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[No. L-1567. October 13, 1949]

THE PEOPLE OP THE PHILIPPINES, plaintiff and appellant, vs..

OSCAR SALICO, defendant and appellee.

1. CRIMINAL PROCEDURE, RULES OF; DOUBLE JEOPARDY;

APPEAL BY PROSECUTION FROM ORDER OP DlSMISSAL;
CASE AT BAR. The appeal by the prosecution from the order of
dismissal of the Court of First Instance would not place the
defendant in double jeopardy: First, because by the dismissal of the
case by the court below upon motion of the defendant, the latter has
not been in jeopardy; second, because the appeal by the prosecution
in such case would not place the defendant in double jeopardy; and
third, because 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 de

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People vs. SaMco

fendant has waived his constitutional right not to be put in danger

of being convicted twice for the same offense.

2. ID.; ID.; WHEN CASE is DISMISSED WITH THE EXPRESS

CONSENT OF DEFENDANT.—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.

3. ID.; ID.; APPEAL BY PROSECUTION UNDER SECTION 2,

RULE 118.—Under section 2, Rule 118 of the Rules of Court the
prosecution may appeal because the defendant would not be placed
thereby in double jeopardy, not only when the defendant has not yet
been placed in jeopardy in the court below, but also when, although
a defendant had already been in former jeopardy, the appeal by the
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prosecution would not place him in danger again of being

convicted by the appellate court for the same offense, because the
question for the appellate court to decide is not the guilt or
innocence of the defendant.

4. ID. ; ID.; DISMISSAL AS WELL AS APPEAL THEREFROM BY

PROSECUTION is NOT A BAR TO ANOTHER PROSECUTION.
—Under section 9, Rule 113, of the Rules of Court such dismissal
will not be a bar to another prosecution for the same offense and,
therefore, to an appeal by the prosecution from the order of
dismissal.

5. WORDS AND PHRASES; "ACQUITTAL" AND "DISMISSAL"

EXPLAINED AND DISTINGUISHED.—Acquittal is always
based on the merits, that is, the defendant is acquitted because the
evidence does not show that defendant's guilt is beyond a
reasonable doubt; but dismissal does not decide the case on the
merits or that the defendant is not guilty. Dismissal terminates the
proceeding, either because the court is not a court of competent
jurisdiction, or the evidence does not show that the offense was
committed within the territorial jurisdiction of the court, or the
complaint or information is not valid or sufficient in form and
substance, etc.

APPEAL from and order of the Court of First Instance of Negros

Occidental. Cordova, J.
The facts are stated in the opinion of the court.
First Assistank Solicitor General Roberto A. Gianzon and
Solicitor Luis R. Feria for appellant.

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People vs. Salico

FERIA, J.:

This is an appeal by the provincial fiscal from the order of the Court
of First Instance of Occidental Negros which, upon the petition of
the defendant before the latter has presented his evidence, dismissed
the criminal action against the defendant charged with homicide on
the ground that the fiscal was not able to prove that the offense was
committed within the territorial jurisdiction of the court, or that the
town or municipality of Victorias in which it was committed is
within the Province of Negros Occidental.
It is obvious that the lower court erred in not taking judicial
notice as it ought to of the political subdivisions or municipalities of
the Province of Occidental Negros, that is, that the municipality or

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town of Victorias was within that province, and therefore the offense
charged was committed within the jurisdiction of the Court of First
Instance of Occidental Negros. Juan Jardiman, the principa! witness
for the prosecution, testified in part as f ollows;

