that Article 38.07 functions as a rule of
witness competency by asserting that "[b]oth before and after the amendment,
the victim's testimony was competent evidence." Ante, at 544. In all but the
most technical sense that blanket statement is dubious. If the victim was 14
years old or older at the time of the offense (18 or older under the amended
statute) and her testimony is unbolstered by corroboration or outcry, the jury
may not credit that testimony in determining whether the State has met its
burden of proof. Such a victim is of course not literally forbidden from
testifying, but that cannot make the difference for Ex Post Facto Clause
purposes between a sufficiency of the evidence rule and a witness
competency rule. Evidence to which the jury is not permitted to assign weight
is, in reality, incompetent evidence.
7 Cf. Fed. Rules Evid. 412(a)(1) (restricting admissibility of "[e]vidence
offered to prove that any alleged victim [of sexual misconduct] engaged in
other sexual behavior"); 412(b)(1)(B) (providing that "evidence of specific
instances of sexual behavior by the alleged victim with respect to the person
accused" is admissible to prove consent); 413(a) (providing that "evidence of
the defendant's commission of another offense or offenses of sexual assault
is admissible" in sexual assault cases notwithstanding Rule 404(b)'s general
prohibition on the introduction of prior bad acts evidence "to show action in
conformity therewith").
564
Perhaps the Court has been misdirected by the wording of Article 38.07,
which speaks in both its old and new versions of evidence upon which a
"conviction ... is supportable." See ante, at 547. That sounds like a
"sufficiency of the evidence rule," until one realizes that any evidence
admissible in a criminal case-i. e., any evidence that a jury is entitled to
consider in determining whether the prosecution has met its burden of
persuasion-is at least potentially evidence upon which a "conviction ... is
124
supportable." Conversely, as I have just said, evidence to which the jury may
give no weight in making that determination is effectively inadmissible.8
In short, no matter how it is phrased, the corroboration requirement of Article
38.07 is functionally identical to a conditional rule of witness competency. If
the former version of Article 38.07 had provided instead that "the testimony
of the victim shall be inadmissible to prove the defendant's guilt unless
corroborated," it would produce the
8 It is thus no wonder that before 1986 the general rule of witness competency
was codified at Article 38.06 of the Texas Code of Criminal Procedure, and
the statute now at issue immediately followed it. Article 38.07 was an
exception to the general rule laid out in Article 38.06. It is logical to put an
exception right after the rule. Yet the Court draws the opposite inference from
that juxtaposition. See ante, at 545, n. 32.
The Court's related observation that Texas' general witness competency
statute "already contains its own provision respecting child witnesses," ante,
at 544-545, is true but irrelevant. Article 38.07's corroboration requirement
has nothing to do with the diminished credibility of child witnesses. Indeed,
the statute has always permitted juries to credit fully the testimony of sexual
offense victims below a certain age (first 14, then 18) without any
corroboration, the reason apparently being that the legislature considers
victims under a certain age to be too young to consent to sex and then lie
about it. See, e. g., Scoggan v. State, 799 S. W. 2d 679, 681 (Tex. Crim. App.
1990); Hernandez v. State, 651 S. W. 2d 746,752-753 (Tex. Crim. App. 1983)
(concurring opinion adopted on rehearing). The corroboration requirement
attaches only to victims above a certain age, and thus would not be
appropriate for inclusion in a "provision respecting child witnesses."
565
same results as the actual statute in every case. Not "in certain instances,"
ante, at 551, or "in some situations," ante, at 550, but in every case.9
Recognizing this equivalency, the Texas Court of Criminal Appeals has noted
that the Texas accomplice corroboration rule is "a mere rule of evidence"
even though "statutorily worded as a sufficiency standard." Malik v. State,
953 S. W. 2d 234, 240, n. 6 (1997).10
In sum, the function and purpose of the corroboration requirement embedded
in the former version of Article 38.07 was to ensure the credibility of the
victim's testimony, not otherwise to impede the defendant's conviction. Our
precedents, I explain next, make clear that the retroactive repeal
9 The Court contends that the effect of Article 38.07 is distinct from that of a
witness competency rule because noncompliance with the former dictates
acquittal ex proprio vigore while noncompliance with the latter dictates
acquittal "in combination with the normally operative sufficiency rule." Ante,
at 552, n. 35. This is a distinction without a difference, because the "normally
operative sufficiency rule" in question-when the prosecution submits no
admissible evidence, its case will be deemed insufficient-is a bedrock
requirement of due process, applicable in every criminal trial.
10 The Court observes that the characterization of a state law under the Ex
Post Facto Clause is a federal question. Ante, at 544, n. 31. This undoubtedly
correct observation stands in some tension, however, with the Court's reliance
on the assertion that "Texas courts treat Article 38.07 as a sufficiency of the
evidence rule." Ante, at 518, n. 2. In any event, the latter assertion is
inaccurate, as Malik's discussion of the accomplice corroboration rule
suggests. It is true that a trial court's failure to comply with Article 38.07
results on appeal in the entry of an order of acquittal. But it is not true that
the remedy on appeal for the introduction of inadmissible evidence is always
a remand for a new trial. When the only evidence introduced by the
prosecution is evidence that may not be considered by a jury in determining
the defendant's guilt, the proper result is always acquittal. By the same
reasoning, as this Court decided just this Term, when a court of appeals has
found that evidence was improperly admitted in a civil trial and that the
remaining evidence is insufficient, it may enter judgment as a matter of law
rather than ordering a new trial. Weisgram v. Marley Co., 528 U. S. 440
(2000).
566
of such an evidentiary rule does not violate the Ex Post Facto Clause.
II
The Ex Post Facto Clause, this Court has said repeatedly, furthers two
important purposes. First, it serves "to assure that legislative Acts give fair
125
warning of their effect and permit individuals to rely on their meaning until
explicitly changed." Weaver v. Graham, 450 U. S. 24, 28-29 (1981).11
Second, it "restricts governmental power by restraining arbitrary and
potentially vindictive legislation." Id., at 29; see also Landgraf v. USI Film
Products, 511 U. S. 244, 267 (1994); Miller v. Florida, 482 U. S. 423, 429-
430 (1987). The latter purpose has much to do with the separation of powers;
like its textual and conceptual neighbor the Bill of Attainder Clause, the Ex
Post Facto Clause aims to ensure that legislatures do not meddle with the
judiciary's task of adjudicating guilt and innocence in individual cases.
Weaver, 450 U. S., at 29, n. 10.
The Court does not even attempt to justify its extension of the Clause in terms
of these two fundamental purposes. That is understandable, for to day's
decision serves neither purpose. The first purpose (fair warning and reliance),
vital as it is, cannot tenably be relied upon by Carmell. He had ample notice
that the conduct in which he engaged was illegal. He certainly cannot claim
to have relied in any way on the preamendment version of Article 38.07: He
tendered
11 Today's opinion apart, see ante, at 531, n. 21, this Court has consistently
stressed "'lack of fair notice'" as one of the "central concerns of the Ex Post
Facto Clause." Lynce v. Mathis, 519 U. S. 433, 441 (1997) (quoting Weaver
v. Graham, 450 U. S. 24, 30 (1981)). See also Landgraf v. USI Film Products,
511 U. S. 244, 266-267 (1994); Miller v. Florida, 482 U. S. 423, 430 (1987);
Weaver, 450 U. S., at 28-29; Marks v. United States, 430 U. S. 188, 191-192
(1977). The implausibility of ex ante reliance on rules of admissibility like
the one at issue here helps explain why the Ex Post Facto Clause has never
been held to apply to changes in such rules.
567
no reason to anticipate that K. M. would not report the assault within the
outcry period, nor any cause to expect that corroborating evidence would not
turn up sooner or later. Nor is the Clause's second purpose relevant here, for
there is no indication that the Texas Legislature intended to single out this
defendant or any class of defendants for vindictive or arbitrary treatment.
Instead, the amendment of Article 38.07 simply brought the rules governing
certain victim testimony in sexual offense prosecutions into conformity with
Texas law governing witness testimony generally.
In holding the new Article 38.07 unconstitutional as applied to Carmell, the
Court relies heavily on the fourth category of ex post facto statutes
enumerated by Justice Chase in his opinion in Calder v. Bull, 3 Dall. 386, 390
(1798):
"Every law that alters the legal rules of evidence, and receives less, or
different, testimony, than the law required at the time of the commission of
the offence, in order to convict the offender." Justice Chase's formulation was
dictum, of course, because Calder involved a civil statute and the Court held
that the statute was not ex post facto for that reason alone. Moreover, Justices
Paterson and Iredell in their own seriatim opinions gave no hint that they
considered rules of evidence to fall within the scope of the Clause. See id., at
395-397 (Paterson, J.); id., at 398-400 (Iredell, J.). Still, this Court has come
to view Justice Chase's categorical enumeration as an authoritative gloss on
the Ex Post Facto Clause's reach. Just a decade ago in Collins v. Youngblood,
497 U. S. 37 (1990), for instance, this Court reiterated that "the prohibition
which may not be evaded is the one defined by the Calder categories." Id., at
46.
If those words are placed in the context of the full text of the Collins opinion,
however, a strong case can be made that Collins pared the number of Calder
categories down to three, eliminating altogether the fourth category on which
the Court today so heavily relies. As long ago as 1925, in Beazell v. Ohio,
269 U. S. 167, the Court cataloged ex post
568
facto laws without mentioning Chase's fourth category at all. Id., at 169-170.
And in Collins the Court cited with apparent approval Beazell's omission of
the fourth category, 497 U. S., at 43, n. 3, declaring that "[t]he Beazell
formulation is faithful to our best knowledge of the original understanding of
the Ex Post Facto Clause: Legislatures may not retroactively alter the
definition of crimes or increase the punishment for criminal acts." Id., at 43.
Collins concluded by reciting in the plainest terms the prohibitions laid down
by the Ex Post Facto Clause: A statute may not "punish as a crime an act
previously committed, which was innocent when done; nor make more
burdensome the punishment for a crime, after its commission; nor deprive
one charged with crime of any defense available according to law at the time
when the act was committed." Id., at 52. This recitation conforms to Calder's
126
first three categories, but not the fourth; changes in evidentiary rules are
nowhere mentioned.12
The majority asserts that the Court has repeatedly endorsed Justice Chase's
formulation, "including, in particular, the fourth category," and it offers an
impressive-looking string citation in support of the claim. Ante, at 525. Yet
all of those cases simply quoted or paraphrased Chase's enumeration, a
mechanical task that naturally entailed a recitation of the fourth category. Not
one of them depended on that category for the judgment the Court reached.13
Nei-
12 In California Dept. of Corrections v. Morales, 514 U. S. 499, 504-505
(1995), the Court similarly enumerated the categories of ex post facto laws
without mentioning the fourth category.
13 The Court in Cummings v. Missouri, 4 Wall. 277 (1867), invoked the
fourth category, see id., at 328, but that invocation was hardly necessary to
the Court's holding. In Cummings, as already noted, the Court invalidated on
Bill of Attainder Clause and Ex Post Facto Clause grounds state constitutional
amendments that imposed punishment on persons unable to swear an oath
that they had not taken up arms against the Union in the Civil War. The Court
recognized that the challenged amendments, though framed in terms of a
method of proof, were "aimed at past acts,
569
ther did Justice Washington's opinion in Ogden v. Saunders, 12 Wheat. 213
(1827), which is quoted extensively by the Court, ante, at 532. In fact, the
Court has never until today relied on the fourth Calder category to invalidate
the application of a statute under the Ex Post Facto Clause.
It is true that the Court has on two occasions struck down as ex post facto the
retroactive application of rules governing the functioning of the criminal trial
process-but both decisions have since been overruled. In Kring v. Missouri,
107 U. S. 221 (1883), the Court held that Missouri was forbidden to apply
retroactively a state constitutional amendment providing that a plea of guilty
to second-degree murder would not automatically serve on retrial as an
acquittal of the charge of first-degree murder. And in Thompson v. Utah, 170
U. S. 343 (1898), the Court held that a change in state law reducing the
number of petit jurors in criminal trials from 12 to 8 was ex post facto because
it deprived the defendant of "a substantial right involved in his liberty." Id.,
at 352. The Court in Collins overruled both Kring and Thompson v. Utah,
concluding that neither decision was "consistent with the understanding of
the term 'ex post facto law' at the time the Constitution was adopted." Collins,
497 U. S., at 47, 50, 51-52.
The Court today offers a different reading of Collins. It concludes that Collins
overruled Kring and Thompson v. Utah because those cases improperly
construed the Ex Post Facto Clause to cover all "substantial protections," and
that the fourth Calder category consequently remains intact.
and not future acts," id., at 327, for only those who had aided the Confederacy
would be unable to take the expurgatory oath. The Court held that the
amendments violated Calder's first category by retroactively creating new
offenses, 4 Wall., at 327-328, and violated the third category by retroactively
imposing new punishments, id., at 328. As for Calder's fourth category, the
Court said only that the amendments "subvert[ed] the presumptions of
innocence" by "assum[ing] that the parties [we]re guilty." 4 Wall., at 328. As
already discussed, supra, at 561, that analysis is of no help to Carmell here.
570
That is a plausible reading of Collins, and I might well be prepared to accept
it, were the issue presented here. But it is not. For purposes of this case, it
does not matter whether Collins eliminated the fourth Calder category or left
it undisturbed. For even if the fourth category remains viable, our precedents
make clear that it cannot be stretched to fit the statutory change at issue here.
Those precedentsdecisions that fully acknowledged the fourth Calder
category-firmly establish that retroactively applied changes in rules
concerning the admissibility of evidence and the competency of witnesses do
not raise Ex Post Facto Clause concerns.
In Thompson v. Missouri, 171 U. S. 380 (1898), this Court upheld against ex
post facto attack the retroactive application of a statute that permitted the
introduction of previously inadmissible evidence to demonstrate the
authenticity of disputed writings. The new statute, the Court reasoned, "did
nothing more than remove an obstacle arising out of a rule of evidence that
withdrew from the consideration of the jury testimony which, in the opinion
of the legislature, tended to elucidate the ultimate, essential fact to be
established, namely, the guilt of the accused." Id., at 387.
127

