[G.R. Nos. 115008-09.

July 24, 1996]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANIEL QUIJADA Y

CIRCULADO, accused-appellant.

DECISION
DAVIDE, JR., J.:

Accused-appellant Daniel Quijada appeals from the decision of 30 September 1993 of

Branch 1
of the Regional Trial Court (RTC) of Bohol convicting him of the two offenses separately
charged in two informations, viz., murder under Article 248 of the Revised Penal Code and
illegal possession of firearm in its aggravated form under P.D. No. 1866, and imposing upon him
the penalty of reclusion perpetua for the first crime and an indeterminate penalty ranging from
seventeen years, four months, and one day, as minimum, to twenty years and one day, as
maximum, for the second crime.[1]
The appeal was originally assigned to the Third Division of the Court but was later referred
to the Court en banc in view of the problematical issue of whether to sustain the trial court's
judgment in conformity with the doctrine laid down in People vs. Tac-
an,[2] People vs. Tiozon,[3] People vs. Caling,[4] People vs. Jumamoy,[5] People vs. Deunida,[6] Pe
ople vs. Tiongco,[7]People vs. Fernandez,[8] and People vs. Somooc,[9] or to modify the judgment
and convict the appellant only of illegal possession of firearm in its aggravated form pursuant
to People vs.Barros,[10] which this Court (Second Division) decided on 27 June 1995.
The informations read as follows:

CRIMINAL CASE NO. 8178

That on or about the 30th day of December, 1992, in the municipality of Dauis, province of
Bohol, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused,
with intent to kill and without any justifiable motive, with treachery and abuse of superior
strength, the accused being then armed with a .38 cal. revolver, while the victim was unarmed,
suddenly attacked the victim without giving the latter the opportunity to defend himself, and with
evident premeditation, the accused having harbored a grudge against the victim a week prior to
the incident of murder, did then and there willfully, unlawfully and feloniously attack, assault
and shoot Diosdado Iroy y Nesnea with the use of the said firearm, hitting the latter on his head
and causing serious injuries which resulted to his death; to the damage and prejudice of the heirs
of the deceased.

Acts committed contrary to the provision of Art. 248 of the Revised Penal Code, with
aggravating circumstance of nighttime being purposely sought for or taken advantage of by the
accused to facilitate the commission of the crime.[11]
 CRIMINAL CASE NO. 8179

That on or about the 30th day of December, 1992, in the municipality of Dauis, province of
Bohol, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused,
did then and there willfully, unlawfully and feloniously keep, carry and have in his possession,
custody and control a firearm (hand gun) with ammunition, without first obtaining the necessary
permit or license to possess the said firearm from competent authorities which firearm was
carried by the said accused outside of his residence and was used by him in committing the crime
of Murder with Diosdado Iroy y Nesnea as the victim; to the damage and prejudice of the
Republic of the Philippines.

Acts committed contrary to the provisions of P.D. No. 1866.[12]

Having arisen from the same incident, the cases were consolidated, and joint hearings were
had. The witnesses presented by the prosecution were SPO4 Felipe Nigparanon (Acting Chief of
Police of Dauis, Bohol), SPO Gondalino Inte, Dr. Greg Julius Sodusta, Rosita Iroy, and Teodula
Matalinis. The defense presented as witnesses Alfred Aranzado, Edwin Nistal, Julius Bonao,
Saturnino Maglupay, and the appellant himself.
The evidence for the prosecution is summarized by the Office of the Solicitor General in the
Brief for the Appellee as follows:
On 25 December 1992, a benefit dance was held at the Basketball Court of Barangay
Tinago, Dauis, Bohol. On this occasion, a fist fight occurred between Diosdado Iroy and
appellant Daniel Quijada as the latter was constantly annoying and pestering the former's
sister. Rosita Iroy (TSN, Crim. Cases 8178 & 8179, June 8, 1993, pp. 32-35; August 5, 1993, pp.
14-15).
In the evening of 30 December 1992, another benefit dance/disco was held in the same
place. This benefit dance was attended bv Rosita Iroy, Ariel Dano, Teodora Badayos, Ado
Aranzado, Largo Iroy and Diosdado Iroy.
While Rosita Iroy and others were enjoying themselves inside the dancing area, Diosdado
Iroy, Eugene Nesnea and Largo Iroy, who were then sitting at the plaza (the area where they
positioned themselves was duly lighted and was approximately four meters from the dancing
hall), decided to just watch the activities in the dance hall directly from the plaza.
After dancing, Rosita Iroy decided to leave and went outside the gate of the dance
area. Subsequently, or around 11:30 of the same night, while facing the direction of Diosdado
Iroy, Rosita lroy saw appellant surreptitiously approach her brother Diosdado Iroy from
behind. Suddenly, appellant fired his revolver at Diosdado Iroy, hitting the latter at the back
portion of the head. This caused Rosita Iroy to spontaneously shout that appellant shot her
brother; while appellant, after shooting Diosdado Iroy, ran towards the cornfield.
Diosdado Iroy was immediately rushed by Elmer Nigparanon and Largo Iroy to the hospital
but the injury sustained was fatal. In the meantime, Rosita Iroy went home and relayed to her
parents the unfortunate incident (TSN, Crim Case Nos. 8178 & 8179, June 8, 1993, pp. 9-22,
inclusive of the preceding paragraphs).
 At around midnight, the incident was reported to then Acting Chief of Police Felipe
Nigparanon by Mrs. Alejandra Iroy and her daughter Teodula Matalinis. The police officer made
entries in the police blotter regarding the shooting and correspondingly, ordered his men to pick
up the appellant. But they were unable to locate appellant on that occasion (TSN, Crim. Case
Nos. 8178 & 8179, June 9, 1993, pp. 2-6).
In the afternoon of 31 December 1992, appellant, together with his father Teogenes Quijada
went to the police station at Dauis, Bohol. There and then, appellant was pinpointed by Elenito
Nistal and Rosita Iroy as the person who shot Diosdado Iroy. These facts were entered in the
police blotter as Entry No. 1151 (TSN, Crim. Case Nos. 8178 & 8179, ibid. p. 14, June 14, 1993,
pp. 4-6).[13]
The slug was embedded at the midbrain.[14] Diosdado Iroy died of Cardiorespiratory arrest,
secondary to tonsillar herniation, secondary to massive intracranial hemorrhage, secondary to
gunshot wound, 1 cm. left occipital area, transacting cerebellum up to midbrain.[15]
The firearm used by the appellant in shooting Diosdado Iroy was not licensed. Per
certifications issued on 26 April 1993, the appellant was not a duly licensed firearm holder as
verified from a consolidated list of licensed firearm holders in the province[16] and was not
authorized to carry a firearm outside his residence.[17]
The appellant interposed the defense of alibi, which the trial court rejected because he was
positively identified by prosecution witness Rosita Iroy. It summarized his testimony in this
wise:
Daniel Quijada y Circulado, the accused in the instant cases, declared that in the afternoon
of December 30, 1992 he was in their house At 6:00 o'clock in the afternoon he went to
Tagbilaran City together with Julius Bonao in a tricycle No. 250 to solicit passengers. They
transported passengers until 10:30 o'clock in the evening. They then proceeded to the Tagbilaran
wharf waiting for the passenger boat Trans Asia Taiwan. Before the arrival of Trans Asia Taiwan
they had a talk with Saturnino Maglopay. They were able to pick up two passengers for Graham
Avenue near La Roca Hotel. They then returned to the Tagbilaran wharf for the arrival of MV
Cebu City that docked at 12:10 past midnight. They had a talk with Saturnino Maglopay who
was waiting for his aunties scheduled to arrive aboard MV Cebu City. They were not able to pick
up passengers which, as a consequence, they went home. They had on their way home
passengers for the Agora Public Market. They arrived at the house of Julian Bonao at Bil-isan,
Panglao, Bohol at 3:00 o'clock in the morning of December 31, 1992 where he passed the
night. He went home to Mariveles, Dauis, Bohol at 9:00 o'clock in the morning.[18]
The trial court gave full faith and credit to the version of the prosecution and found the
appellant guilty beyond reasonable doubt of the crimes charged and sentenced him
accordingly. It appreciated the presence of the qualifying circumstance of treachery considering
that the appellant shot the victim at the back of the head while the latter was watching the
dance. The dispositive portion of the decision dated 30 September 1993 reads as follows:
PREMISES CONSIDERED, in Criminal Case No. 8178, the court finds the accused Daniel
Quijada guilty of the crime of murder punished under Article 248 of the Revised Penal Code and
hereby sentences him to suffer an imprisonment of Reclusion Perpetua, with the accessories of
the law and to pay the cost.
 In Criminal Case No. 8179, the Court finds the accused Daniel Quijada guilty of the crime
of Qualified Illegal Possession of Firearm and Ammunition punished under Sec. 1 of R.A. No.
1866 as amended, and hereby sentences him to suffer an indeterminate sentence from Seventeen
(17) years Four (4) months and One (1) day, as minimum, to Twenty (20) years and One (1) day,
as maximum, with the accessories of the law and to pay the cost.
The slug or bullet which was extracted from the brain at the back portion of the head of the
victim Diosdado Iroy is hereby ordered forfeited in favor of the government.
It appearing that the accused Daniel Quijada has undergone preventive imprisonment he is
entitled to the full time he has undergone preventive imprisonment to be deducted from the term
of sentence if he has executed a waiver otherwise he will only be entitled to 4/5 of the time he
has undergone preventive imprisonment to be deducted from his term of sentence if he has not
executed a waiver.[19]
On 29 October 1993, after discovering that it had inadvertently omitted in the decision an
award of civil indemnity and other damages in Criminal Case No. 8178, the trial court issued an
order directing the appellant to pay the parents of the victim the amount of P50,000.00 as
indemnity for the death of their son and P10,000.00 for funeral expenses.[20] The order was to
form an integral part of the decision.
The decision was promulgated on 29 October 1993.[21]
The appellant forthwith interposed the present appeal, and in his Brief, he contends that the
trial court erred
I

. . . IN CONVICTING ACCUSED-APPELLANT AND GIVING CREDENCE TO THE

TESTIMONY OF PROSECUTION WITNESSES ROSITA IROY AND FELIPE
NIGPARANON.

II

. . . IN NOT CONSIDERING THE TESTIMONIES OF DEFENSE WITNESSES EDWIN

NISTAL AND ALFRED ARANZADO, AND IN DISREGARDING THE PICTORIAL
EXHIBITS OF THE ACCUSED-APPELLANT PARTICULARLY THE RELATIVE
POSITIONS OF DIOSDADO IROY, ROSITA IROY, EDWIN NISTAL, AND ALFRED
ARANZADO.

III

. . . IN FAILING TO CONSIDER THAT PROSECUTION WITNESSES ROSITA IROY AND

SP04 FELIPE NIGPARANON HAD MOTIVES IN FALSELY TESTIFYING AGAINST
ACCUSED-APPELLANT.[22]

The appellant then submits that the issue in this case boils down to the identity of the killer
of Diosdado Iroy. To support his stand that the killer was not identified, he attacks the credibility
of prosecution witnesses Rosita Iroy and SP04 Felipe Nigparanon. He claims that the former had
a motive "to put him in a bad light" and calls our attention to her direct testimony that her brother
Diosdado, the victim, boxed him on the night of 25 December 1992 because he allegedly
"bothered her." He further asserts that Rosita could not have seen the person who shot Diosdado
considering their respective positions, particularly Rosita who, according to defense witnesses
Nistal and Aranzado, was still inside the dancing area and ran towards the crime scene only after
Diosdado was shot. And, the appellant considers it as suppression of evidence when the
prosecution did not present as witnesses Diosdado's companions who were allegedly seated with
Diosdado when he was shot.
As to SPO4 Nigparanon, the appellant intimates improper motives in that the said witness is
a neighbor of the Iroys, and when he testified, a case for arbitrary detention had already been
filed against him by the appellant. The appellant further claims of alleged omissions and
unexplained entries in the police blotter.
Finally, the appellant wants us to favorably consider his defense of alibi which, according to
him, gained strength because of the lack of evidence on the identity of the killer.Furthermore, he
stresses that his conduct in voluntarily going to the police station after having been informed that
he, among many others, was summoned by the police is hardly the actuation of the perpetrator of
the killing of Diosdado Iroy -- specially so if Rosita Iroy's claim is to be believed that moments
after the shooting she shouted that Daniel Quijada shot Diosdado Iroy.
In its Appellee's Brief, the People refutes every argument raised by the appellant and
recommends that we affirm in toto the challenged decision.
After a careful scrutiny of the records and evaluation of the evidence adduced by the parties,
we find this appeal to be absolutely without merit.
The imputation of ill-motive on the part of Rosita Iroy and the basis therefor hardly
persuade. The appellant was the one who was boxed by and lost to Diosdado Iroy in their fight
on the night of 25 December 1992. It is then logical and consistent with human experience that it
would be the appellant who would have forthwith entertained a grudge, if not hatred, against
Diosdado. No convincing evidence was shown that Rosita had any reason to falsely implicate the
appellant in the death of her brother Diosdado.
The claim that Rosita could not have seen who shot her brother Diosdado because, as
testified to by defense witnesses Nistal and Aranzado, she was inside the dancing hall and rushed
to her brother only after the latter was shot is equally baseless. The following testimony of Rosita
shows beyond cavil that she saw the assailant:
Q You said that you were initially dancing inside the dancing place and you went out, about
what time did you get out?
A 11:00 o'clock.
Q And you were standing about two (2) meters from Diosdado Iroy until 11:30 when the
incident happened?
A Yes, I was standing.
Q And where did you face, you were facing Diosdado Iroy or the dancing area?
A I was intending to go near my brother. I was approaching and getting near going to my
brother Diosdado Iroy and while in the process I saw Daniel Quijada shot my brother
Diosdado Iroy.[23]
xxx xxx xxx
Q And in your estimate, how far was your brother Diosdado Iroy while he was sitting at the
plaza to the dancing place?
A More or less four (4) meters distance.
COURT:
From the dancing hall?
A Yes, your honor.
Q And in your observation, was the place where Diosdado Iroy was sitting lighted or
illuminated?
A Yes, sir.
Q What kind of light illuminated the place?
A I do not know what kind of light but it was lighted.
Q Was it an electric light?
A It is electric light coming from a bulb.
Q Where is that electric bulb that illuminated the place located?
A It was placed at the gate of the dancing place and the light from the house.
Q You said gate of the dancing place, you mean the dancing place was enclosed at that time
and there was a gate, an opening?
A Yes, sir.
Q What material was used to enclose the dancing place?
A Bamboo.
Q And how far was the bulb which was placed near the entrance of the dancing place to the
place where Diosdado Iroy was sitting?
A Five (5) meters.
Q You mentioned also that there was a light coming from the house, now whose house was
that?
A The house of spouses Fe and Berto, I do not know the family name.
Q Was the light coming from the house of spouses Fe and Berto an electric light?
A Yes sir.
 Q And in your estimate, how far was the source of light of the house of Fe and Berto to the
place where Diosdado Iroy was sitting?
A About six (6) meters distance.[24]
xxx xxx xxx
Q What was the color of the electric bulb in the gate of the dancing place?
A The white bulb.[25]
The trial court disbelieved the testimony of Nistal and Aranzado. It explicitly declared:

The factual findings of the Court in the instant case is anchored principally in ". . . observing the
attitude and deportment of witnesses while listening to them speak (People vs. Magaluna, 205,
SCRA 266).

thereby indicating that on the basis of the witnesses' deportment and manner of testifying, the
declarations of Nistal and Aranzado failed to convince the trial court that they were telling the
truth. Settled is the rule that the factual findings of the trial court, especially on the credibility of
witnesses, are accorded great weight and respect. For, the trial court has the advantage of
observing the witnesses through the different indicators of truthfulness or falsehood, such as the
angry flush of an insisted assertion or the sudden pallor of a discovered lie or the tremulous
mutter of a reluctant answer or the forthright tone of a ready reply;[26] or the furtive glance, the
blush of conscious shame, the hesitation, the sincere or the flippant or sneering tone, the heat, the
calmness, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity
of an oath, the carriage and mien.[27] The appellant has miserably failed to convince us that we
must depart from this rule.
Neither are we persuaded by the claimed suppression of evidence occasioned by the non-
presentation as prosecution witnesses any of the companions of Diosdado who were seated with
him when he was shot. In the first place, the said companions could not have seen from their
back the person who suddenly shot Diosdado. In the second place, the testimony of the
companions would, at the most, only corroborate that of Rosita Iroy. Besides, there is no
suggestion at all that the said companions were not available to the appellant. It is settled that the
presumption in Section 3 (e), Rule 131 of the Rules of Court that evidence willfully suppressed
would be adverse if produced does not apply when the testimony of the witness is merely
corroborative or where the witness is available to the accused.[28]
The alleged improper motive on the part of SP04 Nigparanon simply because he is a
neighbor of the Iroy; remains purely speculative, as no evidence was offered to establish that
such a relationship affected SP04 Nigparanon's objectivity. As a police officer, he enjoyed in his
favor the presumption of regularity in the performance of his official duty.[29] As to the alleged
omissions and unexplained entries in the police blotter, the same were sufficiently clarified by
SP04 Nigparanon.
The defense of alibi interposed by the appellant deserves scant consideration. He was
positively identified by a credible witness. It is a fundamental judicial dictum that the defense of
alibi cannot prevail over the positive identification of the accused.[30] Besides, for that defense to
prosper it is not enough to prove that the accused was somewhere else when the crime was
committed; he must also demonstrate that it was physically impossible for him to have been at
the scene of the crime at the time of its commission.[31] As testified to by defense witness Julian
Bonao, the Tagbilaran wharf, where the appellant said he was, is only about eight to nine
kilometers away from the crime scene and it would take only about thirty minutes to traverse the
distance with the use of a tricycle.[32] It was, therefore, not physically impossible for the
appellant to have been at the scene of the crime at the time of its commission.
Finally, the appellant asserts that if he were the killer of Diosdado Iroy, he would not have
voluntarily proceeded to the police station. This argument is plain sophistry. The law does not
find unusual the voluntary surrender of offenders; it even considers such act as a mitigating
circumstance.[33] Moreover, non-flight is not conclusive proof of innocence.[34]
The evidence for the prosecution further established with moral certainty that the appellant
had no license to possess or carry a firearm. The firearm then that he used in shooting Diosdado
Iroy was unlicensed. He, therefore, committed the crime of aggravated illegal possession of
firearm under the second paragraph of Section 1 of P.D. No. 1866, which reads:

SEC.
1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms, Ammunition
or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition --
The penalty of reclusion temporal in its maximum period to reclusion perpetua shall be imposed
upon any person who shall unlawfully manufacture, deal in, acquire, dispose or possess any
firearm, part of firearm, ammunition or machinery, tool or instrument used or intended to be used
in the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of
death shall be imposed.
In light of the doctrine enunciated in People vs. Tac-an,[35] and reiterated
in People vs. Tiozon,[36] People vs. Caling,[37] People vs. Jumamoy,[38] People vs. Deunida,[39] Pe
ople vs. Tiongco,[40] People vs. Fernandez,[41] and People vs. Somooc,[42] that one who kills
another with the use of an unlicensed firearm commits two separate offenses of (1) either
homicide or murder under the Revised Penal Code, and (2) aggravated illegal possession of
firearm under the second paragraph of Section 1 of P.D. No. 1866, we sustain the decision of the
trial court finding the appellant guilty of two separate offenses of murder in Criminal Case No.
8178 and of aggravated illegal possession of firearm in Criminal Case No. 8179.
Although Tac-an and Tiozon relate more to the issue of whether there is a violation of the
constitutional proscription against double jeopardy if an accused is prosecuted for homicide or
murder and for aggravated illegal possession of firearm, they at the same time laid down the rule
that these are separate offenses, with the first punished under the Revised Penal Code and the
second under a special law; hence, the constitutional bar against double jeopardy will not
apply. We observed in Tac-an:

It is elementary that the constitutional right against double jeopardy protects one against a second
or later prosecution for the same offense, and that when the subsequent information charges
another and different offense, although arising from the same act or set of acts, there is no
prohibited double jeopardy. In the case at bar, it appears to us quite clear that the offense charged
in Criminal Case No. 4007 is that of unlawful possession of an unlicensed firearm penalized
under a special statute, while the offense charged in Criminal Case No. 4012 was that of murder
punished under the Revised Penal Code. It would appear self-evident that these two (2) offenses
in themselves are quite different one from the other, such that in principle, the subsequent filing
of Criminal Case No. 4012 is not to be regarded as having placed appellant in a prohibited
second jeopardy.

And we stressed that the use of the unlicensed firearm cannot serve to increase the penalty for
homicide or murder; however, the killing of a person with the use of an unlicensed firearm, by
express provision of P.D. No. 1866, shall increase the penalty for illegal possession of firearm.

In Tiozon, we stated:

It may be loosely said that homicide or murder qualifies the offense penalized in said Section 1
because it is a circumstance which increases the penalty. It does not, however, follow that the
homicide or murder is absorbed in the offense; otherwise, an anomalous absurdity results
whereby a more serious crime defined and penalized in the Revised Penal Code is absorbed by a
statutory offense, which is just a malum prohibitum. The rationale for the qualification, as
implied from the exordium of the decree, is to effectively deter violations of the laws on firearms
and to stop the "upsurge of crimes vitally affecting public order and safety due to the
proliferation of illegally possessed and manufactured firearms, x x x." In fine then, the killing of
a person with the use of an unlicensed firearm may give rise to separate prosecutions for (a)
violation of Section 1 of P.D. No. 1866 and (b) violation of either Article 248 (Murder) or
Article 249 (Homicide) of the Revised Penal Code. The accused cannot plead one as a bar to the
other; or, stated otherwise, the rule against double jeopardy cannot be invoked because the first is
punished by a special law while the second, homicide or murder, is punished by the Revised
Penal Code.

In People vs. Doriguez, [24 SCRA 163, 171], We held:

It is a cardinal rule that the protection against double jeopardy may be invoked only for the same
offense or identical offenses. A simple act may offend against two (or more) entirely distinct and
unrelated provisions of law, and if one provision requires proof of an additional fact or element
which the other does not, an acquittal or conviction or a dismissal of the information under one
does not bar prosecution under the other. Phrased elsewise, where two different laws (or articles
of the same code) defines two crimes, prior jeopardy as to one of them is not obstacle to a
prosecution of the other, although both offenses arise from the same fact, if each crime involves
some important act which is not an essential element of the other.

In People vs. Bacolod [89 Phil. 621], from the act of firing a shot from a sub-machine gun which
caused public panic among the people present and physical injuries to one, informations of
physical injuries through reckless imprudence and for serious public disturbance were
filed. Accused pleaded guilty and was convicted in the first and he sought to dismiss the second
on the ground of double jeopardy. We ruled:
The protection against double jeopardy is only for the same offense. A simple act may be an
offense against two different provisions of law and if one provision requires proof of an
additional fact which the other does not, an acquittal or conviction under one does not bar
prosecution under the other.

Since the informations were for separate offense[s] -- the first against a person and the second
against public peace and order -- one cannot be pleaded as a bar to the other under the rule on
double jeopardy.

