G.R. No. 73963. November 05, 1987
ELADIO C. TANGAN, PETITIONER, VS. THE PEOPLE OF THE PHILIPPINES AND THE HONORABLE RICARDO J. FRANCISCO, JUDGE OF THE REGIONAL TRIAL COURT, NATIONAL CAPITAL JUDICIAL REGION, MAKA…
PARAS, J.:
This is a petition for certiorari with preliminary
injunction seeking annulment of the resolution of respondent judge* dated January
9, 1986 denying petitioner’s motion to quash information in
Criminal Case No. 19350 for lack of merit and its resolution of March 5,
1986 likewise
denying petitioner’s motion for reconsideration.
Petitioner had been charged on July 1, 1985 before the Regional Trial Court of Makati, Branch 136 in an information that described the
commission of the crime of murder with the use of an unlicensed firearm and
docketed as Criminal Case No. 17587, as follows:
“That on or about the 1st day of December, 1984, in the
Municipality of Paranaque, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused,
with intent to kill, with treachery and with the use of an unlicensed firearm,
did then and there willfully, unlawfully and feloniously attack, assault, and
shoot Generoso Miranda III, thereby inflicting upon
him mortal gunshot wounds which directly caused his death.
Contrary to law.”
Before the scheduled date
of arraignment on August 8, 1985, however, a new investigation of the case
was made upon request of petitioner filed with the Office of the Provincial
Fiscal of Pasig, Rizal (Rollo, p. 94).
Subsequently, the offense charged was changed to homicide with the use
of a licensed firearm, with the information amended on August
16, 1985 (Rollo, p. 19), as follows:
“That on or about the 1st day of December, 1984 in the
Municipality of Paranaque, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused,
with intent to kill and armed with a gun, did then and there willfully,
unlawfully and feloniously attack, assault and shoot with the said firearm
(licensed) one Generoso Miranda III, thereby hitting
the latter in the abdomen and inflicting upon him mortal gunshot wounds which
directly caused his death.
Contrary to law.”
On September
4, 1985 petitioner
entered a plea of “not guilty” to the amended charge of homicide (Rollo, p. 96).
On September 18, 1985 a
resolution was issued by the Office of the Provincial Fiscal of Rizal finding probable cause to hold petitioner for illegal
possession of firearms and ammunitions used in the commission of homicide as
defined and punished under Section 1 of Presidential Decree 1866 (Rollo, p. 97) and on the same date, information was
filed in the same court indicting petitioner for the offense (Rollo, p. 20) docketed as Criminal Case No. 19350,
committed as follows:
“That on or about the 1st day of December, 1984 in the
Municipality of Paranaque, Metro Manila, Philippines
and within the jurisdiction of this Honorable Court, the above-named accused
willfully, unlawfully and feloniously had in his possession, custody and
control a Smith & Wesson Cal. 38 revolver with Serial No. C 61898 (Yoke No. 7566) and five (5) live ammunition and one (1) empty
shell without having procured the corresponding license or permit therefor and which the said accused used in the commission
of the crime of homicide against the person of one Generoso
Miranda III.
CONTRARY TO LAW.”
On October 30, 1985
petitioner filed a motion to quash the information in Criminal Case No. 19350
on the grounds that: (1) the information
charges more than one offense which are separately punishable under existing
laws; (2) the criminal action or liability of the accused has been extinguished;
and (3) the accused is in jeopardy of being convicted, or acquitted, of the
offense charged (Rollo, p. 3).
On January 9, 1986
respondent judge issued the questioned resolution denying the motion to quash (Rollo, p. 22) stating:
“The Court finds no merit in the first ground invoked by the
defense. In alleging that the
accused: ‘had in his possession,
custody and control a Smith and Wesson Cal. 38 revolver with Serial No. C-61898
(Yoke No. 7566) and five (5) live ammunition and one (1) empty shell without
having procured the corresponding license or permit therefore and which the
said accused used in the commission of the crime of homicide against the person
of one Generoso Miranda III,’ the accused is not
being charged with several distinct and separate offenses as defined in Section
1 of P.D. 1866. The information simply
describes the mode or manner by which the crime or the violation of Section 1,
PD 1866 was committed which is allowed under existing laws and jurisprudence (Ko Bu Lim v. Court of Appeals, 118 SCRA 573, 581-582
(1982).
The Court likewise finds no
merit in the second ground invoked by the defense. The so-called inconsistent stand adopted by the
prosecution is not a ground for quashing the information which is valid on its
face. Moreover, the information herein
has the additional allegation that the accused has no permit for
the firearm in question. A person may
have the license to possess firearm, but may not necessarily have the necessary
permit to carry the same outside his home.
