G.R. No. L-12817




Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-12817 October 25, 1917 THE UNITED STATES, plaintiff-appellant, vs. EMILIO BAYONA VITOG, defendant-appellee. Acting Attorney-General Paredes for appellant. Delgado and Delgado for appellee. MALCOLM, J.: This appeal by the Government from an order by the Honorable M. V. del Rosario, judge of First Instance of Manila, sustaining the defendant's plea of autrofois acquit, requires consideration once more of the subject of double jeopardy. On the 9th of June, 1916, an information was filed in the Court of First Instance of Manila charging Emilio Bayona Vitog, the present defendant and appellee, and three others with the crime of theft, committed as follows: That, on or about the 12th day of May, 1916, in the city of Manila, Philippine Islands, the said Emilio Bayona Vitog, Biao (a Chinaman), Dionisio Sanchez y Seco, and Candido Reyes y Perez, did willfully, unlawfully, and criminally — with intent of unlawful gain and without the consent of the owner, conspiring among themselves and mutually aiding one another — steal and carry away with them the following articles belonging to the Pacific Commercial Co., a duly registered corporation engaged in business in said city, to wit: Four hundred sacks of sugar of the total value of P4,800, Philippine currency, to the injury, and prejudice of said corporation, The Pacific Commercial Co., in said sum of P4,800, Philippine currency, equivalent to 24,000 pesetas. In this case No. 14134, the Honorable George R. Harvey, judge of the First Instance of Manila, rendered judgment on October 11, 1916, acquitting the defendant Emilio Bayona Vitog of the crime of theft "without prejudice to the right of the fiscal to proceed against said defendant for any offense, of which said Emilio Bayona may be considered guilty." On December 11, 1916, an information was filed in the Court of First Instance of Manila against Emilio Bayona Vitog charging him with the crime of estafa alleged to have been committed as follows: That, on or about the 12th day of May, 1916, in the city of Manila, Philippine Islands [said accused] having received in his barge Milagros, from Angel Jose and from The Pacific Commercial Co., an incorporated company engaged in business and registered in the city of Manila under the laws of said Islands, two thousand three hundred (2,300) sacks of sugar belonging to said company, under the obligation to transport them from the Muelle de la Industria to the steamer Kaifunesan Maru, then anchored in Manila Bay, and to deliver them to the officer or officers of said steamer charged to receive cargo, did willfully, unlawfully, and criminally, and with intent to defraud said The Pacific Commercial Co., appropriate to himself and dispose of to his benefit four hundred sacks of said amount of sugar, which sacks of sugar, at the rate of P12.50 per sack, were worth the sum of P4,800, Philippine currency, to the injury and prejudice of said company in the aforementioned sum of P4,800, equivalent to 24,000 pesetas. It was in this case No. 14731 that the special defense of the autrofois acquit was interposed with the result in the defendant's favor as above indicated. The constitutional inhibition in our Bill of Rights is "That no person for the same offense shall be twice put in jeopardy of punishment." (See, also secs. 26, 27, and 28, Code of Crim. Proc.) Numerous decisions of the courts have emphasized the words "same offense." Thus, in Kepner vs. United States ([1904], 195 U. S., 100) Mr. Justice Day said that "the protection is . . . against being again tried for the offense." In Gavieres vs. United States ([1911], 220 U. S., 338), the same Justice said that the protection intended and specifically given is against second jeopardy for the same offense, . . . (Italics those of court.) The court then quotes from Morey vs. Commonwealth ([1871], 108 Mass., 433, 435), in which Judge Gray held: A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. (See also U. S. vs. Ching Po (1912), 23 Phil., 578, citing numerous authorities.) As a corollary to these propositions, it is only equitable, as held in United States vs. Gustilo ([1911], 19 Phil., 208), that the constitutional protection should be made to cover as nearly as possible every result which flows from a single criminal act born of a single criminal intent. It is undisputed that the facts giving rise to the present prosecution for estafa are substantially identical with those which gave rise to the previous prosecution for theft. This being admitted, the prosecuting officer, by varying slightly the terminology of the allegations, can not subject the defendant to a second trial. The prosecuting officer, however, in the second information, did more than vary the phraseology. The basic act complained of in the first information was that of unlawfully acquiring