In Caling, we explicitly opined that a person charged with aggravated illegal possession of
firearm under the second paragraph of Section 1 of P.D. No. 1866 can also be separately charged
with and convicted of homicide or murder under the Revised Penal Code and punished
accordingly. Thus:

It seems that the Court a quo did indeed err in believing that there is such a thing as "the special
complex crime of Illegal Possession of Unlicensed Firearm Used in Homicide as provided for
and defined under the 2nd paragraph of Sec. 1 of P.D. 1866 as amended," and declaring Caling
guilty thereof. The legal provision invoked, "Sec. 1 of P.D. 1866, as amended," reads as follows:

"SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms

[or] Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. - The penalty of reclusion temporal in its maximum period
to reclusion perpetua shall be imposed upon any person who shall unlawfully manufacture, deal
in, acquire, dispose, or possess any firearm, part of firearm, ammunition or machinery, tool or
instrument used or intended to be used in the manufacture of any firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death
shall be imposed."

What is penalized in the first paragraph, insofar as material to the present case is the sole, simple
act of a person who shall, among others, "unlawfully possess any firearm x x x (or) ammunition
x x x." Obviously, possession of any firearm is unlawful if the necessary permit and/or license
therefor is not first obtained. To that act is attached the penalty of reclusion temporal, maximum,
to reclusion perpetua.Now, if "with the use of (such) an unlicensed firearm, a "homicide or
murder is committed," the crime is aggravated and is more heavily punished, with the capital
punishment.

The gravamen of the offense in its simplest form is, basically, the fact of possession of a firearm
without license. The crime may be denominated simple illegal possession, to distinguish it from i
ts aggravatedform. It is Aggravated if the unlicensed firearm is used in the commission of a homi
cide or murder under the Revised Penal Code. But the homicide or murder is not absorbed in the
crime of possession of anunlicensed firearm; neither is the latter absorbed in the former. There ar
e two distinct crimes that are here spoken of. One is unlawful possession of a firearm, which may
be either simple or aggravated,defined and punished respectively by the first and second paragra
phs of Section 1 of PD 1866. The other is homicide or murder, committed with the use of an unli
censed firearm. The mere possession of afirearm without legal authority consummates the crime
under P.D. 1866, and the liability for illegal possession is made heavier by the firearm's use in a
killing. The killing, whether homicide or murder, isobviously distinct from the act of possession,
and is separately punished and defined under the Revised Penal Code. (emphasis supplied)

In Jumamoy, we reiterated Caling and amplified the rationale on why an accused who kills
another with an unlicensed firearm can be prosecuted and punished for the two separate offenses
of violation of the second paragraph of Section 1 of P.D. No. 1866 and for homicide or murder
under the Revised Penal Code. Thus:

Coming to the charge of illegal possession of firearms, Section 1 of P.D. No. 1866
penalizes, inter alia, the unlawful possession of firearms or ammunition
with reclusion temporal in its maximum period to reclusion perpetua. However, under the second
paragraph thereof, the penalty is increased to death if homicide or murder is committed with the
use of an unlicensed
firearm. It may thus be loosely said thathomicide or murder qualifies the offense because both ar
e circumstances which increase the penalty. It does not, however, follow that the homicide or mu
rder is absorbed in the offense. If these were to be so,an anomalous absurdity would result where
by a more serious crime defined and penalized under the Revised Penal Code will be absorbed b
y a statutory offense, one which is merely malum prohibitum.Hence, the killing of a person with
the use of an unlicensed firearm may give rise to separate prosecutions for (a) the violation of Se
ction 1 of P.D. No. 1866 and (b) the violation of either Article 248 (Murder)or Article 249 (Homi
cide) of the Revised Penal Code. The accused cannot plead one to bar the other; stated otherwise,
the rule against double jeopardy cannot be invoked as the first is punished by a special law while
the second - Murder or Homicide - is punished by the Revised Penal Code. [citing
People vs. Tiozon, 198 SCRA 368, 379 (1991); People vs. Doriguez, 24 SCRA 163
(1968)]. Considering, however, that the imposition of the death penalty is prohibited by the
Constitution, the proper imposable penalty would be the penalty next lower in degree,
or reclusion perpetua. (emphasis supplied)

In Deunida, in discussing the propriety of the Government's action in withdrawing an

information for murder and pursuing only the information for "Qualified Illegal Possession of
Firearm," this Court categorically declared:

At the outset, it must be stressed that, contrary to the prosecution's legal position in withdrawing
the information for murder, the offense defined in the second paragraph of Section 1 of P.D. No.
1866 does not absorb the crime of homicide or murder under the Revised Penal Code and,
therefore, does not bar the simultaneous or subsequent prosecution of the latter crime. The 1982
decision in Lazaro vs. People, involving the violation of P.D. No. 9, which the investigating
prosecutor invokes to justify the withdrawal, is no longer controlling in view of our decisions
in People vs. Tac-an, People vs. Tiozon, and Peoplevs. Caling.

In Somooc, we once more ruled:

The offense charged by the Information is clear enough from the terms of that document,
although both the Information and the decision of the trial court used the term "Illegal Possession
of Firearm with Homicide," a phrase which has sometimes been supposed to connote a "complex
crime as used in the Revised Penal Code. Such nomenclature is, however, as we have ruled
in People vs. Caling, a misnomer since there is no complex crime of illegal possession of firearm
with homicide. The gravamen of the offense penalized in P.D. No. 1866 is the fact of possession
of a firearm without a license or authority for such possession. This offense is aggravated and the
imposable penalty upgraded if the unlicensed firearm is shown to have been used in the
commission of homicide or murder, offenses penalized under the Revised Penal Code. The
killing of a human being, whether characterized as homicide or murder, is patently distinct from
the act of possession of an unlicensed firearm and is separately punished under the provisions of
the Revised Penal Code.

The foregoing doctrine suffered a setback when in our decision of 27 June 1995
in People vs. Barros,[43] we set aside that portion of the appealed decision convicting the
appellant of the offense of murder and affirmed that portion convicting him of illegal possession
of firearm in its aggravated form. We therein made the following statement:

[A]ppellant may not in the premises be convicted of two separate offenses [of illegal possession
of firearm in its aggravated form and of murder], but only that of illegal possession of firearm in
its aggravated form, in light of the legal principles and propositions set forth in the separate
opinion of Mr. Justice Florenz D. Regalado, to which the Members of the Division,
the ponente included, subscribe.

The pertinent portions of the separate opinion of Mr. Justice Florenz D. Regalado referred to
therein read as follows:

This premise accordingly brings up the second query as to whether or not the crime should
properly be the aggravated illegal possession of an unlicensed firearm through the use of which a
homicide or murder is committed. It is submitted that an accused so situated should be liable
only for the graver offense of aggravated illegal possession of the firearm punished by death
under the second paragraph of Section 1, Presidential Decree No. 1866, and it is on this point
that the writer dissents from the holding which would impose a separate penalty for the homicide
in addition to that for the illegal possession of the firearm used to commit the former.

If the possession of the unlicensed firearm is the only offense imputable to the accused, the Court
has correctly held that to be the simple possession punished with reclusion temporal in its
maximum period to reclusion perpetua in the first paragraph of Section 1. Where,
complementarily, the unlicensed firearm is used to commit homicide or murder, then either of
these felonies will convert the erstwhile simple illegal possession into the graver offense of
aggravated illegal possession. In other words, the homicide or murder constitutes the essential
element for integrating into existence the capital offense of the aggravated form of illegal
possession of a firearm. Legally, therefore, it would be illogical and unjustifiable to use the very
same offenses of homicide or murder as integral elements of and to create the said capital
offense, and then treat the former all over again as independent offenses to be separately
punished further, with penalties immediately following the death penalty to boot.

The situation contemplated in the second query is, from the punitive standpoint, virtually of the
nature of the so-called, special complex crimes," which should more appropriately be called
composite crimes, punished in Article 294, Article 297 and Article 335. They are neither of the
same legal basis as nor subject to the rules on complex crimes in Article 48, since they do not
consist of a single act giving rise to two or more grave or less grave felonies nor do they involve
an offense being a necessary means to commit another. However, just like the regular complex
crimes and the present case of aggravated illegal possession of firearms, only a single penalty is
imposed for each of such composite crimes although composed of two or more offenses.

On the other hand, even if two felonies would otherwise have been covered by the conceptual
definition of a complex crime under Article 48, but the Code imposes a single definite penalty
therefor, it cannot also be punished as a complex crime, much less as separate offense, but with
only the single penalty prescribed by law. Thus, even where a single act results in two less grave
felonies of serious physical injuries and serious slander by deed, the offense will not be punished
as a delito compuesto under Article 48 but as less serious physical injuries with ignominy under
the second paragraph of Article 265. The serious slander by deed is integrated into and produces
a graver offense, and the former is no longer separately punished.

What is, therefore, sought to be stressed by such alternative illustration, as well as the discussion
on complex and composite crimes, is that when an offense becomes a component of another, the
resultant crime being correspondingly punished as thus aggravated by the integration of the
other, the former is not to be further separately punished as the majority would want to do with
the homicide involved in the case at bar.

With the foregoing answers to the second question, the third inquiry is more of a question of
classification for purposes of the other provisions of the Code. The theory in Tac-an that the
principal offense is the aggravated form of illegal possession of firearm and the killing shall
merely be included in the particulars or, better still, as an element of the principal offense, may
be conceded. After all, the plurality of crimes here is actually source from the very provisions of
Presidential Decree No. 1866 which sought to "consolidate, codify and integrate" the various
laws and presidential decrees to harmonize their provision" which must be updated and revised
in order to more effectively deter violators of said laws.

This would be akin to the legislative intendment underlying the provisions of the Anti-
Carnapping Act of 1972, wherein the principal crime to be charged is still carnapping, although
the penalty therefore is increased when the owner, driver or occupant of the carnapped vehicle is
killed. The same situation, with escalating punitive provisions when attended by a killing, are
found in the Anti-Piracy and Anti-Highway Robbery Law of 1974 and the Anti-Cattle Rustling
Law of 1974, wherein the principal crimes still are piracy, highway robbery and cattle
rustling. Also, in the matter of destructive arson, the principal offense when, inter alia, death
results as a consequence of the commission of any of the acts punished under said article of the
Code.

In the present case, the academic value of specifying whether it is a case of illegal possession of
firearm resulting in homicide or murder, or, conversely, homicide or murder through the illegal
possession and use of an unlicensed firearm, would lie in the possible application of the
provision on recidivism. Essentially, it would be in the theoretical realm since, taken either way,
the penalty for aggravated illegal possession of a firearm is the single indivisible penalty of
death, in which case the provision on recidivism would not apply. If, however, the illegal
possession is not established but either homicide or murder is proved, then the matter of
recidivism may have some significance in the sense that, for purposes thereof, the accused was
convicted of a crime against persons and he becomes a recidivist upon conviction of another
crime under the same title of the Code.

Lastly, on the matter of the offense or offenses to be considered and the penalty to be imposed
when the unlawful killing and the illegal possession are charged in separate informations, from
what has been said the appropriate course of action would be to consolidate the cases and render
a joint decision thereon, imposing a single penalty for aggravated illegal possession of firearm if
such possession and the unlawful taking of life shall have been proved, or for only the proven
offense which may be either simple illegal possession, homicide or murder per se. The same
procedural rule and substantive disposition should be adopted if one information for each offense
was drawn up and these informations were individually assigned to different courts or branches
of the same court.

Indeed, the practice of charging the offense of illegal possession separately from the homicide or
murder could be susceptible of abuse since it entails undue concentration of prosecutorial powers
and discretion. Prefatorily, the fact that the killing was committed with a firearm will necessarily
be known to the police or prosecutorial agencies, the only probable problem being the
determination and obtention of evidence to show that the firearm is unlicensed.

Now, if a separate information for homicide or murder is filed without alleging therein that the
same was committed by means of an unlicensed firearm, the case would not fall under
Presidential Decree No. 1866. Even if the use of a firearm is alleged therein, but without alleging
the lack of a license therefor as where that fact has not yet been verified, the mere use of a
firearm by itself, even if proved in that case, would not affect the accused either since it is not an
aggravating or qualifying circumstance.

Conversely, if the information is only for illegal possession, with the prosecution intending to
file thereafter the charge for homicide or murder but the same is inexplicably delayed or is not
consolidated with the information for illegal possession, then any conviction that may result from
the former would only be for simple illegal possession. If, on the other hand, the separate and
subsequent prosecution for homicide or murder prospers, the objective of Presidential Decree
No. 1866 cannot be achieved since the penalty imposable in that second prosecution will only be
for the unlawful killing and further subject to such modifying circumstances as may be proved.

In any event, the foregoing contingencies would run counter to the proposition that the real
offense committed by the accused, and for which sole offense he should be punished, is the
aggravated form of illegal possession of a firearm. Further, it is the writer's position that the
possible problems projected herein may be minimized or obviated if both offenses involved are
charged in only one information or that the trial thereof, if separately charged, be invariably
consolidated for joint decision. Conjointly, this is the course necessarily indicated since only a
single composite crime is actually involved and it is palpable error to deal therewith and dispose
thereof by segregated parts in piecemeal fashion.
 If we follow Barros, the conviction of the appellant for murder in Criminal Case No. 8178
must have to be set aside. He should only suffer the penalty for the aggravated illegalpossession
of firearm in Criminal Case No. 8179.
The Court en banc finds in this appeal an opportunity to reexamine the existing conflicting
doctrines applicable to prosecutions for murder or homicide and for aggravated illegal possession
of firearm in instances where an unlicensed firearm is used in the killing of a person. After a
lengthy deliberation thereon, the Court en banc arrived at the conclusion that the rule laid down
in Tac-an, reiterated in Tiozon, Caling, Jumamoy, Deunida, Tiongco, Fernandez, and Somooc is
the better rule, for it applies the laws concerned according to their letter and spirit, thereby
steering this Court away from a dangerous course which could have irretrievably led it to an
inexcusable breach of the doctrine of separation of powers through Judicial legislation. That rule
upholds and enhances the lawmaker's intent or purpose in aggravating the crime of illegal
possession of firearm when an unlicensed firearm is used in the commission of murder or
homicide. Contrary to the view of our esteemed brother, Mr. Justice Florenz D. Regalado, in his
Concurring and Dissenting Opinion in the case under consideration, Tac-an did not enunciate an
unfortunate doctrine or a "speciously camouflaged theory" which "constitutes an affront on
doctrinal concepts of penal law and assails even the ordinary notions of common sense."
If Tac-an did in fact enunciate such an "unfortunate doctrine," which this Court has
reiterated in a convincing number of cases and for a convincing number of years, so must the
same verdict be made in our decision in People vs. De Gracia,[44] which was promulgated on 6
July 1994. In the latter case, we held that unlawful possession of an unlicensed firearm in
furtherance of rebellion may give rise to separate prosecutions for a violation of Section 1 of
P.D. No. 1866 and also for a violation of Articles 134 and 135 of the Revised Penal Code on
rebellion. A distinction between that situation and the case where an unlicensed firearm is used
in homicide or murder would have no basis at all. In De Gracia, this Court, speaking through Mr.
Justice Florenz D. Regalado, made the following authoritative pronouncements:

III. As earlier stated, it was stipulated and admitted by both parties that from November 30, 1989
up to and until December 9, 1989, there was a rebellion. Ergo, our next inquiry is whether or not
appellant's possession of the firearms, explosives and ammunition seized and recovered from
him was for the purpose and in furtherance of rebellion.

The trial court found accused guilty of illegal possession of firearms in furtherance of rebellion
pursuant to paragraph 2 of Article 135 of the Revised Penal Code which states that "any person
merely participating or executing the command of others in a rebellion shall suffer the penalty
of prision mayor in its minimum period." The court below held that appellant De Gracia, who
had been servicing the personal needs of Col. Matillano (whose active armed opposition against
the Government, particularly at the Camelot Hotel, was well known), is guilty of the act of
guarding the explosives and "molotovbombs for and in behalf of the latter. We accept this
finding of the lower court.

The above provision of the law was, however, erroneously and improperly used by the court
below as a basis in determining the degree of liability of appellant and the penalty to be imposed
on
him. It mustbe made clear that appellant is charged with the qualified offense of illegal possessio
n of firearms in furtherance of rebellion under Presidential Decree No. 1866 which, in law, is dist
inct from the crime ofrebellion punished under Article 134 and 135 of the Revised Penal Code. T
here are two separate statutes penalizing different offenses with discrete penalties. The Revised P
enal Code treats rebellion as acrime apart from murder, homicide, arson, or other offenses, such
as illegal possession of firearms, that might conceivably be committed in the course of a rebellio
n. Presidential Decree No. 1866 defines andpunishes, as a specific offense, the crime of illegal p
ossession of firearms committed in the course or as part of a rebellion.

As a matter of fact, in one case involving the constitutionality of Section 1 of Presidential Decree
No. 1866, the Court has explained that said provision of the law will not be invalidated by the m
ere fact thatthe same act is penalized under two different statutes with different penalties, even if
considered highly advantageous to the prosecution and onerous to the accused. It follows that, su
bject to the presence ofrequisite elements in each case, unlawful possession of an unlicensed fire
arm in furtherance of rebellion may give rise to separate prosecutions for a violation of Section 1
of Presidential Decree No. 1866, andalso a violation of Articles 134 and 135 of the Revised Pen
al Code on rebellion. Double jeopardy in this case cannot be invoked because the first is an offen
se punished by a special law while the second is afelony punished by the Revised Penal Code wit
h variant elements.

We cannot justify what we did in De Gracia with a claim that the virtue of fidelity to a
controlling doctrine, i.e., of Tac-an, had compelled us to do so. Indeed, if Tac-an enunciated an
"unfortunate doctrine" which is "an affront on doctrinal concepts of penal law and assails even
the ordinary notions of common sense," then De Gracia should have blazed the trail of a new
enlightenment and forthwith set aside the "unfortunate doctrine" without any delay to
camouflage a judicial faux pas or a doctrinal quirk. De Gracia provided an excellent vehicle for
an honorable departure from Tac-an because no attack on the latter was necessary as the former
merely involved other crimes to which the doctrine in Tac-an might only be applied by
analogy. De Gracia did not even intimate the need to reexamine Tac-an; on the contrary, it
adapted the latter to another category of illegal possession of firearm qualified by rebellion
precisely because the same legal principle and legislative purpose were involved, and not
because De Gracia wanted to perpetuate an "unfortunate doctrine" or to embellish "the
expanding framework of our criminal law from barnacled ideas which have not grown apace
with conceptual changes over time," as the concurring and dissenting opinion charges.
The majority now reiterates the doctrine in Tac-an and the subsequent cases not because it
has become hostage to the "inertia of time [which] has always been the obstacle to the virtues of
change," as the concurring and dissenting opinion finds it to be, but rather because it honestly
believes that Tac-an laid down the correct doctrine. If P.D. No. 1866 as applied in Tac-an is an
"affront on doctrinal concepts of penal laws and assails even the ordinary notions of common
sense," the blame must not be laid at the doorsteps of this Court, but on the lawmaker's. All that
the Court did in Tac-an was to apply the law, for there was nothing in that case that warranted an
interpretation or the application of the niceties of legal hermeneutics. It did not forget that its
duty is merely to apply the law in such a way that shall not usurp legislative powers by judicial
legislation and that in the course of such application or construction it should not make or
supervise legislation, or under the guise of interpretation modify, revise, amend, distort, remodel,
or rewrite the law, or give the law a construction which is repugnant to its terms.[45]
 Murder and homicide are defined and penalized by the Revised Penal Code[46] as crimes
against persons. They are mala in se because malice or dolo is a necessary ingredient
therefor.[47] On the other hand, the offense of illegal possession of firearm is defined and
punished by a special penal law,[48] P.D. No. 1866. It is a malum prohibitum[49] which the
lawmaker, then President Ferdinand E. Marcos, in the exercise of his martial law powers, so
condemned not only because of its nature but also because of the larger policy consideration of
containing or reducing, if not eliminating, the upsurge of crimes vitally affecting public order
and safety due to the proliferation of illegally possessed and manufactured firearms, ammunition,
and explosives. If intent to commit the crime were required, enforcement of the decree and its
policy or purpose would be difficult to achieve. Hence, there is conceded wisdom in punishing
illegal possession of firearm without taking into account the criminal intent of the possessor. All
that is needed is intent to perpetrate the act prohibited by law, coupled, of course,
by animuspossidendi. However, it must be clearly understood that this animus possidendi is
without regard to any other criminal or felonious intent which an accused may have harbored in
possessing the firearm.[50]
A long discourse then on the concepts of malum in se and malum prohibilum and their
distinctions is an exercise in futility.
We disagree for lack of basis the following statements of Mr. Justice Regalado in his
Concurring and Dissenting Opinion, to wit:

The second paragraph of the aforestated Section 1 expressly and unequivocally provides for such
illegal possession and resultant killing as a single integrated offense which is punished as
such. The majority not only created two offenses by dividing a single offense into two but,
worse, it resorted to the unprecedented and invalid act of treating the original offense as a single
integrated crime and then creating another offense by using a component crime which is also an
element of the former.

It would already have been a clear case of judicial legislation if the illegal possession with
murder punished with a single penalty have been divided into two separate offenses of illegal
possession and murder with distinct penalties. It is consequently a compounded infringement of
legislative powers for this Court to now, as it has done, treat that single offense as specifically
described by the law and impose reclusion perpetua therefor (since the death penalty for that
offense is still proscribed), but then proceed further by plucking out therefrom the crime of
murder in order to be able to impose the death sentence.For indeed, on this score, it is beyond
cavil that in the aggravated form of illegal possession, the consequential murder (or homicide) is
an integrated element or integral component since without the accompanying death, the crime
would merely be simple illegal possession of a firearm under the first paragraph of Section 1.

