5/8/2021 PHILIPPINE REPORTS ANNOTATED VOLUME 085

[No. L-3580. March 22, 1950]

CONRADO MELO, petitioner and appellant, vs. THE

PEOPLE OF THE PHILIPPINES and THE COURT OF
FIRST INSTANCE OF RIZAL, respondents and appellees.

1. CRIMINAL PROCEDURE, RULES OF; DOUBLE

JEOPARDY; THE SAME OR IDENTICAL OFFENSE.—
One who has been charged with an offense cannot be
again charged with the same or identical offense though
the latter be lesser or greater than the former. "As the
Government cannot begin with the highest, and then go
down step by step, bringing the man into jeopardy for
every dereliction included therein, neither can it begin
with the lowest and ascend to the highest with precisely
the same result."

2. ID.; ID.; SECOND OFFENSE NOT IN EXISTENCE;

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

3. ID.; ID.; ID.; ID.—"Where after the first prosecution a new

fact supervenes f or which the def endant is responsible,
which changes the character of the offense and, together
with the facts existing at the time, constitutes a new and
distinct offense" (15 Am. Jur., 66), the accused cannot be
said to be in second jeopardy if indicted for the new
offense.

4. ID.; ID.; "STARE DECISIS"; FORMER PRECEDENTS

OVERRULED.—The ruling laid down in People vs. Tarok
(73 Phil., 260), as followed in People vs. Villasis, G. R. No.
L-1218, promulgated September 15, 1948 (Supp. to Off.
Gaz., January, 1950, Vol. 46, No. 1, p. 268), is expressly

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repealed. Such ruling is not only contrary to the real

meaning of "double jeopardy" as intended by the
Constitution and by the Rules of Court, but is also
obnoxious to the administration of justice.

ORIGINAL ACTION in the Supreme Court. Prohibition.

The facts are stated in the opinion of the Court.
Jose A. Fojas for petitioner.
First Assistant Solicitor General Roberto A. Gianzon and
Solicitor Martiniano P. Vivo for respondents.
767

VOL. 85, MARCH 22, 1950 767

Melo vs. People

MORAN, C. J.:

Petitioner Conrado Melo was charged in the Court of First

Instance of Rizal, on December 27, 1949, with frustrated
homicide, for having allegedly inflicted upon Benjamin
Obillo, with a kitchen knife and with intent to kill, several
serious wounds on different parts of the body, requiring
medical attendance for a period of more than 30 days, and
incapacitating him from performing his habitual labor for
the same period of time. On December 29,1949, at eight
o'clock in the morning, the accused pleaded not guilty to
the offense charged, and at 10:15 in the evening of the
same day Benjamin Obillo died from his wounds. Evidence
of death was available to the prosecution only on January
3, 1950, and on the following day, January 4, 1950, an
amended information was filed charging the accused with
consummated homicide. The accused filed a motion to
quash the amended inf formation alleging double jeopardy,
motion that was denied by the respondent court; hence, the
instant petition for prohibition to enjoin the respondent
court from further entertaining the amended information.
Brushing aside technicalities of procedure and going into
the substance of the issues raised, it may readily be stated
that the amended information was rightly allowed to stand.
Rule 106, section 13, 2d paragraph, is as follows:

"If it appears at any time before judgment that a mistake has

been made in charging the proper offense, the court may dismiss
the original complaint or information and order the filing of a new
one charging the proper offense, provided the defendant would not
be placed thereby in double jeopardy, and may also require the
witnesses to give bail for their appearance at the trial."

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Under this provision, it was proper for the court to dismiss

the first information and order the filing of a new one for
the reason that the proper offense was not charged in the
former and the latter did not place the accused in a second
jeopardy for the same or identical offense.
"No person shall be twice put in jeopardy of punishment
f or the same same offense," according to Article III, section

768

768 PHILIPPINE REPORTS ANNOTATED

Melo vs. People

1 (20) of our Constitution. The rule of "double jeopardy"

had a settled meaning in this jurisdiction at the time our
Constitution was promulgated. It meant that when a
person is charged with an offense and the case is
terminated either by acquittal or conviction or in any other
manner without the consent of the accused, the latter
cannot again be charged with the same or identical offense.
This principle is founded upon the law of reason, justice
and conscience. It is embodied in the maxim of the civil law
non bis in idem, in the common law of England, and
undoubtedly in every system of jurisprudence, and instead
of having specific origin it simply always existed. It found
expression in the Spanish law and in the Constitution of
the United States and is now embodied in our own
Constitution as one of the fundamental rights of the
citizens.
It must be noticed that the protection of the
Constitutional inhibition is against a second jeopardy for
the same offense, the only exception being, as stated in the
same Constitution, that "if an act is punished by a law and
an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act."
The phrase same offense, under the general rule, has
always been construed to mean not only that the second
offense charged is exactly the same as the one alleged in
the first information, but also that the two offenses are
identical. There is identity between the two offenses when
the evidence to support a conviction for one offense would
be sufficient to warrant a conviction for the other. This so-
called "same-evidence test" which was found to be vague
and deficient, was restated by the Rules of Court in a
clearer and more accurate form. Under said Rules there is
identity between two offenses not only when the second
offense is exactly the same as the first, but also when the
second offense is an attempt to commit the first or a
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frustration thereof, or when it necessarily includes or is

necessarily included in the offense charged in the first
information. (Rule 113, sec. 9; U. S. vs. Lim Suco, 11

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VOL. 85, MARCH 22, 1950 769

Melo vs. People

Phil., 484; U. S. vs. Ledesma, 29 Phil., 431; People vs.