"Juaa Jardiman, after being duly sworn to, states that he is 25 years old,
married, laborer, and resident of Hacienda Loreto, municipality of Victorias,
Province of Negros Occidental. "FISCAL ENCARNACION—(Direct
Examination)
"Q. In the evening of March 1, 1947, where did you go if you went
somewhere?—A,. I went to the town of Victorias in the public market.
"Q. When you retarned, did you have any companion?—A. While I was
going back to the hacienda, I passed by Delfin Abecilla at around 11:30 in
the evening because he went to the show, and we went home together.
"Q. Then, while you were walking, what happened?—A. While we were
on our way home and we reached the bridge of Mangnanod, I went a little
bit ahead of Delfin and on the crossing of the road going to the old town-site
of Victorias, I saw Oscar Salico drunk and swaying. That was the time when
Delfin told me that he would stop for a while to light his cigarette. So,
because the wind was blowing hard, he sat down to light his cigarrette at the
same time I saw Oscar Salico approached Delfin Abecilla to ask for a
cigarette, Delfin told him that he could not give any cigarette be

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People vs. Salico

cause he had no more. In that instance, Oscar kicked Delfin saying, 'You are
very greedy; just for a cigarette you would not give me.' So, Delfin Abecilla
stood up and faced Oscar and Oscar Salico took a knife and stabbed Delfin
Abecilla.
* * * * * * *
"A. Later on, I found Delfin Abecilla at a distance of fifteen brazas from
the place of the incident, sitting and in the inclining position in the canal.
So, I called for the MPs that were in the jitney and we brought him to the
house of Doctor De Guzman but Dr. De Guzman was not in his house. So,
we brought him to the town of Victorias to Dr. Hinlo in the municipal
building. When Dr. Hinlo arrived in the rnunicipal building, Delfin Abecilla
was already dead." (Evidence for the Prosecution, pp. 12, 13, 16.)

The only question which is necessary for us to determine is whether

or not the appeal by the prosecution from the order of the Court of
First Instance in the present case would place the defendant in
double jeopardy. We hold that it does not, for the following reasons:
(1) First, because by the dismissal of the case by the court below
upon motion of the defendant, the latter has not been in jeopardy;
Second, because the appeal by the prosecution in the present case

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would not place the defendant in double jeopardy. And Third,

because 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.
(1) Section 9, Rule 113 of the Rules of Court, provides:

"SEC. 9. Former conviction or acquittal or former jeopardy.—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."

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According to the above-quoted provisions, when a defendant has

been convicted or acquitted or the case against him is dismissed or
otherwise terminated without his express consent, upon a valid
complaint or information by a court of competent jurisdiction and
after he has 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 same offense.
But 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.
This is in conformity with the well established rule stated in
Ruling Case Law and American Jurisprudence, based on a uniform
ruling of the courts of last resort in the United States from which our
law on jeopardy was taken, as follows:

"Dismissal at Request of Defendant.—It may be stated as a general rule that

where an indictment is quashed at the instance of the defendant, though after
jeopardy has attached, he cannot thereafter plead former jeopardy when
placed on trial on another indictment for the same offense. His action in
having the indictment quashed constitutes a waiver of his constitutional
privilege. * * *" (Kuling Case Law, Vol. 8, pp. 152, 153.)

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"It may be stated as a general rule that where an indictment is quashed at

the instance of the defendant, thcmgh after jeopardy has attached, he cannot
thereafter plead former jeopardy when placed on trial on another indictment
for the same offense. His action in having the indictment quashed constitute
a waiver of his constitutional privilege." (American Jurisprudence, Vol. 15,
p. 74.)
"Where judgment in a murder case was arrested, at the prisoner's
instance, by the judge who presided at the trial, on the ground that he had no
jurisdiction in that he held the court outside of his circuit, defendant could
be tried again on the same indictment." (Small vs. State, 63 Ga., 386.)

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People vs. Salico

"A judgment quashing an indictment, on the ground of the

unconstitutionality of the statute under which the charge is brought, when
the accused has not been tried as to his guilt or innocence under the charge,
will not be a bar to a subsequent prosecution of the accused for the same
charge. (State vs. Taylor, 34, La. Ann., 978.)
"A discharge on formal objections to the jurisdiction, but not a trial on
the merits, will not support a plea of former jeopardy." (Duffy vs. Britton, 48
N. J. Law [19 Vroom], 371; 7 Atl., 679.)