The second paragraph of Section 1 of P.D. No. 1866 does not warrant and support a
conclusion that it intended to treat "illegal possession and resultant killing" (emphasis supplied)
"as a single and integrated offense" of illegal possession with homicide or murder. It does not
use the clause as a result or on the occasion of to evince an intention to create a single integrated
crime. By its unequivocal and explicit language, which we quote to be clearly understood:
If homicide or murder is committed with the use of an unlicensed firearm, the penalty of death
shall be imposed. (emphasis supplied)

the crime of either homicide or murder is committed NOT AS A RESULT OR ON THE

OCCASION of the violation of Section 1, but WITH THE USE of an unlicensed firearm, whose
possession is penalized therein. There is a world of difference, which is too obvious, between (a)
the commission of homicide or murder as a result or on the occasion of the violation ofSection 1,
and (b) the commission of homicide or murder with the use of an unlicensed firearm. In the first,
homicide or murder is not the original purpose or primary objective of the offender, but a
secondary event or circumstance either resulting from or perpetrated on the occasion of the
commission of that originally or primarily intended. In the second, the killing, which requires
a mens rea, is the primary purpose, and to carry that out effectively the offender uses an
unlicensed firearm.
As to the question then of Mr. Justice Regalado of whether this Court should also apply the
rule enunciated here to P.D. No. 532 (Anti-Piracy and Anti-Highway Robbery Law of 1974),
P.D. No. 533 (Anti-Cattle Rustling Law of 1974), and P.D. No. 534 (Defining Illegal Fishing and
Prescribing Stiffer Penalties Therefor), the answer is resoundingly in the negative. In those cases,
the lawmaker clearly intended a single integrated offense or a special complex offense because
the death therein occurs as a result or on the occasion of the commission of the offenses therein
penalized or was not the primary purpose of the offender, unlike in the second paragraph of
Section 1 of P.D. No. 1866. Thus, (a) Section 3 of P.D. No. 532 provides:

SEC. 3. Penalties. -- Any person who commits piracy or highway robbery/brigandage as herein
defined, shall, upon conviction by competent court be punished by:

a. Piracy. - The penalty of reclusion temporal in its medium and maximum periods shall be
imposed. If physical injuries or other crimes are committed as a result or on the occasion thereof,
the penalty of reclusion perpetua shall be imposed. If
rape, murder or homicide is committed as a result or on the occasion of piracy, or when the
offenders abandoned the victims without means of saving themselves, or when the seizure is
accomplished by firing upon or boarding a vessel, the mandatory penalty of death shall be
imposed.

b. Highway Robbery/Brigandage.-- The penalty of reclusion temporal in its minimum period

shall be imposed. If physical injuries or other crimes are committed during or on the occasion of
the commission of robbery or brigandage, the penalty of reclusion temporal in its medium and
maximum periods shall be imposed. If kidnapping for ransom or extortion,
or murder or homicide, or rape is committed as aresult or on the occasion thereof, the penalty of
death shall be imposed. (emphasis supplied)

(b) Section 8 of P.D. No. 533 reads in part as follows:

SEC. 8. Penal provisions. -- Any person convicted of cattle rustling as herein defined shall,
irrespective of the value of the large cattle involved, be punished by prision mayor in its
maximum period to reclusion temporal in its medium period if the offense is committed without
violence against or intimidation of persons or force upon things. If the offense is committed with
violence against or intimidation of persons or force upon things, the penalty
of reclusion temporal in its maximum period to reclusion perpetua shall be
imposed. If a person is seriously injured
or killed as a result or on the occasion of thecommission of cattle rustling, the penalty of reclusio
n perpetua to death shall be imposed. (emphasis supplied)

and (c) Section 3 of P.D. No. 534 reads as follows:

SECTION. 3. Penalties.-- Violations of this Decree and the rules and regulations mentioned in
paragraph (f) of Section 1 hereof shall be punished as follows:

a. by imprisonment from 10 to 12 years, if explosives are

used: Provided, that if the explosion results (1) in physical injury to person, the penalty shall be
imprisonment from 12 to 20 years, or
(2) in the lossof human life, then the penalty shall be imprisonment from 20 years to life, or deat
h;

b. by imprisonment from 8 to 10 years, if obnoxious or poisonous substances are

used: Provided, that if the use of such substances results (1) in physical injury to any person, the
penalty shall be imprisonment from 10 to 12 years, or
(2) in the loss of human life, then the penalty shall be imprisonment from 20 years to life, or deat
h; x x x (emphasis supplied)

The unequivocal intent of the second paragraph of Section 1 of P.D. No. 1866 is to respect
and preserve homicide or murder as a distinct offense penalized under the Revised Penal Code
and to increase the penalty for illegal possession of firearm where such a firearm is used in
killing a person. Its clear language yields no intention of the lawmaker to repeal or
modify, pro tanto, Articles 248 and 249 of the Revised Penal Code, in such a way that if an
unlicensed firearm is used in the commission of homicide or murder, either of these crimes, as
the case may be, would only serve to aggravate the offense of illegal possession of firearm and
would not anymore be separately punished. Indeed, the words of the subject provision are
palpably clear to exclude any suggestion that either of the crimes of homicide and murder, as
crimes mala in se under the Revised Penal Code, is obliterated as such and reduced as a mere
aggravating circumstance in illegal possession of firearm whenever the unlicensed firearm is
used in killing a person. The only purpose of the provision is to increase the penalty prescribed in
the first paragraph of Section 1 -- reclusion temporal in its maximum period to reclusion
perpetua -- to death, seemingly because of the accused's manifest arrogant defiance and
contempt of the law in using an unlicensed weapon to kill another, but never, at the same time, to
absolve the accused from any criminal liability for the death of the victim.
Neither is the second paragraph of Section 1 meant to punish homicide or murder with death
if either crime is committed with the use of an unlicensed firearm, i.e., to consider such use
merely as a qualifying circumstance and not as an offense. That could not have been the
intention of the lawmaker because the term "penalty" in the subject provision is obviously meant
to be the penalty for illegal possession of firearm and not the penalty for homicide or murder. We
explicitly stated in Tac-an:
There is no law which renders the use of an unlicensed firearm as an aggravating circumstance in
homicide or murder. Under an information charging homicide or murder, the fact that the death
weapon was an unlicensed firearm cannot be used to increase the penalty for the second offense
of homicide or murder to death .... The essential point is that the unlicensed character or
condition of the instrument used in destroying human life or committing some other crime, is not
included in the inventory of aggravating circumstances set out in Article 14 of the Revised Penal
Code.

A law may, of course, be enacted making the use of an unlicensed firearm as a qualifying
circumstance. This would not be without precedent. By analogy, we can cite Section 17 of B.P.
Blg. 179, which amended the Dangerous Drugs Act of 1972 (R.A. No. 6425). The said section
provides that when an offender commits a crime under a state of addiction, such a state shall be
considered as a qualifying aggravating circumstance in the definition of the crime and the
application of the penalty under the Revised Penal Code.
In short, there is nothing in P.D. No. 1866 that manifests, even vaguely, a legislative intent
to decriminalize homicide or murder if either crime is committed with the use of an unlicensed
firearm, or to convert the offense of illegal possession of firearm as a qualifying circumstance if
the firearm so illegally possessed is used in the commission of homicide or murder. To charge
the lawmaker with that intent is to impute an absurdity that would defeat the clear intent to
preserve the law on homicide and murder and impose a higher penalty for illegal possession of
firearm if such firearm is used in the commission of homicide or murder.
Evidently, the majority did not, as charged in the concurring and dissenting opinion, create
two offenses by dividing a single offense into two. Neither did it resort to the "unprecedented
and invalid act of treating the original offense as a single integrated crime and then creating
another offense by using a component crime which is also an element of the former." The
majority has always maintained that
the killing of a person with the use of an illegally possessed firearm gives rise to two separate
offenses of (a) homicide or murder under the Revised Penal Code, and (b) illegal possession of
firearm in its aggravated form.
What then would be a clear case of judicial legislation is an interpretation of the second
paragraph of Section 1 of P.D. No. 1866 that would make it define and punish a single integrated
offense and give to the words WITH THE USE OF a similar meaning as the words AS A
RESULT OR ON THE OCCASION OF, a meaning which is neither born out by the letter of the
law nor supported by its intent. Worth noting is the rule in statutory construction that if a statute
is clear, plain, and free from ambiguity, it must be given its literal meaning and applied without
attempted interpretation,[51] leaving the court no room for any extended ratiocination or
rationalization of the law.[52]
Peregrinations into the field of penology such as on the concept of a single integrated crime
or composite crimes, or into the philosophical domain of integration of the essential elements of
one crime to that of another would then be unnecessary in light of the clear language and
indubitable purpose and intent of the second paragraph of Section 1 of P.D. No. 1866.The realm
of penology, the determination of what should be criminalized, the definition of crimes, and the
prescription of penalties are the exclusive prerogatives of the legislature. As its wisdom may
dictate, the legislature may even create from a single act or transaction various offenses for
different purposes subject only to the limitations set forth by the Constitution. This Court cannot
dictate upon the legislature to respect the orthodox view concerning a single integrated crime or
composite crimes.
The only apparent obstacle to the imposition of cumulative penalties for various acts is the
rule on double jeopardy. This brings us to the proposition in the dissenting opinion of Mr. Justice
Regalado that the majority view offends the constitutional bar against double jeopardy under the
"same-evidence" test enunciated in People vs. Diaz.[53] He then concludes:

In the cases now before us, it is difficult to assume that the evidence for the murder in the first
charge of aggravated illegal possession of firearm with murder would be different from the
evidence to be adduced in the subsequent charge for murder alone. In the second charge, the
illegal possession is not in issue, except peripherally and inconsequentially since it is not an
element or modifying circumstance in the second charge, hence the evidence therefor is
immaterial. But, in both prosecutions, the evidence on murder is essential, in the first charge
because without it the crime is only simple illegal possession, and, in the second charge, because
murder is the very subject of the prosecution. Assuming that all the other requirements under
Section 7, Rule 117 are present, can it be doubted that double jeopardy is necessarily present and
can be validly raised to bar the second prosecution for murder?

In fact, we can extrapolate the constitutional and reglementary objection to the cases of the other
composite crimes for which a single penalty is imposed, such as the complex, compound and so-
called special complex crimes. Verily, I cannot conceive of how a person convicted of estafa
through falsification under Article 48 can be validly prosecuted anew for the same offense or
either estafa or falsification; or how the accused convicted of robbery with homicide under
Article 294 can be legally charged again with either of the same component crimes of robbery or
homicide; or how the convict who was found guilty of rape with homicide under Article 335 can
be duly haled before the court again to face charges of either the same rape or homicide. Why,
then, do we now sanction a second prosecution for murder in the cases at bar since the very same
offense was an indispensable component for the other composite offense of illegal possession of
firearm with murder? Why would the objection of non bis in idim as a bar to a second jeopardy
lie in the preceding examples and not apply to the cases now before us?

We are unable to agree to the proposition. For one, the issue of double jeopardy is not raised
in this case. For another, the so-called "same-evidence" test is not a conclusive, much less
exclusive, test in double jeopardy cases of the first category under the Double Jeopardy Clause
which is covered by Section 21, Article III of the Constitution and which reads as follows:

No person shall be twice put in jeopardy of punishment for the same offense. 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.

Note that the first category speaks of the same offense. The second refers to the same act. This
was explicitly distinguished in Yap vs. Lutero,[54] from where People vs. Relova[55] quotes the
following:
Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first sentence of
clause 20, Section 1, Article III of the Constitution, ordains that "no person shall be twice put in
jeopardy of punishment for the same offense." (italics in the original) The second sentence of
said clause provides that "if an act is punishable by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to another prosecution for the same act." Thus, the
first sentence prohibits double jeopardy of punishment for the same offense whereas, the second
contemplates double jeopardy of punishment for the same act. Under the first sentence, one may
be twice put in jeopardy of punishment of the same act, provided that he is charged with different
offenses, or the offense charged in one case is not included in, or does not include, the crime
charged in the other case. The second sentence applies, even if the offenses charged are not the
same, owing to the fact that one constitutes a violation of an ordinance and the other a violation
of a statute. If the two charges are based on one and the same act, conviction or acquittal under
either the law or the ordinance shall bar a prosecution under the other.Incidentally, such
conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment
for the same offense. So long as jeopardy has been attached under one of the informations
charging said offense, the defense may be availed of in the other case involving the same
offense, even if there has been neither conviction nor acquittal in either case.

Elsewise stated, where the offenses charged are penalized either by different sections of the same
statute or by different statutes, the important inquiry relates to
the identity of offensescharged. The constitutional protection against double jeopardy is available
only where an identity is shown to exist between the earlier and the subsequent offenses
charged.[56] The question of identity or lack of identity of offenses is addressed by examining the
essential elements of each of the two offenses charged, as such elements are set out in the
respective legislative definitions of the offenses involved.[57]
It may be noted that to determine the same offense under the Double Jeopardy Clause of the
Fifth Amendment of the Constitution of the United States of America which reads:

[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb .
...

the rule applicable is the following: "where the same act or transaction constitutes a violation of
two distinct statutory provisions, the test to be applied to determine whether there are two
offenses or only one, is whether each provision requires proof of an additional fact which the
other does not."[58]
The Double Jeopardy Clause of the Constitution of the United States of America was
brought to the Philippines through the Philippine Bill of 1 July 1902, whose Section 5
provided, inter alia:

[N]o person for the same offense shall be twice put in jeopardy of punishment . . . .

This provision was carried over in identical words in Section 3 of the Jones Law of 29 August
1916.[59] Then under the 1935 Constitution, the Jones Law provision was recast with the addition
of a provision referring to the same act. Thus, paragraph 20, Section 1, Article III thereof
provided as follows:
No person shall be twice put in jeopardy of punishment for the same offense. 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.

This was adopted verbatim in Section 22, Article IV of the 1973 Constitution and in Section 21,
Article III of the present Constitution.
This additional-element test in Lutero and Relova and
in Blockburger, Gore, and Missouri would safely bring the second paragraph of Section 1 of P.D.
No. 1866 out of the proscribed double jeopardy principle. For, undeniably, the elements of illegal
possession of firearm in its aggravated form are different from the elements of homicide or
murder, let alone the fact that these crimes are defined and penalized under different laws and the
former is malum prohibitum, while both the latter are mala in se. Hence, the fear that the
majority's construction of the subject provision would violate the constitutional bar against
double jeopardy is unfounded.
The penalty which the trial court imposed in Criminal Case No. 8179 for illegal possession
of firearm in its aggravated form must, however, be modified. The penalty prescribed by P.D.
No. 1866 is death. Since Section 19(1), Article III of the Constitution prohibits the imposition of
the death penalty, the penalty next lower in degree, reclusion perpetual must be imposed.
WHEREFORE, the instant appeal is DISMISSED, and the challenged decision of 30
September 1993 of Branch 1 of the Regional Trial Court of Bohol finding accused-appellant
DANIEL QUIJADA y CIRCULADO guilty beyond reasonable doubt of the crime of murder in
Criminal Case No. 8178 and of illegal possession of firearm in its aggravated form in Criminal
Case No. 8179 is AFFIRMED. The penalty imposed in the first case, as amended by the Order of
29 October 1993, is sustained; however, the penalty imposed in the second case is changed
to Reclusion Perpetua from the indeterminate penalty ranging from Seventeen (17) years, Four
(4) months, and One (1) day, as minimum, to Twenty (20) years and One (1) day, as maximum.
Costs de oficio.
SO ORDERED.

[G.R. No. 127772. March 22, 2001]

ROBERTO P. ALMARIO, petitioner, vs. COURT OF APPEALS, HON. FLORENTINO A.

TUASON, JR., PEOPLE OF THE PHILIPPINES AND RIZAL COMMERCIAL
BANKING CORP., respondents.

DECISION
QUISUMBING, J.:
 This appeal by certiorari seeks to set aside the resolutions of the Court of Appeals dated
November 21, 1996[1] and of January 7, 1997,[2] in CA-G.R. No. SP-42312, which denied the
petition for certiorari, prohibition and mandamus with preliminary injunction instituted by
petitioner against the Hon. Florentino A. Tuason, Jr., in his capacity as Presiding Judge of
Branch 139, Regional Trial Court of Makati City, the Rizal Commercial Banking Corporation
(RCBC), and the People of the Philippines.[3] Involved in said petition were the orders of Judge
Jaime D. Discaya and Judge Tuason dated October 25, 1995[4] and April 11,
1996,[5] respectively, issued in Criminal Cases Nos. 91-6761-62 which petitioner claimed were
violative of his constitutional right against double jeopardy but which respondent appellate court
upheld.
The factual antecedents in these cases, as culled by the Court of Appeals, are as follows:

Petitioner is one of the accused in Criminal Case No. 91-6761, for estafa thru falsification of
public document, and Criminal Case No. 91-6762, for estafa, with respondent RCBC as the
offended party in both cases.

The informations were filed on October 22, 1992. After petitioners arraignment on March 18,
1992, pre-trial was held, which was terminated on October 21, 1994. Thereafter, the cases were
scheduled for continuous trial in December 1994, and in January and February 1995, but the
hearings were cancelled because the Presiding Judge of the court was elevated to this Court and
no trial judge was immediately appointed/detailed thereto.

The hearing set for June 21, 1995, was postponed for lack of proof of notice to all the accused
and their counsel. The hearing on July 17, 1995, upon request of private prosecutor, and without
objection on the part of petitioners counsel, postponed to July 24, 1995. However, for lack of
proof of service of notice upon petitioners three co-accused, the hearing set for July 24, 1995,
was likewise cancelled and the cases were reset for trial on September 8 and 25, 1995.

On September 8, 1995, private complainant failed to appear despite due notice. Hence, upon
motion of petitioners counsel, respondent court issued the following order:

When this case was called for hearing, private complainant is not in Court despite notice. Atty.
Alabastro, counsel for accused Roberto Almario, moved that the case against the latter be
dismissed for failure to prosecute and considering that accused is entitled to a speedy trial.

WHEREFORE, the case against accused Roberto Almario is hereby dismissed. With respect to
accused Spouses Susencio and Guillerma Cruz and Dante Duldulao, 1st warrant be issued for
their arrest.

SO ORDERED.

Upon motion of the private prosecutor and despite the opposition of petitioner, respondent court
in its Order dated October 25, 1995, reconsidered the Order of September 8, 1995. The pertinent
portion of said order reads as follows:
In Hipolito vs. Court of Appeals (G.R. No. 108478-79, Feb. 21, 1993) the Supreme Court held
that the right of the accused to a speedy trial is deemed violated only when the proceedings is
attended by vexations, capricious and oppressive delays, or when unjustified postponements of
the trial are asked for and secured, or when without cause or unjustifiable motive, a long period
of time is allowed to (e) lapse without the party having his case tried. At least this right is
relative, taking into (the) account the circumstances of each case.

There has been no vexations, capricious and oppressive delays, or unjustified postponements of
the trial, or a long time is allowed to (e) lapse without the party having his case tried which
would constitute, according to the above case, violation of the right of the accused to speedy
trial. After arraignment of the accused, the pre-trial was set and the same was ordered terminated
on October 25, 1994. On June 21, 1995, the case was set for initial presentation of evidence of
the proof of service of the notices to the accused and their respective counsels. On July 17, 1995,
counsel for the accused did not interpose objection to private prosecutors motion to postpone due
to absence of witnesses. On July 24, 1995, the trial could not proceed as, being a joint trial of
three criminal cases, the three other accused were not present. There were only three settings
from the date of termination of the pre-trial for the prosecution to present evidence and the same
were postponed with valid reasons.

The dismissal in the Order dated September 8, 1995, did not result in the acquittal of the accused
since the right of the accused to speedy trial has not been violated, and its dismissal having been
made upon the motion of the accused there is no double jeopardy.

WHEREFORE, premises considered, the Order dated September 8, 1995 dismissing the
charge/case against the accused Roberto Almario is reconsidered and set aside.

SO ORDERED.

Petitioner sought a reconsideration of the above order. Acting on the Motion for Reconsideration
dated November 9, 1995, respondent Judge issued his assailed Order of April 11, 1996, the
dispositive portion of which reads as follows:

IN VIEW OF THE FOREGOING, the Motion for Reconsideration dated 9 November 1995 is
hereby denied for lack of merit considering that, based on the foregoing facts, the proceedings in
this case have not been prolonged unreasonably nor were there oppressive delays and unjustified
postponements in violation of the Accuseds constitutional right to speedy trial.

SO ORDERED.[6]

Aggrieved by the foregoing order, petitioner filed before the Court of Appeals a petition for
certiorari, prohibition and mandamus with preliminary injunction against the presiding judge of
Branch 139 of the Regional Trial Court of Makati City, RCBC and the People of the
Philippines. In a resolution dated November 21, 1996, respondent appellate court denied the
petition due course and dismissed it for lack of merit. Petitioners motion to reconsider it was
likewise denied for lack of merit in a resolution dated January 7, 1997.
 Before us, petitioner maintains that the appellate court erred in sustaining the trial court
which, in turn, had gravely abused its discretion, amounting to lack of jurisdiction, when it
reconsidered the order which dismissed the criminal cases against him. Petitioner asserts that this
reversal was a violation of the doctrine of double jeopardy, as the criminal cases were initially
dismissed for an alleged violation of petitioners constitutional right to a speedy trial.[7]
The issue for resolution is whether, in petitioners cases, double jeopardy had set in so that
petitioners constitutional right against such jeopardy had been violated.
Article III, Section 21 of the 1987 Constitution provides:

Sec. 21. No person shall be twice put in jeopardy of punishment for the same offense. 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.

Section 7, Rule 117 of the Revised Rules of Court provides:

SEC. 7. Former conviction or acquittal; double jeopardy. When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without his express consent
by a court of competent jurisdiction, upon a valid complaint or information or other formal
charge sufficient in form and substance to sustain a conviction and after the accused had pleaded
to the charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar
to another prosecution for the offense charged, or for any attempt to commit the same or
frustration thereof, or for any offense which necessarily includes or is necessarily included in the
offense charged in the former complaint or information.

xxx
Clearly, jeopardy attaches only (1) upon a valid indictment, (2) before a competent court, (3)
after arraignment, (4) when a valid plea has been entered, and (5) when the defendant was
convicted or acquitted, or the case was dismissed or otherwise terminated without the express
consent of the accused.[8]
In the cases at bar, the order of dismissal based on a violation of the right to speedy trial was
made upon motion by counsel for petitioner before the trial court. It was made at the instance of
the accused before the trial court, and with his express consent. Generally, the dismissal of a
criminal case resulting in acquittal made with the express consent of the accused or upon his own
motion will not place the accused in double jeopardy. However, this rule admits of two
exceptions, namely: insufficiency of evidence and denial of the right to speedy trial.[9] Double
jeopardy may attach when the proceedings have been prolonged unreasonably, in violation of the
accuseds right to speedy trial.[10]
Here we must inquire whether there was unreasonable delay in the conduct of the trial so
that violation of the right to speedy trial of the accused, herein petitioner, resulted. For it must be
recalled that in the application of the constitutional guaranty of the right to speedy disposition of
cases, particular regard must also be taken of the facts and circumstances peculiar to each
case.[11] Both the trial court and the appellate court noted that after pre-trial of petitioners case
was terminated on October 21, 1994, continuous trial was set in the months of December 1994,
and January and February of 1995. The scheduled hearings, however, were cancelled when the
presiding judge was promoted to the Court of Appeals, and his successor as trial judge was not
immediately appointed, nor another judge detailed to his sala.
Records show that on June 21, 1995, hearing was postponed for lack of proof of notice to
the accused and their counsel. The hearing on July 17, 1995, was postponed upon motion of the
private prosecutor without objection from petitioners counsel. The hearing set on July 24, 1995
was reset, despite the presence of petitioner and his counsel, because of lack of proof of service
of notice to co-accused Dante Duldulao and the spouses Susencio and Guillerma Cruz.[12]
As observed by respondent appellate court, delay in the trial was due to circumstances
beyond the control of the parties and of the trial court. The first and third postponements were
clearly justified on the ground of lack of notice to accused, co-accused, and/or counsel. Another
was made without objection from petitioners counsel. However, on September 8, 1995, counsel
for petitioner moved for dismissal of this case, because of the absence of the private prosecutor
due to a severe attack of gout and arthritis, although he had sent his associate lawyer acceptable
to the court.[13] All in all, there were only three re-setting of hearing dates. Thus, after a closer
analysis of these successive events, the trial court realized that the dates of the hearings were
transferred for valid grounds. Hence, the trial court set aside its initial order and reinstated the
cases against petitioner,[14] which order the appellate court later sustained.
That there was no unreasonable delay of the proceedings is apparent from the chronology of
the hearings with the reasons for their postponements or transfers. Petitioner could not refute the
appellate courts findings that petitioners right to speedy trial had not been violated. As both the
trial and appellate courts have taken pains to demonstrate, there was no unreasonable, vexatious
and oppressive delay in the trial. Hence, there was no violation of petitioners right to speedy trial
as there were no unjustified postponements which had prolonged the trial for unreasonable
lengths of time.[15]
There being no oppressive delay in the proceedings, and no postponements unjustifiably
sought, we concur with the conclusion reached by the Court of Appeals that petitioners right to
speedy trial had not been infringed. Where the right of the accused to speedy trial had not been
violated, there was no reason to support the initial order of dismissal.
It follows that petitioner cannot invoke the constitutional right against double jeopardy when
that order was reconsidered seasonably.[16] For as petitioners right to speedy trial was not
transgressed, this exception to the fifth element of double jeopardy that the defendant was
acquitted or convicted, or the case was dismissed or otherwise terminated without the express
consent of the accused was not met. The trial courts initial order of dismissal was upon motion of
petitioners counsel, hence made with the express consent of petitioner. That being the case,
despite the reconsideration of said order, double jeopardy did not attach. As this Court had
occasion to rule in People vs. Tampal, (244 SCRA 202) reiterated in People vs. Leviste,[17] where
we overturned an order of dismissal by the trial court predicated on the right to speedy trial

It is true that in an unbroken line of cases, we have held that the dismissal of cases on the ground
of failure to prosecute is equivalent to an acquittal that would bar further prosecution of the
accused for the same offense. It must be stressed, however, that these dismissals were predicated
on the clear right of the accused to speedy trial. These cases are not applicable to the petition at
bench considering that the right of the private respondents to speedy trial has not been violated
by the State. For this reason, private respondents cannot invoke their right against double
jeopardy.

