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G.R. No.

191566 July 17, 2013 Respondent’s motion for reconsideration was likewise denied in an
PEOPLE OF PHILIPPINES, Petitioner, Order15 dated February 20, 2009.
vs. EDGARDO V. ODTUHAN, Respondent.
Aggrieved, respondent instituted a special civil action on certiorari
PERALTA, J.: under Rule 65 of the Rules of Court16 before the CA, assailing the
This is a petition for review on certiorari under Rule 45 of the Rules of denial of his motion to quash the information despite the fact that his
Court filed by petitioner People of the Philippines, represented by the first marriage with Modina was declared null and void ab initio prior to
Office of the Solicitor General, against respondent Edgardo V. the filing of the bigamy case.17
Odtuhan assailing the Court of Appeals Decision1 dated December
17, 2009 and Resolution2 dated March 4, 2010 in CA-G.R. SP No. On December 17, 2009, the CA rendered the assailed decision, the
108616. The assailed decision granted the petition for certiorari filed dispositive portion of which reads:
by respondent, and ordered the Regional Trial Court (RTC) of
Manila, Branch 27, to give due course to and receive evidence on
WHEREFORE, premises considered, the instant petition for certiorari
respondent's motion to quash and resolve the case with dispatch,
is hereby GRANTED. The RTC, Branch 27, Manila is hereby ordered
while the assailed resolution denied petitioner's motion for
to give due course to and receive evidence on the petitioner’s motion
reconsideration.
to quash and resolve the case with dispatch.

The facts of the case follow:


SO ORDERED.18

On July 2, 1980, respondent married Jasmin Modina (Modina).3 On


The CA applied the conclusion made by the Court in Morigo v.
October 28, 1993, respondent married Eleanor A. Alagon
People,19 and held that there is cogent basis in looking into the
(Alagon).4 Sometime in August 1994, he filed a petition for annulment
motion to quash filed by respondent, for if the evidence would
of his marriage with Modina.5 On February 23, 1999, the RTC of
establish that his first marriage was indeed void ab initio, one
Pasig City, Branch 70 granted respondent’s petition and declared his
essential element of the crime of bigamy would be lacking.20 The
marriage with Modina void ab initio for lack of a valid marriage
appellate court further held that respondent is even better off than
license.6 On November 10, 2003, Alagon died. In the meantime, in
Morigo which thus calls for the application of such doctrine,
June 2003, private complainant Evelyn Abesamis Alagon learned of
considering that respondent contracted the second marriage after
respondent’s previous marriage with Modina.7She thus filed a
filing the petition for the declaration of nullity of his first marriage and
Complaint-Affidavit8 charging respondent with Bigamy.
he obtained the favorable declaration before the complaint for
bigamy was filed against him.21 The CA thus concluded that the RTC
On April 15, 2005, respondent was indicted in an Information9 for gravely abused its discretion in denying respondent’s motion to
Bigamy committed as follows: quash the information, considering that the facts alleged in the
information do not charge an offense.22
That on or about October 28, 1993, in the City of Manila, Philippines,
the said accused being then legally married to JASMIN MODINA and With the denial of the motion for reconsideration before the CA,
without such marriage having been legally dissolved, did then and petitioner filed a petition before the Court in this petition for review on
there willfully, unlawfully and feloniously contract a second or certiorari under Rule 45 of the Rules of Court based on the following
subsequent marriage with ELEANOR A. ALAGON, which grounds:
second/subsequent marriage has all the essential requisites for
validity.
THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR
WHEN IT RENDERED ITS DECISION DATED DECEMBER 17,
Contrary to law.10 2009 GRANTING RESPONDENT’S PETITION FOR CERTIORARI
AND THE RESOLUTION DATED MARCH 4, 2010 DENYING
On February 5, 2008, respondent filed an Omnibus Motion11 praying PETITIONER’S MOTION FOR RECONSIDERATION,
that he be allowed to present evidence to support his motion; that his CONSIDERING THAT:
motion to quash be granted; and that the case be dismissed. I.
Respondent moved for the quashal of the information on two THE INFORMATION CHARGING RESPONDENT OF BIGAMY
grounds, to wit: (1) that the facts do not charge the offense of SUFFICIENTLY ALLEGES ALL THE ELEMENTS CONSTITUTING
bigamy; and (2) that the criminal action or liability has been SAID OFFENSE.
extinguished.12 II.
THE SUBSEQUENT COURT JUDGMENT DECLARING
On September 4, 2008, the RTC13 issued an Order14 denying RESPONDENT’S FIRST MARRIAGE VOID AB INITIO DID NOT
respondent’s Omnibus Motion. The RTC held that the facts alleged in EXTINGUISH RESPONDENT’S CRIMINAL LIABILITY WHICH
the information – that there was a valid marriage between ALREADY ATTACHED PRIOR TO SAID JUDGMENT.23
respondent and Modina and without such marriage having been
dissolved, respondent contracted a second marriage with Alagon – The petition is meritorious.
constitute the crime of bigamy. The trial court further held that neither
can the information be quashed on the ground that criminal liability The issues are not novel and have been squarely ruled upon by this
has been extinguished, because the declaration of nullity of the first Court in Montañez v. Cipriano,24 Teves v. People,25 and Antone v.
marriage is not one of the modes of extinguishing criminal liability. Beronilla.26
In Montañez, respondent Cipriano married Socrates in April 1976, (1) That the offender has been legally married;
but during the subsistence of their marriage on January 24, 1983, (2) That the first marriage has not been legally dissolved
respondent married Silverio. In 2001, respondent filed a petition for or, in case his or her spouse is absent, the absent spouse
the annulment of her marriage with Socrates on the ground of could not yet be presumed dead according to the Civil
psychological incapacity which was granted on July 18, 2003. On Code;
May 14, 2004, petitioner filed a complaint for bigamy against (3) That he contracts a second or subsequent marriage;
respondent. The latter, however, moved for the quashal of the and
information and dismissal of the criminal complaint alleging that her (4) That the second or subsequent marriage has all the
first marriage had already been declared void ab initio prior to the essential requisites for validity.33
filing of the bigamy case.
Here, the information contained the following allegations: (1) that
In Teves, petitioner married Thelma on November 26, 1992. During respondent is legally married to Modina; (2) that without such
the subsistence of their marriage on December 10, 2001, he again marriage having been legally dissolved; (3) that respondent willfully,
married Edita. On May 4, 2006, petitioner obtained a declaration of unlawfully, and feloniously contracted a second marriage with
her marriage with Thelma null and void on the ground that the latter Alagon; and (4) that the second marriage has all the essential
is physically incapacitated to comply with her marital obligations. On requisites for validity. Respondent’s evidence showing the court’s
June 8, 2006, an Information for Bigamy was filed against petitioner. declaration that his marriage to Modina is null and void from the
The court eventually convicted petitioner of the crime charged. beginning because of the absence of a marriage license is only an
evidence that seeks to establish a fact contrary to that alleged in the
In Antone, petitioner married respondent in 1978, but during the information that a first valid marriage was subsisting at the time he
subsistence of their marriage, respondent contracted a second contracted the second marriage. This should not be considered at all,
marriage in 1991. On April 26, 2007, respondent obtained a because matters of defense cannot be raised in a motion to
declaration of nullity of her first marriage which decision became final quash.34It is notproper, therefore, to resolve the charges at the very
and executory on May 15, 2007. On June 21, 2007, the prosecution outset without the benefit of a full blown trial. The issues require a
filed an information for bigamy against respondent which the latter fuller examination and it would be unfair to shut off the prosecution at
sought to be quashed on the ground that the facts charged do not this stage of the proceedings and to quash the information on the
constitute an offense. basis of the document presented by respondent.35 With the
presentation of the court decree, no facts have been brought out
which destroyed the prima facie truth accorded to the allegations of
The present case stemmed from similar procedural and factual
the information on the hypothetical admission thereof.
antecedents as in the above cases. As in Antone and Montañez,
respondent moved to quash the information on the grounds that the
facts do not charge the offense of bigamy and that his criminal Respondent’s motion to quash was founded on the trial court’s
liability has been extinguished both because of the declaration of declaration that his marriage with Modina is null and void ab initio. He
nullity of the first marriage. The RTC refused to quash the claims that with such declaration, one of the elements of the crime is
information. On petition for certiorari, the CA, however, reached a wanting. Thus, the allegations in the information do not charge the
different conclusion. offense of bigamy, or at the very least, such court decree
extinguished his criminal liability. Both respondent and the CA
heavily relied on the Court’s pronouncement in Morigo v.
As defined in Antone, "a motion to quash information is the mode by
People36where the accused therein was acquitted because the
which an accused assails the validity of a criminal complaint or
elements of the crime of bigamy were incomplete. In said case, the
information filed against him for insufficiency on its face in point of
first marriage was declared null and void, because the parties only
law, or for defects which are apparent in the face of the information."
signed the marriage contract without the presence of a solemnizing
It is a hypothetical admission of the facts alleged in the information.
officer. Considering, therefore, that the declaration of nullity retroacts
The fundamental test in determining the sufficiency of the material
to the date of the first marriage, the Court held that there was no
averments in an Information is whether or not the facts alleged
marriage to speak of when the accused contracted the second
therein, which are hypothetically admitted, would establish the
marriage. Logically, the accused was acquitted.
essential elements of the crime defined by law. Evidence aliunde or
matters extrinsic of the information are not to be considered.27 To be
sure, a motion to quash should be based on a defect in the The Family Code has settled once and for all the conflicting
information which is evident on its fact.28 Thus, if the defect can be jurisprudence on the matter.1âwphi1 A declaration of the absolute
cured by amendment or if it is based on the ground that the facts nullity of a marriage is now explicitly required either as a cause of
charged do not constitute an offense, the prosecution is given by the action or a ground for defense.37 It has been held in a number of
court the opportunity to correct the defect by amendment.29 If the cases that a judicial declaration of nullity is required before a valid
motion to quash is sustained, the court may order that another subsequent marriage can be contracted; or else, what transpires is a
complaint or information be filed30 except when the information is bigamous marriage, reprehensible and immoral.38
quashed on the ground of extinction of criminal liability or double
jeopardy.31 What makes a person criminally liable for bigamy is when he
contracts a second or subsequent marriage during the subsistence of
An examination of the information filed against respondent, however, a valid marriage.39 Parties to the marriage should not be permitted to
shows the sufficiency of the allegations therein to constitute the crime judge for themselves its nullity, for the same must be submitted to the
of bigamy as it contained all the elements of the crime as provided judgment of competent courts and only when the nullity of the
for in Article 34932 of the Revised Penal Code, to wit: marriage is so declared can it be held as void, and so long as there is
no such declaration, the presumption is that the marriage exists. Respondent moved to quash the information on two grounds: (1) that
Therefore, he who contracts a second marriage before the judicial the facts do not charge the offense of bigamy; and (2) that the
declaration of nullity of the first marriage assumes the risk of being criminal action or liability has been extinguished.
prosecuted for bigamy.40 If we allow respondent’s line of defense and
the CA’s ratiocination, a person who commits bigamy can simply The RTC held that the facts constitute the crime of bigamy. There
evade prosecution by immediately filing a petition for the declaration was a valid marriage between respondent and Modina and without
of nullity of his earlier marriage and hope that a favorable decision is such marriage having been dissolved, respondent contracted a
rendered therein before anyone institutes a complaint against him. 41 second marriage with Alagon. It further held that neither can the
information be quashed on the ground that criminal liability has been
Respondent, likewise, claims that there are more reasons to quash extinguished, because the declaration of nullity of the first marriage is
the information against him, because he obtained the declaration of not one of the modes of extinguishing criminal liability.
nullity of marriage before the filing of the complaint for bigamy
against him. Again, we cannot sustain such contention. In addition to Respondent appealed to the CA on certiorari and it concluded that
the discussion above, settled is the rule that criminal culpability the RTC gravely abused its discretion in denying respondent’s
attaches to the offender upon the commission of the offense and motion to quash the information, considering that the facts alleged in
from that instant, liability appends to him until extinguished as the information do not charge an offense.
provided by law and that the time of filing of the criminal complaint or
information is material only for determining prescription.42 Issues:

1. Whether or not the motion to quash by respondent is proper


Thus, as held in Antone:
2. Whether or not the court’s judgment declaring respondent’s first
marriage void ab initio extinguished respondent’s criminal liability
To conclude, the issue on the declaration of nullity of the marriage
between petitioner and respondent only after the latter contracted the Held:
subsequent marriage is, therefore, immaterial for the purpose of
establishing that the facts alleged in the information for Bigamy does 1. No. A motion to quash information is the mode by which an
not constitute an offense. Following the same rationale, neither may accused assails the validity of a criminal complaint or information
such defense be interposed by the respondent in his motion to quash filed against him for insufficiency on its face in point of law, or for
by way of exception to the established rule that facts contrary to the defects which are apparent in the face of the information. In this case
allegations in the information are matters of defense which may be however, there is sufficiency of the allegations in the information to
raised only during the presentation of evidence.43 constitute the crime of bigamy. It contained all the elements of the
crime as provided for in Article 349 of the Revised Penal Code: (1)
In view of the foregoing, the CA erred in granting the petition for that respondent is legally married to Modina; (2) that without such
certiorari filed by respondent. The RTC did not commit grave abuse marriage having been legally dissolved; (3) that respondent willfully,
of discretion in denying his motion to quash and to allow him to unlawfully, and feloniously contracted a second marriage with
present evidence to support his omnibus motion. Alagon; and (4) that the second marriage has all the essential
requisites for validity.
WHEREFORE, the petition is hereby GRANTED. The Court of Respondent’s evidence showing the court’s declaration that his
Appeals Decision dated December 17, 2009 and Resolution dated marriage to Modina is null and void from the beginning should not be
March 4, 2010 in CA-G.R. SP No. 108616 are SET ASIDE. Criminal considered because matters of defense cannot be raised in a motion
Case No. 05-235814 is REMANDED to the Regional Trial Court of to quash. It is not proper, therefore, to resolve the charges at the very
Manila, Branch 27 for further proceedings. outset without the benefit of a full blown trial.

SO ORDERED. 2. No. Respondent’s claim that there are more reasons to quash the
information against him because he obtained the declaration of nullity
2. People of the Philippines vs Edgardo Odtuhan of marriage before the filing of the complaint for bigamy against him
is without merit. Criminal culpability attaches to the offender upon the
GR. no. 191566 Jul 17, 2013 commission of the offense and from that instant, there is already
By Red liability. The time of filing of the criminal complaint or information is
material only for determining prescription.
Facts:
It has been held in a number of cases that a judicial declaration of
On July 2, 1980, respondent Edgardo Odtuhan married Jasmin nullity is required before a valid subsequent marriage can be
Modina. On October 28, 1993, he also married Eleanor Alagon. He contracted. Therefore, he who contracts a second marriage before
later filed a petition for annulment of his marriage with Modina. The the judicial declaration of nullity of the first marriage assumes the risk
RTC granted respondent’s petition and declared his first marriage of being prosecuted for bigamy.
void ab initio for lack of a valid marriage license. On November 10,
2003, Alagon died. In the meantime, private complainant Evelyn The petition on review on ceritorari is granted. The CA’s decision is
Alagon learned of respondent’s previous marriage with Modina and set aside and the case is remanded to the RTC.
thus filed a Complaint-Affidavit charging respondent with Bigamy.
G.R. No. 183824 December 8, 2010 that facts contrary thereto are matters of defense which may be
MYRNA P. ANTONE, Petitioner, raised only during the presentation of evidence.13
vs. LEO R. BERONILLA, Respondent.
After a hearing on the motion,14 the court quashed the
PEREZ, J.: Information.15 Applying Morigo v. People,16 it ruled:

Before us is a petition for review on certiorari under Rule 45 of the Hence, contrary to what was stated in the Information, accused
Rules of Court seeking to nullify and set aside the issuances of the Beronilla was actually never legally married to Myrna Antone. On this
Court of Appeals in CA-G.R. SP No. 102834, to wit: (a) the score alone, the first element appears to be missing. Furthermore,
Resolution1 dated 29 April 2008 dismissing the petition for certiorari the statement in the definition of Bigamy which reads "before the first
under Rule 65, which assailed the trial court’s Orders2 dated 20 marriage has been legally dissolved" clearly contemplates that the
September 2007 and 6 December 2007 in Criminal Case No. 07- first marriage must at least be annullable or voidable but definitely
0907-CFM for Bigamy; and (b) the Resolution3 dated 18 July 2008 not void, as in this case. xxx [I]n a similar case, [the Supreme Court]
denying the motion for reconsideration of the first resolution. had the occasion to state:

The trial court quashed the Information on the ground that the The first element of bigamy as a crime requires that the accused
elements of Bigamy were rendered incomplete after herein must have been legally married. But in this case, legally speaking,
respondent presented documents to prove a fact, which the court the petitioner was never married to Lucia Barrete. Thus, there is no
believed would negate the allegation in the Information that there first marriage to speak of. Under the principle of retroactivity of a
was a first valid marriage. The evidence presented showed that marriage being declared void ab initio, the two were never married
respondent later obtained a judicial declaration of nullity of the first "from the beginning." xxx The existence and the validity of the first
union following the celebration of a subsequent marriage. marriage being an essential element of the crime of bigamy, it is but
logical that a conviction for said offense cannot be sustained where
The Antecedents there is no first marriage to speak of. xxx17

On 12 March 2007, herein petitioner Myrna P. Antone executed an The prosecution, through herein petitioner, moved for reconsideration
Affidavit-Complaint4 for Bigamy against Leo R. Beronilla before the of the said Order18 on the ground, among others, that the facts and
Office of the City Prosecutor of Pasay City. She alleged that her the attending circumstances in Morigo are not on all fours with the
marriage with respondent in 1978 had not yet been legally dissolved case at bar. It likewise pointed out that, in Mercado v. Tan,19 this
when the latter contracted a second marriage with one Cecile Court has already settled that "(a) declaration of the absolute nullity
Maguillo in 1991. of a marriage is now explicitly required either as a cause of action or
a ground for defense."20
On 21 June 2007, the prosecution filed the corresponding
Information5 before the Regional Trial Court, Pasay City. The case In its Order of 6 December 2007,21 the court denied the motion for
was docketed as Criminal Case No. 07-0907-CFM and raffled to reconsideration stating that Mercado has already been superseded
Branch 115. by Morigo.

