[ G.R. No. 47453. October 09, 1941 ] 73 Phil. 260
[ G.R. No. 47453. October 09, 1941 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. PONCIANO TAROK, DEFENDANT-APPELLANT. D E C I S I O N
LAUREL, J.:
On October 16, 1938, the appellant and his wife (the deceased Inocencia Itok) went to the house of one Sotera Baroro for the purpose of asking the latter permission to extract oil from some of her coconuts. Having been granted permission, Inocencia Itok borrowed a bolo with which to husk the coconuts. When the deceased saw that her husband was not doing anything to help her, she asked one Segundino Itok, son of Sotera Barorp, to assist her in husking the coconuts; whereupon the appellant told the deceased to give him the bolo as he would do the husking himself. On receiving the bolo, the appellant turned on his wife and started hacking her, as a result of which she was wounded in several parts of her body. The appellant was consequently indicted for the crime of serious physical injuries, to which he pleaded guilty, and was sentenced to suffer a penalty of seven months and one day. While appellant was serving this sentence, Inocencia Itok died of meningitis which was caused by the infection of the wound on her forehead inflicted by the appellant; whereupon he was indicted in the Court of First Instance of Oriental Negros for the crime of parricide. To this charge the appellant interposed the plea of double jeopardy, but the lower court found him guilty of the crime as charged and sentenced him to an indeterminate sentence of six years and one day of prision mayor to twelve years and one day of reclusion temporal, with the accessory penalties provided by law, to indemnify the heirs of the deceased in the amount of ¥2,000, without subsidiary imprisonment in case of in- solvency, and to pay the costs. Hence, this appeal. The question here presented is: May the defendant who had previously been convicted of serious physical injuries be subsequently prosecuted for parricide involving the same assault charged and proven in the first prosecution, in view of the provision of section 9, Rule 113 of our Rules, here- inbelow quoted? We are not unmindful of the rule laid down in several cases that the protection against a second jeopardy is only for the same offense, not for the same act. (People vs. Espino, G. R. No. 46123, Jan. 30, 1940; People vs. Cabrera, 43 Phil., 82; U. S. vs. Vitog, 37 Phil., 42; Gavieres vs. U. S., 220 U. S., 338, 55 L. ed., 489; 41 Phil., 961; Kepner vs. U. S., 195 U. S., 100; U. S. vs. Capurro, 7 Phil., 24; U. S. vs. Ching Po, 23 Phil., 578.) There is, however, cdnsiderable discordance in the cases in determining the test as to when two offenses are substantially the same. One test is to ascertain whether the facts alleged in the second informa- tion would, if given in evidence, have warranted a conviction on the first, and if this is the case, then the offenses are assumed to be identical. (U. S. vs. Ching Po, supra; U. S. vs. Lim Tigdien, 30 Phil., 222; Gavieres vs. U. S., supra; People vs. Cabrera, supra; People vs. Alvarez, 45 Phil., 472; People vs. Martinez, 55 Phil., 6; People vs. Defoor, 100 Cal., 150; State vs. Price, 127 Iowa, 301; Newton vs. Commonwealth, 198 Ky., 707; Moore vs. State, 59 Miss., 25; Nochderffer vs. State, 34 Okla. Cr., 215.) In other cases, the plea of former conviction or acquittal is sufficient if the proof shows the second case to be the same transaction as the first. (Roberts v. State, 14 Ga. 8; Burnam v. State, 2 Ga. App., 395; Newton v. Commonwealth, 198 Ky. 707; State v. Mowser, 92 N. J. L., 474; Love v. State, 41 Okla. Cr., 291; Smith v. State, 159 Tenn., 674.) Another test is to inquire whether the two offenses are in substance precisely the same or of the same nature or of the same species, so that the evidence which proves the one would prove the other; or if this is not the case, then the one crime must be an ingredient of the other. (People vs. Alvarez, 45 Phil., 472, 478; U. S. vs. Gustilo, 19 Phil., 208; U. S. vs. Capurro, 7 Phil., 24; Grey v. U. S., 172 Fed., 101; Wilcox v. U. S., 161 Fed., 109.) Other negative tests have also been laid down; viz.: (1) 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 prosecu- tion or conviction under the other. (Gavieres v. United States, 220 U." S., 338; Morey v. Commonwealth, 108 Mass., 433; State v. Hooker, 145 N. C., 581; People v. Alvarez, supra.) (2) If the evidence required to convict under the first indictment would not be sufficient to convict under the second indictment, but proof of an additional fact would be necessary to constitute the offense charged in the second, the former conviction or acquittal is not a bar. (Blair v. State, 81 Ga., 629; 7 S. E,. 855; State v. White, 123 Iowa, 425. 98 N. W.t 1027.) (3) Unless the two offenses charged are the same in law and in fact, they are not the same offense. (Ruble v. State, 51 Ark., 170; Com. v. Rody, 12 Pick., 496, 503; State v. Kingsbury, 147 Wash., 426, 432.) In the case of Diaz vs. United States, (223 U. S., 432), it was held that a conviction upon an indictment for assault and battery is not a bar to a subsequent prosecution for homicide, where the person assaulted died of the injury inflicted. In that case the Supreme Court of the United States said:
“The homicide charged against the accused in the court of first instance and the assault and battery for which he was tried before the justice of the peace, although identical in some of their elements, were distinct offenses both in law and in fact. The death of the injured person was the prin- cipal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense. (Com. v. Roby, 12 Pick. Am. Rep., 335; Johnson v. State, 19 Tex. App., 453; 53 Am. Rep., 385.)”
