THE PEOPLE OF THE PHILIPPINES, PETITIONER, VS. THE CITY COURT OF MANILA, BRANCH VI AND AGAPITO GONZALES Y VENERACION, RESPONDENTS.

Petition for review on certiorari to set aside the order
of the respondent City Court of Manila, Branch VI, dated 20 January 1973,
dismissing the information (for violation of Article 201(3) of the Revised
Penal Code) against the accused, herein respondent Agapito
Gonzales, in Criminal Case no. F-147348 and its amended order, dated 16 March 1973, denying petitioner’s
motion for reconsideration of the first order.

Respondent Agapito Gonzales, together
with Roberto Pangilinan, was accused of violating
Section 7, in relation to Section 11, Republic Act No. 3060 and Article 201(3)
of the Revised Penal Code, in two (2) separate informations
filed with the City Court of Manila on 4
April 1972.

On 7 April 1972,
before arraignment in the two (2) cases, the City Fiscal amended the
information in Criminal Case no. F-147347 (for violation of Section 7 in
relation to Section 11, Rep. Act. No. 3060), by alleging that the accused,

conspiring, and confederating together, and
mutually helping each other did then and there willfully, unlawfully, and
feloniously publicly exhibit and cause to be publicly exhibited . . . completed
composite prints of Motion film, of the 8 mm. size, in color forming visual
moving images on the projection screen through the mechanical application of
the projection equipment, which motion pictures have never been previously
submitted to the Board of Censors for Motion Pictures for preview, examination
and censorship, nor duly passed by said Board, in a public place, to wit:  at Room 309, De Leon Building, Raon Street corner Rizal Avenue,
(Manila).

On the other hand, the information in Criminal Case no. F-147348
(for violation of Article 201(3) of the Revised Penal Code) was amended to
allege that, on the same date, 16 July
1971, the same accused,

conspiring and confederating together and
actually helping each other, did then and there willfully, unlawfully,
feloniously and publicly exhibit, through the mechanical application of movie
projection equipment and the use of projection screen, indecent and immoral
motion picture scenes, to wit:  motion
pictures of the 8 mm. size, in color, depicting and showing scenes of totally
naked female and male persons with exposed private parts doing the sex act in
various lewd and lascivious positions, among other similarly and equally
obscene and morally offensive scenes, in a place open to public view, to
wit:  at Room 309, De Leon Building, Raon Street corner Rizal Avenue,
[Manila].

On 31 May 1972,
upon arraignment, accused Agapito Gonzales pleaded
not guilty to both charges.  The other
accused, Roberto Pangilinan, was not arraigned as he
was (and he still is) at large.

On 26 June 1972,
accused Agapito Gonzales filed a motion to quash the informations in the two (2) cases, on the ground that said informations did not charge an offense.  The motion was denied on 17 July 1972 and the cases were set for trial on 7 August 1972.

No hearing was held on 7
August 1972, however, as the accused moved for postponement of the
trial set on said date and the trial set on two (2) other dates.  On 15
November 1972, the accused Gonzales moved for permission to
withdraw his plea of “not guilty” in Criminal Case no. F-147348, without
however, substituting or entering another plea. 
The Court granted the motion and reset the hearing of the cases for 27 December 1972.

On 27 December 1972,
accused Gonzales moved to quash the information in Criminal Case no. F-147348
on the ground of double
jeopardy, as there was according to him, also pending against him Criminal Case
no. F-147347, for violation of Rep. Act No. 3060, where the information
allegedly contains the same allegations as the information in Criminal Case no.
F-147348.

Petitioner opposed the motion to quash but the respondent City
Court, in an order, dated 20 January 1973, dismissed the case (Criminal Case no.
F-147348) stating thus:

In one case (F-147347), the basis of the charge is a special law,
Rep. Act No. 3060.  In the other case
(F-147348), the basis of the same is the pertinent provision of the Revised
Penal Code.  Considering that the
allegations in the information of said cases are identical, the plea entered in
one case by the accused herein can be reasonably seen as exposing him to double
jeopardy in the other case, as said allegations therein are not only similar
but [sic] identical facts.

After the dismissal of Criminal Case no. F-147348, or on 7 February 1973, in Criminal Case no.
F-147347, the accused changed his plea of “not guilty” and entered a
plea of “guilty” for violation of Rep. Act No. 3060.  He was accordingly sentenced to pay a fine of
P600.00.

On 10 February 1973,
petitioner filed a motion for reconsideration of the order of 20 January 1973, dismissing Criminal
Case no. F-147348.  This was however
denied by respondent court in its order dated 15 March 1973, and in its amended
order dated 16 March 1973; hence, this petition for review on certiorari.

Petitioner contends that the accused could not invoke the
constitutional guarantee against double jeopardy, when there had been no
conviction, acquittal, dismissal or termination of criminal proceedings in
another case for the same offense^[1].  The respondent, on the other hand, argues that
conviction or acquittal in, or dismissal or termination of a first case is not
necessary, so long as he had been put in jeopardy of being convicted or acquitted
in the first case of the same offense^[2].

It is a settled rule that to raise the defense of double
jeopardy, three requisites must be present: 
(1) a first jeopardy must have 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, or the second offense includes or is necessarily
included in the offense charged in the first information, or is an attempt to
commit the same or a frustration thereof.

All these requisites do not exist in this case.

