Tuesday, March 27, 2012

memorandum preparation examination

PART 1 – TRIAL MEMORANDUM:
Jonna Bueno filed an action for damages of P500,000.00 against Gloria Supermart, Inc.
before the Regional Trial Court of Quezon City for the injuries that her son, Ricky, suffered at its
supermarket, for the expense, and for the emotional pain that it brought to him and his mother.
Consider the following testimonies that the witnesses from either side presented at the
trial of the case. Assume that you are the lawyer either for Bueno or for Gloria Supermart and
write a trial memorandum for the side you have chosen to represent. You would want to
convince the trial court to decide the case in your client’s favor.
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Excerpts from Transcript of Stenographic Notes
Bueno vs. Gloria Supermart, Inc., Civil Case No. 27-112011, Hearing of June 7, 2011.
DIRECT EXAMINATION OF PLAINTIFF’S WITNESS
COURT STAFF: (After swearing in the witness) State your name and personal
circumstances.
WITNESS: I am Jonna Bueno, 35 years old, married, and a resident of 89 Little
Baguio St., San Juan City, Metro Manila. I am an accountant.
ATTY. REX BELTRAN: Your Honor, we are offering the testimony of Ms. Bueno to
prove that her son, Ricky, slipped on the wet floor of Gloria Supermart by reason of the gross
negligence of its management and employees, causing him to suffer excruciating pain from a
fractured arm and undergo great discomfort and depression. Ms. Bueno herself incurred an
enormous medical expense and suffered from mental stress.
COURT: What do you say counsel?
ATTY. EMIL SUNGA: Subject to cross, Your Honor.
COURT: Proceed, Atty. Beltran.
ATTY. BELTRAN:
Q. Ms. Bueno, do you know the defendant Gloria Supermart?
A. Yes, sir.
Q. Why do you know it?
A. I have been buying our groceries and other things from Gloria Supermart for the
past 20 years.
Q. Where is Gloria Supermart located?
A. On Ortigas Avenue, San Juan, Metro Manila, just two blocks from our
condominium.
Q. Do you remember where you were at about 10 a.m. on May 11, 2010?
A. Yes, Sir.
Q. Where were you?
A. I was at Gloria Supermart.
Q. What were you doing there?
A. I was about to cook spaghetti for my son Ricky when I realized I didn’t have any
tomato sauce so I went to Gloria Supermart to buy tomato sauce and some other things we
needed in the house.
Q. Did you have any companion?
A. Yes, my boy Ricky.
Q. How old was Ricky at that time?
A. His birthday is May 2, 2005. He was 5 years old already.
Q. How did you do your shopping for groceries with Ricky on tag?
A. I had a cart. He would sometimes ride on it or walk along the aisles with me. At
times, I will ask him to pick safe things from the shelves and put them in the cart. He also grabs
goodies that he likes.
Q. Do you remember anything unusual that happened while you and Ricky were
picking up groceries at the shelves?
A. Yes, a small ball rolled along the aisle and Ricky ran after it.
Q. Was he able to catch the ball?
A. No. Although Ricky had gone some distance down the aisle from where I stood,
I saw him slip with a heavy bang on a wet section of the aisle.
Page 2 of 8
Q. What happened to him after he slipped?
A. He shrieked from pain in his right wrist which he used to stop his fall.
Q. What did you do after you saw Ricky fall down the floor, looking hurt?
A. I immediately came to his side to help him. I also asked a store clerk who came
around to help me carry Ricky to my car so I could bring him to the hospital. I did not get to
finish my shopping.
Q. Did the store clerk help you?
A. Yes, Sir. But he was not very friendly. Afterwards, I brought Ricky to the
Philippine Orthopedic Hospital.
Q. You said that Ricky slipped on a wet floor section of the aisle. How did you know
that the section you referred to was wet?
A. I saw the puddle of liquid on the floor.
Q. Did you get to know what kind of liquid it was?
A. It was syrup that seeped out from a leaking bottle in a nearby shelf.
Q. Was there any supermarket cleaner nearby when you came near that puddle of
syrup?
A. None sir.
Q. Did you see any supermarket grocery clerk around?
A. None, Sir. There should have been someone to warn people of that puddle of
syrup on the floor.
Q. Did you see any sign near that puddle or around it, warning customers of the
danger it presents?
A. None, Sir, although I heard someone shout, “Hoy, bata, ingat! May basa diyan!”
ATTY. SUNGA: I move to strike out that testimony. It is hearsay.
ATTY. BELTRAN: It is admissible as a res gestae statement, Your Honor.
COURT: Strike out the answer.
Q. You said that you brought your son, Ricky, to the Philippine Orthopedic Hospital,
who attended to your son at the hospital?
A. Dr. John D. Lim, an orthopedic surgeon. He was the physician at the emergency
room. I think he is in his mid-forties.
Q. You said it was his right wrist that Ricky complained of. How did you know that?
A. He pointed to it while crying from pain. After we brought him to the Philippine
Orthopedic Hospital, I saw the doctor operate on his right wrist to restore the position of a
fractured bone. Later, the doctor showed me an x-ray picture of the wrist bone before and after
the operation.
Q. How long did Ricky stay in the hospital?
A. The doctor required Ricky to stay overnight at the hospital for pain management
and care. He ordered his release on the following day.
Q. Based on your observation, how long did it take for Ricky to recover the use of
his right wrist?
A. About six weeks.
Q. How did your son take these things that happened to him?
A. He complained of great pain at the beginning. Later, he moved with discomfort
and difficulty, unable to use both hands.
Q. How about you, Ms. Bueno? How did you take these events?
A. He is my son. I mentally suffered more pain than he did. He is my only son. I
don’t know what I would do if I lose him. My husband and I waited for years before we had
Ricky. And then this happens.
Q. How much expense, if any, did you incur for the hospitalization and medical
treatment of Ricky?
A. I spent P22,840.00 for doctor’s fee, hospitalization, and medicine. We also
bought toys for Ricky to distract him from the pain that he suffered. We spent approximately
P5,000.00.
Q. Do you have evidence of these expenses?
A. Yes, Sir, here are my receipts
[Note: Assume that the marking and presentation of the receipts for the expenses
mentioned above, although omitted here, were done right.]
ATTY. BELTRAN: That is all for the witness.
COURT: Cross.
CROSS-EXAMINATION BY ATTY. SUNGA
Page 3 of 8
ATTY. SUNGA:
Q. Ms. Bueno, you said that you brought your son Ricky to Gloria Supermart on May
11, 2010. Did you need him to be there whenever you buy your groceries?
A. No, Sir, but I did not have anyone to leave him home with.
Q. But when you took him there, you of course are aware that the supermarket did
not have a leave-your-child service?
A. Yes, Sir.
Q. Consequently, you were aware that the responsibility for looking after Ricky’s
needs and safety while in the supermarket is primarily in your hands as his mother?
A. Yes, Sir, but supermarkets always expect children to come with their parents and
so it has to make sure that the place is safe for children.
Q. But do you agree that, as his mother, he is safer when he stays by your side in a
public place like a supermarket?
A. Yes, Sir.
Q. Still, you let him slip away from your control, when he ran after that ball?
A. Yes, Sir, but the supermarket should keep their eyes open for things like loose
balls running down their aisles, drawing children away from their parents, and letting them slip
on carelessly spilled liquids.
Q. But did you not notice that the aisles of Gloria Supermart have sales clerks that
attend to inquiries and needs of its customers?
A. Not all the time. When my son had his accident, no one was around to prevent it
from happening.
ATTY. SUNGA: That is all, Your Honor.
Excerpts from Transcript of Stenographic Notes
Bueno vs. Gloria Supermart, Inc., Civil Case No. 27-112011, Hearing of June 14, 2011
DIRECT EXAMINATION OF DEFENDANT’S WITNESS
COURT STAFF: (After swearing in the witness) State your name and personal
circumstances.
WITNESS; I am Rene Castro, 55 years old, married, and a resident of 12 V.G. Cruz,
Sampaloc, Manila. I am a supermarket supervisor.
ATTY. EMIL SUNGA: Your Honor, we are offering the testimony of Mr. Castro to prove
that Gloria Supermart exercised proper diligence in making its premises safe for its customers;
that the accident involving Ricky was something it could not reasonably anticipate and so
beyond its control; that, in any event, Ricky and her mother contributed to Ricky slipping on the
floor and suffering physical injury and pain; and that Gloria Supermart provided immediate help
and assistance to Ricky and her mother.
COURT: What do you say counsel?
ATTY. BELTRAN: Subject to cross, Your Honor.
COURT: Proceed Atty. Sunga.
ATTY. SUNGA:
Q. Mr. Castro, you said that you are a supermarket supervisor. For whom do you
work as supermarket supervisor?
A. I have been with Gloria Supermart for 5 years already, Sir.
Q. Do you know the plaintiff Jonna Bueno?
A. Yes, Sir, she has been a customer at our supermarket.
Q. Do you recall seeing her at your supermarket about 10 a.m. on May 11, 2010?
A. Yes, Sir.
Q. Why do you recall seeing her there at that time and on that date?
A. Because her son Ricky had an accident and I was around.
Q. Did you see how the accident happened?
A. No, Sir, but I was just at the next aisle fixing the new stocks of instant noodles.
When I heard the commotion, I quickly walked down there and saw Ricky lying on the floor,
crying with pain. Her mother, Ms. Bueno, was trying to minister to him.
Q. What else did you see?
A. Some items from a nearby shelf had fallen down the floor.
Q. What were these items?
A. There were a couple of bottles of syrup, mostly in plastic bottles, except one
glass bottle that had broken and spilled part of its contents on the floor.
Q. To what do you account this?
Page 4 of 8
A. I could infer from the position of Ricky that he bumped into the shelf containing
syrup bottles and knocked off some of them.
Q. Did you speak to Ms. Bueno about it?
A. I talked to her at the hospital while we were waiting for Ricky’s treatment to be
finished and I asked her what happened.
Q. What did she say?
A. She said that Ricky saw a ball rolling down the aisle and he ran after it.
Somehow, he slipped on the floor and hurt his arm. She was so flustered.
Q. Are children allowed in your supermarket?
A. All supermarkets allow customers to bring their children into the store. It is often
a necessity for them. It is understood of course that their parents would look after them,
preventing them from misbehaving, causing damage to the merchandise, or getting injured.
Q. Ms. Bueno said that Ricky slid on the floor because some syrup seeped out of a
leaking bottle in one of the shelves. Do you know anything about it?
A. Yes, sir. What she said is not true. The syrup must have come from one of the
bottles that Ricky knocked off from the shelf when he ran wild down the aisle, supposedly
running after a loose ball. There can be no other explanation.
Q. What did you do then?
A. I helped Ms. Bueno pick up Ricky, intending to bring him to a hospital but his
mom insisted that we take him to her car so she can drive him quickly to the hospital. I carried
Ricky to her car and accompanied them to the hospital.
Q. Did Ms. Bueno tell you anything while you were in the car?
A. She was blaming the supermarket for the accident.
Q. Did you reply to her?
A. No, Sir, I said nothing to upset her because she was driving and was worried
about her child.
ATTY. SUNGA: That is all, Your Honor.
CROSS-EXAMINATION BY ATTY. BELTRAN
ATTY. BELTRAN:
Q. Mr. Castro, You said that you did not actually see the accident when it happened,
is that right?
A. Yes, Sir.
Q. In fact, you were in another aisle at that time?
A. Yes, Sir.
Q. So when you said that Ricky bumped into the shelf containing syrup bottles and
knocked off some of them, you were merely speculating on what could have happened, right?
A. Yes, Sir, but the scene suggested it.
Q. Since you did not see what actually happened at that aisle, is it possible for some
other person to have knocked off those bottles?
A. Yes, Sir, that is possible but not likely since I did not see any person leave the
place in haste.
Q. So, it is also possible that the syrup on the floor, spilled by someone else, caused
Ricky to slip as he was running after some ball before you showed up?
A. Yes, that is possible, but unlikely. The shelves are carefully stocked.
Q. Do accidents resulting in injury happen in your supermarkets?
A. Yes but not so often; about one accident a year, if I remember right. These
things are unavoidable because hundreds of people come to the supermarket everyday.
Q. How about shoplifting, does this happen often?
A. Every now and then, Sir. It’s normal for supermarkets.
Q. So naturally you must have some procedure for dealing with events like
accidents or shoplifting?
A. Yes, Sir.
Q. To protect your rights and interests, is that correct?
A. Yes, Sir.
Q. Since Ricky had this serious accident that you claim was not your fault as the
scene suggested, did your supermarket bother to take pictures of the puddle on the floor and
the bottles of syrup that you said Ricky had knocked off?
A. No, Sir.
ATTY. BELTRAN: That is all for the witness.

