Title
Bogo-Medellin Milling Co., Inc. vs. Son
Case
G.R. No. 80268
Decision Date
May 27, 1992
Employee discharged as state witness in theft case; reinstatement as co-accused barred by double jeopardy after Supreme Court ruled discharge equated to acquittal.
theft
discharge as witness
double jeopardy
A

Case Summary (G.R. No. 167334)

Factual Background and Filing of the Criminal Charges

The qualified theft information alleged, in substance, that on or about 24 June 1984, in the Municipality of Medellin, Province of Cebu, Hermosa—together with other accused—took, stole, and carried away a Goodyear tire, and sold it for P4,718.00, to the damage and prejudice of Bogo-Medellin, with deliberate intent to gain, and with grave abuse of confidence. Separately, Tunacao was initially included in an information for simple theft involving the same stolen tire.

On 11 February 1986, approximately five months after the initial filing, Tunacao was dropped from the simple theft information (CBU-6173) and was instead charged as a co-accused with Hermosa in the qualified theft case (CBU-6172). An amended information was thus filed in CBU-6172 that incorporated Tunacao as co-accused.

Proceedings on Discharge of Hermosa as State Witness

After arraignment of the two accused, but before the prosecution could present its evidence, Bogo-Medellin filed on 14 April 1986 a manifestation informing the trial court of Hermosa’s willingness to act as a state witness and testify against his co-accused Tunacao. Bogo-Medellin then prayed for Hermosa’s discharge from CBU-6172.

Tunacao opposed the motion, insisting that the requirements under Rule 119 had not been complied with. Specifically, Tunacao argued that based on evidence presented during the preliminary investigation, Hermosa was the most guilty among the persons accused, and thus did not qualify for discharge to become a witness for the prosecution.

Judge Tomol initially denied the application. On Bogo-Medellin’s motion for reconsideration, however, Judge Tomol reversed his earlier stance and discharged Hermosa from the information for qualified theft.

Reinstatement After Nonappearance and Tunacao’s Motion

On 2 December 1986, the scheduled hearing for the qualified theft case proceeded, but Hermosa failed to appear before the trial court. The hearing was rescheduled from 20 January 1987 to 3 March 1987, by which time Judge Pedro C. Son had become the presiding judge of Branch 11.

At the 3 March 1987 hearing, Tunacao’s counsel manifested that a motion for reconsideration would be filed to reverse the order discharging Hermosa. Bogo-Medellin opposed the motion on the ground that reinstatement would place Hermosa back as an accused and would amount to double jeopardy, because Judge Tomol’s discharge had already resulted in Hermosa’s acquittal of the charge.

On 18 March 1987, Judge Son issued an order reinstating Hermosa as co-accused. The order directed that a warrant issue for Hermosa’s arrest and fixed bond at P12,000.00, cancelled the hearing on 2 April 1987, and directed that the hearing on 19 May 1987 proceed.

Bogo-Medellin moved for reconsideration of the reinstatement order, but the motion failed.

Issue Raised in the Petition for Certiorari

The petition for certiorari presented a single core issue: whether Judge Tomol’s order of 6 August 1986 discharging Hermosa as accused in CBU-6172 had the legal effect of acquitting him of the qualified theft charge, such that Judge Son’s later order reinstating him would subject Tunacao to a second jeopardy for the same offense.

Double Jeopardy Framework and Rule 119 Discharge Requirements

The Court examined the requisites for the defense of double jeopardy under Section 9 of Rule 117 of the Rules of Court, which require, among others, that there be a valid information, filed in a court of competent jurisdiction; that the accused has been arraigned and pleaded; that the accused was convicted or acquitted, or the case was dismissed or otherwise terminated without his express consent; and that the second offense is the same or necessarily includes the first.

As to discharge of an accused to become a witness, the Court set out the Rule 119 requirements, including that two or more persons are charged; the application is filed before the defense offers its evidence; there is an absolute necessity for the testimony; there is no other direct evidence available; the testimony can be substantially corroborated; the discharged defendant does not appear to be the most guilty; and the defendant has not been convicted of any offense involving moral turpitude.

The Court observed that not all of the listed requisites appeared to have been satisfied when Hermosa was discharged. In particular, it found that there was no showing of absolute necessity for Hermosa’s testimony because other witnesses were available. The Court noted that during preliminary investigation, Nonillo dela Cruz testified that Hermosa drove the truck carrying the stolen tire out of Bogo-Medellin’s premises and that after the tire was sold, dela Cruz received money from Tunacao and Hermosa. The Court also noted Hermosa’s admissions during the preliminary investigation regarding his participation and his testimony that Tunacao and he had planned the commission of the crimes.

It also appeared that Hermosa was at least as guilty as, if not more so than, Tunacao. Thus, the Court recognized procedural and substantive infirmities in the discharge.

Effect of Discharge Under Section 10 of Rule 119

Notwithstanding the apparent failure to comply with Rule 119 requirements, the Court held that the discharge of Hermosa must be treated as valid for the present purpose, namely, the determination of whether reinstatement triggered prohibited second jeopardy.

The Court relied on the effect provision of Section 10 of Rule 119, which states that the order of discharge “shall amount to an acquittal” and “shall be a bar to future prosecution for the same offense, unless the accused fails or refuses to testify against his co-accused in accordance with the sworn statement constituting the basis for his discharge.”

Judge Son interpreted Section 10 narrowly. He ruled that the acquittal-and-bar principle applied only if, and after, the discharged accused had actually testified, or if failure to testify was attributable to the prosecution. On that view, double jeopardy would not yet apply if Hermosa had not testified.

The Court rejected that construction. It held that once the discharge is effected, the legal consequence of acquittal follows and persists unless and until the discharged accused fails or refuses to testify against his co-accused in accordance with his sworn statement. The Court reasoned by analogy to civil law principles of a resolutory condition, in which the failure or refusal to testify lifts the defense of double jeopardy. It stressed that actual testimony was not a condition precedent to the availability of the constitutional bar.

The Court further declared that, absent issues of jurisdiction, witting or unwitting errors by the prosecution in requesting discharge and by the trial court in granting it do not deprive the discharged accused of the acquittal specified by Section 10 of Rule 119 and the constitutional guarantee against double jeopardy. It also noted that even an improper or mistaken discharge does not impair the discharged accused’s competence as a witness or render his testimony inadmissible.

Application to Hermosa’s Nonappearance and the Court’s Conclusion

Applying those principles, the Court looked for record evidence that Hermosa had failed or refused to testify against Tunacao pursuant to his sworn undertaking. It found no such evidence. The record sh

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