G.R. No. L-15309. February 16, 1961
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT, VS. ROSALINA CASIANO, DEFENDANT AND APPELLEE.
CONCEPCION, J.:
On October 19, 1955, Ricardo Macapagal filed, with the Justice of the
Peace Court of Rosales, Pangasinan, a complaint, which was amended on
or about December 6, 1955, charging Rosalina Casiano with “estafa”.
After conducting the first stage of the preliminary investigation and
finding the existence of probable cause, said court issued a warrant of
arrest, whereupon defendant posted a bail bond for her temporary
release. When the case was called for preliminary investigation,
defendant waived her right thereto, and, accordingly, the record was
forwarded to the Court of First Instance of Pangasinan. Subsequently,
the provincial fiscal filed therein an information for “illegal
possession and use of a false treasury or bank notes”, alleging:
“That
on or about the 16th day of April, 1955, in the municipality of
Rosales, Pangasinan, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused with full knowledge that check
No, 728681 is spurious and false and supposedly issued by the American
Bankers Association of New York City, U.S.A., did then and there
wilfully, and unlawfully and feloniously use and have in her possession
said false check No. 728681 which she sold and cashed to one Ricardo
Macapagal for P580 although the face value of said check is $300, to
the damage of the latter in said amount. Contrary to Article 168 of the
Revised Penal Code.”
Upon arraignment on
November 16, 1956, defendant entered a plea of not guilty. Thereupon,
the prosecution began to present its evidence by introducing the
testimony of a witness—Pedro Punsalan, cashier of the Tarlac Branch of
the Philippine National Bank—who was cross-examined by defense counsel.
Then the case was set for continuation of the hearing on December 12
and 13, 1956. Owing to several postponements secured by the defendant,
the hearing was not resumed, however, until October 15, 1958, on which
date defendant appeared with a new counsel, Atty. Lorenzo Suyat, who
prayed for and secured another postponement. On November 10, 1958, said
counsel was granted permission to submit a “motion to dismiss”, which
was filed on November 24, 1958, on the ground that there had been no
preliminary investigation of the charge of illegal possession and use
of a false bank note, and that the absence of such preliminary
investigation affected the jurisdiction of the court. The motion was
granted and, a reconsideration of the order to this effect having been
denied, the prosecution interposed the present appeal.
Defendant-appellee, maintains, and the Court of First Instance of
Pangasinan held, 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 the crime of illegal possession and use of a false
bank note, for this offense does not include, and is not included in,
that of “estafa”, to which her aforementioned waiver referred, the
latter offense being covered by Article 315 of the Revised Penal Code,
which article forms part of Title Ten thereof, entitled “Crimes against
Property”, whereas the former is the subject matter of Article 168 of
said Code, which is part of Title Four thereof, entitled “Crimes
against Public Interest.”
We are not concerned, however,
with an abstract academic question. The issue before us is whether
defendant is entitled to a preliminary investigation of the crime of
illegal possession and use of a false bank note as charged in the information herein. The answer to this question depends upon whether or not such crime was included actually in the allegations of the amended complaint filed with the justice of the peace court, regardless of the term used in said pleading to designate the offense charged therein.
In this connection, the offended party Ricardo Macapagal, averred in the amended complaint that the
“accused
under false manifestations and fraudulent representations which she
made to Ricardo Macapagal. that a check on its face valued at $300.00
and numbered 728681, was good and genuine as it was drawn by the
American Bankers Association against the Guaranty Trust Company of New
York in favor of Domingo Flores as Payee, sold to Ricardo Macapagal
said check for P580.00 Philippine currency, which manifestations and
representations the accused well knew were false and fraudulent and
were only made to induce the aforementioned Ricardo Macapagal to buy
said check as he in fact bought said check, paying to mentioned accused
the stated amount of P580.00, which amount the accused converted
unlawfully to her own use and benefit to the damage and prejudice of
Ricardo Macapagal in said sum for the reason that the check upon
presentation for collection was dishonored on the ground that it was
fraudulent.”
Thus, complainant alleged in
said amended complaint—as he did in the original complaint—that
defendant-appellee had knowingly had in her possession, with intent to
use, and actually used, a false or falsified bank note or other
obligation payable to bearer, which is the crime defined and punished
in Article 168, in relation to Article 166, of the Revised Penal Code,
and the substance of the charge contained in the information above
quoted.
In other words, regardless of whether or not the
crime of “estafa” includes or is included in that of illegal possession
or use of a false bank note or other obligation payable to bearer, the
Court of First Instance of Pangasinan erred in holding that the
allegations of the information filed in this case were not included in
those of the aforementioned amended complaint and that
defendant-appellee was entitled to another preliminary investigation of
the charge contained in the information. It erred, also, in dismissing
the case for, even if defendant had a right to such other preliminary
investigation, the same was deemed waived upon her failure to invoke it
prior to or, at least, at the time of the entry of her plea in the
court of first instance (People vs. Solon, 47 Phil., 443, 448; People vs. Magpale, 70 Phil. 176; People vs. Lambino,[*]
55 Off. Gaz., 1565). Independently of the foregoing, the absence of
such investigation did not impair the validity of the information or
otherwise rendered it defective. Much less did it affect the
jurisdiction of the court of first instance over the present case.