LAWS AND JURISPRUDENCE
FAMILY CODE
PARENTAL AUTHORITY
ART. 209. Pursuant to the natural right and duty of parents over the person and
property of their unemancipated children, parental authority and responsibility shall include the
caring for and rearing of such children for civic consciousness and efficiency and the
development of their moral, mental and physical character and well-being.
Art. 20. Parental authority and responsibility may not be renounced or transferred except
in the cases authorized by law.
Art. 220. The parents and those exercising parental authority shall have with respect to
their unemancipated children or wards the following rights and duties:
(1) To keep them in their company, to support, educate and instruct them by right
precept and good example, and to provide for their upbringing in keeping with their
means;
xxx xxx xxx
(8) To impose discipline on them as may be required under the circumstances; and
(9) To perform such other duties as are imposed by law upon parents and guardians.
Art. 221. Parents and other persons exercising parental authority shall be civilly liable for
the injuries and damages caused by the acts or omissions of their unemancipated children living
in their company and under their parental authority subject to the appropriate defenses provided
by law.
CIVIL CODE
PERSONAL LIABILITY
Art. 20. Every person who, contrary to law, willfully or negligently causes damage to
another, shall indemnify the latter for the same.
NUISANCE
Art. 694. A nuisance is any act, omission, establishment, business, condition of property,
or anything else which:
(1) Injures or endangers the health or safety of others; or
xxx xxx xxx
Art. 697. The abatement of a nuisance does not preclude the right of any person injured
to recover damages for its past existence.
Attractive Nuisance
One who maintains on his premises dangerous instrumentalities or
appliances of a character likely to attract children in play, and who fails to
exercise ordinary care to prevent children from playing therewith or resorting
thereto, is liable to a child of tender years who is injured thereby, even if the child
is technically a trespasser in the premises. (Hidalgo Enterprises, Inc., v.
Balandan, et al., L-3422, June 13, 1952, 91 Phil. 488)
QUASI-DELICTS
Art. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no prePage
6 of 8
existing contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.
An accident pertains to an unforeseen event in which no fault or
negligence attaches to the defendant. xxx
On the other hand, negligence is the omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing of something which a prudent
and reasonable man would not do. xxx
Accident and negligence are intrinsically contradictory; one cannot exist
with the other. Accident occurs when the person concerned is exercising ordinary
care, which is not caused by fault of any person and which could not have been
prevented by any means suggested by common prudence. (Jarco Marketing
Corporation v. Court of Appeals, G.R. No. 129792, December 21, 1999, 321
SCRA 375)
The doctrine of res ipsa loquitor applies where (1) the accident was of
such character as to warrant an inference that it would not have happened
except for the defendant's negligence; (2) the accident must have been caused
by an agency or instrumentality within the exclusive management or control of
the person charged with the negligence complained of; and (3) the accident must
not have been due to any voluntary action or contribution on the part of the
person injured. (Child Learning Center, Inc. v. Tagorio, G.R. No. 150920,
November 25, 2005, 476 SCRA 236)
The test for determining whether a person is negligent in doing an act
whereby injury or damage results to the person or property of another is this:
could a prudent man, in the position of the person to whom negligence is
attributed, foresee harm to the person injured as a reasonable consequence of
the course actually pursued? (Philippine National Construction Corporation v.
Court of Appeals, G.R. No. 159270, August 22, 2005, 467 SCRA 569)
Art. 2179. When the plaintiff's own negligence was the immediate and proximate cause
of his injury, he cannot recover damages. But if his negligence was only contributory, the
immediate and proximate cause of the injury being the defendant's lack of due care, the plaintiff
may recover damages, but the courts shall mitigate the damages to be awarded.
Contributory negligence is conduct on the part of the injured party,
contributing as a legal cause to the harm he has suffered, which falls below the
standard which he is required to conform for his own protection.
xxx xxx xxx
It is an act or omission amounting to want of ordinary care on the part of
the person injured which, concurring with the defendant’s negligence, is the
proximate cause of the injury. (National Power Corporation v. Heirs of Noble
Casionan, G.R. No. 165969, November 27, 2008, 572 SCRA 71)
Proximate cause is defined as that cause, which, in natural and
continuous sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred. (Ramos v. C.O.L.
Realty Corporation, G.R. No. 184905, August 28, 2009, 597 SCRA 526)
Art. 2180. The obligation imposed by Article 2176 is demandable not only for one's own
acts or omissions, but also for those of persons for whom one is responsible.
xxx xxx xxx
The owners and managers of an establishment or enterprise are likewise responsible for
damages caused by their employees in the service of the branches in which the latter are
employed or on the occasion of their functions.
xxx xxx xxx
The responsibility treated of in this article shall cease when the persons herein mentioned prove
that they observed all the diligence of a good father of a family to prevent damage.
DAMAGES
Page 7 of 8
Art. 2197. Damages may be:
(1) Actual or compensatory;
(2) Moral;
(3) Nominal;
(4) Temperate or moderate;
(5) Liquidated; or
(6) Exemplary or corrective.
Art. 2199. Except as provided by law or by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory damages.
Art. 2203. The party suffering loss or injury must exercise the diligence of a good father
of a family to minimize the damages resulting from the act or omission in question.
Art. 2214. In quasi-delicts, the contributory negligence of the plaintiff shall reduce the
damages that he may recover.
The underlying precept on contributory negligence is that a plaintiff who is
partly responsible for his own injury should not be entitled to recover damages in
full but must bear the consequences of his own negligence. (National Power
Corporation v. Heirs of Noble Casionan, G.R. No. 165969, November 27, 2008,
572 SCRA 71)
In Phoenix Construction, Inc., v. Intermediate Appellate Court, where we
held that the legal and proximate cause of the accident and of Dionisio’s injuries
was the wrongful and negligent manner in which the dump truck was parked but
found Dionisio guilty of contributory negligence on the night of the accident, we
allocated most of the damages on a 20-80 ratio. In said case, we required
Dionisio to bear 20% of the damages awarded by the appellate court, except as
to the award of exemplary damages, attorney’s fees and costs. (Estacion v.
Bernardo, G.R. No. 144723, February 27, 2006, 483 SCRA 222)
Art. 2217. Moral damages include physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar
injury. Though incapable of pecuniary computation, moral damages may be recovered if they
are the proximate result of the defendant's wrongful act for omission.
Art. 2219. Moral damages may be recovered in the following and analogous cases:
xxx xxx xxx
(2) Quasi-delicts causing physical injuries;
xxx xxx xxx
RULES OF COURT
EVIDENCE
Sec. 36.Testimony generally confined to personal knowledge; hearsay excluded. — A
witness can testify only to those facts which he knows of his personal knowledge; that is, which
are derived from his own perception, except as otherwise provided in these rules.
Where the statements or writings attributed to a person who is not on the
witness stand are being offered not to prove the truth of the facts stated therein
but only to prove that those statements were actually made or those writings
were executed, such evidence is not covered by the hearsay evidence
rule.(Cornejo, Sr., vs. Sandiganbayan, G.R. No. 58831, July 31, 1987, 152 SCRA
559)
Under the doctrine of independently relevant statements, only the fact
that such statements were made is relevant, and the truth or falsity thereof is
Pageimmaterial. The hearsay rule does not apply. (People v. Gumimba et al., G.R.
No. 174056, February 27, 2007, 517 SCRA 25)
Sec. 42.Part of res gestae. — Statements made by a person while a startling occurrence
is taking place or immediately prior or subsequent thereto with respect to the circumstances
thereof, may be given in evidence as part of res gestae. xxx
A declaration made spontaneously after a startling occurrence is deemed
as part of the res gestae when (1) the principal act, the res gestae is a startling
occurrence; (2) the statements were made before the declarant had time to
contrive or devise; and (3) the statements concern the occurrence in question
and its immediately attending circumstances. (Zarate v. Regional Trial Court,
Branch 43, Gingoog City, Misamis Oriental, G.R. No. 152263, July 3, 2009, 591
SCRA 510)
Sec. 48.General rule. — The opinion of witness is not admissible, except as indicated in
the following sections.
Sec. 3.Disputable presumptions. — The following presumptions are satisfactory if
uncontradicted, but may be contradicted and overcome by other evidence:
x x x
(d)That a person takes ordinary care of his concerns;
(q)That the ordinary course of business has been followed;
(y)That things have happened according to the ordinary course of nature and ordinary
nature habits of life;
In every tort case filed under Article 2176 of the Civil Code, plaintiff has to
prove by a preponderance of evidence: (1) the damages suffered by the plaintiff;
(2) the fault or negligence of the defendant or some other person for whose act
he must respond; and (3) the connection of cause and effect between the fault or
negligence and the damages incurred(Child Learning Center, Inc. v. Tagorio,
G.R. No. 150920, November 25, 2005, 476 SCRA 236)

Friday, March 23, 2012

search of moving vehicle

SECOND DIVISION

G.R. No. 188611 June 16, 2010

PEOPLE OF THE PHILIPPINES, Appellee,
vs.
BELEN MARIACOS, Appellant.

D E C I S I O N

NACHURA, J.:

Before this Court is an appeal from the Decision1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 02718, which affirmed the decision2 of the Regional Trial Court (RTC), Branch 29, San Fernando City, La Union, in Criminal Case No. 7144, finding appellant Belen Mariacos guilty of violating Article II, Section 5 of Republic Act (R.A.) No. 9165, or the Comprehensive Dangerous Drugs Act of 2002.

