BOGO-MEDELLIN MILLING CO., INC. AND ROBERT HERMOSA, PETITIONERS, VS. THE HON. JUDGE PEDRO SON, PRESIDING JUDGE OF REGIONAL TRIAL COURT, BRANCH 11, 7TH JUDICIAL DISTRICT AND MANO…

On 27 September 1985, the Office of the Provincial Fiscal of Cebu
filed before Branch 11 of the Regional Trial Court of Cebu, then presided over
by Judge Valeriano Tomol, Jr., an information charging petitioner Robert
Hermosa with the crime of qualified theft, upon a complaint filed by petitioner
Bogo-Medellin Milling Company, Inc. (“Bogo-Medellin”), in Criminal
Case No. CBU-6172. Bail the amount of
P12,000.00 was recommended. At the same
time, several other persons including private respondent Manolito Tunacao were
charged in a separate information for simple theft in Criminal Case
CBU-6173. The acts involved in both
informations related to the theft of the same item a large rubber tire.

Five (5) months later, on 11 February 1986, private respondent
Manolito Tuñacao was dropped from the information for simple theft in Criminal
Case No. CBU-6173 and instead was charged as co-accused of petitioner Hermosa
in the case for qualified theft (Criminal Case No. CBU-6172). The amended information in CBU-6172 read as
follows:

“That on or about the 24th day of June, 1984, at around 7:00
o’clock in the morning, more or less in the Municipality of Medellin, Province
of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused being then employee’s of the Bogo-Medellin Company,
incorporated, conspiring, confederating and mutually helping with Nonillo Dela
Cruz, Enrique Caballete, and Melecio Pilones, the latter three (3) accused
having been charged in a separate information for theft, with deliberate intent
to gain, and without the knowledge and consent of the owner, and with grave
abuse of confidence, did then and there willfully, and unlawfully and
feloniously take, steal and carry away one (1) tire marked goodyear with a
dimension of 1000 x 20 and sold the same in the amount of Four Thousand Seven
Hundred Eighteen (P4,718.00) Pesos, Philippine Currency to the damage and
prejudice of the Bogo-Medellin Company Incorporated in the amount aforestated.

Contrary to law.”^[1]

After arraignment of the two (2) accused, but before the
prosecution could commence presenting its evidence, petitioner Bogo-Medellin
filed on 14 April 1986, a manifestation informing the trial court of petitioner
Hermosa’s desire and willingness to act as state witness and to testify against
his co-accused, private respondent Tunacao who, Hermosa claimed, was the most
guilty. Bogo-Medellin then prayed for
the discharge of petitioner Hermosa from the information in Criminal Case No.
CBU-6172.

The application for discharge was opposed by co-accused Tunacao
upon the argument that the requirements of Rule 119 of the Rules of Court had
not been satisfied. More specifically,
respondent Tuñacao asserted that petitioner Hermosa, judging from the evidence
presented during the preliminary investigation, was the most guilty of the
several persons accused of stealing the rubber tire.

Initially, Judge Tomol denied the application of petitioner
Bogo-Medellin for discharge of Hermosa. On Bogo-Medellin’s motion for reconsideration, however, Judge Tomol
issued an order reversing himself and discharging petitioner Hermosa from the
information for qualified theft. On 2
December 1986, on the initial scheduled date of hearing of the qualified theft
case petitioner Hermosa failed to appear before the trial court. The hearing was accordingly rescheduled,
first to 20 January 1987 and later to 3 March 1987 by the latter date,
respondent Judge Pedro C. Son had become Presiding Judge of Branch 11 of the
Regional Trial Court of Cebu. On the 3
March 1987 hearing, counsel for private respondent Tuñacao manifested to the
court that he would be moving for reconsideration of the order of Judge Tomol
discharging petitioner Hermosa from the qualified theft information. Bogo-Medellin opposed the motion for
reconsideration upon the ground that reinstatement of Hermosa as co-accused in
Criminal Case No. CBU-6172 would place him in double jeopardy, considering that
the order of Judge Tomol discharging Hermosa had resulted in his acquittal of
the crime of qualified theft.

On 18 March 1987, respondent Judge Son issued an order
reinstating petitioner Hermosa as co-accused in the case for qualified
theft. The dispositive portion of this
order read as follows:

“In view of all the foregoing, and considering the new provisions
in the 1985 Rules on Criminal Procedure the order of August 6,1986 is hereby
reconsidered, and Robert Hermosa is ordered reinstated as accused in the case
at bar. Let a warrant issue for his
arrest with bond fixed as P12,000.00.

In the meantime cancel the hearing on April 2, 1987, but the
hearing on May 19,1987, as previously set,
shall proceed.