Hence, had defendant-appellee been entitled, to another preliminary
investigation, and had his plea of not guilty upon arraignment not
implied a waiver of said right, the court of first instance should
have, either conducted such preliminary investigation, or ordered the
Provincial Fiscal to make it, in pursuance of section 1687 of the
Revised Administrative Code (as amended by Republic Act No. 732), or
remanded the record for said investigation to the justice of the peace
court, instead of dismissing the case, as it did in the order appealed
from.
Although not raised by any of the parties herein, one
question has arisen in the course of the deliberations of this Court.
May we entertain the appeal taken in this case by the prosecution ?
This calls for a determination of the following issues, namely:
(a)
What is the effect of Rule 118, section 2, of the Rules of Court, upon
the authority of this Court to pass upon the merits of the present
appeal?(b) Has defendant waived her constitutional right not to be twice placed in jeopardy of punishment for the same offense?
(c) May she still invoke such right?
Rule 118, section 2, of the Rules of Court reads:
“The
People of the Philippines cannot appeal if the defendant would be
placed thereby in double jeopardy. In all other cases, either party may
appeal from a final judgment or ruling or from an order made after
judgment affecting the substantial rights of the appellant.”
Does the foregoing provision deny to this Court the authority or jurisdiction to entertain the present appeal by the prosecution? The answer must be in the negative, for the following reasons, namely:
-
Apart from being inherently legislative in nature, the power to
“define, prescribe and apportion the jurisdiction of the various
courts” is explicitly vested by the Constitution in Congress (Article
VIII, section 2, Constitution of the Philippines), not in the Supreme
Court. An affirmative answer to the query would lead, therefore, to an
encroachment by the Supreme Court upon the prerogatives of Congress,
and, hence, to the unconstitutionality and nullity of the rule above
quoted. - The same was adopted by this Court in the
exercise of its authority, under our fundamental law, “to promulgate
rules concerning pleadings, practice and procedure in all courts”,
which rules “shall not diminish, increase or modify substantive
rights”. (Article VIII, section 13, Constitution of the Philippines.)
If section 2 of Rule 118 were construed as limiting, either the jurisdiction of the Supreme Court to entertain appeals by the Government in criminal cases, or the right of the latter to appeal
in such cases, the result would be that this Court has exceeded its
rule making power under the Constitution, not only by legislating on a
subject that concerns neither “pleadings, practice or procedure”, but,
also, by diminishing or modifying “substantive rights”, namely (a) the
exclusive jurisdiction of the Supreme Court to “review, revise,
reverse, modify or affirm on appeal * * * final judgments or decrees of
inferior courts in * * * all * * * cases in which only errors or questions of law are involved“—which
is statutory (Republic Act No. 296, section 17 [6], as well as (with
slight difference in phraseology) constitutional (Article VIII, section
2, Constitution of the Philippines) —and, hence, (b) the right
of both parties in a case to appeal to the Supreme Court from the
decision of the lower court and raise only questions of law, as in the
case at bar.A similar issue was settled in the case of Marquez vs.
Prodigalidad (83 Phil., 813), an election protest involving municipal
councilors, which was dismissed by the Court of First Instance. On
appeal taken by the protestant, our jurisdiction to review the order
appealed from was contested by the protestee, who relied on section 178
of the Revised Election Code (Republic Act No. 180) reading:“From any final decision rendered by the Court of First Instance in protests against the eligibility or the elections of provincial governors members of the provincial board, city councilors, and mayors,
the aggrieved party may appeal to the Court of Appeals or to the
Supreme Court, as the case may be, within five days after being
notified of the decision, for its revision, correction, annulment or
confirmation, and the appeal shall proceed as in a criminal case. Such
appeal shall be decided within three months after the filing of the
case in the office of the clerk of the court to which the appeal his
been taken.” (Italics ours.)Speaking, through Mr. Justice Pablo, we held:
“* * * Se pretende que, bajo esta disposicion legal, las decisiones de
los Juzgado’s de Primera Instancia en protestas contra la eleccion do concejales en los municipios regularmente organizados, no son apelables. Notese, sin embargo, que la orden, apelada en el presente caso no resuelve los meritos de la protesta, sino que sobresee la misma por supuesta falta de jurisdiccion en virtud de una supuesta omission de incluir como partes a todos los candidatos electos. De modo que la orden apelada versa sobre una cuestion de jurisdiccion, o sobre una cuestion puramente de derecho.
