Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-24447

June 29, 1968

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
WILLY OBSANIA, defendant-appellee.
Office of the Solicitor General for plaintiff-appellant.
Maximo V. Cuesta, Jr. for defendant-appellee.
CASTRO, J.:
Before us for review, on appeal by the People of the Philippines, is an order, dated
January 8, 1965, of the Court of First Instance of Pangasinan dismissing, upon motion
of the defense, an indictment for rape against Willy Obsania.
On November 22, 1964, barely a day after the occurence of the alleged crime, Erlinda
Dollente, the 14-year old victim, and her parents, Ciriaco Dollente and Carmelita
Lureta, filed in the municipal court of Balungao, Pangasinan a complaint for rape with
robbery, 1 alleging
That on or about the 21st day of November 1964, at around 2:00 to 3:00 in the
afternoon, particularly in sitio Cawakalan, barrio of Capulaan, municipality of
Balungao, Province of Pangasinan, Philippines and within the jurisdiction of the
Honorable Court, the said accused Willy Obsania, armed with a dagger, by
means of violence and intimidation, willfully, unlawfully and feloniously did then
and there have carnal knowledge of the complainant Erlinda Dollente, against
her will and on the roadside in the ricefields at the above-mentioned place while
she was alone on her way to barrio San Raymundo.
After the case was remanded to the Court of First Instance of Pangasinan for further
proceedings, the assistant provincial fiscal filed an information for rape against the
accused, embodying the allegations of the above complaint, with an additional
averment that the offense was committed "with lewd designs".
The accused pleaded not guilty upon arraignment, and forthwith his counsel moved for
the dismissal of the case, contending that the complaint was fatally defective for failure
to allege "lewd designs" and that the subsequent information filed by the fiscal which
averred "lewd designs" did not cure the jurisdictional infirmity. The court a quogranted
the motion and ordered dismissal of the action, ruling that "the failure of the complaint
filed by the offended party to allege that the acts committed by the accused were with

'lewd designs' does not give this Court jurisdiction to try the case." From this order, the
fiscal brought the instant appeal.
Two issues are tendered for resolution, namely: first, are "lewd designs" an
indispensable element which should be alleged in the complaint?, and, second, does
the present appeal place the accused in double jeopardy?
Both must be answered in the negative.
The accused, in his motion to dismiss, as well as the trial judge, in his order of
dismissal, rely basically on the ruling in People vs. Gilo (L-18202, April 30, 1964). In
the case which involved a prosecution for acts of lasciviousness this Court, in passing,
opined that "lewd design" is
... an indispensable element of all crimes against chastity, such as abduction,
seduction and rape, including acts of lasciviousness ... an element that
characterizes all crimes against chastity, apart from the felonious or criminal
intent of the offender, and such element must be always present in order that
they may be considered in contemplation of law.
Nothing in the foregoing statement can be reasonably interpreted as requiring
an explicit allegation of "lewd design" in a complaint for rape. We hold in no uncertain
terms that in a complaint for rape it is not necessary to allege "lewd design" or
"unchaste motive", for to require such averment is to demand a patent superfluity.
Lascivious intent inheres in rape and the unchaste design is manifest in the very act
itself the carnal knowledge of a woman through force or intimidation, or when the
woman is deprived of reason or otherwise unconscious, or when the woman is under
twelve years of age. 2
It is clear that the complaint here satisfies the requirements of legal sufficiency of an
indictment for rape as it unmistakably alleges that the accused had carnal knowledge
of the complainant by means of violence and intimidation. We therefore hold that the
trial judge erred in dismissing the case on the proffered grounds that the complaint was
defective for failure to allege "lewd design" and, as a consequence of such infirmity,
that the court a quo did not acquire jurisdiction over the case. The error of the trial
judge was in confusing the concept of jurisdiction with that of insufficiency in substance
of an indictment.
We come now to the more important issue of double jeopardy. The accused maintains
that "assuming, arguendo, that the argument is right that the court a quo has
jurisdiction, the appeal of the Government constitutes double jeopardy."
An appeal by the prosecution in a criminal case is not available if the defendant would
thereby be placed in double jeopardy. 3 Correlatively, section 9, Rule 117 of the
Revised Rules of Court provides:

When a defendant shall have been convicted or acquitted, or the case against
him dismissed or otherwise terminated without the express consent of the
defendant, by a court of competent jurisdiction, upon a valid complaint or
information or other formal charge sufficient in form and substance to sustain a
conviction, and after the defendant had pleaded to the charge, the conviction or
acquittal of the defendant or the dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any attempt to commit the same or
frustration thereof, or for any offense which necessarily includes or is necessarily
included in the offense charged in the former complaint or information.
In order that the protection against double jeopardy may inure in favor of an accused,
the following requisites must have obtained in the original prosecution: (a) a valid
complaint or information; (b) a competent court; (c) the defendant had pleaded to the
charge; and (d) the defendant was acquitted, or convicted, or the case against him was
dismissed or otherwise terminated without his express consent.
The complaint filed with the municipal court in the case at bar was valid; the court a
quo was a competent tribunal with jurisdiction to hear the case; the record shows that
the accused pleaded not guilty upon arraignment. Hence, the only remaining and
decisive question is whether the dismissal of the case was without the express consent
of the accused.
The accused admits that the controverted dismissal was ordered by the trial judge
upon his motion to dismiss. However, he vehemently contends that under the
prevailing jurisprudence, citing People vs. Bangalao, et al. (94 Phil. 354, February 17,
1954), People vs. Labatete (L-12917, April 27, 1960), People vs. Villarin (L-19795, July
31, 1964), and People vs. Cloribel (L-20314, August 31, 1964), an erroneous dismissal
of a criminal action, even upon the instigation of the accused in a motion to quash or
dismiss, does not bar him from pleading the defense of double jeopardy in a
subsequent appeal by the Government or in a new prosecution for the same offense.
The accused suggests that the above-enumerated cases have abandoned the
previous ruling of this Court to the effect that when a case is dismissed, other than on
the merits, upon motion of the accused personally or through counsel, such dismissal
is to be regarded as with the express consent of the accused and consequently he is
deemed to have waived 4 his right to plead double jeopardy and/or he is
estopped 5 from claiming such defense on appeal by the Government or in another
indictment for the same offense.
This particular aspect of double jeopardy dismissal or termination of the original
case without the express consent of the defendant has evoked varied and
apparently conflicting rulings from this Court. We must untangle this jurisprudential
maze and fashion out in bold relief a ruling not susceptible of equivocation. Hence, a
searching extended review of the pertinent cases is imperative.

The doctrine of waiver of double jeopardy was enunciated and formally labelled as
such for the first time in 1949 inPeople vs. Salico, supra, with three justices dissenting.
6 In that case, the provincial fiscal appealed from the order of the trial court dismissing,
upon motion of the defendant made immediately after the prosecution had rested its
case, an indictment for homicide, on the ground that the prosecution had failed to
prove that the crime was committed within the territorial jurisdiction of the trial court, or,
more specifically, that the municipality of Victorias in which the crime was allegedly
committed was compromised within the province of Negros Occidental. Rejecting the
claim of the accused that the appeal placed him in double jeopardy, this Court held that
the dismissal was erroneous because the evidence on record showed that the crime
was committed in the town of Victorias and the trial judge should have taken judicial
notice that the said municipality was included within the province of Negros Occidental
and therefore the offense charged was committed within the jurisdiction of the court of
first instance of the said province. In ruling that the appeal by the Government did not
put the accused in peril of a second jeopardy, this Court stressed that with "the
dismissal of the case by the court below upon motion of the defendant, the latter has
not been in jeopardy," and "assuming, arguendo, that the defendant had been already
in jeopardy in the court below and would be placed in double jeopardy by the appeal,
the defendant has waived his constitutional right not to be put in danger of being
convicted twice for the same offense." Mr. Justice Felicisimo Feria, speaking for the
majority, reasoned that
... when the case is dismissed with the express consent of the defendant, the
dismissal will not be a bar to another prosecution for the same offense; because,
his action in having the case dismissed constitutes a waiver of his constitutional
right or privilege, for the reason that he thereby prevents the court from
proceeding to the trial on the merits and rendering a judgment of conviction
against him.
The Salico doctrine was adhered to and affirmed in People vs. Marapao (85 Phil. 832,
March 30, 1950), Gandicela vs. Lutero (88 Phil. 299, March 5, 1951), People vs.
Pinuela, et al. (91 Phil. 53, March 28, 1952), Co Te Hue vs. Encarnacion (94 Phil. 258,
January 26, 1954), and People vs. Desalisa (L-15516, December 17, 1966).
In Marapao, the defendant was indicted for slight physical injuries in the municipal
court of Sibonga, Cebu. After the prosecution had rested its case, a continuance was
had, and when trial was resumed, the court, upon motion of the defense, ordered the
case dismissed for failure of the prosecution to appear. However, the court
reconsidered this order upon representation of the fiscal who appeared moments later,
and ordered the defense to present its evidence. The accused moved to get aside the
latter order on the ground that it placed him in double jeopardy. Acceding to this
motion, the court dismissed the case. Subsequently, the accused was charged in the
Court of First Instance of Cebu with the offense of assault upon a person in authority,
based on the same facts alleged in the former complaint for slight physical injuries.
Again, upon motion of the accused, the trial court dismissed the new indictment on the

