Different offense

A second prosecution for the same offense is forbidden because it will place the accused in double jeopardy. But if the same act gives rise to two or more separate and distinct offenses, can both offenses be prosecuted without placing the accused in double jeopardy? This is answered in this case of Albert.

Albert, was the administrative officer of the Department of Education, Culture and Sports (DECS). He was earlier accused of the crime of falsification of public document under Article 171 of the Revised Penal Code together with Brenda, its property inspector. Their alleged offense consisted of making it appear in an undated but signed inspection report that various furnitures purchased from a supplier (BIWP) amounting to P1,033,450 have all been delivered, when in truth and in fact no such complete delivery was made and inspected. Such report facilitated and justified the release of the full payment to BIWP, to the damage and prejudice of the government. The case was filed before the Regional Trial Court (RTC) and docketed as Criminal Case No. 38552-97.

The trial of this falsification case No. 38552-97 was suspended by the RTC upon joint motion of the two accused and the special prosecutors on the ground that the two accused are the same accused who are likewise charged before the Sandiganbayan (Case No. 23518) for violation of Section 3 (e) of the Anti-Graft Law by giving unwarranted benefits, advantage or preference to a party that cause undue injury to the government. Both the two accused and the prosecutors claimed that the primordial issue on the filing of these cases (Nos. 38552-97 and 23518) before different courts of separate jurisdiction are the same – the validity of the questioned inspection report. Both parties said that the case before the Sandiganbayan should take precedence because it is a collegial court. The RTC agreed and even went further by subsequently dismissing Criminal Case 38552-97 without prejudice to its re-filing later on.

After trial however, the Sandiganbayan acquitted Albert and Brenda in Case No. 23518 for violation of section 3 (e) of the Anti-Graft Law. So the prosecutors re-filed the case of falsification before the RTC. Albert then asked the RTC to quash or dismiss the re-filed information. He contended that the Sandiganbayan’s dismissal of Criminal Case No. 23518 barred the re-filing of the Information for falsification since it would place him twice in jeopardy. Was Albert correct?

NO. For double jeopardy to take place, the following requisites must concur: (1) the first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly terminated; and (3) the second jeopardy must be for the same offense as that in the first. The test for the third element is whether one offense is identical with the other or is an attempt to commit it or a frustration thereof; or whether one offense necessarily includes or is necessarily included in the other.

A comparison of the elements of the crime of falsification in Article 171 of the RPC and those of Section 3 (e) of the Anti-Graft law shows that there is neither identity nor exclusive inclusion between the offenses. Indeed the crime under Section 3 (e) shares two common elements with the felony under Art. 171 – that the offender is a public officer and that the act is related to the offender’s public position. However the latter offense is not necessarily inclusive of the former. The elements of a violation of section 3 (e) of RA 3019 fall outside the realm of those of falsification of a public document and vice versa. For there to be double jeopardy, the elements of one offense should – like the ribs of an umbrella – ideally encompass those of the other. At most, the two offenses may be considered as two conjoined umbrellas with one or two common ribs. While the two charges stem from the same transaction, it has been consistently held that the same act may give rise to two or more distinct and separate offenses. No double jeopardy attaches, as long as there is a variance between the elements of the offenses charged. The constitutional right against double jeopardy protects from a prosecution for the same offense, not from a different one (Suero vs. People, G.R. 156408, January 31, 2005).

E-mail: [email protected]