PEOPLE OF THE PHILIPPINES, PETITIONER, VS. HON. LEODEGARIO L. MOGOL, AS JUDGE OF THE COURT OF FIRST INSTANCE OF QUEZON, BR. IV, AND EDGARDO CABALLAS, RESPONDENTS.

This case commenced on December 27, 1971 in the Municipal Court of
Lopez, Quezon where a criminal complaint was filed against herein
private respondent Edgardo Caballas for Serious Physical Injuries
allegedly committed as follows:

“That on or about the 21st day of December, 1971, at about 7:00
o’clock in the evening at Magsaysay District, municipality of Lopez,
Province of Quezon, Philippines, and within the jurisdiction of this
Honorable Court, the abovenamed accused, with deliberate intent, did
then and there wilfully, unlawfully and feloniously assault, attack and
stab one Ernesto Sandoval with unidentified knife, thus causing upon the
latter physical injuries to wit: 1. Wound, stabbed, 1 cm. long,
penetrating and perforating abdominal cavity, 1 cm. to right side of the
Xyphoid process, non-involvement of the internal organs; 2. Wound,
stabbed, 3 cm. long, penetrating and perforating posterior abdominal
wall, cutting the terminal portion of the 10th rib, along the posterior
axillary line, left which physical injuries will require medical
treatment for a period of more than thirty (30) days and will
incapacitate the said Ernesto Sandoval from the performance of his
customary labors for the same period of time.”^[1]

Upon arraignment on February 5, 1972, the accused Caballas pleaded not guilty.^[2]
Before the presentation of evidence, the private prosecutor on
February 23, 1972 filed an “Urgent Motion to Amend the Complaint” to
charge the offense of Frustrated Murder, contending that a perusal of
the affidavits of the witnesses for the prosecution patently shows that
in the commission of the act complained of, the accused had the manifest
intention to kill the offended party.^[3]
The defense, on the other hand, in its Memorandum argued that since
the accused had already entered his plea, the Court could no longer
entertain the Motion for amendment of the complaint, the intended
amendment being a substantial one for a grave offense with a higher
penalty, citing Section 13, Rule 110 of the Revised Rules of Court.^[4] The Motion was denied in an Order of the Municipal Court dated April 6, 1972 stating that:

“Of course the law just pointed out, the facts of this case as
well as the ground raised by the prosecution (that of not having charged
in the complaint the proper offense) do not absolutely rule out the
legal propriety of allowing amendment of the complaint so as to charge
the proper offense. Reason, however, exists for a denial of the motion.
In the first place all that is before the Court for its appreciation
at this stage of the proceedings is the same evidence disclosed during
the preliminary examination of this case and during that examination the
investigating officer had before him a complaint for Serious Physical
Injuries and was limited in his task to determining whether or not the
evidence presented supports a reasonable ground to believe that the
offense charged has been committed as alleged in the complaint.

“In the absence of a clear showing that there is no merit in the charge
being investigated because the filing of the complaint for a graver
offense is warranted by the evidence or unless what was found by the
investigating officer to have been committed is manifestly different
from the offense charged there would be no lawful sanction to the
investigating officer’s making a declaration that the complaint be
amended to charge what may be the proper offense.”^[5]

The case, thereafter, proceeded to trial. Both parties rested their evidence and the case was submitted for decision.^[6]
No decision on the merits was rendered, however, for in an Order dated
November 29, 1972, the Municipal Court ruled as follows:

“While considering the evidence of this case the court realized that the
evidence on the injuries sustained by the accused and the circumstances
surrounding the infliction thereof overwhelmingly point to the
conclusion that the intention of the assailant was to inflict more than
just injuries. Hence, the court is restricted by what it considers a
legal obstacle to the validity of whatever judgment it renders, because
whether it be one of acquittal or conviction – it shall have so ordered
on a case outside its jurisdiction.

“The evidence is positive and uncontradicted that the person who
inflicted the stab wounds on Ernesto Sandoval had evidently not by
accident but by design, walked with the victim from a certain point on
Real Street up to some 400 meters therefrom which is another spot on a
quite unfrequented side street; that it was in that spot where the
victim was stabbed four times, two of which hit the victim – one, on the
abdominal region and another ‘penetrating and perforating the posterior
abdominal wall, cutting the terminal portion of the 10th rib’; that
this was at about 7:00 o’clock in the evening of December 1971, at which
time it must have been dark already; that the victim was alone, and
that the attack was sudden and treacherous.