The case most similar to the one before us is Hopt v. Territory of Utah, 110
U. S. 574 (1884). In that case, a statute in effect at the time of the offense but
repealed by the time of trial provided that felons were incompetent to testify.
The defendant, whose conviction for capital murder had been based in large
part on the testimony of a felon, claimed that the application of the new law
to his trial was ex post facto. The Court rejected the defendant's claim,
adopting reasoning applicable to the instant case:
"Statutes which simply enlarge the class of persons who may be competent
to testify in criminal cases are not ex post facto in their application to
prosecutions for crimes committed prior to their passage; for they do
571
not attach criminality to any act previously done, and which was innocent
when done; nor aggravate any crime theretofore committed; nor provide a
greater punishment therefor than was prescribed at the time of its
commission; nor do they alter the degree, or lessen the amount or measure,
of the proof which was made necessary to conviction when the crime was
committed." Id., at 589.
As the quoted passage shows, the Court in Hopt rejected the defendant's Ex
Post Facto Clause claim while retaining Calder's fourth category. The same
outcome should obtain today, for Hopt cannot meaningfully be distinguished
from the instant case.
The Court asserts that "Article 38.07 plainly fits" the fourth Calder category,
because "[r]equiring only the victim's testimony to convict, rather than the
victim's testimony plus other corroborating evidence is surely 'less testimony
required to convict' in any straightforward sense of those words." Ante, at
530. Yet to declare Article 38.07 ex post facto on that basis is to overrule
Hopt without saying so. For if the amended version of Article 38.07 requires
"less testimony ... to convict," then so do countless evidentiary rules,
including the felon competency rule whose retroactive application we upheld
in Hopt. In both this case and Hopt, a conviction based on evidence
previously deemed inadmissible was sustained pursuant to a broadened rule
regarding the competency of testimonial evidence. The mere fact that the new
version of Article 38.07 makes some convictions easier to obtain cannot be
enough to preclude its retroactive application. "Even though it may work to
the disadvantage of a defendant, a procedural change is not ex post facto."
Dobbert v. Florida, 432 U. S. 282, 293 (1977).
In short, the Court's expansive new reading of the Ex Post Facto Clause
cannot be squared with this Court's prior decisions. Rather than embrace such
an unprecedented approach, I would advance a "commonsense understanding
of
572
Calder's fourth category," ante, at 530, one that comports with our precedents
and with the underlying purposes of the Ex Post Facto Clause: Laws that
reduce the burden of persuasion the prosecution must satisfy to win a
conviction may not be applied to offenses committed before their enactment.
To be sure, this reading would leave the fourth category with considerably
less independent effect than it would have had in Justice Chase's day, given
our intervening decisions establishing the "beyond a reasonable doubt"
standard as a constitutional minimum under the Due Process Clause. See, e.
g., In re Winship, 397 U. S. 358 (1970); Jackson v. Virginia, 443 U. S. 307
(1979). But it is not a reading that necessarily renders the category
meaningless even today. Imagine, for example, a statute requiring the
prosecution to prove a particular sentencing enhancement factor-leadership
role in the offense, say, or obstruction of justice-beyond a reasonable doubt.
A new statute providing that the factor could be established by a mere
preponderance of the evidence might rank as ex post facto if applied to
offenses committed before its enactment. The same might be said of a statute
retroactively increasing the defendant's burden of persuasion as to an
affirmative defense.
Burdens of persuasion are qualitative tests of sufficiency.
Calder's fourth category, however, encompasses quantitative sufficiency
rules as well, for Justice Chase did speak of a law that "receives less ...
testimony, than the law required at the time of the commission of the
offence." 3 Dall., at 390 (emphasis added). Cf. Hopt, 110 U. S., at 590 ("Any
statutory alteration of the legal rules of evidence which would authorize
conviction upon less proof, in amount or degree, than was required when the
offence was committed" might be ex post facto. (emphasis added)).
Quantitative sufficiency rules are rare in modern Anglo-American law, but
some do exist. Criminal statutes sometimes limit the prosecution to a
128
particular form of proof, for example, the testimony of two witnesses to the
same overt act. In modern Anglo-
573
American law, such instances have been almost exclusively confined to two
contexts: perjury, see Weiler v. United States, 323 U. S. 606 (1945), and
treason, see U. S. Const., Art. III, § 3, cl. 1 ("No Person shall be convicted of
Treason unless on the Testimony of two Witnesses to the same overt Act, or
on Confession in open Court."). See generally Wigmore, Required Numbers
of Witnesses; A Brief History of the Numerical System in England, 15 Harv.
L. Rev. 83,100108 (1901).
The treason statute in effect at the time of John Fenwick's conspiracy, like the
Treason Clause of our Constitution, embodied just such a quantitative
sufficiency rule: As long as the accused traitor put the prosecution to its proof
by pleading not guilty, the sworn testimony of two witnesses was necessary
to support a conviction. The Court describes at great length the attainder of
Fenwick, which served as a cautionary model for Justice Chase's explication
of the fourth category in Calder. See ante, at 526-530.14 This excursion into
post-Restoration English history is diverting, but the Court's statement that
"the circumstances of petitioner's case parallel those of Fenwick's case 300
years earlier," ante, at 530, simply will not wash. The preamendment version
of Article 38.07 is nothing like the two-witness rule on which Fenwick vainly
relied.15
First, the preamendment version of Article 38.07, unlike a two-witness rule,
did not apply indifferently to all who testify. Rather, it branded a particular
class of witnesses-
14 Tellingly, the Court offers no evidence that anyone at the time of the
Framers considered witness corroboration requirements of the type involved
here to fall within the scope of the ex post facto prohibition.
15When the Texas Legislature wants to enact a two-witness rule, it knows
how to do so. See Tex. Code Crim. Proc. Ann., Art. 38.15 (Vernon Supp.
2000) ("No person can be convicted of treason except upon the testimony of
at least two witnesses to the same overt act, or upon his own confession in
open court."); Art. 38.18(a) ("No person may be convicted of perjury or
aggravated perjury if proof that his statement is false rests solely upon the
testimony of one witness other than the defendant.").
574
sexual assault victims aged 14 or older-as less competent than others to speak
in court. Second, as I have already described, the Texas statute did not restrict
the State to one prescribed form of proof. Both before and after the 1993
amendment, introduction of the victim's corroborated testimony was neither
required nor necessarily sufficient to sustain a conviction. Prosecutors'
compliance with both the old and new versions of Article 38.07 thus "says
absolutely nothing about whether they have introduced a quantum of
evidence sufficient to convict the offender." Ante, at 547, 551-552.16 On the
contrary, the only sufficiency rule applicable in Texas sexual offense
prosecutions has always been a qualitative one: The State's evidence must be
sufficient to prove every element of the offense beyond a reasonable doubt.
That should not be surprising. It makes little sense in our modern legal system
to conceive of standards of proof in quantitative terms. In a civil case, the
winner is the party that produces better evidence, not the party that produces
more evidence. Similarly, in a criminal trial the prosecution need not
introduce any fixed amount of evidence, so long as the evidence it does
introduce could persuade a rational factfinder beyond a reasonable doubt.
"Our system of justice rests on the general assumption that the truth is not to
be determined merely by the number of witnesses on each side of a
controversy. In gauging the truth of conflicting evidence, a jury has no simple
formulation of weights and measures on which to rely. The touchstone is
always credibility; the ultimate measure of testimonial worth is quality and
not
16 Noncompliance with the former version of Article 38.07 does say
something: The statute mandates acquittal if the prosecution comes forward
with no evidence beyond the victim's testimony, which is deemed unreliable
standing alone. But as the Court itself recognizes, "a witness competency rule
that ... has the practical effect of telling us what evidence would result in
acquittal does not really speak to Calder's fourth category." Ante, at 551.
575
129
quantity." Weiler, 323 U. S., at 608. If the Court wishes to rely on the fourth
Calder category to render Texas' altered evidentiary rule prospective only, it
should do so forthrightly by overruling Hopt and Thompson v. Missouri,
rather than by attempting to portray Article 38.07 as a quantitative sufficiency
rule indistinguishable from the two-witness requirement that figured in John
Fenwick's case.

***

In sum, it is well settled (or was until today) that retroactive changes to rules
concerning the admissibility of evidence and the competency of witnesses to
testify cannot be ex post facto. Because Article 38.07 is in both function and
purpose a rule of admissibility, Thompson v. Missouri, Hopt, Beazell, and
Collins dictate that its retroactive application does not violate the Ex Post
Facto Clause. That conclusion comports perfectly with the dual purposes that
underlie the Clause: ensuring fair notice so that individuals can rely on the
laws in force at the time they engage in conduct, and sustaining the separation
of powers while preventing the passage of vindictive legislation. The Court
today thus not only brings about an "undefined enlargement of the Ex Post
Facto Clause," Collins, 497 U. S., at 46, that conflicts with established
precedent, it also fails to advance the Clause's fundamental purposes. For
these reasons, I dissent.

130
G.R. No. L-19328 December 22, 1989
ALEJANDRO KATIGBAK and MERCEDES K. KATIGBAK, plaintiffs-
appellants,
vs.
THE SOLICITOR GENERAL, EPIFANIO VILLEGAS, ARTURO
XAVIER, PONCIANO FERNANDO, ROSENDO DOMINGO and
LEONARDO LUCENA, defendants-appellees.
G.R. No. L-19329 December 22, 1989
REPUBLIC OF THE PHILIPPINES, plaintiff-appellee,
vs.
ALEJANDRO KATIGBAK and MERCEDES K. KATIGBAK defendants-
appellants.
Augusto Kalaw for plaintiffs-appellants.
NARVASA, J.:
These cases were certified to this Court by the Court of Appeals for resolution
on appeal, 1 since the central issue involved is the constitutionality of
Republic Act No. 1379, "An Act Declaring Forfeiture in Favor of the State
of Any Property Found To Have Been Unlawfully Acquired by Any Public
Officer or Employee and Providing for the Proceedings Therefor. 2 As posed
by the referral resolution, 3 the question is whether or not said statute.
...en cuanto autoriza la confiscacion en favor del Estado de las propiedades
ilegalmente adquiridas por un funcionario o empleado del Gobierno antes de
la aprobacion de la ley ... es nula y anti-constitutional porque:
(a) es una Ley ex-post facto que autoriza la confiscacion de una
propiedad privada adquirida antes de la aprobacion de la ley y obliga el
funcionario o empleado publico a explicar como adquirio sus propiedades
privadas, compeliendo de esta forma a incriminarse a si mismo, y en cierto
modo autoriza la confiscacion de dicha propiedad sin debido proceso de la
ley; y
(b) porque autoriza la confiscacion de inmuebles previamente
hipotecados de buena fe a una persona.
The proceedings at bar originated from two (2) actions filed with the Court
of First Instance of Manila.
The first was Civil Case No. 30823, instituted by the Spouses Alejandro
Katigbak and Mercedes Katigbak. In their complaint they prayed that: (1) the
Solicitor General be enjoined from filing a complaint against them for
forfeiture of property under the above mentioned R.A. No. 1379; (2) said
statute be declared unconstitutional in so far as it authorizes forfeiture of
properties acquired before its approval, or, alternatively, a new preliminary
investigation of the complaint filed against Alejandro Katigbak by NBI
officers be ordered; (3) properties acquired by Alejandro Katigbak when he
was out of the government service be excluded from forfeiture proceedings;
and (4) the NBI officers and the Investigating Prosecutor (Leonardo Lucena)
be sentenced to pay damages.
The second action was Civil Case No. 31080, commenced by petition 4 filed
by the Republic of the Philippines against Alejandro Katigbak, his wife,
Mercedes, and his son, Benedicto, seeking the forfeiture in favor of the State
of the properties of Alejandro Katigbak allegedly gotten by him illegally, in
accordance with R.A. No. 1379. Said properties were allegedly acquired
while Katigbak was holding various positions in the government, the last
being that of an examiner of the Bureau of Customs; and title to some of the
properties were supposedly recorded in the names of his wife and/or son.
The cases were jointly tried. The judgment thereafter rendered 5 (1)
dismissed the complaint and the counterclaim in Civil Case No. 30823, the
first action; and (2) as regards Civil Case No. 31080, ordered "that from the
properties (of Katigbak) enumerated in this decision as acquired in 1953,1954
and 1955, shall be enforced a lien in favor of the Government in the sum of
P100,000.00. 6 The judgment also declared that the "impatience of the
Investigating Prosecutor" during the preliminary inquiry into the charges
filed against Katigbak for violation of R.A. No. 1379 did not amount to such
arbitrariness as would justify annulment of the proceedings since, after all,
Katigbak was able to fully ventilate his side of the case in the trial court; 7
that R.A. No. 1379 is not penal in nature, its objective not being the
enforcement of a penal liability but the recovery of property held under an
implied trust; 8 that with respect to things acquired through delicts,
131
prescription does not run in favor of the offender; 9 that Alejandro Katigbak
may not be deemed to have been compelled to testify against his will since
he took the witness stand voluntarily. 10 The Katigbaks moved for
reconsideration and/or new trial. The Trial Court refused to grant a new trial
but modified its decision by reducing the amount of "P 100,000.00 in the
dispositive portion ... to P80,000.00." 11
Appeal was taken from this verdict of the Court of Appeals by the Katigbaks
which appeal, as earlier stated, was certified to this Court.
No less than 18 errors have been attributed by the Katigbaks to the Court a
quo. 12 They concern mainly the character of R.A. No. 1379 as an ex-post
facto law, principally because it imposes the penalty of forfeiture on a public
officer or employee acquiring properties allegedly in violation of said R.A.
No. 1379 at a time when that law had not yet been enacted. 13
Whatever persuasiveness might have been carried by the ruling on the issue
of the learned Trial Judge in 1961, the fact is that the nature of R.A. No. 1379
as penal was in 1962 clearly and categorically pronounced by this Court in
Cabal v. Kapunan, Jr. 14 Citing voluminous authorities, the Court in that case
declared that "forfeiture to the State of property of a public officer or
employee which is manifestly out of proportion to his salary as such ... and
his other lawful income and the income from legitimately acquired property
... has been held ... to partake of the nature of a penalty"; and that "proceedings
for forfeiture of property although technically civil in form are deemed
criminal or penal, and, hence, the exemption of defendants in criminal cases
from the obligation to be witnesses against, themselves is applicable thereto.
15 The doctrine was reaffirmed and reiterated in 1971 in republic v.
Agoncillo. 16 And germane is the 1977 ruling of the Court in de la Cruz v.
Better Living, Inc. 17 involving among others the issue of the validity and
enforceability of a written agreement alleged to be in violation of Republic
Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices-Act
to the effect that "the provisions of said law cannot be given retro active
effect."
The forfeiture of property provided for in Republic Act No. 1379 being in the
nature of a penalty; and it being axiomatic that a law is ex-post facto which
inter alia "makes criminal an act done before the passage of the law and which
was innocent when done, and punishes such an act," or, "assuming to regulate
civil rights and remedies only, in effect imposes a penalty or deprivation of a
right for something which when done was lawful," it follows that penalty of
forfeiture prescribed by R.A. No. 1379 cannot be applied to acquisitions
made prior to its passage without running afoul of the Constitutional
provision condemning ex post facto laws or bills of attainder. 18 But this is
precisely what has been done in the case of the Katigbaks. The Trial Court
declared certain of their acquisitions in 1953, 1954 and 1955 to be illegal
under R.A. No. 1379 although made prior to the enactment of the law, and
imposed a lien thereon "in favor of the Government in the sum of
P100,000.00." Such a disposition is, quite obviously, constitutionally
impermissible.
As to the issue of whether or not the Prosecuting Fiscal, Leonardo Lucena,
should be made answerable for damages because the filing of the forfeiture
proceedings, Civil Case No. 31080, resulted from a preliminary investigation
which was allegedly conducted by Fiscal Lucena in an arbitrary and
highhanded manner, suffice it to state that the trial court found no proof of
any intention to persecute or other ill motive underlying the institution of
Civil Case No. 31080. The trial court further found that during the
preliminary investigation by Fiscal Lucena on September 13, 19, 24, 25 and
26, 1956, Alejandro Katigbak was assisted by reputable and competent
counsel, Atty. Estanislao A. Fernandez and Atty. Antonio Carag. The mere
fact that the preliminary investigation was terminated against the objection of
Katigbak's counsel, does not necessarily signify that he was denied the right
to such an investigation. What is more, the Trial Court's factual conclusion
that no malice or bad faith attended the acts of public respondents complained
of, and consequently no award of damages is proper, cannot under established
rule be reviewed by this Court absent any showing of the existence of some
recognized exception thereto.
The foregoing pronouncements make unnecessary the determination of the
other issues.
WHEREFORE, the judgment of the Court a quo, in so far as it pronounces
the acquisitions of property by the appellants illegal in accordance with
Republic Act No. 1379 and imposes a lien thereon in favor of the Government
in the sum of P80,000.00 is hereby REVERSED AND SET ASIDE, but is
AFFIRMED in all other respects. No pronouncement as to costs.
132
ORLANDO L. SALVADOR, for and in behalf of the Presidential Ad Hoc CHICO-NAZARIO,
Fact-Finding Committee on Behest Loans,
NACHURA, and
Petitioner,
REYES, JJ.

- versus -
Promulgated:

PLACIDO L. MAPA, JR., RAFAEL A. SISON, ROLANDO M. ZOSA,

CESAR C. ZALAMEA, BENJAMIN BAROT, CASIMIRO TANEDO, J.V. November 28, 2007
DE OCAMPO, ALICIA L. REYES, BIENVENIDO R. TANTOCO, JR.,
BIENVENIDO R. TANTOCO, SR., FRANCIS B. BANES, ERNESTO M. x------------------------------------------------------------------------------------x
CARINGAL, ROMEO V. JACINTO, and MANUEL D. TANGLAO,

Respondents.

G.R. No. 135080

DECISION

NACHURA, J.:

Present:

YNARES-SANTIAGO,
The Presidential Ad Hoc Fact-Finding Committee on Behest Loans, (the
Acting C.J., Chairperson, Committee), through Atty. Orlando L. Salvador (Atty. Salvador), filed this
Petition for Review on Certiorari seeking to nullify the October 9, 1997
AUSTRIA-MARTINEZ, Resolution[1] of the Office of the Ombudsman in OMB-0-96-2428,
dismissing the criminal complaint against respondents on ground of

133
prescription, and the July 27, 1998 Order[2] denying petitioners motion for
reconsideration.

The Solicitor General - Vice-Chairman

On October 8, 1992 then President Fidel V. Ramos issued Administrative
Order No. 13 creating the Presidential Ad Hoc Fact-Finding Committee on
Behest Loans, which reads:
Representative from the

Office of the Executive Secretary - Member

WHEREAS, Sec. 28, Article II of the 1987 Constitution provides that Subject
to reasonable conditions prescribed by law, the State adopts and implements
a policy of full public disclosure of all its transactions involving public
interest; Representative from the

Department of Finance - Member

WHEREAS, Sec. 15, Article XI of the 1987 Constitution provides that The
right of the state to recover properties unlawfully acquired by public officials
or employees, from them or from their nominees or transferees, shall not be Representative from the
barred by prescription, laches or estoppel;
Department of Justice - Member

WHEREAS, there have been allegations of loans, guarantees, and other forms
of financial accommodations granted, directly or indirectly, by government- Representative from the
owned and controlled bank or financial institutions, at the behest, command,
or urging by previous government officials to the disadvantage and detriment Development Bank of the Philippines - Member
of the Philippines government and the Filipino people;

ACCORDINGLY, an Ad-Hoc FACT FINDING COMMITTEE ON

BEHEST LOANS is hereby created to be composed of the following: Representative from the

Philippine National Bank - Member

Chairman of the Presidential

Commission on Good Government - Chairman Representative from the

134
 The Committee is hereby empowered to call upon any department, bureau,
Asset Privatization Trust - Member office, agency, instrumentality or corporation of the government, or any
officer or employee thereof, for such assistance as it may need in the
discharge of its functions.[3]

Government Corporate Counsel - Member

Representative from the By Memorandum Order No. 61 dated November 9, 1992, the functions of the
Committee were subsequently expanded, viz.:
Philippine Export and Foreign

Loan Guarantee Corporation - Member

WHEREAS, among the underlying purposes for the creation of the Ad Hoc
Fact-Finding Committee on Behest Loans is to facilitate the collection and
recovery of defaulted loans owing government-owned and controlled
The Ad Hoc Committee shall perform the following functions: banking and/or financing institutions;

1. Inventory all behest loans; identify the lenders and borrowers, including WHEREAS, this end may be better served by broadening the scope of the
the principal officers and stockholders of the borrowing firms, as well as the fact-finding mission of the Committee to include all non-performing loans
persons responsible for granting the loans or who influenced the grant which shall embrace behest and non-behest loans;
thereof;

NOW THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the

2. Identify the borrowers who were granted friendly waivers, as well as Philippines, by virtue of the power vested in me by law, do hereby order:
the government officials who granted these waivers; determine the validity
of these waivers;

Sec. 1. The Ad Hoc Fact-Finding Committee on Behest Loans shall include

in its investigation, inventory, and study, all non-performing loans which
3. Determine the courses of action that the government should take to shall embrace both behest and non-behest loans:
recover those loans, and to recommend appropriate actions to the Office of
the President within sixty (60) days from the date hereof.