ground of double jeopardy. From this order, the prosecution appealed. In upholding the
appeal of the Government, this Court observed that although the information for
assault necessarily embraced the crime of slight physical injuries for which the
accused was indicted in the justice of the peace court,
... it appears that the appellee was neither convicted nor acquitted of the previous
charge against him for slight physical injuries, for that case was dismissed upon
his own request before trial could be finished. Having himself asked for such
dismissal, before a judgment of conviction or acquittal could have been rendered,
the appellee is not entitled to invoke the defense of double jeopardy...
In Gandicela, this Court had occasion to reiterate the Salico ruling:
But where a defendant expressly consents to, by moving for, the dismissal of the
case against him, as in the present case, even if the court or judge states in the
order that the dismissal is definite or does not say that the dismissal is without
prejudice on the part of the fiscal to file another information, the dismissal will not
be a bar to a subsequent prosecution of the defendant for the same offense.
(People vs. Ylagan, 58 Phil. 851; People vs. Salico, 84 Phil. 722.).
And in denying the motion for reconsideration filed by the accused in that case, this
Court held:
According to Section 9 of Rule 13, if a criminal case is dismissed otherwise than
upon the merits at any stage before judgment, without the express consent of the
defendant, by a court of competent jurisdiction, upon a valid complaint or
information, and after the defendant has pleaded to the charge, the dismissal of
the case shall be definite or a bar to another prosecution for the same offense;
but if it is dismissed upon the petition or with the express consent of the
defendant, the dismissal will be without prejudice or not a bar to another
prosecution for the same offense, because, in the last case, the defendant's
action in having the case dismissed constitutes a waiver of his constitutional right
not to be prosecuted again for the same offense.
In Pinuela, as in Salico, the prosecution had presented its evidence against the
defendant, and the trial court, upon motion of the accused, dismissed the criminal
action for lack of evidence showing that the crime charged was committed within its
territorial jurisdiction. On appeal by the Government, this Court found that the evidence
showed otherwise and, like in Salico, the majority rejected the plea of double jeopardy
interposed by the accused on the ground that his virtual instigation of the erroneous
dismissal amounted to a waiver of his right against a second jeopardy.
In Co Te Hue, it was the theory of the petitioner that the charge of estafa filed against
him having been dismissed, albeit provisionally, without his express consent, its revival
constituted double jeopardy which bars a subsequent prosecution for the same

offense. This claim was traversed by the Solicitor General who contended that
considering what had transpired in the conference between the parties, the provisional
dismissal was no bar to the subsequent prosecution for the reason that the dismissal
was made with the defendant's express consent. This Court sustained the view of the
Solicitor General, thus:
We are inclined to uphold the view of the Solicitor General. From the transcript of
the notes taken at the hearing in connection with the motion for dismissal, it
appears that a conference was held between petitioner and the offended party in
the office of the fiscal concerning the case and that as a result of that conference
the offended party filed the motion to dismiss. It also appears that as no action
has been taken on said motion, counsel for petitioner invited the attention of the
court to the matter who acted thereon only after certain explanation was given by
said counsel. And when the order came the court made it plain that the dismissal
was merely provisional in character. It can be plainly seen that the dismissal was
effected not only with the express consent of the petitioner but even upon the
urging of his counsel. This attitude of petitioner, or his counsel, takes this case
out of the operation of the rule.
In essence, this Court held that where a criminal case is dismissed provisionally not
only with the express consent of the accused but even upon the urging of his counsel,
there can be no double jeopardy under section 9, Rule 113, if the indictment against
him is revived by the fiscal. This decision subscribes substantially to the doctrine on
waiver established in Salico.
The validity and currency of the Salico doctrine were intimated in the recent case
of People vs. Fajardo (L-18257, June 29, 1966), and six months later were reaffirmed
in People vs. Desalisa, supra.
In Fajardo, this Court, through Mr. Justice Querube Makalintal, observed:
The record does not reveal that appellees expressly agreed to the dismissal of
the information as ordered by the trial Judge or that they performed any act
which could be considered as express consent within the meaning of the rule.
While they did file a motion asking that the case be quashed or that a
reinvestigation thereof be ordered, the court granted neither alternative. What it
did was to order the prosecution to amend the complaint. This order was in effect
a denial of the motion to quash, and it was only after the prosecution failed to
amend that the court dismissed the case on that ground. Consequently, even
under the theory enunciated in some decisions of this Court (People vs. Salico,
etc.) that if a valid and sufficient information is erroneously dismissed upon
motion of the defendant he is deemed to have waived the plea of double
jeopardy in connection with an appeal from the order of dismissal, appellees here
are not precluded from making such plea.

To paraphrase, had the dismissal been anchored on the motion to dismiss, the
defendants would not have been entitled to protection against double jeopardy.
Then in Desalisa, this Court, in a unanimous decision penned by Mr. Justice
Jesus Barrera, held that
... The ruling in the case of Salico, that the act of the defendant in moving for the
dismissal of the case constitutes a waiver of the right to avail of the defense of
double jeopardy, insofar as it applies to dismissals which do not amount to
acquittal or dismissal of the case on the merits, cannot be considered to have
been abandoned by the subsequent decisions on the matter. (Emphasis
supplied)
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... an appeal of the prosecution from the order of dismissal (of the criminal
complaint) by the trial court will not constitute double jeopardy if (1) the dismissal
is made upon motion, or with the express consent, of the defendant, and (2) the
dismissal is not an acquittal or based upon consideration of the evidence or of
the merits of the case; and (3) the question to be passed upon by the appellate
court is purely legal; so that should the dismissal be found incorrect, the case
would have to be remanded to the court of origin for further proceedings, to
determine the guilt or innocence of the defendant. (Emphasis supplied)
The doctrine of estoppel in relation to the plea of double jeopardy was first enunciated
in Acierto which held that when the trial court dismisses a case on a disclaimer of
jurisdiction, upon the instigation of the accused, the latter is estopped on appeal from
asserting the jurisdiction of the lower court in support of his plea of second jeopardy.
The doctrine of estoppel is in quintessence the same as the doctrine of waiver: the
thrust of both is that a dismissal, other than on the merits, sought by the accused in a
motion to dismiss, is deemed to be with his express consent and bars him from
subsequently interposing the defense of double jeopardy on appeal or in a new
prosecution for the same offense.
In Acierto, the defendant was charged before a United States court-martial with having
defrauded the Government of the United States, through falsification of documents,
within a military base of the United States in the Philippines. The challenge by the
accused against the jurisdiction of the military tribunal was brushed aside, and he was
convicted. On review, the verdict was reversed by the Commanding General who
sustained Acierto's position on the ground of lack of jurisdiction. Subsequently, he was
convicted of estafa and falsification based on the same facts by the Court of first
Instance of Rizal. On appeal to this Court, he claimed former jeopardy in the courtmartial proceedings, asserting that the military court actually had jurisdiction. In a
unanimous 7 decision, this Court, through Mr. Justice Pedro Tuason, ruled:

This is the exact reverse of the position defendant took at the military trial. As
stated, he there attacked the court-martial's jurisdiction with the same vigor that
he now says the court-martial did have jurisdiction; and thanks to his objections,
so we incline to believe, the Commanding General, upon consultation with, and
the recommendation of, the Judge Advocate General in Washington,
disapproved the court-martial proceedings.
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Irrespective of the correctness of the views of the Military authorities, the

defendant was estopped from demurring to the Philippine court's jurisdiction and
pleading double jeopardy on the strength of his trial by the court-martial, A party
will not be allowed to make a mockery of justice by taking inconsistent positions
which if allowed would result in brazen deception. It is trifling with the courts,
contrary to the elementary principles of right dealing and good faith, for an
accused to tell one court that it lacks authority to try him and, after he has
succeeded in his effort, to tell the court to which he has been turned over that the
first has committed error in yielding to his plea. (Emphasis supplied)
The Acierto ruling was reiterated in People vs. Amada Reyes, et al. (96 Phil. 827, April
30, 1955); People vs. Reyes, et al. (98 Phil. 646, March 23, 1956); People vs.
Casiano (L-15309, February 16, 1961), and People vs. Archilla (L-15632, February 28,
1961).
The defendants in People vs. Amada Reyes, et al., were charged as accessories to the
crime of theft committed by their brother, Anselmo, the principal accused. The latter
pleaded guilty to simple theft and was sentenced accordingly. The former pleaded not
guilty and subsequently filed a motion to quash on the ground that being brothers and
sisters of the principal accused, they were exempt from criminal responsibility for the
acts charged against them in the information. Thereupon, the prosecution moved to
amend the information so as to allege that the defendants profited from the effects of
the crime. In view of this development, counsel for the defendants moved to withdraw
their motion to quash, and objected to the proposed amendment which sought to
change materially the information after plea without the consent of the accused.
Without acting on the petition to withdraw the motion to quash, the trial court denied
the motion of the prosecution on the ground that the proposed amendment would
substantially affect the fundamental rights of the accused who were exempt from
liability under the information because of their relation to the principal culprit. Then the
prosecution moved for the dismissal of the case against the alleged accessories with
reservation to file a new information. The court ordered the dismissal without ruling on
the reservation. Subsequently, a new information was filed virtually reproducing the
previous one except that now there was an added allegation of intent to gain. The
lower court quashed the new information upon motion of the accused on the ground of
double jeopardy. On appeal by the prosecution, this Court, thru Mr. Justice J. B. L.
Reyes, held that the plea of double jeopardy was erroneously sustained because

In the first place, the accused-appellees herein filed a motion to quash on the
ground that they incurred no criminal liability under the facts alleged in the
information in the preceding case, No. Q-972, and the trial court instead of
allowing the withdrawal of the motion to quash, virtually sustained the same
when it denied the fiscal's motion to amend, thereby forcing the latter to dismiss
the case; hence, it can not be held that the former case was terminated without
the express consent of the accused. Secondly, the defendants themselves
showed that the information in the previous case was insufficient to charge them
with any criminal offense, in view of their relationship with the principal accused;
and it is well established doctrine that for jeopardy to attach, there must be an
information sufficient in form and substance to sustain a conviction. Lastly, the
herein accused having successfully contended that the information in the former
case was insufficient to sustain a conviction, they cannot turn around now and
claim that such information was after all, sufficient and did place them in danger
of jeopardy of being convicted thereunder. If, as they formerly contended, no
conviction could be had in the previous case, they are in estoppel to contend now
that the information in the second case places them in jeopardy for the second
time. Their case comes within the spirit of the rule laid down in People vs.
Acierto.
Again, in People vs. Reyes, et al., supra, this Court, speaking thru Mr. Chief Justice
Paras, reiterated the Aciertoruling thus:
Where the complaint or information is in truth valid and sufficient, but the case is
dismissed upon the petition of the accused on the ground that the complaint or
information is invalid and insufficient, such dismissal will not bar another
prosecution for the same offense and the defendant is estopped from alleging in
the second information that the former dismissal was wrong because the
complaint or information was valid.
In this particular case, upon motion of the defendants, the trial court dismissed the
information because it did not allege the use of violence, notwithstanding the fact that
the offense charged was coercion under article 287 of the Revised Penal Code. On
appeal, however, this Court ruled that the dismissal was erroneous because "although
the offense named in the information is coercion, it does not necessarily follow that the
applicable provision is the first paragraph, since the second paragraph also speaks of
'coercions'. Inasmuch as the recitals in the information do not include violence, the
inevitable conclusion is that the coercion contemplated is that described and penalized
in the second paragraph."
We come now to the case of People vs. Casiano. In this case the accused was
charged with estafa in a complaint filed with the justice of the peace court of Rosales,
Pangasinan. The accused waived her right to preliminary investigation and the record
was accordingly forwarded to the Court of First Instance of Pangasinan where the
provincial fiscal filed an information for "illegal possession and use of false treasury or