Pending the setting of the case for arraignment, herein respondent In the interim, in a Petition for Relief from Judgment22 before the
moved to quash the Information on the ground that the facts charged Regional Trial Court of Naval, Biliran, petitioner questioned the
do not constitute an offense.6 He informed the court that his marriage validity of the proceedings in the petition for the declaration of nullity
with petitioner was declared null and void by the Regional Trial Court, of marriage in Civil Case No. B-1290 on 5 October 2007. On 24
Branch 16, Naval, Biliran on 26 April 2007;7 that the decision became March 2008, the court set aside its Decision of 26 April 2007
final and executory on 15 May 200[7];8 and that such decree has declaring the marriage of petitioner with respondent null and void,
already been registered with the Municipal Civil Registrar on 12 June and required herein petitioner (respondent in Civil Case No. B-1290)
2007.9 He argued that since the marriage had been declared null and to file her "answer to the complaint."23 On 21 July 2008, the court
void from the beginning, there was actually no first marriage to speak DISMISSED the petition for nullity of marriage for failure of herein
of. Absent a first valid marriage, the facts alleged in the Information respondent (plaintiff in Civil Case No. B-1290) to submit his pre-trial
do not constitute the crime of bigamy.10 brief.24 Respondent, however, challenged the orders issued by the
court before the Court of Appeals.25 The matter is still pending
resolution thereat.26
In its comment/opposition to the motion,11 the prosecution, through
herein petitioner, maintained that the respondent committed an act
which has all the essential requisites of bigamy. The prosecution Meanwhile, in a petition for certiorari under Rule 65 of the Rules of
pointed out that the marriage of petitioner and respondent on 18 Court filed on 26 March 2008 before the Court of Appeals,27 herein
November 1978 has not yet been severed when he contracted a petitioner alleged that the Pasay City trial court acted without or in
second marriage on 16 February 1991, for which reason, bigamy has excess of jurisdiction or with grave abuse of discretion amounting to
already been committed before the court declared the first marriage lack or excess of jurisdiction when it dismissed the case of bigamy
null and void on 27 April 2007.12 The prosecution also invoked the and denied her motion for reconsideration.
rulings of the Supreme Court holding that a motion to quash is a
hypothetical admission of the facts alleged in the information, and In its Resolution of 29 April 2008, the Court of Appeals dismissed the
petition stating that:
The present petition xxx is fatally infirm in form and substance for the Sec. 35. Powers and Functions. - The Office of the Solicitor General
following reasons: shall represent the Government of the Philippines, its agencies and
1. The verification is defective as it does not include the instrumentalities and its officials and agents in any litigation,
assurance that the allegations in the petition are based on proceeding, investigation or matter requiring the services of lawyers.
authentic records. xxx It shall have the following specific powers and functions:
2. Since the petition assails the trial court’s dismissal of the
criminal information for bigamy filed against private (1) Represent the Government in the Supreme Court and the Court
respondent Leo Beronilla, the petition, if at all warranted, of Appeals in all criminal proceedings; represent the Government and
should be filed in behalf of the People of the Philippines by its officers in the Supreme Court, Court of Appeals, and all other
the Office of the Solicitor General, being its statutory courts or tribunals in all civil actions and special proceedings in which
counsel in all appealed criminal cases. the Government or any officer thereof in his official capacity is a
3. There is a violation of the rule on double jeopardy as the party.35
dismissal of the subject criminal case is tantamount to an
acquittal based on the trial court’s finding that the first
As an exception to this rule, the Solicitor General is allowed to:
essential element of bigamy, which is a first valid marriage
contracted by private respondent is wanting. There is no
clear showing in the petition that the dismissal was tainted (8) Deputize legal officers of government departments, bureaus,
with arbitrariness which violated petitioner’s right to due agencies and offices to assist the Solicitor General and appear or
process. Notably, petitioner filed her comment/opposition to represent the Government in cases involving their respective offices,
private respondent’s motion to quash before the trial court brought before the courts and exercise supervision and control over
issued its Order dated September 20, 2007 dismissing the such legal officers with respect to such cases.36
information. Hence, if there is no denial of due process,
there can be no grave abuse of discretion that would merit Thus, in Republic v. Partisala,37 we held that the summary dismissal
the application of the exception to the double jeopardy of an action in the name of the Republic of the Philippines, when not
rule. 28 initiated by the Solicitor General, is in order.38 Not even the
appearance of the conformity of the public prosecutor in a petition for
On 18 July 2008, the Court of Appeals denied respondent’s Motion certiorari would suffice because the authority of the City Prosecutor
for Reconsideration of the aforequoted Resolution for lack of merit. 29 or his assistant to represent the People of the Philippines is limited to
the proceedings in the trial court.39
Hence, this petition.
We took exceptions, however, and gave due course to a number of
actions even when the respective interests of the government were
Our Ruling not properly represented by the Office of the Solicitor General.
I
In Labaro v. Panay,40 this Court dealt with a similar defect in the
We are convinced that this petition should be given due course following manner:
despite the defect in the pleading and the question of legal standing
to bring the action.
It must, however, be stressed that if the public prosecution is
aggrieved by any order or ruling of the trial judge in a criminal case,
The Rules of Court provides that a pleading required to be verified
the OSG, and not the prosecutor, must be the one to question the
which lacks a proper verification shall be treated as unsigned
order or ruling before us.41 xxx
pleading.31
Nevertheless, since the challenged order affects the interest of the
This, notwithstanding, we have, in a number of cases, opted to relax State or the plaintiff People of the Philippines, we opted not to
the rule in order that the ends of justice may be served.32 The defect
dismiss the petition on this technical ground. Instead, we required the
being merely formal and not jurisdictional, we ruled that the court
OSG to comment on the petition, as we had done before in some
may nevertheless order the correction of the pleading, or even act on
cases.42 In light of its Comment, we rule that the OSG has ratified
the pleading "if the attending circumstances are such that xxx strict
and adopted as its own the instant petition for the People of the
compliance with the rule may be dispensed with in order that the
Philippines. (Emphasis supplied.)
ends of justice xxx may be served."33 At any rate, a pleading is
required to be verified only to ensure that it was prepared in good
faith, and that the allegations were true and correct and not based on In Cooperative Development Authority v. Dolefil Agrarian Reform
mere speculations.34 Beneficiaries Cooperative, Inc.,43 without requiring the Office of the
Solicitor General to file a comment on the petition, this Court
determined the merits of the case involving a novel issue on the
There is likewise no dispute that it is the Office of the Solicitor nature and scope of jurisdiction of the Cooperative Development
General (OSG) which has the authority to represent the government
Authority to settle cooperative disputes as well as the battle between
in a judicial proceeding before the Court of Appeals. The
two (2) factions concerning the management of the Dolefil Agrarian
Administrative Code specifically defined its powers and functions to
Reform Beneficiaries Cooperative, Inc. (DARBCI) "that inevitably
read, among others:
threatens the very existence of one of the country’s major
cooperatives."44
And, lest we defeat the ends of justice, we opt to look into the merit it sustained respondent’s motion to quash on the basis of a fact
of the instant petition even absent the imprimatur of the Solicitor contrary to those alleged in the information?
General. After all, "for justice to prevail, the scales must balance, for
justice is not to be dispensed for the accused alone."45 To borrow the Petitioner maintains that the trial court did so because the motion
words of then Justice Minita V. Chico-Nazario in another case where was a hypothetical admission of the facts alleged in the information
the dismissal of a criminal case pending with the trial court was and any evidence contrary thereto can only be presented as a matter
sought: of defense during trial.

[T]he task of the pillars of the criminal justice system is to preserve Consistent with existing jurisprudence, we agree with the petitioner.
our democratic society under the rule of law, ensuring that all those
who [come or are brought to court] are afforded a fair opportunity to
We define a motion to quash an Information as ˗
present their side[s]. xxx The State, like any other litigant, is entitled
to its day in court, and to a reasonable opportunity to present its
case.46 the mode by which an accused assails the validity of a criminal
complaint or Information filed against him for insufficiency on its face
in point of law, or for defects which are apparent in the face of the
II
Information.52
We cannot agree with the Court of Appeals that the filing of this
petition is in violation of the respondent’s right against double
jeopardy on the theory that he has already been practically acquitted This motion is "a hypothetical admission of the facts alleged in the
when the trial court quashed the Information. Information,"53 for which reason, the court cannot consider
allegations contrary to those appearing on the face of the
information.54
Well settled is the rule that for jeopardy to attach, the following
requisites must concur:
As further elucidated in Cruz, Jr. v. Court of Appeals:55
It is axiomatic that a complaint or information must state every single
(1) there is a complaint or information or other formal charge
fact necessary to constitute the offense charged; otherwise, a motion
sufficient in form and substance to sustain a conviction; (2) the same
to dismiss/quash on the ground that it charges no offense may be
is filed before a court of competent jurisdiction; (3) there is a valid
properly sustained. The fundamental test in considering a motion to
arraignment or plea to the charges; and (4) the accused is convicted
quash on this ground is whether the facts alleged, if hypothetically
or acquitted or the case is otherwise dismissed or terminated without
admitted, will establish the essential elements of the offense as
his express consent.47
defined in the law.