In the case of Carrol vs. State, 50 Tex. Crim., 485; 98 S. W., 859, the
Supreme Court of Texas held the following:

"It is equally true that, where the accused has secured a decision that the
indictment is void, or procured its being quashed, the accused is estopped,
when he is subsequently indicted, to assert that the former indictment was
valid. U. S. vs. Jones (C. C.) 31 Fed., 725; Joy vs. State, 14 Ind., 139; State
vs. Meekins, 41 La. Ann., 543, 6 South, 822. And it has been held that, if the
accused on a prior trial maintains a variance was material, and the court
directed an acquittal on that ground, he cannot subsequently on his plea of
former acquittal allege or prove that it was not material. People vs. Meakin,
61 Hun (N. Y.), 327, 15 N. Y. Supp., 917; State vs. Goff, 66 Mo. App., 491.
Nor can a defendant plead jeopardy where the jury before which he was first
on trial was discharged on his motion or with his consent. Arcia vs. State, 28
Tex. App., 198, 12 S. W., 599; State vs. Coleman, 54 S. C., 282, 32 S. E.,
406; Peiffer vs. Com., 15 Pa., 868, 53 Am. Dec., 605; State vs. Devis, 80 N.
C., 384; People vs. Gardner, 62 Mich., 307, 29 N. W., 19; Com. vs. Sholes,
13 Allen (Mass.), 554; State vs. Wamire, 16 Ind., 357; McCorkle vs. Comm.,
14 Ind., 39; Hughes vs. State, 35 Ala., 351; Cobia vs. State, 16 Ala., 781;
Rex. vs. Stokes, 6 C. & P. 151; Foster, Crown L., 27; 2 Hawkins, P. C. c. 47,
Sec. 1. Under these authorities tliis quashal of the indictment and dismissal
of the case, after the jury was impaneled, being at the instance of defendant
and with his full and free consent, cannot be set up by him as a plea in bar of

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further prosecution." (98 South Western Reporter, Carrol vs. State, pp. 860,
861.)

In the case of Craig vs. United States, the Circuit Court of Appeals,
Ninth Circuit (Feb. 10, 1939), an indictment was returned on Dec.
19, 1934, in the court below against the defendants. The accusation
contained two counts. The first count alleged that the defendants had
conspired

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People vs. Salico

to secure, by corrupt means, dismissal of an indictment and

prosecution in which John McKeon and others were charged with a
violation of the conspiracy statute. After the trial, after all the
evidence had been introduced and both sides had rested, and before
the arguments of counsel to the jury, the defense moved to require
the government to elect upon which count it would proceed. The
government elected to proceed on the second count, and the court
dismissed the first count. Subsequently on March 14, 1935, the
grand jury returned another indictment against the same defendants
in the court below, the first count of which involves the same
transaction charged as count 1 of the former indictment. Each of the
defendants pleaded not guilty and entered a plea of former jeopardy
to the first count. The trial court granted the appellee's motion to
strike the plea in bar and of former jeopardy, and the jury returned a
verdict of guilty severally as to the appellants therein.

"Arguing in support of their plea in bar and their plea of once in jeopardy,
under which they urge the cognate defense or res judicata, the appellants
contend that the action of the trial judge in the first case, in entering a
judgment in their favor on the first ccrant of the first indictment, was, in
effect, an instruction for a verdict in favor of the appellant; that 'the mere
abandonment of the charge was equivalent to an acquittal'; that the
abandonment of count 1 was without the appellants' consent; and, finally,
that, since count 1 of the first indictment was the same as count 1 of the
present indictment, on which the appellants were convicted, the above-
mentioned pleas should have been sustained.
The appellants, however, are in error when they state that count 1 of the
first indicment was dismissed or abandoned without their consent. The very
portion of the record quoted by the appellants, and set out above, shows that
their counsel renewed 'the motion made to compel the Government to elect
to further proceed upon one or the other count of the indictment, rather than
upon both counts.' * * * The appellants now contend that, since counts 1 and
2 of the first indictment charged the same offense as that charged by the first
count of the present indictment, a dismissal of count 1 of the first indictment

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is a bar to a prosecution under count 1 of the present indictment, even

though the first jury was unable to agree on the count that was in fact
submitted to it. If this rule were

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People vs. SaMco

adopted, a defendant confronted by an indictment containing similar counts

could wait until the taking of testimony had begun, could then insist upon an
election, and, in the event of the jury's disagreement on the count elected,
could block a second trial on a similar count on the ground that the former
count had been abandoned after jeopardy had commmenced. We do not
think that such an application of the rule as to former jeopardy is a
reasonable one, and we decline to adopt it."