At first glance, it would seem that the aforecited case of Diaz vs. U. S. furnishes a concrete basis upon which the solution to the question herein presented may be predicated. Here as in the Diaz case, the death of the victim had not ensued at the time proceedings were had on the first information and the crime of parricide for which the defendant was prosecuted on the second information was then not yet consummated. But a further examination of the aforecited case reveals that jeopardy for the higher offense could not have attached for the reason that, unlike in the case at bar, the accused was tried for assault and battery in the justice of the peace court, which was without juris- diction to try him for homicide, and, of course, the jeopardy incident to the trial in that court did not extend to an offense beyond its jurisdiction. The principle in the above-cited case of Diaz vs. United States, supra, was applied by this court in the cases of United States vs. Ledesma and Bernad (29 Phil., 431), and People vs. Espino, G. R. No. 46123, promulgated January 30, 1940. In both cases the defendants were previously con- victed in the justice of the peace court of slight physical injuries and were later charged with grave physical injuries in the Court of First Instance. In the case, however, of People vs. Martinez (55 Phil., 6), where the accused was first charged with lesiones menos graves in the Court of First Instance and later prosecuted for lesiones graves in the same court, this court upheld the plea of autrefois convict or former jeopardy, holding that “not only was the first case an ingredient of the second case but the allegations in the second information would also, if proven, have been sufficient to support the former information.” Upon the other hand, the Rules of Court recently promulgated by this court and which took effect on July 1,1940, prescribe in section 9, Rule 113, thereof as follows:
“Sec. 9. Former conviction or acquittal or former jeo- pardy.—When a defendant shall have been convicted or acquitted, or the case against him dismissed or otherwise terminated without the express consent of the defendant, 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 defendant had pleaded to the charge, the conviction or acquittal of the defendant 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 oi is necessarily included in the offense charged in the former complaint or information.”
That is to say, under the New Rules, one offense shall be considered the same as the other not only when one is identical to the other but also when one necessarily includes or is necessarily included in the other. This section 9, Rule 113, is in lieu of sections 26, 27 and 28 of General Orders No. 58. It will be noted that this section 9 is a composite of sections 26 and 28 of General Orders No. 58, with some modifications. It will also be “noted that section 27 of General Orders No. 58 has been eliminated. Section 26 of General Orders No. 58 was the main law on jeopardy prior to the promulgation of the Rules of Court. Section 27 merely provides for an exception to the general rule expressed in section 26 and contemplates a situation where jeopardy does not attach. Section 28 is but another defense available to the defendant similar to jeopardy. Under the New Rules, the pleas available to a defendant under sections 26 and 28 of General Orders No. 58 are all considered as pleas of former jeopardy or former conviction or acquittal. The important change, however, lies in the wording of the last part of the New Rules (sec. 9, Rule 113) which was taken from section 26, General Orders No. 58. The original provision of section 26, General Orders No. 58, states: “the conviction, acquittal, or jeopardy shall be a bar to another information or indictment for the offense charged, or for an attempt to commit the same, or for a frustration thereof, or for any offense necessarily therein included of tvhich he might have been convicted under such complaint or information.” To our mind, the principle embodied in the New Rules of Court is a clear expression of selection of rule amidst conflicting theories. We take the position that when we amended section 26 of General Orders No. 58 by providing that the conviction or acquittal of the defendant or the dismissal of the case shall be a bar to another prosecution for any offense not only necessarily therein included but which necessarily includes the offense charged in the former complaint or information, we meant what we have, in plain language, stated. We certainly did not mean to engage in the simple play of words. That we are correct in this assertion is borne by the fact that soon after we approved the Rules, doubt arose as to the wisdom of the amendment, and suggestion was made to revert to the old rule but no agreement was reached. If we made a mistake in changing the rule and we find it necessary or advisable to go back to the former rule, judicial candor demands that we so state and recognize the error for the guidance of ourselves and of the legal profession and of all concerned. While, indeed, there are weighty considerations for the reversion to the former doctrine, we are of the opinion that there are no less weighty reasons for the maintenance of the present rule as contained in section 9 of Rule 113:
(1) In the present case the defendant had already been convicted of, and had more than begun to serve sentence for, the crime of lesiones graves. This offense is necessarily included in the greater crime of parricide, and “as the government cannot begin with the highest, and then go down step by step, bringing the man into jeopardy for every dereliction included therein, neither can it begin with the lowest and ascend to the highest, with precisely the same result.” (People vs. Cox, 107 Mich., 435, 438.) (2) The injustice suffered which, it is alleged, would result from the bar of the subsequent prosecution for the greater offense, could, in our opinion, be remedied by requiring prosecuting attorneys not to take precipitated action in cases of this kind, but to use their best judgment in watch- ing for the development of the case, as after all there is no danger of prescription or this danger is too remote. The administrative field here is as wide as its range is effective. To our mind, there is as much injustice in subjecting a person to double prosecution with all its concomitant and consequent annoyance and difficulties as there may be in barring a subsequent prosecution for the greater offense. We admit that a criminal prosecution must necessarily entail difficulties, for if the prosecution is justified, the resultant affects must either be tolerated or accepted. But from a single prosecution to a double or repeated prosecution in a case arising from the same transaction, there must be some difference. If and when the Government is in a position to avoid or forestall unnecessary harrassment and humiliation—placed in having to select between the two alternatives—we readily incline to shelter the individual and exact fairness and a higher degree of vigilance from the State. There is no substantial difference in principle between this case and one where the Government elects to prosecute on the lower offense where it is in a position to elect between trying the defendant on the lower or higher offense into which it may be divisible. In the former, it is responsible for the precipitated action; and in the latter, the election is at its peril. The result is the same. In both cases the Government must assume the responsibility, stop and ponder to improve upon its machinery of administration of criminal justice. (3) Conviction of the greater offense of parricide in this case means necessarily conviction of the constituent offense of lesiones graves. To avoid injustice, the eventual absorption of the penalty imposed in the former prosecution for the lesser offense is here suggested, so that the accused shall only serve the sentence imposed for the greater offense in accordance with the rule laid down in the Espino case (People vs. Espino, G. R. No. 46123) which was decided January 30,1940, before the Rules of Court went into effect. If this rule of eventual absorption is applied in a case of subsequent conviction for the higher offense, it should also be applied in case of acquittal for the higher offense for, certainly, acquittal for parricide means acquittal for lesiones graves produced by the same act or arising from the same transaction. But, if the rule of eventual absorption is not possible in the latter case, under what process of logical reasoning may the rule of eventual absorption be justified in the former case ? Why should there be absorption in case of conviction and no such absorption in case of acquittal? (4) An attempted or frustrated crime is included in the consummated. Both under the General Orders No. 58 and the New Rules of Court, a person convicted of a consummated offense may not be, for the same act, prosecuted for any attempt or frustration thereof. If, after trial and conviction for an attempted or frustrated offense, there should supervene a consummated offense, we express the opinion that conviction or acquittal of the lesser offense is a bar to subsequent prosecution for the consummated offense. There is no distinction in principle between this case and the case at bar. (5) Error or even possible combination on the part of the prosecuting attorney in prosecuting for the lesser offense is of course possible; but, in our opinion, there is as much peril in one case as in the other. The problem is to minimize the error or danger of combination.
We must observe that we are not here concerned with a case where the lesser offense is included in the greater offense over which the inferior court had no jurisdiction. On this point the Diaz case is not in point. If the Diaz case may be invoked, it is on the principle that at the time of the prosecution for the lesser offense the greater offense had not as yet been consummated, and that therefore the prosecution for the higher offense was not barred by the prior conviction for the lesser offense. But with this principle we were familiar at the time we approved the rule above referred to. Nevertheless, we departed there-from. The judgment of the lower court, herein appealed from, is accordingly reversed, and the information for parricide against the defendant-appellant, Ponciano Tarok, hereby dismissed, with cost de oficio. So ordered. Avanceña, C. J., Abad Santos, and Horrilleno, JJ., concur.