The third and fourth requisites are clearly wanting in the instant case
Contrary to the petitioner’s contention, a reading of the information
as (a) respondent has not yet entered his plea to the charge when he
will disclose that the essential elements of the offense charged are
filed the Motion to Quash the Information, and (2) the case was
sufficiently alleged. It is not proper therefore to resolve the charges at
dismissed not merely with his consent but, in fact, at his instance.48
the very outset, in a preliminary hearing only and without the benefit
of a full-blown trial. The issues require a fuller examination. Given the
We reiterate, time and again, that jeopardy does not attach in favor of circumstances of this case, we feel it would be unfair to shut off the
the accused on account of an order sustaining a motion to prosecution at this stage of the proceedings and to dismiss the
quash.49 More specifically, the granting of a motion to quash informations on the basis only of the petitioner’s evidence, such as
anchored on the ground that the facts charged do not constitute an [this].56
offense is "not a bar to another prosecution for the same
offense."50 Thus:
As in the recent case of Los Baños v. Pedro,57 where we found no
merit in respondent’s allegation that the facts charged do not
It will be noted that the order sustaining the motion to quash the constitute an offense because "the Information duly charged a
complaint against petitioner was based on Subsection (a) of Section specific offense and provide[d] the details on how the offense was
2 of Rule 117 of the Rules of Court – that the facts charged in the committed,"58 we see no apparent defect in the allegations in the
complaint do not constitute an offense. If this is so then the dismissal Information in the case at bar. Clearly, the facts alleged in its
of said complaint will not be a bar to another prosecution for the accusatory portion, which reads:
same offense, for it is provided in Section 8 of Rule 117 of the Rules
of Court [now Section 6 of the 2000 Rules of Criminal Procedure] that
That on or about the 16th day of February, 1991, in Pasay City,
an order sustaining the motion to quash is not a bar to another
Metro Manila, Philippines and within the jurisdiction of this Honorable
prosecution for the same offense unless the motion was based on
Court, the above-named accused, LEO R. BERONILLA, having been
the grounds specified in Section 2, Subsection[s] (f) and (h) of this
united in a lawful marriage with one MYRNA A. BERONILLA, which
rule [now substantially reproduced in Section 3, Subsections (g) and
marriage is still in force and subsisting and without having been
(i) of the 2000 Rules of Criminal Procedure] xxx.51
legally dissolved, did then and there willfully, unlawfully and
feloniously contract a second marriage with one Cecile Maguillo,
III which subsequent marriage of the accused has all the essential
requisites for validity.59
We now determine the merit of the petition ˗ did the trial court act
without or in excess of jurisdiction or grave abuse of discretion when
sufficiently constitute an offense. It contained all the elements of the because there is no need for a judicial decree to establish that a void
crime of Bigamy under Article 349 of the Revised Penal Code ab initio marriage is invalid;66 and (b) a marriage declared void ab
hereunder enumerated: initio has retroactive legal effect such that there would be no first
(1) that the offender has been legally married; valid marriage to speak of after all, which renders the elements of
(2) that the first marriage has not been legally dissolved or, bigamy incomplete.67
in case his or her spouse is absent, the absent spouse
could not yet be presumed dead according to the Civil Both principles, however, run contrary to the new provision of the
Code; Family Code, which was promulgated by the late President Corazon
(3) that he contracts a second or subsequent marriage; and C. Aquino in 1987, a few years before respondent’s subsequent
(4) that the second or subsequent marriage has all the marriage was celebrated in 1991.
essential requisites for validity.60
The specific provision, which reads:
The documents showing that: (1) the court has decreed that the ART. 40. The absolute nullity of a previous marriage may be invoked
marriage of petitioner and respondent is null and void from the for purposes of remarriage on the basis solely of a final judgment
beginning; and (2) such judgment has already become final and declaring such marriage void.
executory and duly registered with the Municipal Civil Registrar of
Naval, Biliran are pieces of evidence that seek to establish a fact
was exhaustively discussed in Mercado,68 where this Court settled
contrary to that alleged in the Information ˗ that a first valid marriage
the "conflicting" jurisprudence on "the need for a judicial declaration
was subsisting at the time the respondent contracted a subsequent
of nullity of the previous marriage." After establishing that Article 40 is
marriage. This should not have been considered at all because
a new provision expressly requiring a judicial declaration of nullity of
matters of defense cannot be raised in a motion to quash.
a prior marriage and examining a long line of cases,69 this Court,
concluded, in essence, that under the Family Code a subsequent
Neither do we find a justifiable reason for sustaining the motion to judicial declaration of the nullity of the first marriage is immaterial in a
quash even after taking into consideration the established exceptions bigamy case because, by then, the crime had already been
to the rule earlier recognized by this Court, among others: (1) when consummated. Otherwise stated, this Court declared that a person,
the new allegations are admitted by the prosecution;61 (2) when the who contracts a subsequent marriage absent a prior judicial
Rules so permit, such as upon the grounds of extinction of criminal declaration of nullity of a previous one, is guilty of bigamy.70
liability and double jeopardy;62 and (3) when facts have been
established by evidence presented by both parties which destroyed
Notably, Morigo, was indeed promulgated years after Mercado.
the prima facie truth of the allegations in the information during the
Nevertheless, we cannot uphold the Order dated 6 December 2007
hearing on a motion to quash based on the ground that the facts
of the trial court, which maintained that Morigo has already
charged do not constitute an offense, and "it would be pure superseded Mercado. In fact, in Morigo, this Court clearly
technicality for the court to close its eyes to said facts and still give
distinguished the two (2) cases from one another, and explained:
due course to the prosecution of the case already shown to be weak
even to support possible conviction xxx."63
The present case is analogous to, but must be distinguished from
Mercado v. Tan. In the latter case, the judicial declaration of nullity of
For of what significance would the document showing the belated
the first marriage was likewise obtained after the second marriage
dissolution of the first marriage offer? Would it serve to prevent the
was already celebrated. xxx
impracticability of proceeding with the trial in accordance with People
v. dela Rosa thereby warranting the non-observance of the settled
rule that a motion to quash is a hypothetical admission of the facts It bears stressing though that in Mercado, the first marriage was
alleged in the information? We quote: actually solemnized xxx. Ostensibly, at least, the first marriage
appeared to have transpired, although later declared void ab initio.
[W]here in the hearing on a motion to quash predicated on the
ground that the allegations of the information do not charge an In the instant case, however, no marriage ceremony at all was
offense, facts have been brought out by evidence presented by both performed by a duly authorized solemnizing officer. Petitioner and
parties which destroy the prima facietruth accorded to the allegations Lucia Barrete merely signed a marriage contract on their own. The
of the information on the hypothetical admission thereof, as is implicit mere private act of signing a marriage contract bears no semblance
in the nature of the ground of the motion to quash, it would be pure to a valid marriage and thus, needs no judicial declaration of nullity.
technicality for the court to close its eyes to said facts and still give Such act alone, without more, cannot be deemed to constitute an
due course to the prosecution of the case already shown to be weak ostensibly valid marriage for which petitioner might be held liable for
even to support possible conviction, and hold the accused to what bigamy unless he first secures a judicial declaration of nullity before
would clearly appear to be a merely vexatious and expensive trial, on he contracts a subsequent marriage.71
her part, and a wasteful expense of precious time on the part of the
court, as well as of the prosecution.64 (Emphasis supplied.) The application of Mercado to the cases following Morigo even
reinforces the position of this Court to give full meaning to Article 40
We find that there is none. of the Family Code. Thus, in 2004, this Court ruled in Tenebro v.
With the submission of the documents showing that the court has Court of Appeals:72
declared the first marriage void ab initio, respondent heavily relied on Although the judicial declaration of the nullity of a marriage on the
the rulings65 in People v. Mendoza and Morigo declaring that: (a) a ground of psychological incapacity retroacts to the date of the
case for bigamy based on a void ab initio marriage will not prosper celebration of the marriage insofar as the vinculum between the
spouses is concerned, xxx said marriage is not without legal  In its comment/opposition to the motion, the prosecution, through
effects.1avvphil.zw+ Among these effects is that children conceived herein petitioner, maintained that the respondent committed an
or born before the judgment of absolute nullity of the marriage shall act which has all the essential requisites of bigamy. The
be considered legitimate. There is therefore a recognition written into prosecution pointed out that the marriage of petitioner and
respondent on 18 November 1978 has not yet been severed
the law itself that such a marriage, although void ab initio, may still
when he contracted a second marriage on 16 February 1991, for
produce legal consequences. Among these legal consequences is which reason, bigamy has already been committed before the
incurring criminal liability for bigamy. xxx.73 (Emphasis supplied.) court declared the first marriage null and void on 27 April 2007.
 The prosecution also invoked the rulings of the Supreme Court
Finally, in Re: Complaint of Mrs. Corazon S. Salvador against holding that a motion to quash is a hypothetical admission of the
Spouses Noel and Amelia Serafico,74 this Court pronounced: facts alleged in the information, and that facts contrary thereto are
In a catena of cases,75 the Court has consistently held that a judicial matters of defense which may be raised only during the
presentation of evidence.
declaration of nullity is required before a valid subsequent marriage  The prosecution, through herein petitioner, moved for
can be contracted; or else, what transpires is a bigamous marriage, reconsideration of the said Order on the ground,
reprehensible and immoral. xxx among others, that the facts and the attending
circumstances in Morigo are not on all fours with the
To conclude, the issue on the declaration of nullity of the marriage case at bar. It likewise pointed out that, in Mercado v.
between petitioner and respondent only after the latter contracted the Tan, this Court has already settled that “(a) declaration
of the absolute nullity of a marriage is now explicitly
subsequent marriage is, therefore, immaterial for the purpose of
required either as a cause of action or a ground for
establishing that the facts alleged in the information for Bigamy does defense.”
not constitute an offense. Following the same rationale, neither may  In its Order of 6 December 2007, the court denied the
such defense be interposed by the respondent in his motion to quash motion for reconsideration stating that Mercado has
by way of exception to the established rule that facts contrary to the already been superseded by Morigo.
allegations in the information are matters of defense which may be  In the interim, in a Petition for Relief from
raised only during the presentation of evidence. Judgment before the Regional Trial Court of Naval,
Biliran, petitioner questioned the validity of the
proceedings in the petition for the declaration of nullity
All considered, we find that the trial court committed grave abuse of of marriage in Civil Case No. B-1290 on 5 October
discretion when, in so quashing the Information in Criminal Case No. 2007. On 24 March 2008, the court set aside its
07-0907-CFM, it considered an evidence introduced to prove a fact Decision of 26 April 2007 declaring the marriage of
not alleged thereat disregarding the settled rules that a motion to petitioner with respondent null and void, and required
quash is a hypothetical admission of the facts stated in the herein petitioner (respondent in Civil Case No. B-1290)
information; and that facts not alleged thereat may be appreciated to file her “answer to the complaint.” On 21 July 2008,
only under exceptional circumstances, none of which is obtaining in the court DISMISSED the petition for nullity of
the instant petition. marriage for failure of herein respondent (plaintiff in
Civil Case No. B-1290) to submit his pre-trial brief.
Respondent, however, challenged the orders issued
WHEREFORE, the Orders dated 20 September 2007 and 6 by the court before the Court of Appeals. The matter
December 2007 of the Regional Trial Court, Branch 115, Pasay City is still pending resolution thereat.
as well as the Resolutions dated 29 April 2008 and 18 July 2008 of  Meanwhile, in a petition for certiorari under Rule 65 of
the Court of Appeals are hereby SET ASIDE. Criminal Case No. 07- the Rules of Court filed on 26 March 2008 before the
0907-CFM is REMANDED to the trial court for further proceedings. Court of Appeals, herein petitioner alleged that the
SO ORDERED. Pasay City trial court acted without or in excess of
jurisdiction or with grave abuse of discretion amounting
to lack or excess of jurisdiction when it dismissed the
Facts:
case of bigamy and denied her motion for
 On 12 March 2007, herein petitioner Myrna P. Antone executed
reconsideration.
an Affidavit-Complaint for Bigamy against Leo R. Beronilla before
Issue: Whether the trial court erred in finding that the first essential element
the Office of the City Prosecutor of Pasay City. She alleged that
of bigamy, which is a first valid marriage contracted by private respondent is
her marriage with respondent in 1978 had not yet been legally
wanting.
dissolved when the latter contracted a second marriage with one
Cecile Maguillo in 1991.
Held: The issue on the declaration of nullity of the marriage between
 On 21 June 2007, the prosecution filed the corresponding
petitioner and respondent only after the latter contracted the subsequent
Information before the Regional Trial Court, Pasay City. The case
marriage is, therefore, immaterial for the purpose of establishing that the
was docketed as Criminal Case No. 07-0907-CFM and raffled to
facts alleged in the information for Bigamy does not constitute an
Branch 115.
offense. Following the same rationale, neither may such defense be
 Pending the setting of the case for arraignment, herein
interposed by the respondent in his motion to quash by way of exception to
respondent moved to quash the Information on the ground
the established rule that facts contrary to the allegations in the information
that the facts charged do not constitute an offense. He informed
are matters of defense which may be raised only during the presentation of
the court that his marriage with petitioner was declared null and
evidence.
void by the Regional Trial Court, Branch 16, Naval, Biliran on 26
All considered, we find that the trial court committed grave abuse of
April 2007; that the decision became final and executory on 15
discretion when, in so quashing the Information in Criminal Case No. 07-
May 200[7]; and that such decree has already been registered
0907-CFM, it considered an evidence introduced to prove a fact not alleged
with the Municipal Civil Registrar on 12 June 2007.
thereat disregarding the settled rules that a motion to quash is a hypothetical
 He argued that since the marriage had been declared null and
admission of the facts stated in the information; and that facts not alleged
void from the beginning, there was actually no first marriage to
thereat may be appreciated only under exceptional circumstances, none of
speak of. Absent a first valid marriage, the facts alleged in the
which is obtaining in the instant petition.
Information do not constitute the crime of bigamy.
G.R. No. L-54110 February 20, 1981 Twenty-seven days later, or on September 12, 1979, the fiscal filed a
GENEROSO ESMEÑA and ALBERTO ALBA, petitioners, motion for the revival of the case. He attached to his motion a
vs. JUDGE JULIAN B. POGOY, City Court of Cebu City, Branch medical certificate under oath attesting to the fact that Father
III, PEOPLE OF THE PHILIPPINES and RICARDO B. TABANAO, Tibudan was sick of influenza on August 16, 1979.
as Special Counsel, Office of the City Fiscal, Cebu
City, respondents. The fiscal cited the ruling that a provisional dismissal with the
conformity of the accused lacks the impress of finality and, therefore,
AQUINO, J.: the case could be revived without the filing of a new information
This case poses the issue of whether the revival of a grave coercion (Lauchengco vs. Alejandro, L-49034, January 31, 1979, 88 SCRA
case, which was provisionally dismissed (after the accused had been 175).
arraigned) because of complainant's failure to appear at the trial,
would place the accused in double jeopardy, considering their The accused did not oppose the motion. Respondent judge granted it
constitutional right to have a speedy trial. in his order of October 8, 1979 (p. 26, Rollo).