Martinez, 55 Phil., 6.) In this connection, an offense may be
said to necessarily include another when some of the
essential ingredients of the former as alleged in the
information constitute the latter. And vice-versa, an offense
may be said to be necessarily included in another when all
the ingredients of the former constitute a part of the
elements constituting the latter (Rule 116, sec. 5.) In other
words, one who has been charged with an offense cannot be
again charged with the same or identical offense though
the latter be lesser or greater than the former. "As the
Government cannot begin with the highest, and then go
down step by step, bringing the man into jeopardy for every
dereliction included therein, neither can it begin with the
lowest and ascend to the highest with precisely the same
result." (People vs. Cox, 107 Mich., 435, quoted with
approval in U. S. vs. Lim Suco, 11 Phil., 484; see also U. S.
vs. Ledesma, 29 Phil., 431 and People vs. Martinez, 55
Phil., 6, 10.)
This rule of identity does not apply, however, when the
second offense was not in existence at the time of the first
prosecution, for the simple reason that in such case there is
no possibility for the accused, during the first prosecution,
to be convicted for an offense that was then inexistent.
Thus, where the accused was charged with physical
injuries and after conviction the injured person dies, the
charge for homicide against the same accused does not put
him twice in jeopardy. This is the ruling laid down by the
Supreme Court of the United States in the Philippine case
of Diaz vs. U. S., 223 U. S., 442, followed by this Court in
People vs. Espino, G. R. No. 46123, 69 Phil., 471, and these
two cases are similar to the instant case. Stating it in
another form, the rule is that "where after the first
prosecution a new fact supervenes for which the defendant
is responsible, which changes the character of the offense
and, together with the facts existing at the time,
constitutes a new and distinct offense" (15 Am. Jur., 66),
the accused

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770

770 PHILIPPINE REPORTS ANNOTATED

Melo vs. People

cannot be said to be in second jeopardy if indicted for the

new offense.
This is the meaning of "double jeopardy" as intended by
our Constitution f or it was the one prevailing in the
jurisdiction at the time the Constitution was promulgated,
and no other meaning could have been intended by our
Rules of Court.
Accordingly, an offense may be said to necessarily
include or to be necessarily included in another offense, f or
the purpose of determining the existence of double
jeopardy, when both offenses were in existence during the
pendency of the first prosecution, for otherwise, if the
second offense was then inexistent, no jeopardy could
attach therefor during the first prosecution, and
consequently a subsequent charge for the same cannot
constitute second jeopardy. By the very nature of things
there can be no double jeopardy under such circumstance,
and our Rules of Court cannot be construed to recognize the
existence of a condition where such condition in reality
does not exist. General terms of a statute or regulation
should be so limited in their application as not to lead to
injustice, oppression, or an absurd consequence. It will
always, therefore, be presumed that exceptions have been
intended to their language which would avoid results of
this character. (In re Allen, 2 Phil., 641.)
When the Rules of Court were drafted, there was
absolutely no intention of abandoning the ruling laid down
in the Diaz case, and the proof of this is that although the
said Rules were approved on December 1939, yet on
January 30, 1940, this Court decided the Espino case
reiterating therein the Diaz doctrine. Had that doctrine
been abandoned deliberately by the Rules of Court as being
unwise, unjust or obnoxious, logically it would have
likewise been repudiated in the Espino case by reason of
consistency and as a matter of justice to the accused, who
should in consequence have been acquitted instead of being
sentenced to a heavy penalty upon the basis of a doctrine
that had al-
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VOL. 85, MARCH 22, 1950 771

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Melo vs. People

ready been found to be wrong. There was absolutely no

reason to preclude this Court from repealing the doctrine
in. the Espino case, for as a mere doctrine it could be
repealed at any time in the decision of any case where it is
invoked. The fact that it was not so abandoned but
reiterated, is a clear proof that the mind of the Court, even
after the approval of the Rules, was not against but in
favor of said doctrine.
For these reasons we expressly repeal the ruling laid
down in People vs. Tarok, 73 Phil., 260, as followed in
People vs. Villasis, 46 Off. Gaz. (Supp. to No. 1), p. 268.
Such ruling is not only contrary to the real meaning of
"double jeopardy" as intended by the Constitution and by
the Rules of Court but is also obnoxious to the
administration of justice. If, in obedience to the mandate of
the law, the prosecuting officer files an information within
six hours after the accused is arrested, and the accused
claiming his constitutional right to a speedy trial is
immediately arraigned, and later on a new fact supervenes
which, together with the facts existing at the time,
constitutes a more serious offense, under the Tarok ruling,
no way is open by which the accused may be penalized in
proportion to the enormity of his guilt. Furthermore, such a
ruling may open the way to suspicions or charges of
collusion between the prosecuting officers and the accused,
to the grave detriment of public interest and confidence in
the administration of justice, which cannot happen under
the Diaz ruling.
Before closing, it is well to observe that when a person
who has already suffered his penalty for an offense, is
charged with a new and greater offense under the Diaz
doctrine herein reiterated, said penalty may be credited to
him in case of conviction for the second offense.
For all the foregoing, the petition is denied, and the
respondent court may proceed to the trial of the criminal
case under the amended information. Without costs.

Ozaeta, Pablo, Padilla, Tuason, Montemayor, and

Reyes, JJ., concur.

772

772 PHILIPPINE REPORTS ANNOTATED

Cornejo vs. Tan

BENGZON, J., concurring and dissenting:

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I agree that People vs. Tarok and People vs. Villasis should
be overruled. But I submit that the effect of such overruling
should be prospective, in the sense that it should not affect
the herein petitioner who has relied thereon in presenting
his case. (Moncado vs. Tribunal del Pueblo, 45 Off. Gaz., p.
2850.)
Petition denied.

________________

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