Y el articulo 2, Titulo VIII de la Constitucion dispone que: ‘The
Congress shall have the power to define, prescribe, and apportion the
jurisdiction of the various courts, but may not deprive the Supreme
Court of its original jurisdiction over cases affecting ambassadors,
other public ministers, and consuls, nor of its jurisdiction to review,
reverse, modify, or affirm on appeal, certiorari, or writ of error, as
the law or the rules of court may provide, final judgments and decrees
of inferior courts in—(1) All cases in which the constitutionality or
validity of any treaty, law, ordinance, or executive order or
regulations is in question. (2) All cases involving the legality of any
tax, impost, assessment, or toll, or any penalty imposed in relation
thereto. (3) All cases in which the jurisdiction of any trial court is in issue. (4) All criminal cases in which the penalty imposed is death or life imprisonment. (5) All cases in which an error or question of law is involved.’“La Constitucion claramente autoriza a la Legislatura a definir, prescribir y distributir la jurisdiccion de los tribunales; pero
expresamente dispone que no puede privar al Tribunal Supremo de su
jurisdiccion para revisar, reexaminar, revocar, modificar o conocer en
apelacion o mediante certiorari o recurso de casacion las decisiones de
Juzgados inferiores que versan, entre otras cosas, sobre la constitucionalidad de alguna ley, ordenanza, tratado, u orden ejecutiva o sobre la jurisdiccion del tribunal centenciador, o sobre otras cuestiones puramente de derecho. En otras palabras, la Constitucion ha querido establecer y conservar inalterable la jurisdiccion del Tribunal Supremo sobre cuestiones constitucionales o puramante de derecho, con el proposito evidente de convertirlo en arbitro supremo en la interpretacion de la Constitucion y de la Ley.“Se pretende que la prohibicion constitucional de privar al Tribunal
Supremo de su jurisdiccion sobre las mencionadas cuestiones se refiere
tan solo a aquellos asuntos sobre los cuales este Tribunal tenia
jurisdiccion al tiempo de aprobarse la Constitucion y no a aquellos
que, como el presente, no caian bajo su jurisdiccion de acuerdo con las
leyes entonces vigentes, pues es obvio, segun se alega, que no se priva
a un tribunal de una jurisdiccion que no tenia. Esta distincion, sin
embargo, no halla fundamento en el lenguaje de la Constitucion, pues la
prohibicion alli establecida es en sus terminos absoluta con un
proposito claro y evidente que es el de situar en el Supremo Tribunal
la autoridad suprema en la interpretacion de la constitucion y de la ley.“Debe recordarse que antes de la aprobacion de nuestra Constitucion la
jurisdiccion apelada del Tribunal Supremo no dependia, segun las leyes
entonces vigente, de la naturaleza de las cuestiones planteadas, pues
tenia esa jurisdiccion casi en todos los asuntos provenientes de los
Juzgados de Primera Instancia independientemente de las cuestiones alli
envueltas. De suerte que la Constitucion al hacer referenda a la
jurisdiccion apelada del Tribunal Supremo sobre ciertas cuestiones de
derecho, generales y especificas, no lo hace en relacion con la
jurisdiccion apelada que el tribunal ya entonces tenia, sino que define una nueva jurisdiccion apelada del tribunal de la cual no quiere que este tribunal sea privado jamas.“Por lo demas, si se ha de interpretar la Constitucion en la forma que
se pretende, no habria uniformidad o simetria en la interpretacion de
las leyes del pais, pues si este tribunal no pudiese corregir los
pronunciamentos legales de los tribunales inferiores en algunos
asuntos, esos pronunciamientos podrian ser contradictorios y el
conflicto podria quedar sin solucion por algun tiempo por lo menos, y
esto es lo que indudablemente ha querido evitar la Constitucion. Y
pretender que en casos como el presente el Tribunal Supremo no puede
ejercer jurisdiccion apelada aunque hubiese serias infracciones de la
Constitucion en la decision del tribunal inferior, equivale claramente
a frustrar el proposito evidente de la Constitucion.“Creemos, por tanto, que el articulo 178 del Codigo Electoral Revisado,
al disponer expresamente que son apelables las decisiones de los
Juzgados de Primera instancia sobre protestas contra la elegibilidad o
la eleccion de gobernadores provinciales, vocales de la junta
provincial, concejales de ciudad y alcaldes, no
ha tenido el proposito de vedar en otras protestas la apelacion al
Tribunal Supremo sobre cuestiones puramente de derecho, particularmente
sobre cuestiones de jurisdiccion, a de constitucionalidad de alguna ley, ordenanza, tratado u orden ejecutiva”. (Marquez vs. Prodigalidad, 83 Phil., 813, 815-818; Italic ours.)This view was ratified and reiterated in Calano vs.
Cruz (94 Phil., 230; 50 Off. Gaz., 610), a quo warranto proceeding, in
which the eligibility of a municipal councilor was impugned. From an
order dismissing the case, petitioner therein appealed to the Supreme
Court, which passed upon the merits of the appeal, despite respondent’s
objection, based upon said section 178 of the Revised Election Code, to
our jurisdiction to entertain the appeal. The propriety thereof was
upheld in the following language:“In the past we had
occasion to rule upon a similar point of law. In the case of Marquez
vs. Prodigalidad, 46 Off. Gaz., Supp. No. 11, p. 204, we held that section
178 of the Revised Election Code limiting appeals from decisions of
Counts of First Instance iv election contests over the offices of
Provincial Governor, Members of the Provincial Board, City Councilors
and City Mayors, did not intend to prohibit or prevent the appeal to
the Supreme Court in protest involving purely questions of law, that is to say, that protests
involving other offices such as municipal councilor may be appealed,
provided that only legal questions are involved in the appeal. Consequently, the appeal in the present case involving as it does purely questions of law is proper.” (Calano vs. Cruz, 94 Phil., 230; 50 Off. Gaz., 610, 612; Italics ours.)Insofar as the issue in the case at bar is concerned, there is a
substantial parity between Rule 118, section 2, of the Rules of Court,
and the aforementioned Section 178 of the Revised Election Code. The
former says that the prosecution may not appeal when the accused would
be placed thereby in double jeopardy. The latter clearly denies,
without any qualification, the right to appeal in election protests
involving municipal vice-mayor and municipal councilors. Yet, the
latter gave way, as it had to, to the constitutional provision granting
the Supreme Court jurisdiction over all appealed cases involving purely questions of law.
