Constitutional Law: Article III, Section 21 Summary (De Leon)

SEC. 21. No person shall be twice put in jeopardy of punishment for the same offense. 

If an act is punished by a law and an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.

Right against double jeopardy.

The right against double jeopardy means that when a person is

charged with an offense and the case is terminated either by acquittal

or conviction or in any other manner without the express consent of

the accused, the latter cannot again be charged with the same or

identical offense.

Double jeopardy provides three (3) related protections: 

(1) against a second prosecution for the same offense after acquittal; 

(2) against a second prosecution for the same offense after conviction; and 

(3) against multiple punishments for the same offense.

Purpose and basis of the right.

(1) The guarantee has a strict application to criminal prosecution

only. It protects the accused against the peril of a second trial as well

as a second punishment for the same offense.

As the Supreme Court put it:

(a) "Fittingly described as res judicata in prison grey, the purpose of the right is to set the effects of the first prosecution forever at rest, assuring the accused that he shall not thereafter, be subjected to the danger and anxiety of a second charge against him for the same offense."

(b) "It protects an accused from harassment, enables him to treat what had transpired as a closed chapter in his life, either to exult in his freedom or to be resigned to whatever penalty is imposed, and is a bar to unnecessary litigation, in itself time-consuming and expense-producing for the state as well."

(2) This principle is founded upon the law of reason, justice and conscience.

It is embodied in the maxim of the civil law non bis in idem, in the common law of England, and undoubtedly every system of jurisprudence, and instead of having specific origin, it simply always existed.

To permit the sovereign freely to subject the citizen to a second judgment for the same offense would arm the government with a potent instrument of oppression. 

It is axiomatic that on the basis of humanity, fairness and justice, an acquitted defendant is entitled to the right of repose as a direct consequence of the finality of his acquittal. The philosophy underlying this rule establishing the absolute nature of acquittals is part of the paramount importance criminal justice system attaches to the protection of the innocent against wrongful conviction. Such is the magnitude of the accused's right against double jeopardy that even an appeal based on an alleged misappreciation of the evidence by the trial court will not lie.

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should no be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecrinty, as well as enhancing the possibility even though innocent, he may be found guilty.

Requisites for existence of double jeopardy.

Jeopardy is the risk, danger or peril in which an accused is placed when charged before a competent court upon an indictment or information sufficient to sustain a conviction.

Under present law and jurisprudence, the accused is placed in double jeopardy if the following conditions are present:

(1) He has been previously brought to trial;

(2) The court which tried him is a court of competent jurisdiction,

i.e., has jurisdiction to try him for the crime charged;

(3) The complaint or information under which he has been charged is valid, i.e., sufficient in form and substance to sustain a conviction;

(4) He has been validly arraigned (see Sec. 14[2].) and pleaded (either guilty or not guilty) to the charge;

(5) He has been previously convicted or acquitted of the offense charged, that is, the former case against him has been dismissed or otherwise terminated without his express consent; and

(6) He is being charged again for the same offense.

Preliminary investigation is not part of the trial.

Conviction or acquittal means not only one after trial on the merits. 

Conviction includes that upon a plea of guilty to a lesser offense made with the consent of the prosecutor and the offended party. 

Acquittal embraces dismissal or termination of the case without the express consent of the accused (after e has pleaded to the charge) which is equivalent to acquittal for purposes of double jeopardy and the discharge of the accused to act as a State witness provided he performs his part of the bargain. 

Such conviction, acquittal, or unconsented dismissal or termination of the case becomes res judicata and, therefore, a bar to another prosecution for the same or identical offense.

The principle of double jeopardy finds no application in administrative cases.

Attachment of first jeopardy.

(1) When the first five (5) requisites are present in the first criminal action, the first jeopardy has legally attached.

(2) The second or double jeopardy (No. 6.) which is prohibited must be for: 

        (a) the same offense as that in the first, or 

        (b) the second offense necessarily includes or necessarily included in the offense charged in the first information, or 

        (c) is an attempt to commit the same, or 

        (d) a frustration thereof.

A person may be tried and convicted for two separate offense where one is malum prohibitum (e.g., illegal recruitment) punished under special law, while the other, malum in se (e.g., estafa, under the Revised Penal Code).