The facts of the case, as summarized by the CA, are as follows:

Accused-appellant Belen Mariacos was charged in an Information, dated November 7, 2005 of violating Section 5, Article II of Republic Act [No.] 9165, allegedly committed as follows:

"That on or about the 27th day of October, 2005, in the Municipality of San Gabriel, Province of La Union, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously transport, deliver 7,030.3, (sic) grams of dried marijuana fruiting tops without the necessary permit or authority from the proper government agency or office.

CONTRARY TO LAW."

When arraigned on December 13, 2005, accused-appellant pleaded not guilty. During the pre-trial, the following were stipulated upon:

"1. Accused admits that she is the same person identified in the information as Belen Mariacos;

2. That accused is a resident of Brgy. Lunoy, San Gabriel, La Union;

3. That at the time of the arrest of the accused, accused had just alighted from a passenger jeepney;

4. That the marijuana allegedly taken from the possession of the accused contained in two (2) bags were submitted for examination to the Crime Lab;

5. That per Chemistry Report No. D-109-2005, the alleged drug submitted for examination gave positive result for the presence of marijuana;

6. That the drugs allegedly obtained from the accused contained (sic) and submitted for examination weighed 7,030.3 grams;

7. The Prosecutor admits the existence of a counter-affidavit executed by the accused; and

8. The existence of the affidavits executed by the witnesses of the accused family (sic): Lyn Punasen, Mercedes Tila and Magdalena Carino."

During the trial, the prosecution established the following evidence:

On October 26, 2005, in the evening, the San Gabriel Police Station of San Gabriel, La Union, conducted a checkpoint near the police station at the poblacion to intercept a suspected transportation of marijuana from Barangay Balbalayang, San Gabriel, La Union. The group at the checkpoint was composed of PO2 Lunes B. Pallayoc ("PO2 Pallayoc"), the Chief of Police, and other policemen. When the checkpoint did not yield any suspect or marijuana, the Chief of Police instructed PO2 Pallayoc to proceed to Barangay Balbalayang to conduct surveillance operation (sic).

At dawn on October 27, 2005, in Barangay Balbalayang, PO2 Pallayoc met with a secret agent of the Barangay Intelligence Network who informed him that a baggage of marijuana had been loaded on a passenger jeepney that was about to leave for the poblacion. The agent mentioned three (3) bags and one (1) blue plastic bag. Further, the agent described a backpack bag with an "O.K." marking. PO2 Pallayoc then boarded the said jeepney and positioned himself on top thereof. While the vehicle was in motion, he found the black backpack with an "O.K." marking and peeked inside its contents. PO2 Pallayoc found bricks of marijuana wrapped in newspapers. He then asked the other passengers on top of the jeepney about the owner of the bag, but no one knew.

When the jeepney reached the poblacion, PO2 Pallayoc alighted together with the other passengers. Unfortunately, he did not notice who took the black backpack from atop the jeepney. He only realized a few moments later that the said bag and three (3) other bags, including a blue plastic bag, were already being carried away by two (2) women. He caught up with the women and introduced himself as a policeman. He told them that they were under arrest, but one of the women got away.

PO2 Pallayoc brought the woman, who was later identified as herein accused-appellant Belen Mariacos, and the bags to the police station. At the police station, the investigators contacted the Mayor of San Gabriel to witness the opening of the bags. When the Mayor arrived about fifteen (15) minutes later, the bags were opened and three (3) bricks of marijuana wrapped in newspaper, two (2) round bundles of marijuana, and two (2) bricks of marijuana fruiting tops, all wrapped in a newspaper, were recovered.

Thereafter, the investigators marked, inventoried and forwarded the confiscated marijuana to the crime laboratory for examination. The laboratory examination showed that the stuff found in the bags all tested positive for marijuana, a dangerous drug.

When it was accused-appellant’s turn to present evidence, she testified that:

On October 27, 2005, at around 7:00 in the morning, accused-appellant, together with Lani Herbacio, was inside a passenger jeepney bound for the poblacion. While the jeepney was still at the terminal waiting for passengers, one Bennie Lao-ang ("Lao-ang"), her neighbor, requested her to carry a few bags which had been loaded on top of the jeepney. At first, accused-appellant refused, but she was persuaded later when she was told that she would only be carrying the bags. When they reached the poblacion, Lao-ang handed accused-appellant and her companion, Lani Herbacio, the bags, and then Lao-ang suddenly ran away. A few moments later, PO2 Pallayoc was upon them, arresting them. Without explanation, they were brought to the police station. When they were at the police station, Lani Herbacio disappeared. It was also at the police station that accused-appellant discovered the true contents of the bags which she was asked to carry. She maintained that she was not the owner of the bags and that she did not know what were contained in the bags. At the police station (sic) she executed a Counter-Affidavit.3

On January 31, 2007, the RTC promulgated a decision, the dispositive portion of which states:

WHEREFORE, the Court finds the accused Belen Mariacos GUILTY as charged and sentences here (sic) to suffer the penalty of life imprisonment and to pay a fine of P500,000.00.

The 7,030.3 grams of marijuana are ordered confiscated and turned over to the Philippine Drug Enforcement Agency for destruction in the presence of the Court personnel and media.

SO ORDERED.4

Appellant appealed her conviction to the CA. She argued that the trial court erred in considering the evidence of the prosecution despite its inadmissibility.5 She claimed that her right against an unreasonable search was flagrantly violated by Police Officer (PO)2 Pallayoc when the latter searched the bag, assuming it was hers, without a search warrant and with no permission from her. She averred that PO2 Pallayoc’s purpose for apprehending her was to verify if the bag she was carrying was the same one he had illegally searched earlier. Moreover, appellant contended that there was no probable cause for her arrest.6

Further, appellant claimed that the prosecution failed to prove the corpus delicti of the crime.7 She alleged that the apprehending police officers violated Dangerous Drugs Board Regulation No. 3, Series of 1979, as amended by Board Regulation No. 2, Series of 1990, which prescribes the procedure in the custody of seized prohibited and regulated drugs, instruments, apparatuses, and articles. The said regulation directs the apprehending team having initial custody and control of the drugs and/or paraphernalia, immediately after seizure or confiscation, to have the same physically inventoried and photographed in the presence of appellant or her representative, who shall be required to sign copies of the inventory. The failure to comply with this directive, appellant claimed, casts a serious doubt on the identity of the items allegedly confiscated from her. She, likewise, averred that the prosecution failed to prove that the items allegedly confiscated were indeed prohibited drugs, and to establish the chain of custody over the same.

On the other hand, the People, through the Office of the Solicitor General (OSG), argued that the warrantless arrest of appellant and the warrantless seizure of marijuana were valid and legal,8 justified as a search of a moving vehicle. It averred that PO2 Pallayoc had reasonable ground to believe that appellant had committed the crime of delivering dangerous drugs based on reliable information from their agent, which was confirmed when he peeked into the bags and smelled the distinctive odor of marijuana.9 The OSG also argued that appellant was now estopped from questioning the illegality of her arrest since she voluntarily entered a plea of "not guilty" upon arraignment and participated in the trial and presented her evidence.10 The OSG brushed aside appellant’s argument that the bricks of marijuana were not photographed and inventoried in her presence or that of her counsel immediately after confiscation, positing that physical inventory may be done at the nearest police station or at the nearest office of the apprehending team, whichever was practicable.11

In a Decision dated January 19, 2009, the CA dismissed appellant’s appeal and affirmed the RTC decision in toto.12 It held that the prosecution had successfully proven that appellant carried away from the jeepney a number of bags which, when inspected by the police, contained dangerous drugs. The CA ruled that appellant was caught in flagrante delicto of "carrying and conveying" the bag that contained the illegal drugs, and thus held that appellant’s warrantless arrest was valid. The appellate court ratiocinated:

It must be stressed that PO2 Pallayoc had earlier ascertained the contents of the bags when he was aboard the jeep. He saw the bricks of marijuana wrapped in newspaper. That said marijuana was on board the jeepney to be delivered to a specified destination was already unlawful. PO2 Pallayoc needed only to see for himself to whom those bags belonged. So, when he saw accused-appellant carrying the bags, PO2 Pallayoc was within his lawful duty to make a warrantless arrest of accused-appellant.

x x x x

Firstly, this Court opines that the invocation of Section 2, Article III of the Constitution is misplaced. At the time, when PO2 Pallayoc looked into the contents of the suspicious bags, there was no identified owner. He asked the other passengers atop the jeepney but no one knew who owned the bags. Thus, there could be no violation of the right when no one was entitled thereto at that time.

Secondly, the facts of the case show the urgency of the situation. The local police has been trying to intercept the transport of the illegal drugs for more than a day, to no avail. Thus, when PO2 Pallayoc was tipped by the secret agent of the Barangay Intelligence Network, PO2 Pallayoc had no other recourse than to verify as promptly as possible the tip and check the contents of the bags.

Thirdly, x x x the search was conducted in a moving vehicle. Time and again, a search of a moving vehicle has been justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to move out of the locality or jurisdiction in which the warrant must be sought. Thus, under the facts, PO2 Pallayoc could not be expected to secure a search warrant in order to check the contents of the bags which were loaded on top of the moving jeepney. Otherwise, a search warrant would have been of no use because the motor vehicle had already left the locality.13

Appellant is now before this Court, appealing her conviction.

Once again, we are asked to determine the limits of the powers of the State’s agents to conduct searches and seizures. Over the years, this Court had laid down the rules on searches and seizures, providing, more or less, clear parameters in determining which are proper and which are not.1avvphi1

Appellant’s main argument before the CA centered on the inadmissibility of the evidence used against her. She claims that her constitutional right against unreasonable searches was flagrantly violated by the apprehending officer.

Thus, we must determine if the search was lawful. If it was, then there would have been probable cause for the warrantless arrest of appellant.

Article III, Section 2 of the Philippine Constitution provides:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.

Law and jurisprudence have laid down the instances when a warrantless search is valid. These are:

1. Warrantless search incidental to a lawful arrest recognized under Section 12 [now Section 13], Rule 126 of the Rules of Court and by prevailing jurisprudence;

2. Seizure of evidence in "plain view," the elements of which are:

(a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties;

(b) the evidence was inadvertently discovered by the police who had the right to be where they are;

(c) the evidence must be immediately apparent[;] and;

(d) "plain view" justified mere seizure of evidence without further search.

3. Search of a moving vehicle. Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk; and

7. Exigent and Emergency Circumstances.14

Both the trial court and the CA anchored their respective decisions on the fact that the search was conducted on a moving vehicle to justify the validity of the search.

Indeed, the search of a moving vehicle is one of the doctrinally accepted exceptions to the Constitutional mandate that no search or seizure shall be made except by virtue of a warrant issued by a judge after personally determining the existence of probable cause.15

In People v. Bagista,16 the Court said:

The constitutional proscription against warrantless searches and seizures admits of certain exceptions. Aside from a search incident to a lawful arrest, a warrantless search had been upheld in cases of a moving vehicle, and the seizure of evidence in plain view.