The following criteria may be utilized as a frame of reference in determining

a behest loan:

135
1. It is under-collateralized;

Several loan accounts were referred to the Committee for investigation,

including the loan transactions between Metals Exploration Asia, Inc.
2. The borrower corporation is undercapitalized; (MEA), now Philippine Eagle Mines, Inc. (PEMI) and the Development Bank
of the Philippines (DBP).

3. Direct or indirect endorsement by high government officials like

presence of marginal notes; After examining and studying the documents relative to the loan transactions,
the Committee determined that they bore the characteristics of behest loans,
as defined under Memorandum Order No. 61 because the stockholders and
officers of PEMI were known cronies of then President Ferdinand Marcos;
4. Stockholders, officers or agents of the borrower corporation are the loan was under-collateralized; and PEMI was undercapitalized at the time
identified as cronies; the loan was granted.

5. Deviation of use of loan proceeds from the purpose intended; Specifically, the investigation revealed that in 1978, PEMI applied for a
foreign currency loan and bank investment on its preferred shares with DBP.
The loan application was approved on April 25, 1979 per Board Resolution
(B/R) No. 1297, but the loan was never released because PEMI failed to
6. Use of corporate layering; comply with the conditions imposed by DBP. To accommodate PEMI, DBP
subsequently adopted B/R No. 2315 dated June 1980, amending B/R No.
1297, authorizing the release of PEMIs foreign currency loan proceeds, and
even increasing the same. Per B/R No. 95 dated October 16, 1980, PEMI was
7. Non-feasibility of the project for which financing is being sought; and granted a foreign currency loan of $19,680,267.00 or P146,601,979.00, and
it was released despite non-compliance with the conditions imposed by DBP.
The Committee claimed that the loan had no sufficient collaterals and PEMI
had no sufficient capital at that time because its acquired assets were only
8. Extraordinary speed in which the loan release was made. valued at P72,045,700.00, and its paid up capital was only P46,488,834.00.

Moreover, a behest loan may be distinguished from a non-behest loan in that Consequently, Atty. Orlando L. Salvador, Consultant of the Fact-Finding
while both may involve civil liability for non-payment or non-recovery, the Committee, and representing the Presidential Commission on Good
former may likewise entail criminal liability.[4] Government (PCGG), filed with the Office of the Ombudsman (Ombudsman)

136
a sworn complaint for violation of Sections 3(e) and (g) of Republic Act No.
3019, or the Anti-Graft and Corrupt Practices Act, against the respondents
Placido I. Mapa, Jr., Rafael A. Sison; Rolando M. Zosa; Cesar C. Zalamea;
Benjamin Barot, Casimiro Tanedo, J.V. de Ocampo, Bienvenido R. Tantoco,
Jr., Francis B. Banes, Ernesto M. Caringal, Romeo V. Jacinto, Manuel D.
Tanglao and Alicia Ll. Reyes.[5]
After considering the Committees allegation, the Ombudsman handed down
the assailed Resolution,[6] dismissing the complaint. The Ombudsman
conceded that there was ground to proceed with the conduct of preliminary
investigation. Nonetheless, it dismissed the complaint holding that the
offenses charged had already prescribed, viz.:
[W]hile apparently, PEMI was undercapitalized at the time the subject loans
were entered into; the financial accommodations were undercollateralized at
the time they were granted; the stockholders and officers of the borrower
corporation are identified cronies of then President Marcos; and the release
of the said loans was made despite non-compliance by PEMI of the
conditions attached therewith, which consequently give a semblance that the
subject Foreign Currency Loans are indeed Behest Loans, the prosecution of
the offenses charged cannot, at this point, prosper on grounds of prescription.
It bears to stress that Section 11 of R.A. No. 3019 as originally enacted,
provides that the prescriptive period for violations of the said Act (R.A. 3019)
is ten (10) years. Subsequently, BP 195, enacted on March 16, 1982, amended
the period of prescription from ten (10) years to fifteen (15) years
Moreover as enunciated in [the] case of People vs. Sandiganbayan, 211
SCRA 241, the computation of the prescriptive period of a crime violating a
special law like R.A. 3019 is governed by Act No. 3326 which provides, thus:
xxxx
Section 2. Prescription shall begin to run from the day of the commission of
the violation of law, and if the same be not known at the time, from the
discovery thereof and the institution of the judicial proceedings for its
investigation and punishment.
The prescription shall be interrupted when the proceedings are instituted
against the guilty person, and shall begin to run again if the proceedings are
dismissed for reasons not constituting jeopardy.
Corollary thereto, the Supreme Court in the case of People vs. Dinsay, C.A.
40 O.G. 12th Supp., 50, ruled that when there is nothing which was concealed
or needed to be discovered because the entire series of transactions were by
public instruments, the period of prescription commenced to run from the
date the said instrument were executed.
The aforesaid principle was further elucidated in the cases of People vs.
Sandiganbayan, 211 SCRA 241, 1992, and People vs. Villalon, 192 SCRA
521, 1990, where the Supreme Court pronounced that when the transactions
are contained in public documents and the execution thereof gave rise to
unlawful acts, the violation of the law commences therefrom. Thus, the
reckoning period for purposes of prescription shall begin to run from the time
the public instruments came into existence.
In the case at bar, the subject financial accommodations were entered into by
virtue of public documents (e.g., notarized contracts, board resolutions,
approved letter-request) during the period of 1978 to 1981 and for purposes
of computing the prescriptive period, the aforementioned principles in the
137
Dinsay, Villalon and Sandiganbayan cases will apply. Records show that the
complaint was referred and filed with this Office on October 4, 1996 or after
the lapse of more than fifteen (15) years from the violation of the law. WHEREFORE, premises considered, it is hereby respectfully recommended
[Deductibly] therefore, the offenses charged had already prescribed or that the instant case be DISMISSED.
forever barred by Statute of Limitations.

SO RESOLVED.[8]
It bears mention that the acts complained of were committed before the
issuance of BP 195 on March 2, 1982. Hence, the prescriptive period in the
instant case is ten (10) years as provided in the (sic) Section 11 of R.A. 3019,
as originally enacted.

The Committee filed a Motion for Reconsideration, but the Ombudsman

denied it on July 27, 1998.
Equally important to stress is that the subject financial transactions between
1978 and 1981 transpired at the time when there was yet no Presidential Order
or Directive naming, classifying or categorizing them as Behest or Non-
Behest Loans. Hence, this petition positing these issues:

To reiterate, the Presidential Ad Hoc Committee on Behest Loans was created A. WHETHER OR NOT THE CRIME DEFINED BY SEC. 3(e) AND (g)
on October 8, 1992 under Administrative Order No. 13. Subsequently, OF R.A. 3019 HAS ALREADY PRESCRIBED AT THE TIME THE
Memorandum Order No. 61, dated November 9, 1992, was issued defining PETITIONER FILED ITS COMPLAINT.
the criteria to be utilized as a frame of reference in determining behest loans.
Accordingly, if these Orders are to be considered the bases of charging
respondents for alleged offenses committed, they become ex-post facto laws
which are proscribed by the Constitution. The Supreme Court in the case of B. WHETHER OR NOT ADMINISTRATIVE ORDER NO. 13 AND
People v. Sandiganbayan, supra, citing Wilensky V. Fields, Fla, 267 So 2dl, MEMORANDUM ORDER NO. 61 ARE EX-POST FACTO LAW[S].[9]
5, held that an ex-post facto law is defined as a law which provides for
infliction of punishment upon a person for an act done which when it was
committed, was innocent.[7]

The Court shall deal first with the procedural issue.

Thus, the Ombudsman disposed:

138
Commenting on the petition, Tantoco, Reyes, Mapa, Zalamea and Caringal
argued that the petition suffers from a procedural infirmity which warrants its
dismissal. They claimed that the PCGG availed of the wrong remedy in
elevating the case to this Court.
Indeed, what was filed before this Court is a petition captioned as Petition for
Review on Certiorari. We have ruled, time and again, that a petition for
review on certiorari is not the proper mode by which resolutions of the
Ombudsman in preliminary investigations of criminal cases are reviewed by
this Court. The remedy from the adverse resolution of the Ombudsman is a
petition for certiorari under Rule 65,[10] not a petition for review on certiorari
under Rule 45.
However, though captioned as a Petition for Review on Certiorari, we will
treat this petition as one filed under Rule 65 since a reading of its contents
reveals that petitioner imputes grave abuse of discretion to the Ombudsman
for dismissing the complaint. The averments in the complaint, not the
nomenclature given by the parties, determine the nature of the action.[11] In
previous rulings, we have treated differently labeled actions as special civil
actions for certiorari under Rule 65 for reasons such as justice, equity, and
fair play.[12]
Having resolved the procedural issue, we proceed to the merits of the case.
As the Committee puts it, the issues to be resolved are: (i) whether or not the
offenses subject of its criminal complaint have prescribed, and (ii) whether
Administrative Order No. 13 and Memorandum Order No. 61 are ex post
facto laws.
The issue of prescription has long been settled by this Court in Presidential
Ad Hoc Fact-Finding Committee on Behest Loans v. Desierto,[13] thus:
[I]t is well-nigh impossible for the State, the aggrieved party, to have known
the violations of R.A. No. 3019 at the time the questioned transactions were
made because, as alleged, the public officials concerned connived or
conspired with the beneficiaries of the loans. Thus, we agree with the
COMMITTEE that the prescriptive period for the offenses with which the
respondents in OMB-0-96-0968 were charged should be computed from the
discovery of the commission thereof and not from the day of such
commission.[14]
The ruling was reiterated in Presidential Ad Hoc Fact-Finding Committee on
Behest Loans v. Ombudsman Desierto,[15] wherein the Court explained:
In cases involving violations of R.A. No. 3019 committed prior to the
February 1986 EDSA Revolution that ousted President Ferdinand E. Marcos,
we ruled that the government as the aggrieved party could not have known of
the violations at the time the questioned transactions were made. Moreover,
no person would have dared to question the legality of those transactions.
Thus, the counting of the prescriptive period commenced from the date of
discovery of the offense in 1992 after an exhaustive investigation by the
Presidential Ad Hoc Committee on Behest Loans.[16]
This is now a well-settled doctrine which the Court has applied in subsequent
cases involving the PCGG and the Ombudsman.[17]
139

Since the prescriptive period commenced to run on the date of the discovery
of the offenses, and since discovery could not have been made earlier than
October 8, 1992, the date when the Committee was created, the criminal
offenses allegedly committed by the respondents had not yet prescribed when
the complaint was filed on October 4, 1996.
Even the Ombudsman, in its Manifestation & Motion (In Lieu of
Comment),[18] conceded that the prescriptive period commenced from the
date the Committee discovered the crime, and not from the date the loan
documents were registered with the Register of Deeds. As a matter of fact, it
requested that the record of the case be referred back to the Ombudsman for
a proper evaluation of its merit.
Likewise, we cannot sustain the Ombudsmans declaration that
Administrative Order No. 13 and Memorandum Order No. 61 violate the
prohibition against ex post facto laws for ostensibly inflicting punishment
upon a person for an act done prior to their issuance and which was innocent
when done.
The constitutionality of laws is presumed. To justify nullification of a law,
there must be a clear and unequivocal breach of the Constitution, not a
doubtful or arguable implication; a law shall not be declared invalid unless
the conflict with the Constitution is clear beyond reasonable doubt. The
presumption is always in favor of constitutionality. To doubt is to sustain.[19]
Even this Court does not decide a question of constitutional dimension, unless
that question is properly raised and presented in an appropriate case and is
necessary to a determination of the case, i.e., the issue of constitutionality
must be the very lis mota presented.[20]
Furthermore, in Estarija v. Ranada,[21] where the petitioner raised the issue
of constitutionality of Republic Act No. 6770 in his motion for
reconsideration of the Ombudsmans decision, we had occasion to state that
the Ombudsman had no jurisdiction to entertain questions on the
constitutionality of a law. The Ombudsman, therefore, acted in excess of its
jurisdiction in declaring unconstitutional the subject administrative and
memorandum orders.
In any event, we hold that Administrative Order No. 13 and Memorandum
Order No. 61 are not ex post facto laws.
An ex post facto law has been defined as one (a) which makes an action done
before the passing of the law and which was innocent when done criminal,
and punishes such action; or (b) which aggravates a crime or makes it greater
than it was when committed; or (c) which changes the punishment and inflicts
a greater punishment than the law annexed to the crime when it was
committed; or (d) which alters the legal rules of evidence and receives less or
different testimony than the law required at the time of the commission of the
offense in order to convict the defendant.[22] This Court added two (2) more
to the list, namely: (e) that which assumes to regulate civil rights and remedies
only but in effect imposes a penalty or deprivation of a right which when done
was lawful; or (f) that which deprives a person accused of a crime of some
lawful protection to which he has become entitled, such as the protection of
a former conviction or acquittal, or a proclamation of amnesty.[23]
The constitutional doctrine that outlaws an ex post facto law generally
prohibits the retrospectivity of penal laws. Penal laws are those acts of the
legislature which prohibit certain acts and establish penalties for their
violations; or those that define crimes, treat of their nature, and provide for
their punishment.[24] The subject administrative and memorandum orders
clearly do not come within the shadow of this definition. Administrative
Order No. 13 creates the Presidential Ad Hoc Fact-Finding Committee on
Behest Loans, and provides for its composition and functions. It does not
mete out penalty for the act of granting behest loans. Memorandum Order
No. 61 merely provides a frame of reference for determining behest loans.
Not being penal laws, Administrative Order No. 13 and Memorandum Order
140
No. 61 cannot be characterized as ex post facto laws. There is, therefore, no
basis for the Ombudsman to rule that the subject administrative and
memorandum orders are ex post facto.

One final note. Respondents Mapa and Zalamea, in their respective

comments, moved for the dismissal of the case against them. Mapa claims
that he was granted transactional immunity from all PCGG-initiated
cases,[25] while Zalamea denied participation in the approval of the subject
loans.[26] The arguments advanced by Mapa and Zalamea are matters of
defense which should be raised in their respective counter-affidavits. Since
the Ombudsman erroneously dismissed the complaint on ground of
prescription, respondents respective defenses were never passed upon during
the preliminary investigation. Thus, the complaint should be referred back to
the Ombudsman for proper evaluation of its merit.

WHEREFORE, the petition is GRANTED. The assailed Resolution and

Order of the Office of Ombudsman in OMB-0-96-2428, are SET ASIDE. The
Office of the Ombudsman is directed to conduct with dispatch an evaluation
of the merits of the complaint against the herein respondents.

SO ORDERED.

