Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. Nos. 101557-58. April 28, 1993.

PEOPLE OF THE PHILIPPINES and SPS. AMADO and TERESA RUBITE, petitioners, 
vs.
HON. FILOMENO A. VERGARA, PRESIDING JUDGE, RTC, BR. 51, PALAWAN, and
LEONARDO SALDE, SR., LEONARDO SALDE, JR., FLORESITA SALDE, GLORIA
SALDE-PANAGUITON, and JOJETA PANAGUITON, respondent.

V. Dennis for petitioners.

Perfecto delos Reyes and Roberto delos Reyes for private respondents.

DECISION

BELLOSILLO, J p:

Jeopardy is the peril in which an accused is placed when put on trial before a court of competent
jurisdiction upon an indictment or information which is sufficient in form and substance to
sustain a conviction. No person can be twice put in this peril for the same offense. The
Constitution prohibits it. Nemo debet bis puniri pro uno delicto. This is the defense raised by
accused-private respondents after respondent Judge, upon motion of the Provincial Fiscal,
ordered without notice and hearing the dismissal of Crim. Cases Nos. 7396 and 7397 both for
frustrated murder, which thereafter were reinstated upon initiative of the Secretary of Justice and
docketed anew as Crim: Cases Nos. 8572 and 8573.

It appears that on 7 April 1988, 3rd Asst. Provincial Fiscal Luis E. Estiller of Puerto Princesa
City filed Crim. Cases Nos. 7396 and 7397 for frustrated murder against accused Leonardo
Salde, Sr., Leonardo Salde, Jr., Floresita Salde, Gloria Salde-Panaguiton and Jojeta Panaguiton
for allegedly conspiring together in attacking and taking turns in assaulting complainants, the
spouses Teresa and Amado Rubite, by throwing stones at Amado Rubite and hacking him with a
bladed weapon, hitting him on the left fronto-parietal area which would have caused his death in
Crim. Case No. 8572 (G.R. No. 101557), and by striking Teresa with wood and stones and
hacking her with a bolo which would have caused her death in Crim. Case No. 8573 (G.R. No.
101558).
On 3 June 1988, accused Leonardo Salde, Sr., Leonardo Salde, Jr., Floresita Salde and Gloria
Salde-Panaguiton were arraigned. They all pleaded "not guilty." On 2 August 1988, accused
Jojeta Panaguiton was also arraigned and likewise entered a plea of "not guilty."

On 19 September 1988, when the cases were initially called for trial, the Prosecuting Fiscal
together with counsel for accused jointly moved for the suspension of the hearing pending the
outcome of the motion filed by the accused for reinvestigation of the cases against them, which
Provincial Fiscal Eustaquio Z. Gacott, Jr., later resolved in their favor.

On 12 December 1988, counsel for the offended parties gave, notice to the Provincial Fiscal of
their intention to appeal the latter's resolution to the Department of Justice. On 2 February 1989,
pending appeal to the Department of Justice, Provincial Fiscal Gacott, Jr., moved for the
dismissal of the cases on the ground that the reinvestigation disclosed that petitioner-spouses
Amado and Teresa Rubite were the real aggressors and that the accused only acted in self-
defense.

On 9 February 1989, acting on the motion of the Provincial Fiscal, the Regional Trial Court of
Palawan, Br. 52, ordered the dismissal of Crim. Cases Nos. 7396 and 7397.

Meanwhile, on 1 March 1990, the Secretary of Justice ordered the Provincial Prosecutor to refile
the Informations. Hence, on 6 April 1990, two (2) new Informations for frustrated murder
against the same accused were filed by Acting Provincial Prosecutor Clarito A. Demaala,
docketed as Crim. Cases Nos. 8572 and 8573.

On 13 May 1991, after pleading "not guilty" to the new Informations, the accused moved to
quash on the ground of double jeopardy, which was opposed by the Office of the Provincial
Prosecutor. On 10 July 1991, the trial court granted the motion and dismissed Crim. Cases Nos.
8572 and 8573. The motion to reconsider the order of 10 July 1991 filed by Acting Provincial
Prosecutor Demaala was denied on 16 August 1991. Hence, this petition for certiorari filed by
private petitioners Amado and Teresa Rubite, complainants in the court below.

Petitioners contend that the filing of the two (2) new Informations did not place accused-private
respondents in double jeopardy since the dismissal of the previous cases was made with the
latter's express consent, which can be equated with their motion for reinvestigation of the cases,
dismissal of the cases being their ultimate intention in moving for reinvestigation. It is the
position of petitioners that when the dismissal is with the express consent of the accused, such
dismissal cannot be the basis of a claim of double jeopardy.

Petitioners further submit that the dismissal of the previous cases is null and void as the motion
to dismiss filed by the Provincial Prosecutor which led to the dismissal of the cases did not
contain a notice of hearing; hence, it was then a "mere scrap of paper" which the lower court
should not even have entertained.

