Article 315. Swindling (estafa).

- Any person who shall defraud another by

any of the means mentioned hereinbelow shall be punished by:
1st. The penalty of prision correccional in its maximum period to prision
mayor in its minimum period, if the amount of the fraud is over 12,000
pesos but does not exceed 22,000 pesos, and if such amount exceeds the
latter sum, the penalty provided in this paragraph shall be imposed in its
maximum period, adding one year for each additional 10,000 pesos; but the
total penalty which may be imposed shall not exceed twenty years. In such
cases, and in connection with the accessory penalties which may be
imposed under the provisions of this Code, the penalty shall be termed
prision mayor or reclusion temporal, as the case may be.
2nd. The penalty of prision correccional in its minimum and medium
periods, if the amount of the fraud is over 6,000 pesos but does not exceed
12,000 pesos;
3rd. The penalty of arresto mayor in its maximum period to prision
correccional in its minimum period if such amount is over 200 pesos but
does not exceed 6,000 pesos; and
4th. By arresto mayor in its maximum period, if such amount does not
exceed 200 pesos, provided that in the four cases mentioned, the fraud be
committed by any of the following means:
1. With unfaithfulness or abuse of confidence, namely:
(a) By altering the substance, quantity, or quality or anything of
value which the offender shall deliver by virtue of an obligation to
do so, even though such obligation be based on an immoral or
illegal consideration.
(b) By misappropriating or converting, to the prejudice of another,
money, goods, or any other personal property received by the
offender in trust or on commission, or for administration, or under
any other obligation involving the duty to make delivery of or to
return the same, even though such obligation be totally or
partially guaranteed by a bond; or by denying having received
such money, goods, or other property.
(c) By taking undue advantage of the signature of the offended
party in blank, and by writing any document above such signature
in blank, to the prejudice of the offended party or of any third
person.

2. By means of any of the following false pretenses or fraudulent acts

executed prior to or simultaneously with the commission of the fraud:
(a) By using fictitious name, or falsely pretending to possess
power, influence, qualifications, property, credit, agency, business
or imaginary transactions, or by means of other similar deceits.
(b) By altering the quality, fineness or weight of anything
pertaining to his art or business.
(c) By pretending to have bribed any Government employee,
without prejudice to the action for calumny which the offended
party may deem proper to bring against the offender. In this case,
the offender shall be punished by the maximum period of the
penalty.
(d) By post-dating a check, or issuing a check in payment of an
obligation when the offender therein were not sufficient to cover
the amount of the check. The failure of the drawer of the check to
deposit the amount necessary to cover his check within three (3)
days from receipt of notice from the bank and/or the payee or
holder that said check has been dishonored for lack of
insufficiency of funds shall be prima facie evidence of deceit
constituting false pretense or fraudulent act. (As amended by R.A.
4885, approved June 17, 1967.)
(e) By obtaining any food, refreshment or accommodation at a
hotel, inn, restaurant, boarding house, lodging house, or
apartment house and the like without paying therefor, with intent
to defraud the proprietor or manager thereof, or by obtaining
credit at hotel, inn, restaurant, boarding house, lodging house, or
apartment house by the use of any false pretense, or by
abandoning or surreptitiously removing any part of his baggage
from a hotel, inn, restaurant, boarding house, lodging house or
apartment house after obtaining credit, food, refreshment or
accommodation therein without paying for his food, refreshment
or accommodation.
3. Through any of the following fraudulent means:
(a) By inducing another, by means of deceit, to sign any
document.
(b) By resorting to some fraudulent practice to insure success in a
gambling game.

(c) By removing, concealing or destroying, in whole or in part, any

court record, office files, document or any other paper
Article 25. Penalties which may be imposed. - The penalties which may be
imposed according to this Code, and their different classes, are those
included in the following:
Scale
Principal Penalties
Capital punishment:
Death.
Afflictive penalties:
Reclusion perpetua,
Reclusion temporal,
Perpetual or temporary absolute disqualification,
Perpetual or temporary special disqualification,
Prision mayor.
Correctional penalties:
Prision correccional,
Arresto mayor,
Suspension,
Destierro.
Article 26. When afflictive, correctional, or light penalty. - A fine, whether
imposed as a single of as an alternative penalty, shall be considered an
afflictive penalty, if it exceeds 6,000 pesos; a correctional penalty, if it does
not exceed 6,000 pesos but is not less than 200 pesos; and a light penalty if
it less than 200 pesos
Article 90. Prescription of crime. - Crimes punishable by death, reclusion
perpetua or reclusion temporal shall prescribe in twenty years.
Crimes punishable by other afflictive penalties shall prescribe in fifteen
years.
Those punishable by a correctional penalty shall prescribe in ten years; with
the exception of those punishable byarresto mayor, which shall prescribe in
five years.