So must, the provision of said Rule, whenever such are the issues
raised in the appeal, unless there is some other valid objection
thereto. - Commenting on said
section 2 of Rule 118, former Chief Justice Moran, who drafted our
Rules of Court, says (Comments on the Rules of Court, by Moran, Vol. 2
[1957 ed.], p. 856) that said provision is “in conformity with a ruling
laid down by the United States Supreme Court”, citing Kepner vs. U.S. (11 Phil., 669). In that case, the Federal Supreme Court held that the prosecution may not, over the objection of the defendant
in a criminal case, appeal from a decision of a court of first instance
acquitting him of a crime of embezzlement, after due trial on the
merits, because it would violate his right, under the Philippine Bill
(Act of Congress of the U.S. of July 1, 1902)—which is identical to
that existing under the Federal Constitution and analogous to that
recognized under the common law—not to be placed twice in jeopardy of
punishment for the same offense. The Kepner case is not
authority for the proposition that an appeal by the Government, after
jeopardy has attached in the lower court, cannot be taken without any objection or with the consent of the accused. Indeed, it is well settled that “the immunity from second jeopardy granted by the Constitution is a personal privilege which accused may waive”
(22 C.J.S., 412-413). He may, accordingly, appeal from a decision
adverse to him, even though such appeal clearly puts him, again, in
danger of punishment for the same offense. Considering the background
of the rule under consideration and the fact that it was adopted in the
exercise of the constitutional power of the Supreme Court to promulgate
rules on “pleadings, practice and procedure”, it is reasonable—as well
as necessary, to avoid ‘the constitutional infirmity already adverted
to—to conclude that it was incorporated into the Rules of Court merely
as a procedural measure, for the purpose, not of affecting
substantive rights, but of enforcing the constitutional immunity from
double jeopardy,” a personal privilege which accused may waive.”
Upon the other hand, defendant herein has filed a brief in which she limited herself to a discussion of the merits
of the appeal. Thus, she not only failed to question, in her brief,
either expressly or impliedly, the right of the prosecution to
interpose the present appeal, but, also, conceded, in effect, the
existence of such right. She should be deemed, therefore, to have
waived her aforementioned constitutional immunity.
It is true that in People vs. Hernandez (94 Phil., 49; 49 Off. Gaz., 5342), People vs. Ferrer, 100 Phil., 124; 55 Off. Gaz., 620; People vs. Bao, 106 Phil., 243; 56 Off. Gaz., [51] 7768 and People vs.
Golez, 108 Phil., 855; 59 Off. Gaz., 388), we dismissed the appeal
taken by the Government from a decision or order of a lower court,
despite defendant’s failure to object thereto. However, the defendants
in those cases, unlike the defendant herein, did not file any brief. Hence, they had performed no affirmative act from which a waiver of the privilege under consideration could be implied.
It is urged, however, that, if the failure to file a brief does not
warrant said inference, much less could the same be justified when the
accused, like defendant herein, has filed a brief, without invoking
therein the aforementioned privilege. This argument conflicts, however,
with the spirit underlying the provisions of the Rules of Court
governing comparable situations.
Upon arraignment, the
defendant may move to quash the information, upon the ground, among
others, that he “has been previously * * * in jeopardy of being
convicted * * * of the offense charged” (Rule 113, sections 1 and 2,
paragraph [b]). However, if he “does not move to quash the * * *
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” (Rule 113, section 10).
Hence, if he pleads to the charge, without invoking his immunity from a second jeopardy, the same is deemed waived (People vs. Acierto, 92 Phil., 534; 49 Off. Gaz., 518; 14 Am. Jur. 958; Alexander vs. State, 176 So. 835; Branch vs. State, 78 So. 411; State vs. Warner, 205 N.W. 692; State vs. Mases, 199 P. 111; Fines vs. State 240 P. 1079; Fowler vs. State 120 S.W. 2d. 1054; Mann vs. State, 187 N.E. 343; Ballusky vs. People, 178 P. 2d. 433; People vs. McDonald, 10 N.W. 2d. 309; State vs. Davis, 238 P. 2d. 450).
Again, “material averments in the complaint, other than those as to the amount of damages, shall be deemed admitted when not specifically denied” in the answer
filed by the defendant (Rule 9, section 8). Similarly, subject to
specified exceptions, “defenses, and objections not pleaded either in a
motion to dismiss or in the answer are deemed waived” by
defendant (Rule 9, section 9). Thus, the foregoing waivers and
admission by the defendant require a previous plea or answer by him.
No such waiver or admission is deemed made in the absence of a plea. If the defendant fails to answer plaintiff’s complaint, the allegations thereof are deemed denied
and plaintiff is bound, therefore, to prove them. The same rule applies
to defendants in a counterclaim, or cross-claim, or third-party
complaint. So too, when plaintiff does not file a reply, “all the new
matters alleged in the answer” filed by the defendant “are deemed
controverted” by the plaintiff (Rule 11 and Rule 35, section 6). In
other words, when no answer to the pleading of an opponent is
filed, all material allegations made or new matters contained in said
pleading are, under our Rules of Court, deemed denied. Conversely, if an answer is filed, such allegations or new matters inlaid pleading of the opponent as have not been specifically controverted in the aforementioned answer, are deemed admitted, and such personal defenses as could have been or should have been set up therein are, in general, waived.