Finally, petitioners maintain that where the prosecution has been deprived of a fair opportunity to
prosecute and prove its case, its right to due process is violated.
In this regard, the Solicitor General, interestingly, concurs with petitioners. Instead of filing a
Comment as We required him to do, he filed a Manifestation, citing Gumabon v. Dir. of the
Bureau of Prisons, and submitting that "[c]onsidering that the Order of respondent judge dated
February 9, 1989 favorably granting the Motion to Dismiss without notice and hearing
constituted a violation of basic constitutional rights, the respondent court was consequently
ousted of its jurisdiction when its Order violated the right of the prosecution to due process." In
effect, the first jeopardy never terminated as the respondent trial court was not competent to issue
the 9 February 1989 Order.

While the Solicitor General concedes that "[w]hat should have been done by the new Provincial
Prosecutor was to refile the Informations in Crim. Cases Nos. 7396 and 7397 and not to file new
Informations which were docketed as Crim. Cases Nos. 8572 and 8573," he nevertheless avers
that the filing of the new Informations amounted merely to a continuation of the first jeopardy
and did not expose the private respondents to a second jeopardy. People v. Bocar laid down the
requisites of a valid defense of double jeopardy: (a) a first jeopardy must have attached prior to
the second; (b) the first jeopardy must have been validly terminated; and, (c) the second jeopardy
must be for the same offense as that in the first. Consequently, there being no valid termination
of the first jeopardy, the defense of double jeopardy must fail.

Private respondents on the other hand, invoking the now repealed Sec. 9, Rule 117, of the Rules
of Court, asseverate that the "rules provide and speak of EXPRESS CONSENT" which cannot
be equated with intention. Hence, while they may have intended to have their cases dismissed
upon moving for reinvestigation, they never gave their express consent to the dismissal of the
cases. In fact, they never sought the dismissal of the charges against them.

Furthermore, private respondents, in response to the allegation that the orders of respondent
judge dismissing the first two cases were null and void, argue that if indeed the dismissal orders
were null and void, petitioners should not have waited for the filing of the new Informations and
their subsequent quashal. They should have immediately challenged the dismissal order. After
sleeping on their rights, they cannot belatedly say that they were denied due process.fdsfdsf

The cases at bar raise two (2) fundamental issues: (a) whether private respondents gave their
express consent to the dismissal of the original Informations; and, (b) whether the first jeopardy
was invalidly terminated.

We answer both in the negative. Then, double jeopardy lies.

The right against double jeopardy prohibits any subsequent prosecution of any person for a crime
of which he has previously been acquitted or convicted. The objective is to set the effects of the
first prosecution forever at rest, assuring the accused that he shall not thereafter be subjected to
the peril and anxiety of a second charge against him for the same offense. This Court, as early as
ninety (90) years back, in Julia v. Sotto, said —

"Without the safeguard this article establishes in favor of the accused, his fortune, safety, and
peace of mind would be entirely at the mercy of the complaining witness, who might repeat his
accusation as often as dismissed by the court and whenever he might see fit, subject to no other
limitation or restriction than his own will and pleasure. The accused would never be free from
the cruel and constant menace of a never-ending charge, which the malice of the complaining
witness might hold indefinitely suspended over his head . . ."

Que v. Cosico enumerates the requisites which must concur for double jeopardy to attach: (a) a
valid complaint or information; (b) a court of competent jurisdiction; (c) the accused has pleaded
to the charge; and, (d) the accused has been convicted or acquitted or the case dismissed or
terminated without the express consent of the accused.

The concurrence of all these circumstances constitutes a bar to a second prosecution for the same
offense, an attempt to commit the said offense, a frustration of the said offense, or any offense
which necessarily includes or is necessarily included in the first offense charged.

In the cases before Us, it is undisputed that valid Informations for frustrated murder, i.e., Crim.
Cases Nos. 7396 and 7397 were filed against private respondents before the Regional Trial Court
of Palawan, a court of competent jurisdiction. It is likewise admitted that private respondents,
after being properly arraigned, entered a plea of not guilty. The only question then remaining is
whether the cases against them were dismissed with their express consent.

Express consent has been defined as that which is directly given either viva voce or in writing. It
is a positive, direct, unequivocal consent requiring no inference or implication to supply its
meaning. This is hardly what private respondents gave. What they did was merely to move for
reinvestigation of the case before the prosecutor. To equate this with express consent of the
accused to the dismissal of the case in the lower court is to strain the meaning of "express
consent" too far. Simply, there was no express consent of the accused when the prosecutor
moved for the dismissal of the original Informations.

The Solicitor General then claims that there can be no valid defense of double jeopardy since one
of the requisites for its valid defense, i.e., that there be a valid termination of the first jeopardy, is
unavailing. He further argues that the motion to dismiss filed by the public prosecutor should not
have been entertained, much less granted, since there was no notice of hearing, nor was it
actually set for hearing.

We do not agree.