Petitioners Generoso Esmeña and Alberto Alba and their co- On October 24, 1979, Esmeña and Alba filed a motion to dismiss the
accused, Genaro Alipio, Vicente Encabo and Bernardo Villamira case on the ground of double jeopardy. They pointed out that they
were charged with grave coercion in the city court of Cebu City for did not consent to the provisional dismissal of the case. Hence, the
having allegedly forced Reverend Father Tomas Tibudan of the Jaro provisional dismissal amounted to an acquittal which placed them in
Cathedral, Iloilo City to withdraw the sum of five thousand pesos from jeopardy. Its revival would place them in double jeopardy.
the bank and to give that amount to the accused because the priest
lost it in a game of cards.
The fiscal opposed the motion. He called the court's attention to the
fact that Father Tibudan had appeared in court several times but the
The case was calendared on October 4, 1978 presumably for hearing was not held. The court denied the motion to dismiss.
arraignment and trial. Upon the telegraphic request of Father
Tibudan the case was reset on December 13, 1978. Because
That order denying the motion to dismiss is assailed in this special
Esmeña and Alba were not duly notified of that hearing, they were
civil action of certiorari. The Solicitor General agrees with the
not able to appear.
petitioners that the revival of the case would place the accused in
double jeopardy since the provisional dismissal of the case without
The two pleaded not guilty at their arraignment on January 23, 1979. their consent was in effect an acquittal.
No trial was held after the arraignment because complainant Father
Tibudan requested the transfer of the hearing to another date.
The rule on double jeopardy (non bis in Idem or not twice for the
same) is found in section 22, Article IV Bill of Rights) of the
In the meantime, the fiscal lost his record of the case. So, the hearing Constitution which provides that "no person shall be twice put in
scheduled on June 18, 1979 was cancelled at his instance. On that jeopardy of punishment for the same offense." This is complemented
date, respondent judge issued an order setting the trial "for the last by Rule 117 of the Rules of Court which provides as follows:
time on August 16, 1979, at 8:30 o'clock in the morning" (p. 21,
Rollo).
SEC. 9. Former conviction or acquittal or former
jeopardy. —When a defendant shall have been
When the case was called on that date, the fiscal informed the court convicted or acquitted, or the case against him
that the private prosecutor received from complainant Father Tibudan dismissed or otherwise terminated without the
a telegram stating that he was sick. The counsel for petitioners express consent of the defendant, by a court of
Esmeña and Alba opposed the cancellation of the hearing. They competent jurisdiction, upon a valid complaint or
invoked the right of the accused to have a speedy trial. information or other formal charge sufficient in
form and substance to sustain a conviction, and
Their counsel told the court: " ... we are now invoking the after the defendant had pleaded to the charge,
constitutional right of the accused to a speedy trial of the case. ... We the conviction or acquittal of the defendant or the
are insisting on our stand that the case be heard today; otherwise, it dismissal of the case shall be a bar to another
will (should) be dismissed on the ground of invoking (sic) the prosecution for the offense charged, or for any
constitutional right of the accused particularly accused Alberto Alba attempt to commit the same or frustration thereof,
and Generoso Esmeña (pp. 50 and 52, Rollo). or for any offense which necessarily includes or
is necessarily included in the offense charged in
Respondent judge provisionally dismissed the case as to the four the former complaint or information.
accused who were present because it "has been dragging all along
and the accused are ready for the hearing" but the fiscal was not In order that legal jeopardy may exist, there should be (a) a valid
ready with his witness. The court noted that there was no medical complaint or information (b) before a court of competent jurisdiction
certificate indicating that the complainant was really sick. The case and (c) the accused has been arraigned and has pleaded to the
was continued as to the fifth accused who did not appear at the complaint or information.
hearing. His arrest was ordered (p. 23, Rollo).
When these three conditions are present, the acquittal or conviction
of the accused or the dismissal or termination of the case without his
express consent constitutes res judicata and is a bar to another etc. and Motas, 111 Phil. 1020 citing People vs. Tacneng, 105 Phil.
prosecution for the offense charged, or for any attempt to commit the 1298 and People vs. Robles, 105 Phil. 1016. See Taladua vs.
same or frustration thereof, or for any offense which necessarily Ochotorena, L-25595, February 15, 1974, 55 SCRA 528; Acebedo
includes or is included therein (4 Moran's Comments on the Rules of vs. Sarmiento, L-28025, December 16, 1970, 36 SCRA 247; Baesa
Court, 1980 Ed., p. 240). vs. Provincial Fiscal of Camarines Sur, L-30363, January 30, 1971,
37 SCRA 437; People vs. Cloribel, 120 Phil. 775; People vs. Abaño
Previous acquittal (autrefois acquit), previous conviction (autrefois 97 Phil. 28; People vs. Labatete, 107 Phil. 697).
convict) or the dismissal or termination of the case without his
consent precludes his subsequent indictment for the same offense as WHEREFORE, the order of respondent judge dated October 8, 1979,
defined in section 9. reviving the criminal case against the petitioners, and his order of
December 14, 1979, denying petitioners' motion to dismiss, are
In the instant case, we hold that the petitioners were placed in reversed and set aside. No costs.
jeopardy by the provisional dismissal of the grave coercion case.
That provisional dismissal would not have place the petitioners in SO ORDERED.
jeopardy if respondent judge had taken the precaution of making
sure that the dismissal was with their consent. In this case, it is not
very clear that the petitioners consented to the dismissal of the case.