141

[G.R. No. 95523. August 18, 1997]
REYNALDO GONZALES y RIVERA, petitioner, vs. HONORABLE
COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.
DECISION
ROMERO, J.:
The new law, Republic Act No. 8294,[1] approved barely two months ago
(June 6, 1997) which has lowered the penalty for illegal possession of
firearms finds application in instant case to favor the accused so as to
immediately release him from jail where he has already served nine (9) years,
nine (9) months and twenty-three (23) days, which is well beyond the
maximum penalty now imposed for his offense. Whereas prior to the passage
of this law, the crime of simple illegal possession of firearms was penalized
with reclusion temporal in its maximum period to reclusion perpetua,[2] after
its enactment, the penalty has been reduced to prision correccional in its
maximum period and a fine of not less than Fifteen Thousand Pesos
(P15,000.00).[3]
Being favorable to the accused, this newly-enacted law constitutes an
exception to the fundamental doctrine that laws should be applied
prospectively. Further applying the Indeterminate Sentence Law, petitioner
should be penalized with four (4) years, two (2) months and one (1) day as
minimum, to six (6) years as maximum. Petitioner, therefore, holds the
distinction of being the first beneficiary of this reduced penalty to favor him
with its retroactive application.
The following recital of facts constitutes the backdrop for the application of
the new law.
Two separate informations were filed against petitioner Reynaldo Gonzales
y Rivera involving the crimes of attempted homicide and violation of
Presidential Decree No. 1866.
The Information for Attempted Homicide reads as follows:
The undersigned Provincial Fiscal accuses Reynaldo Gonzales y Rivera of
the crime of attempted homicide, penalized under the provisions of Article
249 in connection with Article 51 of the Revised Penal Code, committed as
follows:
That on or about the 20th day of May, 1984, in the municipality of San
Ildefonso, province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, armed with a gun (Revolver,
Caliber .22, Paltik) and with intent to kill one Jaime Verde, did then and there
wilfully, unlawfully and feloniously commenced the commission of
homicide directly by overt acts, by then and there shooting with the said gun
the said Jaime Verde, and if the said accused did not accomplish his purpose,
that is, to kill the said Jaime Verde, it was not because of his spontaneous
desistance, but the shot missed him and instead hit the ground.
Contrary to law.
The Information for violation of P.D. No. 1866 reads:
The undersigned Provincial Fiscal accuses Reynaldo Gonzales y Rivera of
the crime of illegal possession of firearm, penalized under Presidential
Decree No. 1866, committed as follows:
That on or about the 20th day of May, 1984, in the municipality of San
Ildefonso, province of Bulacan, Philippines, and within the jurisdiction of this
Honorable Court, the said accused Reynaldo Gonzales y Rivera, did then and
there wilfully, unlawfully, and feloniously have in his possession and control
one (1) Revolver, Caliber .22 (Paltik, without first obtaining the proper
license or authority therefor).
Contrary to law.
A plea of not guilty having been entered, trial on the merits ensued.
The case for the prosecution is as follows:
On May 20, 1984, Jaime, Dionisio, and Zenaida all surnamed Verde were in
front of their house when, at about six oclock in the evening, petitioner
Reynaldo Gonzales and a certain Bening Paguia arrived in the premises.
Without any provocation, petitioner started to hurl invectives at Zenaida and
142
pushed her. Surprised at the unprovoked attack, Jaime tried to restrain the
petitioner but instead of allowing himself to be subdued, the latter turned on
the former. Pulling out his gun, he fired the same at Jaime but missed his
mark. The incident was thereafter reported to the police authorities which
conducted a paraffin test that showed that petitioners right hand was positive
for gunpowder residue.
On the other hand, the version of the defense was as follows:
Petitioner testified that on the said date and time, he was with his barrio mates
when suddenly, a commotion attracted their attention. They saw a group of
persons chasing an unidentified person who was running towards their
direction with a gun in hand while the mob was shouting Harangin. During
the chase, the unidentified person accidentally fell and dropped the gun he
was holding which petitioner then grabbed.
The fleeing person hastily boarded a passing bus. It was at this point that the
Verdes, who turned out to be the persons giving chase, demanded the gun
from the petitioner who, however, refused to surrender the same, as a result
of which, a scuffle ensued during which the gun accidentally went off without
hitting anybody.
After trial, the court a quo acquitted the petitioner of the offense of attempted
homicide but found him guilty of the offense of illegal possession of firearm,
the dispositive portion of which reads:[4]
WHEREFORE, premises considered, for failure of the prosecution to prove
the guilt of Reynaldo Gonzales beyond reasonable doubt of the charge for
Attempted Homicide, he is hereby acquitted of the crime charged.
With respect to the charge of Illegal Possession of Firearms, the Court finds
the accused guilty beyond reasonable doubt and hereby sentences him to a
penalty ranging from 17 years, 4 months, 1 day to 18 years, 8 months of
Reclusion Temporal, without pronouncement as to costs.
Upon appeal to the Court of Appeals, the petitioner asserted that the trial court
erred in not giving credence to the defenses narration of the incident and his
guilt has not been proven beyond reasonable doubt. This argument did not
persuade the appellate court as it held that:[5]
Indeed, as correctly found by the trial court, the appellant did not grab the
revolver (paltik) in question (Exhibit A) from the unidentified person that he
said. He drew it from his pocket and intentionally fired it at Jaime Verde but
missed him. He was, therefore, in possession of it. And since it was a paltik
for which no license to possess may be issued (People vs. Fajardo, 17 SCRA
494), he is guilty of illegal possession of firearm under Presidential Decree
No. 1866. Accordingly, the trial court did not commit any error in finding
him guilty as charged.
In the instant petition, petitioner assigns the following errors to the trial court:
1. There is in this case material and substantial conflict between the version
of the prosecution and that of the defense that would lead a reasonable mind
to believe the improbability of the version of the prosecution.
2. Respondent Court of Appeals committed a grave and serious error of law
in not finding/holding that the prosecution miserably failed to establish the
motive that would support the version of the prosecution.
3. Petitioner was not aware of any preliminary investigation that would create
any inference adverse to his innocence.
4. The prosecution in this case failed to prove the guilt of the petitioner
beyond reasonable doubt. Hence, the latter is entitled to acquittal.
We affirm the findings of the trial court and the Court of Appeals.
The main thesis of petitioners defense is that he inadvertently picked up the
gun accidentally dropped by an unidentified person who was being chased by
the Verdes. Thus, he cannot be convicted for illegal possession of firearm.
Completely contradicting petitioners version, we quote with approval the trial
courts finding:[6]
The testimony that the gun came from the unarmed (should be unidentified)
person who fell in front of him while being chased is again hard to believe.
The natural reaction of a person being chased in a hostile place is to remove
hindrances along his way. If he had a gun, as the accused would want the
court to believe, he could have used it against all persons who would block
his way since there were shouts harangin, harangin. On the other hand, the
143
actuation of the accused is contrary to common observation and experience.
No person in his right mind would approach a person holding a gun being
chased and there were shouts harangin, harangin.
In addition, petitioners narration is not in conformity with human experience
and reactions. We likewise note the incredible assertion of the petitioner that
the unidentified person, after tripping and dropping the gun, was able to board
a slow moving bus without even attempting to retrieve his weapon. Such a
hollow tale hardly commends itself to our mind.
Also, petitioner bewails the fact that no preliminary investigation was
conducted. While the right to preliminary investigation is one that is
statutorily granted and not mandated by the Constitution, still it is a
component part of due process in criminal justice[7] that may not be treated
lightly, let alone ignored. It has been consistently held, however, that its
absence does not impair the validity of the criminal information or render it
defective. In any case, dismissal of the case is not the remedy.[8] It is
incumbent on the trial court to hold in abeyance the proceedings upon such
information and to remand the case to the fiscal to conduct a preliminary
investigation if the accused actually makes out a case justifying the same.[9]
Conversely, it is a well-settled rule that the right to a preliminary investigation
may be waived by the failure to invoke it prior to or at least at the time of the
accuseds plea.[10] Thus, when the petitioner entered a plea to the charge,[11]
he is deemed to have waived the right to preliminary investigation.[12]
Having set aside the procedural aspect of this petition, we now proceed to
determine whether the petitioner is indeed guilty of the offense of illegal
possession of firearm.
In cases involving illegal possession of firearm, there are certain well-
established principles, namely: (a) the existence of the subject firearm and (b)
the fact that the accused who owned or possessed the firearm does not have
the corresponding license or permit to possess.[13] The first requisite is
beyond dispute as the subject firearm was recovered, identified and offered
in evidence during trial.[14] With respect to the second requisite, the same
was undisputably proven by the prosecution. The unvarying rule is that
ownership is not an essential element of illegal possession of firearms and
ammunition. What the law requires is merely possession which includes, not
only actual physical possession, but also constructive possession or the
subjection of the thing to ones control and management.[15]
In the instant petition, there is no doubt that the petitioner is indeed guilty of
having intentionally possessed an unlicensed firearm. The testimony of the
petitioner that he came into possession of the firearm only after a scuffle, is a
lame defense which cannot overcome the solid evidence presented by the
prosecution proving his guilt beyond reasonable doubt. On this score, we note
that a prosecution witness testified that petitioner pulled the gun from his
waist and fired a shot aimed at Jaime Verdes foot.[16]
Thus, we have no reservations in affirming petitioners conviction since we
find no compelling reason to depart from the factual findings of both the trial
court and the respondent appellate court which are, as a rule, accorded great
respect and finality.[17]
As regards the penalty imposed by the trial court and affirmed by the
appellate court (17 years, 4 months, 1 day to 18 years, 8 months of reclusion
temporal), we reduce the same in view of the passage of R.A. No. 8294
wherein the penalty for simple illegal possession of firearms has been
lowered. Since it is an elementary rule in criminal jurisprudence that penal
laws shall be given retroactive effect when favorable to the accused,[18] we
are now mandated to apply the new law in determining the proper penalty to
be imposed on the petitioner.
While prior to the passage of R.A. No. 8294, the crime of simple illegal
possession of firearm was penalized with reclusion temporal in its maximum
period to reclusion perpetua, after its enactment, the penalty was reduced to
prision correccional in its maximum period and a fine of not less than Fifteen
Thousand Pesos (P15,000.00).
Accordingly, applying the Indeterminate Sentence Law, the principal penalty
for the offense of simple illegal possession of firearm is four (4) years and
two (2) months as minimum, to six (6) years, as maximum[19] and a fine of
P15,000.00. Consistent with the doctrine that an appeal in a criminal case
throws the whole case open for review, the appellate court may, applying the
new law, additionally impose a fine, which if unpaid, will subject the convict
to subsidiary imprisonment, pursuant to Art. 39 of the Revised Penal
Code.[20]
144
WHEREFORE, the decision of the Court of Appeals sustaining petitioners
conviction by the lower court of the crime of simple illegal possession of
firearm is AFFIRMED, with the MODIFICATION that the penalty is reduced
to four (4) years and two (2) months, as minimum, to six (6) years, as
maximum.

Since the petitioner has already served nine (9) years, nine (9) months and
twenty-three (23) days, which is well beyond the maximum principal penalty
imposed for his offense, as well as the subsidiary penalty for the unpaid fine,
he is hereby ordered RELEASED immediately, unless he is being held for
some other lawful cause.

145
SR. INSP. JERRY C. VALEROSO, G.R. No. 164815
THE law looks forward, never backward. Lex prospicit, non respicit. A new
Petitioner, law has a prospective, not retroactive, effect.[1] However, penal laws that
favor a guilty person, who is not a habitual criminal, shall be given retroactive
Present: effect.1-a These are the rule, the exception and exception to the exception on
effectivity of laws.

YNARES-SANTIAGO, J.,

Chairperson, Ang batas ay tumitingin sa hinaharap, hindi sa nakaraan. Gayunpaman, ang

parusa ng bagong batas ay iiral kung ito ay pabor sa taong nagkasala na hindi
- versus - AUSTRIA-MARTINEZ, pusakal na kriminal.

CHICO-NAZARIO,

NACHURA, and We apply the exception rather than the rule in this petition for review on
certiorari of the decision of the Court of Appeals (CA), affirming with
REYES, JJ. modification that of the Regional Trial Court (RTC) in Quezon City, finding
petitioner liable for illegal possession of a firearm.

THE PEOPLE OF THE Promulgated:

The Facts
PHILIPPINES,

Respondent. February 22, 2008
x--------------------------------------------------x
DECISION
On July 10, 1996, at around 9:30 a.m., SPO2 Antonio M. Disuanco of the
Criminal Investigation Division, Central Police District Command, received
a dispatch order[2] from the desk officer.[3] The order directed him and three
(3) other policemen to serve a warrant of arrest[4] issued by Judge Ignacio
Salvador against petitioner Sr. Insp. Jerry C. Valeroso in a case for
kidnapping with ransom.[5]

After a briefing, the team conducted the necessary surveillance on petitioner,

checking his hideouts in Cavite, Caloocan, and Bulacan.[6] Eventually, the
team proceeded to the Integrated National Police (INP) Central Station at
REYES, R.T., J.: Culiat, Quezon City, where they saw petitioner as he was about to board a
tricycle.[7] SPO2 Disuanco and his team approached petitioner.[8] They put

146
him under arrest, informed him of his constitutional rights, and bodily
searched him.[9] Found tucked in his waist[10] was a Charter Arms, bearing
Serial Number 52315[11] with five (5) live ammunition.[12]
CONTRARY TO LAW.

Petitioner was then brought to the police station for questioning.[13]

A verification of the subject firearm at the Firearms and Explosives Division

at Camp Crame revealed that it was not issued to petitioner but to a certain
Raul Palencia Salvatierra of Sampaloc, Manila.[14] Epifanio Deriquito, the
records verifier, presented a certification[15] to that effect signed by Edwin Quezon City, Philippines, July 15, 1996.
C. Roque, chief records officer of the Firearms and Explosive Division.[16]

(Sgd.)
Petitioner was then charged with illegal possession of firearm and
ammunition under Presidential Decree (P.D.) No. 1866,[17] as amended. The GLORIA VICTORIA C. YAP
Information read:
Assistant City Prosecutor[18]

That on or about the 10th day of July, 1996, in Quezon City, Philippines, the
said accused without any authority of law, did then and there willfully, With the assistance of his counsel de parte, Atty. Oscar Pagulayan, petitioner
unlawfully and knowingly have in his/her possession and under his/her pleaded not guilty when arraigned on October 9, 1996.[19] Trial on the merits
custody and control ensued.

One (1) cal. 38 Charter Arms revolver bearing Serial No. 52315 with five (5) SPO2 Disuanco and Deriquito testified for the prosecution in the manner
live ammo. stated above.

without first having secured the necessary license/permit issued by the proper
authorities.

147
Upon the other hand, the defense version was supplied by the combined
testimonies of petitioner Sr. Insp. Jerry C. Valeroso, SPO3 Agustin R.
Timbol, Jr. and Adrian Yuson.
Petitioner recounted that on July 10, 1996, he was fast asleep in the boarding
house of his children located at Sagana Homes, Barangay New Era, Quezon
City.[20] He was roused from his slumber when four (4) heavily armed men
in civilian clothes bolted the room.[21] They trained their guns at him[22]
and pulled him out of the room. They then tied his hands and placed him near
the faucet.[23] The raiding team went back inside and searched and ransacked
the room.[24] SPO2 Disuanco stood guard outside with him.[25] Moments
later, an operative came out of the room and exclaimed, Hoy, may nakuha
akong baril sa loob![26]
Petitioner was told by SPO2 Disuanco that we are authorized to shoot you
because theres a shoot to kill order against you, so if you are planning do so
something, do it right now.[27] He was also told that there was a standing
warrant for his arrest.[28] However, he was not shown any proof when he
asked for it.[29] Neither was the raiding group armed with a valid search
warrant.[30]
According to petitioner, the search done in the boarding house was illegal.
The gun seized from him was duly licensed and covered by necessary
permits. He was, however, unable to present the documentation relative to
the firearm because it was confiscated by the police. Petitioner further
lamented that when he was incarcerated, he was not allowed to engage the
services of a counsel. Neither was he allowed to see or talk to his family.[31]
Petitioner contended that the police had an axe to grind against him. While
still with the Narcotics Command, he turned down a request of Col. Romulo
Sales to white-wash a drug-related investigation involving friends of the said
police officer. Col. Sales was likewise subject of a complaint filed with the
Ombudsman by his wife. Col. Sales was later on appointed as the head of the
unit that conducted the search in his boarding house.[32]
SPO3 Timbol, Jr. of the Narcotics Command testified that he issued to
petitioner a Memorandum Receipt dated July 1, 1993[33] covering the
subject firearm and its ammunition. This was upon the verbal instruction of
Col. Angelito Moreno. SPO3 Timbol identified his signature[34] on the said
receipt.[35]
Adrian Yuson, an occupant of the room adjacent to where petitioner was
arrested, testified that on July 10, 1996, two (2) policemen suddenly entered
his room as he was preparing for school.[36] They grabbed his shoulder and
led him out.[37] During all those times, a gun was poked at him.[38] He was
asked where petitioner was staying. Fearing for his life, he pointed to
petitioners room.[39]
Four (4) policemen then entered the room.[40] He witnessed how they
pointed a gun at petitioner, who was clad only in his underwear.[41] He also
witnessed how they forcibly brought petitioner out of his room.[42] While a
policeman remained near the faucet to guard petitioner, three (3) others went
back inside the room.[43] They began searching the whole place. They
forcibly opened his locker,[44] which yielded the subject firearm.[45]
RTC and CA Dispositions
On May 6, 1998, the trial court found petitioner guilty as charged, disposing
as follows:
148
WHEREFORE, the Court hereby finds the accused guilty beyond reasonable WHEREFORE, with the foregoing MODIFICATION as to the penalty, the
doubt of Violation of Section 1 of Presidential Decree No. 1866 as amended decision appealed from is hereby AFFIRMED in all other respects.
by Republic Act No. 8294 and hereby sentences him to suffer the penalty of
prision correccional in its maximum period or from 4 years, 2 months and 1
day as minimum to 6 years as maximum and to pay the fine in the amount of
Fifteen Thousand Pesos (P15,000.00). SO ORDERED.[49]

The gun subject of this case is hereby ordered confiscated in favor of the His motion for reconsideration[50] having been denied through a Resolution
government. Let the same be put in trust in the hands of the Chief of the PNP. dated August 3, 2004,[51] petitioner resorted to the present petition under
Rule 45.