The so-called inconsistency therefore, granting arguendo,
that there is, goes on as far only as the matter of license is concerned, and
does not cover the matter of permit.
The third ground is likewise without merit, not because there has
been no conviction or acquittal yet in the two cases pending before this court,
as the prosecution contends, but because the offense charged in the two informations, albeit, based on the same act or incident,
are entirely different offenses. One is
for homicide penalized under the Revised Penal Code, the other is for violation
of Section 1 of PD 1866 which is a special law.
For double jeopardy to come into play, the subsequent indictment must be
for the same offense. Except in the case
(then) of an act being punished by a law and an ordinance in which event a conviction
or acquittal under either constitutes a bar to another prosecution, there must
be a showing of the crimes charged being identical. It is not enough that the complaint or
information is based on the same act. x x x’ (People v. Mencias,
46 SCRA 88, 95-96 (1972).
IN VIEW OF THE FOREGOING CONSIDERATIONS, the motion to quash is
hereby denied.”
On January
24, 1986 petitioners
moved for the reconsideration of the resolution of January 9, 1986 but the same was again denied by respondent
judge in an order dated March 5, 1986, which reads:
“Upon evaluation of the grounds of the motion for
reconsideration filed by the accused as well as the opposition thereto, the
Court finds no cogent reason to disturb its resolution dated January 9, 1986, and therefore,
denies the same.”
Hence, this petition
filed with this Court on March 26, 1986 (Rollo, p. 2).
On April
23, 1986 the Court
resolved to require the respondents to comment thereon and to issue a temporary
restraining order to enjoin respondent Judge, his agents, representatives,
and/or any person or persons, acting upon his order or in his place or stead
from further proceeding with Criminal Case No. 19350 (Rollo,
pp. 26-26-A).
On June 4, 1986 private
respondent (complainant in the lower court) represented by Quisumbing
& Associates and Quisumbing Law Office filed his
comment on the petition, praying that the petition be dismissed (Rollo, p. 37). The
Office of the Solicitor General, on the other hand, filed its comment on June 11,
1986, praying that the
petition be granted. In the resolution
of June 18, 1986
the Court gave due course to the petition and required the parties to file
simultaneous memoranda.
On July 16,
1986 Atty. Alfonso
M. Cruz, in collaboration with the
law firm of N.V. Quisumbing and Associates filed a supplemental comment for
private respondent (Rollo, p. 65), which was noted by
the Court in its resolution dated August 17, 1986 (Rollo, p. 87).
On August 4,
1986 the Office of
the Solicitor General filed a manifestation and motion for leave to adopt its
comment as part of memorandum, for the People of the Philippines (Rollo, p.
74). The memorandum for the petitioner
was filed on August 4, 1986 (Rollo, p. 78) while the memorandum for private respondent was filed on August
19, 1986 (Rollo, p. 93).
Petitioner claims that
the information in Criminal Case No. 19350 should be quashed on the following
grounds:
1. The information charges more than one offense
which are separately punishable under different laws;
2. The criminal action or liability of herein
petitioner has been extinguished; and,
3. Herein petitioner is in jeopardy of being
tried, convicted and/or punished twice for the same offense.
The pivotal issue is whether
or not the filing of the information in Criminal Case No. 19350 for Illegal
Possession of Firearm and Ammunition used in the commission of Homicide defined
and punished under Section 1 of Presidential Decree No. 1866, arising out of
the same incident which is the subject matter of the previous amended
information in Criminal Case No. 17587, namely the shooting to death of Generoso Miranda III, subjects petitioner to jeopardy in
violation of the constitutional mandate against putting a person twice in jeopardy
of punishment for the same offense.
The answer is in the
negative.
To raise the
defense of double jeopardy, three requisites must be present: (1) a first jeopardy must have been attached
prior to the second; (2) the first jeopardy must have been validly terminated;
and (3) the second jeopardy must be for
the same offense as that in the first (People v. Bocar,
138 SCRA 166 [1985].
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. (People v. Bocar,
supra; Buscayno v. Military Commission Nos. 1,
2, 6 and 25, 109 SCRA 273 [1981]).
There is no double jeopardy
in the filing of the information for homicide in Criminal Case No. 17587 and
in the filing of the information for illegal possession of firearms and
ammunition used in the commission of homicide in Criminal Case No. 19350 for
the simple reason that the first jeopardy had not yet attached. It is well-settled 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 express consent. It is the conviction or jeopardy of being
convicted or the acquittal of the accused or termination of the case that bars
further prosecution of the same offense or 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. (Bulaong
v. People, 17 SCRA 746 [1966]; Silvestre
v. Military Commission No. 21, 82
SCRA 10 [1978]; Buscayno v. Military Commission Nos.