Both the trial court and the Court of Appeals were thus not in error when they allowed
reinstatement of the cases against petitioner.
WHEREFORE, the resolutions of the Court of Appeals in CA-G.R. No. SP-42312, dated
November 21, 1996 and January 7, 1997, which upheld the orders of the Regional Trial Court of
Makati, Branch 139, in Criminal Cases Nos. 91-6761-62, are hereby AFFIRMED. Costs against
petitioner.
SO ORDERED.

G.R. No. 108120 January 26, 1994

THE COMMISSION ON ELECTIONS AND SIXTO B. DELA VICTORIA, petitioners,

vs.
THE COURT OF APPEALS, THE OFFICE OF THE SOLICITOR GENERAL, and
CONGRESSMAN CARMELO J. LOCSIN, respondents.

Froilan R. Montalban, Sr. for petitioner Sixto B. Dela Victoria.

Escalon Law Office for private respondent.

QUIASON, J.:

This is an appeal by certiorari to set aside the Decision of the Court of Appeals in CA-G.R. SP
No. 26047, ordering the dismissal of Criminal Case No. B-1588 against respondent Carmelo J.
Locsin pending before the Regional Trial Court, Branch XIV, Baybay, Leyte.

Petitioner Sixto B. dela Victoria was a candidate at the February 1, 1988 special elections for
Mayor of Albuera, Leyte. He lost the mayoralty election to Genoveva Mesina, who belonged to
the same political party as respondent Camilo J. Locsin's, the duly elected Congressman of the
Fourth District of Leyte.

On February 8, 1990, an information was filed by the Commission on Elections before the
Regional Trial Court, Branch XIV, Baybay, Leyte (Criminal Case N. B-1588), charging
respondent Locsin with violation of Section 261 (f) of the Omnibus Election Code of the
Philippines (B.P. Blg. 881). Respondent Locsin was accused of intimidating the members of the
Municipal Board of Canvassers of Albuera, Leyte during the canvassing of election returns in
said province and preventing them from performing their functions and duties.

When arraigned, respondent Locsin entered a plea of not guilty and trial commenced
accordingly.

After the prosecution had rested its case, respondent Locsin filed a Demurrer to Evidence,
claiming that the prosecution failed to adduce the sufficient evidence to prove his guilt. The
prosecution filed its Comment and Opposition thereto.

In an order dated August 9, 1991, the trial court denied the demurrer and calendared the
reception of evidence for respondent Locsin.

On September 23, 1991, respondent Locsin, alleging grave abuse of discretion on the part of the
trial court in denying his demurrer to evidence, filed with the Court of Appeals a petition
for certiorari and prohibition to set aside the Order dated August 9, 1991 of the trial court (CA-
G.R. SP No. 26047).

As ordered by the Court of Appeals, the Solicitor General filed his comment to the petition.
Instead of praying for the dismissal of the petition, the Solicitor general recommended that the
criminal case against respondent Locsin be dismissed since the prosecution "utterly failed to
come up with even a single iota of evidence which would positively or remotely link petitioner to
any coercive act charged under the Information" (Rollo, p. 85).

The Solicitor General pointed out that:

(1) The Chairman and Secretary of the Municipal Board of Canvassers whom the
prosecution claimed were the ones whose official functions were obstructed by
the acts of coercion And intimidation of private respondent, denied that the latter
had committed such acts of coercion and intimidation.

(2) Petitioner Dela Victoria and his companions were able to take photographs of
the canvassing, freely and without obstruction from anyone. Petitioner admitted
that he and his photographer were never prevented from taking pictures of
canvassing.

(3) The minutes of the canvassing did not indicate any untoward incident taking
place.

(4) Petitioner admitted that he saw private respondent when the latter was at the
Office of the Election Register. The canvassing was done at the session hall of the
municipal building.

(5) There is no basis for the trial court's conclusion that private respondent was
responsible for the presence of soldiers in the municipal building. The trial court's
conclusions that private respondent had something to do with the sending of the
 soldiers because they arrived at the municipal building about the same time is
tenuous and conjectured.

(6) The police blotter (Exh. R) had entries stating that the soldiers were sent to the
municipal building to observe the peace and order and some of the soldiers were
even tasked by the COMELEC Register to perform some election chores (Rollo,
pp. 85-90).

On May 7, 1992, the Court of Appeals granted the petition for certiorari, disposing as follows:

WHEREFORE, in view of the foregoing, the Petition is hereby GRANTED

dismissing Criminal Case No. B-1588 and the Order dated August 9, 1991 issued
by the respondent Judge is ANNULLED without pronouncement as to costs.

SO ORDERED.

Hence, this petition.

II

The instant petition was filed by petitioners under Rule 65 of the Revised Rules of Court,
alleging grave abuse of discretion amounting to lack of jurisdiction on the part of the Court of
Appeals in granting the petition for certiorari. The judgment, being final and on the merits, the
remedy therefrom provided by the Rules of Court is an appeal under Rule 45. However, so as to
avoid dismissing the petition on a technicality, we can and we shall treat the petition as an appeal
under Rule 45 (Tesorero v. Mathay, 185 SCRA 124 [1990]; Mathay v. Melicor, 181 SCRA 811
[1990]; Elks Club v. Rovira, 80 Phil. 272 [1948]).

Respondents Locsin and the Solicitor general separately contend : (i) that the COMELEC and
petitioner Dela Victoria have no personality nor authority to file the instant petition; and (ii) that
its filing places respondent Locsin in double jeopardy.

According to respondent Locsin, considering that the criminal action that was ordered dismissed
by the Court of Appeals in the name of the People of the Philippines, only the Solicitor General
can file the instant petition.

Private respondent finds comfort from Republic v. Partisala, 118 SCRA 370 (1982) and City
Fiscal of Tacloban v.Espina, 166 SCRA 614 (1988), where we held that only the Solicitor
General may bring or defend actions on behalf of the Republic of the Philippines, or represent
the People in criminal proceedings pending in this Court or the Court of Appeals.

However, in a subsequent case, that of People v. Calo, 186 SCRA 620 (1990) we relaxed the rule
laid down in Partisala and Espina, and allowed the complainant to file the petition
for certiorari and prohibition to annul an order of the respondent judge, admitting the accused to
bail in a murder case, without any hearing having been conducted on the bail petition. We noted
that "the ends of substantial justice would be better served, and the issues in this case could be
determined in a more just, speedy and inexpensive manner, by entertaining the petition at bar. As
an offended party in a criminal case, private petitioner has sufficient personality and a valid
grievance against Judge Adao's order granting bail to the alleged murderers of his (private
respondent's) father."

In view of the peculiar circumstances of the case at bench, where the Solicitor general chose to
take side with the accused in the election case being prosecuted by the COMELEC, it is but
proper to extend the ruling in Calo to such a government agency entrusted with the prosecution
of criminal cases. It is likewise appropriate to recognize its right to file special civil actions
before the appellate courts in cases where the Solicitor General assumes a position antagonistic
to that of said agency.

The COMELEC has sufficient interest in filing the petition to set aside the decision of the Court
of Appeals having sustained the demurrer to evidence in the criminal case against private
respondent for violation of the Election Laws. This is so, for it is not only entrusted with the duty
to enforce the said law but also to prosecute all election offenses.

Under the Constitution, the COMELEC has the power to "prosecute cases of violations of
election laws, including acts or omissions constituting election frauds, offenses, and
malpractices" (Art. IX [C], Sec. 2 [6]), and under the Omnibus Election Code, (BP Blg. 881), it
may avail of the assistance of other prosecution arms of the government (Sec. 265). Thus, the
COMELEC Rules of Procedure gave the Chief State, Provincial and City Prosecutors a
continuing authority "as deputies" to prosecute offenses punishable under the election laws
(COMELEC Rules of Procedure, Part 12, Rule 34, Sec. 2).

We have allowed government agencies to handle their cases before appellate courts, to the
exclusion of the Solicitor General. In Development Bank of the Philippines v. Pundogar, 218
SCRA 118 (1993), we held:

Government agencies, including government corporations, must look at the

Solicitor General in the first instance, to represent them in legal proceedings.
However, in much the same way that the Solicitor General is not absolutely
required to represent a government agency, neither is the latter absolutely
compelled to avail of the Solicitor General's services. A justifiable departure from
the general rule is when the agency has lost confidence in the Solicitor general, as
demonstrated by its past actuations exemplified in the instant case where the DBP
would rather rely on its 'in house' resources for legal services.

On their part, petitioners question the dismissal of the criminal case against respondent Locsin by
the Court of Appeals.

Demurrer to evidence is governed by Section 15, Rule 119 of the 1985 Rules on Criminal
Procedure, which reads as follows:

After the prosecution has rested its case, the court may dismiss the case on the
ground of insufficiency of evidence: (1) on its own initiative after giving the
 prosecution an opportunity to be heard; and (2) on motion of the accused filled
with prior leave of court.

If the court denies the motion for dismissal, the accused may adduce evidence in
his defense. When the accused files such motion to dismiss without express leave
of court, he waives the right to present evidence and submits the case for
judgment on the basis of the evidence for the prosecution.

After the prosecution has rested its case in a criminal action, the court, motu proprio, or on
motion of the accused with prior leave of court, may dismiss the case against the accused on the
ground of insufficiency of evidence.

If the accused moves for the dismissal with prior leave of court, and the court denies the same,
the accused may present evidence to substantiate his defense. If he, however, fails to secure leave
of court and the demurrer to evidence is denied, he is deemed to have waived his right to present
evidence and consequently submits the case for judgment on the basis of the evidence for the
prosecution.

The granting of the demurrer to evidence by the court produces a different effect altogether. The
case is ordered dismissed, and the order of dismissal being on the merits, is equivalent to an
acquittal from which the prosecution cannot appeal, as it would place the accused in double
jeopardy (People v. City Court of Silay, 74 SCRA 247 [1976]).

The Court of Appeals upheld the Solicitor General's recommendation to dismiss Criminal Case
No. B-1588 on the ground of insufficiency of evidence.

In so doing, the Court of Appeals reviewed the evidence of the prosecution and found it
insufficient to sustain a finding of guilt on the part of the accused. Hence, the Court of Appeals
concluded:

As such, when respondent Judge denied the petitioner's demurrer to evidence, he

committed grave abuse of discretion for failing to consider the testimonies of the
witnesses presented, thus certiorari lies against him.

Being a decision on the merits, this dismissal amounts to an acquittal of the accused from the
offense charged.

We are bound by the dictum that whatever error may have been committed effecting the
dismissal of the case, this cannot now be corrected because of the timely plea of double jeopardy
(People v. Francisco, 128 SCRA 110 [1984]; People v. City Court of Silay, supra; City Fiscal of
Cebu v. Kintanar, 32 SCRA 601 [1970]; People v. Nieto, 103 Phil. 1133 [1958]).

Double jeopardy attaches when the accused, charged in a valid complaint or information before a
competent court, is acquitted or convicted or the case is unconditionally dismissed without his
express consent after he has been arraigned and entered a plea (1985 Rules on Criminal
Procedure, Rule 117,
Sec. 7; People v. Quizada, 160 SCRA 517 [1988]; People v. Bocar, 138 SCRA 166 [1985]).

Nevertheless, even if the motion to dismiss the case is made with his consent or by the accused
himself, double jeopardy may be attached in two instances: (i) when the ground is insufficiency
of the evidence for the prosecution, and (ii) when the proceedings have been prolonged
unreasonably, in violation of the accused's right to speedy trial (People v. Gines, 197 SCRA 481
[1991]; People v. Declaro, 170 SCRA 142 [1989]; People v. Acosta, 25 SCRA 823 [1968]).

Petitioners claim that there was collusion between respondent Locsin and the Solicitor general as
shown by the latter's act of abandoning his legal duty to defend the government and its officials
before the courts.

We do not find any impropriety on the part of the Solicitor General in recommending the
dismissal of the case. As the official in control of criminal cases before the appellate courts, he
may abandon or discontinue the prosecution of the case in the exercise of his sound discretion
(Calderon v. Solicitor General, 215 SCRA 876 [1992]; Gonzales v. Chavez, 205 SCRA 816
[1992]).

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

G.R. No. 44205 February 16, 1993

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. GREGORIO G. PINEDA, Branch XXI, Court of First Instance of Rizal, and
CONSOLACION NAVAL, respondents.

The Solicitor General for petitioner.

Salonga. Ordoñez, Yap & Associates for private respondent.

MELO, J.:

When Consolacion Naval, the herein private respondent, was separately accused of having
committed the crime of estafa in Criminal Case No. 15795 before Branch 19, and of falsification
in Criminal Case No. 15796 before Branch 21, both of the then Court of First Instance of Rizal
of the Seventh Judicial District stationed at Pasig, Rizal, she sought the quashal of the latter
charge on the supposition that she is in danger of being convicted for the same felony (p. 16,
Record). Her first attempt in this respect did not spell success
(p. 34, Record) but the Honorable Gregorio G. Pineda, Presiding Judge of Branch 21 was
persuaded to the contrary thereafter on the belief that the alleged falsification was a necessary
means of committing estafa (p. 149, Record). It is this perception, along with the denial of the
motion for re-evaluation therefrom (p. 66, Record) which the People impugns via the special
civil action for certiorari now before Us.

The indictment for estafa against Consolacion Naval and her co-accused Anacleto Santos, reads:

That on or about March 23, 1973 and soon thereafter, in the municipality of Pasig,
province of Rizal, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring and confederating together and mutually
helping and aiding one another, by means of deceit and with intent to defraud,
knowing that their parcel of land among others, situated in Malaking Bundok,
Barrio Dolores, Taytay, Rizal, and more particularly described as follows, to wit:

OJA No. 5851

Isang lagay na lupa (bulubundukin) na nasa lugar ng Malaking

Bundok, Bo. Dolores, Taytay, Rizal, na may lawak na 14,615.5
metrong parisukat na may tasang P580.00 at may hanggahang gaya
ng sumusunod: Hilagaan-Hermogenes Naval (now part of Rev.
Tax Dec. 9284; Silanganan-Nicolas del Rosario (now Jaime del
Rosario); Timugan-Eduvigis, Consolacion, Apolinaria, Naval;
Kanluran-Creek (sapang bato)

was already sold and encumbered to one Edilberto V. Ilano as can be gleaned
from a document entitled "Kasulatan ng Bilihan Ng Lupa Na May Pasubali O
Condicion" sometime on August 12, 1969; and the latter having paid the partial
amount of P130,850.00 to the herein accused and without informing said
Edilberto V. Ilano, the herein accused Consolacion Naval executed and filed an
Application for Registration over the same parcel of land among others, which
document is designated as LRC Case No. N-7485, "Consolacion, Eduvigis and
Apolinaria, all surnamed Naval" of the Court of First Instance of Rizal, Pasig,
Rizal, as a result of which the Presiding Judge of Branch XIII to which said case
was assigned issued Original Certificate of Title No. 9332 in her name, which
area was reduced to 10,075 sq. meters as appearing in item No. 2 in said OCT and
subsequently referred to in TCT No. 370870 in favor of said accused Naval
through Rodolfo Mendoza, sold more than one-half (1/2) of said parcel of land in
her name in favor of Maria, Anacleto, Carmelo, Mariano, Cecilia and Teodorica,
all surnamed Santos and Iluminada Tambalo, Pacita Alvarez and Pedro Valesteros
which sales were registered and annotated with the Register of Deeds of Rizal at
Pasig, Rizal; and likewise a portion of which was partitioned to herein accused
Anacleto Santos; that despite repeated demands the accused refused and still
refuse to return said amount and/or fulfill their obligations under said "Kasulatan
 Ng Bilihan Ng Lupa Na May Pasubali O Condicion", to the damage and prejudice
of said Edilberto V. Ilano in the aforementioned amount of P130,850.00. (pp. 44-
45, Rollo)

while the charge for falsification narrates:

That on or about the 17th day August, 1971, in the municipality of Pasig,
province of Rizal, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, being then private individual did then and there
wilfully, unlawfully and feloniously falsify a public document by making
untruthful statements in a narration of facts, committed as follows: the said
accused on August 17, 1971, executed a document entitled "Application For
Registration" for parcels of land located at Taytay, Rizal, to the effect that "She is
the exclusive owner in fee simple of a parcel of land situated in Malaking
Bundok, Barrio Dolores, Taytay, Rizal with Psu-248206 and that she "does not
know any mortgage or encumbrance of any kind whatsoever affecting said land or
that any person has estate or interest therein, legal or equitable, in possession
remainder, reversion or expectancy", as a result of which the Court in its Decision
of March 22, 1972 declared the herein accused the true and absolute owner of said
parcel of land free from all liens and encumbrances of any nature, when in truth
and in fact the herein accused has already sold and encumbered to one Edilberto
V. Ilano said parcel of land referred to above as can be gleaned from a document
entitled "Kasulatan Ng Bilihan Ng Lupa Na May Pasubali O Condicion" dated
August 12, 1969 and said Edilberto V. Ilano has already paid partial amount of
P130,850.00 to the herein accused.

Contrary to law. (p. 2, Rollo)

The confluence of the foregoing assertions disclose that Consolacion Naval sold the subject
realty on August 12, 1969 to Edilberto Ilano who made a partial payment of P130,850.00. About
two years later, or on August 17, 1971, an application for registration under the Land
Registration Act was submitted by Consolacion wherein she stated that she owned the same lot
and that it was unencumbered. For those reasons, the corresponding title was issued in her name
but she allegedly disposed of the half portion of the property to nine other persons.

These antecedents spawned the simultaneous institution of the charges on September 17, 1975.

On October 28, 1975, private respondent Consolacion Naval moved to quash the information for
falsification, premised, among other things, on the apprehension that she is in danger of being
condemned for an identical offense. The following day, Naval pleaded not guilty to the charge
levelled against her for falsification (p. 22, Record) and on December 22, 1975, the court a
quo denied her motion to quash (p. 34, Record).

As earlier intimated, the magistrate below thereafter reconsidered his order of denial which gave
rise to the corresponding unsuccessful bid by the People for reinstatement of the information for
falsification.
Hence the instant petition, which practically reiterates the same disqualification put forward in
the proceedings below (p. 7, Petition; p. 47, Rollo).

The issue of whether the court below correctly quashed the information for falsification must be
answered in the negative for the following reasons:

1. Assuming in gratia argumenti that falsification was indeed necessary to commit estafa, which
ordinarily constitutes a complex crime under Article 48 of the Revised Penal Code and thus
susceptible to challenge via a motion to quash under Section 2 (e), Rule 117 vis-a-vis Section 12,
Rule 110 (Moran, Rules of Court, Vol. 4, 1980 Ed., p. 42; 230), still, it was serious error on the
part of the magistrate below to have appreciated this discourse in favor of private respondent
since this matter was not specifically raised in the motion to quash filed on October 28, 1975 (p.
16, Record). It was only in the motion for reconsideration where private respondent pleaded this
additional ground after her motion to quash was denied (p. 39, Record). The legal proscription
against entertaining another saving clause to abate the charge for falsification is very explicit
under Section 3, Rule 117 of the Revised Rules of Court:

Sec. 3. Motion to quash — Form and contents — Failure to state objection —

Entry of record — Failure to record. — The motion to quash shall be in writing
signed by the defendant or his attorney. It shall specify distinctly the ground of
objection relied on and the court shall hear no objection other than that stated in
the motion. It shall be entered of record but a failure to so enter it shall not affect
the validity of any proceeding in the case.

It must be observed that the denial of the motion to quash was re-examined not in the light of
"res judicata dressed in prison grey" but on the aspect of whether falsification was supposedly
perpetrated to commit estafa. The course of action pursued by the trial court in this context may
not even be justified under Section 10 of Rule 117 which says that:

Sec. 10. Failure to move to quash — Effect of — Exceptions. — If the defendant

does not move to quash the complaint or information before he pleads thereto he
shall be taken to have waived all objections which are grounds for a motion to
quash except when the complaint or information does not charge an offense, or
the court is without jurisdiction of the same. If, however, the defendant learns
after he has pleaded or has moved to guash on some other ground that the offense
for which he is now charged is an offense for which he has been pardoned, or of
which he has been convicted or acquitted or been in jeopardy, the court may in its
discretion entertain at any time before judgment a motion to quash on the ground
of such pardon, conviction, acquittal or jeopardy.

for the simple reason that the theory of a single crime advanced by private respondent in her
belated, nay, "second" motion to quash couched as motion for reconsideration is not synonymous
with "pardon, conviction, acquittal or jeopardy". In effect, therefore, respondent judge
accommodated another basis for the quashal of the information albeit the same was not so stated
in the motion therefor. This should not have been tolerated because it is anathema to the
foregoing proviso (Moran, supra, at p. 283, citing Suy Sui vs. People, 49 O.G. 967).
This caveat is now amplified in Section 8 of Rule 117 as amended, thus:

Sec. 8. Failure to move to quash or to allege any ground therefor. — The failure
of the accused to assert any ground of a motion to quash before he pleads to the
complaint or information, either because he did not file a motion to quash or
failed to allege the same in said motion shall be deemed a waiver of the grounds
of a motion to quash, except the grounds of no offense charged, lack of
jurisdiction over the offense charged, extinction of the offense or penalty and
jeopardy, as provided for in paragraphs (a), (b), (f) and (h) of Section 3 of this
Rule.

At any rate, it is virtually unacceptable to suppose that private respondent concocted the sinister
scheme of falsification in 1971 precisely to facilitate the commission of estafa in 1973 such that
both crimes emanated from a single criminal impulse. Otherwise, an unfounded verisimilitude of
this nature will run afoul with what this Court already observed in People vs. Penas (68 Phil. 533
[1939]; 1 Aquino, Revised Penal Code, 1976 Ed., p. 574) to the effect that the eleven estafas
through falsification which the same accused therein committed between November 24, 1936
and January 3, 1937 including the falsification which he committed on January 8, 1937 were
considered distinct offenses, not one complex crime, because they were committed on different
dates, not to mention the discrepancy in places where they were accomplished.