While it may be true that, as a general rule, all motions should contain a notice of hearing under
Rule 15 of the Rules of Court, these cases present an unusual situation where the motion to
dismiss filed negates the necessity of a hearing. Here, it was the public prosecutor himself who
after instituting Crim. Cases Nos. 7396 and 7397 filed a motion to dismiss on the ground that
after a reinvestigation it was found that —

". . . the evidence in these cases clearly tilts in favor of both accused. The spouses Amado and
Teresa Rubite were the aggressors and the accused Salde, Sr. and his co-accused merely
defended themselves from the attack of the Rubites. Consequently, it would be unfair, arbitrary
and unjustified to prosecute the accused in the above-entitled case."
Besides, who should invoke "lack of notice" but the party deprived of due notice or due process.
And when the Provincial Prosecutor moved to dismiss on the ground that the complaining
witnesses were instead the aggressors and the accused simply acted in self-defense, would the
accused have opposed the motion as to require that he be first notified before the cases against
him be dismissed?

Section 5 of Rule 110 of the New Rules of Criminal Procedure expressly provides that "[a]ll
criminal actions either commenced by complaint or by information shall be under the direction
and control of the fiscal." It must be remembered that as public prosecutor he is the —

"representative not of the ordinary party to a controversy, but of a sovereignty whose obligation
to govern impartially is as compelling as its obligation to govern all; and whose interest,
therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
As such , he is in a peculiar and very definite sense the servant of the law, the twofold aim of
which is that guilt shall not escape or innocence suffer."

Hence, the fiscal or public prosecutor always assumes and retains full direction and control of the
prosecution. The institution of a criminal action depends upon his sound discretion. He has the
quasi-judicial discretion to determine whether or not a criminal case should be filed in court;
whether a prima facie case exists to sustain the filing of an Information; whether to include in the
charge those who appear to be responsible for the crime; whether to present such evidence which
he may consider necessary; whether to call such witnesses he may consider material; whether to
move for dismissal of the case for insufficiency of evidence. As in the case at bar, he may move
for the dismissal of the case if he believes that there is no cause of action to sustain its
prosecution, which was what in fact he did after being convinced that it would be "unfair,
arbitrary and unjustified to prosecute the accused" who were really the victims, as the
reinvestigation showed.

Since it was the prosecuting officer who instituted the cases, and who thereafter moved for their
dismissal, a hearing on his motion to dismiss was not necessary at all. It is axiomatic that a
hearing is necessary only in cases of contentious motions. The motion filed in this case has
ceased to be contentious. Definitely, it would be to his best interest if the accused did not oppose
the motion. The private complainants, on the other hand, are precluded from questioning the
discretion of the fiscal in moving for the dismissal of the criminal action. Hence, a hearing on the
motion to dismiss would be useless and futile.

On the other hand, the order of the court granting the motion to dismiss, notwithstanding the
absence of a notice and hearing on the motion, cannot be challenged in this petition for certiorari
which assails the dismissal of the two (2) cases on the ground of double jeopardy. Petitioners can
no longer question the dismissal of the previous cases as the order has already become final there
being no appeal therefrom.

It has been repeatedly held that once an Information is filed with the court, it acquires
jurisdiction over the case, and the consequent discretion to dismiss it. While the prosecutor
retains full control over the prosecution, he loses jurisdiction over the entire proceedings. Hence,
what petitioners should have done was to appeal the dismissal of the cases on the ground that the
said motion failed to include a notice of hearing, and should not have waited for the dismissal of
the subsequent cases on the ground of double jeopardy, and thereafter question the first
dismissal, which by then had already become final, erroneous though it may be.

The order of the court granting the motion to dismiss despite absence of a notice of hearing, or
proof of service thereof, is merely an irregularity in the proceedings. It cannot deprive a
competent court of jurisdiction over the case. The court still retains its authority to pass on the
merits of the motion. The remedy of the aggrieved party in such cases is either to have the order
set aside or the irregularity otherwise cured by the court which dismissed the complaint, or to
appeal from the dismissal order, and not certiorari.

It must be stressed that after a court has obtained jurisdiction over the case, the failure to give
notice of a subsequent step in the proceedings does not deprive the court of jurisdiction. If
substantial injury results from failure of notice and complaint is duly made thereof, the act of the
court may be held to be erroneous and will be corrected in the proper proceeding, but it is not an
act without or in excess of jurisdiction and is not void. There is a great difference in the results
which follow the failure to give the notice, which is necessary to confer on the court jurisdiction
over the person and the subject matter of the action, and that which follows a failure to give
notice of a step taken after the court has obtained such jurisdiction and is proceeding with the
action.

Hence, the conditions for a valid defense of double jeopardy, i.e., (a) a first jeopardy must have
attached prior to the second; (b) the first jeopardy must have been validly terminated; and, (c) the
second jeopardy must be for the same offense as that of the first, all being present in these cases,
the defense of double jeopardy must prevail.

WHEREFORE, finding no abuse of discretion, much less grave, committed by public

SO ORDERED.

Cruz, Griño-Aquino and Quiason, JJ ., concur.