In other words, the requisites of double jeopardy are:

(1) a first jeopardy must have attached prior to the second;

(2) the first jeopardy must have been validly terminated; and

(3) the second jeopardy must be for the same offense as that of the first.

There is no double jeopardy where the fraudulent acts (of estafa) charged were committed against different persons, hence, they do not constitute the same offense, although the cases arose out of the same scheme.

Where case not yet deemed terminated.

(1) Case remanded to trial court. 

The remand of a case by the Court of Appeals to the trial court for further reception of evidence to determine the actual value of the personal property involved and for the imposition of the appropriate penalty under the Anti-Fencing Law (P.D. No. 1612.), will not place an accused in double jeopardy. The concurrence of the requisites does not occur when the case is remanded to the trial court.

(2) Earlier decision in regard only to liability for civil indemnity.

Neither is the constitutional proscription violated by a Court of Appeals' order requiring the trial court to promulgate a decision sentencing the accused to imprisonment even if earlier, the same decision has been promulgated in regard only to the payment of the civil indemnity arising from the same criminal act. Otherwise stated, the promulgation of one part of the decision, i.e., the liability for civil indemnity is not a bar to the subsequent promulgation of

the other part, the imposition of the criminal accountability. 

Since the promulgation of only the civil aspect of the case is not merely incomplete but is also void, the criminal case is not yet deemed terminated; hence, double jeopardy cannot prosper as a defense.

 

(3) Order of dismissal not an adjudication on the merits.

Where the order dismissing a criminal case was not an adjudication on the merits, but upon an erroneous conclusion of the judge that his court had no "territorial jurisdiction," said order cannot bar as res judicata a subsequent case based on the same offense. 

The dismissal being null and void, the proceedings before the local court may not be said

to have been lawfully terminated.

(4) Acquittal/conviction of accused or dismissal of case has not yet taken place. 

There is no violation of the right against double jeopardy even if the trial court approves the prosecution's motion to re-open the case after its earlier approval of the accused's plea to the lesser offense of homicide with conditions, where the court still had to render a decision on the criminal and civil liabilities of the accused, i.e., the case was not yet terminated as a result of

the accused's acquittal or conviction or its dismissal. 

(5) Motion for reconsideration of decision filed by accused. 

When the accused himself files or consents to the filing of a motion for reconsideration or modification, double jeopardy cannot be invoked because the accused waives his right not to be placed therein by filing such motion.

His motion gives the court an opportunity to rectify its errors or to reevaluate its assessment of facts and conclusions of law and make them conformable with the statute applicable to the

case in the new judgment it has to render.

Double jeopardy, a ground for a motion to dismiss.

The right against double jeopardy is a matter which the accused may raise in a motion to dismiss. (Rules of Court, Rule 117, Sec.3h)

It has been held that where the ground of double jeopardy was not raised in the motion to quash before the trial court, that ground cannot be made the basis for attributing grave abuse of discretion to the prosecutor in filing several informations involving, according to the the accused's theory, one and the same offense.

But a law contrary to the ex post facto or bill of attainder provision of the Constitution (Sec. 22.) would be unconstitutional.

Effect of a judgment of acquittal.

In our jurisdiction, the finality-of-acquittal doctrine is followed as a safeguard against double jeopardy.

(1) A judgment of acquittal is final, unappealable, and immediately executory upon rendition or promulgation and entitles the accused to be released; hence, it may no longer be amended or corrected by the court, except for clerical errors or mistakes. To amend or alter it will not only violate this basic principle but would also place the accused in double jeopardy.

(2) A person acquitted of a criminal charge can no longer be charged, detained, or re-arrested for the same offense.

(3) As a general rule, a void judgment will not result in the acquittal of the accused.

Where the judgment is void, no double jeopardy result from the re-filing of the criminal case as where there is a finding of mistrial resulting in a denial of due process. But in the absence of a finding of mistrial, i.e., the criminal trial was a sham, the judgment of acquittal is final and

unappealable on the ground of double jeopardy, whether it happens at the trial court level or at the Court of Appeals.

Valid previous proceedings.