possession of the sugar — theft. The basic act complained of in the second information was failure to deliver sugar lawfully received by this appellee — estafa. Of course, as counsel for appellee truly says, the mere qualification given in the information by the fiscal does not determine the nature of the crime constituted by a given set of acts. But here the captions selected and used by the fiscal are in harmony with the facts alleged in the informations. In other words, while the defendant was placed in jeopardy in case No. 14134 in respect to the crime of theft, he was not placed in jeopardy by the crime of estafa. Under the information in case No. 14134 the court could not have convicted this defendant of the crime charged in case No. 14731. While theft and estafa are both crimes against property, the essential elements of the two crimes are different. The accused has not been placed twice in jeopardy for the same offense. The authorities cited by the Attorney-General do no more than to corroborate the brief principles here set out. The plea of autrefois acquit should not have been sustained. The order of the lower court, dismissing the case, is reversed, and the record is returned to the court from which it came, with instructions to proceed to trial, without special finding as to costs in both instances. So ordered. Arellano, C. J., Johnson, Araullo, and Street, JJ., concur. Nov. 26, 1917 Decision on motion for reconsideration. MALCOLM, J.: Appellee moves for reconsideration on the ground that proper application of the principles pertaining to the subject of double jeopardy has not been made to the facts of the case at bar. He concludes his motion with this sentence — "In any event we would respectfully ask that an expression be made if this honorable court's holding, in so far as the effect of the said decisions above quoted is concerned, for the guidance of all parties concerned in the future." The case quoted from and referred to is United States vs. Regala ([1914], 28 Phil., 57, 59). 1awphil.net In the Regala case the information was first filed in the Court of First Instance against the defendant for estafa. The court came to the conclusion that it was without jurisdiction and dismissed the case. Instead of presenting an information for estafa to the justice of the peace court as ordered, the fiscal filed an information against the accused in the Court of First Instance charging him with malversation of public funds. The accused pleaded not guilty and at the same time entered a plea of former jeopardy. The last plea was overruled, and after trial the accused was found guilty and sentenced. The Supreme Court on appeal held that the judgment must be reversed because the accused had already been put in jeopardy. In the course of the opinion by Mr. Justice Moreland, it was said: The acts alleged to have been committed by the first information constitute the crime of estafa against the complaining witness. As a necessary result those alleged in the second information do not constitute the crime of malversation of public funds. . . . The charge of malversation of public funds has no foundation. . . . As will be seen from reading the information above set out the two charges are made upon precisely the same facts. While in one case the fact that the justice of the peace was a public functionary is emphasized more than in the other and stress is laid in one information more than in the other upon his failure to account for the same. It is not a case where the acts complained of constitute two or more separate and distinct offenses for which he can be separately tried. The accused having already been put in jeopardy for his acts under one charge, cannot now be tried for the commission of the same acts under another charge. Contrasting the Regala case with the present case, it will be seen that the two are exactly opposite in nature. Thus, in the Regala case it was held that the defendant should have been prosecuted for estafa under the first information, but that the facts gave no foundation for the second information charging malversation of public funds; in this instance, we agreed with the lower court that the accused could not be convicted of theft under the first information, but that a proper basis was laid for the subsequent prosecution for estafa. In the Regala case, the accused having been charged with estafa and acquitted, and the acts alleged constituting estafa and not malversation of public funds, Regala had been placed in jeopardy of the same offense; in this instance, Bayona Vitog having been acquitted of theft, the prosecution having changed the basic acts, and the acts alleged appearing to be estafa and not theft, the accused has not been placed twice in jeopardy of the same offense. Arellano, C.J., Johnson, Araullo, and Street, JJ., concur. The Lawphil Project - Arellano Law Foundation