In 8 R. C. L. sec. 141, supra, the following language is used:

"It may be stated as a general rule that where an indictment is quashed at the
instance of the defendant, though after jeopardy has attached, he cannot
thereafter plead former jeopardy when placed on trial on another indictment
for the same offense. His action in having the indictment quashed
constitutes a waiver of his constitutional privilege.
"We believe that the court below was correct in granting the appellee's
motion to strike the plea in bar and the plea of once in jeopardy." (Federal
Reporter, 2d series, Vol. 81, pp. 819, 820.)

(2) As a necessary corollary of the above conclusion that the

defendant had not been in jeopardy in the court below, because the
case was dismissed upon the defendant's own motion, this appeal by
the prosecution would not place the defendant in double jeopardy,
since a person who has not been once, can not be put twice in
jeopardy.
Besides, under section 2, Rule 118 of the Eules of Court the
prosecution may appeal because the defendant would not be placed
thereby in double jeopardy, not only when the defendant has not yet
been placed in jeopardy in the court below, but also when, although
a defendant had already been in former jeopardy, the appeal by the
prosecution would not place him in danger again of being convicted
by the appellate court for the same offense, because the question f or
the appellate court to decide is not the guilt or innocence of the
defendant. For example, when after a judgment of conviction
rendered by the lower court had become final the court reconsiders
its' decision and renders another acquitting the defendant, in which
the question raised in the appeal is not the guilt or innocence of the

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People vs. Salico

appellee, but the jurisdiction of the court to render the second

judgment. Or, as in the present case, when the question involved in
the appeal is whether or not the lower court erred in dismissing the
case on the ground that the evidence for the prosecution does not
show that the place where the offense was committed was within the
territorial jurisdiction of the court. This court by reversing the
appealed decision in such cases can not convict the appellee, but
only remand the case to the lower court f or f urther proceeding. The
fact that the lower court has to proceed to the trial of the case against
the defendant on the merits and may after the trial either acquit or
convict him, would not place the defendant in double jeopardy,
because the f urther proceeding by the court below is not a new trial
of a case against the defendant, but a mere continuation of the
former trial in order that the lower court may decide the case on the
merits or the guilt or innocence of the defendant.
(3) Assuming, arguendo, that the defendant had been already in
jeopardy in the court below and that appeal would put him in double
jeopardy, it is well settled in this jurisdiction that the right of the
defendant not to be put twice in jeopardy is deemed waived if not set
up in time as a defense or ground for a motion to dismiss. As the
defendant has not set up said right or objected on that ground to the
appeal by the prosecution, this court can not motu proprio dismiss
the appeal, in the same way that if the defendant appeals from a
judgment of conviction, waiving his right not to be put twice in
jeopardy, the appellate court can not motu proprio dismiss the
appeal. The provision of section 2, Rule 118, can not be construed to
mean that this Court can not entertain an appeal by the prosecution
even if the defendant has waived his right to object to the appeal on
the ground that it would place him in double jeopardy; because the
Congress has no power to make the judgment of the Court of First
Instance unappealable by the mere fact that the defendant

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People vs. SaMco

had already been in jeopardy, inasmuch as section 2, Article VIII, of

the Constitution provides that the Congress may not deprive the
Supreme Court of its appellate jurisdiction to review on appeal all
final decisions and orders of the inferior courts in all cases in which
an error or question of law is involved, as in the present case.
Besides, section 9, Rule 113, of the Rules of Court provides that
"when a defendant shall have been convicted or acquitted, or the