The doctrine of double jeopardy requires "valid previous proceedings." Thus:

(1) A court cannot render a valid judgment under an invalid complaint or information (e.g., one filed by the prosecutor or fiscal for adultery or concubinage); hence, its dismissal and the filing of the corrected information will not place the accused under double jeopardy. Jeopardy does not attach where a defendant pleas guilty to a defective or insufficient information that is voluntarily dismissed by the prosecution. But where an information is motu proprio dismissed on the ground that it is defective when it is not so, in fact, it has been held that the dismissal is a bar to another prosecution for the same offense.

(2) Where the proceedings before the municipal court under which the accused was convicted are null and void for not being recorded, he was not placed in double jeopardy when he was tried and convicted anew in the Court of First Instance (now Regional Trial

Court) in the exercise of the latter's concurrent original jurisdiction.

 

(3) Where the dismissal or decision of acquittal is void for lack of jurisdiction, the defense of double jeopardy cannot be raised by the accused in the second prosecution. There is an exception to this rule. (

(4) A preliminary investigation is not a trial or part of a trial for which double jeopardy attaches. It is not the occasion for the full and exhaustive display of the parties' evidence but only such as may engender a well-grounded belief that an offense has been committed and the accused is probably guilty thereof.

(5) There is no double jeopardy where, for example, a judge exonerated by the Supreme Court, is charged for the same offense in the Sandiganbayan. Distinctions exist between administrative and criminal proceedings and prosecution in one is, therefore, not a and bar to the other.

Existence of a plea.

(1) The existence of a valid plea is an essential requisite to double jeopardy. The theory of the requirement is that a conviction is void unless the issue has been joined between the accused and the State, by arraignment and plea. Jeopardy only begins when the accused has been duly arraigned.

There can be no double jeopardy where the accused entered a plea (of not guilty) in court that had no jurisdiction, or to an information that is neither valid nor sufficient to sustain a conviction.

(2) Where the accused after entering a plea of guilty is subsequently allowed to testify in order to prove mitigating circumstances and he says that he acted in complete self-defense, said testimony has the effect of vacating his plea of not guilty, and the court should require him to plea anew on the charge or at least direct that a new plea of guilty be entered for him. If this is not done, there is no standing plea, and it follows that there can be no double jeopardy with respect to the appeal from a judgment of acquittal.

(3) A conviction under a plea of guilty for a lesser offense, made with the consent of the offended party and the prosecutor, is equivalent to a conviction of the offense charged for purposes of double jeopardy. (Rules of Court, Rule 116, Sec. 2.) 

If the plea was made without such consent, the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information. (Ibid., Rule 117, Sec. 7)

( 4) It is the essence of a plea of guilty that the accused admits absolutely and unconditionally his guilt and responsibility for the offense imputed to him. 

A conditional plea of guilty, or one subject to the proviso that a certain penalty be imposed upon him is equivalent to a plea of not guilty; hence, the trial court should vacate such a plea

and enter a plea of not guilty. 

A judgment of conviction rendered by a trial court based on a void plea-bargaining is void ab initio. Since the judgment is void, double jeopardy will not lie. 

An improvident plea of guilt, not made voluntarily with full comprehension of the consequences (see Rules of Court, Rule 116, Sec. 3.), should be disregarded and a judgment of conviction based thereon is also void. Verily, a judgment of conviction cannot stand upon an invalid arraignment.

Dismissal before arraignment and plea.

At any time before the plea, the prosecution may be discontinued without prejudice to the institution of another prosecution.

As a general rule, a nolle prosequi or dismissal entered before the accused is placed on trial and before he is called on to plead is not equivalent to an acquittal. It is not a final disposition of the case. Rather, it partakes of the nature of a non-suit or discontinuance in a civil suit and leaves the matter in the same condition in which it was before the commencement of the prosecution.

Right to appeal from judgment of acquittal or conviction.

(1) By the State. 

The government has no right to appeal from a judgment of acquittal for the appeal would put the accused in second jeopardy or danger of punishment for the same offense pursuant to the constitutional mandate that no person shall be twice put in jeopardy for the same offense.

 

A verdict of acquittal, whether it occurs at the level of the trial court or on appeal from a judgment of conviction, is immediately final and executory upon its promulgation. 