In the same breath, it necessarily follows that the suspended hiatus, between 1971 and 1973 in
the case at bar will not afford the occasion to buttress the unwarranted submission that the first is
an integral part of or intimately interwoven with the second felony. A simple perusal of the two
informations will disclose, and this cannot be gainsaid, that the recitals thereof radically differ
with each other. The indictment for falsification allegedly perpetrated in 1971 was levelled
against private respondent because of the pretense in the application for registration of her
exclusive dominion over a parcel of land notwithstanding the previous sale of the same lot in
1969 to Edilberto V. Ilano. By contrast, the inculpatory aspersions against private respondent in
1973 for estafa have their roots in the overt act of disposing the same piece of lot in favor of
other persons subsequent to the conveyance in favor of Edilberto V. Ilano in 1969. Indeed, the
intent to prevaricate on a piece of document for the purpose of securing a favorable action for
registration within the context of Article 171 (4) in conjunction with Article 172 of the Revised
Penal Code is definitely distinct from the perceived double sale contemplated by the first
paragraph under Article 316 of the same code.

2. It was similarly fallacious for the lower court to have shared the notion that private respondent
is in danger of being convicted twice for the same criminal act, a circumstance recognized under
Section 2(h) Rule 117 of the Old Rules as suggested in the motion to quash, because this plea is
understood to presuppose that the other case against private respondent has been dismissed or
otherwise terminated without her express consent, by a court of competent jurisdiction, upon a
valid complaint or information, and after the defendant had pleaded to the charge (People of the
Philippines versus Hon. Maximiano C. Asuncion, et al., G.R. Nos. 83837-42, April 22,
1992; Section 7, Rule 117, 1985 Rules on Criminal Procedure, as amended). In
the Asuncion case, Justice Nocon said that:
 . . . according to a long line of cases, in order that a defendant may successfully
allege former jeopardy, it is necessary that he had previously been (1) convicted
or (2) acquitted, or (3) in jeopardy of being convicted of the offense charged, that
is, that the former case against him for the same offense has been dismissed or
otherwise terminated without his express consent, by a court of competent
jurisdiction, upon a valid complaint or information, and after the defendant had
pleaded to the charge.

Withal, the mere filing of two informations charging the same offense is not an appropriate basis
for the invocation of double jeopardy since the first jeopardy has not yet set in by a previous
conviction, acquittal or termination of the case without the consent of the accused (People vs.
Miraflores, 115 SCRA 586 [1982]; Nierras vs. Dacuycuy, 181 SCRA 8 [1990]).

In People vs. Miraflores (supra), the accused therein, after he had pleaded to the charge of
multiple frustrated murder in Criminal Case No. 88173 and subsequent to his arraignment on a
separate charge of Murder in Criminal Case No. 88174, invoked the plea of double jeopardy but
Justice Barredo who spoke for the Court was far from convinced:

But the more untenable aspect of the position of appellant is that when he invoked
the defense of double jeopardy, what could have been the first jeopardy had not
yet been completed or even began. It is settled jurisprudence in this Court that the
mere filing of two informations or complaints charging the same offense does not
yet afford the accused in those cases the occasion to complain that he is being
placed in jeopardy twice for the same offense, for the simple reason that the
primary basis of the defense of double jeopardy is that the accused has already
been convicted or acquitted in the first case or that the same has been terminated
without his consent. (Bulaong vs. People, L-19344, July 27, 1966, 17 SCRA 746;
Silvestre vs. Military Commission No. 21, No. L-46366, March 8, 1978,
Buscayno vs. Military Commissions Nos. 1, 2, 6 and 25, No. L-58284, Nov. 19,
1981, 109 SCRA 273).

Moreover, it appears that private respondent herein had not yet been arraigned in the previous
case for estafa. Thus, there is that other missing link, so to speak, in the case at bar which was
precisely the same reason utilized by Justice Davide, Jr. in Lamera vs. Court of Appeals (198
SCRA 186 [1991]) when he brushed aside the claim of double jeopardy of the accused therein
who was arraigned in the previous case only after the judgment of conviction was promulgated
in the other case. The ponente cited a plethora of cases in support of the proposition that
arraignment of the accused in the previous case is a condition sine qua non for double jeopardy
to attach (at page 13: People vs. Ylagan, 58 Phil. 851; People vs. Consulta, 70 SCRA 277;
Andres v. Cacdac, 113 SCRA 216; People vs. Bocar, et al., 132 SCRA 166; Gaspar vs.
Sandiganbayan, 144 SCRA 415) and echoed the requisites of legal jeopardy as announced
in People vs. Bocar thus:

Legal jeopardy attaches only (a) upon a valid indictment, (b) before a competent
court, (c) after arraignment, (d) a valid plea having been entered, and (e) the case
 was dismissed or otherwise terminated without the express consent of the
accused. (at p. 193.)

To be sure, Chief Justice Moran said in his treatise on the subject under consideration that:

Where there is no former conviction, acquittal, dismissal or termination of a

former case for the same offense, no jeopardy attaches. (Comments on the Rules
of Court, by Moran, Vol. 4, 1980 Ed., p. 281)

Of course, We are not unmindful of the erudite remarks of Mr. Justice Florenz D. Regalado, in
his Remedial Law Compendium that:

It would now appear that prior conviction or acquittal in the first case, as long as
the accused had entered his plea therein is no longer required in order that the
accused may move to quash a second prosecution for the same offense on the
ground of double jeopardy. (Volume 2, 1988 Edition, page 323; 339)

xxx xxx xxx

Jeopardy attaches from the entry of his plea at the arraignment (People vs. City
Court of Manila, et al., L-3642, April 27, 1983). (Vide page 327).

The sentiments expressed in this regard by Our distinguished colleague which rest on the ruling
of this Court in People vs. City Court of Manila, Branch XI (121 SCRA 637 [1983], cited
by Regalado, Vide, at p. 339 to the effect that jeopardy would already attach when the accused
enters his plea due to the obiter dictum of the ponente in that case, based on the following factual
backdrop:

The question presented in this case is whether a person who has been prosecuted
for serious physical injuries thru reckless imprudence and convicted thereof may
be prosecuted subsequently for homicide thru reckless imprudence if the offended
party dies as a result of the same injuries he had suffered.

xxx xxx xxx

In the case at bar, the incident occurred on October 17, 1971. The following day,
October 18, an information for serious physical injuries thru reckless imprudence
was filed against private respondent driver of the truck. On the same day, the
victim Diolito de la Cruz died.

On October 20, 1972, private respondent was arraigned on the charge of serious
physical injuries thru reckless imprudence. He pleaded guilty, was sentenced to
one (1) month and one (1) day of arresto mayor, and commenced serving
sentence.
 On October 24, 1972, an information for homicide thru reckless imprudence was
filed against private respondent.

On November 17, 1972, the City Court of Manila, upon motion of private
respondent, issued an order dismissing the homicide thru reckless imprudence
case on the ground of double jeopardy.

where it was opined, thus:

Well-settled is the rule that one who has been charged [implying that there is no
need to show previous conviction, acquittal, or dismissal of a similar or identical
charge] with an offense cannot be charged again with the same or identical
offense though the latter be lesser or greater than the former. (Emphasis supplied.)

From the conclusion thus reached, it would appear that one simply "charged" may claim possible
jeopardy in another case. However, a closer study of the case adverted to reveals that
the ponente may have overlooked the fact that the accused therein was not only charged, but he
actually admitted his guilt to the charge of serious physical injuries through reckless imprudence
and more importantly, he was convicted of such crime and commenced serving sentence. Verily,
there was no occasion in said case to speak of jeopardy being properly invoked by a person
simply charged with an offense if he is again charged for the same or identical offense. It may be
observed that in City Court of Manila the accused therein pleaded on the first offense of which
he was charged and subsequently convicted, unlike in the scenario at bar where private
respondent entered her plea to the second offense. But the variance on this point is of no
substantial worth because private respondent's plea to the second offense is, as aforesaid, legally
incomplete to sustain her assertion of jeopardy for probable conviction of the same felony,
absent as there is the previous conviction, acquittal, or termination without her express consent
of the previous case for estafa, and it being plain and obvious that the charges did not arise from
the same acts. In short, in order for the first jeopardy to attach, the plea of the accused to the
charge must be coupled with either conviction, acquittal, or termination of the previous case
without his express consent thereafter. (Tolentino vs. De la Costa, 66 Phil. 97 [1938]). Justice
Oscar Herrera, in his book "Remedial Law" enumerates the elements constitutive of first
jeopardy, to wit:

1. Court of competent jurisdiction;

2. Valid complaint or information;

3. Arraignment and a

4. Valid plea (People vs. Ylagan, 58 Phil. 851; 853)

5. The defendant was acquitted or convicted or the case was dismissed or

otherwise terminated without the express consent of the accused (People vs.
Declaro, G.R. No. 64362, February 9, 1989, 170 SCRA 142; See also People vs.
Santiago, 174 SCRA 143; People vs. Gines, G.R. No. 83463, May 27, 1991, 197
 SCRA 481; Que vs. Cosico, 177 SCRA 410 [1989]; Caes vs. Intermediate
Appellate Court, 179 SCRA 54; Lamera vs. Court of Appeals, 198 SCRA 186
[1991]). (Herrera, Remedial Law, 1992 Ed., Volume 4, p. 417).

Citing cases, both old and of recent vintage, Justice Herrera continues to submit the idea that:

The first jeopardy is said to have validly terminated upon conviction, acquittal or
dismissal of the case or otherwise terminated without the express consent of
defendant (People vs. Garcia, 30 SCRA 150; People vs. Ledesma, 73 SCRA 77;
People vs. Pilpa, 79 SCRA 81; Buscayno vs. Military Commission, 109 SCRA
273; People vs. Cuevo, 104 SCRA 319; Galman, et al. vs. Sandiganbayan, G.R.
No. 72670, September 12, 1987.) (Vide, at page 423).

In People vs. Ledesma (73 SCRA 77 [1976]), Justice Martin declared in no uncertain terms:

. . . In the case before Us, accused-appellee was charged with estafa in Criminal
Case No. 439 before a competent court under a valid information and was duly
convicted as charged. He was therefore placed in legal jeopardy for the crime of
estafa in Criminal Case No. 439 for having failed to turn over the proceeds of the
sale of an Avegon radio in the amount of P230.00 to the offended party. . . . (at p.
81)

The same observation was made by then Justice, later Chief Justice Aquino in People
vs. Pilpa (79 SCRA 81 [1977]):

In synthesis, there is former jeopardy when in the first case there was a valid
complaint or information filed in a court of competent jurisdiction, and after the
defendant had pleaded to the charge, he was acquitted or convicted or the case
against him was terminated without his express consent (People vs. Consulta, L-
41251, March 31, 1976, 70 SCRA 277; People vs. Ylagan, 58 Phil. 851, 853).
(86)

At any rate, and inasmuch as this Court has spoken quite recently in People vs. Asuncion, (G.R.
Nos. 83837-42, April 22, 1992), the ambiguity stirred by the imprecise observation in People
vs. City Court of Manila, a 1983 case, can now be considered modified in that a prior conviction,
or acquittal, or termination of the case without the express acquiescence of the accused is still
required before the first jeopardy can be pleaded to abate a second prosecution.

While We are at a loss as to the status of the progress of the estafa case on account of private
respondent's apathy towards Our order for the parties herein to "MOVE IN THE PREMISES" (p.
125, Rollo) which information could substantially affect the results of this case, from all
indications it appears that the estafa case has not yet been terminated.

WHEREFORE, the petition is GRANTED and the Orders of respondent judge dated January 23,
1976 quashing the information for falsification, and March 23, 1976 denying the People's motion
for reconsideration therefrom are hereby REVERSED and SET ASIDE. Let the information for
falsification be reinstated and this case be remanded to the lower court for further proceedings
and trial. No special pronouncement is made as to costs.

SO ORDERED.

G.R. No. L-45129 March 6, 1987

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
THE HONORABLE BENJAMIN RELOVA, in his capacity as Presiding Judge of the
Court of First Instance of Batangas, Second Branch, and MANUEL
OPULENCIA, respondents.

FELICIANO, J.:

In this petition for certiorari and mandamus, the People of the Philippines seek to set aside the
orders of the respondent Judge of the Court of First Instance of Batangas in Criminal Case No.
266, dated 12 August 1976 and 8 November 1976, respectively, quashing an information for
theft filed against private respondent Manuel Opulencia on the ground of double jeopardy and
denying the petitioner's motion for reconsideration.

On 1 February 1975, members of the Batangas City Police together with personnel of the
Batangas Electric Light System, equipped with a search warrant issued by a city judge of
Batangas City, searched and examined the premises of the Opulencia Carpena Ice Plant and Cold
Storage owned and operated by the private respondent Manuel Opulencia. The police discovered
that electric wiring, devices and contraptions had been installed, without the necessary authority
from the city government, and "architecturally concealed inside the walls of the
building" 1owned by the private respondent. These electric devices and contraptions were, in the
allegation of the petitioner "designed purposely to lower or decrease the readings of electric
current consumption in the electric meter of the said electric [ice and cold storage]
plant." 2 During the subsequent investigation, Manuel Opulencia admitted in a written statement
that he had caused the installation of the electrical devices "in order to lower or decrease the
readings of his electric meter. 3

On 24 November 1975, an Assistant City Fiscal of Batangas City filed before the City Court of
Batangas City an information against Manuel Opulencia for violation of Ordinance No. 1, Series
of 1974, Batangas City. A violation of this ordinance was, under its terms, punishable by a fine
"ranging from Five Pesos (P5.00) to Fifty Pesos (P50.00) or imprisonment, which shall not
exceed thirty (30) days, or both, at the discretion of the court." 4 This information reads as
follows:
 The undersigned, Assistant City Fiscal, accuses Manuel Opulencia y Lat of
violation of Sec. 3 (b) in relation to Sec. 6 (d) and Sec. 10 Article II, Title IV of
ordinance No. 1, S. 1974, with damage to the City Government of Batangas, and
penalized by the said ordinance, committed as follows:

That from November, 1974 to February, 1975 at Batangas City, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, with
intent to defraud the City Government of Batangas, without proper authorization
from any lawful and/or permit from the proper authorities, did then and there
wilfully, unlawfully and feloniously make unauthorized installations of electric
wirings and devices to lower or decrease the consumption of electric fluid at the
Opulencia Ice Plant situated at Kumintang, Ibaba, this city and as a result of such
unathorized installations of electric wirings and devices made by the accused, the
City Government of Batangas was damaged and prejudiced in the total amount of
FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS
(P41,062.16) Philippine currency, covering the period from November 1974 to
February, 1975, to the damage and prejudice of the City Government of Batangas
in the aforestated amount of P41,062.16, Philippine currency.

The accused Manuel Opulencia pleaded not guilty to the above information. On 2 February
1976, he filed a motion to dismiss the information upon the grounds that the crime there charged
had already prescribed and that the civil indemnity there sought to be recovered was beyond the
jurisdiction of the Batangas City Court to award. In an order dated 6 April 1976, the Batangas
City Court granted the motion to dismiss on the ground of prescription, it appearing that the
offense charged was a light felony which prescribes two months from the time of discovery
thereof, and it appearing further that the information was filed by the fiscal more than nine
months after discovery of the offense charged in February 1975.

Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of Batangas City filed before
the Court of First Instance of Batangas, Branch 11, another information against Manuel
Opulencia, this time for theft of electric power under Article 308 in relation to Article 309,
paragraph (1), of the Revised Penal Code. This information read as follows:

The undersigned Acting City Fiscal accuses Manuel Opulencia y Lat of the crime
of theft, defined and penalized by Article 308, in relation to Article 309,
paragraph (1) of the Revised Penal Code, committed as follows:

That on, during, and between the month of November, 1974, and the 21st day of
February, 1975, at Kumintang, lbaba, Batangas City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with intent of gain
and without the knowledge and consent of the Batangas Electric Light System,
did then and there, wilfully, unlawfully and feloniously take, steal and appropriate
electric current valued in the total amount of FORTY ONE THOUSAND, SIXTY
TWO PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine Currency,
to the damage and prejudice of the said Batangas Electric Light System, owned
 and operated by the City Government of Batangas, in the aforementioned sum of
P41,062.16.

The above information was docketed as Criminal Case No. 266 before the Court of First Instance
of Batangas, Branch II. Before he could be arraigned thereon, Manuel Opulencia filed a Motion
to Quash, dated 5 May 1976, alleging that he had been previously acquitted of the offense
charged in the second information and that the filing thereof was violative of his constitutional
right against double jeopardy. By Order dated 16 August 1976, the respondent Judge granted the
accused's Motion to Quash and ordered the case dismissed. The gist of this Order is set forth in
the following paragraphs:

The only question here is whether the dismissal of the first case can be properly
pleaded by the accused in the motion to quash.

In the first paragraph of the earlier information, it alleges that the prosecution
"accuses Manuel Opulencia y Lat of violation of Sec. 3(b) in relation to Sec. 6(d)
and Sec. 10 Article II, Title IV of Ordinance No. 1, s. 1974, with damage to the
City Government of Batangas, etc. " (Emphasis supplied). The first case, as it
appears, was not simply one of illegal electrical connections. It also covered an
amount of P41,062.16 which the accused, in effect, allegedly with intent to
defraud, deprived the city government of Batangas. If the charge had meant illegal
electric installations only, it could have alleged illegal connections which were
done at one instance on a particular date between November, 1974, to February
21, 1975. But as the information states "that from November, 1974 to February
1975 at Batangas City, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused with intent to defraud the City Government of
Batangas, without proper authorization from any lawful and/or permit from the
proper authorities, did then and there wilfully, unlawfully and feloniously make
unauthorized installations of electric wirings and devices, etc." (Emphasis
supplied), it was meant to include the P 41,062.16 which the accused had, in
effect, defrauded the city government. The information could not have meant that
from November 1974 to 21 February 1975, he had daily committed unlawful
installations.

When, therefore, he was arraigned and he faced the indictment before the City
Court, he had already been exposed, or he felt he was exposed to consequences of
what allegedly happened between November 1974 to February 21, 1975 which
had allegedly resulted in defrauding the City of Batangas in the amount of P
41,062.16. (Emphases and parentheses in the original)

A Motion for Reconsideration of the above-quoted Order filed by the petitioner was denied by
the respondent Judge in an Order dated 18 November 1976.

On 1 December 1976, the present Petition for certiorari and mandamus was filed in this Court by
the Acting City Fiscal of Batangas City on behalf of the People.
The basic premise of the petitioner's position is that the constitutional protection against double
jeopardy is protection against a second or later jeopardy of conviction for the same offense. The
petitioner stresses that the first information filed before the City Court of Batangas City was one
for unlawful or unauthorized installation of electrical wiring and devices, acts which were in
violation of an ordinance of the City Government of Batangas. Only two elements are needed to
constitute an offense under this City Ordinance: (1) that there was such an installation; and (2) no
authority therefor had been obtained from the Superintendent of the Batangas City Electrical
System or the District Engineer. The petitioner urges that the relevant terms of the City
Ordinance — which read as follows:

Section 3.-Connection and Installation

(a) x x x

(b) The work and installation in the houses and building and their connection with
the Electrical System shall be done either by the employee of the system duly
authorized by its Superintendent or by persons adept in the matter duly authorized
by the District Engineer. Applicants for electrical service permitting the works of
installation or connection with the system to be undertaken by the persons not
duly authorized therefor shall be considered guilty of violation of the ordinance.

would show that:

The principal purpose for (sic) such a provision is to ensure that electrical
installations on residences or buildings be done by persons duly authorized or
adept in the matter, to avoid fires and accidents due to faulty electrical wirings. It
is primarily a regulatory measure and not intended to punish or curb theft of
electric fluid which is already covered by the Revised Penal Code. 5

The gist of the offense under the City Ordinance, the petitioner's argument continues, is the
installing of electric wiring and devices without authority from the proper officials of the city
government. To constitute an offense under the city ordinance, it is not essential to establish
any mens rea on the part of the offender generally speaking, nor, more specifically, an intent to
appropriate and steal electric fluid.

In contrast, the petitioner goes on, the offense of theft under Article 308 of the Revised Penal
Code filed before the Court of First Instance of Batangas in Criminal Case No. 266 has quite
different essential elements. These elements are:

1. That personal property be taken;

2. That the personal property (taken) belongs to another;

3. That the taking be done with intent of gain;

4. That the taking be done without the consent of the owner; and
 5. That the taking be accomplished without violence against or intimidation of
persons or force upon things. 6

The petitioner also alleges, correctly, in our view, that theft of electricity can be effected even
without illegal or unauthorized installations of any kind by, for instance, any of the following
means:

1. Turning back the dials of the electric meter;

2. Fixing the electric meter in such a manner that it will not register the actual
electrical consumption;

3. Under-reading of electrical consumption; and

4. By tightening the screw of the rotary blade to slow down the rotation of the
same. 7

The petitioner concludes that:

The unauthorized installation punished by the ordinance [of Batangas City] is not
the same as theft of electricity [under the Revised Penal Code]; that the second
offense is not an attempt to commit the first or a frustration thereof and that the
second offense is not necessarily included in the offense charged in the first
inforrnation 8

The above arguments made by the petitioner are of course correct. This is clear both from the
express terms of the constitutional provision involved — which reads as follows:

No person shall be twice put in jeopardy of punishment for the same offense. 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. (Emphasis supplied;
Article IV (22), 1973 Constitution) 9

and from our case law on this point. 10 The basic difficulty with the petitioner's position is that it
must be examined, not under the terms of the first sentence of Article IV (22) of the 1973
Constitution, but rather under the second sentence of the same section. The first sentence of
Article IV (22) sets forth the general rule: the constitutional protection against double jeopardy
is not available where the second prosecution is for an offense that is different from the offense
charged in the first or prior prosecution, although both the first and second offenses may be
based upon the same act or set of acts. The second sentence of Article IV (22) embodies an
exception to the general proposition: the constitutional protection, against double
jeopardy is available although the prior offense charged under an ordinance be different from the
offense charged subsequently under a national statute such as the Revised Penal
Code, provided that both offenses spring from the same act or set of acts. This was made clear
sometime ago in Yap vs. Lutero. 11
In Yap, petitioner Manuel Yap was charged in Criminal Case No. 16054 of the Municipal Court
of Iloilo City, with violation of Article 14 of Ordinance No. 22, Series of 1951, in relation to
Ordinance No. 15, Series of 1954, of the City of Iloilo. The information charged him with having
"wilfully, unlawfully and feloniously drive[n] and operate[d]" an automobile — "recklessly and
without reasonable caution thereby endangering other vehicles and pedestrians passing in said
street." Three months later, Yap was again charged in Criminal Case No. 16443 of the same
Municipal Court, this time with serious physical injuries through reckless imprudence. The
information charged him with violation of the Revised Motor Vehicle Law (Act No. 3992 as
amended by Republic Act No. 587) committed by driving and operating an automobile in a
reckless and negligent manner and as a result thereof inflicting injuries upon an unfortunate
pedestrian. Yap moved to quash the second information upon the ground that it placed him twice
in jeopardy of punishment for the same act. This motion was denied by the respondent municipal
judge. Meantime, another municipal judge had acquitted Yap in Criminal Case No. 16054. Yap
then instituted a petition for certiorari in the Court of First Instance of Iloilo to set aside the order
of the respondent municipal judge. The Court of First Instance of Iloilo having reversed the
respondent municipal judge and having directed him to desist from continuing with Criminal
Case No. 16443, the respondent Judge brought the case to the Supreme Court for review on
appeal. In affirming the decision appealed from and holding that the constitutional protection
against double jeopardy was available to petitioner Yap, then Associate Justice and later Chief
Justice Roberto Concepcion wrote:

To begin with, the crime of damage to property through reckless driving — with
which Diaz stood charged in the court of first instance — is a violation of the
Revised Penal Code (third paragraph of Article 365), not the Automobile Law
(Act No. 3992, as amended by Republic Act No. 587). Hence, Diaz was not twice
accused of a violation of the same law. Secondly, reckless driving and certain
crimes committed through reckless driving are punishable under different
provisions of said Automobile Law. Hence — from the view point of Criminal
Law, as distinguished from political or Constitutional Law — they constitute,
strictly, different offenses, although under certain conditions, one offense may
include the other, and, accordingly, once placed in jeopardy for one, the plea of
double jeopardy may be in order as regards the other, as in the Diaz case.
(Emphases in the original)

Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first
sentence of clause 20, section 1, Article III of the Constitution, ordains that "no
person shall be twice put in jeopardy of punishment for the same offense."
(Emphasis in the original) The second sentence of said clause provides that "if an
act is punishable by a law and an ordinance, conviction or acquittal under either
shall constitute a bar to another prosecution for the same act." Thus, the first
sentence prohibits double jeopardy of punishment for the same offense, whereas
the second contemplates double jeopardy of punishment for the same act. Under
the first sentence, one may be twice put in jeopardy of punishment of the same act
provided that he is charged with different offenses, or the offense charged in one
case is not included in or does not include, the crime charged in the other case.
The second sentence applies, even if the offenses charged are not the same, owing
 to the fact that one constitutes a violation of an ordinance and the other a
violation of a statute. If the two charges are based on one and the same act
conviction or acquittal under either the law or the ordinance shall bar a
prosecution under the other. 12 Incidentally, such conviction or acquittal is not
indispensable to sustain the plea of double jeopardy of punishment for the same
offense. So long as jeopardy has attached under one of the informations charging
said offense, the defense may be availed of in the other case involving the same
offense, even if there has been neither conviction nor acquittal in either case.