SO ORDERED.” ^[2]

Bogo-Medellin moved for reconsideration
of the order of reinstatement, without success.^[3]

The sole issue raised in the instant Petition for Certiorari
is whether or not the order of former Judge Tomol dated 6 August 1986
discharging petitioner Hermosa as accused in Criminal Case No CBU-6172 had
amounted to his acquittal of the crime charged an affirmative answer to this
question would lead to the conclusion that the order of respondent Judge Pedro
C. Son dated 18 March 1987 reinstating him as one of the accused in Criminal
Case No CBU-6172 amounted to subjecting private respondent Tunacao to a second
jeopardy for the same criminal offense.

Under Section 9 of
Rule 117 of the Rules of Court, the following are the requisites for the
defense of double jeopardy:

1. There must be a
complaint or information or other formal charge sufficient in form and
substance to sustain a conviction;

2. Filed before a court of competent jurisdiction;

3. After the accused
had been arraigned and pleaded to the charge;

4.
That the accused was convicted or acquitted or the case against him was
dismissed or otherwise terminated without his express consent;

5. The second
offense charged is the same as the first offense charged, or for an attempt to
commit the same or a frustration thereof; or

6. The second
offense necessarily includes or is necessarily included in the first offense
charged.

Bogo-Medellin and Hermosa argue that the
order of Judge Tomol of 6 August 1986 discharging Hermosa from the information
for qualified theft had the effect of acquitting Hermosa of that offense.

Upon the other hand, it is contended by respondent Tuñacao that
the requisites under Section 9 of Rule 119 of the Rules of Court were not
properly complied with. Those
requisites for the discharge of an accused
from an information in order that he may become a witness for the prosecution, are the following:

“(1) Two or
more persons are charged with commission of a certain offense;

(2) The application for discharge is filed
before the defense has offered its evidence;

(3) There is absolute necessity for the
testimony of the defendant whose discharge is requested;

(4) There is no other direct evidence
available for the proper prosecution of the offense committed;

(5) The testimony of said defendant can be
substantially corroborated in its material points;

(6) Said defendant does not appear to be the
most guilty; and

(7) Said defendant has not at any time been
convicted of any offense involving moral turpitude.”^[4]

In the case at bar, it does appear that
not all of the above requisites had been complied with when petitioner Hermosa
was discharged from the qualified theft information. There appeared no absolute necessity for Hermosa’s testimony in
order to sustain the information against Tuñacao, since there were other witnesses
whose testimonies should be sufficient to prove the charge. Thus, during the preliminary investigation,
Nonillo dela Cruz, one of the accused in the information for simple theft,
testified that it was Hermosa who had driven the truck carrying the alleged
stolen tire out of the premises of petitioner Bogo-Medellin^[5] and
that after the tire had been sold to a certain Soledad Divinagracia, he (dela
Cruz) received from Tunacao P100.00 and P200.00 from Hermosa. It, therefore, appears that Hermosa’s
testimony would merely serve to corroborate and strengthen the testimony of
Nonillo dela Cruz and to furnish additional details of the events constituting
the offense charged. It may also be
noted that during the preliminary investigation, petitioner Hermosa had
admitted that it was he who had driven the truck carrying the stolen tire, and
that it was he who had brought the same to the vulcanizing shop of Gerry Maluya
which shop was under the management of Nonillo dela Cruz. Moreover, since petitioner Hermosa had also
testified that respondent Tuñacao and he (Hermosa) had planned the commission
of the crimes.^[6]
Hermosa appeared to be at least as guilty, it not more so, than respondent
Tuñacao.

Notwithstanding however the apparent failure to comply with all
of the above listed requisites for the discharge of one of several accused to
be a witness for the prosecution, the discharge of petitioner Hermosa must be
considered as valid for present purposes, that is, for determination of whether
a second and prohibited jeopardy would attach upon reinstatement of Hermosa as
a co-accused in the qualified theft information. The general rule is that the discharge of an accused in order
that he may turn state witness, is expressly left to the discretion of the
trial Court.^[7]
The effect of the discharge of a defendant is specified in Section 10 of Rule
119 in the following manner:

“Sec. 10. Discharge of Accused Operates as Acquittal. ? The order
indicated in the preceding
section, shall amount to an acquittal of the accused discharged and shall be a
bar to future Prosecution for the same offense, unless the accused fails or
refuses to testify against his co-accused in accordance with his sworn
statement constituting the basis for his discharge.”