The philosophy underlying this rule establishing the absolute nature of acquittals is part of the paramount importance criminal justice system attaches to the protection of the innocent against wrongful conviction.

(a) The interest in the finality-of-acquittal rule, confined exclusively to verdicts of not guilty, is easy to understand: it is a need for 'repose', a desire to know the exact extent of one's

liability.  With this right of repose, the criminal justice system has built in a protection to insure that the innocent, even those whose innocence rests upon a jury's leniency, will not be found guilty in a subsequent proceeding.

(b) Errors committed by the trial court in the exercise of its jurisdiction, or even the legal soundness of its decision, errors of judgment, or mistakes in its findings or conclusiveness are not proper subjects of appeal from a judgment of acquittal. 

(c) Mistrial is the only exception to the rule that acquittal is immediately final and cannot be appealed on the ground of double jeopardy. Appeal should be allowed when the judgment is

manifestly against the evidence or contrary to law, or clearly violative of the prosecutor's right to due process, or rendered with grave abuse of discretion amounting to lack or excess of jurisdiction.  The general rule, however, is that an appeal by the government would infringe the constitutional guarantee.

(d) The appeal on both the criminal and civil liabilities is not permitted under the rule on double jeopardy.  The State cannot appeal from a judgment of conviction where the accused did not appeal his conviction for the purpose of increasing the penalty imposed even if the decision be erroneous. The only way to nullify an acquittal or to increase the penalty is through a proper petition for certiorari to show grave abuse of discretion. 

(2) By the offended party. 

Offended parties in criminal cases have sufficient interest and personality as "persons aggrieved," in the maintenance of the criminal prosecution. They have the right to appeal from a resolution of the trial court which is derogatory to their right to demand civil liability arising from the offense, the only limitation being that they cannot appeal any adverse ruling if to do so would place the accused in double jeopardy.

The offended party or the accused or both may appeal from the judgment of acquittal on the civil aspect of the criminal case.

In criminal cases, the acquittal of the accused or the dismissal of the case against him can only be appealed by the Solicitor General, acting on behalf of the State and only via petition for certiorari under Rule 65 of the Rules of Court.

        Rule 45 - Errors of judgment

        Rule 65 - Errors of jurisdiction

(3) By the accused. 

The accused, after having been convicted may appeal to a higher court, but the latter may raise the penalty imposed on by the lower court and such is not second jeopardy. On appeal, the accused is deemed to have waived the constitutional safeguard against double jeopardy and throws whole case open for review on any question, by the appellate court which is then called upon to correct for errors as may be found in the appealed judgment even if they have not been assigned or raised by the parties and to render such judgment, whether favorable or unfavorable, as the law and justice dictate.

Kinds of acquittal.

Our law recognizes two (2) kinds of acquittal, with different effects on civil liability.

(1) An acquittal on the ground that the accused is not the author of the act or omission complained of, closes the door to civil liability, for a person ,who has been found to be not the perpetrator for a crime cannot and can never be held liable for the same.

(2) An acquittal based on reasonable doubt on the guilt of the accused, does not exempt him from civil liability which may be proved by preponderance of evidence only. (see Art. 29, Civil Code.) 

Although the civil action for damages is "for the same act or omission," the two actions (criminal and civil) have different purposes, the parties are not the same, and different rules of evidence are applicable. In determining whether Article 29 is applicable, the court may look into the question of the accused's negligence or reckless imprudence.

Kinds of double jeopardy.

It is to be observed that the provision deals with two classes of double jeopardy.

(1) Under the first sentence of Section 21 the protection is against double jeopardy for the same offense and not for the same act. 

When the subsequent information charges another with a different offense, although arising from the same act or set of acts, there is no prohibited double jeopardy except if the act is punished by a law and an ordinance. Thus, subject to this exception, the doctrine can

be invoked if the second charge is for the same offense, whether or not for the same act.

(2) The second sentence modifies the same offense requirement of double jeopardy in the first sentence. It contemplates double jeopardy of punishment for the same act and it applies although the offenses charged are different, if one constitutes a violation of a statute and the other, of an ordinance in which case "conviction or acquittal under either shall constitute a bar to another prosecution for the same act." There can be no double jeopardy where the second offense is different from the first and arose from a different act or set of acts.

