THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT, VS. PASCUAL LABATETE, DEFENDANT AND APPELLEE.

Appeal from an order of the Court of First Instance of Camarines
Sur, Hon. Perfecto R. Palacio, presiding, dated July 11, 1957, denying
the fiscal’s motion to reconsider a previous order of the court dated
March 14, 1957 denying the admission of an amended information
presented by the fiscal on March 13, 1957. The order of denial issued
by the court is based on the ground that the presentation of an amended
information places the accused in double jeopardy.

The original information filed in this case reads as follows:

“That on or about January 27, 1953 in the
municipality of Del Gallego, province of Camarines Sur, Philippines,
and within the jurisdiction of this Honorable Court, the accused,
herein, obtained from complainant Genoveva Malinao P400 giving as a
security to her for the payment thereof within two years, the
improvements and products of his property under Original Certificate of
Title No. 484; and after the stipulated term in which he failed to
redeem the security, by reason thereof he forfeited to the complainant
all said improvements and products, and in order to defraud and
prejudice said, complainant by means of deceit and fraud, said accused,
on December 23, 1955 in Del Gallego, Camarines Sur, did, then and
there, intentionally, maliciously, and criminally manage and cause to
have extended another period of six months to redeem said security
asking additional amount of P1900 indebtedness or a total of P2,300,
only to have the said security violated by said accused, in which he,
on February 28, 1956, did, then and there, criminally and feloniously
transfer by way of mortgage, to the Rehabilitation Finance Corporation
for P950 not only the improvements and products previously encumbered
to complainant Genoveva Malinao but the title of said property also,
without first discharging said previous indebtedness and mortgage of
the improvements and products to complainant Genoveva Malinao to her
great actual damage and prejudice in the amount of P2,300 plus P1,000
consequential damage thereof.”

The above information was read to the accused on January 7, 1957.
The accused pleaded not guilty to the charge, so the trial was
commenced on the same date with the presentation of the offended party
as a witness The testimony of the offended party, however, was
suspended because the accused presented a motion to dismiss the
information (dated January 11, 1957), on the ground that the facts
alleged therein do not constitute a crime. The motion to dismiss the
information alleges that inasmuch as the properties supposedly
mortgaged to the complainant or offended party are merely the products
and improvements on a certain parcel of land, not the land itself, the
transaction between the parties could not be a mortgage; furthermore,
that as the contract was not recorded, the alleged mortgage could not
be valid, so that the subsequent contract by which the land was
mortgaged to the Rehabilitation Finance Corporation is not inconsistent
with the previous mortgage in favor of the offended party of the
products and improvements on the land. The motion to dismiss was set
for hearing with the opposition of the fiscal and the court on February
4, 1957 held that the facts alleged in the information do not
constitute the crime of estafa. It, therefore, ordered the dismissal of
the information.

A motion to reconsider the order of dismissal was presented but the
same was denied, so the fiscal presented a motion to admit an amended
information. In this amended information a change is made, as it is
alleged therein that the accused gave as security for the payment of
his loan the land under Original Certificate of Title No. 484, not only
the products and improvements thereon, while the indebtedness in favor
of the offended party was still unpaid and unsatisfied, and that,
thereafter, the accused mortgaged the property to the RFC of Naga City.
At first the court admitted the amended information, no objection
having been filed, but subsequently, upon motion of the accused, it
reconsidered its order admitting the said amended information. The
fiscal tried to have this order denying the admission of the amended
information revoked, but to no avail, hence this appeal.

The trial had begun on the original information when the amended
information was filed, so the rule applicable to the case is that
stated in the first paragraph of Section 13 of Rule 106, which provides:

”Sec. 13. Amendment.—The information or
complaint may be amended, in substance or form, without leave of court,
at any time before the defendant pleads; and thereafter and during the
trial as to all matters of forms, by leave and at the discretion of the
court, when the same can be done without prejudice to the rights of the
defendant.”

A reading of both the original and the amended information clearly
shows that the latter changes the facts or the ground of responsibility
for which the accused is indicted; for whereas in the original
information only the improvements and products are alleged to have been
mortgaged, in the amended information both the land and the products
and improvements are alleged to have been mortgaged to the offended
party. This is a substantial amendment changing the acts imputed to the
accused as constituting an offense and is not allowed as held in the
case of People vs. Zulueta, 89 Phil., 880. 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 began to be tried and acquitted by
the dismissal of the original information. As the law permits amendment
only when amendment can be done without prejudice to the rights of the
defendant, it is very clear that the admission of the amended
information would prejudice the rights of the defendant, more
especially his right to the defense of double jeopardy.

In the brief of the Solicitor General the admission of the amended
information is sought to be justified on the ground that as the accused
himself had asked for the dismissal of the information, his action in
having the case dismissed constitutes a waiver of his constitutional
right not to be prosecuted again for the same offense. The cases cited
by him to support his claim are the following: Gandicela vs. Hon. Lutero, 88 Phil., 299; People vs. Marapao, 85 Phil., 832 and People vs. Salico, 84 Phil., 722; 47 Off. Gaz. (4) 1765.

In the first case (Gandicela vs. Lutero, supra),
we held that the dismissal of a case, because the fiscal could not
produce his evidence at the trial, after a denial of his motion for
postponement, is a bar to a prosecution for the same offense although
it was granted on the express motion of the accused because it was
actually an acquittal. This case is no authority for the Solicitor
General’s contention in the case at bar. Neither is the case of People vs. Marapao, supra,
applicable because the first case which was dismissed was for slight
physical injuries, while the second was for an assault against a person
in authority—a different offense.