With regard to the search of moving vehicles, this had been justified on the ground that the mobility of motor vehicles makes it possible for the vehicle to be searched to move out of the locality or jurisdiction in which the warrant must be sought.

This in no way, however, gives the police officers unlimited discretion to conduct warrantless searches of automobiles in the absence of probable cause. When a vehicle is stopped and subjected to an extensive search, such a warrantless search has been held to be valid only as long as the officers conducting the search have reasonable or probable cause to believe before the search that they will find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched.

It is well to remember that in the instances we have recognized as exceptions to the requirement of a judicial warrant, it is necessary that the officer effecting the arrest or seizure must have been impelled to do so because of probable cause. The essential requisite of probable cause must be satisfied before a warrantless search and seizure can be lawfully conducted.17 Without probable cause, the articles seized cannot be admitted in evidence against the person arrested.18

Probable cause is defined as a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to induce a cautious man to believe that the person accused is guilty of the offense charged. It refers to the existence of such facts and circumstances that can lead a reasonably discreet and prudent man to believe that an offense has been committed, and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law are in the place to be searched.19

The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.20

Over the years, the rules governing search and seizure have been steadily liberalized whenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before a warrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of the issuing judge – a requirement which borders on the impossible in instances where moving vehicle is used to transport contraband from one place to another with impunity.21

This exception is easy to understand. A search warrant may readily be obtained when the search is made in a store, dwelling house or other immobile structure. But it is impracticable to obtain a warrant when the search is conducted on a mobile ship, on an aircraft, or in other motor vehicles since they can quickly be moved out of the locality or jurisdiction where the warrant must be sought.22

Given the discussion above, it is readily apparent that the search in this case is valid. The vehicle that carried the contraband or prohibited drugs was about to leave. PO2 Pallayoc had to make a quick decision and act fast. It would be unreasonable to require him to procure a warrant before conducting the search under the circumstances. Time was of the essence in this case. The searching officer had no time to obtain a warrant. Indeed, he only had enough time to board the vehicle before the same left for its destination.

It is well to remember that on October 26, 2005, the night before appellant’s arrest, the police received information that marijuana was to be transported from Barangay Balbalayang, and had set up a checkpoint around the area to intercept the suspects. At dawn of October 27, 2005, PO2 Pallayoc met the secret agent from the Barangay Intelligence Network, who informed him that a baggage of marijuana was loaded on a passenger jeepney about to leave for the poblacion. Thus, PO2 Pallayoc had probable cause to search the packages allegedly containing illegal drugs.

This Court has also, time and again, upheld as valid a warrantless search incident to a lawful arrest. Thus, Section 13, Rule 126 of the Rules of Court provides:

SEC. 13. Search incident to lawful arrest.—A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.23

For this rule to apply, it is imperative that there be a prior valid arrest. Although, generally, a warrant is necessary for a valid arrest, the Rules of Court provides the exceptions therefor, to wit:

SEC. 5. Arrest without warrant; when lawful.—A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.24

Be that as it may, we have held that a search substantially contemporaneous with an arrest can precede the arrest if the police has probable cause to make the arrest at the outset of the search.25

Given that the search was valid, appellant’s arrest based on that search is also valid.

Article II, Section 5 of the Comprehensive Dangerous Drugs Act of 2002 states:

SEC. 5 Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. – The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions.

The penalty of imprisonment ranging from twelve (12) years and one (1) day to twenty (20) years and a fine ranging from One hundred thousand pesos (P100,000.00) to Five hundred thousand pesos (P500,000.00) shall be imposed upon any person who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any controlled precursor and essential chemical, or shall act as a broker in such transactions.

In her defense, appellant averred that the packages she was carrying did not belong to her but to a neighbor who had asked her to carry the same for him. This contention, however, is of no consequence.

When an accused is charged with illegal possession or transportation of prohibited drugs, the ownership thereof is immaterial. Consequently, proof of ownership of the confiscated marijuana is not necessary.26

Appellant’s alleged lack of knowledge does not constitute a valid defense. Lack of criminal intent and good faith are not exempting circumstances where the crime charged is malum prohibitum, as in this case.27 Mere possession and/or delivery of a prohibited drug, without legal authority, is punishable under the Dangerous Drugs Act.28

Anti-narcotics laws, like anti-gambling laws, are regulatory statutes. They are rules of convenience designed to secure a more orderly regulation of the affairs of society, and their violation gives rise to crimes mala prohibita. Laws defining crimes mala prohibita condemn behavior directed not against particular individuals, but against public order.29

Jurisprudence defines "transport" as "to carry or convey from one place to another."30 There is no definitive moment when an accused "transports" a prohibited drug. When the circumstances establish the purpose of an accused to transport and the fact of transportation itself, there should be no question as to the perpetration of the criminal act.31 The fact that there is actual conveyance suffices to support a finding that the act of transporting was committed and it is immaterial whether or not the place of destination is reached.32

Moreover, appellant’s possession of the packages containing illegal drugs gave rise to the disputable presumption33 that she is the owner of the packages and their contents.34 Appellant failed to rebut this presumption. Her uncorroborated claim of lack of knowledge that she had prohibited drug in her possession is insufficient.

Appellant’s narration of facts deserves little credence. If it is true that Bennie Lao-ang merely asked her and her companion to carry some baggages, it is but logical to first ask what the packages contained and where these would be taken. Likewise, if, as appellant said, Lao-ang ran away after they disembarked from the jeepney, appellant and her companion should have ran after him to give him the bags he had left with them, and not to continue on their journey without knowing where they were taking the bags.

Next, appellant argues that the prosecution failed to prove the corpus delicti of the crime. In particular, she alleged that the apprehending police officers failed to follow the procedure in the custody of seized prohibited and regulated drugs, instruments, apparatuses, and articles.

In all prosecutions for violation of the Dangerous Drugs Act, the existence of all dangerous drugs is a sine qua non for conviction. The dangerous drug is the very corpus delicti of that crime.35

Thus, Section 21 of R.A. No. 9165 prescribes the procedure for custody and disposition of seized dangerous drugs, to wit:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.

The Implementing Rules and Regulations (IRR) of R.A. No. 9165 further provides:

SECTION 21. Custody and Disposition of Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items.

PO2 Pallayoc testified that after apprehending appellant, he immediately brought her to the police station. At the station, the police requested the Mayor to witness the opening of the bags seized from appellant. When the Mayor arrived, he opened the bag in front of appellant and the other police officers. The black bag yielded three bricks of marijuana wrapped in newspaper, while the plastic bag yielded two bundles of marijuana and two bricks of marijuana fruiting tops.36 PO2 Pallayoc identified the bricks. He and PO3 Stanley Campit then marked the same. Then the seized items were brought to the PNP Crime Laboratory for examination.

It is admitted that there were no photographs taken of the drugs seized, that appellant was not accompanied by counsel, and that no representative from the media and the DOJ were present. However, this Court has already previously held that non-compliance with Section 21 is not fatal and will not render an accused’s arrest illegal, or make the items seized inadmissible. What is of utmost importance is the preservation of the integrity and evidentiary value of the seized items.37

Based on the testimony of PO2 Pallayoc, after appellant’s arrest, she was immediately brought to the police station where she stayed while waiting for the Mayor. It was the Mayor who opened the packages, revealing the illegal drugs, which were thereafter marked and sent to the police crime laboratory the following day. Contrary to appellant’s claim, the prosecution’s evidence establishes the chain of custody from the time of appellant’s arrest until the prohibited drugs were tested at the police crime laboratory.

While it is true that the arresting officer failed to state explicitly the justifiable ground for non-compliance with Section 21, this does not necessarily mean that appellant’s arrest was illegal or that the items seized are inadmissible. The justifiable ground will remain unknown because appellant did not question the custody and disposition of the items taken from her during the trial.38 Even assuming that the police officers failed to abide by Section 21, appellant should have raised this issue before the trial court. She could have moved for the quashal of the information at the first instance. But she did not. Hence, she is deemed to have waived any objection on the matter.

Further, the actions of the police officers, in relation to the procedural rules on the chain of custody, enjoyed the presumption of regularity in the performance of official functions. Courts accord credence and full faith to the testimonies of police authorities, as they are presumed to be performing their duties regularly, absent any convincing proof to the contrary.39

In sum, the prosecution successfully established appellant’s guilt. Thus, her conviction must be affirmed.

WHEREFORE, the foregoing premises considered, the appeal is DISMISSED. The Decision of the Court of Appeals in CA-G.R. CR-HC No. 02718 is AFFIRMED.

SO ORDERED.

ANTONIO EDUARDO B. NACHURA
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

problem 1

At about 4:40 in the afternoon of July 27, 2000, PO3 George Garcia (PO3 Garcia) and PO3 Romeo Sotomayor, Jr. (PO3 Sotomayor), together with Michael Fermin and Joseph Apologista, all members of the Mayor's Action Command (MAC) of Mandaluyong City, were on routine patrol along M. Cruz St., Barangay Mauway, when they chanced upon two individuals chanting and in the act of exchanging something. The police officers introduced themselves and then inquired from petitioner what he was holding. Petitioner took out from his possession three strips of aluminum foil which PO3 Garcia confiscated. PO3 Sotomayor also found on petitioner a plastic sachet which contained white crystalline substance which looked like tawas. Suspecting that the substance was "shabu", he confiscated the plastic sachet. Petitioner and his companion, who was later identified as Clarito Yanson (Clarito), were brought to the MAC station at the Criminal Investigation Division (CID) for investigation. After laboratory examination, the contents of the plastic sachet weighing 0.03 gram were found positive for Methamphetamine Hydrochloride or shabu, a regulated drug. The test on the three strips of aluminum foil also yielded positive for traces of shabu.

On the basis thereof, petitioner was correspondingly charged with illegal possession of dangerous drugs. Clarito, on the other hand, was further investigated by the City Prosecutor's Office.

Petitioner denied the charge against him. He claimed that he was merely standing in front of a store waiting for the change of his P500.00 bill when he was suddenly accosted by the MAC team.

Petitioner challenges the legality of his warrantless arrest by asserting that at the time he was apprehended, he was not committing or attempting to commit an offense. Petitioner argues that since his arrest was illegal, the eventual search on his person was also unlawful. Thus, the illicit items confiscated from him are inadmissible in evidence for being violative of his constitutional right against unreasonable searches and seizure.

Decide on the allegations of petitioner.

1. Can the government appeal from a judgment acquitting the accused after trial on the merits without violating the constitutional precept against double jeopardy?

ANSWER: NO. In People v. Velasco the government, by way of a petition for certiorari under Rule 65 of the Rules of Court, appealed the decision of Hon. Tirso D.C. Velasco acquitting accused Honorato Galvez of the charges of murder and double frustrated murder due to insufficiency of evidence, and of the charge of unauthorized carrying of firearm on the ground that the act charged was not a violation of law. This Court dismissed the petition. We ruled:

. . . Therefore, as mandated by our Constitution, statutes and cognate jurisprudence, an acquittal is final and unappealable on the ground of double jeopardy, whether it happens at the trial court level or before the Court of Appeals.