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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 * * * and after the defendant
has 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 same offense, etc." It does not say that it shall be
a bar if the defendant sets up the defense of double jeopardy in the
same way that section 2 of Rule 118 does not provide that the
prosecution can not appeal if the defendant set up the defense of
double jeopardy; and yet the defendant shall have to set up that
defense if prosecuted again for the same offense, for otherwise it is
deemed waived and the defendant may be prosecuted and convicted
for the same offense.
(4) The case of People vs. Tan cited in the dissenting opinion is
not applicable to the present case; because in that case the
prosecution tried to appeal from the judgment of the lower court
acquitting the defendant, and as the defendant had been already in
jeopardy in the court below for he was acquitted after the trial on the
merits on the ground that he was not guilty, the appeal by the
prosecution would have placed the accused in double jeopardy;
while in the present case the action was dismissed not on the merits,
but on the ground that the evidence did not show that the court was
of competent jurisdiction, or that the offense charged was committed
within the territorial jurisdiction of the court.
The defeated attempt by some members of the constitutional
convention "to modify the meaning of the word

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'jeopardy' in the Constitution in such a way that before the judgment

of the lower court becomes final, an appeal to the higher court could
be permitted," may be quoted in support of the decision of this Court
in said case of Tan, who was acquitted; but it can not be quoted
against the appeal of the prosecution in the present case in which the
defendant was not acquitted on the merits, but the case against him
was dismissed with the express consent or upon the motion of the
defendant on the ground already stated. For under section 9, Rule
113, of the Rules of Court such dismissal will not be a bar to
another prosecution for the same offense and, therefore, to an
appeal by the prosecution from the order of dismissal.
It can not be argued that, though under section 9, Rule 113 of the
Rules of Court, "For legal jeopardy to exist, it is enough that a
defendant shall have 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
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information, and after the defendant has pleaded to the charge." But
"in the case at bar it is not pretended that the trial court was not
competent or that the information was not valid, and the dismissal
was decreed not only after the defendant had entered a plea of not
gui'lty but after the prosecution had closed its evidence." And
therefore, "though termed technically a dismissal the effect of the
appealed order was an acquittal on the merits."
This argument or reasoning is predicated on a confusion of the
legal concepts of dismissal and acquittal. Acquittal is always based
on the merits, that is, the defendant is acquitted because the evidence
does not show that defendant's guilt is beyond a reasonable doubt;
but dismissal does not decide the case on the merits or that the
defendant is not guilty. Dismissal terminates the proceeding, either
because the court is not a court of competent jurisdiction, or the
evidence does not show that the offense was committed within the
territoria! jurisdiction of the

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People vs. Salico

court, or the complaint or information is not valid or sufficient in f

orm and substance, etc. The only case in which the word dismissal is
commonly but not correctly used, instead of the proper term
acquittal, is when, after the prosecution has presented all its
evidence, the defendant moves for the dismissal and the court
dismisses the case on the ground that the evidence fails to show
beyond a reasonable doubt that the defendant is guilty; for in such
case the dismissal is in reality an acquittal because the case is
decided on the merits. 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 before
the 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.
The dismissal by this Court of the appeals of the prosecution in
the cases of People vs. Borja, 43 Phil., 618 and People vs. Fajardo
can not properly be considered as a precedent against our
conclusion. In the ftrst place, because the prosecution itself in said
cases asked to have its appeal dismissed, and for that reason this
Court had not considered the question of dismissal of a case with the
express consent of the accused in connection with the question of
double jeopardy. And besides, the ruling in the above-mentioned
cases was impliedly reversed by this Court in the case of People vs.
Ylagan, 58 Phil., 851, 854. In this latter case, in which this Supreme
Court discussed the question whether the dismissal of a case before
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judgment with or without the express consent of the defendant

constitute a waiver of his right not to be placed in jeopardy a second
time for the same offense, we held the f ollowing:

"Counsel for the government, however, contends that the previous case
brought against the appellee was dismissed with her consent, on the theory
that the phraso 'without the consent of the accused,' used in section 28 of the
Code of Criminal Procedure, should be con

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People vs. Salico

strued to mean 'over the objection of the accused' or 'against the will of the
accused'. We can not accept such a theory. We believe it a sound rule to lay
down, that the mere silence of the defendant or his failure to object to the
dismissal of the case does not constitute a consent within the meaning of
section 28 of the Code of Criminal Procedure. The right not to be put in
jeopardy a second time for the same offense is as important as the other
constitutional rights of the accused in a criminal case. Its waiver can not,
and should not, be predicated on mere silence."