bank notes." Upon arraignment the defendant pleaded not guilty. Subsequently, the
defense filed a motion to dismiss on the thesis that there had been no preliminary
investigation of the charge of illegal possession and use of false treasury or bank
notes, and that the absence of such preliminary investigation affected the jurisdiction of
the trial court. The motion was granted on the ground that the waiver made by the
defendant in the justice of the peace court did not deprive her of the right to a
preliminary investigation of an entirely different crime. On appeal to this Court, it was
held that the dismissal was erroneous because the allegations of the information filed
in the Court of First Instance were included in those of the complaint filed in the justice
of the peace court where the defendant had already waived her right to a preliminary
investigation. On the question of whether the appeal placed the defendant in double
jeopardy, this Court, thru Mr. Chief Justice (then Associate Justice) Concepcion,
observed that the situation of Casiano was identical to that of the accused in Acierto
... were she to plead double jeopardy in this case, for such plea would require the
assertion of jurisdiction of the court of first instance to try her and that the same
erred in yielding to her plea therein for lack of authority therefor. In the language
of our decision in the Acierto case, it is immaterial whether or not the court a
quo had said authority. It, likewise, makes no difference whether or not the issue
raised by defendant in the lower court affected its jurisdiction. The fact is that she
contested its jurisdiction and that, although such pretense was erroneous, she
led the court to believe that it was correct and to act in accordance with such
belief. The elementary principles of fair dealing and good faith demand,
accordingly, that she be estopped now from taking the opposite stand in order to
pave the way for a plea of double jeopardy, unless the rule of estoppel laid down
in the Acierto case is revoked. As a matter of fact, said rule applies with greater
force to the case at bar than to the Acierto case, because the same involved two
(2)separate proceedings before courts deriving their authority from different
sovereignties, whereas the appeal in the case at bar is a continuation of the
proceedings in the lower court, which like this Supreme Court, is a creature of
the same sovereignty. In short the inconsistency and impropriety would be more
patent and glaring in this case than in that of Acierto, if appellant herein pleaded
double jeopardy in this instance.
This Court then forthnightly stated that "the rule of estoppel applied in the Acierto case
should be maintained, because:
1. It is basically and fundamentally sound and just.
2. It is in conformity with the principles of legal ethics, which demand good faith
of the higher order in the practice of law.
3. It is well settled that parties to a judicial proceeding may not, on appeal, adopt
a theory inconsistent with that which they sustained in the lower court.

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4. The operation of the principle of estoppel on the question of jurisdiction

seemingly depends whether the lower court actually had jurisdiction or not. If it
had no jurisdiction, but the case was tried and decided upon the theory that
it had jurisdiction, the parties are not barred on appeal, from assailing such
jurisdiction, for the same "must exist as a matter of law, and may not be
conferred by consent of the parties or by estoppel" (5 C.J.S. 861-863). However,
if the lower court had jurisdiction, and the case was heard and decided upon a
given theory, such, for instance, as that the court had no jurisdiction, the party
who induced it to adopt such theory will not be permitted, on appeal, to assume
an inconsistent position that the lower court hadjurisdiction. Here, the principle
of estoppel applies. The rule that jurisdiction is conferred by law, and does not
depend upon the will of the parties, has no bearing thereon.
Twelve days after Casiano, this Court, in People vs. Archilla, supra, invoked anew the
doctrine of estoppel. In this case Alfreda Roberts, together with Jose Archilla, was
charged with bigamy. After pleading not guilty, Roberts, through his counsel, filed a
motion praying that the complaint be quashed with regard to her on the ground that the
facts alleged therein did not constitute the offense charged for failure to aver that
"insofar as Alfreda Roberts is concerned, her marriage to Jose Luis Archilla was her
second marriage ..." On appeal, the prosecution contended that the trial court erred in
granting the motion to quash, because the complaint was sufficient and at least
charged the accused as an accomplice. The defendant maintained that even if that
were true, the quashing of the information amounted to her acquittal which prevented
the prosecution from taking the said appeal as it would place her in double jeopardy.
Mr. Justice Felix Bautista Angelo, writing for the majority, ruled that the trial court erred,
and proceeded to emphasize that the accused
... cannot now be allowed to invoke the plea of double jeopardy after inducing the
trial court to commit an error which otherwise it would not have committed. In
other words, appellee can not adopt a posture of double dealing without running
afoul with the doctrine of estoppel. It is well-settled that the parties to a justiciable
proceeding may not, on appeal, adopt a theory inconsistent with that which they
sustained in the lower court (Williams v. McMicking, 17 Phil. 408; Molina v.
Somes, etc.). Consequently, appellee is now estopped from invoking the plea of
double jeopardy upon the theory that she would still be convicted under an
information which she branded to be insufficient in the lower court.
The accused in this case now before us nevertheless insists that the Salico doctrine
and "necessarily analogous doctrines" were abandoned by this Court
in Bangalao, Labatete, Villarin and Cloribel.
In Bangalao, the complaint filed by the victim's mother alleged that the rape was
committed "by means of force and intimidation" while the information filed by the fiscal

