SSGT. JOSE M. PACOY vs. HON. AFABLE E. CAJIGAL 2.
2. Was the petitioner placed under double jeopardy by the change of charge from
G.R. NO. 157472 September 28, 2007
AUSTRIA-MARTINEZ, J.:
FACTS:
On July 4, 2002, an Information for Homicide was filed in the RTC against petitioner.
Petitioner pleaded not guilty to the charge of Homicide. Respondent Judge set the pre-trial
conference and trial on October 8, 2002.
However, on the same day and after the arraignment, the respondent judge issued
another Order directing the trial prosecutor to correct and 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.
Acting upon such Order, the prosecutor entered his amendment by crossing out the
word Homicide and instead wrote the word Murder in the caption and in the opening paragraph of
the Information. The accusatory portion remained exactly the same as that of the original
Information for Homicide, with the correction of the spelling of the victims name
from Escuita to Escueta.
On October 8, 2002, the date scheduled for pre-trial conference and trial, petitioner was
to be re-arraigned for the crime of Murder.
ID., DEFENSE OF PETITIONER., Counsel for petitioner objected on the ground that
the latter would be placed in double jeopardy, considering that his Homicide case had been
terminated without his express consent, resulting in the dismissal of the case. As petitioner refused
to enter his plea on the amended Information for Murder, the public respondent entered for him a
plea of not guilty.
On October 28, 2002, petitioner filed a Motion to Quash with Motion to Suspend
Proceedings Pending the Resolution of the Instant Motion on the ground of double jeopardy.
RTC RULING: Respondent judge denied the Motion to Quash. He ruled 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 filed a Motion to Inhibit with attached Motion for Reconsideration. In his Motion
to Inhibit, he alleged that the respondent judge exercised jurisdiction in an arbitrary, capricious
and partial manner in mandating the amendment of the charge from Homicide to Murder in
disregard of the provisions of the law and existing jurisprudence.
In his Motion for Reconsideration, petitioner reiterated that the case against him was
dismissed or otherwise terminated without his express consent, which constitutes a ground to
quash the information for murder; and that to try him again for the same offense constitutes double
jeopardy. Petitioner stated that contrary to respondent judge's conclusion that disregard of rank
qualifies the killing to Murder, it is a generic aggravating circumstance which only serves to affect
the imposition of the period of the penalty. Petitioner also argued that the amendment and/or
correction ordered by the respondent judge was substantial; and under Section 14, Rule 110 of
the Revised Rules of Criminal Procedure, this cannot be done, since petitioner had already been
arraigned and he would be placed in double jeopardy.
The respondent judge denied the Motion to Inhibit and granted the Motion for
Reconsideration. The judge found that a close scrutiny of Article 248 of the Revised Penal Code
shows that disregard of rank is merely a generic mitigating circumstance which should not elevate
the classification of the crime of homicide to murder.
ISSUE:
1. Was the change of charge from Homicide to Murder a substantial amendment?
homicide to murder?
3. Is double jeopardy a ground for filing a motion to quash?
RULING:
1. The change of the offense charged from Homicide to Murder is merely a formal
amendment and not a substantial amendment or a substitution as defined in Teehankee.
While the amended Information was for Murder, a reading of the Information shows that
the only change made was in the caption of the case; and in the opening paragraph or preamble
of the Information, with the crossing out of word Homicide and its replacement by the word Murder.
There was no change in the recital of facts constituting the offense charged or in the determination
of the jurisdiction of the court. The averments in the amended Information for Murder are exactly
the same as those already alleged in the original Information for Homicide, as there was not at all
any change in the act imputed to petitioner, i.e., the killing of 2Lt. Escueta without any qualifying
circumstance. Thus, we find that the amendment made in the caption and preamble from Homicide
to Murder as purely formal.
2. NO.
Section 7 of the same Rule lays down the requisites in order that the defense of double
jeopardy may prosper. 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.
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 requisite of double jeopardy that the first jeopardy must have attached prior to the
second is not present, considering that petitioner was neither convicted nor acquitted; nor was the
case against him dismissed or otherwise terminated without his express consent.
3. YES.
Section 3, Rule 117 of the Rules of Court, which provides:
SEC. 3. Grounds. - The accused may move to quash the complaint
or information on any of the following grounds:
xxxx
(i) That the accused has been previously convicted or acquitted of the offense
charged, or the case against him was dismissed or otherwise terminated
without his express consent.