The crime of libel or other similar offenses shall prescribe in one year.
The crime of oral defamation and slander by deed shall prescribe in six
months.
Light offenses prescribe in two months.
When the penalty fixed by law is a compound one, the highest penalty shall
be made the basis of the application of the rules contained in the first,
second and third paragraphs of this article. (As amended by RA 4661,
approved June 19, 1966)

ESCUDERO, et al. vs. CA, et al.

FIRST DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court
dated JUL 17 2000.
G.R. No. 141638 (Spouses Escudero, et al. vs. Court of Appeals, Regional
Trial Court, Branch 54, Lapu-Lapu City and People of the Philippines.)
Petitioners are the accused in Criminal Case No. 012432-L for the crime of
Estafa punishable under paragraph 1, Article 316 of the Revised Penal Code
before Regional Trial Court, Branch 54, Lapu-Lapu City. After the prosecution
rested its case, the accused filed a motion to dismiss on the ground that the
crime charged had already prescribed.
The alleged second deed of sale (Exh. C), which the prosecution believes to
have constituted the crime of estafa, was allegedly executed on June 30,
1983 and duly registered with the Register of Deeds on August 1, 1983. The
complaint was filed with the prosecutor on November 6, 1992 and the
Information was filed on March 22, 1983. The petitioners (accused therein)
that under Article 90 of the Revised Penal Code, crimes punishable
by arresto mayor prescribed in five years. Here, since the case was
instituted nine (9) years after the discovery of the crime, the crime has
already prescribed.
The prosecution opposed the motion stressing that the prescriptive period in
this case is to be determined on the basis of the fine imposable. Considering
that the fine is more than six thousand pesos (P6,000.00), prescription,
according to Article 90 in relation to Article 26 of the Revised Penal Code, is
fifteen (15) years. Thus, the crime charged has not yet prescribed.
In an Order dated 15 March 1999, the Regional Trial Court, acting upon the
motion, dismissed the case. However, upon motion for reconsideration filed
by the prosecution, the trial court in an order dated 30 April 1999 set aside
its previous order of dismissal and set the case for trial for the presentation

of the evidence for the defense. The accused filed a motion for
reconsideration of the Order dated 30 April 1999. The trial court denied the
motion. Not satisfied, the accused filed a petition for certiorari under Rule
65 with the Court of Appeals.
On January 20, 2000, the Court of Appeals rendered a decision denying the
petition and affirming the ruling of the trial court that prescription of the
crime had not set in. Hence, the accused is now before this Court through a
petition for review on certiorari under Rule 45.
The legal issues presented before this Court are the following:
1. Whether or not the crime of Estafa under Paragraph 1,
Article 316 of the Revised Penal Code has already
prescribed.
2. Whether or not the dismissal by the Regional Trial
Court constituted double jeopardy?
We hold in the negative on both issues.
ON THE FIRST ISSUE:
In essence, the issue of prescription of the crime hinges on the correct
interpretation of Article 90 in relation to Article 26 of the Revised Penal
Code. If the proper prescriptive period for the crime of Estafa under
paragraph 1, Article 316 of the Revised Penal Code is five years from the
discovery of the crime as argued by the petitioners, the crime has already
prescribed. On the contrary, if the prescriptive period is fifteen (15) years as
ruled by the trial court and affirmed by the Court of Appeals, then the crime
charged has not yet prescribed.
To support their claim that the crime has prescribed, the petitioners
advanced three arguments:
One, the amount of the imposable fine is still
indeterminate as the basis merely of the prosecution for
such determination is the allegation in the information
but the determination of the fine would still depend on
the evidence of the amount of damage which lies on the
discretion of the judge.
Two, the classification of fine under Article 26 RPC as
afflictive, correctional or light penalty is applicable only if
the fine is imposed as single or as an alternative penalty.