1, 2, 6 and 25, supra; People v. Milflores,
115 SCRA 570 [1982]). (Rule 117, Sec.
2(h), Rules of Court)
The case of Lazaro v. People (112 SCRA
430 [1982]) cited by the Solicitor General, in his comment on the petition, is not applicable to the case at bar primarily because the petitioner
in the cited case was already convicted in the Military Court of illegal
possession of unlicensed firearm used in committing parricide and the penalty
of death had already been imposed upon her, when the parricide case was set for
trial in the Circuit Criminal Court.
Hence, it is obvious that in said case, legal jeopardy had already
attached.
For the same reason, the cases of People v. Francisco Diaz (94 Phil. 714 [1950] and Yap
v. Lutero (105 Phil. 1307 [1959]), cited by the petitioner are not applicable,
for in both, all the requisites for the defense of double jeopardy are present.
In People v. Diaz a second information charging Diaz with damage
to property thru reckless imprudence was filed in the Court of First Instance
of Rizal after the first case accusing Diaz of
violation of Section 52 of Act 3992 known as the Revised Motor Vehicle Law was
dismissed by the Municipal Court of Pasay City for
failure of the government to prosecute.
While in the Yap case, the petitioner was
charged in the Municipal Court
of Iloilo City,
with reckless driving in violation of a city ordinance and later, charged again in the same court, with serious
physical injuries through reckless imprudence.
Petitioner moved to quash the latter information on the ground of double
jeopardy which was denied by respondent Judge.
Meanwhile, he was acquitted in the first case. The issue in the case was whether or not
under the second information petitioner could, if he failed to plead double
jeopardy, be convicted of the same act charged in the first case in which he
had already been acquitted. In ruling in
the affirmative, the Court held that 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.
As for the other grounds for a motion to quash raised by the
petitioner, there is no basis for the claim that the information in Criminal
Case No. 19350 charging petitioner with
alleged possession of firearms and ammunitions used in the commission of homicide as defined and punished under Section 1 of P.D. 1866 charges
more than one offense. In the same Lazaro case (supra) involving almost identical
circumstances to the case at bar except as to the attachment of jeopardy in the
former, the Court in ruling that there is only one offense charged, held that
parricide is an essential ingredient of qualified illegal possession of
firearm which is punishable by death.
Similarly, in the instant case the offense of illegal possession of
firearms is qualified by its being used to commit homicide and subjects
petitioner if found guilty thereof to death penalty which under the new Constitution
has been reduced to reclusion perpetua. Thus, the allegation in the information that
the unlicensed firearm was used in the commission of the crime of homicide
against the person of one Generoso Miranda III does
not charge petitioner in the same information with the separate offense of
homicide, but simply describes the mode or manner by which the violation of
Section 1 of P.D. 1866 was committed.
Neither is there a basis
for petitioner’s claim that his criminal liability for the offense charged in
the information in Criminal Case No. 19350 has been extinguished.
Article 89 of the
Revised Penal Code enumerates the causes that totally extinguish criminal
liability as follows: (1) the death of
the convict, as to the personal penalties; and as to pecuniary
penalties, liability therefore is extinguished only when the death of the
offender occurs before final judgment; (2) service of the sentence; (3)
amnesty, which completely extinguishes the penalty and all its effects; (4) absolute pardon; (5) prescription
of the crime; (6) prescription of the
penalty; (7) the marriage of the offended woman, as provided in Article 344 of
the Code.
In the case at bar, it is
evident that criminal liability in the homicide case has not been
extinguished under any of the above-mentioned causes. That petitioner entered a plea of not guilty
to the offense charged in Criminal Case No. 17587 which alleged that he
committed homicide with the use of a licensed firearm is immaterial as such
circumstance does not operate to extinguish his criminal liability for the
offense charged in Criminal Case No. 19350.
It appears from the
records that Criminal Case No. 19350 was filed in the same branch of the
same court (Rollo,
p. 3). Hence, to protect the
right of the accused to speedy justice while at the same time affording the State the opportunity to prosecute
and convict, a joint hearing of the two cases could be conducted so that the
accused can be tried as if under one information.
PREMISES CONSIDERED, (a) the petition is hereby DISMISSED,
for lack of merit; (b) the restraining order issued by the Court on April 23, 1986 is permanently lifted;
and (c) Criminal Cases Nos. 17850 and 19350 are consolidated and a joint
hearing thereon is ordered conducted.
This decision shall be immediately executory.
SO ORDERED.
Yap, (Chairman), Melencio-Herrera,
Padilla, and Sarmiento,
JJ., concur.
* Hon. Ricardo J. Francisco, Judge
of the Regional Trial Court, National Capital Judicial Region, Makati, Metro Manila,
Branch CXXXVI.