According to the ruling in the above quoted decision, if a criminal

case is dismissed before judgment without the express consent of the
defendant the dismissal is a bar to another prosecution, but a
contrario sensu if he consents expressly to the dismissal he may be
prosecuted again for the same offense, because his express consent
to the dismissal constitutes a waiver of his "right not to be put in
jeopardy a second time for the same offense." This ruling is squarely
applicable to the question involved in this case, for section 9 of Rule
113 already quoted above was taken from section 28 of the old Code
of Criminal Procedure, which was construed in the said decision in
People vs. Ylagan and provided as follows:

"A person cannot be tried for an offense, nor for any attempt to commit the
same or frustration thereof, for which he has been previously brought to trial
in a court of competent jurisdiction, upon a valid complaint or informaiion
or other formal charge sufficient in form and substance to sustain a
conviction, after issue properly joined, when the case is dismissed or
otherwise terminated before judgment without the consent of the accused."

We have carefiilly examined the authorities on jeopardy in the

United States wherefrom our law on the subject was imported or
taken, and we have found that all of them without exception are in
favor of our conclusion that the defendant in the present case has not
been in jeopardy in the court below, or has waived his right not to be
put again in jeopardy for the same offense. Therefore, the defendant

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can not now claim that the appeal by the prosecution will place him
in double jeopardy.

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People vs. Salico

In view of all the foregoing, this case is returned to the lower court
and the court a quo is ordered to proceed or continue the trial of the
case and decide the case on the merits, without pronouncement as to
costs. So ordered.

Moran, C. J., Ozaeta, Padilla, Tuason, Reyes, and Tonres, JJ.,

concur.

PARAS, J., dissenting:

I dissent.
The defendant-appellee, Oscar Salico, was charged with the
offense of homicide in an information filed in the Court of First
Instance of Negros Occidental. After the defendant had entered a
piea of not guilty, and the prosecution had rested its case, the trial
court, upon motion of counsel for the defense, issued an order dated
June 5, 1947, dismissing the case on the ground that the prosecution
failed to prove that the offense imputed to the defendant was
committed within the jurisdiction of the court. He was immediately
discharged from custody. This is an appeal by the Government from
the order of dismissal.
The Solicitor General contends that, upon the evidence on record,
"the conclusion is inevitable that the crossing of the road leading to
the old townsite of Victorias, must necessarily lie within the
territorial limits of the municipality of Victorias, and, therefore,
should have been judicially recognized by the trial court." We find it
unnecessary to pass upon this contention, for the fundamental
question that presents itself is whether or not the present appeal will
place the defendant in double jeopardy. Clearly, the answer has to be
in favor of the latter and against the appellant.
The prosecution cannot appeal if the defendant would be placed
thereby in double jeopardy. (Rule of Court 118, section 2.) A petition
to re-examine and reverse this principle was made in G. R. No. L-
2705, People et al., vs.