We now come to the case of People vs. Salico, supra.
It is true, as Chief Justice Moran has indicated in his comments on the
Rules of Court (2 Moran, 1957 ed., p. 798) that the principle contained
therein has been abandoned by us. We will now proceed to explain our
reasons, for doing so.

In that case, after the prosecution had closed its evidence and
before the defendant presented his own, the defendant moved for the
dismissal of the case on the ground that the prosecution had failed to
prove that the crime (homicide) was committed within the jurisdiction
of the trial court. The trial court granted the motion and so the
fiscal appealed from the order of dismissal. The majority decision says
that the trial court should have taken judicial notice of the fact that
the municipality of Victorias, wherein the crime was alleged to have
been committed, was within its jurisdiction. The issue to be decided,
as stated by the majority itself, is as follows:

“The only question which is necessary for us to
determine is whether or not the appeal by the prosecution from the
order of the Court of First Instance in the present case would place
the defendant in double jeopardy. We hold that it does not, for the
following reasons: First, because by the dismissal of the case by the
court below upon motion of the defendant, the latter has not been in
jeopardy; second, because the appeal by the prosecution in the present
case would not place the defendant in double jeopardy. And third,
because assuming 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.”
(People vs. Salico, supra.)

The provision of law upon which the legal conclusion of the majority is based is Section 9 of Rule 113, which provides:

“Sec. 9. Former conviction or acquittal or former jeopardy.—
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.”

It will be noted that there are three cases where jeopardy would lie according to the above provision, namely, conviction, acquittal, or dismissal or other termination of the case without the express consent of the accused. Note that the phrase without the express consent of the accused can not refer to conviction or acquittal,
because in case of conviction after trial and without a plea of guilty,
the termination is against the express consent of the accused. The only
conviction which would be had with the express consent of the accused
would be when a plea of guilty has been entered. When the defendant is
acquitted after trial, it is always upon petition of the accused. If we
were to make the said phrase (without the express consent of the
accused) applicable to acquittal, there would be no case of jeopardy
even when there is acquittal, because the acquittal will always be with
the express consent, because ordinarily granted upon motion of, the
accused, So it is that the phrase with the express consent of the accused can refer only to a dismissal or other termination, not a conviction or acquittal.

What, then, is a dismissal with the express consent of the accused,
which is not an acquittal? Such dismissal, in the first place, must not
be one where the court has no jurisdiction, or where the information is
not valid or sufficient to sustain a conviction, for in these cases no
jeopardy attaches by express provision of the rule. Also, the dismissal
must be after the defendant has pleaded, as also provided
expressly in the rule. The above underlined phrase did not exist in
General Orders No. 58. Under the old criminal procedure jeopardy did
not attach till the actual trial or the investigation of the offense
had commenced by the calling of a witness. However, the old rule was
modified, in the present rules by considering that the plea of the
defendant, not the calling of the first witness, is the precise moment
when jeopardy attaches. We must also note that the dismissal is before the judgment (of acquittal or conviction), as expressly stated in Section 28 of General Orders No. 58, which reads as follows:

“Sec. 28. A person can not be tried far an offense,
nor for any attempt to commit the same or frustration thereof, for
which he has been previously brought to trial in a court of competent
jurisdiction, upon a valid complaint or information or oilier formal
charge sufficient in form and substance to sustain a conviction, after
issue properly joined, when the case is dismissed or otherwise
terminated before judgment without the consent of the accused.”

One case contemplated by the rule as a dismissal or termination of
the case would be were the fiscal, upon the case being called for trial
and after a plea has been entered, states that he is not ready to
proceed and the accused, who is not agreeable to a postponement, is
willing to have the case dismissed provisionally. The dismissal is
provisional and there would not be any jeopardy at all. Another is when
after plea the accused asks for another investigation, or the fiscal
asks for it, and the court which does not want to have a case pending
because of the possibility that there may be no sufficient evidence
ultimately, dismisses the case. Still another is where the accused is
to be used as State witness, and is willing to act as such, so the case
is dismissed. Of course, he will still be subject to prosecution if he
fails to comply with his commitment. For the moment we cannot think of
any other instance; but similar instances may happen when the dismissal
is no bar to another prosecution. It is similar to a dismissal without
prejudice” in civil cases.

We can see that none of the above possibilities existed in the case
of Salico. The judgment was not a provisional dismissal of the case
entered with a possibility of filing of a subsequent one. The judgment
of the trial court was in fact an acquittal because of
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, is no reason for saying that the
case was “dismissed” with his express consent and he may again be
subjected to another prosecution.

We again call attention to the fact that judges should be careful
in the use of the term “dismissal” and not use the term in cases where
there has been a trial on the merits and the court finds that the
evidence is insufficient, in which case the judgment that should be
entered is one of acquittal, not merely of dismissal. Even where the
fiscal fails to prosecute and the judge “dismisses” the case, the
termination is not real dismissal but acquittal because the prosecution
failed to prove the case when the time therefor came.

Going now to the case at bar, we find that 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 one 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. The order of the court denying
the admission of the amended information is, therefore, in order and is
hereby affirmed. Without costs.

Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Concepcion, Endencia, Barrera, and Gutierrez, David, JJ., concur.
Padilla, J., on leave.