It is the practice of some judges before issuing an order of


provisional dismissal in a case wherein the accused had already
been arraigned to require the accused and his counsel to sign the
minutes of the session or any available part of the record to show the
conformity of the accused or his lack of objection to the provisional
dismissal.

The judge specifies in the order of provisional dismissal that the


accused and his counsel signified their assent thereto. That
procedure leaves no room for doubt as to the consent of the accused
and precludes jeopardy from attaching to the dismissal.

The petitioners were insisting on a trial. They relied on their


constitutional right to have a speedy trial. The fiscal was not ready
because his witness was not in court. Respondent judge on his own
volition provisionally dismissed the case. The petitioners did not
expressly manifest their conformity to the provisional dismissal.
Hence, the dismissal placed them in jeopardy.

Even if the petitioners, after invoking their right to a speedy trial,


moved for the dismissal of the case and, therefore, consented to it,
the dismissal would still place them in jeopardy. The use of the word
"provisional" would not change the legal effect of the dismissal
(Esguerra vs. De la Costa, 66 Phil. 134; Gandicela vs. Lutero, 88
Phil. 299).

If the defendant wants to exercise his constitutional right to a speedy


trial, he should ask, not for the dismissal, but for the trial of the case.
After the prosecution's motion for postponement of the trial is denied
and upon order of the court the fiscal does not or cannot produce his
evidence and, consequently, fails to prove the defendant's guilt, the
court upon defendant's motion shall dismiss the case, such dismissal
amounting to an acquittal of the defendant" (4 Moran's Comments on
the Rules of Court, 1980 Ed., p. 202, citing Gandicela vs. Lutero, 88
Phil. 299, 307 and People vs. Diaz, 94 Phil. 714-717).

The dismissal of a criminal case upon motion of the accused


because the prosecution was not prepared for trial since the
complainant and his witnesses did not appear at the trial is a
dismissal equivalent to an acquittal that would bar further prosecution
of the defendant for the same offense (Salcedo vs. Mendoza, L-
49375, February 28, 1979, 88 SCRA 811; Lagunilia vs. Hon. Reyes,
G.R. No. 173588 April 22, 2009 Trial Court (RTC) for violation of the Code’s Article XXII, Section 261
ARIEL M. LOS BAÑOS, on behalf of P/Supt. Victor Arevalo, (q),5 in relation to Section 264.6
SPO2 Marcial Olympia, SPO1 Rocky Mercene and PO1 Raul
Adlawan, and in his personal capacity, Petitioner, Pedro filed a Motion for Preliminary Investigation, which the RTC
vs. JOEL R. PEDRO, Respondent. granted.7 The preliminary investigation, however, did not materialize.
Instead, Pedro filed with the RTC a Motion to Quash, arguing that the
BRION, J.: Information "contains averments which, if true, would constitute a
legal excuse or justification8 and/or that the facts charged do not
We review in this petition for review on certiorari1 the September 19, constitute an offense."9 Pedro attached to his motion a Comelec
2005 decision2 and the July 6, 2006 resolution3 of the Court of Certification dated September 24, 2001 that he was "exempted" from
Appeals (CA) in CA-G.R. SP No. 80223. The petition seeks to revive the gun ban. The provincial prosecutor opposed the motion.
the case against respondent Joel R. Pedro (Pedro) for election gun
ban violation after the CA declared the case permanently dismissed The RTC quashed the Information and ordered the police and the
pursuant to Section 8, Rule 117 of the Rules of Court. prosecutors to return the seized articles to Pedro.10