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Tan, but this Court by unanimous vote denied the same in the
following resolution promulgated on January 18, 1949:

"Considering the petition for certiorari and mandamus in L-2705, People et

al., vs. Tan, ir which the petitioners seek a re-examination of the doctrine
followed by this Court after the decision of the United States Supreme Court
in Kepner vs. U. S., 195 U. S., 100, 11 Phil., 669, namely, that the State and
the offended party cannot appeal from a judgment of dismissal or acquittal,
it being the contention of the petitioners that a reversal of said doctrine is
not violative of the constitutional provision that 'no person shall be twice put
in jeopardy of punishment for the same offense' [Article III, paragraph (20),
Constitution of the Philippines]; it appearing that a similar attempt for re-
examination or reversal had failed to prosper in the Constitutional
Convention, as may be seen from the following account by Delegate Jose
M. Aruego in his book 'The Framing of the Philippine Constitution,' page
191:
" 'An amendment was proposed by Delegate Barrion to modify the
meaning of the word, jeopardy, in such a way that, before the judgment of
the lower court became final, an appeal to the higher court could be
permitted. The provision as amended by Delegate Barrion would then read
as follows:
" 'No person shall be twice put in jeopardy of punishment for an offense
upon which a final judgment has been rendered."
" 'ln explaining his amendment, Delegate Barrion stated that he was
reaffirming the doctrine of jeopardy, only that he was suggesting that the
Convention should give its own meaning of the term, jeopardy, so that the
government, like the accused, should be given an opportunity to appeal a
case from the decision of the trial court before the sentence would become
final. Delegate Barrion said:'
" 'I consider, gentlemen, that an appeal against an acquitting decision
should not be considered jeopardy because the decision has not as yet
become final. It can be considered jeopardy only if that sentence has become
final. I mean to say if the sentence has been appealed to and confirmed by
the Supreme Court or if the period fixed by the law for the appeal has
already expired.
" 'We know, gentlemen, that we have sad cases in which the offended
party come almost weeping because the accused has been acquitted, and the
fiscal and the offended party do not understand why he has been acquitted,
leaving them no more recourse. The judge is human, has his prejudices; he
may err. But if we give to the offended party the same right that the accused
has in order that tlie decision of the trial judge may be reviewed by a more
competent authority, the Supreme Court, then we shall have given
satisfaction to the offended party.'

737

VOL. 84, OCTOBER 13, 1949 737

Peaple vs. Salico

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"Without any speech against it, the proposed amendment was defeated when
put to a vote. The Convention consequently brought to the Constitution the
meanings which the jeopardy provision had under the Jones Law.
"And considering that it was therefore the sense of the Constitutional
Convention to concur in the doctrine sought to be reconsidered by the herein
petitioners: The Court resolved to dismiss the petition."

For legal jeopardy to exist, it is enough that a defendant shall have

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, and
after the defendant had pleaded to the charge. (Rule of Court 113,
section 9.) In the case at bar, it is not pretended that the trial court
was not competent or that the information was not valid, and the
dismissal was decreed not only after the defendant had entered a
plea of not guilty but after the prosecution had closed its evidence.
The result is that, though termed technically a dismissal, the effect of
the appealed order was an acquittal on the merits. Said dismissal,
based on the ground that the prosecution failed to prove that the
offense was committed within the jurisdiction of the court, may be
erroneous, but this cannot nullify the legal effects of double
jeopardy. (U. S. vs. Regala, 28 Phil., 57.) Where a crime is charged
and the court has jurisdiction, the case has gone to trial and the
witnesses sworn and testified for the prosecution, and the court then
sustains the defendant's motion for dismissal, he was in jeopardy,
and an appeal does not lie to this court to reverse the judgment of the
lower court. (People vs. Borja, 43 PhiL, 618.) See also, People vs.
Fajardo, 49 Phil., 211.)
Although the defendant-appellee has failed to object to the appeal
herein, this fact does not make said appeal allowable, for the right to
an appeal is purely a statutory, not an inherent right, and is not a
necessary element of due process of law; and where no such appeal
is allowed

738

738 PHILIPPINE REPORTS ANNOTATED

People vs. Mari

by law in any specific case, none can be taken. (Moran, Comments

on the Rules of Court, 2nd Ed., Vol. II, p. 726.) Moreover, "the right
not to be put in jeopardy a second time is a fundamental
constitutional right, the waiver of which cannot be predicated on
mere silence of the accused." (Id., p. 677.)
The instant appeal, not being allowable, should be dismissed.

Bengzon and Montemayor, JJ., concur.

Order modified; case remomded with instructions.

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