SO ORDERED.[46]
Issues

Petitioner raises the following issues for Our consideration:

I. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS

Petitioner moved to reconsider[47] but his motion was denied on August 27, ERRORS OF LAW IN AFFIRMING THE CONVICTION OF
1998.[48] He appealed to the CA. PETITIONER DESPITE THE ABSENCE OF PROOF BEYOND
REASONABLE DOUBT.

On May 4, 2004, the appellate court affirmed with modification the RTC
disposition. The fallo of the CA decision reads: II. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS
ERRORS OF FACT AND LAW IN SUSTAINING THE LEGALITY OF
THE SEARCH AND THE VALIDITY AND ADMISSIBILITY OF THE
EVIDENCE OBTAINED THEREFROM DESPITE THE
Verily, the penalty imposed by the trial court upon the accused-appellant is OVERWHELMING PROOF THAT THE SAME IS THE FRUIT OF THE
modified to 4 years and 2 months as minimum up to 6 years as maximum. POISONOUS TREE.

149
III. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS
ERRORS OF LAW IN NOT UPHOLDING THE REGULARITY AND
VALIDITY SURROUNDING THE ISSUANCE OF THE
MEMORANDUM RECEIPTS (SIC) IN FAVOR OF PETITIONER WHICH
PROVES HIS INNOCENCE OF THE CRIME CHARGE (SIC).[52]
(Underscoring supplied)
Our Ruling
In illegal possession of firearm and ammunition, the prosecution has the
burden of proving the twin elements of (1) the existence of the subject firearm
and ammunition, and (2) the fact that the accused who possessed or owned
the same does not have the corresponding license for it.[53]
The prosecution was able to discharge its burden.
The existence of the subject firearm and its ammunition was established
through the testimony of SPO2 Disuanco.[54] Defense witness Yuson also
identified the firearm.[55] Its existence was likewise admitted by no less than
petitioner himself.[56]
As for petitioners lack of authority to possess the firearm, Deriquito testified
that a verification of the Charter Arms Caliber .38 bearing Serial No. 52315
with the Firearms and Explosives Division at Camp Crame revealed that the
seized pistol was not issued to petitioner. It was registered in the name of a
certain Raul Palencia Salvatierra of Sampaloc, Manila.[57] As proof,
Deriquito presented a certification signed by Roque, the chief records officer
of the same office.[58]
The Court on several occasions ruled that either the testimony of a
representative of, or a certification from, the Philippine National Police
(PNP) Firearms and Explosive Office attesting that a person is not a licensee
of any firearm would suffice to prove beyond reasonable doubt the second
element of possession of illegal firearms.[59] The prosecution more than
complied when it presented both.
The certification is outside the scope of the hearsay rule.
The general rule is that a witness can testify only to those facts which he
knows of his personal knowledge; that is, which are derived from his own
perception.[60] Otherwise, the testimony is objectionable for being
hearsay.[61]
On this score, the certification from the Firearms and Explosives Division is
an exception to the hearsay rule by virtue of Rule 130, Section 44 of the Rules
of Court which provides:
Sec. 44. Entries in official records. Entries in official records made in the
performance of his official duty by a public officer of the Philippines, or by
a person in the performance of a duty specifically enjoined by law, are prima
facie evidence of the facts therein stated.
It may be true that the contents of said certification are only prima facie
evidence of the facts stated there. However, the failure of petitioner to present
controverting evidence makes the presumption unrebutted. Thus, the
presumption stands.
150

Petitioner, however, raises several points which he says entitles him to no less
than an acquittal.
The assessment of credibility of witnesses lies with the trial court.
First, petitioner says that the seizure of the subject firearm was invalid. The
search was conducted after his arrest and after he was taken out of the room
he was occupying.[62]
This contention deserves scant consideration.
Petitioners version of the manner and place of his arrest goes into the factual
findings made by the trial court and its calibration of the credibility of
witnesses. However, as aptly put by Justice Ynares-Santiago in People v.
Rivera:[63]
x x x the manner of assigning values to declarations of witnesses on the
witness stand is best and most competently performed by the trial judge who
had the unmatched opportunity to observe the witnesses and assess their
credibility by the various indicia available but not reflected on record. The
demeanor of the person on the stand can draw the line between fact and fancy
or evince if the witness is telling the truth or lying through his teeth. We have
consistently ruled that when the question arises as to which of the conflicting
versions of the prosecution and the defense is worthy of belief, the assessment
of the trial courts are generally viewed as correct and entitled to great weight.
Furthermore, in an appeal, where the culpability or innocence of the accused
depends on the issue of credibility of witnesses and the veracity of their
testimonies, findings of the trial court are given the highest degree of respect
if not finality.[64] (Underscoring supplied)
The trial court found the prosecution version worthy of credence and belief.
We find no compelling reason not to accept its observation on this score.
Worth noting is the fact that petitioner is a ranking police officer who not
only claims to be highly decorated,[65] but have effected a number of
successful arrests[66] as well. Common sense would dictate that he must
necessarily be authorized to carry a gun. We thus agree with the Office of the
Solicitor General that framing up petitioner would have been a very risky
proposition. Had the arresting officers really intended to cause the damnation
of petitioner by framing him up, they could have easily planted a more
incriminating evidence rather than a gun. That would have made their
nefarious scheme easier, assuming that there indeed was one.
The pieces of evidence show that petitioner is not legally authorized to
possess the subject firearm and its five (5) ammunition.
Second, petitioner insists that he is legally authorized to possess the subject
firearm and its ammunition on the basis of the Memorandum Receipt issued
to him by the PNP Narcotics Command.[67]
Although petitioner is correct in his submission that public officers like
policemen are accorded presumption of regularity in the performance of their
official duties,[68] it is only a presumption; it may be overthrown by evidence
to the contrary. The prosecution was able to rebut the presumption when it
proved that the issuance to petitioner of the Memorandum Receipt was
anything but regular.
151

SPO3 Timbol, Jr. testified that he issued the Memorandum Receipt to
petitioner based on the verbal instruction of his immediate superior, Col.
Moreno.[69] However, a reading of Timbols testimony on cross-
examination[70] would reveal that there was an unusual facility by which
said receipt was issued to petitioner. Its issuance utterly lacked the usual
necessary bureaucratic constraints. Clearly, it was issued to petitioner under
questionable circumstances.
Failure to offer an unlicensed firearm as evidence is not fatal provided there
is competent testimony as to its existence.
Third, petitioner claims that the subject firearm and ammunition should have
been excluded as evidence because they were not formally offered by the
prosecution[71] in violation of Section 34, Rule 132 of the Rules of
Court.[72]
We note that petitioner contradicted himself when he argued for the validity
of the Memorandum Receipt and, at the same time, for the exclusion in
evidence of the subject firearm and its ammunition. Petitioners act may result
to an absurd situation where the Memorandum Receipt is declared valid,
while the subject firearm and its ammunition which are supposedly covered
by the Memorandum Receipt are excluded as evidence. That would have
made the Memorandum Receipt useless.
In any case, petitioners contention has no leg to stand on.
Contrary to petitioners claim, the subject firearm[73] and its five (5) live
ammunition[74] were offered in evidence by the prosecution.[75] Even
assuming arguendo that they were not offered, petitioners stance must still
fail. The existence of an unlicensed firearm may be established by testimony,
even without its presentation at trial. In People v. Orehuela,[76] the non-
presentation of the pistol did not prevent the conviction of the accused.
The doctrine was affirmed in the recent case of People v. Malinao.[77]
As previously stated, the existence of the subject firearm and its five (5) live
ammunition were established through the testimony of SPO2 Disuanco.[78]
Yuson also identified said firearm.[79] Petitioner even admitted its
existence.[80]
We hasten to add that there may also be conviction where an unlicensed
firearm is presented during trial but through inadvertence, negligence, or
fortuitous event (for example, if it is lost), it is not offered in evidence, as
long as there is competent testimony as to its existence.
Penal and civil liabilities
Petitioner was charged with the crime of illegal possession of firearms and
ammunition under the first paragraph of Section 1 of P.D. No. 1866, as
amended. It provides that [t]he penalty of reclusion temporal in its maximum
period to reclusion perpetua shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part
of firearm, ammunition or machinery, tool or instrument used or intended to
be used in the manufacture of any firearm or ammunition.
P.D. No. 1866, as amended, was the governing law at the time petitioner
committed the offense on July 10, 1996. However, R.A. No. 8294 amended
152
P.D. No. 1866 on July 6, 1997,[81] during the pendency of the case with the Courts ruling in Gonzales v. Court of Appeals[87] and Barredo v.
trial court. The present law now states: Vinarao.[88]

SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or As to the subject firearm and its five (5) live ammunition, their proper
Possession of Firearms or Ammunition or Instruments Used or Intended to disposition should be made under Article 45 of the Revised Penal Code[89]
be Used in the Manufacture of Firearms or Ammunition. The penalty of which provides, among others, that the proceeds and instruments or tools of
prision correccional in its maximum period and a fine of not less than Fifteen the crime shall be confiscated and forfeited in favor of the government.
Thousand Pesos (P15,000) shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any low- WHEREFORE, the Decision of the Court of Appeals dated May 4, 2004 is
powered firearm, such as rimfire handgun, .380 or .32 and other firearm of AFFIRMED in full.
similar firepower, part of firearm, ammunition, or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm or
ammunition: Provided, That no other crime was committed. (Underscoring
supplied)

As a general rule, penal laws should not have retroactive application, lest they
acquire the character of an ex post facto law.[82] An exception to this rule,
however, is when the law is advantageous to the accused. According to Mr.
Chief Justice Araullo, this is not as a right of the offender, but founded on the
very principles on which the right of the State to punish and the commination
of the penalty are based, and regards it not as an exception based on political
considerations, but as a rule founded on principles of strict justice.[83]

Although an additional fine of P15,000.00 is imposed by R.A. No. 8294, the

same is still advantageous to the accused, considering that the imprisonment
is lowered to prision correccional in its maximum period[84] from reclusion
temporal in its maximum period to reclusion perpetua[85] under P.D. No.
1866.

Applying the Indeterminate Sentence Law, prision correccional maximum

which ranges from four (4) years, two (2) months and one (1) day to six (6)
years, is the prescribed penalty and will form the maximum term of the
indeterminate sentence. The minimum term shall be one degree lower, which
is prision correccional in its medium period (two [2] years, four [4] months
and one [1] day to four [4] years and two [2] months).[86] Hence, the penalty
imposed by the CA is correct. The penalty of four (4) years and two (2)
months of prision correccional medium, as minimum term, to six (6) years of
prision correccional maximum, as maximum term, is in consonance with the