alleged that the offended party was a "minor and demented girl" and that the
defendants "successively had sexual intercourse with her by means of force and
against the will of Rosita Palban." After the accused had pleaded not guilty, the
defense counsel moved for the dismissal of the case on the ground that the trial court
lacked jurisdiction to try the offense of rape charged by the fiscal since it was distinct
from the one alleged in the complaint which did not aver that the victim was a
demented girl". The lower court sustained the motion and dismissed the case for lack
of jurisdiction. On appeal by the prosecution, this Court held that the trial judge erred in
dismissing the case for lack of jurisdiction, but ruled, however, that the appeal could
not prosper because it placed the accused in double jeopardy.
As the court below had jurisdiction to try the case upon the filing of the complaint
by the mother of the offended party, the defendants-appellees would be placed in
double jeopardy if the appeal is allowed.
After mature analysis, we cannot agree that this Court in Bangalao impliedly
abandoned the Salico doctrine on waiver. Bangalao was decided solely on the
question of jurisdiction. This Court, however, after holding that the lower tribunal had
jurisdiction, decided outright to repress the appeal by the Government on the ground of
double jeopardy without considering whether the appealed order of dismissal was
issued with or without the express consent of the accused (this aspect of double
jeopardy not being in issue). Hence, the ruling in Salico that the dismissal was with
the express consent of the accused because it was granted upon his instigation thru a
motion to dismiss was not passed upon in Bangalao.
A case of striking factual resemblance with Salico is People vs. Ferrer (100 Phil. 124,
October 23, 1956). In this case, after the prosecution had rested, the accused filed a
motion to dismiss on the ground that the territorial jurisdiction of the trial court had not
been published. Acting on this motion, the lower court dismissed the case. The
prosecution appealed. This Court found that the evidence on record, contrary to the
finding of the trial court, amply proved the jurisdiction of the lower tribunal. However,
without the defendant interposing the plea of double jeopardy, this Court held that "the
Government however meritorious its case cannot appeal the order of dismissal without
violating the right of the defendant not to be placed in double jeopardy." Again, like
in Bangalao, this Court did not consider the nature of dismissal whether it was with
or without the express consent of the defendant.
The accused in the case at bar avers that the Salico doctrine
was formally and expressly abandoned in People vs. Labatete, supra. In the latter
case, the trial court, upon motion of the defendant, dismissed the original information
for estafa on the ground that it did not allege facts constituting the offense charged.
The information recited that the accused had contracted a loan from the complainant,
giving as security the improvements and products of his property (a piece of land),
without averring that the said property, which was allegedly mortgaged by the accused
to the Rehabilitation Finance Corporation, formed part of the security. Consequently,

the fiscal filed an amended complaint alleging that the accused also gave as security
the land in question, which he later mortgaged to the damage and prejudice of the
complaining creditor. This amended information was also dismissed upon motion of the
defendant on the ground of double jeopardy. This Court, in sustaining the appealed
order of dismissal, held:
If the amended information were to be admitted, the accused will be deprived of
his defense of double jeopardy because by the amended information he is
sought to be made responsible for the same act of borrowing on a mortgage for
which he had already begun to be tried and acquitted by the dismissal of the
original information.
xxx

xxx

xxx

... the trial court found that the accused could not be found guilty of any offense
under the information. The judgment entered was not one of dismissal but of
acquittal, and whether the judgment is correct or incorrect, the same constitutes
a bar to the presentation of the amended information sought to be introduced by
the fiscal. (Emphasis supplied)
In not applying the Salico doctrine, this Court, through Mr. Justice Alejo Labrador,
expounded:
... The judgment of the trial court (in People vs. Salico) was in fact
an acquittal because of the failure on the part of the fiscal to prove that the crime
was committed within the jurisdiction of the court. The judgment was in fact a
final judgment of acquittal. The mere fact that the accused asked for his acquittal
after trial on the merits (after the prosecution had rested its case) is no reason for
saying that the case was "dismissed" with his express consent and he may again
be subjected to another prosecution.
From the above named statement, it is clear that what in Salico was repudiated
in Labatete was the premise that the dismissal therein was not on the merits
and not the conclusion that a dismissal, other than on the merits, sought by the
accused, is deemed to be with his express consent and therefore constitutes a waiver
of his right to plead double jeopardy in the event of an appeal by the prosecution or a
second indictment for the same offense. This Court, in Labatete, merely pointed out
that the controverted dismissal in Salico was in fact an acquittal." Reasoning a
contrario, had the dismissal not amounted to acquittal, then the doctrine of waiver
would have applied and prevailed. As a matter of fact we believe with the majority in
Salico that the dismissal therein was not on the merits and therefore did not amount to
an acquittal:
If the prosecution fails to prove that the offense was committed within the
territorial jurisdiction of the court and the case is dismissed, the dismissal is not