“It has also been shown that the knife used by the assailant
measures about 6 inches in length; that the victim was not able to walk
by himself after having been stabbed but that he had to be carried to
the hospital and that while there, the victim almost lost consciousness.
By the medical certificate issued by a physician of the hospital
(Magsaysay Memorial Hospital, Lopez, Quezon) the duration of treatment
has been placed at 30 days.

“The Court believes that the foregoing evidence would support prima facie
a complaint for the crime of frustrated murder and, as stated, prevents
it from rendering judgment in this case. It cannot even rule that the
parties have waived the question of jurisdiction having proceeded with
the trial of the case up to its termination as this would be legally
erroneous.

“The proceedings in the case, however, may not be considered to
have been rendered useless because by it more than by a mere preliminary
investigation, the court has arrived at a better supported finding that
the proper complaint should have been for frustrated murder; that the
crime of frustrated murder has been committed and that there is reason
to believe that the accused Edgardo Caballas might have been the one who
had committed the same.

“IN VIEW OF ALL THE FOREGOING, this case is hereby dismissed to
give way to the filing of a complaint for frustrated murder. Since the
proceedings from the preliminary examination up to the conclusion of the
trial hereof has amounted to a compliance with the requirements of a
preliminary investigation first and second stage, let the records hereof
be forwarded to the Court of First Instance at Calauaq, Quezon, under
the jurisdiction of which court the case for frustrated murder pertains,
through the office of the Provincial Fiscal so that the latter may act
on this case and file the corresponding complaint as above recommended.”^[7]

In compliance with the foregoing Order, the Pro­vincial Fiscal of Quezon
on June 6, 1973 filed with the respondent Court, the Court of First
Instance of Quezon, Branch IV, an Information for frustrated murder
against the same accused Edgardo Caballas, which alleges:

“That on or about the 21st day of December, 1971, in the
Municipality of Lopez, Province of Quezon, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, Edgardo
Caballas, armed with a knife, with intent to kill and with evident
premeditation and treachery, did then and there wilfully, unlawfully and
feloniously attack, assault and stab with the said knife one ERNESTO
SANDOVAL, thereby inflicting upon the latter the following injuries, to
wit:

“1. Wound, stabbed, 1 cm. long, penetrating and perforating
abdominal cavity, 1 cm. to right side of the xyphoid process,
non-involvement of the internal organs.

“2. Wound, stabbed, 3 cm. long, penetrating and perforating
posterior abdominal wall, cutting the ter­minal portion of the 10th rib,
along the posterior axillary line, left.

thus performing all the acts of execution which should have produced the
crime of mur­der as a consequence, but which nevertheless did not
produce it by reason of causes independent of his will, that is, by the
timely and able medical attendance rendered to said Ernesto Sandoval
which prevented his death.”^[8]

On October 22, 1973, the accused moved to quash the above-quoted
Information on the ground of double jeopardy. The Motion was granted by
respondent Court ruling that the “Information for Frustrated Murder is
essentially barred by the rules on double jeopardy as defined in Rule
117, Section 9 of the Revised Rules of Court,” for the reason that:

“x x x accused Edgardo Caballas had been placed in full jeopardy
for the crime of Serious Physical Injuries under the Complaint marked as
Exhibit ‘1’ previously filed before the Municipal Court of Lopez,
Quezon which was dismissed and otherwise terminated by the Presiding
Judge of said Court after the accused had actually been arraigned and
after the evidence by the prosecution and the defense have all been
submitted to the Court and at a time when the parties have submitted the
case for decision. Such being the case a new prosecution of the
accused Edgardo Caballas under the present information for Frustrated
Murder which necessarily includes the crime of Serious Physical Injuries
as held by the Supreme Court in a long line of decisions, would
inevitably place the accused Edgardo Caballas in second jeopardy for an
offense for which he had been previously jeopar­dized.”^[9]

The foregoing Order is now sought to be reviewed by the instant Petition
filed by the Office of the Solicitor General. The sole issue raised is
whether or not the dismissal by the Municipal Court of Lopez, Quezon,
of the complaint for serious physical injuries against the accused
Edgardo Caballas is a dismissal which bars the filing of the information
for frustrated murder in the Court of First Instance against the same
accused on the ground of double jeopardy.

