Pacoy vs Cajigal Digest

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: th

That on or about the 18 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 judge’s 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.