It is true that briefs in appellate courts are not “pleadings” in the
technical legal meaning of this term. In such courts, there are no
“pleadings”, in the sense of formal concise statements of the ultimate
facts constituting plaintiff’s cause or causes of action, and
specifying the relief sought, or on which the defendant relies for his
defense (Rule 6, section 1, and Rule 9, section 1, Rules of Court). The
appellant files with the appellate court a brief specifying the “errors
intended to be urged” and the arguments in support of each assignment
of error. (Rule 48, section 17), whereas the appellee sets forth in his
brief “his arguments * * * on each assignment of error” (Rule 48,
section 18). However, the briefs, like the pleadings, define and limit
the issues submitted for determination, and, accordingly, should be
subject to the general principles governing pleadings, insofar as the
admission or denial of the claims of an opponent, as well as the waiver
of defenses, are concerned. Hence, when the defendant-appellee in a
criminal case does not file a brief, he—like a defendant who fails to
answer the complaints—may, perhaps, be deemed to controvert the claim
of plaintiff-appellant in. all respects. However, if the
defendant-appellee files a brief contesting the merits of the
contention of plaintiff-appellant in his brief, without objecting to
plaintiff’s appeal, which plaintiff may take if the defendant consents
or does not object thereto, said defendant-appellee—like the defendant
who pleads not guilty in the lower court, without invoking his immunity
from a second jeopardy—must be deemed to have waived such immunity.
Indeed, it is well settled that the immunity must be “specially”
pleaded (14 Am. Jur. 956) ; that this must be done “at the earliest
opportunity” (Territory of Lobato, 134 p. 222, Yates vs. State 17 So. 2d. 594) ; and that, otherwise, it is deemed waived (14 Am. Jur. 958; Branch vs. State, supra; State vs. Bohn, 248 p. 119; People vs. McDonald, supra; State vs. Harper, 184 S.W. 2d. 601; Driver vs. Seay, 32 S.E. 2d. 87). What is more, our Rules of Court are not satisfied with an express
assertion of the immunity. Section 5 of Rule 113 requires the one
invoking it to “state the name under which defendant was convicted or
in jeopardy of conviction or acquitted, the name of the court in which
he was convicted or in jeopardy or acquitted and the date and place of
such conviction or jeopardy or acquittal.” All of which goes to show
that silence of the accused thereon must be construed as waiver of the immunity. Hence, Corpus Juris Secundum says that such “waiver may be express or implied; in fact generally implied.” (22 C.J.S. 412-413.)
In the case at bar, there is another circumstance justifying the
conclusion that defendant herein has waived said immunity. Upon
issuance of the order of dismissal complained of, the prosecution filed
a motion for reconsideration, to which the defendant objected upon the
ground of double jeopardy. When defendant filed his brief with this
Court, he was well aware, therefore, of the materiality or
pertinence of said defense to the appeal taken by the prosecution. Yet,
he did not avail himself of such defense. This, omission must be due,
therefore, to neither ignorance nor oversight on his part. He advisedly and purposely refrained from invoking said defense. In other words, he waived it.
Regardless of the foregoing, could he have properly made-use of it in
this instance? For him to do so, it would be necessary for him to
assert that the lower court had Jurisdiction to hear and decide this
case—which is exactly the opposite of the theory sustained by him in
his motion to dismiss. His situation then would be substantially
identical to that of the accused in People vs. Acierto, supra.
Acierto was accused before a U.S. Court Martial having defrauded the
Government of the United States, through falsification of documents,
within a military base of the U.S. in the Philippines. Despite his
objection to the jurisdiction of said court, which it overruled, he
was, after trial, convicted therein. On review, the verdict was
reversed by the Commanding General, who sustained Acierto’s objection.
Subsequently accused of estafa and falsification of said documents
before one of our courts of first instance, Acierto was convicted
therein. On appeal to the Supreme Court, he raised, among other
questions, the following: former jeopardy and want of jurisdiction of
the court a quo, both of which he claimed to have raised in the lower court and on both of which issues the Solicitor General sided with him, owing mainly to the provision of Article XIII, section 1 (a) of our Bases Agreement with the United States, reading:
“1. The Philippines consents that the United States shall have the right to exercise jurisdiction over the following offenses:
(a)
Any offense committed by any person within any base except where the
offender and offended parties are both Philippine citizens (not members
of the armed forces of the United States on active duty) or the offense
is against the security of the Philippines.”
Commenting on Acierto’s contention this Court—in a unanimous decision,
penned by Justice Tuason, and concurred in by Chief Justice Paras, and
Justices Feria, Pablo, Bengzon, Padilla, Montemayor, Reyes [A.], Jugo,
Bautista and Labrador—expressed itself as follows:
“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 objection, 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.* * * * * * *
“Construction
of the United States Military Law by the Judge Advocate General or the
United States Army is entitled to great respect, to say the very least.
When such construction is a disclaimer of jurisdiction under the Bases
Agreement, the Philippine Government certainly is not the party to
dispute it; the fewer the lights asserted by the United States the more
is enhanced the dignity of the Philippines and its interest promoted.“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.“From
another angle, it seems immaterial whether or not the court martial had
jurisdiction of the accused and his crimes under the terms of the Bases
Agreement. Granting that it had, the Court of First Instance of
Quezon City nevertheless properly and legally took cognizance of the
cases and denied the defendant’s motion to quash.“By the
Agreement, it should be noted, the Philippine Government merely
consents that the United States exercise jurisdiction in certain cases.