153
G.R. No. 206357 November 12, 2014
PRESIDENTIAL COMMISISON ON GOOD GOVERNMENT (PCGG),
Petitioner,
vs.
THE HONORABLE OMBUDSMAN Conchita CarpioMorales,
GREGORIO S. LICAROS, GAUDENCIO BEDUYA, JOSE R. TENGCO,
JR., JOSE S. ESTEVES, PLACIDO T. MAP A, JR., JULIO V. MACUJA,
VICENTE PATERNO, RAFAEL A. SISON, ROBERTO V. ONGPIN,
ALICIA LL. REYES, Former Members of the Board of Governors of the
Development Bank of the Philippines (DBP), RODOLFO M. CUENCA,
EDILBERTO M. CUENCA, JOSE Y. VILLONGCO, RODOLFO B.
SANTIAGO, AURELIO Y. BAUTISTA, GENOVEVA L. BUENO,
BIENVENIDO D. CRUZ, ROMEO R. ECHAUZ, JORGE W. JOSE,
LEONILO M. OCAMPO, ANTONIO P. SAN JUAN, JR., CLARENCIO S.
YUJIOCO, All Officers of Resorts Hotels Corporation, Respondents.
DECISION
VELASCO, JR., J.:
The Case
This is a Petition for Certiorari under Rule 65 of the Rules of Court seeking
the annulment and setting aside of the Orders dated July 19, 2011 and March
8, 2012, rendered by the Office of the Ombudsman in OMB-CC-03-0008-A,
entitled "Presidential Commission on Good Government (PCGG) v. Rodolfo
Cuenca, et al."
The Facts
On October 18, 1992, then President Fidel V. Ramos issued Administrative
Order No. 13 creating a Presidential Ad-Hoc Fact-Finding Committee on
Behest Loans (Ad Hoc Committee). A few months later, President Ramos
issued Memorandum Order No. 61 prescribing certain criteria to be used by
the Ad Hoc Committee as a guide ininvestigating and studying loans granted
by government financing institutions that amount to behest loans.
One of the loan accounts referred to the Ad Hoc Committee for investigation
was that of Resorts Hotel Corporation (RHC).
Incorporated in 1968 with a paid-up capital of ₱1.0 million, RHC was 37.2%
owned by Rodolfo Cuenca, a known Marcos business associate. In 1969,
RHC obtained a total of 9.7 million from DBP, allegedly to pay the balance
of the purchase price of Baguio Pines Hotel and to construct an 8-storey
building. In 1973, the loan was restructured and DBP granted a direct loan of
₱14.4 million and guaranteed another ₱11.2 million. In 1974, an additional
loan of ₱8.9 million was granted to RHC for the expansion of its hotel project,
and ₱3.6 million for the cost of 10 luxury buses. In 1975, an additional loan
of ₱27.8 million was again granted to RHC for another expansion project,
and in 1977, it again obtained ₱11.3 million to refinance its unpaid
obligations and partly to finance Taal Vista.
To secure the loans totaling ₱86.9 million, RHC offered as collaterals the
assets that were acquired by these loans which included the Baguio Pines
Hotel, Taal Vista Lodge, Hotel Mindanao and the luxury buses.
In 1980, 40% of the amount wereconverted into DBP’s common shareholding
in RHC, and the balance of ₱58.4 million was restructured. The properties
were foreclosed in 1983 with arrearages of ₱11.97 million.
On the basis of the foregoing,the Ad Hoc Committee found that DBP’s total
exposure as of 1986 amounted to ₱99.1 million.1
Based on the above, the Ad Hoc Committee, on January 4, 1993, submitted a
report to the President where it concluded that the RHC account qualifies as
behest in character anchored on the following grounds:
a) The loans are under collateralized;
b) The borrower corporation is undercapitalized, for its paid-up capital
amounted only to ₱10.3 million upon the approval of the loans which totaled
to ₱99,133,765.14 in 1986;
c) Stockholders and officers of the borrower corporation are identified as
Marcos cronies; and
154
d) As revealed by the marginal notes based on Hawaii documents on file with
PCGG, it was found out that thenPresident Marcos owned 20% of the shares
of stocks in RHC.
Agreeing that the said loans bear the characteristics of a behest loan on the
basis of the said Committee Report, the Republic of the Philippines,
represented by the PCGG, filed an Affidavit-Complaint on January 6, 2003
with the Office of the Ombudsman, against respondent directors and officers
of RHC and the directors of DBP for violation of Sections 3(e) and 3 (g) of
Republic Act (RA) No. 3019 or the Anti-Graft and Corrupt Practices Act.2
Later, or on June 4, 2004, petitioner filed a Supplemental
ComplaintAffidavit.3
In the questioned July 19, 2011 Order, the Ombudsman dismissed petitioner’s
Affidavit-Complaint for lack of jurisdiction. The falloof the Order reads:
PREMISES CONSIDERED, this complaint is DISMISSEDfor lack of
jurisdiction inasmuch as onlyPrivate (sic) parties are charged due to the
refusal of theDevelopment (sic) Bank of the Philippines to furnish the
[p]ertinent documents that will identify the public respondentsInvolved (sic).
Petitioner moved for reconsideration,arguing, among others, that the
Ombudsman erred in dismissing its Affidavit-Complaint since its
Supplemental Complaint-Affidavit enumerates the directors of DBP who
conspired with herein private respondents in granting the behest loans subject
of the case.
Acting on the motion, the Ombudsman,on March 8, 2012, issued the second
assailed Order dismissing the complaint on the ground of prescription,
effectively denying the motion for reconsideration.
In the said Order, the Ombudsman stated that:
In as much as the record indicates that the instant complaint was filed with
this office only on 6 January 2003, or more than ten (10) years from the time
the crimes were discovered on 4 January 1993, the offenses charged herein
had already prescribed. This office, therefore has no other recourse but to
DISMISS the instant complaint.
In light of the foregoing discussion, this Office sees no need to dispose of the
other issues complainant raised in its Motion for Reconsideration.
WHEREFORE, on account of prescription of the offenses charged, the
criminal complaint for violation of Section 3 (e) and (g) of (sic) R.A. 3019
against respondents is hereby DISMISSED. SO ORDERED.
Aggrieved, petitioner seeks recoursefrom this Court, arguing that contrary to
the decision of the Ombudsman, the offense has not yet prescribed. Petitioner
insists that the prescriptive period should only commence to run on January
6, 2003 when it filed the Affidavit-Complaint with the Office of the
Ombudsman, and not on January 4, 1993 when the crimes were discovered.
This argument,according to petitioner, is based on Section 2 of Act No. 33264
which states that "[p]rescription 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." Moreover, Section 11 of RA 3019 sets
the prescription of offenses under said law at fifteen (15) years,5 not ten (10)
as held by the Ombudsman.
The Issue
Based on the above backdrop, the issue submitted for this Court’s resolution
is whether or not respondent Ombudsman committed grave abuse of
discretion in dismissing the Affidavit-Complaint dated January 6, 2003 on
the ground of prescription.
Our Ruling
The petition is without merit. RA 3019, Section 11 provides that all offenses
punishable under said law shall prescribe in ten (10) years.This period was
later increased to fifteen (15) years with the passage ofBatas Pambansa (BP)
Blg. 195, which took effect on March 16, 1982. This does not mean, however,
that the longer prescriptive period shall apply to all violations of RA 3019.
Following Our pronouncements in People v. Pacificador,6 the rule is that "in
the interpretation of the law on prescription of crimes, that which is more
favorable to the accused is tobe adopted." As such, the longer prescriptive
period of 15 years pursuant to BP Blg. 195 cannot be applied to crimes
committed prior to the effectivityof the said amending law on March 16,
1982. Considering that the crimes werecommitted in 1969, 1970, 1973, 1975,
155
and 1977, the applicable prescriptive period thereon is the ten-year period set
in RA 3019, the law in force at that time. What is, then, left for Our
determination is the reckoning point for the 10-year period.
Notably, RA 3019 is silent as to when the period of prescription shall begin
to run. This void, however, is remedied by Act No. 3326,7 Section 2 of which
provides in part:
Sec. 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 proceeding for its
investigation and punishment. xxx.
Based on the above, there are two reckoning points for the counting of the
prescription of an offense: 1) the day of the commission of the violation of
the law; and 2) if the day whenthe violation was committed be not known,
then it shall begin to run from the discovery of said violation and the
institution of judicial proceedingsfor investigation and punishment.
The first mode being self-explanatory, We proceed with Our construction of
the second mode.
In interpreting the meaning of the phrase "if the same be not known at the
time, from the discovery thereof and the institution of judicial proceeding for
its investigation," this Court has, as early as 1992 in People v. Duque,8 held
that in cases where the illegality of the activity is not known to the
complainant at the time of its commission, Act No. 3326, Section 2 requires
that prescription, in such a case, would begin to run only from the discovery
thereof, i.e. discovery of the unlawful nature of the constitutive act or acts.9
It is also in Duque10 where this Court espoused the raison d’être for the
second mode. We said, "[i]n the nature of things, acts made criminal by
special laws are frequently not immoral or obviously criminal in themselves;
for this reason, the applicable statute requires that if the violation of the
special law is not known at the time, the prescription begins to run only from
the discovery thereof, i.e., discovery of the unlawful nature of the constitutive
act or acts."11 Further clarifying the meaning ofthe second mode, the Court,
in Duque,12 held that Section 2 should be readas "[p]rescription 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 untilthe
institution of judicial proceedings for its investigation and punishment."13
Explaining the reason therefor, this Court held that a contrary interpretation
would create the absurd situation where "the prescription period would both
begin and be interrupted by the same occurrence; the net effect would be that
the prescription period would not have effectively begun, having been
rendered academic by the simultaneous interruption of that same period."14
Additionally, this interpretation is consistent with the second paragraph of the
same provision which states that "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."
Applying the same principle, We have consistently held in a number of cases,
some of which likewise involvebehest loans contracted during the Marcos
regime, that the prescriptive period for the crimes therein involved generally
commences from the discovery thereof, and not on the date of its actual
commission.
In the 199915 and 201116 cases of Presidential Ad Hoc Fact-Finding
Committee on Behest Loans v. Desierto, the Court, in said separate instances,
reversed the ruling of the Ombudsman that the prescriptive period therein
began to run at the time the behest loans were transacted and instead, it should
be counted from the dateof the discovery thereof.
In the 1999 case, We recognized the impossibility for the State, the aggrieved
party, to haveknown the violation of RA 3019 at the time the questioned
transactions were made inview of the fact that the public officials concerned
connived or conspired with the "beneficiaries of the loans." There, We
agreedwith the contention of the Presidential Ad Hoc Fact-Finding
Committee that the prescriptive period should be computed from the
discovery of the commission thereof and not from the day of such
commission. It was also in the same case where We clarified that the phrase
"if the same be not known" in Section 2 of Act No. 3326 does not mean "lack
of knowledge" but that the crime "is not reasonably knowable" is
unacceptable. Furthermore, in this1999 case, We intimated that the
determination of the date ofthe discovery of the offense is a question of fact
which necessitates the reception of evidence for its determination.
Similarly, in the 2011 Desiertocase, We ruled that the "blameless ignorance"
doctrine applies considering that the plaintiff therein had no reasonable
means of knowing the existence of a cause of action.17 In this particular
instance, We pinned the running of the prescriptive period to the completion
156
by the Presidential Ad Hoc Fact-Finding Committee of an exhaustive
investigation on the loans. We elucidated that the first mode under Section 2
of Act No. 3326 would not apply since during the Marcos regime, no person
would have dared to question the legality of these transactions.18
Prior to the 2011 Desierto case came Our 2006 Resolution19 in Romualdez
v. Marcelo,20 which involved a violation of Section 7 of RA 3019. In
resolving the issue of whether or not the offenses charged in the said cases
have already prescribed, We applied the same principle enunciated in
Duque21 and ruled that the prescriptive period for the offenses therein
committed began to run from the discovery thereof on the day former
Solicitor General Francisco I. Chavez filed the complaint with the PCGG.
This was reiterated in Disini v. Sandiganbayan22 where We counted the
running of the prescriptive period insaid case from the date of discovery of
the violation after the PCGG’s exhaustive investigation despite the highly
publicized and well-known nature of the Philippine Nuclear Power Plant
Project therein involved, recognizing the fact that the discovery of the crime
necessitated the prior exhaustive investigation and completion thereof by the
PCGG.
In Republic v. Cojuangco, Jr.,23 however, We held that not all violations of
RA 3019 require the application of the second mode for computing the
prescription of the offense.1avvphi1 There, this Court held that the second
element for the second mode to apply, i.e. that the action could not have been
instituted during the prescriptive period because of martial law, is absent.
This is so since information about the questioned investment therein was not
suppressed from the discerning eye of the public nor has the Office of the
Solicitor General made any allegation to that effect. This Court likewise
faulted therein petitioner for having remained dormant during the remainder
of the period of prescription despite knowing ofthe investment for a
sufficiently long period of time.
An evaluation of the foregoing jurisprudence24 on the matter reveals the
following guidelines in the determination of the reckoning point for the
period of prescription of violations of RA 3019, viz:
1. As a general rule, prescription begins to run from the date of the
commission of the offense.
2. If the date of the commission of the violation is not known, it shall be
counted form the dateof discovery thereof.1âwphi1
3. In determining whether it is the general rule or the exception that should
apply in a particular case, the availability or suppression of the information
relative to the crime should first be determined.
If the necessary information, data, or records based on which the crime could
be discovered is readily available to the public, the general rule applies.
Prescription shall, therefore, run from the date of the commission of the
crime.
Otherwise, should martial law prevent the filing thereof or should information
about the violation be suppressed, possibly through connivance, then the
exception applies and the period of prescription shall be reckoned from the
date of discovery thereof.
In the case at bar, involving as it does the grant of behest loans which We
have recognized as a violation that, by their nature, could be concealed from
the public eye by the simple expedient of suppressing their documentation,25
the second mode applies. We, therefore, count the running of the prescriptive
period from the dateof discovery thereof on January 4, 1993, when the
Presidential Ad Hoc Fact-Finding Committee reported to the President its
findings and conclusions anent RHC’s loans. This being the case, the filing
by the PCGG of its Affidavit-Complaint before the Office of the Ombudsman
on January 6,2003, a little over ten (10) years from the date of discovery of
the crimes, is clearly belated. Undoubtedly, the ten-year period within which
to institute the action has already lapsed, making it proper for the
Ombudsman to dismiss petitioner’s complaint on the ground of prescription.
Simply put, and as correctly held by the Ombudsman, prescription has
already set in when petitioner PCGG filed the Affidavit-Complaint on
January 6, 2003.
WHEREFORE, the instant petition is hereby DISMISSED. The Orders dated
July 19, 2011 and March 8, 2012 rendered by the Office of the Ombudsman
in OMB-C-C-03-0008-A, entitled Presidential Commission on Good
Government (PCGG) v. Rodolfo Cuenca, et al., a:e hereby AFFIRMED.
157
G.R. No. L-30061 February 27, 1974
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellees,
vs.
JOSE JABINAL Y CARMEN, defendant-appellant.
Office of the Solicitor General Felix V. Makasiar and Solicitor Antonio M.
Martinez for plaintiff-appellee.
Pedro Panganiban y Tolentino for defendant-appellant.
ANTONIO, J.:p
Appeal from the judgment of the Municipal Court of Batangas (provincial
capital), Batangas, in Criminal Case No. 889, finding the accused guilty of
the crime of Illegal Possession of Firearm and Ammunition and sentencing
him to suffer an indeterminate penalty ranging from one (1) year and one (1)
day to two (2) years imprisonment, with the accessories provided by law,
which raises in issue the validity of his conviction based on a retroactive
application of Our ruling in People v. Mapa.1
The complaint filed against the accused reads:
That on or about 9:00 o'clock, p.m., the 5th day of September, 1964, in the
poblacion, Municipality of Batangas, Province of Batangas, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, a
person not authorized by law, did then and there wilfully, unlawfully and
feloniously keep in his possession, custody and direct control a revolver Cal.
.22, RG8 German Made with one (1) live ammunition and four (4) empty
shells without first securing the necessary permit or license to possess the
same.
At the arraignment on September 11, 1964, the accused entered a plea of not
guilty, after which trial was accordingly held.
The accused admitted that on September 5, 1964, he was in possession of the
revolver and the ammunition described in the complaint, without the requisite
license or permit. He, however, claimed to be entitled to exoneration because,
although he had no license or permit, he had an appointment as Secret Agent
from the Provincial Governor of Batangas and an appointment as
Confidential Agent from the PC Provincial Commander, and the said
appointments expressly carried with them the authority to possess and carry
the firearm in question.
Indeed, the accused had appointments from the above-mentioned officials as
claimed by him. His appointment from Governor Feliciano Leviste, dated
December 10, 1962, reads:
Reposing special trust and confidence in your civic spirit, and trusting that
you will be an effective agent in the detection of crimes and in the
preservation of peace and order in the province of Batangas, especially with
respect to the suppression of trafficking in explosives, jueteng, illegal
cockfighting, cattle rustling, robbery and the detection of unlicensed firearms,
you are hereby appointed a SECRET AGENT of the undersigned, the
appointment to take effect immediately, or as soon as you have qualified for
the position. As such Secret Agent, your duties shall be those generally of a
peace officer and particularly to help in the preservation of peace and order
in this province and to make reports thereon to me once or twice a month. It
should be clearly understood that any abuse of authority on your part shall be
considered sufficient ground for the automatic cancellation of your
appointment and immediate separation from the service. In accordance with
the decision of the Supreme Court in G.R. No. L-12088 dated December 23,
1959, you will have the right to bear a firearm, particularly described below,
for use in connection with the performance of your duties.
By virtue hereof, you may qualify and enter upon the performance of your
duties by taking your oath of office and filing the original thereof with us.
Very truly yours,
(Sgd.) FELICIANO LEVISTE
Provincial Governor
FIREARM AUTHORIZED TO CARRY:
Kind: — ROHM-Revolver
Make: — German
158
SN: — 64
Cal:— .22
On March 15, 1964, the accused was also appointed by the PC Provincial
Commander of Batangas as Confidential Agent with duties to furnish
information regarding smuggling activities, wanted persons, loose firearms,
subversives and other similar subjects that might affect the peace and order
condition in Batangas province, and in connection with these duties he was
temporarily authorized to possess a ROHM revolver, Cal. .22 RG-8 SN-64,
for his personal protection while in the performance of his duties.
The accused contended before the court a quo that in view of his above-
mentioned appointments as Secret Agent and Confidential Agent, with
authority to possess the firearm subject matter of the prosecution, he was
entitled to acquittal on the basis of the Supreme Court's decision in People
vs. Macarandang2 and People vs. Lucero.3 The trial court, while conceding
on the basis of the evidence of record the accused had really been appointed
Secret Agent and Confidential Agent by the Provincial Governor and the PC
Provincial Commander of Batangas, respectively, with authority to possess
and carry the firearm described in the complaint, nevertheless held the
accused in its decision dated December 27, 1968, criminally liable for illegal
possession of a firearm and ammunition on the ground that the rulings of the
Supreme Court in the cases of Macarandang and Lucero were reversed and
abandoned in People vs. Mapa, supra. The court considered as mitigating
circumstances the appointments of the accused as Secret Agent and
Confidential Agent.
Let us advert to Our decisions in People v. Macarandang, supra, People v.
Lucero, supra, and People v. Mapa, supra. In Macarandang, We reversed the
trial court's judgment of conviction against the accused because it was shown
that at the time he was found to possess a certain firearm and ammunition
without license or permit, he had an appointment from the Provincial
Governor as Secret Agent to assist in the maintenance of peace and order and
in the detection of crimes, with authority to hold and carry the said firearm
and ammunition. We therefore held that while it is true that the Governor has
no authority to issue any firearm license or permit, nevertheless, section 879
of the Revised Administrative Code provides that "peace officers" are
exempted from the requirements relating to the issuance of license to possess
firearms; and Macarandang's appointment as Secret Agent to assist in the
maintenance of peace and order and detection of crimes, sufficiently placed
him in the category of a "peace officer" equivalent even to a member of the
municipal police who under section 879 of the Revised Administrative Code
are exempted from the requirements relating to the issuance of license to
possess firearms. In Lucero, We held that under the circumstances of the case,
the granting of the temporary use of the firearm to the accused was a
necessary means to carry out the lawful purpose of the batallion commander
to effect the capture of a Huk leader. In Mapa, expressly abandoning the
doctrine in Macarandang, and by implication, that in Lucero, We sustained
the judgment of conviction on the following ground:
The law is explicit that except as thereafter specifically allowed, "it shall be
unlawful for any person to ... possess any firearm, detached parts of firearms
or ammunition therefor, or any instrument or implement used or intended to
be used in the manufacture of firearms, parts of firearms, or ammunition."
(Sec. 878, as amended by Republic Act No. 4, Revised Administrative Code.)
The next section provides that "firearms and ammunition regularly and
lawfully issued to officers, soldiers, sailors, or marines [of the Armed Forces
of the Philippines], the Philippine Constabulary, guards in the employment
of the Bureau of Prisons, municipal police, provincial governors, lieutenant
governors, provincial treasurers, municipal treasurers, municipal mayors, and
guards of provincial prisoners and jails," are not covered "when such firearms
are in possession of such officials and public servants for use in the
performance of their official duties." (Sec. 879, Revised Administrative
Code.)
The law cannot be any clearer. No provision is made for a secret agent. As
such he is not exempt. ... .
It will be noted that when appellant was appointed Secret Agent by the
Provincial Government in 1962, and Confidential Agent by the Provincial
Commander in 1964, the prevailing doctrine on the matter was that laid down
by Us in People v. Macarandang (1959) and People v. Lucero (1958). Our
decision in People v. Mapa reversing the aforesaid doctrine came only in
1967. The sole question in this appeal is: Should appellant be acquitted on
the basis of Our rulings in Macarandang and Lucero, or should his conviction
stand in view of the complete reversal of the Macarandang and Lucero
doctrine in Mapa? The Solicitor General is of the first view, and he
accordingly recommends reversal of the appealed judgment.
159
Decisions of this Court, although in themselves not laws, are nevertheless
evidence of what the laws mean, and this is the reason why under Article 8
of the New Civil Code "Judicial decisions applying or interpreting the laws
or the Constitution shall form a part of the legal system ... ." The interpretation
upon a law by this Court constitutes, in a way, a part of the law as of the date
that law originally passed, since this Court's construction merely establishes
the contemporaneous legislative intent that law thus construed intends to
effectuate. The settled rule supported by numerous authorities is a restatement
of legal maxim "legis interpretatio legis vim obtinet" — the interpretation
placed upon the written law by a competent court has the force of law. The
doctrine laid down in Lucero and Macarandang was part of the jurisprudence,
hence of the law, of the land, at the time appellant was found in possession
of the firearm in question and when he arraigned by the trial court. It is true
that the doctrine was overruled in the Mapa case in 1967, but when a doctrine
of this Court is overruled and a different view is adopted, the new doctrine
should be applied prospectively, and should not apply to parties who had
relied on the old doctrine and acted on the faith thereof. This is especially true
in the construction and application of criminal laws, where it is necessary that
the punishability of an act be reasonably foreseen for the guidance of society.

It follows, therefore, that considering that appellant conferred his

appointments as Secret Agent and Confidential Agent and authorized to
possess a firearm pursuant to the prevailing doctrine enunciated in
Macarandang and Lucero, under which no criminal liability would attach to
his possession of said firearm in spite of the absence of a license and permit
therefor, appellant must be absolved. Certainly, appellant may not be
punished for an act which at the time it was done was held not to be
punishable.

WHEREFORE, the judgment appealed from is hereby reversed, and

appellant is acquitted, with costs de oficio.

