PEOPLE VS. FRANCIS MILITANTE

 

THE PEOPLE OF THE PHILIPPINES, Petitioner, v. HONORABLE FRANCIS MILITANTE, COURT OF FIRST INSTANCE OF CEBU, BRANCH XII and ROSITA ABULE, Respondents.

The Solicitor General for petitioner

Higinio C. Hermosisima for Private Respondent.

G.R. No. L-57467   October 23, 1982.

MELENCIO-HERRERA, J.:

Facts:

The issue for resolution is the correctness of the Order of dismissal by respondent Judge of Criminal Case No. CU-5791 for Violation of Batas Pambansa Blg. 22, or the Bouncing Checks Law, on the ground of double jeopardy, because of the pendency of an Estafa case against the same accused that arose out of the same facts.

The prosecution opposed the quash of the second Information contending that there is no double jeopardy as both cases are still pending, and that the accused is charged with two different offenses punishable by different penalties under different statutes.

On April 21, 1981, respondent Court dismissed the second case ruling that to prosecute the accused for Violation of BP Blg. 22 would constitute a violation of her constitutional right not to be put in jeopardy of punishment for the same offense. Reconsideration of that ruling was denied by respondent Judge on May 5, 1981.

The Provincial Fiscal of Cebu filed with this Court this special civil action for Certiorari seeking to set aside the Order of dismissal as well as the Order affirming it. The Solicitor General and private respondent were required to submit their respective Comments. Only the Solicitor General did, notwithstanding several extensions given to private respondent.

Issue:

Whether or not there is a double jeopardy. (No)

Held:

Under Section 9, Rule 117, of the Rules of Court, the following requisites must obtain in order that the protection against double jeopardy may inure in favor of an accused person, to wit:(1) A valid Complaint or Information or other formal charge sufficient in form and substance to sustain a conviction; (2) a competent Court; (3) the defendant had pleaded to the charge; (4) the defendant had been convicted, or acquitted, or the case against him dismissed or otherwise terminated without his express consent; (5) the second offense charged is the same as the first, or is an attempt to commit the same or a frustration thereof, or that the second offense necessarily includes or is necessarily included in the offense or information.

In the case at bar, this lacks the third, fourth, and fifth requisites. Since, that the accused herein had not pleaded to the charge of Violation BP blg. 22 and that the Estafa case has not been terminated either by judgement of conviction or acquittal or by dismissal without the express consent of the accused. Moreover, the two offenses charged against her are different offenses as these two imposes specific and different penalties under different statutes. Therefore, the dismissal of the second case was not proper.

 

Digest by: Joseph P. Vallecer

Subject: Constitutional law 2