The principle, founded upon reason, justice and conscience, that nemo debet bis puniri pro uno delicto is embodied in the Philippine Constitution as one of the basic rights of the citizens.^[10] It is ordained in the Bill of Rights, Article IV, of the 1973 Constitution that:

“Sec. 22. 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.” (Italics supplied.)

The same provision is found in Article III, Section 1 (20) of the
Constitution of 1935. This constitutional mandate is restated in Rule
117 of the Revised Rules of Court, thus:

“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.” (Italics
supplied.)

Commenting on the double jeopardy protection embodied in the Rules of
Court, Chief Justice Enrique M. Fernando, in his book “The Bill of
Rights”, makes the following significant commentary and We quote: “It
is to be noted that the Rules of Court in providing for a motion to
quash, did extend further the reach of the double jeopardy protection.
If the literal language of the constitutional provision were followed,
either a previous acquittal or conviction is necessary before such a
plea would lie. As already noted, the Rules adopted an expansive view
with the mention of the termination or dismissal of the prosecution
without the express consent of the defendant, a stage short of either
acquittal or conviction. In specifying the grounds of a motion to
quash, it was explicitly set forth therein that even prior to such a
disposition of the case as above indicated, once jeopardy has attached, a
motion to quash would lie.”^[11]

In the mind of the Court, the resolution of the instant Petition depends
on the correct and proper interpretation and application of the phrase
“dismissed or otherwise terminated without the express consent of the
defendant” in Section 9, Rule 117, Rules of Court.

The Solicitor General, in his Memorandum for the Petitioner, contends
that the aforementioned provision contemplates a dismissal which finally
terminates and definitely disposes of a case, not a provisional or
conditional dismissal such as that ordered by the Municipal Court in the
case at bar. The Government counsel argues that while the Municipal
Court dismissed the complaint for serious physical injuries, the very
Order of dismissal shows that it was to be without prejudice, “to give
way to the filing of a complaint for frustrated murder” in the Court of
First Instance. Such a dismissal, it is submitted, is not within the
purview of the double jeopardy provision hereinabove cited. The
Solicitor General concludes that the Order of the Court of First
Instance in question granting the Motion to quash filed by the defense
is erroneous, invalid, and a nullity, for it deprived the State of its
day in court and its duty to prosecute the accused Edgardo Caballas.^[12]

On the other hand, the thrust of private respondent’s arguments is that
the literal language of the subject provision should be made to prevail,
i.e., it is the absence of the express consent of the defendant to the
dismissal or termination of the original criminal case which bars a
subsequent prosecution, and wanting such express consent, jeopardy
immediately and irrevocably attaches regardless of the nature or
character of the dismissal or termination of the case. Private
respondent contends that if a criminal case is dismissed otherwise than
upon the merits at any stage before judgment without the express consent
of the defendant, assuming that all the other requisites of Section 9,
Rule 117 are present, the dismissal of the case shall be definite and a
bar to another prosecution for the same offense. Thus, it is argued
that although the Municipal Court dismissed the first case for serious
physical injuries “to give way to the filing of a complaint for
frustrated murder” in the Court of First Instance, said dismissal was
nevertheless definite and unconditional in law because it was ordered
without the express consent of the accused.^[13]

A review of jurisprudence defining double jeopardy is necessary to resolve the legal issue.

In the case of Jaca vs. Blanco, 86 Phil. 452 (1950), this Court held that:

“x x x the dismissal contemplated in the above-quoted section of
the rule (referring to Section 9, Rule 113 of the old Rules of Court,
now Section 9, Rule 117 of the Revised Rules of Court) is a definite or
unconditional dismissal which terminates the case, and not a dismissal
without prejudice as in the present case. In the absence of any
statutory provision to the contrary, we find no reason why the court may
not, in the interest of justice, dismiss a criminal case provisionally,
i.e., without prejudice to reinstating it before the order becomes
final or to the subsequent filing of a new information for the same
offense.” (Page 454.)

