SSGT. JOSE M. PACOY vs. HON. AFABLE E. CAJIGAL, PEOPLE OF THE PHILIPPINES and OLYMPIO L.

ESCUETA
Facts: On July 4, 2002, an Information for Homicide was filed in the RTC against petitioner committed as
follows:

That on or about the 18
th
day of March 2002, in the Municipality of Mayantoc, Province of Tarlac,
Philippines and within the jurisdiction of this Honorable Court, the said accused with intent to kill, did then
and there wilfully, unlawfully and feloniously shot his commanding officer 2Lt. Frederick Esquita with
his armalite rifle hitting and sustaining upon 2Lt. Frederick Esquita multiple gunshot wounds on his body
which caused his instantaneous death.

With the aggravating circumstance of killing, 2Lt. Frederick Esquita in disregard of his rank.
Upon arraignment, petitioner, assisted by a counsel de parte pleaded not guilty to homicide. Pretrial and
trial was set by the judge. However, on the same day after arraignment, the judge issued another order
directing the trial prosecutor to amend the information to murder, in view of the aggravating
circumstance of disregard of rank alleged in the information, which public respondent registered as
having qualified the crime to Murder. The prosecutor entered his amendment by crossing out the word
homicide and instead wrote the word murder in the caption and in the opening parafraph of the
Information. On the date scheduled for pre trial, the accused was to be re-arraigned for the crime of
murder. Petitioner objected on the ground that he will be placed in double jeopardy. Petitioner then
filed a motion to Quash with Motion to Suspend Proceedings on the ground of double jeopardy. He
alleged that he was validly indicted and arraigned before a competent court I the information for
homicide, and the case was terminated without his express consent; that when the case for Homicide
was terminated without his express consent, the subsequent filinf of information for Murder in lieu of
Homicide placed him in double jeopardy. Said Motion to Quash was denied by the responded judge
ruling that a claim of former acquittal or conviction does not constitute double jeopardy and cannot be
sustained unless judgment was rendered acquitting or convicting the defendant in the former
prosecution; that petitioner was never acquitted or convicted of Homicide, since the Information for
Homicide was merely corrected/or amended before trial commenced and did not terminate the same;
that the Information for Homicide was patently insufficient in substance, so no valid proceedings could
be taken thereon; and that with the allegation of aggravating circumstance of disregard of rank, the
crime of Homicide is qualified to Murder. Petitioner then filed for a Motion for reconsideration alleging
that contrary to respondent judges conclusion that disregard of rank qualifies the killing to murder, it is
a general aggravating circumstance only which only serves to affect the imposition of the period of
penalty. , and that the amendment ordered by the judge was substantial and is therefor not allowed byt
the Rules of Court as the petitioner has already been arraigned. Motion for reconsideration was
granted,and ruled that the original information charging the crime of homicide stands. A petition for
certiorari was filed by the petitioner alleging among others that the motion was not really reconsidered
as the prayer was for the judge to grant the Motion to Quash.

ISSUE: WON petitioner was placed in double jeopardy by the change of the charge from Homicide to
Murder.

Held: NO. Sec 7 of Rule 117 lays down the requisites in order that the defense of double jeopardy may
prosper to wit;

SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without his express consent 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 accused had pleaded to the charge, the
conviction or acquittal of the accused 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.

Thus, there is double jeopardy when the following requisites are present: (1) a first jeopardy attached
prior to the second; (2) the first jeopardy has been validly terminated; and (3) a second jeopardy is for
the same offense as in the first.

As to the first requisite, the first jeopardy attaches only (a) after a valid indictment; (b) before a
competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) when the
accused was acquitted or convicted, or the case was dismissed or otherwise terminated without his
express consent.

It is the conviction or acquittal of the accused or the dismissal or termination of the case that bars
further prosecution for the same offense or any attempt to commit the same or the frustration
thereof; or prosecution for any offense which necessarily includes or is necessarily included in the
offense charged in the former complaint or information.

Petitioner's insistence that the respondent judge dismissed or terminated his case for homicide
without his express consent, which is tantamount to an acquittal, is misplaced.

Dismissal of the first case contemplated by Section 7 presupposes a definite or unconditional
dismissal which terminates the case.

And for the dismissal to be a bar under the jeopardy clause, it must
have the effect of acquittal.

The respondent judge's Order dated September 12, 2002 was for the trial prosecutor to correct and
amend the Information but not to dismiss the same upon the filing of a newInformation charging the
proper offense as contemplated under the last paragraph of Section 14, Rule 110 of the Rules of Court.

Evidently, the last paragraph of Section 14, Rule 110, applies only when the offense charged is
wholly different from the offense proved, i.e., the accused cannot be convicted of a crime with which he
was not charged in the information even if it be proven, in which case, there must be a dismissal of the
charge and a substitution of a new information charging the proper offense. Section 14 does not apply
to a second information, which involves the same offense or an offense which necessarily includes or is
necessarily included in the first information. In this connection, the offense charged necessarily includes
the offense proved when some of the essential elements or ingredients of the former, as alleged in the
complaint or information, constitute the latter. And an offense charged is necessarily included in the
offense proved when the essential ingredients of the former constitute or form a part of those
constituting the latter.

Homicide is necessarily included in the crime of murder; thus, the respondent judge merely
ordered the amendment of the Information and not the dismissal of the original Information. To repeat,
it was the same original information that was amended by merely crossing out the word Homicide and
writing the word Murder, instead, which showed that there was no dismissal of the homicide case.