160
G.R. No. 181704 December 6, 2011
BUREAU OF CUSTOMS EMPLOYEES ASSOCIATION (BOCEA),
represented by its National President (BOCEA National Executive Council)
Mr. Romulo A. Pagulayan, Petitioner,
vs.
HON. MARGARITO B. TEVES, in his capacity as Secretary of the
Department of Finance, HON. NAPOLEON L. MORALES, in his capacity
as Commissioner of the Bureau of Customs, HON. LILIAN B. HEFTI, in her
capacity as Commissioner of the Bureau of Internal Revenue, Respondents.
DECISION
VILLARAMA, JR., J.:
Before this Court is a petition1 for certiorari and prohibition with prayer for
injunctive relief/s under Rule 65 of the 1997 Rules of Civil Procedure, as
amended, to declare Republic Act (R.A.) No. 9335,2 otherwise known as the
Attrition Act of 2005, and its Implementing Rules and Regulations3 (IRR)
unconstitutional, and the implementation thereof be enjoined permanently.
The Facts
On January 25, 2005, former President Gloria Macapagal-Arroyo signed into
law R.A. No. 9335 which took effect on February 11, 2005.
In Abakada Guro Party List v. Purisima4 (Abakada), we said of R.A. No.
9335:
RA [No.] 9335 was enacted to optimize the revenue-generation capability
and collection of the Bureau of Internal Revenue (BIR) and the Bureau of
Customs (BOC). The law intends to encourage BIR and BOC officials and
employees to exceed their revenue targets by providing a system of rewards
and sanctions through the creation of a Rewards and Incentives Fund (Fund)
and a Revenue Performance Evaluation Board (Board). It covers all officials
and employees of the BIR and the BOC with at least six months of service,
regardless of employment status.
The Fund is sourced from the collection of the BIR and the BOC in excess of
their revenue targets for the year, as determined by the Development Budget
and Coordinating Committee (DBCC). Any incentive or reward is taken from
the fund and allocated to the BIR and the BOC in proportion to their
contribution in the excess collection of the targeted amount of tax revenue.
The Boards in the BIR and the BOC are composed of the Secretary of the
Department of Finance (DOF) or his/her Undersecretary, the Secretary of the
Department of Budget and Management (DBM) or his/her Undersecretary,
the Director General of the National Economic Development Authority
(NEDA) or his/her Deputy Director General, the Commissioners of the BIR
and the BOC or their Deputy Commissioners, two representatives from the
rank-and-file employees and a representative from the officials nominated by
their recognized organization.
Each Board has the duty to (1) prescribe the rules and guidelines for the
allocation, distribution and release of the Fund; (2) set criteria and procedures
for removing from the service officials and employees whose revenue
collection falls short of the target; (3) terminate personnel in accordance with
the criteria adopted by the Board; (4) prescribe a system for performance
evaluation; (5) perform other functions, including the issuance of rules and
regulations and (6) submit an annual report to Congress.
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission
(CSC) were tasked to promulgate and issue the implementing rules and
regulations of RA [No.] 9335, to be approved by a Joint Congressional
Oversight Committee created for such purpose.5
The Joint Congressional Oversight Committee approved the assailed IRR on
May 22, 2006. Subsequently, the IRR was published on May 30, 2006 in two
newspapers of general circulation, the Philippine Star and the Manila
Standard, and became effective fifteen (15) days later.6
Contending that the enactment and implementation of R.A. No. 9335 are
tainted with constitutional infirmities in violation of the fundamental rights
of its members, petitioner Bureau of Customs Employees Association
(BOCEA), an association of rank-and-file employees of the Bureau of
Customs (BOC), duly registered with the Department of Labor and
Employment (DOLE) and the Civil Service Commission (CSC), and
represented by its National President, Mr. Romulo A. Pagulayan (Pagulayan),
directly filed the present petition before this Court against respondents
Margarito B. Teves, in his capacity as Secretary of the Department of Finance
161
(DOF), Commissioner Napoleon L. Morales (Commissioner Morales), in his
capacity as BOC Commissioner, and Lilian B. Hefti, in her capacity as
Commissioner of the Bureau of Internal Revenue (BIR). In its petition,
BOCEA made the following averments:
Sometime in 2008, high-ranking officials of the BOC pursuant to the mandate
of R.A. No. 9335 and its IRR, and in order to comply with the stringent
deadlines thereof, started to disseminate Collection District Performance
Contracts7 (Performance Contracts) for the lower ranking officials and rank-
and-file employees to sign. The Performance Contract pertinently provided:
xxxx
WHEREAS, pursuant to the provisions of Sec. 25 (b) of the Implementing
Rules and Regulations (IRR) of the Attrition Act of 2005, that provides for
the setting of criteria and procedures for removing from the service Officials
and Employees whose revenue collection fall short of the target in accordance
with Section 7 of Republic Act 9335.
xxxx
NOW, THEREFORE, for and in consideration of the foregoing premises,
parties unto this Agreement hereby agree and so agreed to perform the
following:
xxxx
2. The "Section 2, PA/PE" hereby accepts the allocated Revenue Collection
Target and further accepts/commits to meet the said target under the
following conditions:
a.) That he/she will meet the allocated Revenue Collection Target and thereby
undertakes and binds himself/herself that in the event the revenue collection
falls short of the target with due consideration of all relevant factors affecting
the level of collection as provided in the rules and regulations promulgated
under the Act and its IRR, he/she will voluntarily submit to the provisions of
Sec. 25 (b) of the IRR and Sec. 7 of the Act; and
b.) That he/she will cascade and/or allocate to respective
Appraisers/Examiners or Employees under his/her section the said Revenue
Collection Target and require them to execute a Performance Contract, and
direct them to accept their individual target. The Performance Contract
executed by the respective Examiners/Appraisers/Employees shall be
submitted to the Office of the Commissioner through the LAIC on or before
March 31, 2008.
x x x x8
BOCEA opined that the revenue target was impossible to meet due to the
Government’s own policies on reduced tariff rates and tax breaks to big
businesses, the occurrence of natural calamities and because of other
economic factors. BOCEA claimed that some BOC employees were coerced
and forced to sign the Performance Contract. The majority of them, however,
did not sign. In particular, officers of BOCEA were summoned and required
to sign the Performance Contracts but they also refused. To ease the brewing
tension, BOCEA claimed that its officers sent letters, and sought several
dialogues with BOC officials but the latter refused to heed them.
In addition, BOCEA alleged that Commissioner Morales exerted heavy
pressure on the District Collectors, Chiefs of Formal Entry Divisions,
Principal Customs Appraisers and Principal Customs Examiners of the BOC
during command conferences to make them sign their Performance
Contracts. Likewise, BOC Deputy Commissioner Reynaldo Umali (Deputy
Commissioner Umali) individually spoke to said personnel to convince them
to sign said contracts. Said personnel were threatened that if they do not sign
their respective Performance Contracts, they would face possible
reassignment, reshuffling, or worse, be placed on floating status. Thus, all the
District Collectors, except a certain Atty. Carlos So of the Collection District
III of the Ninoy Aquino International Airport (NAIA), signed the
Performance Contracts.
BOCEA further claimed that Pagulayan was constantly harassed and
threatened with lawsuits. Pagulayan approached Deputy Commissioner
Umali to ask the BOC officials to stop all forms of harassment, but the latter
merely said that he would look into the matter. On February 5, 2008, BOCEA
through counsel wrote the Revenue Performance Evaluation Board (Board)
to desist from implementing R.A. No. 9335 and its IRR and from requiring
rank-and-file employees of the BOC and BIR to sign Performance
Contracts.9 In his letter-reply10 dated February 12, 2008, Deputy
Commissioner Umali denied having coerced any BOC employee to sign a
162
Performance Contract. He also defended the BOC, invoking its mandate of
merely implementing the law. Finally, Pagulayan and BOCEA’s counsel, on
separate occasions, requested for a certified true copy of the Performance
Contract from Deputy Commissioner Umali but the latter failed to furnish
them a copy.11
This petition was filed directly with this Court on March 3, 2008. BOCEA
asserted that in view of the unconstitutionality of R.A. No. 9335 and its IRR,
and their adverse effects on the constitutional rights of BOC officials and
employees, direct resort to this Court is justified. BOCEA argued, among
others, that its members and other BOC employees are in great danger of
losing their jobs should they fail to meet the required quota provided under
the law, in clear violation of their constitutional right to security of tenure,
and at their and their respective families’ prejudice.
In their Comment,12 respondents, through the Office of the Solicitor General
(OSG), countered that R.A. No. 9335 and its IRR do not violate the right to
due process and right to security of tenure of BIR and BOC employees. The
OSG stressed that the guarantee of security of tenure under the 1987
Constitution is not a guarantee of perpetual employment. R.A. No. 9335 and
its IRR provided a reasonable and valid ground for the dismissal of an
employee which is germane to the purpose of the law. Likewise, R.A. No.
9335 and its IRR provided that an employee may only be separated from the
service upon compliance with substantive and procedural due process. The
OSG added that R.A. No. 9335 and its IRR must enjoy the presumption of
constitutionality.
In its Reply,13 BOCEA claimed that R.A. No. 9335 employs means that are
unreasonable to achieve its stated objectives; that the law is unduly
oppressive of BIR and BOC employees as it shifts the extreme burden upon
their shoulders when the Government itself has adopted measures that make
collection difficult such as reduced tariff rates to almost zero percent and tax
exemption of big businesses; and that the law is discriminatory of BIR and
BOC employees. BOCEA manifested that only the high-ranking officials of
the BOC benefited largely from the reward system under R.A. No. 9335
despite the fact that they were not the ones directly toiling to collect revenue.
Moreover, despite the BOCEA’s numerous requests,14 BOC continually
refused to provide BOCEA the Expenditure Plan on how such reward was
distributed.
Since BOCEA was seeking similar reliefs as that of the petitioners in
Abakada Guro Party List v. Purisima, BOCEA filed a Motion to
Consolidate15 the present case with Abakada on April 16, 2008. However,
pending action on said motion, the Court rendered its decision in Abakada on
August 14, 2008. Thus, the consolidation of this case with Abakada was
rendered no longer possible.16
In Abakada, this Court, through then Associate Justice, now Chief Justice
Renato C. Corona, declared Section 1217 of R.A. No. 9335 creating a Joint
Congressional Oversight Committee to approve the IRR as unconstitutional
and violative of the principle of separation of powers. However, the
constitutionality of the remaining provisions of R.A. No. 9335 was upheld
pursuant to Section 1318 of R.A. No. 9335. The Court also held that until the
contrary is shown, the IRR of R.A. No. 9335 is presumed valid and effective
even without the approval of the Joint Congressional Oversight
Committee.19
Notwithstanding our ruling in Abakada, both parties complied with our
Resolution20 dated February 10, 2009, requiring them to submit their
respective Memoranda.
The Issues
BOCEA raises the following issues:
I.
WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT [NO.]
9335, AND ITS IMPLEMENTING RULES AND REGULATIONS ARE
UNCONSTITUTIONAL AS THESE VIOLATE THE RIGHT TO DUE
PROCESS OF THE COVERED BIR AND BOC OFFICIALS AND
EMPLOYEES[;]
II.
WHETHER OR NOT THE ATTRITION LAW, REPUBLIC ACT [NO.]
9335, AND ITS IMPLEMENTING RULES AND REGULATIONS ARE
UNCONSTITUTIONAL AS THESE VIOLATE THE RIGHT OF BIR AND
BOC OFFICIALS AND EMPLOYEES TO THE EQUAL PROTECTION
OF THE LAWS[;]
163