The Jaca ruling was reiterated in People vs. Manlapas, et al., L-17993, August 24, 1962, 5 SCRA 883, 887; Republic vs. Agoncillo, et al., L-27257, August 31, 1971, 40 SCRA 579, 587; and People vs. Hon. Surtida, et al., L-24420, January 26, 1972, 43 SCRA 29, 37. Moreover, as stated in the aforementioned case of Republic vs. Agon­cillo, et al. (supra, p. 588):

“x x x the authoritative pronouncement in the x x x case of People vs.
Obsania (L-24447, June 29, 1968, 23 SCRA 1249), with Justice Castro as
ponente, had made clear beyond doubt that for dismissal to be a bar
under the jeopardy clause of the Constitution, it must have the effect
of an acquittal. Thus: ‘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.’ ”

There can be no question, as indeed it is quite clear, that in the case
at bar, the Order of dismissal issued by the Municipal Court did not
actually terminate or put an end to the prosecution against herein
private respondent for the felonious act he was alleged to have
committed. On the contrary, the dispositive portion of said Order
expressly directed that the records of the case be forwarded to the
Court of First Instance so that the Office of the Provincial Fiscal
could file a complaint for frustrated murder.

Private respondent, however, insists that the dismissal must be
considered in legal contemplation as a judgment of acquittal, calling
attention to the state­ment of the Municipal Court in its dismissal
Order that “there is reason to believe that the accused Edgardo Caballas
might have been the one who committed the same” (Italics
supplied by private respondent). This declaration, according to private
respondent, gives rise to the inference that the evidence presented by
the prosecution as to the identity of the offender fell short of proof
beyond reasonable doubt and, therefore, he, as the accused, was entitled
as a matter of right to a judgment of acquittal.^[14]
The inference is baseless and contrary to the express language of the
subject Order. It is evident from a perusal of the Order of dismissal
that the Municipal Court found private respondent guilty of the crime of
frustrated murder but refrained from rendering a judgment of conviction
on the ground of lack of jurisdiction over the offense proved by the
evidence presented. It was precisely on the basis of this finding of
guilt that the Municipal Court directed that a complaint for frustrated
murder be filed against private respondent in the Court of First
Instance.

In a number of cases, this Court has held a dismissal equivalent to an
acquittal on the merits, and consequently, a bar to a subsequent
prosecution for the same offense or an offense which necessarily
includes or is necessarily included in the offense charged in the former
complaint, but in said cases, the dismissal had been predicated either
on the failure of the pro­secution to prove the guilt of the accused
beyond rea­sonable doubt,^[15] or on the right of the accused to a speedy trial.^[16]
In the instant case, the right of private respondent as an accused to a
speedy trial had never been invoked. Nor did the Municipal Court find
that the prosecution failed to prove the guilt of private respondent
beyond reasonable doubt for in fact said Court in effect stated that
private respondent was guilty, not only of the crime charged of serious
physical injuries, but of the graver offense of frustrated murder.
There is, therefore, no reason why the dismissal Order of the Municipal
Court should be deemed as a judgment of acquittal of the charge for
serious physical injuries.

The fundamental question then in the case at bar is: Was the dismissal
Order terminating the case before respondent Judge legal and valid? The
answer is No. We hold and rule that respondent Judge erred in
dismissing the case for serious physical injuries “to give way to the
filing of a complaint for frustrated murder.” For it is the duty of the
respondent Judge to render the decision as the evidence presented
warrant under the information as filed for serious physical injuries,
and not dismiss the case on his idea or belief that there was evidence
of intent to kill the intended victim. The Judge committed grave abuse
of discretion amounting to excess of juris­diction thereby rendering his
Order of November 29, 1972 null and void.

In the case of People vs. Cabero, 61 Phil. 121, the trial court
dismissed the complaint or information on the ground that the facts
alleged in the information filed in the case do not constitute perjury
or a violation of the provisions of Article 183 of the Revised Penal
Code. The Solicitor General appealed from the Order of dismissal. The
Supreme Court, in setting aside the Order appealed from and declared of
no value, the case remanded to the court of origin for an orderly
determination of the case in the manner provided by law, said:

“Although not within the express language, there are many known
exceptions to the jeopardy rule that have from time to time been
declared by the court. Had the occasion arisen, it is just as
reasonable to suppose that an exception to the rule would have been
declared from an unlawful action of the court as it would for the
existence of an exception in case of the insanity of the judge. The
accused is no more harmed in the one case than in the other.