In general, the rule is that a remand to a trial court of a judgment of acquittal brought before the Supreme Court on certiorari cannot be had unless there is a finding of mistrial, as in Galman v. Sandiganbayan. . . .

Thus, the doctrine that “double jeopardy may not be invoked after trial” may apply only when the Court finds that the “criminal trial was a sham” because the prosecution representing the sovereign people in the criminal case was denied due process.

. . . Thus, “emerging American consensus on jury acquittals” notwithstanding, on solid constitutional bedrock is well engraved our own doctrine that acquittals by judges on evidentiary considerations cannot be appealed by government. The jurisprudential metes and bounds of double jeopardy having been clearly defined by both constitution and statute, the issue of the effect of an appeal of a verdict of acquittal upon a determination of the evidence on the constitutionally guaranteed right of an accused against being twice placed in jeopardy should now be finally put to rest.(PEOPLE V. TRIA-TIRONA, G.R. No. 130106. July 15, 2005]) and People v. Velasco, G.R No. 127444, 13 September 2000, 340 SCRA 207

. . .

2. It is clear in this jurisdiction that after trial on the merits, an acquittal is immediately final and cannot be appealed on the ground of double jeopardy. Is there an exception to this rule? If there is, state it.

Answer: It is clear in this jurisdiction that after trial on the merits, an acquittal is immediately final and cannot be appealed on the ground of double jeopardy. The only exception where double jeopardy cannot be invoked is where there is a finding of mistrial resulting in a denial of due process.

3. Distinguish and error of jurisdiction from an error of judgment. What is the remedy if there is an error of jurisdiction?

ANSWER: An error of judgment is one in which the court may commit in the exercise of its jurisdiction.[21] An error of jurisdiction is one where the act complained of was issued by the court without or in excess of jurisdiction, or with grave abuse of discretion which is tantamount to lack or in excess of jurisdiction and which error is correctible only by the extraordinary writ of certiorari.[22] Certiorari will not be issued to cure errors by the trial court in its appreciation of the evidence of the parties, and its conclusions anchored on the said findings and its conclusions of law.[23] Since no error of jurisdiction can be attributed to public respondent in her assessment of the evidence, certiorari will not lie.

4. On January 10, 1991, State Prosecutor Esteban A. Molon, Jr. filed with the Regional Trial Court, Quezon City an information for the alleged nonpayment of deficiency corporate income tax for the year 1979 against Petronila C. Tupaz and her husband Jose J. Tupaz, Jr. as corporate officers of El Oro Engravers Corporation. The said case was raffled to Branch 105, presided over by respondent Judge Benedicto B. Ulep. However, on July 25 1993, Jose J. Tupaz, Jr. died. Then, on September 20, 1994, Petronila C. Tupaz was arraigned and she pleaded not guilty to the information. On April 16, 1996, State Prosecutor Alfredo P. Agcaoili filed a motion to withdraw information, thinking that the accused was charged for nonpayment of deficiency contractor’s tax but found that the accused was exempted from paying said tax. Consequently, Judge Ulep granted the motion and dismissed the case, as prayed for by the prosecution. On May 28, 1996, Prosecutor Agcaoili filed with the trial court a motion to reinstate information on the ground that the motion to withdraw information was made through palpable mistake and was the result of excusable neglect. Over the objection of the accused that it would place her in double jeopardy, Judge Ulep granted the motion and ordered the information reinstated.

QUESTION: Is Judge Ulep correct?

ANSWER: No, double jeopardy already attached. The Court sustained petitioner’s contention. The reinstatement of the information would expose her to double jeopardy. An accused is placed in double jeopardy if he is again tried for an offense for which he has been convicted, acquitted or in another manner in which the indictment against him was dismissed without his consent. In the instant case, there was a valid complaint filed against petitioner to which she pleaded not guilty. The court dismissed the case at the instance of the prosecution, without asking for accused-petitioner’s consent. This consent cannot be implied or presumed. Such consent must be expressed as to have no doubt as to the accused’s conformity. As petitioner’s consent was not expressly given, the dismissal of the case must be regarded as final and with prejudice to the re-filing of the case. Consequently, the trial court committed grave abuse of discretion in reinstating the information against petitioner in violation of her constitutionally protected right against double jeopardy(Tupaz v. Ulep,G.R. No. 127777. October 1, 1999]

).

5. What are the three requisites before double jeopardy can be invoked? As to the first jeopardy when does it arise?

ANSWER The three requisites before double jeopardy can be invoked are: (1) the first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the same offense as that in the first, or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a frustration thereof.[i][17] As to the first jeopardy, it only arises (1) upon a valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid plea has been entered; and (5) when the defendant was acquitted, convicted, or the case was dismissed.(PEOPLE V. ALBERTO, G.R. No. 132374. August 22, 2002])

6. The accused is charged with murder. He was arraigned on a valid complaint filed against him for which he pleaded not guilty. During the trial the prosecution presented three witnesses. The other two witnesses were not available, and upon the motion of the accused, on the ground that his right to speedy trial is violated, the court dismissed the case. The prosecution moved for reconsideration, considering that the two last witnesses were available and ready to testify. The Court granted the motion for reconsideration. The two witnesses testified. The prosecution did not offer any documentary exhibit and rested its case. The accused filed a demurrer (i.e. insufficiency of evidence of the prosecution). The Court denied it, and ordered that the case is submitted for decision. A decision for conviction was handed.

The accused appealed his conviction assigning as error that double jeopardy attached when the Court dismissed the case, but reconsidered the same.

Was the accused placed in double jeopardy?

ANSWER: No. The dismissal was hastily done and deprived the prosecution of its right to present its evidence. “We agree with the Solicitor General that the dismissal order made by the trial court was not valid and cannot be used as basis for a claim of double jeopardy. The said right cannot be grounded on an error of law. As held in People vs. Navarro: [ii][18]

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 its day in court. For this reason, it is a dismissal (in reality an acquittal) without due process, and, therefore, null and void. 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…

We agree with the OSG’s contention that the trial court exceeded its authority when it dismissed the case without giving the prosecution a right to be heard, hence there was a violation of due process. Further, the failure of the prosecution to offer its exhibits is not a ground to dismiss the case. Even without any documentary exhibits, the prosecution could still prove its case through the testimonies of its witnesses. Thus, we find that when the trial court reconsidered its order of dismissal, it merely corrected itself”(PEOPLE V. ALBERTO, G.R. No. 132374. August 22, 2002].

7.How did the Supreme Court rule on the issue of double jeopardy in the following cases:a) Gorion v. RTC b) People v. Bocar c) Portugal v. Reantaso d) Galman v. Sandiganbayan e) what do all these cases have in common?

ANSWER: In Gorion v. Regional Trial Court,[iii][7] this Court ruled that the erroneous dismissal order of the criminal case deprived the State of a fair opportunity to present and prove its case. The said order is null and void for being violative of its right to due process. Hence, it cannot be pleaded to bar the subsequent annulment of the judgment of the dismissal order or a reopening of the case on the ground of double jeopardy.

In People v. Bocar,[iv][8] this Court ruled that the order of dismissal given without receiving evidence for the prosecution constitutes a veritable abuse of discretion which the court cannot permit. It cannot therefore be a basis of double jeopardy.

In Portugal v. Reantaso,[v][9] the case was dismissed on motion of the accused therein and before the prosecution could present its evidence. The records do not show that notice of hearing was given to the prosecuting officer or to petitioner and his witnesses before the case was heard and tried on the merits on the date mentioned in the notice. This Court ruled that the trial court committed grave abuse of discretion due to the failure of the trial court to give the prosecution the opportunity to be heard.

In Galman v. Sandiganbayan,[vi][10] it was held that double jeopardy does not attach where the sham trial was but a mock trial. In that case, the authoritarian president ordered respondents therein Sandiganbayan and Tanodbayan to rig the trial and closely monitored the entire proceedings to assure a predetermined final outcome of acquittal and total absolution of the respondents-accused therein of all the charges.

The above-mentioned cases show that the exception to the double jeopardy rule attaches only when the trial court commits grave abuse of discretion due to a violation of due process, i.e., that the prosecution was denied the opportunity to present its case or that the trial was a sham. Conversely, there cannot be a grave abuse of discretion where the trial court gave both parties the opportunity to present their case and even required them to submit memoranda from which its decision is based, as in this case. In other words, if there is no denial of due process, there can be no grave abuse of discretion that would merit the application of the exception to the double jeopardy rule. (METROPOLITAN BANK AND TRUST COMPANY, vs. HON. REGINO T. VERIDIANO II, and DOMINADOR ONG, respondents. G.R. No. 118251. June 29, 2001]

8. Does the private complainant have the legal personality to appeal a judgment of acquittal in a criminal case? If he has any, to what extent would that only be?

ANSWER: The accused has no personality to appeal a judgment of acquittal as it is only the SOLICITOR GENERAL who can do such. If the private complainant had to appeal from a judgment of acquittal it has to be limited only to the civil aspect, and nothing else, Thus the Supreme Court ratiocinated as follows:

In Palu-ay, this Court regarded the petition for annulment of judgment of acquittal as a sufficient basis to put the accused in double jeopardy. Inasmuch as the petition for certiorari in the case at bar prays for the nullification of the judgment, it likewise places the herein private respondent in double jeopardy.

It bears stressing that whenever a criminal case is prosecuted and the State is the offended party, the case must always be prosecuted under the control and guidance of the State through its government prosecutors. Accordingly, whenever there is an acquittal or dismissal of a criminal case and the private complainant intends to question such an acquittal or dismissal, the same must likewise be undertaken by the State through the Solicitor General. This, petitioner failed to comply. The present petition for certiorari before this Court was filed by petitioner Metropolitan Bank and Trust Company. It was not initiated by the Solicitor General. In fact, the Solicitor General intimated to this Court in his comment[vii][15] that a reversal of the assailed judgment would place the private respondent in double jeopardy. Thus, this petition for certiorari must be dismissed.