Prosecution for the same offense.

(1) General rule. 

The first sentence of Section 21 sets forth the general rule: 

the constitutional protection against double jeopardy 

is not available where the second prosecution is for an offense

that is different from the offense charged in the first or prior prosecution,

although both the first and second offenses may be based upon the same act or set of acts. It may be invoked only for the "same offense" or identical offense. 

The meaning of the terms, however, has been expanded to include not only the particular offense charged in the former complaint or information.

(2) Identity of offenses.

Under the first sentence, one may be put twice in jeopardy of punishment of the same act provided that he is charged with different offenses (e.g., they are punished by different laws), or the offense charged in one case is not included in, or does not include, the crime charged in the other case. 

Put a little differently, where the offenses charged are penalized either by different sections of the same statute or by different statutes (e.g., Revised Penal Code and a special law), the important inquiry relates to the identity of offenses charged. The constitutional protection against double jeopardy is available only where an identity is shown to exist between the earlier and the subsequent offenses charged.

The question of identity or lack of identity of offenses is addressed by examining the essential elements of each of the two offenses charged, as such elements are set out in the respective legislative definitions of the offenses involved. The protection cannot be invoked, although both offenses arise from the same facts, if each crime involves some important act which is not an essential element of the other.

(3) Identity need not be absolute identity. 

The rule limiting the constitutional protection against double jeopardy to a subsequent prosecution for the same offense is not to be understood with absolute literalness. The identity of offenses that must be shown need not be absolute identity. 

The first and second offenses may be regarded as the "same offense" where the second offense necessarily includes the first offense or is necessarily included in such first offense or where the second offense is an attempt to commit the first or a frustration thereof. 

Thus, for the constitutional plea of double jeopardy to be available, not all the technical elements constituting the first offense need be present in the technical definition of the second offense. The law here seeks to prevent harassment of an accused person by multiple prosecutions for offenses which though different from one another, are nonetheless each constituted by a common set or overlapping sets of technical elements.

(4) Conviction or acquittal not indispensable. 

Conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment for the same offense. So long as jeopardy has attached under one of the informations charging said offense, the defense may be availed of in the other case involving the same offense, even if there has been neither conviction nor acquittal, where there has been an unconsented dismissal in the first case which takes place when it "it is dismissed or otherwise terminated without the express consent of the accused.

Prosecution for the same act.

(1) Exception to general rule.

The second sentence of Section 21 embodies an exception to the general proposition: "The constitutional protection against double jeopardy is available although the prior offense charged under an ordinance be different from the offense charged subsequently under a national statute such as the Revised Penal Code, provided that both offenses spring from the same act or set of acts."

(2) Identity of acts. 

Where one offense is charged under a municipal ordinance while the other is penalized by a statute, the critical inquiry is to the identity of the acts which the accused is said to have committed and which are alleged to have given rise to the two offenses. 

The constitutional protection against double jeopardy is available so long as the acts which constitute or have given rise to the first offense under a municipal ordinance are the same acts which constitute or have given rise to the offense charged under a statute.

The question of identity of the acts which are claimed to have generated liability both under a municipal ordinance and a national statute must be addressed, in the first instance, by examining the location of such acts in time and space. When the acts of the accused as set out in the two informations are so related to each other in time and space as to be reasonably regarded as having taken place on the same occasion and where those acts have been moved by one and the same, or a continuing intent or voluntary design or negligence, such acts may be appropriately characterized as an integral whole capable of giving rise to penal liability simultaneously under different legal enactments (a municipal ordinance and a national

statute).

(3) Reason for the rule.

The question may be raised why one rule should exist where two offenses under two different sections of the same statute or under different statutes are charged, and another rule for the situation where one offense is charged under a municipal ordinance and another offense under a national statute.

If the second sentence of the double jeopardy provision had not been written into the Constitution, conviction or acquittal under a municipal ordinance would never constitute a bar to another prosecution for the same act under a national statute. An offense penalized by municipal ordinance is, by definition, different from an offense under a statute. The two offenses would never constitute the same offense, having been promulgated by different rule-making authorities - though one be subordinate to the other - and the plea of double jeopardy would never lie.