Even if following the Ylagan case we should ultimately hold that
the accused was placed in jeopardy by her plea we must hold that the
proceedings have not been terminated, as the action of the trial court
was without authority and therefore null and void.”

Since the order of dismissal was without authority and, therefore, null
and void, the proceedings before the Municipal Court have not been
lawfully terminated. Accordingly, there is no second proceeding to
speak of and no double jeopardy. A continuation of the proceedings
against the accused for serious physical injuries is in order for as the
Supreme Court said in Flores, Jr. vs. Enrile, 115 SCRA 236:

“The constitutional mandate against putting a person twice in
jeopardy of pu­nishment for the same offense is to protect the accused
from going through a trial a second time. But, since the first
proceedings has not yet been terminated, other is no second proceeding
to speak of, and, therefore, no double jeopardy.”

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the petition is hereby
DISMISSED. The Order of respondent Judge dated October 25, 1973
quashing the information for frustrated murder is hereby AFFIRMED. The
case is, however, REMANDED to the Municipal Trial Court of Lopez, Quezon
for the proper and orderly decision on the charge for serious physical
injuries. Costs de oficio.
SO ORDERED.

Teehankee, Acting C.J., Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De La Fuente, and Cuevas, JJ., concur.

Fernando, C.J., on official leave.

Makasiar, J., see dissent.

Aquino, J., in the result.

Concepcion, Jr., J., no part.

---

^[1] Records, p. 1.

^[2] Ibid., pp. 34-35.

^[3] Ibid., p. 37.

^[4] Ibid., p. 56.
Section 13, Rule 110 of the Rules of Court provides that: “The
information or complaint may be amended, in substance and form, without
leave of court, at any time before the defendant pleads; and thereafter
and during the trial as to all matters of form, by leave and at the
discretion of the court, when the same can be done without prejudice to
the rights of the defendant.”

^[5] Records, pp. 59-60.

^[6] See Order of the Municipal Court dated November 29, 1972, Records, pp. 87-89.

^[7] Records, pp. 87-89.

^[8] Ibid., pp. 94-95.

^[9] Ibid., pp. 106-109.

^[10] Melo vs. People. 85 Phil. 766, 768; People vs. Gloria, L-39229, December 29, 1977, 80 SCRA 675, 678.

^[11] 1972 edition, p. 286.

^[12] Rollo, pp. 62-72.

^[13] Rollo, pp. 39-40.

^[14] Answer of Private Respondent, p. 4; Rollo, p. 48

^[15] People vs. Hon. Donesa, et al., L-24162, January 31, 1973, 49 SCRA 281, 286-288, citing U.S. vs. Yam Tung Way, 21 Phil. 67; People vs. Bringas, 70 Phil. 528; Gandicela vs. Lutero, 88 Phil. 299; People vs. Bangalao, 94 Phil. 354; People vs. Diaz, 94 Phil. 714; Catilo vs. Abaya, 94 Phil. 1014; People vs. Opemia, 98 Phil. 698; People vs. Labatete, 107 Phil. 697; People vs. Cabarles, 102 Phil. 926; People vs. Bao, 106 Phil. 243; and City Fiscal of Cebu vs. Kintanar, 32 SCRA 601.

^[16] Salcedo vs. Hon. Mendoza and People, L-49375, February 28, 1979, 88 SCRA 811, 815-818, citing Gandicela vs. Lutero, supra; People vs. Diaz, supra; People vs. Abaño, 97 Phil. 28; People vs. Tacneng, L-12082, April 30, 1959; People vs. Robles, 105 Phil. 1016; People vs. Labatete, supra; Lagunilla vs. Hon. Reyes and Motas, 1 SCRA 1364; People vs. Cloribel, 11 SCRA 805. See also People vs. Hon. Fuentebella, et al., L-51759, October 30, 1980, 100 SCRA 672; People vs. Acosta, et al., L-23657, October 29, 1968, 25 SCRA 823.

---

DISSENTING OPINION

MAKASIAR, J.:

There is double jeopardy.