We find the ruling in People v. Santiago[viii][16] to be squarely in point wherein this Court ruled that:

“It is well-settled that in criminal cases where the offended party is the State, the interest of the private complainant or the private offended party is limited to the civil liability… If a criminal case is dismissed by the trial court or if there is an acquittal, an appeal therefrom on the criminal aspect may be undertaken only by the State through the Solicitor General. Only the Solicitor General may represent the People of the Philippines on appeal. The private offended party or complainant may not take such appeal. However, the said offended party or complainant may appeal the civil aspect despite the acquittal of the accused” (Underscoring Ours). [ix][17]

The above pronouncement of this Court was reaffirmed in Palu-ay, to wit:

“Petitioner contends that the appellate court erred in ruling that a private complainant cannot file a petition for annulment of judgment without the Solicitor General’s approval except only as to the civil aspect of the case. He invokes the ruling in People v. Santiago [174 SCRA 143 (1989)] in which this Court sustained the right of the private complainant in a criminal case to file a petition for certiorari to set aside the judgment rendered in the criminal case on the ground that the prosecution had been deprived of due process. This Court made it clear, however, that such action may be brought by the private complainant only insofar as the civil aspect of the case is concerned:

It is well-settled that in criminal cases where the offended party is the State, the interest of the private complainant or the private offended party is limited to the civil liability… If a criminal case is dismissed by the trial court or if there is an acquittal, an appeal therefrom on the criminal aspect may be undertaken only be the State through the Solicitor General. Only the Solicitor General may represent the People of the Philippines on appeal. The private offended party or complainant may appeal the civil aspect despite the acquittal of the accused. (METROPOLITAN BANK AND TRUST COMPANY, vs. HON. REGINO T. VERIDIANO II, and DOMINADOR ONG, respondents. G.R. No. 118251. June 29, 2001]

9. Petitioner was charged with rape in Criminal Case No. 10770 presently pending before the RTC of Borongan, Eastern Samar, Branch 2. When he was arraigned on February 26, 1999, petitioner pleaded not guilty to the charge against him.

On March 31, 1999, the date set by the trial court for the initial hearing, the prosecution moved that the same be postponed due to the absence of the complainant and her witnesses. The hearing was reset on April 29, 1999.

On April 29, 1999, the prosecution again moved to postpone the hearing due to the absence of the complainant and her witnesses. Petitioner objected to the motion on the ground that his right to speedy trial was being violated by such postponements. The trial court granted the prosecution’s motion and reset the hearing on May 31, 1999. It also directed that the subpoenae to the complainant and her witnesses be coursed through the National Bureau of Investigation which handled the investigation of the case.

During the hearing on May 31, 1999, the prosecution requested for another postponement. Petitioner moved for at least a temporary dismissal of the case. The prosecution manifested that it would not object to a temporary dismissal. Thus, on the same date, the trial court issued an order temporarily dismissing the case.[1][3]

On June 22, 1999, the prosecution filed a Motion for Reinstatement and/or Revival of Criminal Case No. 10770. Appended to said motion was the affidavit of private complainant that the subpoenae sent to her for the trial of the case did not reach her because in the meantime she had transferred her residence.

The trial court set the hearing on the motion for reinstatement on June 25, 1999. Petitioner opposed the motion contending that the revival or reinstatement of the case will place him in double jeopardy. On September 29, 1999, the Court issued a resolution reinstating the said case and reiterating the issuance of a warrant of arrest for petitioner.

Petitioner filed a motion for reconsideration of said resolution insisting that the reinstatement of the case will place him in double jeopardy.

On January 14, 2000, the court issued a resolution denying the motion for reconsideration of petitioner. Consequently, Criminal Case No. 10770 is still pending before the trial court.

Aggrieved, petitioner filed the instant petition on February 1, 2000. He claims that Criminal Case No. 10770 cannot be revived because the dismissal of the case on May 31, 1999 is permanent in character, having been made in consideration of his right to speedy trial.[2][4]

QUESTION: Is the accused correct?

ANSWER: The accused is not correct. “A permanent dismissal of a criminal case may refer to the termination of the case on the merits, resulting in either the conviction or acquittal of the accused; to the dismissal of the case due to the prosecution’s failure to prosecute; or to the dismissal thereof on the ground of unreasonable delay in the proceedings, in violation of the accused’s right to speedy disposition or trial of the case against him. In contrast, a provisional dismissal of a criminal case is a dismissal without prejudice to the reinstatement thereof before the order of dismissal becomes final or to the subsequent filing of a new information for the offense[3][8] within the periods allowed under the Revised Penal Code or the Revised Rules of Court.

In the present case, it is clear from the records that the dismissal ordered by the trial court on May 31, 1999 was a temporary dismissal of the case, and not a permanent dismissal on the ground that the right of the accused to speedy trial had been violated by the delay in the prosecution of the said case. The trial court apparently denied petitioner’s motion to have Criminal Case No. 10770 dismissed on the ground of his right to speedy trial when despite said motion made in open court on April 29, 1999, it ordered the resetting of the hearing of the case on May 31, 1999. In subsequently granting petitioner’s request for the dismissal of Criminal Case No. 10770 on May 31, 1999, the trial court expressly stated that the same was subject to reinstatement within thirty days from the date of the temporary dismissal. The trial court explained:

The defense, however, moved for, at least a temporary dismissal of the case, to which the government prosecutor acceded provided the same is temporary. Thus, as prayed for by the defense, the court on May 31, 1999 issued an order dismissing the case temporarily subject to its reinstatement and/or revival within a period of thirty (30) days; otherwise, if the case is not revived within the aforesaid period, the case would be considered dismissed permanently.[4][9]

Therefore, it cannot be gainsaid that the dismissal of Criminal Case No. 10770 on May 31, 1999 was provisional or temporary, without prejudice to the revival thereof within thirty days from the date of dismissal. Thus, the Court finds that the reinstatement thereof on June 25, 1999 did not place petitioner in double jeopardy.

The proscription against double jeopardy[5][10] presupposes that an accused has been previously charged with an offense, and the case against him is terminated either by his acquittal or conviction, or dismissed in any other manner without his consent. As a general rule, the following requisites must be present for double jeopardy to attach: (1) a valid indictment, (2) before a court of competent jurisdiction, (3) the arraignment of the accused, (4) a valid plea entered by him, and (5) the acquittal or conviction of the accused, or the dismissal or termination of the case against him without his express consent. However, there are two exceptions to the foregoing rule, and double jeopardy may attach even if the dismissal of the case was with the consent of the accused: first, when there is insufficiency of evidence to support the charge against him; and second, where there has been an unreasonable delay in the proceedings, in violation of the accused’s right to speedy trial. [6][11]

Petitioner is not in danger of being twice put in jeopardy with the reinstatement of Criminal Case No. 10770 because as earlier stated, said case was provisionally dismissed by the trial court upon his motion. Thus, the requirement that the dismissal of the case must be without the consent of the accused is not present in this case. Neither does the case fall under any of the aforecited exceptions. The prosecution had not yet presented evidence at the time the case was dismissed on May 31, 1999. Moreover, as previously explained, said dismissal was temporary in nature, as the case was subject to reinstatement within thirty days from the date of dismissal. Hence, the Court finds no error on the part of the trial court in allowing the reinstatement of Criminal Case No. 10770.”( PABLO CONDRADA, petitioner, vs. PEOPLE OF THE PHILIPPINES AND HON. ARNULFO C. BUGTAS, Presiding Judge, Regional Trial Court of Borongan, Eastern Samar, Branch 2, respondents. [G.R. No. 141646. February 28, 2003])

10. Three criminal informations for violation of Central Bank Circular 960, as amended in relation to Scction 34 of Republic Act No. 265, were filed against Imelda Marcos before he RTC of Pasig, to which she pleaded guilty. These informations were consolidated upon motion of the prosecution with 21 other cases pending before the RTC of Manila which relate to or form part of a series of transactions devised by then President Marcos and private respondent to hide their ill- gotten wealth. The cases were reraffled and was assigned to respondent Judge’s sala. Without any corresponding motion from private respondent, but after giving the prosecution the chance to show cause why the cases should not be dismissed, respondent judge muto proprio dismissed the three cases, one of them on the ground that the subject CB Circular is an ex post facto law, and the two on the ground that the prosecution of private respondent was part of a sustained political vendetta by some people in the government aside from what he considered as a violation of private respondent’s right against double jeopardy. Their motion for reconsideration having been denied, petitioners elevated the case before the Supreme Court via petition for certiorari, where the primary issue raised is whether a judge can motu proprio initiate the dismissal and subsequently dismissed of a criminal information without any motion to that effect being filed by the accused based on the alleged violation of his right against ex post facto law and double jeopardy.

IS THE JUDGE CORRECT IN HIS DECISION TO DISMISS THE CASE ON THE GROUNDS ABOVEMENTIONED?

ANSWER: The Judge is not correct. The first jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3) after arraignment, (4) when a valid plea has been entered, and (5) when the defendant was convicted or acquitted, or the case was dismissed or otherwise terminated without the express consent of the accused. Other than the Solicitor-General's allegation of pending suits in Branch 26-Manila, respondent judge has no other basis on whether private respondent had already been arraigned, much less entered a plea in those cases pending before the said Branch. Even assuming that there was already arraignment and plea with respect to those cases in Branch 26-Manila which respondent judge used as basis to quash the three informations pending in his sala, still the first jeopardy has not yet attached. Precisely, those Branch 26-Manila cases are still pending and there was as yet no judgment on the merits at the time respondent judge quashed the three informations in his sala. Private respondent was not convicted, acquitted nor the cases against her in Branch 26-Manila dismissed or otherwise terminated which definitely shows the absence of the fifth requisite for the first jeopardy to attach. Accordingly, it was wrong to say that the further prosecution of private respondent under the three informations pending in Branch 56-Manila would violate the former's right against double jeopardy.(PEOPLE V. NITAFAN, GR NO. 107964-66)

11. This case stemmed from the Information filed on March 10, 1999 with the Regional Trial Court, Branch 60, Makati City, docketed as Criminal Case No. 99-391 charging respondent Jose A. Bernas with libel on the basis of the complaint initiated by petitioner Jovencio F. Cinco.

Upon arraignment, respondent pleaded not guilty. Thereafter, trial ensued.

After the prosecution rested its case, respondent, on June 1, 2000, filed a Motion to Dismiss/Demurrer to Evidence. The trial court, in its Order dated January 22, 2001, denied the motion. Respondent twice filed a motion for reconsideration but both were denied in separate Orders dated March 22, 2001 and May 30, 2001.

Respondent then filed with the Court of Appeals a petition for certiorari, docketed as CA-G.R. SP No. 65413, alleging that the trial court, in denying his Motion to Dismiss/Demurrer to Evidence, acted with grave abuse of discretion.

On March 15, 2002, the Court of Appeals rendered its Decision[7][1] granting respondent’s petition for certiorari and dismissing Criminal Case No. 99-391. The dispositive portion of the Decision reads:

“IN VIEW OF ALL THE FOREGOING, the instant petition is GRANTED. The Order of the court a quo dated January 22, 2001 denying the Demurrer to Evidence, as well as its Orders dated March 22, 2001 and May 30, 2001 denying, respectively, the petitioner’s Motion for Reconsideration and 2nd Motion for Reconsideration, are REVERSED and SET ASIDE, and a new one entered granting petitioner’s Motion to Dismiss dated May 31, 2000 and dismissing Criminal Case No. 99-391. No costs.

“SO ORDERED.”

Petitioner filed a motion for reconsideration but was denied by the Appellate Court in a Resolution dated August 5, 2002.

Instead of filing a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure, as amended, petitioner resorted to the instant petition for certiorari under Rule 65.

Is the act of the petitioner in filing the petition for review on certiorari not violative of the right of the accused to double jeopardy?