THE ANTECEDENTS The petitioner, private prosecutor Ariel Los Baños (Los Baños),
representing the checkpoint team, moved to reopen the case, as
Pedro was charged in court for carrying a loaded firearm without the Pedro’s Comelec Certification was a "falsification," and the
required written authorization from the Commission on Elections prosecution was "deprived of due process" when the judge quashed
(Comelec) a day before the May 14, 2001 national and local the information without a hearing. Attached to Los Baños’ motion
elections. The Information reads: were two Comelec certifications stating that: (1) Pedro was not
exempted from the firearm ban; and (2) the signatures in the
Comelec Certification of September 24, 2001 were forged.
That on or about the 13th day of May 2001 at about 4:00 o’clock in
the afternoon, in [S]itio Bantauyan, [B]arangay Bantad, Municipality
of Boac, Province of Marinduque, Philippines, and within the The RTC reopened the case for further proceedings, as Pedro did
jurisdiction of this Honorable Court, the above-named accused did not object to Los Baños’ motion.11 Pedro moved for the
then and there, willfully, unlawfully and feloniously carry a Revolver reconsideration of the RTC’s order primarily based on Section 8 of
Cal. 357, Magnum Ruger 100 loaded with six (6) ammunitions, with Rule 117,12 arguing that the dismissal had become permanent. He
Serial No. 173-56836 outside his residence during the election likewise cited the public prosecutor’s lack of express approval of the
period, without authorization in writing from the Commission on motion to reopen the case.
Election[s].
The public prosecutor, however, manifested his express conformity
CONTRARY TO LAW.4 with the motion to reopen the case. The trial court, for its part,
rejected the position that Section 8, Rule 117 applies, and explained
that this provision refers to situations where both the prosecution and
The accusation was based on Batas Pambansa Bilang 881 or the
the accused mutually consented to the dismissal of the case, or
Omnibus Election Code (Code) after the Marinduque Philippine
where the prosecution or the offended party failed to object to the
National Police (PNP) caught Pedro illegally carrying his firearm at a
dismissal of the case, and not to a situation where the information
checkpoint at Boac, Marinduque. The Boac checkpoint team was
was quashed upon motion of the accused and over the objection of
composed of Police Senior Inspector Victor V. Arevalo, SPO2
the prosecution. The RTC, thus, set Pedro’s arraignment date.
Marshal Olympia, SPO1 Rocky Mercene, and PO1 Raul Adlawan.
The team stopped a silver-gray Toyota Hi-Ace with plate number
WHT-371 on the national highway, coming from the Boac town Pedro filed with the CA a petition for certiorari and prohibition to
proper. When Pedro (who was seated at the rear portion) opened the nullify the RTC’s mandated reopening.13 He argued that the RTC
window, Arevalo saw a gun carry case beside him. Pedro could not committed grave abuse of discretion amounting to lack or excess of
show any COMELEC authority to carry a firearm when the jurisdiction in ruling that the dismissal contemplated under Section 8,
checkpoint team asked for one, but he opened the case when asked Rule 117 refers to situations where either the prosecution and the
to do so. The checkpoint team saw the following when the case was accused mutually consented to, or where the prosecution alone
opened: 1) one Revolver 357 Magnum Ruger GP100, serial number moved for, the provisional dismissal of the case; in rejecting his
173-56836, loaded with six ammunitions; 2) one ammunition box argument that the prescriptive periods under Article 90 of the
containing 100 bullets; 3) two pieces speed loader with six Revised Penal Code14 or Act No. 332615 find no application to his
ammunitions each; and 4) one set ear protector. Pedro was with case as the filing of the Information against him stopped the running
three other men. The checkpoint team brought all of them to the of the prescriptive periods so that the prescription mandated by these
Boac police station for investigation. laws became irrelevant; and, in setting the case for arraignment and
pre-trial conference, despite being barred under Section 8 of Rule
117.
The Boac election officer filed a criminal complaint against Pedro for
violating the election gun ban, i.e., for carrying a firearm outside of
his residence or place of business without any authority from the THE COURT OF APPEALS DECISION
Comelec. After an inquest, the Marinduque provincial prosecutor filed
the above Information against Pedro with the Marinduque Regional The CA initially denied Pedro’s petition. For accuracy, we quote the
material portions of its ruling:
The petition lacks merit. case because it was not shown when the public prosecutor was
served the order of dismissal.
The trial court erred in ruling that Section 8, Rule 117 does not apply
to provisional dismissals on motion of the accused. The Rule merely xxx
provides that a case shall not be provisionally dismissed, except with
the express consent of the accused and with notice to the offended The arguments raised in the respondents’ motion for modification
party. Nothing in the said rule proscribes its application to dismissal were duly passed upon in arriving at the decision dated 9 September
on motion of the accused. 2005, and no new matters were raised which would warrant a
reconsideration thereof.
Nevertheless, we find no basis for issuing the extraordinary writs of
certiorari and prohibition, as there is no showing that the error was On the other hand, the petitioner was able to prove that the motion to
tainted with grave abuse of discretion. Grave abuse of discretion reopen the case was filed after the lapse of more than one year from
implies capricious and whimsical exercise of judgment amounting to the time the public prosecutor was served the notice of dismissal.
lack of jurisdiction. The grave abuse of discretion must be so patent Therefore, the state is barred from reopening the case.
and gross as to amount to an evasion or refusal to perform a duty
enjoined by law.
WHEREFORE, petitioner Joel Pedro’s motion for partial
reconsideration is hereby GRANTED, and respondent Ariel Los
Before the petitioner may invoke the time-bar in Section 8, he must Banos’ motion for modification of judgment is, accordingly, DENIED.
establish the following:
1. the prosecution, with the express conformity of the
To summarize this ruling, the appellate court, while initially saying
accused or the accused moves for a provisional (sin
that there was an error of law but no grave abuse of discretion that
perjuicio) dismissal of the case; or both the prosecution
would call for the issuance of a writ, reversed itself on motion for
and the accused move for a provisional dismissal of the
reconsideration; it then ruled that the RTC committed grave abuse of
case;
discretion because it failed to apply Section 8, Rule 17 and the time-
2. the offended party is notified of the motion for a
bar under this provision.
provisional dismissal of the case;
3. the court issues an order granting the motion and
dismissing the case provisionally; THE PETITION
4. the public prosecutor is served, with a copy of the order
of provisional dismissal of the case. Los Baños prays in his petition that the case be remanded to the
RTC for arraignment and trial, or that a new charge sheet be filed
Although the second paragraph of Section 8 states that the order of against Pedro, or that the old information be re-filed with the RTC. He
dismissal shall become permanent one year after the issuance contends that under Section 6 of Rule 117, an order sustaining a
thereof, without the case having been revived, such provision should motion to quash does not bar another prosecution for the same
be construed to mean that the dismissal shall become permanent offense, unless the motion was based on the grounds specified in
one year after service of the order of dismissal on the public Section 3(g)16 and (i)17 of Rule 117. Los Baños argues that the
prosecutor, as the public prosecutor cannot be expected to comply dismissal under Section 8 of Rule 117 covers only situations where
with the timeliness requirement unless he is served with a copy of the both the prosecution and the accused either mutually consented or
order of dismissal. agreed to, or where the prosecution alone moved for the provisional
dismissal of the case; it can also apply to instances of failure on the
part of the prosecution or the offended party to object, after having
In the instant, case, the records are bereft of proof as to when the
been forewarned or cautioned that its case will be dismissed. It does
public prosecutor was served the order of dismissal dated 22
not apply where the information was quashed. He adds that although
November 2001. Absent such proof, we cannot declare that the State
the trial court granted the motion to quash, it did not categorically
is barred from reviving the case.
dismiss the case, either provisionally or permanently, as the judge
simply ordered the return of the confiscated arms and ammunition to
WHEREFORE, the petition is DENIED. Pedro. The order was "open-ended," and did not have the effect of
provisionally dismissing the case under Section 8 of Rule 117.
In his motion for reconsideration, Pedro manifested the exact date
and time of the Marinduque provincial prosecutor’s receipt of the Los Baños also contends that the CA gravely erred when: (1) it ruled
quashal order to be "2:35 p.m., December 10, 2001," and argued that in effect that the Order dated November 22, 2001 granting the motion
based on this date, the provisional dismissal of the case became to quash is considered a provisional dismissal, which became
"permanent" on December 10, 2002. Based on this information, the permanent one year from the prosecutor’s receipt of the order; the
CA reversed itself, ruling as follows: order to quash the Information was based on Section 3 of Rule 117,
not on Section 8 of this Rule; (2) it granted Pedro’s motion for
On 9 September 2005, we ruled that Section 8, Rule 117 is reconsideration and denied Los Baños’ motion for modification of
applicable to a dismissal on motion of the accused. However, we did judgment, when Section 6 of Rule 117 clearly provides that an order
not issue the writs of certiorari and prohibition, because it was shown granting a motion to quash is not a bar to another prosecution for the
that the trial court committed grave abuse of discretion in ordering same offense.
the reopening of the case. Moreover, we stated that we cannot rule
on the issue of whether or not the State is barred from reopening the
He notes that the grounds Pedro relied upon in his motion to quash was dismissed or otherwise terminated without his express
are not subsections (g) or (i) of Rule 117, but its subsections (a) – consent.
that the facts charged do not constitute an offense, and (h) – that it
contains averments which if true would constitute a legal justification. b. Provisional Dismissal
Pedro’s cited grounds are not the exceptions that would bar another
prosecution for the same offense.18 The dismissal of a criminal case
On the other hand, Section 8, Rule 117 that is at the center of the
upon the express application of the accused (under subsections [a]
dispute states that:
and [h]) is not a bar to another prosecution for the same offense,
because his application is a waiver of his constitutional prerogative
against double jeopardy. SEC.8. Provisional dismissal. — A case shall not be provisionally
dismissed except with the express consent of the accused and with
notice to the offended party.
In response to all these, respondent Pedro insists and fully relies on
the application of Section 8 of Rule 117 to support his position that
the RTC should not have granted Los Banos’ motion to reopen the The provisional dismissal of offenses punishable by imprisonment
case. not exceeding six (6) years or a fine of any amount, or both, shall
become permanent one (1) year after issuance of the order without
the case having been revived. With respect to offenses punishable
THE ISSUES
by imprisonment of more than six (6) years, their provisional
dismissal shall become permanent two (2) years after issuance of the
The issue is ultimately reduced to whether Section 8, Rule 117 is order without the case having been revived.
applicable to the case, as the CA found. If it applies, then the CA
ruling effectively lays the matter to rest. If it does not, then the
A case is provisionally dismissed if the following requirements
revised RTC decision reopening the case should prevail.
concur:
1) the prosecution with the express conformity of the
OUR RULING accused, or the accused, moves for a provisional dismissal
(sin perjuicio) of his case; or both the prosecution and the
We find the petition meritorious and hold that the case should be accused move for its provisional dismissal;
remanded to the trial court for arraignment and trial. 2) the offended party is notified of the motion for a
provisional dismissal of the case;
Quashal v. Provisional Dismissal 3) the court issues an order granting the motion and
dismissing the case provisionally; and
4) the public prosecutor is served with a copy of the order
a. Motion to Quash
of provisional dismissal of the case.20
A motion to quash is the mode by which an accused assails, before
In People v. Lacson,21 we ruled that there are sine
entering his plea, the validity of the criminal complaint or the criminal
quanon requirements in the application of the time-bar rule stated in
information filed against him for insufficiency on its face in point of
the second paragraph of Section 8 of Rule 117. We also ruled that
law, or for defect apparent on the face of the Information.19 The
the time-bar under the foregoing provision is a special procedural
motion, as a rule, hypothetically admits the truth of the facts spelled
limitation qualifying the right of the State to prosecute, making the