The issue in the case at bar hinges, therefore, on whether or not, under the
information in case No. 16443, petitioner could — if he failed to plead double
jeopardy — be convicted of the same act charged in case No. 16054, in which he
has already been acquitted. The information in case No. 16054 alleges,
substantially, that on the date and in the place therein stated, petitioner herein had
wilfully, unlawfully and feloniously driven and operated "recklessly and without
reasonable caution" an automobile described in said information. Upon the other
hand, the information in case No. 16443, similarly states that, on the same date
and in the same place, petitioner drove and operated the aforementioned
automobile in a "reckless and negligent manner at an excessive rate of speed and
in violation of the Revised Motor Vehicle Law (Act No. 3992), as amended by
Republic Act No. 587, and existing city ordinances." Thus, if the theories
mentioned in the second information were not established by the evidence,
petitioner could be convicted in case No. 16443 of the very same violation of
municipal ordinance charged in case No. 16054, unless he pleaded double
jeopardy.

It is clear, therefore, that the lower court has not erred eventually sustaining the
theory of petitioner herein.

Put a little differently, where the offenses charged are penalized either by different sections of
the same statute or by different statutes, the important inquiry relates to the identity of offenses
charge: the constitutional protection against double jeopardy is available only where an Identity
is shown to exist between the earlier and the subsequent offenses charged. In contrast, where one
offense is charged under a municipal ordinance while the other is penalized by a statute, the
critical inquiry is to the identity of the acts which the accused is said to have committed and
which are alleged to have given rise to the two offenses: the constitutional protection against
double jeopardy is available so long as the acts which constitute or have given rise to the first
offense under a municipal ordinance are the same acts which constitute or have given rise to the
offense charged under a statute.

The question may be raised why one rule should exist where two offenses under two different
sections of the same statute or under different statutes are charged, and another rule for the
situation where one offense is charged under a municipal ordinance and another offense under a
national statute. If the second sentence of the double jeopardy provision had not been written into
the Constitution, conviction or acquittal under a municipal ordinance would never constitute a
bar to another prosecution for the same act under a national statute. An offense penalized by
municipal ordinance is, by definition, different from an offense under a statute. The two offenses
would never constitute the same offense having been promulgated by different rule-making
authorities — though one be subordinate to the other — and the plea of double jeopardy would
never lie. The discussions during the 1934-1935 Constitutional Convention show that the second
sentence was inserted precisely for the purpose of extending the constitutional protection against
double jeopardy to a situation which would not otherwise be covered by the first sentence. 13

The question of Identity or lack of Identity of offenses is addressed by examining the essential
elements of each of the two offenses charged, as such elements are set out in the respective
legislative definitions of the offenses involved. The question of Identity of the acts which are
claimed to have generated liability both under a municipal ordinance and a national statute must
be addressed, in the first instance, by examining the location of such acts in time and space.
When the acts of the accused as set out in the two informations are so related to each other in
time and space as to be reasonably regarded as having taken place on the same occasion and
where those acts have been moved by one and the same, or a continuing, intent or voluntary
design or negligence, such acts may be appropriately characterized as an integral whole capable
of giving rise to penal liability simultaneously under different legal enactments (a municipal
ordinance and a national statute).

In Yap, the Court regarded the offense of reckless driving under the Iloilo City Ordinance and
serious physical injuries through reckless imprudence under the Revised Motor Vehicle Law as
derived from the same act or sets of acts — that is, the operation of an automobile in a reckless
manner. The additional technical element of serious physical injuries related to the physical
consequences of the operation of the automobile by the accused, i.e., the impact of the
automobile upon the body of the offended party. Clearly, such consequence occurred in the same
occasion that the accused operated the automobile (recklessly). The moral element of negligence
permeated the acts of the accused throughout that occasion.

In the instant case, the relevant acts took place within the same time frame: from November 1974
to February 1975. During this period, the accused Manuel Opulencia installed or permitted the
installation of electrical wiring and devices in his ice plant without obtaining the necessary
permit or authorization from the municipal authorities. The accused conceded that he effected or
permitted such unauthorized installation for the very purpose of reducing electric power bill.
This corrupt intent was thus present from the very moment that such unauthorized installation
began. The immediate physical effect of the unauthorized installation was the inward flow of
electric current into Opulencia's ice plant without the corresponding recording thereof in his
electric meter. In other words, the "taking" of electric current was integral with the unauthorized
installation of electric wiring and devices.

It is perhaps important to note that the rule limiting the constitutional protection against double
jeopardy to a subsequent prosecution for the same offense is not to be understood with absolute
literalness. The Identity of offenses that must be shown need not be absolute Identity: the first
and second offenses may be regarded as the "same offense" where the second offense necessarily
includes the first offense or is necessarily included in such first offense or where the second
offense is an attempt to commit the first or a frustration thereof. 14 Thus, for the constitutional
plea of double jeopardy to be available, not all the technical elements constituting the first
offense need be present in the technical definition of the second offense. The law here seeks to
prevent harrassment of an accused person by multiple prosecutions for offenses which though
different from one another are nonetheless each constituted by a common set or overlapping sets
of technical elements. As Associate Justice and later Chief Justice Ricardo Paras cautioned
in People vs. del Carmen et al., 88 Phil. 51 (1951):

While the rule against double jeopardy prohibits prosecution for the same offense,
it seems elementary that an accused should be shielded against being prosecuted
for several offenses made out from a single act. Otherwise, an unlawful act or
omission may give use to several prosecutions depending upon the ability of the
prosecuting officer to imagine or concoct as many offenses as can be justified by
said act or omission, by simply adding or subtracting essential elements. Under
the theory of appellant, the crime of rape may be converted into a crime of
coercion, by merely alleging that by force and intimidation the accused prevented
the offended girl from remaining a virgin. (88 Phil. at 53; emphases supplied)

By the same token, acts of a person which physically occur on the same occasion and are infused
by a common intent or design or negligence and therefore form a moral unity, should not be
segmented and sliced, as it were, to produce as many different acts as there are offenses under
municipal ordinances or statutes that an enterprising prosecutor can find

It remains to point out that the dismissal by the Batangas City Court of the information for
violation of the Batangas City Ordinance upon the ground that such offense had already
prescribed, amounts to an acquittal of the accused of that offense. Under Article 89 of the
Revised Penal Code, "prescription of the crime" is one of the grounds for "total extinction of
criminal liability." Under the Rules of Court, an order sustaining a motion to quash based on
prescription is a bar to another prosecution for the same offense. 15

It is not without reluctance that we deny the people's petition for certiorari and mandamus in this
case. It is difficult to summon any empathy for a businessman who would make or enlarge his
profit by stealing from the community. Manuel Opulencia is able to escape criminal punishment
because an Assistant City Fiscal by inadvertence or otherwise chose to file an information for an
offense which he should have known had already prescribed. We are, however, compelled by the
fundamental law to hold the protection of the right against double jeopardy available even to the
private respondent in this case.

The civil liability aspects of this case are another matter. Because no reservation of the right to
file a separate civil action was made by the Batangas City electric light system, the civil action
for recovery of civil liability arising from the offense charged was impliedly instituted with the
criminal action both before the City Court of Batangas City and the Court of First Instance of
Batangas. The extinction of criminal liability whether by prescription or by the bar of double
jeopardy does not carry with it the extinction of civil liability arising from the offense charged.
In the present case, as we noted earlier, 16 accused Manuel Opulencia freely admitted during the
police investigation having stolen electric current through the installation and use of
unauthorized elibctrical connections or devices. While the accused pleaded not guilty before the
City Court of Batangas City, he did not deny having appropriated electric power. However, there
is no evidence in the record as to the amount or value of the electric power appropriated by
Manuel Opulencia, the criminal informations having been dismissed both by the City Court and
by the Court of First Instance (from which dismissals the Batangas City electric light system
could not have appealed 17) before trial could begin. Accordingly, the related civil action which
has not been waived expressly or impliedly, should be remanded to the Court of First Instance of
Batangas City for reception of evidence on the amount or value of the electric power
appropriated and converted by Manuel Opulencia and rendition of judgment conformably with
such evidence.

WHEREFORE, the petition for certiorari and mandamus is DENIED. Let the civil action for
related civil liability be remanded to the Court of First Instance of Batangas City for further
proceedings as indicated above. No pronouncement as to costs.

SO ORDERED.

[G.R. No. 110286. April 2, 1997]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RENERIO P. VERGARA,

ERNESTO T. CUESTA, JR., PEDRO G. DAGAO and BERNARDO P.
CUESTA, accused. RENERIO P. VERGARA, accused-appellant.

DECISION
VITUG, J.:

From the decision, dated 10 February 1993, of the Regional Trial Court, 8th Judicial Region,
Branch 7, in Tacloban City, finding accused Renerio P. Vergara guilty beyond reasonable doubt
in Criminal Case No. 92-09-508 of a violation of Section 33 of Presidential Decree ("P.D.") No.
704, as amended by P.D. No. 1508, an appeal to this Court has been interposed.
Vergara was charged, together with his three co-accused, namely Ernesto T. Cuesta, Jr.,
Pedro G. Dagao and Bernardo P. Cuesta, on 25 September 1992, in an information that read:

"The undersigned Provincial Prosecutor of Leyte accuses Ernesto T. Cuesta, Jr., Pedro G. Dagao,
Renerio P. Vergara and Bernardo P. Cuesta of the crime of Violation of Section 33, Presidential
Decree No. 704, as amended by Presidential Decree No. 1058, committed as follows:

"That on or about the 4th day of July, 1992, in the Municipal waters of Palo, Province of Leyte,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
without any authority of law, conspiring and confederating together and mutually helping one
another, did then and there willfully, unlawfully and criminally catch, take and gather fish
belonging to the anchovies species known locally as 'bolinao', with the use
of explosives contained in a bottle and called in the vernacular as 'badil', which bottled
explosives after being ignited and hurled to the sea, produced explosion and caused the death of
the said fish which were hit or affected by such explosion.

"CONTRARY TO LAW."[1]

Vergara alone was arraigned and brought to trial; his co-accused escaped and remained at
large.
It would appear that at about 7:30 in the morning of 04 July 1992, a team composed of
deputized Fish Warden and President of the Leyte Fish Warden Association Jesus P. Bindoy,
Police Officers Casimiro Villas and Diosdado Moron of the Palo PNP Station, Leyte, Fish
Wardens Mario Castillote and Estanislao Cabreros and Fish Examiner Nestor Aldas of the
Department of Agriculture were on board, "Bantay-Dagat," a pumpboat, on "preventive patrol"
along the municipal waters fronting barangays Baras and Candahug of Palo, Leyte, when they
chanced upon a blue-colored fishing boat at a distance of approximately 200 meters away. The
boat, 30 feet long, had on board appellant Renerio Vergara and his three co-accused Bernardo
Cuesta, Pedro Dagao and Ernesto Cuesta, Jr., and was on parallel course toward the general
direction of Samar.[2] Momentarily, the team saw appellant throw into the sea a bottle known in
the locality as "badil" containing ammonium nitrate and having a blasting cap on top which,
when ignited and thrown into the water, could explode. The explosion would indiscriminately
kill schools and various species of fish within a certain radius. Approximately three seconds after
appellant had thrown the "badil" into the sea, the explosion occurred.Vergara and Cuesta dove
into the sea with their gear while Dagao and Cuesta, Jr., stayed on board to tend to the air hose
for the divers.[3]
The team approached the fishing boat. SPO2 Casimiro Villas boarded the fishing boat while
Fish Warden Jesus Bindoy held on to one end of the boat. Moments later, Vergara and Cuesta
surfaced, each carrying a fishnet or "sibot" filled with about a kilo of "bolinao" fish scooped
from under the water. Having been caught red-handed, the four accused were apprehended and
taken by the patrol team to the "Bantay-Dagat" station at Baras, and later to the police station in
Palo, Leyte. The fishing boat and its paraphernalia, as well as the two fishnets of "bolinao," were
impounded. The accused, however, refused to sign and acknowledge the corresponding receipts
therefor.
On 10 February 1993, following the submission of the evidence, the trial court rendered
judgment convicting Vergara, viz:

"WHEREFORE, said Renerio Vergara is hereby sentenced to a penalty of Twenty (20) years to
life imprisonment as punished under Sec. 2, of PD 1058.

"This Court further orders the confiscation of the fishing boat of Mario Moraleta including the
following equipments: 1 air compressor, 3 sets of air hoses, and the 3 pieces of 'sibot' having
been found to be instruments of the crime.

"SO ORDERED "[4]

 In his appeal, Vergara submitted the following assignment of errors:

"1. THE LOWER COURT COMMITTED GRAVE ABUSE OF AUTHORITY WHEN IT

COMPLETELY IGNORED THE TESTIMONY OF EMILIO LINDE.

"2. THE LOWER COURT COMMITTED GRAVE ABUSE OF AUTHORITY WHEN IT

GAVE MUCH WEIGHT TO BIASED WITNESSES WHOSE TESTIMONIES WERE
GLARINGLY INCONSISTENT.

"3. THE LOWER COURT COMMITTED GRAVE ABUSE OF AUTHORITY WHEN IT

OPENLY SHOWED BIAS AGAINST THE ACCUSED DURING THE TRIAL OF THIS
CASE."[5]

Emilio Linde sought to corroborate the claim of appellant that it was another unidentified
group of fishermen who threw the bottle of explosives at a school of "bolinao" fish. It was
obvious, however, said the trial court, that the statement of this defense witness was incredulous
since he apparently had not at all been on board the fishing boat in the company of the accused at
the time of the incident. Even the rather lengthy counter-affidavit of the four accused completely
missed to mention Linde. The court a quo went on to observe that the demeanor of the accused at
the witness stand and the substance of his testimony failed to elicit belief.
Trial courts are tasked to initially rule on the credibility of witnesses for both the prosecution
and the defense. Appellate courts seldom would subordinate, with their own, the findings of trial
courts which concededly have good vantage points in assessing the credibility of those who take
the witness stand. Nevertheless, it is not all too uncommon for this Court, in particular, to peruse
through the transcript of proceedings in order to satisfy itself that the records of a case do support
the conclusions of trial courts.
Fish Warden Jesus Bindoy gave a detailed account of the 4th July 1992 incident. Thus
"FISCAL DAGANDAN:
"Q In the morning of the 4th day of July, 1992 do you recall where you were?
"A We were on the sea fronting barangays Baras and Candahug.
"Q What municipality?
"A Palo, Leyte.
"Q Did you have anyone with you in this particular incident?
"A Yes, sir.
"Q Who were they?
"A Two policemen Casimiro Villas, Jr. and Diosdado Moron and my fellow fish warden
and one from the Department of Agriculture.
"Q Will you identify your co-fish warden who were present at that time?
"A Mario Castillote, Estanislao Cabreros, Jr.
"Q How about that employee from the Department of Agriculture, who was he?
"A Nestor Aldas.
"Q What were you doing at that particular time on this place fronting barangay Baras
and Barangay Candahug, Palo, Leyte?
"A We were watching for illegal fishers.
"Q What is your authority in this particular task?
"A We are the bantay dagat members of Palo.
Q Do you have any written authoriting evidencing that position?
"A Yes, maam, our deputized ID (witness is showing ID No. 1432-91)
"FISCAL DAGANDAN:
For the records your honor I will quote this ID: This is to certify that Jesus P.
Bindoy is a deputy fish warden vested with full power and authority to enforce all
existing fishery laws, rules and regulations (SGD) Leopoldo Romano, [D]irector,
Department of Agriculture, Region 8.
"FISCAL DAGANDAN:
"Q Since you claimed that you were on the sea fronting barangays Baras and Candahug
in what vehicle were you in at that moment?
"A We were in a motorized pumpboat.
"Q So, what unusual incident if any that transpired?
"A In that morning we saw a blue pump boat which is about 200 meters away from us.
"COURT
What time in the morning?
"A About 7:30 in the morning more or less.
"FISCAL DAGANDAN:
"Q About how long is this colored blue pumpboat?
"A More or less 30 feet.
"Q At about this distance of 200 meters were you able to visualize or see if there were
any passengers in that blue colored pumpboat?
"A Yes, maam.
"Q Were you able to identify them?
"A Yes, sir.
"Q Who were they?
"A The one in front of the pumpboat was Renerio Vergara, Bernardo Cuesta, Pedro
Dagao and Ernesto Cuesta, Jr.
"Q You mentioned of Renerio Vergara, whom you saw in that blue colored pumpboat
and you identified earlier Renerio Vergara. Is he the same person?
"A Yes, they are one and the same person.
"Q At the time you saw these persons loaded in that color blue pumpboat what were
they doing?
"A I saw them paddling.
"Q Towards what direction?
"A Towards the direction of Samar.
"Q And where were you in relation with that pumpboat that was paddled towards Samar
area?
"A We were situated parallel to them.
"Q So what happened at this particular time?
"A That was when we saw Renerio Vergara threw a bottle to the sea and after that we
heard an explosion.
"Q Did you come to know what particular bottle was it thrown to the sea?
"A It was a dynamite (badil).
"Q As a member of this bantay dagat are you familiar with this 'badil' which you earlier
mentioned?
"A Yes, sir.
"Q Will you describe this particular device?
"A This bottle is filled with ammonium nitrate and on top is a blasting cap.
"Q So in case this is used by fishermen, how do they operate this 'badil'?
"A It is ignited and then thrown to the sea and this result in the killing of fishes at the
sea.
"Q In this particular instance when you heard the explosion how far were you to this
blue pumpboat?
"A About 200 meters.
"Q So what did you do after you heard this explosion?
"A After the explosion we slowly approached them.
"Q From the time you saw this bottle being thrown to the sea by Vergara up to the time
you heard this explosion about how many minutes elapsed?
"A About 3 seconds.
"Q At about how near were you to this blue pumpboat?
"A We went near to a distance of one hundred meters.
"Q So, what did you do at this distance?
"A We kept on watching them first and after we knew that the two persons dived to the
sea that was the time that we approached the pumpboat.
"Q Were you able to recognize these two persons who dived?
"A Yes, maam.
"Q Who were they?
"A Renerio Vergara and Bernardo Cuesta.
"Q You said there were four persons loaded in that pumpboat. How about the other two
what were they doing?
"A The two persons were there, one watching the hose that was used by the two persons
who dived for breathing.
"Q So, what else did you do?
"A When we approached the pumpboat it was Casimiro Villas, a policeman who
boarded the pumpboat.
"Q How about you what did you do when Casimiro Villas boarded the pumpboat?
"A I was the one holding on to the blue pumpboat.
"Q So, what else was done if any by the members of your team?
"A While we were there we let the two persons who dived surface and they were
carrying with them fishnet filled with 'bolinao' fish and then we told them that we
will bring them to our temporary station at Baras, Palo.
"Q Do you know the specie of this bolinao?
"A Anchovies.
"Q About how heavy were these fishes of bolinao in the fishnet?
"A About one kilo per fishnet.
"Q How many contraption were carried by them?
"A Each one of them was carrying one 'sibot' (fishnet).
"COURT
So, two divers two nets?
"A Yes, sir.
"Q And each has a catch of one kilo?
"A Almost one kilo.
 "Q So, two nets two kilos more or less?
"A Yes, sir.
"FISCAL DAGANDAN:
"Q So, after that what did you do?
"Q When we arrived at our temporary station at Baras, Palo we gave the fishes to the
fish examiner and we had the pumpboat inventoried and told them to sign the
receipt we made.
"Q Do you recall if you made an apprehension report of the incident you witnessed?
"A Yes, maam.
"Q I show you a original copy of apprehension report dated July 4, 1992 addressed to
the Regional Director, Department of Agriculture, Tacloban City stating that the
following offenders namely Renerio Vergara y Prisno, Pedro Dagao y Gadin,
Ernesto Cueta y Tobilla and Bernardo Cuesta y Pedrero were apprehended and the
violation is fishing with the use of dynamite, the original of which is found on page
4 of the records. Will you examine the same and tell this court what relation has
that to the report you said you made?
"A This is the apprehension report that we prepared on July 4, 1992."[6]
Nestor Aldas, an Agricultural Technologist and Fish Examiner working with the Department
of Agriculture, Palo, Leyte, who examined the fish samples taken from the accused, testified that
he was with the team patrolling, on 04 July 1992, the waters of San Pedro Bay, Baras, Palo,
Leyte, when he, like the other members of his team, witnessed the use of explosives by the
accused. Fish samples from the catch showed ruptured capillaries, ruptured and blooded
abdominal portion, and crushed internal organs indicating that explosives were indeed used.
The Court is convinced that the trial court has acted correctly in finding accused-appellant
guilty of the offense charged.

Sections 33 and 38 of P.D. No. 704, as amended by P.D. No. 1058, read:

"Sec. 33. Illegal fishing; illegal possession of explosives intended for illegal fishing; dealing in
illegally caught fish or fishery/aquatic products. It shall be unlawful for any person to catch,
take or gather or cause to be caught, taken or gathered fish or fishery/aquatic products in
Philippine waters with the use of explosives, obnoxious or poisonous substance, or by the
use of electricity as defined in paragraphs (1), (m) and (d), respectively, of section 3
hereof: Provided, That mere possession of such explosives with intent to use the same for illegal
fishing as herein defined shall be punishable as hereinafter provided: Provided, That the
Secretary may, upon recommendation of the Director and subject to such safeguards and
conditions he deems necessary, allow for research, educational or scientific purposes only, the
use of explosives, obnoxious or poisonous substance or electricity to catch, take or gather fish or
fishery/aquatic products in specified area: Provided, further, That the use of chemicals to
eradicate predators in fishponds in accordance with accepted scientific fishery practices without
causing deleterious effects in neighboring waters shall not be construed as the use of obnoxious
or poisonous substance within the meaning of this section: Provided, finally, That the use of
mechanical bombs for killing whales, crocodiles, sharks or other large dangerous fishes, may be
allowed, subject to the approval of the Secretary.