Respondent Judge Pedro C. Son did read Section 10 of Rule 119 and
reached the following construction thereof:

“On the claim of the private prosecutor that the discharge of
Robert Hermosa on the basis of the
questioned order operated as an acquittal and therefore would constitute double
jeopardy if he is reinstated as accused it needs only to state that under
Section 10 of Rule 119, the discharge which amounts to an acquittal and
therefore a bar to a future prosecution for the same offense, applies only
if and after the discharged accused shall have actually testified for the state or his failure to
testify is attributable to the prosecution. Thus, where Hermosa has not yet testified the principle of
double jeopardy does not yet apply. For even if he is not reinstated as accused and he fails or refuses for
some reason to testify against his co-accused then his discharge does not
operate as an acquittal and therefore not a bar to future prosecution of the
same offense.”^[8]
(Underscoring supplied).

We read Section 10 differently. We consider Section 10 to mean that once the discharge of an accused
from the information is effected, the legal consequence of acquittal follows and persists unless the accused so discharged fails or refuses to
testify against his co-defendant, in which case the defense of double jeopardy
is withdrawn from him and becomes unavailable to him. Until it is shown that the discharged accused has in fact failed
or refused to testify against his co-defendant, subsequent proof showing that
any or all of the conditions listed in Section 9 of Rule 119 of the Rules of Court had not been actually
fulfilled, would not affect the legal consequence of the discharge, i.e., would
not wipe away the resulting acquittal. Using an analogy drawn from the civil law, the failure or refusal of the
discharged accused to testify against his co-accused constitutes a resolutory
condition that results in lifting of the defense of double jeopardy. The actual testimony of the discharged
accused against his co-accused is not, contrary to what respondent Judge Son believed, a condition precedent
to the availability of the double jeopardy defense.

This Court has held several times in the past that any witting or
unwitting error of the prosecution in asking for the discharge of an accused
and of the trial court in granting the petition for discharge, so long as no
question, of jurisdiction involved, would not deprive the discharged accused of
the acquittal that is specified in Section 10 of Rule 119 and of the
constitutional guarantee against double jeopardy.^[9] It is
also relevant to note that the improper or mistaken discharge of an accused
like petitioner Hermosa would not affect his competency as a witness or render
inadmissible his testimony.^[10]

In the case at bar, there is no evidence of record to show that
petitioner Hermosa failed or refused to testify against his co-accused, i.e.,
that he reneged on his covenant with the prosecution.^[11]
All the record shows is that petitioner Hermosa failed to attend two (2)
scheduled hearings, which does not necessarily show that he had violated his
undertaking to testify against his co-accused “in accordance with his
sworn statement constituting the basis for his discharge.” Indeed,
respondent Judge Son had noted in his 18 March 1987 order that Hermosa had yet to
testify. In his second order postponing
the hearing of 19 May 1987 to 7 July 1987, respondent Judge Son stated that the
absence of petitioner Hermosa could have been due to the fact that the warrant
for his arrest had not been properly served on him as ordered by the trial
court in its order of 18 March 1987 reinstating him as co-accused in the
qualified theft information. There is
thus on record no sufficient basis to withhold the benefits of Section 10 of
Rule 119 from petitioner Hermosa. We
conclude that, petitioner Hermosa having been acquitted of the charge of
qualified theft could not be subsequently reinstated as a co-accused in the
same information without a prohibited second jeopardy arising under the
circumstances, absent satisfactory proof that he had refused or failed to
testify against his co-accused.

WHEREFORE, the Petition for Certiorari
is hereby GRANTED DUE COURSE and
the Orders of respondent Judge Pedro C. Son dated 18 March 1987 and 3 July 1987
are hereby SET ASIDE and the
Order of Judge Valeriano Tomol dated 6 August 1986 is hereby REINSTATED. No pronouncement as to costs.

SO ORDERED.

Gutierrez, Jr.,
(Chairman), Bidin, Davide, Jr., and
Romero, JJ., concur.

^[1]
Record, pp. 108-109.

^[2]
Rollo, Annex “B” of Petition;
pp. 18–19.

^[3]
Rollo, Annex “C” of Petition,
p. 24.

^[4]
Manggubat v. Sandiganbayan, 135 SCRA 732 (1985); People v.
Aniñon, 158 SCRA 701. (1988).

^[5]
Record, pp. 54-55.

^[6]
Id., pp. 26-27.

^[7]
People v. Ibanez, 92 Phil. 933 (1953).

^[8]
Rollo, p. 22.

^[9]
People v. Mendiola, 82 Phil. 740 (1949); People v. Bautista, 106
Phil. 39 (1959); Manggubat v. Sandiganbayan supra; People v.
Añinon, supra.

^[10]
People v. Torrefranca, 151 SCRA 143 (1987); People v. Jamero, 133
Phil. 127 (1968); People v. De Leon. 108 Phil. 800 (1960); People v.
Dagundong, 108 Phil. 682 (1960); People v. Castañeda, 63 Phil. 480
(1936).

^[11]
U.S. v. De Guzman, 30 Phil. 416 (1915).