ANSWER: Yes, the appeal violates the right of the accused to double jeopardy, It is basic that an acquittal rendered by the CA cannot be appealed. In Ong vs. People,[8][2] this Court ruled that “a dismissal of a criminal case by the grant of a demurrer to evidence is not appealable as the accused would thereby be placed in double jeopardy.”

In the recent case of People vs. Sandiganbayan and Geronimo Z. Velasco,[9][3] this Court held that “once the court grants the demurrer, such order amounts to an acquittal, and any further prosecution of the accused would violate the constitutional proscription on double jeopardy. This constitutes an exception to the rule that the dismissal of a criminal case made with the express consent of the accused or upon his own motion bars a plea of double jeopardy.”(Cinco v. CA[G.R. No. 154651,February 19, 2003]People vs. Sandiganbayan and Geronimo Z. Velasco,G.R. No. 140633, February 4, 2002, citing Ong vs. People, ibid.; People vs. City Court of Silay, 74 SCRA 247 (1976); Almario vs. Court of Appeals, G.R. 127772, March 22, 2001; People vs. Bans, 239 SCRA 48, 55 (1994); People vs. Gines, 197 SCRA 481(1991); People vs. Quizada, 160 SCRA 516 (1988).

12-13: FACTS: Petitioners are the accused in Criminal Case No. 012432-L for the crime of Estafa punishable under paragraph 1, Article 316 of the Revised Penal Code before Regional Trial Court, Branch 54, Lapu-Lapu City. After the prosecution rested its case, the accused filed a motion to dismiss on the ground that the crime charged had already prescribed.

The alleged second deed of sale (Exh. C), which the prosecution believes to have constituted the crime of estafa, was allegedly executed on June 30, 1983 and duly registered with the Register of Deeds on August 1, 1983. The complaint was filed with the prosecutor on November 6, 1992 and the Information was filed on March 22, 1983. The petitioners (accused therein) that under Article 90 of the Revised Penal Code, crimes punishable by arresto mayor prescribed in five years. Here, since the case was instituted nine (9) years after the discovery of the crime, the crime has already prescribed.

The prosecution opposed the motion stressing that the prescriptive period in this case is to be determined on the basis of the fine imposable. Considering that the fine is more than six thousand pesos (P6,000.00), prescription, according to Article 90 in relation to Article 26 of the Revised Penal Code, is fifteen (15) years. Thus, the crime charged has not yet prescribed.

In an Order dated 15 March 1999, the Regional Trial Court, acting upon the motion, dismissed the case. However, upon motion for reconsideration filed by the prosecution, the trial court in an order dated 30 April 1999 set aside its previous order of dismissal and set the case for trial for the presentation of the evidence for the defense. The accused filed a motion for reconsideration of the Order dated 30 April 1999. The trial court denied the motion. Not satisfied, the accused filed a petition for certiorari under Rule 65 with the Court of Appeals.

On January 20, 2000, the Court of Appeals rendered a decision denying the petition and affirming the ruling of the trial court that prescription of the crime had not set in. Hence, the accused is now before this Court through a petition for review on certiorari under Rule 45.

The legal issues presented before this Court are the following:

1. Whether or not the crime of Estafa under Paragraph 1, Article 316 of the Revised Penal Code has already prescribed.

2. Whether or not the dismissal by the Regional Trial Court constituted double jeopardy?

ANSWER: ON THE FIRST ISSUE:

In essence, the issue of prescription of the crime hinges on the correct interpretation of Article 90 in relation to Article 26 of the Revised Penal Code. If the proper prescriptive period for the crime of Estafa under paragraph 1, Article 316 of the Revised Penal Code is five years from the discovery of the crime as argued by the petitioners, the crime has already prescribed. On the contrary, if the prescriptive period is fifteen (15) years as ruled by the trial court and affirmed by the Court of Appeals, then the crime charged has not yet prescribed.

To support their claim that the crime has prescribed, the petitioners advanced three arguments:

One, the amount of the imposable fine is still indeterminate as the basis merely of the prosecution for such determination is the allegation in the information but the determination of the fine would still depend on the evidence of the amount of damage which lies on the discretion of the judge.

Two, the classification of fine under Article 26 RPC as afflictive, correctional or light penalty is applicable only if the fine is imposed as single or as an alternative penalty. However, the same provision is silent when the fine is imposed as a compound penalty, such as in the case at bar. Petitioners submit there is no basis for applying the classification of fine as it is only true if the fine is imposed as single or alternative penalty. Article 90 RPC is not applicable since the classification of fine is the function of Article 26 RPC. Article 90 merely provides for the prescription of the crime and not classification.

Three, the highest penalty mentioned in the last paragraph of Article 90 could mean no other than the "graver of the penalties." Imprisonment is graver since it involves deprivation of one’s personal liberty in contrast with fine which may be dispensed with where the accused is insolvent except if the judgment itself provides for subsidiary imprisonment for failure to pay fine but even then said imprisonment could not exceed the limitations imposed by law.1 Petition, pp. 5-6;Rollo, pp. 12-13.

The contentions are without merit.

This Court notes that the penalty for Article 316 (2)2 Revised Penal Code, Art. 316 provides, thus:

ART. 316. Other forms of swindling. – The penalty of arresto mayor in its minimum and medium periods and fine of not less than the value of the damage caused and not more than three times such value, shall be imposed upon:

x x x

2. Any person who, knowing that real property is emcumbered, shall dispose of the same, although such encumbrance be not recorded.

x x x of the Revised Penal Code is the compound penalty of both imprisonment and fine. Corollarily, the last paragraph of Article 903 Revised Penal Code, Art. 90 last paragraph (as amended by R.A.. No. 4661 [1996]) provides, thus:

When the penalty fixed by law is compound one, the highest penalty shall be made the basis of the application of the rules contained in the first, second and third paragraph of this article. of the Revised Penal Code provides the rule to be applied in compound penalties. Accordingly, in determining the prescriptive period of a crime punishable by both imprisonment and fine, whichever penalty is the higher should be the basis in computing the period of prosecution. The reason for this is that when the penalty of imprisonment and fine is imposed in the compound, as contradistinguished from a single or an alternative penalty, neither penalty is subordinate to the other. In which case, the higher penalty based on the classification under the Revised Penal Code should be the basis for computing the prescription period of the crime. Article 26 provides the classification, while article 90 indicates when such classification should be applied.

In People v. Crisostomo,4 5 SCRA 1048, 1053 (1962). we held that the Revised Penal Code contains no provision which states that a fine when imposed in conjunction with an imprisonment is subordinate to the main penalty. In conjunction with imprisonment, a fine is as much a principal penalty as the imprisonment. Neither is subordinate to the other. On the contrary, in the instant case, the fine is higher than the imprisonment because it is afflictive in view of the amount involved and, as stated heretofore, it is the basis for computation to determine the prescriptive period. We conclude, therefore, that where the Revised Penal Code provides a penalty consisting of imprisonment and fine, whichever penalty is the higher, should be the basis in computing the period of prescription.

Under Article 25 of the Revised Penal Code, the penalty of arresto mayor is a correctional penalty. Under Article 26 of the Revised Penal Code, Fine is considered an afflictive penalty if it exceeds six thousand pesos (P6,000.00). The value of the damage caused is nine thousand six hundred ninety-nine pesos) 9,695.00) which represents the consideration of the prior sale. Considering that the fine imposable is the higher penalty, it shall be the basis for computing the prescriptive period of the crime. Thus, the proper prescriptive period for the crime charges is fifteen (15) years.

The alleged Estafa was allegedly committed by the accused-petitioners on 30 June 1983. The deed of sale was recorded with the Register of Deeds on August 1, 1983. The criminal case was instituted on November 6, 1992 upon the filing of the complaint with the prosecutor.5 See Rules of Court, Section 1, last paragraph, Rule 110; In Francisco v. Court of Appeals , 122 SCRA 483, this Court has ruled to the effect that the filing of a complaint with the fiscal’s office also interrupts the period of prescription of the offenses charged. From August 1, 1983 to November 6, 1992, only nine years had elapsed. Since the case was filed within the fifteen-year prescriptive period, the crime charged has not prescribed. Hence, the Court of Appeals committed no reversible error.

ON THE SECOND ISSUE:

Petitioners argue that when the case was dismissed, the order of the trial court to revive the case upon reconsideration such action amounted to double jeopardy. In arguing this point, the petitioners rely on Section 6, Rule 117 of the Rules of Court which provides, thus:

Order sustaining the motion to quash not a bar to another prosecution; exception. An order sustaining the motion to quash is not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in Section 3, Subsection (f) and (h) of this rule.

The petitioners further contend that the grounds mentioned as bar to another prosecution are that: first, the criminal action or liability has been extinguished; and, second, the accused has been previously convicted or in jeopardy. Moreover, they stress that the rule on waiver to objection which are grounds of a motion to quash does not apply when prescription becomes a defense and extinguishes criminal liability.6 Citing Magat v. People, 210 SCRA 21,32 (1991). The petitioners then conclude that the dismissal of a case, even assuming arguendo, it is erroneous, constitutes an acquittal which bars any review or appeal or another jeopardy.

We are not persuaded.

The rule on double jeopardy has a settled meaning in this jurisdiction. It means that when a person is charged with an offense and the case is terminated either by acquittal or conviction or in any other manner without the consent of the accused, the latter cannot again be charged with the same or identical offense.7 Melo v. People, 85 Phil. 766, 768 (1950). The purpose is to set the effects of the first prosecution forever at rest, assuring the accused that he shall not thereafter be subjected to the danger and anxiety of a second charge against him for the same offense.8 Caes v. Intermediate Appelleate Court, 179 SCRA 54, 59-60 (1989).

It must be noted that an acquittal is different from a dismissal notwithstanding the fact that there may be instances when an order of dismissal of a criminal case amounts to an acquittal.9 In People v. Salico, 84 Phil. 722, 732 (1949). In this case We explained that the only case in which the word dismissal is commonly but not correctly used, instead of the proper term of acquittal, is when, after the prosecution has presented all its evidence, the defendant moves for the dismissal and the court dismisses the case on the ground that the evidence fails to show beyond reasonable doubt that the defendant is guilty; for is such case, the dismissal is in reality an acquittal because the case is decided on the merits. However, in the case at bar, the dismissal is not an acquittal because is was not based on the merits of the case but on the ground that the crime charged has already prescribed. Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show defendant’s guilt beyond reasonable doubt; but dismissal does not decide the case on the merits or that the defendants is not guilty of the offense charged.10 Ibid.

In the case at bar, the dismissal did not constitute a first jeopardy within the purview of the rule against double jeopardy because of two reasons: first, the dismissal was upon motion of, and, hence, with the consent of the accused; and second, the order of dismissal was based on an erroneous finding of prescription of the crime and not on the merits of the case.