an acquittal, inasmuch as if it were so the defendant could not be again

prosecuted for the same offense before a court of competent jurisdiction; and it is
elemental that in such case the defendant may again be prosecuted for the same
offense before a court of competent jurisdiction.
Granting, however, that the Salico doctrine was abandoned in Labatete, it was
resurrected in Desalisa. Moreover,Labatete never mentioned the doctrine of estoppel
enunciated in Acierto which had been repeatedly reaffirmed.
To bolster his contention that the Salico doctrine has been dropped from the corpus of
our jurisprudence, the accused cites People vs. Villarin, supra. Here the accused
appealed to the Court of First instance his conviction in the inferior court for acts of
lasciviousness with consent. After conducting the preliminary investigation, the fiscal
charged the accused with corruption of minors. Villarin pleaded not guilty, and before
the case could be heard, his counsel filed a motion to dismiss on the ground that the
information did not allege facts constituting the crime charged. Acting on this motion,
the trial court dismissed the case. On appeal by the prosecution, this Court thru Mr.
Justice Felix Angelo Bautista, held that the dismissal was erroneous, but that this error
... cannot now be remedied by setting aside the order dismissal of the court a
quo and by remanding the case to it for further proceedings as now suggested by
the prosecution considering that the case was dismissed without the express
consent of the accused even if it was upon the motion of his counsel, for to do so
would place the accused in double jeopardy. The only exception to the rule on
the matter is when the dismissal is with the consent of the accused, and here this
consent has not been obtained. (Emphasis supplied)
Villarin gives the impression, as gleaned from the above statement, that this Court
therein sustained the plea of double jeopardy on the ground that dismissal was without
the express consent of the defendant as it was ordered "upon the motion of his
counsel" and not upon motion of the defendant himself. This conclusion is rather
unfortunate and must be rectified, for the settled rule is that the acts of counsel in a
criminal prosecution bind his client. Thus, in People vs. Romero (89 Phil. 672, July 31,
1951), this Court held categorically that
The fact that the counsel for the defendant, and not the defendant himself
personally moved for the dismissal of the case against him, had the same effect
as if the defendant had personally moved for such dismissal, inasmuch as the act
of the counsel in the prosecution of the defendant's cases was the act of the
defendant himself , for the only case in which the defendant cannot be
represented by his counsel is in pleading guilty according to Section 3, Rule 114,
of the Rules of Court. (Emphasis supplied)
On this consideration alone, we cannot agree with the accused in the case at bar that
this Court in Villarin intended to abandon the Salico ruling. Had the motion to dismiss

filed by Villarin's counsel been considered as one made by the defendant himself, as
should have been done, the Villarin case should have been resolved consistent with
the doctrine of waiver in Salico and/or that of estoppel in Acierto.
As a final citation in support of his theory, the accused in the case at bar
invokes People vs. Clolibel, supra, where this Court, in sustaining the plea of double
jeopardy interposed by the defendants, stated inter alia:
In asserting that Criminal Case No. 45717 may still be reinstated, the petitioner
adopts the ruling once followed by the Court to the effect that a dismissal upon
the defendant's own motion is a dismissal consented to by him and,
consequently, will not be a bar to another prosecution for the same offense,
because, his action in having the case dismissed constitutes a waiver of his
constitutional right or privilege, for the reason that he thereby prevents the court
from proceeding to the trial on the merits and rendering a judgment of conviction
against him. (People v. Salico, 84 Phil. 772) But, this authority has long been
abandoned and the ruling therein expressly repudiated.
Thus, in the case of People v. Robles, G.R. No. L-12761, June 29, 1959, citing
People v. Bangalao, L-5610, February 17, 1954; People v. Diaz, L-6518, March
30, 1954; People v. Abano, L-7862, May 17, 1955; and People v. Ferrer, L-9072,
October 23, 1956, We said:
... In reaching the above conclusion, this Court has not overlooked the
ruling in People vs. Salico, 47 O.G. 4765, to the effect that a dismissal
upon defendant's motion will not be a bar to another prosecution for the
same offense as said dismissal was not without the express consent of the
defendant, which ruling the prosecution now invokes in support of its
appeal; but said ruling is not now controlling, having been modified or
abandoned in subsequent cases wherein this Court sustained the theory of
double jeopardy despite the fact that dismissal was secured upon motion of
the accused. (Emphasis supplied)
Also, the rule that a dismissal upon defendant's motion will not be a bar to
another prosecution for the same offense as said dismissal is not without the
express consent of the defendant, has no application to a case where the
dismissal, as here, is predicated on the right of a defendant to a speedy trial.
(People vs. Tacneng, et al., G.R. No. L-12082, April 30, 1959). (emphasis
supplied)
The above statements must be taken in the proper context and perspective. As
previously explained, Bangalao, Ferrer, and even Labatete, did not actually abandon
the doctrine of waiver in Salico (and not one of the said cases even implied the
slightest departure from the doctrine of estoppel established in Acierto). In Diaz,
Abao,Tacneng and Robles which are cited above, like in Cloribel, the dismissals

