GR L 13709; (January, 1959) (Digest)
G.R. No. L-13709; January 30, 1959
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. ARTURO TOGLE alias VICTOR TOGLE, defendant-appellee.
FACTS
On May 8, 1957, Arturo Togle was charged with qualified theft. The case was postponed several times at the instance of both the prosecution and the defense, and once by the court. At the hearing on December 27, 1957, the fiscal requested a second postponement because only one witness was available. Counsel for the accused objected to further postponement, invoking the right to a speedy trial, and stated: “And as the prosecution does not have witnesses or evidence against the accused, until the fiscal will be ready to enter into trial, Your Honor.” The court, noting the several postponements and the prosecution’s inability to proceed due to the absence of its most important witness, denied the motion for postponement and dismissed the case provisionally. On January 20, 1958, the city fiscal filed a new information charging the accused with the same offense. The accused filed a motion to quash, claiming double jeopardy. The city fiscal opposed, contending there was no double jeopardy because the first case was dismissed upon the express request of the accused. The trial court sustained the motion to quash and dismissed the case.
ISSUE
Whether the filing of the second information for the same offense places the accused in double jeopardy.
RULING
No. The order of the trial court dismissing the second case is set aside, and the case is remanded for further proceedings. Under Section 9, Rule 113 of the Rules of Court, a dismissal without the consent of the accused bars another prosecution for the same offense, but a dismissal upon his request or with his express consent does not. In this case, the first dismissal was made provisionally and upon the express request of the accused’s counsel when he stated the case should be dismissed “until the fiscal will be ready to enter into trial.” Therefore, the subsequent prosecution does not constitute double jeopardy. The accused is deemed to have waived the defense of double jeopardy.