"Section 38. (1) By the penalty of imprisonment ranging from twelve (12) years to twenty-five
(25) years in the case of mere possession of explosives intended for illegal fishing; by
imprisonment ranging from twenty (20) years to life imprisonment, if the explosive is actually
used: Provided, That if the use of the explosive results in 1) physical injury to any person, the
penalty shall be imprisonment ranging from twenty-five (25) years to life imprisonment, or 2) in
the loss of human life, then the penalty shall be life imprisonment to death."

WHEREFORE, the decision of the court a quo appealed from is affirmed in toto. Costs
against accused-appellant.
SO ORDERED.

U.S. v. LANZA, (1922)

No. 39
Argued: November 23, 1922 Decided: December 11, 1922
[260 U.S. 377, 378] Mr. Solicitor General Beck, of Washington, D. C., for the United states.

Mr. John F. Dore, of Seattle, Wash., for defendants in error.

Mr. Chief Justice TAFT delivered the opinion of the Court.

This is a writ of error by the United States under the Criminal Appeals Act (34 Stat. c. 2564, p.
1246 [U. S. Comp. St. 1704]), to reverse an order of the District Court for the Western District of
Washington dismissing five counts of an indictment presented against the defendants in error
April 28, 1920. The first of these charged the defendants with manufacturing intoxicating liquor,
the second with transporting it, the third with possessing it, and the fourth and fifth with having a
still and material designed for its manufacture [260 U.S. 377, 379] about April 12, 1920, in
violation of the National Prohibition Act ( chapter 85, 41 Stat. 305). The defendants filed a
special plea in bar setting out that on April 16, 1920, an information was filed in the superior
court of Whatcom county, Wash., charging the same defendants with manufacturing,
transporting and having in possession the same liquor, and that on the same day a judgment was
entered against each defendant for $ 250 for manufacturing, $250 for transporting, and $250 for
having in possession such liquor. The information was filed under a statute of Washington in
force before the going into effect of the Eighteenth Amendment and passage of the National
Prohibition Act. Remington's Code, 6262-1 et seq., as amended by Sess. Laws 1917, p. 46. The
government demurred to the plea. The District Court sustained the plea and dismissed the five
counts. United States v. Peterson, 268 Fed. 864. No point is made by the government in the
assignments of error that counts 4 and 5, for having a still and material in possession, were not
covered by the information and judgment by the state court.

The Eighteenth Amendment is as follows:

'Section, 1. After one year from the ratification of this article, the manufacture, sale or
transportation of intoxicating liquors within, the importation thereof into, or the exportation
thereof from, the United States and all territory subject to the jurisdiction thereof, for beverage
purposes, is hereby prohibited.
'Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by
appropriate legislation.'
The defendants insist that two punishments for the same act, one under the National Prohibition
Act and the other under a state law, constitute double jeopardy under the Fifth Amendment; and
in support of this position it is argued that both laws derive their force from the same [260 U.S.
377, 380] authority-the second section of the amendment-and therefore that in principle it is as
if both punishments were in prosecutions by the United Stats in its courts.

Consideration of this argument requires an analysis of the reason and purpose of the second
section of the amendment. We dealt with both sections in the National Prohibition Cases, 253
U.S. 350 , 40 Sup. Ct. 486, 588. The conclusions of the court, relevant here, are Nos. 6, 7, 8, and
9.

'6. The first section of the amendment, the one embodying the prohibition, is operative
throughout the entire territorial limits of the United States, binds all legislative bodies, courts,
public officers and individuals within those limits, and of its own force invalidates every
legislative act-whether by Congress, by a state Legislature, or by a territorial assembly-which
authorizes or sanctions what the section prohibits.
'7. The second section of the amendment, the one declaring 'the Congress and the several states
shall have concurrent power to enforce this article by appropriate legislation,' does not enable
Congress or the several states to defeat or to thwart the prohibition, but only to enforce it by
appropriate means.
'8. The words 'concurrent power' in that section do not mean joint power, or require that
legislation thereunder by Congress, to be effective, shall be approved or sanctioned by the
several states or any of them; nor do they mean that the power to enforce is divided between
Congress and the several states along the lines which separae or distinguish foreign and interstate
commerce from intrastate affairs.
'9. The power confided to Congress by that section, while not exclusive, is territorially
coextensive with the prohibition of the first section, embraces manufacture and other intrastate
transactions as well as importation, exportation and interstate traffic, and is in no wise dependent
on or affected by action or inaction on the part of the several states or any of them.' [260 U.S.
377, 381] The amendment was adopted for the purpose of establishing prohibition as a national
policy reaching every part of the United States and affecting transactions which are essentially
local or intrastate, as well as those pertaining to interstate or foreign commerce. The second
section means that power to take legislative measures to make the policy effective shall exist in
Congress in respect of the territorial limits of the United States and at the same time the like
power of the several states within their territorial limits shall not cease to exist. Each state, as
also Congress, may exercise an independent judgment in selecting and shaping measures to
enforce prohibition. Such as are adopted by Congress become laws of the United States and such
as are adopted by a state become laws of that state. They may vary in many particulars, including
the penalties prescribed, but this is an inseparable incident of independent legislative action in
distinct jurisdictions.
To regard the amendment as the source of the power of the states to adopt and enforce
prohibition measures is to take a partial and erroneous view of the matter. Save for some
restrictions arising out of the federal Constitution, chiefly the commerce clause, each state
possessed that power in full measure prior to the amendment, and the probable purpose of
declaring a concurrent power to be in the states was to negative any possible inference that in
vesting the national government with the power of country-wide prohibition, state power would
be excluded. In effect the second section of the Eighteenth Amendment put an end to restrictions
upon the state's power arising out of the federal Constitution and left her free to enact prohibition
laws applying to all transactions within her limits. To be sure, the first section of the amendment
took from the states all power to authorize acts falling within its prohibition, but it did not cut
down or displace prior state laws not inconsistent with it. Such laws derive their force, as do all
new ones consisten with [260 U.S. 377, 382] it, not from this amendment, but from power
originally belonging to the states, preserved to them by the Tenth Amendment, and now relieved
from the restriction heretofore arising out of the federal Constitution. This is the ratio decidendi
of our decision in Vigliotti v. Pennsylvania, 258 U.S. 403 , 42 Sup. Ct. 330 (April 10, 1922).

We have here two sovereignties, deribing power from different sources, capable of dealing with
the same subjectmatter within the same territory. Each may, without interference by the other,
enact laws to secure prohibition, with the limitation that no legislation can give validity to acts
prohibited by the amendment. Each government in determining what shall be an offense against
its peace and dignity is exercising its own sovereignty, not that of the other.

It follows that an act denounced as a crime by both national and state sovereignties is an offense
against the peace and dignity of both and may be punished by each. The Fifth Amendment, like
all the other guaranties in the first eight amendments, applies only to proceedings by the federal
government (Barron v. City of Baltimore, 7 Pet. 243), and the double jeopardy therein forbidden
is a second prosecution under authority of the federal government after a first trial for the same
offense under the same authority. Here the same act was an offense against the state of
Washington, because a violation of its law, and also an offense against the United States under
the National Prohibition Act. The defendants thus committed two different offenses by the same
act, and a conviction by a court of Washington of the offense against that state is not a conviction
of the different offense against the United States, and so is not double jeopardy.

This view of the Fifth Amendment is supported by a long line of decisions by this court. In Fox
v. Ohio, 5 How. 410, 410, a judgment of the Supreme Court of Ohio was under review. It
affirmed a conviction under a state law [260 U.S. 377, 383] punishing the uttering of a false
United States silver dollar. The law was attacked as beyond the power of the state. One ground
urged was that, as the coinage of the dollar was intrusted by the Constitution to Congress, it had
authority to protect it against false coins by prohibiting not only the act of making them, but also
the act of uttering them. It was contended that if the state could denounce the uttering, there
would be concurrent jurisdiction in the United States and the state, a conviction in the state court
would be a bar to prosecution in a federal court, and thus a state might confuse or embarrass the
federal government in the exercise of its power to protect its lawful coinage. Answering this
argument, Mr. Justice Daniel for the court said (5 How. 434):

'It is almost certain that, in the benignant spirit in which the institutions both of the state and
federal systems are administered, an offender who should have suffered the penalties denounced
by the one would not be subjected a second time to punishment by the other for acts essentially
the same, unless indeed this might occur in instances of peculiar enormity, or where the public
safety demanded extraordinary rigor. But were a contrary course of policy and action either
probable or usual, this would by no means justify the conclusion, that offenses falling within the
competency of different authorities to restrain or punish them would not properly be subjected to
the consequences which those authorities might ordain and affix to their perpetration.'
This conclusion was affirmed in United States v. Marigold, 9 How. 560, 569 (13 L. Ed. 257),
where the same justice said that--

'The same act might, as to its character and tendencies, and the consequences it involved,
constitute an offense against both the state and federal governments, and might draw to tis
commission the penalties denounced by either, as appropriate to its character in reference to
each.' [260 U.S. 377, 384] The principle was reaffirmed in Moore v. Illinois, 14 How. 13, in
United States v. Cruikshank, 92 U.S. 542, 550 , 551 S., in EX parte Siebold,100 U.S. 371, 389 ,
390 S., 391, in Cross v. North Carolina, 132 U.S. 131, 139 , 10 S. Sup. Ct. 47, in Pettibone v.
United States, 148 U.S. 197, 209 , 13 S. Sup. Ct. 542, in Crossley v. California, 168 U.S. 640,
641 , 18 S. Sup. Ct. 242, in Southern Ry. Co. v. R. R. Com. Indiana, 236 U.S. 439 , 35 Sup. Ct.
304, in Gilbert v. Minnesota, 254 U.S. 325, 330 , 41 S. Sup. Ct. 125, and, finally, in McKelvey v.
United States, 260 U.S. 353 , 43 Sup. Ct. 132, 67 L. Ed. --, decided December 4, 1922
In Southern Ry. Co. v. R. R. Com. Indiana, supra, Mr Justice Lamar used this language:

'In support of this position numerous cases are cited, which, like Cross v. North Carolina, 132
U.S. 131 , hold that the same act may constitute a criminal offense against two sovereignties, and
that punishment by one does not prevent punishment by the other. That doctrine is thoroughly
established. But, upon an analysis of the principle on which it is founded, it will be found to
relate only to cases where the act sought to be punished is one over which both sovereignties
have jurisdiction. This concurrent jurisdiction may be either because the nature of the act is such
that at the same time it produces effects respectively within the sphere of state and federal
regulation and thus violates the laws of both, or where there is this double effect in a matter of
which one can exercise control, but an authoritative declaration that the paramount jurisdiction of
one shall not exclude that of the other.'
These last words are peculiarly appropriaate to the case presented by the two sections of the
Eighteenth Amendment. The court below is the only District Court which has held conviction in
a state court a bar to prosecution for the same act under the Volstead Law. United States v. Holt (
D. C.) 270 Fed. 639; United States v. Bostow (D. C.) 273 Fed. 535; United States v. Regan (D.
C.) 273 Fed. 727; United States v. Ratagczak (D. C.) 275 Fed. 558. [260 U.S. 377,
385] Counsel for defendants in error invoke the principle that as between federal and state
jurisdictions over the same prisoner, the one which first gets jurisdiction may first exhaust its
jurisdiction to the exclusion of the other. Ponzi v. Fessenden at al., 258 U.S. 254 , 42 Sup. Ct.
309, decided March 27, 1922. This is beside the point and has no application. The effect of the
ruling of the court below was to exclude the United States from jurisdiction to punish the
defendants after the state court had exhausted its jurisdiction, and when there was no conflict of
jurisdiction.

If Congress sees fit to bar prosecution by the federal courts for any act when punishment for
violation of state prohibition has been imposed, it can, of course, do so by proper legislative
provision; but it has not done so. If a state were to punish the manufacture, transportation and
sale of intoxicating liquor by small or nominal fines, the race of offenders to the courts of that
state to plead guilty and secure immunity from federal prosecution for such acts would not make
for respect for the federal statute or for its deterrent effect. But it is not for us to discuss the
wisdom of legislation; it is enough for us to hold that in the absence of special provision by
Congress, conviction and punishment in a state court under a state law for making, transporting
and selling intoxicating liquors is not a bar to a prosecution in a court of the United States under
the federal law for the same acts.

Judgment reversed, with direction to sustain the demurrer to the special plea in bar of the
defendants and for further proceedings in conformity with this opinion.

Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288, 1937 U.S. LEXIS 549 (U.S.
Dec. 6, 1937)

Brief Fact Summary. Defendant Palko is tried and convicted of murder for a second time after
state appeals previous murder conviction on same events.

Synopsis of Rule of Law. The double jeopardy prohibition provision included in the Fifth
Amendment is not applied to the states through the Fourteenth Amendment.

Facts. Defendant was indicted for murder in the first degree. The jury returned a conviction of
murder in the second degree, for which he received a life sentence. Pursuant to state law, the
State of Connecticut appealed and the Connecticut Supreme Court of Errors reversed the
judgment and ordered a new trial. This court found harmful error to the state as a result of the
exclusion of testimony as to a confession by the defendant, the exclusion of cross-examination
testimony to impeach the defendant, and faulty jury instructions as to the difference between first
and second degree murder. They ordered a second trial at which the jury sentenced the defendant
to death. The defendant was granted certiorari to have the second conviction overturned.

Issue. Does the entire Fifth Amendment double jeopardy prohibition apply to the states through
the Fourteenth Amendment?

Held. No. The Supreme Court of the United States affirms the first degree murder conviction
and the accompanying death sentence.
Two requirements need to be met for a state to appropriately choose to not include the
prohibition on double jeopardy, or any other piece of the 5th Amendment, in its law. They do not
have to incorporate such a right if it is not of the very essence of a scheme of ordered liberty, and
if its abolishment would not violate a principal of justice so rooted in the traditions and
conscience of the American people as to be ranked fundamental. Here, the Supreme Court saw
the state’s allowing a second trial on the same facts as not violating fundamental principles of
liberty and justice because it was only done to make sure that there was a trial without legal
error.

Discussion. The Supreme Court’s decision here embracing selective incorporation in stating that
the Fifth Amendment double jeopardy prohibition was not entirely applicable to state law
through the Fourteenth Amendment was overruled in Benton v. Maryland in 1969. That later
case held that the double jeopardy prohibition was a fundamental concept in our constitutional
heritage, and thus definitely applied to the states through the Fourteenth Amendment.

G.R. No. 88539 October 26, 1993

KUE CUISON, doing business under the firm name and style"KUE CUISON PAPER
SUPPLY," petitioner,
vs.
THE COURT OF APPEALS, VALIANT INVESTMENT ASSOCIATES, respondents.

Leighton R. Siazon for petitioner.

Melanio L. Zoreta for private respondent.

BIDIN, J.:

This petition for review assails the decision of the respondent Court of Appeals ordering
petitioner to pay private respondent, among others, the sum of P297,482.30 with interest. Said
decision reversed the appealed decision of the trial court rendered in favor of petitioner.

The case involves an action for a sum of money filed by respondent against petitioner anchored
on the following antecedent facts:

Petitioner Kue Cuison is a sole proprietorship engaged in the purchase and sale of newsprint,
bond paper and scrap, with places of business at Baesa, Quezon City, and Sto. Cristo, Binondo,
Manila. Private respondent Valiant Investment Associates, on the other hand, is a partnership
duly organized and existing under the laws of the Philippines with business address at Kalookan
City.

From December 4, 1979 to February 15, 1980, private respondent delivered various kinds of
paper products amounting to P297,487.30 to a certain Lilian Tan of LT Trading. The deliveries
were made by respondent pursuant to orders allegedly placed by Tiu Huy Tiac who was then
employed in the Binondo office of petitioner. It was likewise pursuant to Tiac's instructions that
the merchandise was delivered to Lilian Tan. Upon delivery, Lilian Tan paid for the merchandise
by issuing several checks payable to cash at the specific request of Tiu Huy Tiac. In turn, Tiac
issued nine (9) postdated checks to private respondent as payment for the paper products.
Unfortunately, sad checks were later dishonored by the drawee bank.

Thereafter, private respondent made several demands upon petitioner to pay for the merchandise
in question, claiming that Tiu Huy Tiac was duly authorized by petitioner as the manager of his
Binondo office, to enter into the questioned transactions with private respondent and Lilian Tan.
Petitioner denied any involvement in the transaction entered into by Tiu Huy Tiac and refused to
pay private respondent the amount corresponding to the selling price of the subject merchandise.

Left with no recourse, private respondent filed an action against petitioner for the collection of
P297,487.30 representing the price of the merchandise. After due hearing, the trial court
dismissed the complaint against petitioner for lack of merit. On appeal, however, the decision of
the trial court was modified, but was in effect reversed by the Court of Appeals, the dispositive
portion of which reads:

WHEREFORE, the decision appealed from is MODIFIED in that defendant-

appellant Kue Cuison is hereby ordered to pay plaintiff-appellant Valiant
Investment Associates the sum of P297,487.30 with 12% interest from the filing
of the complaint until the amount is fully paid, plus the sum of 7% of the total
amount due as attorney's fees, and to pay the costs. In all other respects, the
decision appealed from is affirmed. (Rollo, p. 55)

In this petition, petitioner contends that:

THE HONORABLE COURT ERRED IN FINDING TIU HUY TIAC AGENT

OF DEFENDANT-APPELLANT CONTRARY TO THE
UNDISPUTED/ESTABLISHED FACTS AND CIRCUMSTANCES.

THE HONORABLE COURT ERRED IN FINDING DEFENDANT-

APPELLANT LIABLE FOR AN OBLIGATION UNDISPUTEDLY
BELONGING TO TIU HUY TIAC.

THE HONORABLE COURT ERRED IN REVERSING THE WELL-FOUNDED DECISION

OF THE TRIAL COURT, (Rollo, p, 19)

The issue here is really quite simple — whether or not Tiu Huy Tiac possessed the required
authority from petitioner sufficient to hold the latter liable for the disputed transaction.

This petition ought to have been denied outright, forin the final analysis, it raises a factual issue.
It is elementary that in petitions for review under Rule 45, this Court only passes upon questions
of law. An exception thereto occurs where the findings of fact of the Court of Appeals are at
variance with the trial court, in which case the Court reviews the evidence in order to arrive at
the correct findings based on the records.
As to the merits of the case, it is a well-established rule that one who clothes another with
apparent authority as his agent and holds him out to the public as such cannot be permitted to
deny the authority of such person to act as his agent, to the prejudice of innocent third parties
dealing with such person in good faith and in the honest belief that he is what he appears to be
(Macke, et al, v. Camps, 7 Phil. 553 (1907]; Philippine National Bank. v Court of Appeals, 94
SCRA 357 [1979]). From the facts and the evidence on record, there is no doubt that this rule
obtains. The petition must therefore fail.

It is evident from the records that by his own acts and admission, petitioner held out Tiu Huy
Tiac to the public as the manager of his store in Sto. Cristo, Binondo, Manila. More particularly,
petitioner explicitly introduced Tiu Huy Tiac to Bernardino Villanueva, respondent's manager, as
his (petitioner's) branch manager as testified to by Bernardino Villanueva. Secondly, Lilian Tan,
who has been doing business with petitioner for quite a while, also testified that she knew Tiu
Huy Tiac to be the manager of petitioner's Sto. Cristo, Binondo branch. This general perception
of Tiu Huy Tiac as the manager of petitioner's Sto. Cristo store is even made manifest by the fact
that Tiu Huy Tiac is known in the community to be the "kinakapatid" (godbrother) of petitioner.
In fact, even petitioner admitted his close relationship with Tiu Huy Tiac when he said that they
are "like brothers" (Rollo, p. 54). There was thus no reason for anybody especially those
transacting business with petitioner to even doubt the authority of Tiu Huy Tiac as his manager
in the Sto. Cristo Binondo branch.

In a futile attempt to discredit Villanueva, petitioner alleges that the former's testimony is clearly
self-serving inasmuch as Villanueva worked for private respondent as its manager.

We disagree, The argument that Villanueva's testimony is self-serving and therefore inadmissible
on the lame excuse of his employment with private respondent utterly misconstrues the nature of
"'self-serving evidence" and the specific ground for its exclusion. As pointed out by this Court
in Co v. Court of Appeals et, al., (99 SCRA 321 [1980]):

Self-serving evidence is evidence made by a party out of court at one time; it does
not include a party's testimony as a witness in court. It is excluded on the same
ground as any hearsay evidence, that is the lack of opportunity for cross-
examination by the adverse party, and on the consideration that its admission
would open the door to fraud and to fabrication of testimony. On theother hand, a
party's testimony in court is sworn and affords the other party the opportunity for
cross-examination (emphasis supplied)

Petitioner cites Villanueva's failure, despite his commitment to do so on cross-examination, to

produce the very first invoice of the transaction between petitioner and private respondent as
another ground to discredit Villanueva's testimony. Such failure, proves that Villanueva was not
only bluffing when he pretended that he can produce the invoice, but that Villanueva was
likewise prevaricating when he insisted that such prior transactions actually took place.
Petitioner is mistaken. In fact, it was petitioner's counsel himself who withdrew the reservation
to have Villanueva produce the document in court. As aptly observed by the Court of Appeals in
its decision:
 . . . However, during the hearing on March 3, 1981, Villanueva failed to present
the document adverted to because defendant-appellant's counsel withdrew his
reservation to have the former (Villanueva) produce the document or invoice, thus
prompting plaintiff-appellant to rest its case that same day (t.s.n., pp. 39-40, Sess.
of March 3, 1981). Now, defendant-appellant assails the credibility of Villanueva
for having allegedly failed to produce even one single document to show that
plaintiff-appellant have had transactions before, when in fact said failure of
Villanueva to produce said document is a direct off-shoot of the action of
defendant-appellant's counsel who withdrew his reservation for the production of
the document or invoice and which led plaintiff-appellant to rest its case that very
day. (Rollo, p.52)

In the same manner, petitioner assails the credibility of Lilian Tan by alleging that Tan was part
of an intricate plot to defraud him. However, petitioner failed to substantiate or prove that the
subject transaction was designed to defraud him. Ironically, it was even the testimony of
petitioner's daughter and assistant manager Imelda Kue Cuison which confirmed the credibility
of Tan as a witness. On the witness stand, Imelda testified that she knew for a fact that prior to
the transaction in question, Tan regularly transacted business with her father (petitioner herein),
thereby corroborating Tan's testimony to the same effect. As correctly found by the respondent
court, there was no logical explanation for Tan to impute liability upon petitioner. Rather, the
testimony of Imelda Kue Cuison only served to add credence to Tan's testimony as regards the
transaction, the liability for which petitioner wishes to be absolved.

But of even greater weight than any of these testimonies, is petitioner's categorical admission on
the witness stand that Tiu Huy Tiac was the manager of his store in Sto. Cristo, Binondo, to wit:

Court:

xxx xxx xxx

Q And who was managing the store in Sto. Cristo?