The discussions during the 1934-1935 Constitutional Convention show that the second sentence was inserted precisely for the purpose of extending the constitutional protection against double jeopardy to a situation which would not otherwise be covered by the first

sentence.

 

Appeal by the prosecution from an order of dismissal.

(1) General rule. 

The dismissal or termination of a case after arraignment and plea of the defendant to a valid information 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 complaint or information. (Rules of Court, Rule 117, Sec. 7.)

(2) Exceptions.

An appeal by the prosecution from the order of dismissal (of the criminal case) by the trial court shall not constitute double jeopardy if:

    (a) the dismissal is made upon motion, or with the express consent, of the defendant;

    (b) the dismissal is not an acquittal or based upon consideration of the evidence or of the merits of the case; and

    (c) the question to be passed upon by the appellate court is purely legal so that should the dismissal be found incorrect, the case would have to be remanded to the court of origin for further proceedings to determine the guilt or innocence of the defendant. (People vs.

In a criminal case, the party affected by the dismissal is the State, and not the private complainant or offended party whose interest is only limited only to the civil liability. He may take such appeal but only as to the civil aspect of the case. A judgment of acquittal in a criminal case may be assailed in a petition for certiorari under Rule 65 of the Rules of Court.

(3) Order granting demurrer to evidence.

A demurrer to evidence is defined as an objection by one of the parties in an action to the effect that the evidence with his adversary produced is insufficient in point of law, whether true or not, to make out a case or sustain the issue. The party demurring challenges the sufficiency of the whole evidence to sustain a verdict.

The demurrer to evidence in a criminal case is "filed after the prosecution has rested its case." When the same is granted, it calls "for an appreciation of the evidence adduced by the prosecution and its sufficiency to warrant conviction beyond reasonable doubt, resulting in the dismissal of the case on the merits, tantamount to an acquittal of the accused." 

Such a dismissal by the grant of demurrer to evidence may not be appealed nor may the order granting the demurrer be set aside although the conclusion of the trial court may be wrong, for to do so would be to place the accused in double jeopardy. The dismissal is still

reviewable only through certiorari.

(4) Order based on absence of probable cause for issuance of warrant

of arrest.

Double jeopardy cannot be invoked where the accused has not been arraigned. While the absence of probable cause for the issuance of a warrant of arrest is a ground for the dismissal of the case, the same does not result in the acquittal of the accused.

(5) Failure of accused to object to the appeal.

Where the accused did not seasonably object to the appeal of the prosecution on the ground that such an appeal would place him in double jeopardy, he is deemed to have waived his constitutional immunity from double jeopardy. An immunity must be especially pleaded at the earliest opportunity.

Acquittal and dismissal distinguished.

An "acquittal" is always based on the merits, that is, the accused is acquitted because the evidence does not show his guilt beyond reasonable doubt. It is immediately final and cannot be reconsidered or appealed. 

On the other hand, a "dismissal" does not decide the case on the merits or that the accused is not guilty, as where it is based on the fact that 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. For dismissal to be a bar under double jeopardy it must have the effect of acquittal. (Ex: Violation of Constitutional Right to Speedy Trial)

Where acquittal or dismissal void.

A void judgment is the same as if there were no judgment at all, and, since the accused was never legally in danger of conviction, it cannot be the basis for double jeopardy.

(1) Decision after a pre-trial. 

In a case, the court precipitately rendered a decision of acquittal after a pre-trial. The prosecution was thereby deprived of the opportunity to prosecute and prove its case. 

The decision that was rendered in disregard of such imperative was held void for lack of jurisdiction. It was not a court of competent jurisdiction when it rendered the decision. The mandate of the rules is that a trial should follow a pre-trial. Thus, double jeopardy had not set in this case.

(2) Dismissal without trial proper. 

Likewise, when the trial court acted with grave abuse of discretion, tantamount to lack

of jurisdiction, when it pre-emptively dismissed a case and, as a consequence thereof, deprived the prosecution of its right to introduce evidence and prove its case, the order of dismissal, being null and void, cannot constitute a proper basis for a claim of double jeopardy. In effect, the first jeopardy was never terminated and the remand of the criminal case for further hearing and/ or trial amounts merely to a continuation of the first jeopardy and does not expose the accused to a second jeopardy.

