G.R. No. 33094




Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 33094 September 3, 1930 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. PRIMITIVO DAYLO, defendant-appellant. Angel Soncuya for appellant. Attorney-General Jaranilla for appellee. VILLA-REAL, J.: The defendant and appellant, Primitivo Daylo, has been charged with the crime of estafa in seventeen informations, four of which were before the Court of First Instance of Leyte, being cases Nos. 8087, 8156, 8231, and 8232, and the remaining thirteen before the justice of the peace of Burawen, numbered 8090, 8091, 8089, 8143, 8135, 8136, 8187, 8188, 8189, 8190, 8191, 8292, and 8193. Upon conviction in all the thirteen cases before the justice of the peace, the defendant appealed to the Court of First Instance of Leyte. During the pendency of the appeal, the provincial fiscal, without the knowledge or consent of the defendant, filed three motions on August 26, 1929, praying that the information be dismissed in said thirteen appealed cases, in order to present in lieu thereof three informations, one of which, numbered 8087, included 8089, 8090, 8091, 8135, 8136, 8191, and 8193, which had already been tried and decided by the justice of the peace and were on appeal. The court granted the motion and when the cases came up for hearing, the defendant asked for a separate trial, through counsel, of case No. 8087, and set up the defense of double jeopardy. The trial court overruled this defense and in its judgment upon said case rendered January 28, 1930, defendant was convicted of estafa and sentenced to four years and one day of arresto mayor, plus the accessory penalties of article 61, Penal Code, and the costs. The defendant appealed from this judgment assigning the following alleged errors as committed by the trial court in its decision, to wit: 1. The court a quo erred in not sustaining the defense of jeopardy put up by the defendant. 2. The court a quo erred in not acquitting the defendant of the charges filed against him. The only question to be solved in this appeal is whether the dismissal of cases Nos. 8089, 8090, 8091, 8135, 8136, 8191 and 8193 on appeal from the justice of the peace of Burawen to the Court of First Instance of Leyte is a bar to the bringing of criminal case No. 8087 where said cases were merged into one, on the ground that the defendant is thus placed twice in jeopardy of conviction of one and the same offense. In United States vs. Ballentine (4 Phil., 672), five requisites are given for jeopardy, to wit: JEOPARDY IN THE PHILIPPINE ISLANDS. — Under the laws of the Philippine Islands a defendant is not placed in legal jeopardy until he has been placed on trial under the following conditions: (1) Upon a good indictment; (2) before a competent court; (3) after the defendant has been arraigned; (4) after the defendant has plead to the indictment; (5) after the investigation of the charges has actually commenced by calling of a witness . . . . There can be no doubt that there were more than these five requisites in the cases numbered above which were appealed from the justice of the peace of Burawen to the Court of First Instance of Leyte; said justice had complete jurisdiction over each and every one of the informations filed in said cases; said informations were valid and sufficient; the defendant was informed of each of them; he pleaded not guilty; the trial of each of them was begun, and he was convicted in each one of them. When an appeal was taken from these judgments, the latter became ipso facto et jure void, and the defendant came under the jurisdiction (appellate) of the Court of First Instance of Leyte, for a new trial for the same crimes of estafa of which he had already been tried and convicted by the justice of the peace of Burawen. Now then, what effect has the dismissal of these cases granted upon petition of the prosecuting attorney? In Bautista vs. Johnson (2 Phil., 230), the rule was laid down that a person appealing from a municipal court to the Court of First Instance cannot withdraw his appeal, since it has resulted in vacating the judgment appealed from, and a withdrawal would give rise to the anomalous situation that no judgment remains to be executed upon him. The dismissal of the cases appealed from the justice of the peace of Burawen, by the Court of First Instance of Leyte, then, amounts to an acquittal of the accused; for as the adverse judgments passed by the justice of the peace and appealed from are vacated, no judgment remains to be executed upon the defendant, and he is therefore free. The dismissal in question also deprived the Court of First Instance of Leyte of the only jurisdiction it had in the premises, namely, appellate jurisdiction. The Attorney-General admits that the information in the case before us, No. 8087, of the Court of First Instance of Leyte. Wherein all the aforesaid criminal cases appealed from the justice of the peace of Burawen, were merged into one, was originally filed with said Court of First Instance. If the accused was absolved from the judgments of conviction rendered against him by the justice of the peace of Burawen by the dismissal granted by the Court of First Instance of Leyte of the cases wherein said judgments were rendered and from which appeals were taken to the said Court of First Instance, and if the latter lost appellate jurisdiction over said cases by virtue of the dismissal, when the information in the instant case was filed not on appeal, but for the first time, setting forth the acts denounced in the said cases appealed from the justice of the peace of Burawen, from which he has already been absolved as we have said, he is thereby exposed for the second time to conviction of the same crimes for which he has been tried and sentenced by a competent court, that is, the justice of the peace of Burawen, and later absolved by the dismissal granted by a likewise competent court. In order to retain appellate jurisdiction and prevent the vacation of the sentences appealed from the justice of the peace court of Burawen, the Court of First Instance of Leyte in permitting the consolidation of the informations in the cases appealed from with that pending in said court, should not have ordered the dismissal of the informations is said appealed cases. It appears from the record that the provincial fiscal of Leyte merged criminal cases Nos. 8090, 8091, 8135, 8136, 8191, and 8193 in the information of criminal case No. 8087, the former having been appealed to the Court of First Instance of Leyte from the justice of the peace court of Burawen, for the reason that the amounts embezzled according to those cases form part of the amount embezzled according to criminal case No. 8087, filed originally with the Court of First Instance of Leyte; for all those amounts comprised the weekly collections, for the period from the 18th to the 24th of November, 1928, for which the defendant was accountable to the Singer Sewing Machine Company in Manila. If this be so, then the defendant cannot be made to answer in court for the conversion of the P71 mentioned in the information filed in criminal case No. 8087, for, having been practically absolved from the charge of embezzling the amount in which said P71 are included, he has been also practically absolved from the charge of embezzling the aforesaid amount and to try him anew would be to expose him for the second time to conviction of one and the same offense, following the doctrine laid down in United States vs. Walsh (6 Phil. 349), which reads as follows: EMBEZZLEMENT; DOUBLE JEOPARDY. — A conviction of a public officer for embezzlement of Government property under article 390 of the Penal Code, founded on a shortage of money, bars a second prosecution of the same man for the same offense, in the same office, during the same period, founded on a shortage of stores and supplies. The second trial puts him twice in jeopardy. For the foregoing reasons we are of opinion and so hold, that the dismissal of a criminal case of estafa, which has been appealed from the justice of the peace court to the Court of First Instance, the former being vested with jurisdiction to try and decide it, is equivalent to an acquittal of the defendant in said case, and that the filing of another information in which the case dismissed is included, exposes said defendant to a second conviction of one and the same offense, and therefore constitutes double jeopardy. Wherefore, the judgment appealed form is reversed, and let the case be dismissed, with costs de officio. So ordered. Avanceña, C.J., Street, Malcolm, Villamor, Ostrand Johns and Romualdez, JJ., concur. The Lawphil Project - Arellano Law Foundation