The records show that the accused Edgardo Caballas was charged in the
defunct Municipal Court of Lopez, Quezon on December 27, 1971 for
serious physical injuries (p. 27, rec.). Upon arraignment on February
5, 1972, the accused pleaded not guilty (p. 35, CFI rec.). After trial
on the merits, the case was submitted for decision. No decision was
rendered by the Municipal Trial Court judge. Instead, an order dated
November 29, 1972 was issued, the perti­nent portions of which are as
follows:

“The Court believes that the foregoing evidence would support prima facie a complaint for the crime of frustrated murder, and, as stated, prevents it from entering judgment in this case. xx xx

“IN VIEW OF ALL THE FOREGOING, this case is hereby dismissed to
give way to the filing of a complaint for frustrated murder. xx xx”
(pp. 87-89, rec.).

On June 6, 1973, an information for frustrated murder was filed in the
Court of First Instance of Quezon, Branch IV, in compliance with the
foregoing order (pp. 4 5, rec.). A motion to quash on the ground of
double jeopardy was acted upon favorably by the respondent judge in
favor of the accused.

This Court has held that there is double jeopardy only when all the
following requisites obtain 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 (Almeda vs. Villaluz, 66 SCRA 46; People vs.
Obsania, L-24447, June 29, 1968, 23 SCRA 1249, 1254). If the above
requisites have been shown to exist in the former prosecution, a
subsequent action for the same offense would be barred (see Rule 117,
Sec. 9) on the ground of double jeopardy.

The facts of the case show that the accused was charged with serious
physical injuries upon a valid indictment, before a competent court and
he entered a plea of not guilty upon arraignment.

The second question for our consideration is whether or not the first
jeopardy has terminated. The majority opinion rules that the dismissal
is “provisional” in character and therefore, no double jeopardy could be
appreciated in favor of the accused. This view finds support in the
case of Jaca vs. Blanco (86 Phil. 452) and reiterated in the subsequent cases of People vs. Manlapas, et al. (5 SCRA 883), Republic vs. Agoncillo (40 SCRA 579), and People vs. Surtida, et al. (43 SCRA 29).

The facts of the above-mentioned cases are not analogous to the present case.

In Jaca vs. Blanco, supra, the case was called for trial but the fiscal did not appear. The court then and there dismissed the case without prejudice.
Four minutes after the order of dismissal, the private prosecutor
arrived, followed a little later by the City Fiscal together with the
witnesses for the prosecution. They explained to the court that their
tardiness was due to traffic problems. Satisfied with the explanation,
the order of dismissal was set aside and the case was reset for trial.
The High Court held that “in the absence of any statutory provision to
the contrary, there is no reason why the court may not, in the interest
of justice, dismiss a criminal case provisionally, i.e., without
prejudice to re-instating it before the order becomes final or to the
sub­sequent filing of a new information for the same offense.”

In People vs. Manlapas, et al., supra, the defendants
were charged with attempted rape with robbery before the Justice of the
Peace Court of Baleno, Masbate. Having pleaded not guilty to the charge
and having waived their right to the preliminary investigation, on
motion of the accused, the court forwarded the record of the case to the
court of first instance. The fiscal moved that the case be returned to
the court of origin for further proceedings on the ground that the
complaint was not signed by the offended woman. The case was returned
as prayed for and a new complaint for attempted rape with robbery was
subscribed by the offended woman, after which the record was again
forwarded to the court of first instance, where the fiscal filed the
corresponding information. The defendants entered a plea of not guilty.
The court, finding that no preliminary investigation was conducted by
the justice of the peace on the amended complaint, motu proprio, dismissed the case “without prejudice to the refiling of the same in the proper court.”

Another complaint subscribed by the offended party was filed before the
Justice of the Peace Court. The accused waived their right to the
second stage of the preliminary investigation and the case was forwarded
to the court of first instance, where the fiscal filed the
corresponding information. Thereafter, the court dismissed the case on
the ground of double jeopardy upon motion of the accused.