This consent was given purely as a matter of comity, courtesy, or
expediency. The Philippine Government has not abdicated its sovereignty over the bases
as part of the Philippine territory or divested itself completely of
jurisdiction over offenses committed therein. Under the terms of the
treaty, the United States Government has prior or preferential but not
exclusive jurisdiction of such offenses. The Philippine Government
retains not only jurisdictional rights not granted, but also all such
ceded rights as the United States Military authorities for reasons of
their own decline to make use of. The first proposition is implied from
the fact of Philippine sovereignty over the bases; the second from the
express provisions of the treaty. The treaty expressly stipulates that
offenses included therein may be tried by the proper Philippine courts
if for any special reason the United States waives its jurisdiction
over them.* * * * * * *
“Partly
for the reasons already shown, the plea of double jeopardy is without
merit. If the court martial had no jurisdiction, jeopardy could not
have attached. This proposition is too well established and too well
known to need citation of authorities.“Even if it be granted that the court martial did have jurisdiction,
the military trial in the instant cases has not placed the appellant in
jeopardy such, as would bar his prosecution for violation of the
Philippine penal laws or, for that matter, a second trial under
the Articles of War. Although under Rev. Stat. sec. 1342, art. 2, it
has been held that a former trial may be pleaded when there has been a
trial for the offense, whether or not there has been a sentence
adjudged or the sentence has been disapproved (Dig. JAG [1912] p. 167),
the rule is and should be otherwise when the disapproval was made in
response to the defendant’s plea based on lack of jurisdiction. (Ex. parte Castello, 8 F. 2nd. 283, 286). In such case the former trial may not be pleaded in bar in the second trial.” (Italics ours.)
In other words, it was held that, granting that the Court Martial had jurisdiction
over the crime or crimes with which he had been charged, and was
permitted by the Treaty to exercise it, the Philippine Government did
not thereby divest itself of its own jurisdiction to try and punish
Acierto therefor, and that, even if he had, therefore, been placed in jeopardy of punishment before said Court Martial, he was estopped
from pleading it before the Philippine courts, for “a party will not be
allowed to make a mockery of justice by taking inconsistent positions,
which, if allowed, will result in brazen deception”, and “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, which 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.”
This would exactly
be the position of defendant herein 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 of 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 such 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.
The issue
eventually boils down, therefore, to whether the rule of estoppel
applied in the Acierto case should be confirmed or revoked. Upon mature
consideration, we are of the opinion that said rule should be
maintained, because:
- It is basically and fundamentally sound and just.
- It is in conformity with the principles of legal ethics, which demand good faith of the highest order in the practice of law.
-
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 (Williams vs. McMicking, 17 Phil., 408; Molina vs. Somes, 24 Phil., 49; Agoncillo vs. Javier, 38 Phil., 424; American Express vs. Natividad, 46 Phil., 208; Toribio vs. Decasa, 55 Phil., 416; San Agustin vs. Barrios, 68 Phil., 475; Jimenez vs. Bucoy, 103 Phil., 40; 54 Off. Gaz., 7560; Northern Motors, Inc. vs. Prince Line, et al., 107 Phil., 253; Medel vs. Calasanz, 109 Phil. 348.Thus, in Atkins Kroll & Co., Inc. vs. B. Cua Hian Tek, 102 Phil., 948; 54 Off. Gaz., 7892, we said:
”
* * * when a party deliberately adopts a certain theory, and the case
is tried and decided upon that theory in the court below, he will not be permitted to change his theory on appeal * * *.”The rule is stated in Corpus Juris Secundum as follows:
“*
* * where the case was tried by the lower court and the parties on a
certain theory, it will be reviewed and decided on that theory, insofar
as the pleadings, liberally construed, permit, and not be approached from a different point of view.” (5 C.J.S., section 1464, pp. 77-79; Italics ours.) - The
operation of the principle of estoppel on the question of jurisdiction
seemingly depends upon 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. Thus, Corpus Juris Secundum says:
“Where
accused has secured a decision that the indictment is void, or has been
granted an instruction based on its defective character directing the
jury to acquit, he is estopped, when subsequently indicted, to assert
that the former indictment was valid. In such case, there may be a new prosecution whether the indictment in the former prosecution was good or bad. Similarly, where,
after the jury was impaneled and sworn, the court on accused’s motion
quashed the information on the erroneous assumption that the court had
no jurisdiction, accused cannot successfully plead former jeopardy to a
new information.” * * * (22 C.J.S., sec. 252, pp, 388-389; Italics ours.)“Where accused procured a prior conviction to be set aside on the ground that the court was without jurisdiction, he is estopped subsequently to assert, in support of a defense of previous jeopardy, that such court had jurisdiction.” (22 CJ.S. p. 378.)
The following is quoted from the Annotated Cases:
“Waiver of Objection to Second Jeopardy by Procuring Quashal of First Indictment.—It may be stated as a general rule that where a person after being put in jeopardy procures a quashal of the indictment upon which he is being prosecuted, he cannot thereafter plead former jeopardy
when placed on trial upon another indictment for the same offense. His
action in procuring a quashal of the indictment constitutes a waiver of
his constitutional privilege. Brown vs. State, 109 Ga. 570, 34 S.E. 1031; Joy vs. State, 14 Ind. 139; State vs. Scott, 99 Ia. 36, 68 N.W. 451. See also Miller vs. State, 33 Ind. App. 509, 71 N.E. 248; Jones vs. Com. 124 Ky. 26, 97 S.W. 1118; Com. vs. Gould, 12 Gray (Mass.) 171; State vs. Priebnow, 16 Neb. 131, N.W. 628; Van Rueden vs. State, 96 Wis. 671, 71 N.W. 1048.“In Brown vs. State, 109 Ga. 570, 34 S.E. 1031, in effect overruling Black vs.