A At first it was Mr. Ang, then later Mr. Tiu Huy Tiac but I cannot
remember the exact year.

Q So, Mr. Tiu Huy Tiac took over the management,.

A Not that was because every afternoon, I was there, sir.

Q But in the morning, who takes charge?

A Tiu Huy Tiac takes charge of management and if there (sic)

orders for newsprint or bond papers they are always referred to the
compound in Baesa, sir. (t.s.n., p. 16, Session of January 20, 1981,
CA decision, Rollo, p. 50, emphasis supplied).
Such admission, spontaneous no doubt, and standing alone, is sufficient to negate all the denials
made by petitioner regarding the capacity of Tiu Huy Tiac to enter into the transaction in
question. Furthermore, consistent with and as an obvious indication of the fact that Tiu Huy Tiac
was the manager of the Sto. Cristo branch, three (3) months after Tiu Huy Tiac left petitioner's
employ, petitioner even sent, communications to its customers notifying them that Tiu Huy Tiac
is no longer connected with petitioner's business. Such undertaking spoke unmistakenly of Tiu
Huy Tiac's valuable position as petitioner's manager than any uttered disclaimer. More than
anything else, this act taken together with the declaration of petitioner in open court amount to
admissions under Rule 130 Section 22 of the Rules of Court, to wit : "The act, declaration or
omission of a party as to a relevant fact may be given in evidence against him." For well-settled
is the rule that "a man's acts, conduct, and declaration, wherever made, if voluntary, are
admissible against him, for the reason that it is fair to presume that they correspond with the
truth, and it is his fault if they do not. If a man's extrajudicial admissions are admissible against
him, there seems to be no reason why his admissions made in open court, under oath, should not
be accepted against him." (U.S. vs. Ching Po, 23 Phil. 578, 583 [1912];).

Moreover, petitioner's unexplained delay in disowning the transactions entered into by Tiu Huy
Tiac despite several attempts made by respondent to collect the amount from him, proved all the
more that petitioner was aware of the questioned commission was tantamount to an admission by
silence under Rule 130 Section 23 of the Rules of Court, thus: "Any act or declaration made in
the presence of and within the observation of a party who does or says nothing when the act or
declaration is such as naturally to call for action or comment if not true, may be given in
evidence against him."

All of these point to the fact that at the time of the transaction Tiu Huy Tiac was admittedly the
manager of petitioner's store in Sto. Cristo, Binondo. Consequently, the transaction in question as
well as the concomitant obligation is valid and binding upon petitioner.

By his representations, petitioner is now estopped from disclaiming liability for the transaction
entered by Tiu Huy Tiac on his behalf. It matters not whether the representations are intentional
or merely negligent so long as innocent, third persons relied upon such representations in good
faith and for value As held in the case of Manila Remnant Co. Inc. v. Court of Appeals, (191
SCRA 622 [1990]):

More in point, we find that by the principle of estoppel, Manila Remnant is

deemed to have allowed its agent to act as though it had plenary powers. Article
1911 of the Civil Code provides:

"Even when the agent has exceeded his authority, the principal
issolidarily liable with the agent if the former allowed the latter to
act as though he had full powers." (Emphasis supplied).

The above-quoted article is new. It is intended to protect the rights of innocent

persons. In such a situation, both the principal and the agent may be considered as
joint tortfeasors whose liability is joint and solidary.
 Authority by estoppel has arisen in the instant case because by its negligence, the
principal, Manila Remnant, has permitted its agent, A.U. Valencia and Co., to
exercise powers not granted to it. That the principal might not have had actual
knowledge of theagent's misdeed is of no moment.

Tiu Huy Tiac, therefore, by petitioner's own representations and manifestations, became an agent
of petitioner by estoppel, an admission or representation is rendered conclusive upon the person
making it, and cannot be denied or disproved as against the person relying thereon (Article 1431,
Civil Code of the Philippines). A party cannot be allowed to go back on his own acts and
representations to the prejudice of the other party who, in good faith, relied upon them
(Philippine National Bank v. Intermediate Appellate Court, et al., 189 SCRA 680 [1990]).

Taken in this light,. petitioner is liable for the transaction entered into by Tiu Huy Tiac on his
behalf. Thus, even when the agent has exceeded his authority, the principal is solidarily liable
with the agent if the former allowed the latter to fact as though he had full powers (Article 1911
Civil Code), as in the case at bar.

Finally, although it may appear that Tiu Huy Tiac defrauded his principal (petitioner) in not
turning over the proceeds of the transaction to the latter, such fact cannot in any way relieve nor
exonerate petitioner of his liability to private respondent. For it is an equitable maxim that as
between two innocent parties, the one who made it possible for the wrong to be done should be
the one to bear the resulting loss (Francisco vs. Government Service Insurance System, 7 SCRA
577 [1963]).

Inasmuch as the fundamental issue of the capacity or incapacity of the purported agent Tiu Huy
Tiac, has already been resolved, the Court deems it unnecessary to resolve the other peripheral
issues raised by petitioner.

WHEREFORE, the instant petition in hereby DENIED for lack of merit. Costs against petitioner.

SO ORDERED.

[G.R. No. 107125. January 29, 2001]

GEORGE MANANTAN, petitioner, vs. THE COURT OF APPEALS, SPOUSES

MARCELINO NICOLAS and MARIA NICOLAS, respondents.

DECISION
QUISUMBING, J.:
 This is a petition for review of the decision dated January 31, 1992 of the Court of Appeals
in CA-G.R. CV No. 19240, modifying the judgment of the Regional Trial Court of Santiago,
Isabela, Branch 21, in Criminal Case No. 066. Petitioner George Manantan was acquitted by the
trial court of homicide through reckless imprudence without a ruling on his civil liability. On
appeal from the civil aspect of the judgment in Criminal Case No. 066, the appellate court found
petitioner Manantan civilly liable and ordered him to indemnify private respondents Marcelino
Nicolas and Maria Nicolas P104,400.00 representing loss of support, P50,000.00 as death
indemnity, and moral damages of P20,000.00 or a total of P174,400.00 for the death of their son,
Ruben Nicolas.
The facts of this case are as follows:
On June 1, 1983, the Provincial Fiscal of Isabela filed an information charging petitioner
Manantan with reckless imprudence resulting in homicide, allegedly committed as follows:

That on or about the 25th day of September 1982, in the municipality of Santiago, province of
Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said accused, being
then the driver and person-in-charge of an automobile bearing Plate No. NGA-816, willfully and
unlawfully drove and operated the same while along the Daang Maharlika at Barangay Malvar,
in said municipality, in a negligent, careless and imprudent manner, without due regard to traffic
laws, regulations and ordinances and without taking the necessary precaution to prevent accident
to person and damage to property, causing by such negligence, carelessness and imprudence said
automobile driven and operated by him to sideswipe a passenger jeep bearing plate No. 918-7F
driven by Charles Codamon, thereby causing the said automobile to turn down (sic) resulting to
the death of Ruben Nicolas a passenger of said automobile.

CONTRARY TO LAW.[1]

On arraignment, petitioner pleaded not guilty to the charge. Trial on the merits ensued.
The prosecutions evidence, as summarized by the trial court and adopted by the appellate
court, showed that:

[I]n the morning of September 25, 1982, Fiscal Wilfredo Ambrocio decided to catch shrimps at
the irrigation canal at his farm. He invited the deceased who told him that they (should) borrow
the Ford Fiera of the accused George Manantan who is also from Cordon. The deceased went to
borrow the Ford Fiera butsaid that the accused also wanted to (come) along. So Fiscal Ambrocio
and the deceased dropped by the accused at the Manantan Technical School. They drank beer
there before they proceeded to the farm using the Toyota Starlet of the accused. At the farm they
consumed one (more) case of beer. At about 12:00 oclock noon they went home. Then at about
2:00 or 3:00 oclock that afternoon, (defense witness Miguel) Tabangin and (Ruben) Nicolas and
the accused returned to the house of Fiscal Ambrocio with a duck. They cooked the duck and ate
the same with one more case of beer. They ate and drank until about 8:30 in the evening when
the accused invited them to go bowling. They went to Santiago, Isabela on board the Toyota
Starlet of the accused who drove the same. They went to the Vicap Bowling Lanes at Mabini,
Santiago, Isabela but unfortunately there was no vacant alley. While waiting for a vacant alley
they drank one beer each. After waiting for about 40 minutes and still no alley became vacant the
accused invited his companions to go to the LBC Night Club. They had drinks and took some
lady partners at the LBC. After one hour, they left the LBC and proceeded to a nearby store
where they ate arroz caldoand then they decided to go home. Again the accused drove the car.
Miguel Tabangin sat with the accused in the front seat while the deceased and Fiscal Ambrocio
sat at the back seat with the deceased immediately behind the accused. The accused was driving
at a speed of about 40 kilometers per hour along the Maharlika Highway at Malvar, Santiago,
Isabela, at the middle portion of the highway (although according to Charles Cudamon, the car
was running at a speed of 80 to 90 kilometers per hours on [the] wrong lane of the highway
because the car was overtaking a tricycle) when they met a passenger jeepney with bright lights
on. The accused immediately tried to swerve the car to the right and move his body away from
the steering wheel but he was not able to avoid the oncoming vehicle and the two vehicles
collided with each other at the center of the road.

xxx

As a result of the collision the car turned turtle twice and landed on its top at the side of the
highway immediately at the approach of the street going to the Flores Clinic while the jeep
swerved across the road so that one half front portion landed on the lane of the car while the back
half portion was at its right lane five meters away from the point of impact as shown by a sketch
(Exhibit A) prepared by Cudamon the following morning at the Police Headquarters at the
instance of his lawyer. Fiscal Ambrocio lost consciousness. When he regained consciousness he
was still inside the car (lying) on his belly with the deceased on top of him. Ambrocio pushed
(away) the deceased and then he was pulled out of the car by Tabangin. Afterwards, the deceased
who was still unconscious was pulled out from the car. Both Fiscal Ambrocio and the deceased
were brought to the Flores Clinic. The deceased died that night (Exhibit B) while Ambrocio
suffered only minor injuries to his head and legs.[2]

The defense version as to the events prior to the incident was essentially the same as that of
the prosecution, except that defense witness Miguel Tabangin declared that Manantan did not
drink beer that night. As to the accident, the defense claimed that:

The accused was driving slowly at the right lane [at] about 20 inches from the center of the road
at about 30 kilometers per hour at the National Highway at Malvar, Santiago, Isabela, when
suddenly a passenger jeepney with bright lights which was coming from the opposite direction
and running very fast suddenly swerve(d) to the cars lane and bumped the car which turned turtle
twice and rested on its top at the right edge of the road while the jeep stopped across the center of
the road as shown by a picture taken after the incident (Exhibit 1) and a sketch (Exhibit 3) drawn
by the accused during his rebuttal testimony. The car was hit on the drivers side. As a result of
the collision, the accused and Miguel Tabangin and Fiscal Ambrocio were injured while Ruben
Nicolas died at the Flores Clinic where they were all brought for treatment.[3]

In its decision dated June 30, 1988, promulgated on August 4, 1988, the trial court decided
Criminal Case No. 066 in petitioners favor, thus:

WHEREFORE, in the light of the foregoing considerations, the Court finds the accused NOT
GUILTY of the crime charged and hereby acquits him.
SO ORDERED.[4]

On August 8, 1988, private respondents filed their notice of appeal on the civil aspect of the
trial courts judgment. In their appeal, docketed as CA-G.R. CV No. 19240, the Nicolas spouses
prayed that the decision appealed from be modified and that appellee be ordered to pay
indemnity and damages.
On January 31, 1992, the appellate court decided CA-G.R. CV No. 19240 in favor of the
Nicolas spouses, thus:

WHEREFORE, the decision appealed from is MODIFIED in that defendant-appellee is hereby

held civilly liable for his negligent and reckless act of driving his car which was the proximate
cause of the vehicular accident, and sentenced to indemnify plaintiffs-appellants in the amount of
P174,400.00 for the death of Ruben Nicolas,

SO ORDERED.[5]

In finding petitioner civilly liable, the court a quo noted that at the time the accident
occurred, Manantan was in a state of intoxication, due to his having consumed all in all, a total of
at least twelve (12) bottles of beerbetween 9 a.m. and 11 p.m.[6] It found that petitioners act of
driving while intoxicated was a clear violation of Section 53 of the Land Transportation and
Traffic Code (R.A. No. 4136)[7] and pursuant to Article 2185 of the Civil Code,[8] a statutory
presumption of negligence existed. It held that petitioners act of violating the Traffic Code is
negligence in itself because the mishap, which occurred, was the precise injury sought to be
prevented by the regulation.[9]
Petitioner moved for reconsideration, but the appellate court in its resolution of August 24,
1992 denied the motion.
Hence, the present case. Petitioner, in his memorandum, submits the following issues for our
consideration:

FIRST THE DECISION OF THE TRIAL COURT ACQUITTING THE PETITIONER OF THE
CRIME OF RECKLESS IMPRUDENCE RESULTING TO HOMICIDE FORECLOSED ANY
FURTHER INQUIRY ON THE ACCUSEDS (PETITIONERS) NEGLIGENCE OR
RECKLESS IMPRUDENCE BECAUSE BY THEN HE WILL BE PLACED IN DOUBLE
JEOPARDY AND THEREFORE THE COURT OF APPEALS ERRED IN PASSING UPON
THE SAME ISSUE AGAIN.

SECOND THE COURT OF APPEALS DID NOT HAVE JURISDICTION TO AWARD

DAMAGES AND INDEMNITY TO THE PRIVATE RESPONDENTS CONSIDERING THAT
THE NON-DECLARATION OF ANY INDEMNITY OR AWARD OF DAMAGES BY THE
REGIONAL TRIAL COURT OF ISABELA, BRANCH XXI, WAS ITSELF CONSISTENT
WITH THE PETITIONERS ACQUITTAL FOR THE REASON THAT THE CIVIL ACTION
WAS IMPLIEDLY INSTITUTED WITH THE CRIMINAL ACTION AND THERE WAS NO
EXPRESS WAIVER OF THE CIVIL ACTION OR RESERVATION TO INSTITUTE IT
SEPARATELY BY THE PRIVATE RESPONDENTS IN THE TRIAL COURT.
THIRD THE COURT OF APPEALS DID NOT HAVE JURISDICTION TO TAKE
COGNIZANCE OF THE CASE CA-G.R. CV No. 19240 ENTITLED: SPOUSES MARCELINO
NICOLAS AND MARIA NICOLAS v. GEORGE MANANTAN, AND RENDER THE DECISION
SOUGHT TO BE REVIEWED WHEN THE SAME WAS PROSECUTED BY THE PRIVATE
RESPONDENTS IN THEIR PERSONAL CAPACITIES AND THE FILING FEES NOT
HAVING BEEN PAID, THUS VIOLATING THE MANCHESTER DOCTRINE.

In brief, the issues for our resolution are:

(1) Did the acquittal of petitioner foreclose any further inquiry by the Court of Appeals
as to his negligence or reckless imprudence?
(2) Did the court a quo err in finding that petitioners acquittal did not extinguish his
civil liability?
(3) Did the appellate court commit a reversible error in failing to apply the Manchester
doctrine to CA-G.R. CV No. 19240?
On the first issue, petitioner opines that the Court of Appeals should not have disturbed the
findings of the trial court on the lack of negligence or reckless imprudence under the guise of
determining his civil liability. He argues that the trial courts finding that he was neither
imprudent nor negligent was the basis for his acquittal, and not reasonable doubt. He submits
that in finding him liable for indemnity and damages, the appellate court not only placed his
acquittal in suspicion, but also put him in double jeopardy.
Private respondents contend that while the trial court found that petitioners guilt had not
been proven beyond reasonable doubt, it did not state in clear and unequivocal terms that
petitioner was not recklessly imprudent or negligent. Hence, impliedly the trial court acquitted
him on reasonable doubt. Since civil liability is not extinguished in criminal cases, if the
acquittal is based on reasonable doubt, the Court of Appeals had to review the findings of the
trial court to determine if there was a basis for awarding indemnity and damages.
Preliminarily, petitioners claim that the decision of the appellate court awarding indemnity
placed him in double jeopardy is misplaced. The constitution provides that no person shall be
twice put in jeopardy for the same offense. 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.[10] 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.[11]This is double jeopardy. For double jeopardy to
exist, the following elements must be established: (a) a first jeopardy must have attached prior to
the second; (2) the first jeopardy must have terminated; and (3) the second jeopardy must be for
the same offense as the first.[12] In the instant case, petitioner had once been placed in jeopardy
by the filing of Criminal Case No. 066 and the jeopardy was terminated by his discharge. The
judgment of acquittal became immediately final. Note, however, that what was elevated to the
Court of Appeals by private respondents was the civil aspect of Criminal Case No. 066.Petitioner
was not charged anew in CA-G.R. CV No. 19240 with a second criminal offense identical to the
first offense. The records clearly show that no second criminal offense was being imputed to
petitioner on appeal. In modifying the lower courts judgment, the appellate court did not modify
the judgment of acquittal. Nor did it order the filing of a second criminal case against petitioner
for the same offense. Obviously, therefore, there was no second jeopardy to speak of. Petitioners
claim of having been placed in double jeopardy is incorrect.
Our law recognizes two kinds of acquittal, with different effects on the civil liability of the
accused. First is an acquittal on the ground that the accused is not the author of the act or
omission complained of. This instance closes the door to civil liability, for a person who has
been found to be not the perpetrator of any act or omission cannot and can never be held liable
for such act or omission.[13] There being no delict, civil liability ex delicto is out of the question,
and the civil action, if any, which may be instituted must be based on grounds other than
the delict complained of. This is the situation contemplated in Rule 111 of the Rules of
Court.[14] The second instance is an acquittal based on reasonable doubt on the guilt of the
accused. In this case, even if the guilt of the accused has not been satisfactorily established, he is
not exempt from civil liability which may be proved by preponderance of evidence only. [15] This
is the situation contemplated in Article 29 of the Civil Code,[16] where the civil action for
damages is for the same act or omission. Although the two actions have different purposes, the
matters discussed in the civil case are similar to those discussed in the criminal case. However,
the judgment in the criminal proceeding cannot be read in evidence in the civil action to establish
any fact there determined, even though both actions involve the same act or omission.[17] The
reason for this rule is that the parties are not the same and secondarily, different rules of evidence
are applicable. Hence, notwithstanding herein petitioners acquittal, the Court of Appeals in
determining whether Article 29 applied, was not precluded from looking into the question of
petitioners negligence or reckless imprudence.
On the second issue, petitioner insists that he was acquitted on a finding that he was neither
criminally negligent nor recklessly imprudent. Inasmuch as his civil liability is predicated on the
criminal offense, he argues that when the latter is not proved, civil liability cannot be
demanded. He concludes that his acquittal bars any civil action.
Private respondents counter that a closer look at the trial courts judgment shows that the
judgment of acquittal did not clearly and categorically declare the non-existence of petitioners
negligence or imprudence. Hence, they argue that his acquittal must be deemed based on
reasonable doubt, allowing Article 29 of the Civil Code to come into play.
Our scrutiny of the lower courts decision in Criminal Case No. 066 supports the conclusion
of the appellate court that the acquittal was based on reasonable doubt; hence, petitioners civil
liability was not extinguished by his discharge. We note the trial courts declaration that did not
discount the possibility that the accused was really negligent. However, it found that a hypothesis
inconsistent with the negligence of the accused presented itself before the Court and since said
hypothesis is consistent with the recordthe Courts mind cannot rest on a verdict of
conviction.[18] The foregoing clearly shows that petitioners acquittal was predicated on the
conclusion that his guilt had not been established with moral certainty. Stated differently, it is an
acquittal based on reasonable doubt and a suit to enforce civil liability for the same act or
omission lies.
On the third issue, petitioner argues that the Court of Appeals erred in awarding damages
and indemnity, since private respondents did not pay the corresponding filing fees for their
claims for damages when the civil case was impliedly instituted with the criminal
action. Petitioner submits that the non-payment of filing fees on the amount of the claim for
damages violated the doctrine in Manchester Development Corporation v. Court of Appeals, 149
SCRA 562 (1987) and Supreme Court Circular No. 7 dated March 24, 1988.[19] He avers that
since Manchester held that The Court acquires jurisdiction over any case only upon payment of
the prescribed docket fees, the appellate court was without jurisdiction to hear and try CA-G.R.
CV No. 19240, much less award indemnity and damages.
Private respondents argue that the Manchester doctrine is inapplicable to the instant
case. They ask us to note that the criminal case, with which the civil case was impliedly
instituted, was filed on July 1, 1983, while the Manchester requirements as to docket and filing
fees took effect only with the promulgation of Supreme Court Circular No. 7 on March 24,
1988. Moreover, the information filed by the Provincial Prosecutor of Isabela did not allege the
amount of indemnity to be paid. Since it was not then customarily or legally required that the
civil damages sought be stated in the information, the trial court had no basis in assessing the
filing fees and demanding payment thereof. Moreover, assuming that the Manchester ruling is
applied retroactively, under the Rules of Court, the filing fees for the damages awarded are a first
lien on the judgment. Hence, there is no violation of the Manchester doctrine to speak of.
At the time of the filing of the information in 1983, the implied institution of civil actions
with criminal actions was governed by Rule 111, Section 1 of the 1964 Rules of Court.[20] As
correctly pointed out by private respondents, under said rule, it was not required that the
damages sought by the offended party be stated in the complaint or information. With the
adoption of the 1985 Rules of Criminal Procedure, and the amendment of Rule 111, Section 1 of
the 1985 Rules of Criminal Procedure by a resolution of this Court dated July 7, 1988, it is now
required that:

When the offended party seeks to enforce civil liability against the accused by way of moral,
nominal, temperate or exemplary damages, the filing fees for such civil action as provided in
these Rules shall constitute a first lien on the judgment except in an award for actual damages.

In cases wherein the amount of damages, other than actual, is alleged in the complaint or
information, the corresponding filing fees shall be paid by the offended party upon the filing
thereof in court for trial.

The foregoing were the applicable provisions of the Rules of Criminal Procedure at the time
private respondents appealed the civil aspect of Criminal Case No. 066 to the court a quo in
1989. Being in the nature of a curative statute, the amendment applies retroactively and affects
pending actions as in this case.
Thus, where the civil action is impliedly instituted together with the criminal action, the
actual damages claimed by the offended parties, as in this case, are not included in the
computation of the filing fees. Filing fees are to be paid only if other items of damages such as
moral, nominal, temperate, or exemplary damages are alleged in the complaint or information, or
if they are not so alleged, shall constitute a first lien on the judgment.[21] Recall that the
information in Criminal Case No. 066 contained no specific allegations of damages. Considering
that the Rules of Criminal Procedure effectively guarantee that the filing fees for the award of
damages are a first lien on the judgment, the effect of the enforcement of said lien must retroact
to the institution of the criminal action. The filing fees are deemed paid from the filing of the
criminal complaint or information. We therefore find no basis for petitioners allegations that the
filing fees were not paid or improperly paid and that the appellate court acquired no jurisdiction.
 WHEREFORE, the instant petition is DISMISSED for lack of merit. The assailed decision
of the Court of Appeals in CA-G.R. CV No. 19240 promulgated on January 31, 1992, as well as
its resolution dated August 24, 1992, denying herein petitioners motion for reconsideration, are
AFFIRMED. Costs against petitioner.
SO ORDERED.