[ G .R. No. L-2666. September 26, 1951 ] 90 Phil. 53
[ G .R. No. L-2666. September 26, 1951 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT VS. JOSEPH ELKANISH, DEFENDANT AND APPELLEE. br>D E C I S I O N
TUASON, J.:
The defendant was a member of the crew of the S. S. “Washington Mail,” of American registry, on which 65 large boxes of blasting caps were found and seized by the authorities while it was anchored inside the breakwater off Manila. The ownership of the explosives being imputed to the accused, two separate informations were filed against him on the same date, one charging illegal importation of the articles under section 2702 of the Revised Administrative Code, and the other, illegal possession of the same articles under Section 1 of Act No. 3023.
Having been arraigned and entered the plea of not guilty on the information for illegal possession, the accused afterward moved to quash the information for illegal importation, on the grounds (1) that blasting caps are not lawful objects of commerce and hence not embraced by section 2702 of the Revised Administrative Code, and (2) that, in any event, prosecution for importation is barred by the prosecution for illegal possession. Without touching the first ground, His Honor, Judge Potenciano Pecson of the Court of First Instance of Manila, dismissed the information on the second.
This appeal, by the City Fiscal, is from that order. Parenthetically, it should be stated that since the appeal was taken, the other case has been tried and the defendant acquitted.
We will follow Judge Pecson’s example and confine this decision to a discussion of the question on which the information was dismissed.
There are “hopeless conflicts” in the judicial decisions on the question of former jeopardy; apparent disharmony exists even in decisions of the same court and, it would seem on the surface, in the decisions of this Court. The diversity arose in large measure from the differences1 in the transactions involved and in the provisions of the statutes, from the application of the general principles on the facts, and from the circumstance that “the tests commonly adopted are by no means infallible.” (22 C. J. S278) The nature then of the deed or deeds alleged in the two indictments and their relations to each other and to the statute concerned, must constantly be held in view if one is not to be misled by the adjudicated cases.
Section 9 of Rule 113 of the Rules of Coijrt reads:
“When a defendant shall have been convicted or acquitted, or the case against liim 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 or is necessarily included in the offense charged in the former complaint or information.”
With reference to the importation and possession of blasting caps, it seems plain beyond argument that the latter is inherent in the former so as to make thorn juridically identical There can hardly be importation without possession. When one brings something or causes something to be brought into the country, he necessarily has the possession of it. The possession ensuing from the importation may not be actual, but legal or constructive, but whatever its character, the importer, in our opinion, is a possessor in the juristic sense and he is liable to criminal prosecution. If lie parts with the ownership or interest in the article before it reaches Philippine territory, he is neither an importer nor a possessor within the legal meaning of the term, and he is not subject to prosecution for either offense under the Philippine Laws. The owner of the merchandise at the time it enters Philippine waters is its importer and possessor. He who puts merchandise on board a vessel and alienates the title thereto while it is in transit does not incur criminal liability. Possession or ownership of a prohibited article on a foreignvessel on the high seas outside the jurisdiction of the Philippines does not constitute a crime triable by the courts of this country. (U. S. vs. Look Chaw, 18 Phil., 573) Of the reported cases, U. S. vs. Lim Suco, 11 Phil., 484 and U. S. vs. Poh Chi, 20 Phil., 140, bear the closest resemblance to the case at bar.
In U. S. vs. Lim Suco, the defendant had been convicted for smoking opium in a pipe. He was afterwards prosecuted for having a pipe in his possession. It was held that “the possession of which he is charged in the second complaint was the same possession which he necessarily had in committing the offense specified in the first, and therefore he could not be again convicted for having the pipe in hisr possession.” The Court said that “when a person has been tried and convicted for a crime which has various incidents included in it, he can not be a second time tried for one of those incidents without being twice put in jeopardy for the same offense.” (See also the cases cited.)
In U. S. vs. Poh Chi, the Court held that it was not the intention of the legislature to have separate complaints filed against a person found in the illegal possession of opium and a pipe for smoking the same—one for illegal possession of the opium and another for the possession of the pipe.
When the above cases were decided, the law in force on the subject was General Orders No. 58, Sections 19-30. If there is any difference between that law and Section 9 of Rule 113 of the Rules of Court, it is that the latter is more liberal, whereas by General Orders No. 58 there was jeopardy when the offense charged in the second information or indictment is necessarily included in the first complaint or information, the Rules of Court operates both ways, barring a second indictment, which charges an offense which “necessarily includes or is necessarily included in the offense charged in the former complaint or information.”
Penal statutes, substantive and remedial or procedural, are, by the consecrated rule, construed strictly, or liberally in favor of accused. The fact that the protection against being twice put in jeopardy for the same offense is not only a legislative creation but secured by the Constitution, impresses with a command such construction as would bring the statute into harmony with the spirit of the fundamental law. As this Court, through Mr. Justice Moreland, has said in U. S. vs. Gustilo, 19 Phil., 208.—
“We are confident that that portion of the Philippine Bill embodying the principle that no person shall be twice put in jeopardy of punishment of the same offense should, in accordance with ica letter and spirit, be made to cover as nearly as possible every result which flows from a single criminal act impelled by a single criminal intent. The fact should not be lost sight of that it is the injury to the public which a criminal action seeks to redress, and by such redress to prevent its repetition, and not the injury to individuals. In so far as a single criminal act, impelled by a single criminal intent, in other words, one volition, is divided into separate crimes and punished accordingly, just so far are the spirit of the Philippine Bill and the provisions of article 89 of the Penal Code violated.”
This doctrine was reiterated in U. S. vs. Poh Chi, supra.
In our case, there is no denying that importation and possession represent only one criminal intent, one volition; the design was to sell or dispose of the blasting caps for profit, the importation and possession being no more than means to accomplish that purpose, the media between the accused and the ultimate objective. Importation and possession, at least in this particular case, played the same auxiliary role with reference to the object pursued. That, it should be borne in mind, does not go exactly for smoking opium and possession of a pipe, the latter of which was considered merged in smoking in the cases above cited. For smoking is an end in itself; and while pipe is indispensable and therefore a means for smoking, possession of pipe may have a purpose for its owner other than selling it or smoking with it himself. He can allow others to use it for compensation or keep it as part of an equipment for running an opium den. In other words, possession of an opium pipe may envisage broader objectives than possession and importation of blasting caps.
The appealed order is affirmed without costs.
Bengzon, Padilla, Reyes, and Jugo JJ., concur.
Paras, C. J., concurs in the result.