therein, all sought by the defendants, were considered acquittals because they were all
predicated on the right of a defendant to a speedy trial and on the failure of the
Government to prosecute. Therefore, even if such dismissals were induced by the
accused, the doctrines of waiver and estoppel were obviously inapplicable for these
doctrines presuppose a dismissal not amounting to an acquittal.
This Court, through Mr. Justice Marceliano Montemayor, held in People vs. Diaz (94
Phil. 714, March 30, 1954):
Here the prosecution was not even present on the day of trial so as to be in a
position to proceed with the presentation of evidence to prove the guilt of the
accused. The case was set for hearing twice and the prosecution without asking
for postponement or giving any explanation, just failed to appear. So the
dismissal of the case, though at the instance of defendant Diaz may, according to
what we said in the Gandicela case, be regarded as an acquittal. (emphasis
supplied)
A similar result was reached by this Court thru Mr. Justice Sabino Padilla, in People vs.
Abano (97 Phil. 28, May 27, 1955), in this wise:
After a perusal of the documents attached to the petition for a writ of certiorari,
we fail to find an abuse of discretion committed by the respondent judge. He took
pains to inquire about the nature of the ailment from which the complaining
witness claimed she was suffering. He continued the trial three times, to wit: on
27 May, 1 and 12 June. The defendant was entitled to a speedy trial. When on
15 June, the last day set for the resumption of the trial, the prosecution failed to
secure the continuance thereof and could not produce further evidence because
of the absence of the complaining witness, the respondent judge was justified in
dismissing the case upon motion of the defense ... The defendant was placed in
jeopardy for the offense charged in the information and the annulment or setting
aside of the order of dismissal would place him twice in jeopardy of punishment
for the same offense. (emphasis supplied)
Then in People vs. Tacneng (L-12082, April 30, 1959), Mr. Justice Pastor Endencia,
speaking for a unanimous Court, stressed that
... when criminal case No. 1793 was called for hearing for the third time and the
fiscal was not ready to enter into trial due to the absence of his witnesses, the
herein appellees had the right to object to any further postponement and to ask
for the dismissal of the case by reason of their constitutional right to a speedy
trial; and if pursuant to that objection and petition for dismissal the case was
dismissed, such dismissal ammounted to an acquittal of the herein appellees
which can be invoked, as they did, in a second prosecution for the same offense.
(emphasis supplied)

And this Court proceeded to distinguish the case from People vs. Salico, thus:
We are fully aware that pursuant to our ruling in the case of Peo. v. Salico, 45
O.G. No. 4, 1765-1776, and later reiterated in Peo vs. Romero, L-4517-20, July
31, 1951, a dismissal upon defendant's motion will not be a bar to another
prosecution for the same offense as said dismissal was not without the express
consent of the defendant. This ruling, however, has no application to the instant
case, since the dismissal in those cases was not predicated, as in the case at
bar, on the right of a defendant to a speedy trial, but on different grounds. In the
Salico case, the dismissal was based on the ground that the evidence for the
prosecution did not show that the crime was committed within the territorial
jurisdiction of the court which, on appeal, we found that it was, so the case was
remanded for further proceedings; and in the Romero case the dismissal was
due to the non-production of other important witnesses by the prosecution on a
date fixed by the court and under the understanding that no further
postponement at the instance of the government would be entertained. In both
cases, the right of a defendant to a speedy trial was never put in issue.
(emphasis supplied)
The gravamen of the foregoing decisions was reiterated in People vs. Robles (L12761, June 29, 1959) where the trial court, upon motion of the defendant, dismissed
the case on the ground that the failure of the prosecution to present its evidence
despite several postponements granted at its instance, denied the accused a speedy
trial. In rejecting the appeal of the Government, this Court held:
In the circumstances, we find no alternative than to hold that the dismissal of
Criminal Case No. 11065 is not provisional in character but one which is
tantamount to acquittal that would bar further prosecution of the accused for the
same offense.
In Cloribel, the case dragged for three years and eleven months, that is, from
September 27, 1958 when the information was filed to August 15, 1962 when it was
called for trial, after numerous postponements, mostly at the instance of the
prosecution. On the latter date, the prosecution failed to appear for trial, and upon
motion of defendants, the case was dismissed. This Court held "that the dismissal here
complained of was not truly a 'dismissal' but an acquittal. For it was entered upon the
defendants' insistence on their constitutional right to speedy trial and by reason of the
prosecution's failure to appear on the date of trial." (Emphasis supplied.)
Considering the factual setting in the case at bar, it is clear that there is no parallelism
between Cloribel and the cases cited therein, on the one hand, and the instant case,
on the other. Here the controverted dismissal was predicated on the erroneous
contention of the accused that the complaint was defective and such infirmity affected
the jurisdiction of the court a quo, and not on the right of the accused to a speedy trial
and the failure of the Government to prosecute. The appealed order of dismissal in this

case now under consideration did not terminate the action on the merits, whereas in
Cloribel and in the other related cases the dismissal amounted to an acquittal because
the failure to prosecute presupposed that the Government did not have a case against
the accused, who, in the first place, is presumed innocent.
The application of the sister doctrines of waiver and estoppel requires two sine qua
non conditions: first, the dismissal must be sought or induced by the defendant
personally or through his counsel; and second, such dismissal must not be on the
merits and must not necessarily amount to an acquittal. Indubitably, the case at bar
falls squarely within the periphery of the said doctrines which have been preserved
unimpaired in the corpus of our jurisprudence.
ACCORDINGLY, the order appealed from is set aside. This case is hereby remanded
to the court of origin for further proceedings in accordance with law. No costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Angeles and
Fernando, JJ., concur.