State, 36 Ga. 447, 91 Am. Dec. 772, it appeared that the court, though
at first it overruled the demurrer, reversed its former ruling after
the admission of evidence and quashed the accusation. At a subsequent
trial the defendant pleaded former jeopardy. The court said:
‘Although the demurrer filed by the accused was at first overruled by
the judge, the subsequent ruling sustaining the same was the one that
the accused himself invoked, and it does not distinctly appear that he
objected at the time to the judge sustaining the demurrer at that stage
of the case and ordering the accusation to be quashed. It therefore
does not lie in his mouth on a subsequent trial to say that the
accusation was good, and that for that reason he was in jeopardy on the
former trial. Whether the first accusation was good or bad is
immaterial. The accused obtained a ruling that it was bad, accepted the
benefit of that ruling, and he will not be allowed to bring in question
the propriety of a ruling which he himself invoked.’ In Joy vs.
State, 14 Ind. 139, it appeared that after the jury had been selected
and sworn the defendant moved to quash the count in the indictment on
which the district attorney had elected to go to trial. The motion to
quash was sustained. On a subsequent trial the plea of former jeopardy
was interposed. The court said: ‘It (the quashal of the count) was for
his benefit, and he is presumed to waive any future peril he may incur,
in view of the advantage he derives by getting rid of the present
pressing jeopardy. So in the case at bar, the defendant was charged in
two counts with having produced the death of a human being—first, by
fire; second, by blows. The counts were properly joined; but by his own
motion, and therefore certainly with his consent, he procured an order
of the court which operated to withdraw the second count from the
consideration of the jury as fully as if it had charged a separate
offense. To that count no evidence could have been directed, if the
trial had progressed. By that act, it appears to us, for these reasons
and those heretofore advanced, he consented to waive any constitutional
rights which might have apparently attached, just as he would have
waived those rights if he had consented to the discharge of the jury,
or after verdict moved for a new trial or in arrest.’“In
the reported ease it appears that after the jury had been impaneled and
sworn and the defendant placed on the stand in the first trial the
defendant moved to quash the indictment on account of a material
variance therein. The indictment was quashed. The defendant pleaded
former jeopardy on the second trial. The court held that inasmuch
as the former indictment was gnashed at the instance of the defendant,
he was not in a position to urge that he was place in jeopardy
thereunder, and that having once urged the invalidity of the indictment
lie was estopped from thereafter claiming it to have been valid.” (14 Ann. Cas. 426; Italics ours.)To the same effect is the following passage of our decision in the Acierto case:
“Even
if it be granted that the court martial did have jurisdiction, the
military trial in the instant cases has not place the appellant in
jeopardy such as would bar his prosecution for violation of the
Philippine penal laws or, for that matter, a second trial under the
Articles of War…..Although under Rev. Stat. see. 1342 art. 5, it
has been held that a former trial may be pleaded when there has been a
trial the offense, whether or not there has been a sentence adjudged or
the sentence has been disapproved (Dig. JAG [VTVB] p. 167), the rule is
and should be otherwise when the disapproval was made in response to
the defendant’s plea based on lack of jurisdiction. (Ex parte
Castello, 8 F. 2nd 283, 286.) In such case the former trial may not be
pleaded in bar in the second trial.” (Italics ours.)Lastly, pursuant to the last sentence of Section 10, Rule 113 of the Rules of Court:
”
* * * If, however, the defendant learns after he has pleaded or has
moved to quash on some other ground that the offense with 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.”
A court thereby has “discretion” to entertain or not to entertain a motion to quash filed by the defendant based upon a former jeopardy, which came to his knowledge “after he has pleaded.”
Although this provision regulates the procedure of courts of first
instance, we find no plausible reason to depart from its policy in
proceedings before appellate courts. Although, as adverted to above,
there are no “pleadings”—in the technical sense of the term—in appealed
cases, the briefs therein filed play the role of said pleadings insofar
as said briefs concretize the issues raised and submitted for
determination by the appellate court. However, defendant herein has not
tried to avail himself of said provision, for she has not moved to
dismiss the appeal upon the ground of double jeopardy. At any rate, she
cannot invoke, by analogy the above quoted provision of Section 10,
Rule 113, because the same requires that knowledge of the former
jeopardy be acquired after the plea, whereas defendant herein knew, before
filing her brief with this Court, that the attempt by the prosecution
to seek a review of the order appealed from opened the door to the
issue of double jeopardy. In fact, when the prosecution moved, in the
lower court, for a reconsideration of said order, defendant objected
upon the ground of double jeopardy.
But, even if she may
claim the benefits of the aforementioned provision of Section 10, Rule
113, it should be noted that the, same confers upon the Court
“discretion” to entertain the plea of double jeopardy or not. Under the
circumstances surrounding the case—considering particularly that
defendant had induced the lower court to believe erroneously that the
crime charged in the information was not included in allegations of the
complaint, that another preliminary investigation of the crime charged
in the information was necessary, and that in the absence of such other
preliminary investigation the lower court had no jurisdiction over the
case, and that the ends of justice would be defeated, by entertaining
now a plea of double jeopardy, which up to this late stage of the
proceedings, has not been set up in this Court—we are of the opinion,
and so hold, that the interest of the proper administration of justice
would be served best by a determination of the merits of the charge
against defendant herein.