The order of dismissal was reversed on appeal by this Court. Thus, We held:

“The stand taken by the Court of First Instance when it dismissed the case motu proprio
‘without prejudice to the refiling of the same in the proper court’ on
the wrong premise that the amended complaint was given due course by the
justice of the peace court without first conducting a preliminary
investigation, and when the same court granted the motion to quash on
the ground of double jeopardy after the case was refiled, is erroneous
because the right to a preliminary investigation, being waivable, does
not argue against the validity of the proceedings, the most that could
have been done being to remand the case in order that such investigation
could be conducted. The second dismissal is unwarranted, because the
first dismissal was expressly provided to be without prejudice to the
refiling of the case in the proper court.

xx xx xx

“The dismissal by a competent court motu proprio of a
valid information, after the accused has pleaded not guilty, does not
bar further prosecution for the same offense under Section 9, Rule 113
(now Sec. 9, Rule 117) of the Rules of Court, if such dismissal was made
without prejudice to the refilling of the case in the court” (People vs. Manlapas, et al., supra, 883-­884).

In Republic vs. Agoncillo, et al. (40 SCRA 579), this Court,
speaking through then Associate Justice, now Chief Justice Enrique M.
Fernando, held:

“xx It appeared that in the previous case, the lower court judge, taking note that the Solicitor entrusted with the prosecution needed additional time
for a more thorough study of the case, took such a step, the parties
thus being chargeable with knowledge that a new action could thereafter
be filed. Such dismissal, being without prejudice, the lower
court in the present suit instituted afterwards ought not to have
sustained the claim of twice being put in jeopardy. xx xx” (Italics
supplied).

In People vs. Surtida, supra, the case was
“provisionally dismissed” by the trial judge because the Provincial
Fiscal was not able to attend the hearing. It was later found out that
the absence was justified. WE held that no double jeopardy can be
pleaded where the dismissal of the criminal prosecution was
“provisional” and a subsequent prosecu­tion for the same offense can be
done.

In the cases relied on in the majority opinion, the State has not yet
presented its evidence when the case was dismissed “without prejudice”.
The “dismissal without prejudice” in the aforementioned cases merely
provided for the resurrection of the action to afford the prosecution
the right to present its side. The rationale is to afford procedural
due process to the prosecution in accordance with the maxim Qui aliquid statuerit parte inaudita altera, aequum licet dexerit, haud aequum facerit (He
who decides anything, one party being unheard, though he should decide
right, does wrong). A trial court cannot dismiss outright a case if it
will lead to the deprivation of due process for the State.

Procedural due process is a fundamental right under the Constitution. In the case of People vs. Navarro (63 SCRA 265), We held that:

“xx The State is entitled to due process in criminal cases, that
is, it must be given the opportunity to present its evi­dence in support
of the charge. The Court has always accorded this right to the
prosecution, and where the right had been denied, had promptly annulled
the offending court action. We have heretofore held that a purely
capricious dismissal of an information deprives the State of fair
opportunity to prosecute and convict; it denies the prosecution of its
day in court. For this reason, it is a dismissal (in reality an
acquittal) without due process, and, therefore, null and void.

xx                  xx                     xx

“Such dismissal is invalid for lack of a fundamental prerequisite,
that is, due process, and, consequently, will not constitute a proper
basis for the claim of double jeopardy.”

The above ruling was consistently adhered to in the case of People vs.
Pablo (98 SCRA 289) where We held that there is no double jeopardy in a
case where the order of dismissal or acquittal was made with grave
abuse of discretion amounting to lack of jurisdiction.

A denial of due process as in a purely capricious dismissal of an
information deprives the State of its day in court, and the fair
opportunity to prosecute and convict (People vs. Gomez, 20 SCRA
293). Grave abuse of discretion amounting to lack of jurisdiction
nullifies the proceedings including the order of dismissal itself.
There could be no double jeopardy to speak of because the requisite of a
competent court would be lacking.

Denial of a constitutional right — due process –­ousts the court of jurisdiction.

In the case at hand, however, the trial had already terminated. Both
parties had already rested their evidence. Worse, the case was already
submitted for decision. It is crystal clear that the People were not
deprived of their day in court.

The “dismissal” of the case by the erroneous order of the trial judge
was a dismissal or termination of the case without the express consent
of the accused. The addition of such words “without prejudice,”
“provisionally,” or “definitely” to an order of dismissal is a mere
surplusage if the legal effect under the law is otherwise (Gandicela vs. Lutero, 88 Phil. 299).

The last question for consideration is whether or not the second indictment for frus­trated murder can be considered a same offense as the first offense of serious physical injuries.

Under the present Rules, there is identity between the 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 complaint or information
(Rule 117, Sec. 9, Rules of Court).