III.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS
IMPLEMENTING RULES AND REGULATIONS VIOLATE THE RIGHT
TO SECURITY OF TENURE OF BIR AND BOC OFFICIALS AND
EMPLOYEES AS ENSHRINED UNDER SECTION 2 (3), ARTICLE IX
(B) OF THE CONSTITUTION[;]
IV.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 AND ITS
IMPLEMENTING RULES AND REGULATIONS ARE
UNCONSTITUTIONAL AS THEY CONSTITUTE UNDUE
DELEGATION OF LEGISLATIVE POWERS TO THE REVENUE
PERFORMANCE EVALUATION BOARD IN VIOLATION OF THE
PRINCIPLE OF SEPARATION OF POWERS ENSHRINED IN THE
CONSTITUTION[; AND]
V.
WHETHER OR NOT REPUBLIC ACT [NO.] 9335 IS A BILL OF
ATTAINDER AND HENCE[,] UNCONSTITUTIONAL BECAUSE IT
INFLICTS PUNISHMENT THROUGH LEGISLATIVE FIAT UPON A
PARTICULAR GROUP OR CLASS OF OFFICIALS AND EMPLOYEES
WITHOUT TRIAL.21
BOCEA manifested that while waiting for the Court to give due course to its
petition, events unfolded showing the patent unconstitutionality of R.A. No.
9335. It narrated that during the first year of the implementation of R.A. No.
9335, BOC employees exerted commendable efforts to attain their revenue
target of ₱196 billion which they surpassed by as much as ₱2 billion for that
year alone. However, this was attained only because oil companies made
advance tax payments to BOC. Moreover, BOC employees were given their
"reward" for surpassing said target only in 2008, the distribution of which
they described as unjust, unfair, dubious and fraudulent because only top
officials of BOC got the huge sum of reward while the employees, who did
the hard task of collecting, received a mere pittance of around ₱8,500.00. In
the same manner, the Bonds Division of BOC-NAIA collected 400+% of its
designated target but the higher management gave out to the employees a
measly sum of ₱8,500.00 while the top level officials partook of millions of
the excess collections. BOCEA relies on a piece of information revealed by
a newspaper showing the list of BOC officials who apparently earned huge
amounts of money by way of reward.22 It claims that the recipients thereof
included lawyers, support personnel and other employees, including a dentist,
who performed no collection functions at all. These alleged anomalous
selection, distribution and allocation of rewards was due to the failure of R.A.
No. 9335 to set out clear guidelines.23
In addition, BOCEA avers that the Board initiated the first few cases of
attrition for the Fiscal Year 2007 by subjecting five BOC officials from the
Port of Manila to attrition despite the fact that the Port of Manila substantially
complied with the provisions of R.A. No. 9335. It is thus submitted that the
selection of these officials for attrition without proper investigation was
nothing less than arbitrary. Further, the legislative and executive
departments’ promulgation of issuances and the Government’s accession to
regional trade agreements have caused a significant diminution of the tariff
rates, thus, decreasing over-all collection. These unrealistic settings of
revenue targets seriously affect BIR and BOC employees tasked with the
burden of collection, and worse, subjected them to attrition.24
BOCEA assails the constitutionality of R.A. No. 9335 and its IRR on the
following grounds:
1. R.A. No. 9335 and its IRR violate the BIR and BOC employees’ right to
due process because the termination of employees who had not attained their
revenue targets for the year is peremptory and done without any form of
hearing to allow said employees to ventilate their side. Moreover, R.A. No.
9335 and its IRR do not comply with the requirements under CSC rules and
regulations as the dismissal in this case is immediately executory. Such
immediately executory nature of the Board’s decision negates the remedies
available to an employee as provided under the CSC rules.
2. R.A. No. 9335 and its IRR violate the BIR and BOC employees’ right to
equal protection of the law because R.A. No. 9335 and its IRR unduly
discriminates against BIR and BOC employees as compared to employees of
other revenue generating government agencies like the Philippine
Amusement and Gaming Corporation, Department of Transportation and
Communication, the Air Transportation Office, the Land Transportation
164
Office, and the Philippine Charity Sweepstakes Office, among others, which
are not subject to attrition.
3. R.A. No. 9335 and its IRR violate the BIR and BOC employees’ right to
security of tenure because R.A. No. 9335 and its IRR effectively removed
remedies provided in the ordinary course of administrative procedure
afforded to government employees. The law likewise created another ground
for dismissal, i.e., non-attainment of revenue collection target, which is not
provided under CSC rules and which is, by its nature, unpredictable and
therefore arbitrary and unreasonable.
4. R.A. No. 9335 and its IRR violate the 1987 Constitution because Congress
granted to the Revenue Performance Evaluation Board (Board) the unbridled
discretion of formulating the criteria for termination, the manner of allocating
targets, the distribution of rewards and the determination of relevant factors
affecting the targets of collection, which is tantamount to undue delegation
of legislative power.
5. R.A. No. 9335 is a bill of attainder because it inflicts punishment upon a
particular group or class of officials and employees without trial. This is
evident from the fact that the law confers upon the Board the power to impose
the penalty of removal upon employees who do not meet their revenue
targets; that the same is without the benefit of hearing; and that the removal
from service is immediately executory. Lastly, it disregards the presumption
of regularity in the performance of the official functions of a public officer.25
On the other hand, respondents through the OSG stress that except for Section
12 of R.A. No. 9335, R.A. No. 9335 and its IRR are constitutional, as per our
ruling in Abakada. Nevertheless, the OSG argues that the classification of
BIR and BOC employees as public officers under R.A. No. 9335 is based on
a valid and substantial distinction since the revenue generated by the BIR and
BOC is essentially in the form of taxes, which is the lifeblood of the State,
while the revenue produced by other agencies is merely incidental or
secondary to their governmental functions; that in view of their mandate, and
for purposes of tax collection, the BIR and BOC are sui generis; that R.A.
No. 9335 complies with the "completeness" and "sufficient standard" tests
for the permissive delegation of legislative power to the Board; that the Board
exercises its delegated power consistent with the policy laid down in the law,
that is, to optimize the revenue generation capability and collection of the
BIR and the BOC; that parameters were set in order that the Board may
identify the officials and employees subject to attrition, and the proper
procedure for their removal in case they fail to meet the targets set in the
Performance Contract were provided; and that the rights of BIR and BOC
employees to due process of law and security of tenure are duly accorded by
R.A. No. 9335. The OSG likewise maintains that there was no encroachment
of judicial power in the enactment of R.A. No. 9335 amounting to a bill of
attainder since R.A. No. 9335 and its IRR merely defined the offense and
provided for the penalty that may be imposed. Finally, the OSG reiterates that
the separation from the service of any BIR or BOC employee under R.A. No.
9335 and its IRR shall be done only upon due consideration of all relevant
factors affecting the level of collection, subject to Civil Service laws, rules
and regulations, and in compliance with substantive and procedural due
process. The OSG opines that the Performance Contract, far from violating
the BIR and BOC employees’ right to due process, actually serves as a notice
of the revenue target they have to meet and the possible consequences of
failing to meet the same. More, there is nothing in the law which prevents the
aggrieved party from appealing the unfavorable decision of dismissal.26
In essence, the issues for our resolution are:
1. Whether there is undue delegation of legislative power to the Board;
2. Whether R.A. No. 9335 and its IRR violate the rights of BOCEA’s
members to: (a) equal protection of laws, (b) security of tenure and (c) due
process; and
3. Whether R.A. No. 9335 is a bill of attainder.
Our Ruling
Prefatorily, we note that it is clear, and in fact uncontroverted, that BOCEA
has locus standi. BOCEA impugns the constitutionality of R.A. No. 9335 and
its IRR because its members, who are rank-and-file employees of the BOC,
are actually covered by the law and its IRR. BOCEA’s members have a
personal and substantial interest in the case, such that they have sustained or
will sustain, direct injury as a result of the enforcement of R.A. No. 9335 and
its IRR.27
However, we find no merit in the petition and perforce dismiss the same.
165
It must be noted that this is not the first time the constitutionality of R.A. No.
9335 and its IRR are being challenged. The Court already settled the majority
of the same issues raised by BOCEA in our decision in Abakada, which
attained finality on September 17, 2008. As such, our ruling therein is worthy
of reiteration in this case.
We resolve the first issue in the negative.
The principle of separation of powers ordains that each of the three great
branches of government has exclusive cognizance of and is supreme in
matters falling within its own constitutionally allocated sphere.28
Necessarily imbedded in this doctrine is the principle of non-delegation of
powers, as expressed in the Latin maxim potestas delegata non delegari
potest, which means "what has been delegated, cannot be delegated." This
doctrine is based on the ethical principle that such delegated power
constitutes not only a right but a duty to be performed by the delegate through
the instrumentality of his own judgment and not through the intervening mind
of another.29 However, this principle of non-delegation of powers admits of
numerous exceptions,30 one of which is the delegation of legislative power
to various specialized administrative agencies like the Board in this case.
The rationale for the aforementioned exception was clearly explained in our
ruling in Gerochi v. Department of Energy,31 to wit:
In the face of the increasing complexity of modern life, delegation of
legislative power to various specialized administrative agencies is allowed as
an exception to this principle. Given the volume and variety of interactions
in today’s society, it is doubtful if the legislature can promulgate laws that
will deal adequately with and respond promptly to the minutiae of everyday
life. Hence, the need to delegate to administrative bodies — the principal
agencies tasked to execute laws in their specialized fields — the authority to
promulgate rules and regulations to implement a given statute and effectuate
its policies. All that is required for the valid exercise of this power of
subordinate legislation is that the regulation be germane to the objects and
purposes of the law and that the regulation be not in contradiction to, but in
conformity with, the standards prescribed by the law. These requirements are
denominated as the completeness test and the sufficient standard test.32
Thus, in Abakada, we held,
Two tests determine the validity of delegation of legislative power: (1) the
completeness test and (2) the sufficient standard test. A law is complete when
it sets forth therein the policy to be executed, carried out or implemented by
the delegate. It lays down a sufficient standard when it provides adequate
guidelines or limitations in the law to map out the boundaries of the delegate’s
authority and prevent the delegation from running riot. To be sufficient, the
standard must specify the limits of the delegate’s authority, announce the
legislative policy and identify the conditions under which it is to be
implemented.
RA [No.] 9335 adequately states the policy and standards to guide the
President in fixing revenue targets and the implementing agencies in carrying
out the provisions of the law. Section 2 spells out the policy of the law:
"SEC. 2. Declaration of Policy. — It is the policy of the State to optimize the
revenue-generation capability and collection of the Bureau of Internal
Revenue (BIR) and the Bureau of Customs (BOC) by providing for a system
of rewards and sanctions through the creation of a Rewards and Incentives
Fund and a Revenue Performance Evaluation Board in the above agencies for
the purpose of encouraging their officials and employees to exceed their
revenue targets."
Section 4 "canalized within banks that keep it from overflowing" the
delegated power to the President to fix revenue targets:
"SEC. 4. Rewards and Incentives Fund. — A Rewards and Incentives Fund,
hereinafter referred to as the Fund, is hereby created, to be sourced from the
collection of the BIR and the BOC in excess of their respective revenue
targets of the year, as determined by the Development Budget and
Coordinating Committee (DBCC), in the following percentages:
Excess of Collection [Over] the Revenue Targets Percent (%)
of the Excess Collection to Accrue to the Fund
30% or below — 15%
More than 30% — 15% of the first 30% plus 20% of the remaining
excess
The Fund shall be deemed automatically appropriated the year immediately
following the year when the revenue collection target was exceeded and shall
be released on the same fiscal year.
166
Revenue targets shall refer to the original estimated revenue collection
expected of the BIR and the BOC for a given fiscal year as stated in the
Budget of Expenditures and Sources of Financing (BESF) submitted by the
President to Congress. The BIR and the BOC shall submit to the DBCC the
distribution of the agencies’ revenue targets as allocated among its revenue
districts in the case of the BIR, and the collection districts in the case of the
BOC.
xxx xxx x x x"
Revenue targets are based on the original estimated revenue collection
expected respectively of the BIR and the BOC for a given fiscal year as
approved by the DBCC and stated in the BESF submitted by the President to
Congress. Thus, the determination of revenue targets does not rest solely on
the President as it also undergoes the scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Board’s authority and
identifies the conditions under which officials and employees whose revenue
collection falls short of the target by at least 7.5% may be removed from the
service:
"SEC. 7. Powers and Functions of the Board. — The Board in the agency
shall have the following powers and functions:
xxx xxx xxx
(b) To set the criteria and procedures for removing from service officials and
employees whose revenue collection falls short of the target by at least seven
and a half percent (7.5%), with due consideration of all relevant factors
affecting the level of collection as provided in the rules and regulations
promulgated under this Act, subject to civil service laws, rules and
regulations and compliance with substantive and procedural due process:
Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not exceeding
two years in operation, and has no historical record of collection performance
that can be used as basis for evaluation; and
2. Where the revenue or customs official or employee is a recent transferee
in the middle of the period under consideration unless the transfer was due to
nonperformance of revenue targets or potential nonperformance of revenue
targets: Provided, however, That when the district or area of responsibility
covered by revenue or customs officials or employees has suffered from
economic difficulties brought about by natural calamities or force majeure or
economic causes as may be determined by the Board, termination shall be
considered only after careful and proper review by the Board.
(c) To terminate personnel in accordance with the criteria adopted in the
preceding paragraph: Provided, That such decision shall be immediately
executory: Provided, further, That the application of the criteria for the
separation of an official or employee from service under this Act shall be
without prejudice to the application of other relevant laws on accountability
of public officers and employees, such as the Code of Conduct and Ethical
Standards of Public Officers and Employees and the Anti-Graft and Corrupt
Practices Act;
xxx xxx x x x"
At any rate, this Court has recognized the following as sufficient standards:
"public interest", "justice and equity", "public convenience and welfare" and
"simplicity, economy and welfare". In this case, the declared policy of
optimization of the revenue-generation capability and collection of the BIR
and the BOC is infused with public interest.33
We could not but deduce that the completeness test and the sufficient standard
test were fully satisfied by R.A. No. 9335, as evident from the
aforementioned Sections 2, 4 and 7 thereof. Moreover, Section 534 of R.A.
No. 9335 also provides for the incentives due to District Collection Offices.
While it is apparent that the last paragraph of Section 5 provides that "[t]he
allocation, distribution and release of the district reward shall likewise be
prescribed by the rules and regulations of the Revenue Performance and
Evaluation Board," Section 7 (a)35 of R.A. No. 9335 clearly mandates and
sets the parameters for the Board by providing that such rules and guidelines
for the allocation, distribution and release of the fund shall be in accordance
with Sections 4 and 5 of R.A. No. 9335. In sum, the Court finds that R.A. No.
9335, read and appreciated in its entirety, is complete in all its essential terms
and conditions, and that it contains sufficient standards as to negate
BOCEA’s supposition of undue delegation of legislative power to the Board.
Similarly, we resolve the second issue in the negative.
167

Equal protection simply provides that all persons or things similarly situated
should be treated in a similar manner, both as to rights conferred and
responsibilities imposed. The purpose of the equal protection clause is to
secure every person within a state’s jurisdiction against intentional and
arbitrary discrimination, whether occasioned by the express terms of a statute
or by its improper execution through the state’s duly constituted authorities.
In other words, the concept of equal justice under the law requires the state
to govern impartially, and it may not draw distinctions between individuals
solely on differences that are irrelevant to a legitimate governmental
objective.361awphil
Thus, on the issue on equal protection of the laws, we held in Abakada:
The equal protection clause recognizes a valid classification, that is, a
classification that has a reasonable foundation or rational basis and not
arbitrary. With respect to RA [No.] 9335, its expressed public policy is the
optimization of the revenue-generation capability and collection of the BIR
and the BOC. Since the subject of the law is the revenue-generation capability
and collection of the BIR and the BOC, the incentives and/or sanctions
provided in the law should logically pertain to the said agencies. Moreover,
the law concerns only the BIR and the BOC because they have the common
distinct primary function of generating revenues for the national government
through the collection of taxes, customs duties, fees and charges.
The BIR performs the following functions:
"Sec. 18. The Bureau of Internal Revenue. — The Bureau of Internal
Revenue, which shall be headed by and subject to the supervision and control
of the Commissioner of Internal Revenue, who shall be appointed by the
President upon the recommendation of the Secretary [of the DOF], shall have
the following functions:
(1) Assess and collect all taxes, fees and charges and account for all revenues
collected;
(2) Exercise duly delegated police powers for the proper performance of its
functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic
activities;
(4) Exercise supervision and control over its constituent and subordinate
units; and
(5) Perform such other functions as may be provided by law.
xxx xxx x x x"
On the other hand, the BOC has the following functions:
"Sec. 23. The Bureau of Customs. — The Bureau of Customs which shall be
headed and subject to the management and control of the Commissioner of
Customs, who shall be appointed by the President upon the recommendation
of the Secretary [of the DOF] and hereinafter referred to as Commissioner,
shall have the following functions:
(1) Collect custom duties, taxes and the corresponding fees, charges and
penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other economic frauds
within all ports of entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of
vessels and aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports
under its jurisdiction;
(8) Exercise supervision and control over its constituent units;
(9) Perform such other functions as may be provided by law.
168
xxx xxx x x x"
Both the BIR and the BOC are bureaus under the DOF. They principally
perform the special function of being the instrumentalities through which the
State exercises one of its great inherent functions — taxation. Indubitably,
such substantial distinction is germane and intimately related to the purpose
of the law. Hence, the classification and treatment accorded to the BIR and
the BOC under RA [No.] 9335 fully satisfy the demands of equal
protection.37
As it was imperatively correlated to the issue on equal protection, the issues
on the security of tenure of affected BIR and BOC officials and employees
and their entitlement to due process were also settled in Abakada:
Clearly, RA [No.] 9335 in no way violates the security of tenure of officials
and employees of the BIR and the BOC. The guarantee of security of tenure
only means that an employee cannot be dismissed from the service for causes
other than those provided by law and only after due process is accorded the
employee. In the case of RA [No.] 9335, it lays down a reasonable yardstick
for removal (when the revenue collection falls short of the target by at least
7.5%) with due consideration of all relevant factors affecting the level of
collection. This standard is analogous to inefficiency and incompetence in the
performance of official duties, a ground for disciplinary action under civil
service laws. The action for removal is also subject to civil service laws, rules
and regulations and compliance with substantive and procedural due
process.38
In addition, the essence of due process is simply an opportunity to be heard,
or as applied to administrative proceedings, a fair and reasonable opportunity
to explain one’s side.39 BOCEA’s apprehension of deprivation of due
process finds its answer in Section 7 (b) and (c) of R.A. No. 9335.40 The
concerned BIR or BOC official or employee is not simply given a target
revenue collection and capriciously left without any quarter. R.A. No. 9335
and its IRR clearly give due consideration to all relevant factors41 that may
affect the level of collection. In the same manner, exemptions42 were set,
contravening BOCEA’s claim that its members may be removed for
unattained target collection even due to causes which are beyond their
control. Moreover, an employee’s right to be heard is not at all prevented and
his right to appeal is not deprived of him.43 In fine, a BIR or BOC official or
employee in this case cannot be arbitrarily removed from the service without
according him his constitutional right to due process. No less than R.A. No.
9335 in accordance with the 1987 Constitution guarantees this.
We have spoken, and these issues were finally laid to rest. Now, the Court
proceeds to resolve the last, but new issue raised by BOCEA, that is, whether
R.A. No. 9335 is a bill of attainder proscribed under Section 22,44 Article III
of the 1987 Constitution.
On this score, we hold that R.A. No. 9335 is not a bill of attainder. A bill of
attainder is a legislative act which inflicts punishment on individuals or
members of a particular group without a judicial trial. Essential to a bill of
attainder are a specification of certain individuals or a group of individuals,
the imposition of a punishment, penal or otherwise, and the lack of judicial
trial.451avvphi1
In his Concurring Opinion in Tuason v. Register of Deeds, Caloocan City,46
Justice Florentino P. Feliciano traces the roots of a Bill of Attainder, to wit:
Bills of attainder are an ancient instrument of tyranny. In England a few
centuries back, Parliament would at times enact bills or statutes which
declared certain persons attainted and their blood corrupted so that it lost all
heritable quality (Ex Parte Garland, 4 Wall. 333, 18 L.Ed. 366 [1867]). In
more modern terms, a bill of attainder is essentially a usurpation of judicial
power by a legislative body. It envisages and effects the imposition of a
penalty — the deprivation of life or liberty or property — not by the ordinary
processes of judicial trial, but by legislative fiat. While cast in the form of
special legislation, a bill of attainder (or bill of pains and penalties, if it
prescribed a penalty other than death) is in intent and effect a penal judgment
visited upon an identified person or group of persons (and not upon the
general community) without a prior charge or demand, without notice and
hearing, without an opportunity to defend, without any of the civilized forms
and safeguards of the judicial process as we know it (People v. Ferrer, 48
SCRA 382 [1972]; Cummings and Missouri, 4 Wall. 277, 18 L. Ed. 356
[1867]; U.S. v. Lovett, 328, U.S. 303, 90 L.Ed. 1252 [1945]; U.S. v. Brown,
381 U.S. 437, 14 L.Ed. 2d. 484 [1965]. Such is the archetypal bill of attainder
wielded as a means of legislative oppression. x x x47
R.A. No. 9335 does not possess the elements of a bill of attainder. It does not
seek to inflict punishment without a judicial trial. R.A. No. 9335 merely lays
down the grounds for the termination of a BIR or BOC official or employee
169
and provides for the consequences thereof. The democratic processes are still
followed and the constitutional rights of the concerned employee are amply
protected.

A final note.

We find that BOCEA’s petition is replete with allegations of defects and

anomalies in allocation, distribution and receipt of rewards. While BOCEA
intimates that it intends to curb graft and corruption in the BOC in particular
and in the government in general which is nothing but noble, these intentions
do not actually pertain to the constitutionality of R.A. No. 9335 and its IRR,
but rather in the faithful implementation thereof. R.A. No. 9335 itself does
not tolerate these pernicious acts of graft and corruption.48 As the Court is
not a trier of facts, the investigation on the veracity of, and the proper action
on these anomalies are in the hands of the Executive branch. Correlatively,
the wisdom for the enactment of this law remains within the domain of the
Legislative branch. We merely interpret the law as it is. The Court has no
discretion to give statutes a meaning detached from the manifest intendment
and language thereof.49 Just like any other law, R.A. No. 9335 has in its favor
the presumption of constitutionality, and to justify its nullification, there must
be a clear and unequivocal breach of the Constitution and not one that is
doubtful, speculative, or argumentative.50 We have so declared in Abakada,
and we now reiterate that R.A. No. 9335 and its IRR are constitutional.

WHEREFORE, the present petition for certiorari and prohibition with prayer
for injunctive relief/s is DISMISSED.

No costs.

170