Wherefore, the order appealed from
is hereby reversed, and the case remanded to the lower court for
further proceedings not inconsistent with this decision, without
special pronouncement as to costs. It is so ordered.
Padilla, Bautista Angelo, Labrador, Reyes, J. B. L., Barrera, Paredes, and Dizon, JJ., concur.
Bengzon, J., concurs in the result.
[*] 103 Phil., 504.
DISSENTING OPINION
PARAS, C. J.:
The Constitution provides:
“(20)
No person shall be twice put in jeopardy of punishment for the same
offense. If an act is punished by law and an ordinance, conviction or
acquittal wilder either shall constitute a bar to another prosecution
for the same act.” (Art III—Bill of Rights.)
The Rules of Court provides:
“Sec. 2. Who may appeal.
The People of the Philippines can not appeal if the defendant would be
placed thereby in double jeopardy. In all other cases either party may
appeal from a final judgment or ruling or from order made after
judgment affecting the substantial rights of the appellant.” (Rule 118)
Even before the foregoing section of Rule 118 of the Rules of Court was
promulgated, all the decisions of this Court from the time the doctrine
in the Kepner case was laid down had consistently been the denial of an
appeal by the government when the accused has been discharged or
acquitted. Only a favorable ruling upon a motion to dismiss equivalent
to a demurrer could be appealed.
GENERAL ORDERS NO. 58 PROVIDED:
“See.
44. Either party may appeal from a final judgment or from an order made
after judgment affecting the substantial rights of the appellant or in
any case now permitted by law. The United States may appeal from a
judgment for the defendant rendered on a demurrer to an information or
complaint, and from an order dismissing a complaint or information.”
The opening sentence in the Rules of Court not found in General Orders
No. 58 or its amendments is, therefore, a mere reiteration of the
doctrine in the Kepner case. In People vs. Borja, 43 Phil, 618,
upon appeal by the Government, the Solicitor General’s Office, instead
of filing a brief moved to dismiss the appeal. And so in other cases.
Recently, we held that the Government cannot appeal an order of
dismissal or on the merits of a criminal case although said order is
erroneous (People vs. Labatete, 107 Phil., 627; People vs. Bao, 106 Phil., 243; 56 Off. Gaz., 7768; People vs. Robles, 105 Phil., 1016; 57 Off. Gaz., 61; People vs. Tacneng, (No. L-120821, April 30, 1959).
In the instant case, after a witness had testified for the prosecution,
the Court of First Instance ordered the dismissal of the case upon
motion of the accused on the ground that there was lack of previous
preliminary investigation. In fact, there has been such an
investigation but the court erroneously granted the motion on that sole
ground. When the fiscal asked for reconsideration of the order of
dismissal, defense counsel immediately objected on the ground that such
motion would place the accused in double jeopardy. The fiscal has
appealed the case. Under the repeated ruling of this Court, it is our
bounden duty to dismiss the appeal without any further discussion. But
after the Solicitor General’s Office has filed its brief, the counsel
for the defense or appellee made no reference to nor claim double
jeopardy, and now it is contended that such an omission is equivalent
to waiver of the defense. I regret to dissent. Such waiver is only
possible when after an accused has been prosecuted and acquitted or
convicted, a new complaint or prosecution would entitle the accused to
the defense of double jeopardy, and it is only in this instance that
said defense could be waived. (See Sec. 1 (h) and Sec. 5, Rule
113). That waiver has no application to an appeal for the reason that
that remedy is completely banned or prohibited. It should be remembered
that while in the Salico case (47 Off. Gaz., 1765; 84 Phil., 722), this
Court in a divided opinion had ruled otherwise, subsequent decisions
had abandoned the doctrine.
It can be conjectured that when
the counsel for appellee prepared his brief, he had not read the latest
doctrine on the matter, for the simple reason that the Official Gazette
and the Philippine Reports have not published the decisions containing
said doctrine. Even the 1960 edition of the Comments on Criminal
Procedure by Judge Ruperto Kapunan, Jr., still contains the doctrine in
the Salico case as the latest. No wonder, therefore, that the counsel
for appellee had failed to mention in his brief that the doctrine in
said case has been completely abandoned.
Reference is made to
the doctrine in the case of Acierto (92 Phil., 534; 49 Off. Gaz. 518).
To my mind, there is no relevancy for that case refers to the
jurisdiction of the military court of the United States, on the one
hand, and the civil court or court of first instance of the Philippine
Government, on the other. And it is clear that in the present appealed
case, the question involved is not one of jurisdiction but irregularity
in the proceeding based on the false ground that there has been no
preliminary investigation of the case before it was tried by the court
of first instance. Needless to say, preliminary investigation is a step
that can be waived expressly or impliedly.
As stated above,
the record shows that the counsel for defendant-appellee had already
invoked the defense of double jeopardy when the fiscal filed a motion
for reconsideration. In a criminal case, even if the brief does not
mention such detail, under our power to review, revise, reverse,
modify, or affirm decisions of lower courts, we can consider any error
we can detect in deciding the case.