However, the same provision is silent when the fine is

imposed as a compound penalty, such as in the case at
bar. Petitioners submit there is no basis for applying the
classification of fine as it is only true if the fine is
imposed as single or alternative penalty. Article 90 RPC is
not applicable since the classification of fine is the
function of Article 26 RPC. Article 90 merely provides for
the prescription of the crime and not classification.
Three, the highest penalty mentioned in the last
paragraph of Article 90 could mean no other than the
"graver of the penalties." Imprisonment is graver since it
involves deprivation of one's personal liberty in contrast
with fine which may be dispensed with where the accused
is insolvent except if the judgment itself provides for
subsidiary imprisonment for failure to pay fine but even
then said imprisonment could not exceed the limitations
imposed by law.1 Petition, pp. 5-6;Rollo, pp. 12-13.
The contentions are without merit.
This Court notes that the penalty for Article 316 (2)2 Revised Penal Code,
Art. 316 provides, thus:
ART. 316. Other forms of swindling. - The penalty of arresto mayor in its
minimum and medium periods and fine of not less than the value of the
damage caused and not more than three times such value, shall be imposed
upon:
xxx
2. Any person who, knowing that real property is emcumbered, shall dispose
of the same, although such encumbrance be not recorded.
x x x of the Revised Penal Code is the compound penalty of both
imprisonment and fine. Corollarily, the last paragraph of Article 903 Revised
Penal Code, Art. 90 last paragraph (as amended by R.A.. No. 4661 [1996])
provides, thus:
When the penalty fixed by law is compound one, the highest penalty shall
be made the basis of the application of the rules contained in the first,
second and third paragraph of this article. of the Revised Penal Code
provides the rule to be applied in compound penalties. Accordingly, in
determining the prescriptive period of a crime punishable by both
imprisonment and fine, whichever penalty is the higher should be the basis

in computing the period of prosecution. The reason for this is that when the
penalty of imprisonment and fine is imposed in the compound, as
contradistinguished from a single or an alternative penalty, neither penalty
is subordinate to the other. In which case, the higher penalty based on the
classification under the Revised Penal Code should be the basis for
computing the prescription period of the crime. Article 26 provides the
classification, while article 90 indicates when such classification should be
applied.
In People v. Crisostomo,4 5 SCRA 1048, 1053 (1962). we held that the
Revised Penal Code contains no provision which states that a fine when
imposed in conjunction with an imprisonment is subordinate to the main
penalty. In conjunction with imprisonment, a fine is as much a principal
penalty as the imprisonment. Neither is subordinate to the other. On the
contrary, in the instant case, the fine is higher than the imprisonment
because it is afflictive in view of the amount involved and, as stated
heretofore, it is the basis for computation to determine the prescriptive
period. We conclude, therefore, that where the Revised Penal Code provides
a penalty consisting of imprisonment and fine, whichever penalty is the
higher, should be the basis in computing the period of prescription.
Under Article 25 of the Revised Penal Code, the penalty of arresto mayor is
a correctional penalty. Under Article 26 of the Revised Penal Code, Fine is
considered an afflictive penalty if it exceeds six thousand pesos (P6,000.00).
The value of the damage caused is nine thousand six hundred ninety-nine
pesos) 9,695.00) which represents the consideration of the prior sale.
Considering that the fine imposable is the higher penalty, it shall be the
basis for computing the prescriptive period of the crime. Thus, the proper
prescriptive period for the crime charges is fifteen (15) years.
The alleged Estafa was allegedly committed by the accused-petitioners on
30 June 1983. The deed of sale was recorded with the Register of Deeds on
August 1, 1983. The criminal case was instituted on November 6, 1992 upon
the filing of the complaint with the prosecutor.5 See Rules of Court, Section
1, last paragraph, Rule 110; In Francisco v. Court of Appeals , 122 SCRA 483,
this Court has ruled to the effect that the filing of a complaint with the
fiscal's office also interrupts the period of prescription of the offenses
charged. From August 1, 1983 to November 6, 1992, only nine years had
elapsed. Since the case was filed within the fifteen-year prescriptive period,
the crime charged has not prescribed. Hence, the Court of Appeals
committed no reversible error.
ON THE SECOND ISSUE:

Petitioners argue that when the case was dismissed, the order of the trial
court to revive the case upon reconsideration such action amounted to
double jeopardy. In arguing this point, the petitioners rely on Section 6, Rule
117 of the Rules of Court which provides, thus:
Order sustaining the motion to quash not a bar to
another prosecution; exception. An order sustaining the
motion to quash is not a bar to another prosecution for
the same offense unless the motion was based on the
grounds specified in Section 3, Subsection (f) and (h) of
this rule.
The petitioners further contend that the grounds mentioned as bar to
another prosecution are that: first, the criminal action or liability has been
extinguished; and, second, the accused has been previously convicted or in
jeopardy. Moreover, they stress that the rule on waiver to objection which
are grounds of a motion to quash does not apply when prescription becomes
a defense and extinguishes criminal liability.6 Citing Magat v. People, 210
SCRA 21,32 (1991). The petitioners then conclude that the dismissal of a
case, even assuming arguendo, it is erroneous, constitutes an acquittal
which bars any review or appeal or another jeopardy.
We are not persuaded.
The rule on double jeopardy has a settled meaning in this jurisdiction. It
means 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.7 Melo v. People, 85 Phil. 766, 768 (1950). The
purpose is to set the effects of the first prosecution forever at rest, assuring
the accused that he shall not thereafter be subjected to the danger and
anxiety
of
a
second
charge
against
him
for
the
same
offense.8 Caes v. Intermediate Appelleate Court, 179 SCRA 54, 59-60
(1989).
It must be noted that an acquittal is different from a dismissal
notwithstanding the fact that there may be instances when an order of
dismissal of a criminal case amounts to an acquittal.9 In People v.Salico, 84
Phil. 722, 732 (1949). In this case We explained that the only case in which
the word dismissal is commonly but not correctly used, instead of the proper
term of acquittal, is when, after the prosecution has presented all its
evidence, the defendant moves for the dismissal and the court dismisses
the case on the ground that the evidence fails to show beyond reasonable
doubt that the defendant is guilty; for is such case, the dismissal is in reality

an acquittal because the case is decided on the merits. However, in the

case at bar, the dismissal is not an acquittal because is was not based on
the merits of the case but on the ground that the crime charged has already
prescribed. Acquittal is always based on the merits, that is, the defendant is
acquitted because the evidence does not show defendant's guilt beyond
reasonable doubt; but dismissal does not decide the case on the merits or
that the defendants is not guilty of the offense charged.10 Ibid.
In the case at bar, the dismissal did not constitute a first jeopardy within the
purview of the rule against double jeopardy because of two reasons: first,
the dismissal was upon motion of, and, hence, with the consent of the
accused; and second, the order of dismissal was based on an erroneous
finding of prescription of the crime and not on the merits of the case.
It should be stressed that the Motion to Dismiss was filed by petitioners. The
dismissal and/or termination of the Estafa case being with their voluntary
and
express
consent,
double
jeopardy
has
not,
therefore,
attached.11 People v. Gines, 197 SCRA 481 (1991); Que v. Cosico, 177 SCRA
410 (1989); People v. Jardin, 124 SCRA 167 (1983); People v. Pilpa, 79 SCRA
81 (1977); and People v.Cuervo, 104 SCRA 312 (1981). There are only two
instances when double jeopardy attaches even if the dismissal of a criminal
case was with the express consent of the accused or upon his motion. These
are (i) insufficiency of evidence and (ii) denial of the right to a speedy
trial.12 People v. Ban, 239 SCRA 48, 55 (1994); People v. Quizada, 160 SCRA
516 (1988). None of these exceptions is obtaining in the instant case.
The cases cited by the petitioners supporting the argument that an
erroneous acquittal bars any review or appeal or another jeopardy are all
premised on the fact that the erroneous judgment of acquittal by the trial
court was issued on the merit of the case.
The motion to dismiss filed by the petitioners was based on the ground of
prescription and not on the alleged insufficiency of the evidence against
them. The trial court, then, did not dwell on the merits of the case when it
issued its Order dated 15 March 1999. Even the trial court in reconsidering
its previous order emphasized in its Order dated 30 April 1999 that the
motion to dismiss dated January 8, 1999 was filed by the accused and that
the (trial) Court did-not resolve on the merits but on the alleged prescription
of the instant case.
In the case at bar, the order of dismissal was not yet final and executory
when the motion for reconsideration was filed by the prosecution. The
doctrine of double jeopardy does not attach until the period for appeal has
expired. The matter relative to the time when jeopardy attaches is largely

statutory and Section 7 of Rule 20 of the Rules of Court, in express and plain
language,
fixes
such
time
at
the
expiration
of
fifteen
days.13 People v. Tamayo, G.R. No. L-2233, April 25, 1950. Thus, when the
trial court took cognizance of that motion it still had jurisdiction to do so and
the action thereon was a continuation of the case, not an appeal thereof or
a new trial. In sum, there is no double jeopardy because neither the
proceeding in the trial court had terminated with finality at the time when
the motion for reconsideration was filed so as to give rise to a first jeopardy
nor was there a second jeopardy in the form of an appeal or a new trial. But
most significantly, the order of dismissal was not based on the merits of the
case.
WHEREFORE, the petition is DENIED. Let this case be REMANDED to the
Regional Trial Court, Branch 54, Lapu-Lapu City, for the presentation of the
evidence for the defens