(3) Grant of demurrer to evidence. 

Demurrer to evidence due to its insufficiency presupposes that the prosecution had already rested its case. Hence, the motion is premature if interposed at a time when the prosecution is still in the process of presenting its evidence.

Once the court grants the demurrer, such order amounts to or operates as an acquittal and any further prosecution of the accused would violate the constitutional prescription on double jeopardy.

Double jeopardy, however, will not attach in dismissing the case when the trial court acted with grave abuse of discretion amounting to lack or excess jurisdiction, such as when the prosecution was denied the opportunity to present its case or where the trial was a sham, or considered a mock trial.

But mere errors or irregularities which do not render the proceedings a nullity, will not defeat a plea of double jeopardy.

 

(4) Decision rendered by a partial court subjected to pressure.

The right against double jeopardy cannot be invoked where a petition for a declaration of a mistrial is granted on the ground that the proceedings have been vitiated by lack of due process, e.g., the prosecution and the judge who tried and 'decided the case acted under the compulsion of some pressure which proved to be beyond their capacity to resist and which not only prevented the prosecution from offering all the evidences which it would have otherwise presented, but also predetermined the final outcome of the case. A scripted verdict of acquittal is a void judgment. The cardinal precept is that where there is a violation of basic constitutional rights, courts are ousted of their jurisdiction. A re-trial becomes necessary.

 

(5) Decision violated accused's or State's right to due process of law. 

A judgment rendered with grave abuse of discretion or without due process or when there was mistrial, is null and void could never become final and could be attacked in any appropriate proceeding. A denial of due process results in a loss or lack of jurisdiction.

(a) A decision of a court convicting the accused in violation of his right to the substantive and procedural due process of law is void. As a general rule, a void decision will not result in the acquittal of the accused. The case ought to be remanded to the court of origin for further proceedings for a void judgment does not expose an accused to double jeopardy.

(b) Where the State is deprived of due process in a criminal case and there is a finding of mistrial, or where there has been of grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the trial court, the acquittal of the accused or the dismissal of the case is void; hence, double jeopardy cannot also be invoked by the accused.

(c) There can be no double jeopardy if the acquittal is based on void indictment. An acquittal rendered with grave abuse of discretion amounting to lack or excess of jurisdiction does not really "acquit" and, therefore, does not terminate the case.

 

(6) Decision rendered by a court martial without jurisdiction over civilians.

Military commission or tribunal cannot try and exercise jurisdiction even during the period of martial law, over civilians for offenses allegedly committed by them, as long as civil courts are open and functioning and that any judgment rendered by such body relating to a civilian is null and void for lack of jurisdiction. Hence, no breach of the constitutional prohibition against twice putting an accused, who was convicted and still serving sentence, in jeopardy of punishment for the same offense would result from the retrial of his case for the simple reason that the absence of jurisdiction of the court martial to try and convict him prevented the first jeopardy from attaching. 

Valid previous proceedings are required in order that the defense of double jeopardy can be raised by the accused in the second prosecution.

 

However, in the illustrative case below, where the accused had been acquitted by a military commission the jurisdiction of which has been affirmed by the Supreme Court but subsequently invalidated, the Court ruled that the refiling of the information

against them would place them in double jeopardy.

Dismissal with/without the express consent of the accused.

(1) Dismissal where accused's consent implied from his failure to object. 

Dismissal of a case on motion of the accused himself or on motion of the prosecution with the express consent of the accused will not be a bar to another prosecution for in such event, the accused thereby waives his constitutional right by preventing the court from proceeding with the trial rendering judgement therein.

The raison d'etre for the requirement for the express consent to a provisional dismissal of a criminal case is to bar him from subsequently asserting that the revival of the criminal case will place him in double jeopardy for the same offense or for an offense necessarily included therein.

(2) Dismissal upon a motion to quash.

Generally, a dismissal upon a motion to quash filed by the accused will not bar another

prosecution for the same offense. The reason is that the defendant, in having the case against him dismissed, thereby waives his constitutional right against double jeopardy for the dismissal effectively prevents the trial court from proceeding against him. 