It should be stressed that the Motion to Dismiss was filed by petitioners. The dismissal and/or termination of the Estafa case being with their voluntary and express consent, double jeopardy has not, therefore, attached.11 People v. Gines, 197 SCRA 481 (1991); Que v. Cosico, 177 SCRA 410 (1989); People v. Jardin, 124 SCRA 167 (1983); People v. Pilpa, 79 SCRA 81 (1977); and People v. Cuervo, 104 SCRA 312 (1981). There are only two instances when double jeopardy attaches even if the dismissal of a criminal case was with the express consent of the accused or upon his motion. These are (i) insufficiency of evidence and (ii) denial of the right to a speedy trial.12 People v. Ban, 239 SCRA 48, 55 (1994); People v. Quizada, 160 SCRA 516 (1988). None of these exceptions is obtaining in the instant case.

The cases cited by the petitioners supporting the argument that an erroneous acquittal bars any review or appeal or another jeopardy are all premised on the fact that the erroneous judgment of acquittal by the trial court was issued on the merit of the case.

The motion to dismiss filed by the petitioners was based on the ground of prescription and not on the alleged insufficiency of the evidence against them. The trial court, then, did not dwell on the merits of the case when it issued its Order dated 15 March 1999. Even the trial court in reconsidering its previous order emphasized in its Order dated 30 April 1999 that the motion to dismiss dated January 8, 1999 was filed by the accused and that the (trial) Court did-not resolve on the merits but on the alleged prescription of the instant case.

In the case at bar, the order of dismissal was not yet final and executory when the motion for reconsideration was filed by the prosecution. The doctrine of double jeopardy does not attach until the period for appeal has expired. The matter relative to the time when jeopardy attaches is largely statutory and Section 7 of Rule 20 of the Rules of Court, in express and plain language, fixes such time at the expiration of fifteen days.13 People v. Tamayo, G.R. No. L-2233, April 25, 1950. Thus, when the trial court took cognizance of that motion it still had jurisdiction to do so and the action thereon was a continuation of the case, not an appeal thereof or a new trial. In sum, there is no double jeopardy because neither the proceeding in the trial court had terminated with finality at the time when the motion for reconsideration was filed so as to give rise to a first jeopardy nor was there a second jeopardy in the form of an appeal or a new trial. But most significantly, the order of dismissal was not based on the merits of the case.

WHEREFORE, the petition is DENIED. Let this case be REMANDED to the Regional Trial Court, Branch 54, Lapu-Lapu City, for the presentation of the evidence for the defense.( G.R. No. 141638 (Spouses Escudero, et al. vs. Court of Appeals, Regional Trial Court, Branch 54, Lapu-Lapu City and People of the Philippines.)

14. On February 4, 1998, separate cases of estafa and attempted corruption of public officers were filed before the SBN by the Office of the Ombudsman (OMB) against (1) Respondent Espinosa, then provincial administrator of Masbate; (2) Emma Vasquez; and (3) Romeo Sanano. The cases were docketed as Criminal Case Nos. 24438 and 24439.

Prior to his arraignment, Espinosa filed a Motion for Reinvestigation of the cases. The SBN Fourth Division granted the Motion in an Order[10][4] dated March 23, 1988, and directed the Office of the Special Prosecutor to evaluate the evidence against the accused.

While the cases were being reevaluated, Espinosa filed with the SBN a Motion for Leave to Travel Abroad for the period May 2-13, 1999.

On the date set for the hearing of the Motion, the SBN (Fourth Division) issued an Order resetting the hearing to April 22, 1999. It required private respondent to be “conditionally arraigned on that date”[11][5] before it would act on his Motion to Travel.

As ordered, private respondent was arraigned, and thereafter granted his Motion to Travel. The Order of Arraignment dated April 22, 2000, stated that “upon being duly arraigned, [he] entered a plea of ‘Not Guilty’ to both Informations in Crim. Case Nos. 24438 and 24439.”[12][6] The Court also ordered the deferment of the pretrial of the cases, pending the reinvestigation then being conducted by the Ombudsman.

On December 28, 2000, the OMB -- through the Office of the Special Prosecutor -- moved to withdraw ex parte the two cases against private respondent. The SBN granted the Motion in a Resolution dated January 9, 2001.

Thereafter, the OMB filed in the same court seven Informations for Malversation of Public Funds against Espinosa and several others. These Informations were docketed as Criminal Case Nos. 24622 to 24628 and raffled to the SBN First Division.

On January 22, 2001, Espinosa filed a Motion to Quash the Informations. He argued that double jeopardy had already attached, because (1) he had been arraigned in the previous estafa cases; and (2) the Motion to Withdraw the two earlier ones had been granted without his express consent.

Petitioner countered that the arraignment for the two previous cases was “conditional,” because it was made solely for the purpose of accommodating private respondent’s request to travel abroad while the matters were pending reinvestigation.

Question: DOES double jeopardy attach in the case at bar?

ANSWER: Yes. The right against double jeopardy is enshrined in Section 21 of Article III of the Constitution, which reads:

“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.”

This constitutionally mandated right is procedurally buttressed by Section 17 of Rule 117 of the Revised Rules of Criminal Procedure.[13][25] To substantiate a claim for double jeopardy, the following must be demonstrated:

“x x x (1) [A] first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; (3) the second jeopardy must be for the same offense, or the second offense includes or is necessarily included in the offense charged in the first information, or is an attempt to commit the same or is a frustration thereof.

“And legal jeopardy attaches only: (a) upon a valid indictment; (b) before a competent court; (c) after arraignment; (d) [when] a valid plea [has] been entered; and (e) the case was dismissed or otherwise terminated without the express consent of the accused.”[14][26]

It has been the unwavering position of this Court that substantial rights cannot be trifled with or cast aside on the basis of mere suppositions and conjectures. The relinquishment of a constitutional right has to be laid out convincingly. Such waiver must be clear, categorical, knowing and intelligent.[15][27]

As can be gleaned from the Memorandum of petitioner, the alleged waiver falls short of the above requirement:

“Unfortunately, the records reveal that a lawyer for respondent Espinosa was present when the April 19,1999 Order of the Fourth Division was issued in open court. Thus, said lawyer must have heard that the hearing of the motion to travel was reset to April 22, 1999 so that the movant could be conditionally arraigned.”[16][28]

x x x x x x x x x

“x x x. As stressed in the petition, the arraignment was conditional for if it was not so, respondent Espinosa would have been deemed to have abandoned his recourse for the reevaluation of his cases before the Office of the Ombudsman.”[17][29] (Italics supplied)

As correctly pointed out in the challenged Resolution, the dismissal of the estafa and the corruption cases was made upon petitioner’s ex parte Motion for the withdrawal of the Informations. Petitioner does not dispute the fact that private respondent was not notified of this Motion. Neither was a hearing held thereon.

On the other hand, private respondent has amply shown that he learned of the Motion only after the cases had been dismissed. It is clear that the dismissal, having been secured by petitioner without the express consent of the accused, does not amount to a waiver of the right against double jeopardy. But it does unequivocally show the fourth requisite for the proper invocation of such right.

In a nutshell, the alleged conditions attached to an arraignment must be unmistakable, express, informed and enlightened. They must be expressly stated in the Order disposing of the arraignment. Otherwise, the plea should be deemed to be simple and unconditional. PEOPLE OF THE PHILIPPINES, petitioner, vs. MARIO K. ESPINOSA, respondent. G.R. Nos. 153714-20. August 15, 2003]

15. STATE THE CONSTITUTIONAL PROVISION ON DOUBLE JEOPARDY.

Answer: The right against double jeopardy is enshrined in Section 21 of Article III of the Constitution, which reads:

“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.”

16. Under our law, what are the two kinds of acquittal in a criminal case?

Answer: Our law recognizes two kinds of acquittal, with different effects on the civil liability of the accused. First is an acquittal on the ground that the accused is not the author of the act or omission complained of. This instance closes the door to civil liability, for a person who has been found to be not the perpetrator of any act or omission cannot and can never be held liable for such act or omission.[x][13] There being no delict, civil liability ex delicto is out of the question, and the civil action, if any, which may be instituted must be based on grounds other than the delict complained of. This is the situation contemplated in Rule 111 of the Rules of Court.[xi][14] The second instance is an acquittal based on reasonable doubt on the guilt of the accused. In this case, even if the guilt of the accused has not been satisfactorily established, he is not exempt from civil liability which may be proved by preponderance of evidence only.[xii][15] This is the situation contemplated in Article 29 of the Civil Code,[xiii][16] where the civil action for damages is “for the same act or omission.” Although the two actions have different purposes, the matters discussed in the civil case are similar to those discussed in the criminal case. However, the judgment in the criminal proceeding cannot be read in evidence in the civil action to establish any fact there determined, even though both actions involve the same act or omission.[xiv][17] The reason for this rule is that the parties are not the same and secondarily, different rules of evidence are applicable. Hence, notwithstanding herein petitioner’s acquittal, the Court of Appeals in determining whether Article 29 applied, was not precluded from looking into the question of petitioner’s negligence or reckless imprudence. GEORGE MANANTAN, petitioner, vs. THE COURT OF APPEALS, SPOUSES MARCELINO NICOLAS and MARIA NICOLAS, respondentsG.R. No. 107125. January 29, 2001]

17. After an information has been filed and the accused had been arraigned, pleaded guilty and were convicted and after they had applied for probation, may the information be amended and the accused arraigned anew on the ground that the information was allegedly altered/tampered with?

ANSWER: No. The accused will already be placed in double jeopardy (MARCELO LASOY and FELIX BANISA, petitioners, vs. HON. MONINA A. ZENAROSA, PRESIDING JUDGE, RTC, BR. 76, QUEZON CITY, and THE PEOPLE OF THE PHILIPPINES, respondents. (G.R. No. 129472. April 12, 2005])

18. STATE SOME INSTANCES OF WARRANTLESS SEARCHES WHICH ARE VALID UNDER THE LAW?

19. STATE THE CONSTITUTIONAL PROVISION ON SEARCHES AND SEIZURES?

20. Explain the so called “speedy disposition formula”.

ANSWER: On the other hand, the case of Caballero vs. Alfonso, Jr.,[xv][15] laid down the guidelines in determining the applicability of the “speedy disposition” formula:

“x x x ‘(S)peedy disposition of cases’ is a relative term. Just like the constitutional guarantee of ‘speedy trial’ accorded an accused in all criminal proceedings, ‘speedy disposition of cases’ is a flexible concept. It is consistent with delays and depends upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and oppressive delays which render rights nugatory.

In the determination of whether or not the right to a ‘speedy trial’ has been violated, certain factors may be considered and balanced against each other. These are length of delay, reason for the delay, assertion of the right or failure to assert it, and prejudice caused by the delay. The same factors may also be considered in answering judicial inquiry whether or not a person officially charged with the administration of justice has violated the ‘speedy disposition of cases’ guarantee.” [ (FRANCISCO GUERRERO, petitioner, vs. HON. COURT OF APPEALS, (Former Special Seventh Division), REGIONAL TRIAL COURT OF MALABON, BRANCH 72, and PEOPLE OF THE PHILIPPINES, respondents. G.R. No. 107211. June 28, 1996]