The test for determining whether or not a prosecution for one crime
constitutes an obstacle to a subsequent action for another crime upon
the same facts is to inquire whether the facts alleged in the second
information, if proven, would be sufficient to support the former
information of which the accused may be acquitted or convicted (People vs. Martinez, 55 Phil. 10).

In other words, the evidence to support the second information
should have been already existing when the first information or
complaint was filed.

In the instant case, there can be no denial of the fact that the
evidence for the second prosecution for frustrated murder already
existed at the time of the filing of the first complaint for serious
physical injuries. Moreover, the offense of serious physical injuries
is necessarily included in the crime of frustrated murder.

Neither can the theory of supervening facts be made applicable here.
The doctrine of supervening facts, enunciated in the case of Melo vs. People (85 Phil. 769) and reiterated in the case of People vs. Manolong (85 Phil. 829) has no appli­cability with the facts on record.

In accordance with the principle that a charge bars another which
necessarily includes or is necessarily included in the former, it has
been held that: “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
ascent to the highest with precisely the same result'” (People vs. Cox, 107 Mich. 435, 438, cited in U.S. vs. Lim Suco, 11 Phil. 484 and People vs. Tarok, 73 Phil. 260).

In the case of Dionaldo vs. Dacuycuy (108 SCRA 736, Oct. 30,
1981), an amendment of the information to change the crime charged from
homicide to the more serious offense of murder after the accused had
pleaded not guilty, was not allowed on the basis of double jeopardy.
Thus, this Court held:

“It is admitted that the provision which is relevant to the
problem is Rule 110, Sec. 13 of the Rules of Court which stipulates:

“‘Section 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 form, by leave and at the discretion of the court, when
the same can be done without prejudice to the rights of the defendant.

“‘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.’

xx      xx         xx

“To amend the information so as to change the crime charged
from homicide to the more serious offense of murder after the petitioner
had pleaded not guilty to the former is indubitably proscribed by the
first paragraph of the abovequoted provision. For certainly a change
from homicide to murder is not a matter of form; it is one of substance
with very serious conse­quences.

“But can the amendment be justified under the second
paragraph? The answer is, No. For the provision speaks not of
amendment but of dismissal of the information. In other words, the
provision contemplates the filing of a substitute, not an amended
information. But, it may be asked, can not the information for homicide
against the peti­tioner be dismissed since no judgment has yet been
rendered and another information for murder be filed? The answer, again, is No. FOR
THE PETITIONER HAVING PLEADED NOT GUILTY TO HOMICIDE, TO DISMISS THE
CHARGE AGAINST HIM SO AS TO FILE ANOTHER CHARGE FOR MURDER WILL PLACE
HIM THEREBY IN DOUBLE JEOPARDY” (Dionaldo vs. Dacuycuy, supra, 738; Italics supplied).

It is apparent that the municipal court judge was of the opinion that
the evidence supports a case for the more serious offense of frustrated
murder, instead of serious physical injuries as charged in the
complaint. However, the dismissal of the case for serious physical
injuries when the case was submitted for decision after the conclusion
of the trial to give way to the filing of a complaint for frustrated
murder (pp. 87-89, rec.) was a dismissal without the express consent of
the accused. The second information for frustrated murder placed the
accused in double jeopardy. The action of the municipal court judge
cannot even find justification under Section 12, Rule 119 of the Rules of Court. Said section provides:

“Section 12. — When mistake has been made in charging the proper offense
— When it appears at any time after trial has begun and before
judgment is taken, that a mistake has been made in charging the proper
offense, and the defendant cannot be convicted of the offense charged,
nor of any other offense necessarily included there­in, the defendant
must not be discharged, if there appears to be a good cause to detain
him in custody, but the court must commit him to answer for the proper
offense, and may also require the witnesses to give bail for their
appearance at the trial” (Sec. 12, Rule 119).

Section 12, Rule 119 cannot apply for the simple reason that the accused
in the instant case could have been convicted for the offense of
serious physical injuries in the first indictment.

NEMO BIS PUNITUR AUT VEXATUR PRO DELICTO (No one is to be twice punished or vexed for the same fault or offense).

The dismissal of the second information by respondent Judge Mogol is
valid and should be sustained. Hence, this petition should be
dismissed.