out in the complaint or information. The rules governing a motion to
time-bar an essence of the given right or as an inherent part thereof,
quash are found under Rule 117 of the Revised Rules of Court.
so that the lapse of the time-bar operates to extinguish the right of
Section 3 of this Rule enumerates the grounds for the quashal of a
the State to prosecute the accused.
complaint or information, as follows:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over c. Their Comparison
the offense charged;
(c) That the court trying the case has no jurisdiction over An examination of the whole Rule tells us that a dismissal based on a
the person of the accused; motion to quash and a provisional dismissal are far different from one
(d) That the officer who filed the information had no another as concepts, in their features, and legal consequences.
authority to do so; While the provision on provisional dismissal is found within Rule 117
(e) That it does not conform substantially to the prescribed (entitled Motion to Quash), it does not follow that a motion to quash
form; results in a provisional dismissal to which Section 8, Rule 117
(f) That more than one offense is charged except when a applies.
single punishment for various offenses is prescribed by
law; A first notable feature of Section 8, Rule 117 is that it does not
(g) That the criminal action or liability has been exactly state what a provisional dismissal is. The modifier
extinguished; "provisional" directly suggests that the dismissals which Section 8
(h) That it contains averments which, if true, would essentially refers to are those that are temporary in character (i.e., to
constitute a legal excuse or justification; and dismissals that are without prejudice to the re-filing of the case), and
(i) That the accused has been previously convicted or not the dismissals that are permanent (i.e., those that bar the re-filing
acquitted of the offense charged, or the case against him of the case). Based on the law, rules, and jurisprudence, permanent
dismissals are those barred by the principle of double jeopardy,22 by
the previous extinction of criminal liability,23 by the rule on speedy that uniquely applies to dismissals other than those grounded on
trial,24 and the dismissals after plea without the express consent of Section 3. Conversely, when a dismissal is pursuant to a motion to
the accused.25 Section 8, by its own terms, cannot cover these quash under Section 3, Section 8 and its time-bar does not apply.
dismissals because they are not provisional.
Other than the above, we note also the following differences
A second feature is that Section 8 does not state the grounds that stressing that a motion to quash and its resulting dismissal is a
lead to a provisional dismissal. This is in marked contrast with a unique class that should not be confused with other dismissals:
motion to quash whose grounds are specified under Section 3. The
delimitation of the grounds available in a motion to quash suggests First, a motion to quash is invariably filed by the accused to
that a motion to quash is a class in itself, with specific and closely- question the efficacy of the complaint or information filed
defined characteristics under the Rules of Court. A necessary against him or her (Sections 1 and 2, Rule 117); in
consequence is that where the grounds cited are those listed under contrast, a case may be provisionally dismissed at the
Section 3, then the appropriate remedy is to file a motion to quash, instance of either the prosecution or the accused, or both,
not any other remedy. Conversely, where a ground does not appear subject to the conditions enumerated under Section 8, Rule
under Section 3, then a motion to quash is not a proper remedy. A 117.26
motion for provisional dismissal may then apply if the conditions
required by Section 8 obtain.
Second, the form and content of a motion to quash are as
stated under Section 2 of Rule 117; these requirements do
A third feature, closely related to the second, focuses on the not apply to a provisional dismissal.
consequences of a meritorious motion to quash. This feature also
answers the question of whether the quashal of an information can
Third, a motion to quash assails the validity of the criminal
be treated as a provisional dismissal. Sections 4, 5, 6, and 7 of Rule
complaint or the criminal information for defects or
117 unmistakably provide for the consequences of a meritorious
defenses apparent on face of the information; a provisional
motion to quash. Section 4 speaks of an amendment of the complaint
dismissal may be grounded on reasons other than the
or information, if the motion to quash relates to a defect curable by
defects found in the information.
amendment. Section 5 dwells on the effect of sustaining the motion
to quash - the complaint or information may be re-filed, except for the
instances mentioned under Section 6. The latter section, on the other Fourth, a motion to quash is allowed before the
hand, specifies the limit of the re-filing that Section 5 allows – it arraignment (Section 1, Rule 117); there may be a
cannot be done where the dismissal is based on extinction of criminal provisional dismissal of the case even when the trial proper
liability or double jeopardy. Section 7 defines double jeopardy and of the case is already underway provided that the required
complements the ground provided under Section 3(i) and the consents are present.27
exception stated in Section 6.1awwphi1
Fifth, a provisional dismissal is, by its own terms,
Rather than going into specifics, Section 8 simply states when a impermanent until the time-bar applies, at which time it
provisional dismissal can be made, i.e., when the accused expressly becomes a permanent dismissal. In contrast, an
consents and the offended party is given notice. The consent of the information that is quashed stays quashed until revived; the
accused to a dismissal relates directly to what Section 3(i) and grant of a motion to quash does not per se carry any
Section 7 provide, i.e., the conditions for dismissals that lead to connotation of impermanence, and becomes so only as
double jeopardy. This immediately suggests that a dismissal under provided by law or by the Rules. In re-filing the case, what
Section 8 – i.e., one with the express consent of the accused – is not is important is the question of whether the action can still
intended to lead to double jeopardy as provided under Section 7, but be brought, i.e., whether the prescription of action or of the
nevertheless creates a bar to further prosecution under the special offense has set in. In a provisional dismissal, there can be
terms of Section 8. no re-filing after the time-bar, and prescription is not an
immediate consideration.
This feature must be read with Section 6 which provides for the
effects of sustaining a motion to quash – the dismissal is not a bar to To recapitulate, quashal and provisional dismissal are different
another prosecution for the same offense – unless the basis for the concepts whose respective rules refer to different situations that
dismissal is the extinction of criminal liability and double jeopardy. should not be confused with one another. If the problem relates to an
These unique terms, read in relation with Sections 3(i) and 7 and intrinsic or extrinsic deficiency of the complaint or information, as
compared with the consequences of Section 8, carry unavoidable shown on its face, the remedy is a motion to quash under the terms
implications that cannot but lead to distinctions between a quashal of Section 3, Rule 117. All other reasons for seeking the dismissal of
and a provisional dismissal under Section 8. They stress in no the complaint or information, before arraignment and under the
uncertain terms that, save only for what has been provided under circumstances outlined in Section 8, fall under provisional dismissal.
Sections 4 and 5, the governing rule when a motion to quash is
meritorious are the terms of Section 6. The failure of the Rules to Thus, we conclude that Section 8, Rule 117 does not apply to the
state under Section 6 that a Section 8 provisional dismissal is a bar reopening of the case that the RTC ordered and which the CA
to further prosecution shows that the framers did not intend a reversed; the reversal of the CA’s order is legally proper.
dismissal based on a motion to quash and a provisional dismissal to
be confused with one another; Section 8 operates in a world of its Pedro’s Motion to Quash
own separate from motion to quash, and merely provides a time-bar
The merits of the grant of the motion to quash that the RTC initially FACTS:
ordered is not a matter that has been ruled upon in the subsequent
proceedings in the courts below, including the CA. We feel obliged to Joel Pedro was charged in court for carrying a loaded firearm without
refer back to this ruling, however, to determine the exact terms of the authorization from the COMELEC a day before the elections. Pedro,
remand of the case to the RTC that we shall order. then filed a Motion to Quash after his Motion for Preliminary
Investigation did not materialize. The RTC granted the quashal
The grounds Pedro cited in his motion to quash are that the
Information contains averments which, if true, would constitute a The RTC reopened the case for further proceedings in which Pedro
legal excuse or justification [Section 3(h), Rule 117], and that the objected to citing Rule 117, Sec. 8 on provisional dismissal, arguing
facts charged do not constitute an offense [Section 3(a), Rule 117]. that the dismissal had become permanent.
We find from our examination of the records that the Information duly
charged a specific offense and provides the details on how the The public prosecutor manifested his express conformity with the
offense was committed.28 Thus, the cited Section 3(a) ground has no motion to reopen the case saying that the provision used applies
merit. On the other hand, we do not see on the face or from the where both the prosecution and the accused mutually consented to
averments of the Information any legal excuse or justification. The the dismissal of the case, or where the prosecution or the offended
cited basis, in fact, for Pedro’s motion to quash was a Comelec party failed to object to the dismissal of the case, and not to a
Certification (dated September 24, 2001, issued by Director Jose P. situation where the information was quashed upon motion of the
Balbuena, Sr. of the Law Department, Committee on Firearms and accused and over the objection of the prosecution. The RTC, thus,
Security Personnel of the Comelec, granting him an exemption from set Pedro’s arraignment date.
the ban and a permit to carry firearms during the election
period)29 that Pedro attached to his motion to quash. This COMELEC Pedro filed with the CA a petition for certiorari and prohibition to
Certification is a matter aliunde that is not an appropriate motion to nullify the RTC’s mandated reopening.
raise in, and cannot support, a motion to quash grounded on legal
excuse or justification found on the face of the Information. The CA, at first granted the reopening of the case but through
Significantly, no hearing was ever called to allow the prosecution to Pedro's Motion for Reconsideration, his argument that a year has
contest the genuineness of the COMELEC certification.30 passed by from the receipt of the quashal order, the CA's decision
was reversed.
Thus, the RTC grossly erred in its initial ruling that a quashal of the
Petitioner now argues using the same argument of the public
Information was in order. Pedro, on the other hand, also
prosecutor.
misappreciated the true nature, function, and utility of a motion to
quash. As a consequence, a valid Information still stands, on the
ISSUE: Whether the rule on provision dismissal is applicable.
basis of which Pedro should now be arraigned and stand trial.
RULING:
One final observation: the Information was not rendered defective by
the fact that Pedro was charged of violating Section 261(q) of the The SC granted the petition and remanded the case to the RTC.
Code, instead of Section 32 of R.A. No. 7166, which amended
Section 261(q); these two sections aim to penalize among others, the The SC differentiated Motion to Quash and Provisional Dismissal.
carrying of firearms (or other deadly weapons) in public places during Primarily, they are two separate concepts. In Motion to Quash, the
the election period without the authority of the Comelec. The Information itself has deficiency while in Provisional Dismissal, the
established rule is that the character of the crime is not determined Information has no deficiencies. It does not follow that a motion to
by the caption or preamble of the information or from the quash results in a provisional dismissal to which Section 8, Rule 117
specification of the provision of law alleged to have been violated; the applies.
crime committed is determined by the recital of the ultimate facts and
circumstances in the complaint or information31 Further, in Abenes v. In the case, the SC finds that the granting of the quashal of the RTC
Court of Appeals,32 we specifically recognized that the amendment had no merit on the ground that there is a legal excuse or justification
under Section 32 of R.A. No. 7166 does not affect the prosecution of in Pedro's offense. Pedro misappreciated the natures of a motion to
the accused who was charged under Section 261(q) of the Code. quash and provisional dismissal. As a consequence, a valid
Information still stands, on the basis of which Pedro should now be
WHEREFORE, we hereby GRANT the petition and accordingly arraigned and stand trial.
declare the assailed September 19, 2005 decision and the July 6,
2006 resolution of the Court of Appeals in CA-G.R. SP No. 80223
respectively MODIFIED and REVERSED. The case is remanded to
the Regional Trial Court of Boac, Marinduque for the arraignment
and trial of respondent Joel R. Pedro, after reflecting in the
Information the amendment introduced on Section 261(q) of the
Code by Section 32 of Republic Act No. 7166.