The application of the sister doctrines of waiver and estoppel is subject to two (2) sine qua non conditions: 

(1) The dismissal must have been sought or induced by the defendant,. either personally or through counsel; and

(2) Such dismissal must not have been on the merits and must not necessarily amount to an acquittal.

A dismissal is not provisional even if so designated if it is shown that it was made without the express consent of the accused. This consent cannot be presumed nor may it be merely implied from the defendant's silence or his failure to object. The consent must be express, so as to leave no doubt as to his conformity; otherwise, the dismissal will be regarded as final, i.e., with prejudice to the refiling of the case.

(3) Dismissal where prosecution refuses to present evidence pending ruling on motion for inhibition.

For double jeopardy to attach, the general rule is that the dismissal of the case must be without the express consent of the accused.

(a) This requisite is lacking where the accused orally invoked their constitutional right to a speedy trial when the prosecution refused to present evidence until the trial court had ruled on the motion for inhibition and it was on the oral motion that the court ordered the case to be dismissed.

(b) But the oral manifestation at the hearing by the counsel for the accused that he had no objection to the dismissal of the case was held equivalent to a declaration of conformity to its dismissal or to an express consent to its termination.

(4) Dismissal on the erroneous belief that information was fatally defective. 

Where the accused has been arraigned, pleaded "not guilty," and was tried upon a valid and sufficient information and the case against him was dismissed by decision of the trial court

(hence, without his consent and not upon his motion) on the erroneous belief that the information was "fatally defective," he has been placed in jeopardy for the offense charged, and although the dismissal may constitute a miscarriage of justice, the erroneous dismissal may no longer be disturbed for it would violate his right to be exempt from double jeopardy.

(5) Two situations when double jeopardy will attach. 

Double jeopardy will attach even if the dismissal is made with the express consent of the accused, or upon his own motion, only if it Is predicated on eithers of two grounds, i.e., 

(1) Insufficiency of the evidence or 

(2) Denial of the constitutional right to a speedy trial were the proceedings have been unreasonably prolonged in violation of this right. 

If the dismissal does not fall under either of these two instances and it was made with the express consent of the accused, it would not thereby be a bar to another prosecution for the same offense. 

(a) Insufficiency of evidence. 

A dismissal upon demurrer to evidence being based on the merits, amounts to acquittal.

It falls under the first exception.

(b) Right to a speedy trial. 

In the second case, there is, in effect a failure to prosecute. The mere fact, however, that the accused invoked his right to a speedy trial would not necessarily place him in double jeopardy where the dismissal was ordered by the court on his motion for failure of the prosecution to present evidence due to the absence of private complainant at the hearing and not for violation of his right to a speedy trial.

The accused should insist on his right to a speedy trial and the dismissal must be predicated on such right.

(c) In both cases. 

The dismissal will have the effect of an acquittal even if the dismissal be erroneous and "although a miscarriage of justice" would result thereby. If the dismissal amounted to an acquittal, double jeopardy may be invoked even if the court states in the order that the dismissal is without prejudice to the filing of another information.

Doctrine of supervening event.

The rule of identity does not apply when the second offense was not in existence at the time of the first prosecution, for the simple reason that in such case, there is no possibility for the accused during the first prosecution to be convicted for an offense that was then inexistent. Thus, where an accused was charged with physical injuries and after conviction the injured person dies, the charge of homicide against the same accused does not put him

twice in jeopardy. This is in accordance with the "doctrine of supervening event or supervening fact." 

Under the doctrine, if, after the first prosecution, a new fact supervenes which alters the character of the first indictment under which the accused may have already been charged or convicted, and gives rise to a new and distinct offense, the accused cannot be said to be in second jeopardy if indicted for the new offense.

On this point, the Rules of Court provides that the conviction of the accused shall not be a bar to another prosecution for an offense which necessarily includes the offense charged in the former complaint or information under any of the following instances:

(1) The graver offense developed due to supervening facts arising from the same act or omission constituting the former charge; or

(2) The facts constituting the graver charge became known or were discovered only after a plea was entered in the former complaint or information; or

(3) The plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended party.