The two (2) informations with which the
accused was charged, do not make out only one offense, contrary to private
respondent’s allegations.  In other
words, the offense defined in section 7 of Rep. Act No. 3060 punishing the
exhibition of motion pictures not duly passed by the Board of Censors for
Motion Pictures does not include or is not included in the offense defined in
Article 201(3) of the Revised Penal Code punishing the exhibition of indecent
and immoral motion pictures.

The two (2) offenses do
not constitute a jeopardy to each other. 
A scrutiny of the two (2) laws involved would show that the two (2)
offenses are different and distinct from each other.  The relevant provisions of Rep. Act No. 3060
state:

“Sec. 7.  It shall be
unlawful for any person or entity to exhibit or cause to be exhibited in any
motion picture theater or public place, or by television within the Philippines
any motion picture, including trailers, stills, and other pictorial
advertisements in connection with motion pictures, not duly passed by the
Board; or to print or cause to be printed on any motion picture to be exhibited
in any theater, or public place or by television, a label or notice showing the
same to have been previously passed by the said Board when the same has not
been previously authorized, except motion pictures imprinted or exhibited by
the Philippine Government and/or its departments and agencies, and
newsreels.”

“Sec. 11.  Any violation
of Section seven of this Act shall be punished by imprisonment of not less than
six months but not more than two years, or by a fine of not less than six hundred nor more than two thousand
pesos, or both at the discretion
of the court.  If the offender is an
alien, he shall be deported immediately. 
The license to operate the movie theater or television shall also be
revoked.  Any other kind of violation
shall be punished by imprisonment of not less than one month nor more than
three months or a fine of not less than one hundred pesos nor more than three
hundred pesos, or both at the discretion of the court.  In case the violation is committed by a
corporation, partnership or association the criminal liability shall devolve
upon the president, manager, administrator, or any official thereof responsible
for the violation.”

On
the other hand, Article 201(3) of the Revised Penal Code provides:

Art. 201.  Immoral
doctrines, obscene publications and exhibitions.  – The penalty of prision
correccional in its minimum period, or a fine
ranging from 200 to 2,000 pesos, or both, shall be imposed upon:

xxx 3.  Those who in
theaters, fairs, cinematographs, or any other place open to public view, shall
exhibit indecent or immoral plays, scenes,
acts, or shows; xxx

It
is evident that the elements of the two (2) offenses are different.  The gravamen of the
offense defined in Rep. Act No. 3060 is the public exhibition of any motion
picture which has not been previously passed by the Board of Censors
for Motion Pictures.  The motion picture may not be indecent or
immoral, but if it has not been previously approved by the Board, its public
showing constitutes a criminal offense^[3].  On
the other hand, the offense punished in Article 201(3) of the Revised Penal
Code is the public showing of indecent or immoral plays, scenes,
acts, or shows, not just motion
pictures^[4].

The nature of both
offenses also shows their essential difference. 
The crime punished in Rep. Act No. 3060 is a malum prohibitum
in which criminal intent need not be proved because it is presumed, while the
offense punished in Article 201(3) of the Revised Penal Code is a malum in se, in which criminal intent is an indispensable ingredient.

Considering these differences in elements and nature, there is no
identity of the offenses here involved for which legal jeopardy in one may be
invoked in the other^[5].  Evidence required to prove one offense is not
the same evidence required to prove the other. 
The defense of double jeopardy cannot prosper.  As aptly put in People v. Doriquez^[6]:

“It is a cardinal rule that the protection against double
jeopardy may be invoked only for the same offense or identical offenses.  A single act may offend against two (or more)
entirely distinct and unrelated provisions of law, and if one provision
requires proof of an additional fact or element which the other does not,
an acquittal or conviction or a dismissal of the information under one does not
bar prosecution under the other.  (People
v. Bacolod,
89 Phil. 621; People v. Capurro, 7 Phil. 24).  Phrased elsewhere, where two different laws
(or articles of the same code) define two crimes, prior jeopardy as to one of
them is no obstacle to a prosecution of the other, although both offenses arise
from the same facts, if each crime involves some important act which is not an
essential element of the other.  (People
v. Alvarez, 45 Phil. 472)^[7]“.  (Emphasis supplied)

Petitioner also questions the propriety of allowing the accused
in Criminal Case no. F-147348 to withdraw his plea of not guilty in order to
file a motion to quash on the ground of double jeopardy.  Petitioner argues:

“It is true that on February
3, 1973, the trial court finally convicted respondent Gonzales in
Criminal Case No. F-147347 by imposing on him a fine of P600.00.  But it is obvious that respondent Gonzales’s
conviction in that case cannot retroactively supply the ground for the
dismissal of Criminal Case No. F-147348.

But even if conviction in Criminal Case No. F-147347 preceded the
dismissal of Criminal Case No. F-147348, still that conviction cannot bar the
prosecution for violation of article 201(3) of the Revised Penal Code, because,
by pleading to the charge in Criminal Case No. F-147348 without moving to quash
the information, the accused (now the respondent) Gonzales must be taken to
have waived the defense of double jeopardy, pursuant to the provisions of Rule
117, section 10.  (Barot
v. Villamor, 105 Phil. 263 [1959]) It is only in
cases where, after pleading or moving to quash on some other grounds, the accused
learns for the first time that the offense of which he is charged is an offense
for which he has been in jeopardy that the court may in its discretion
entertain at any time before judgment a motion to quash on that ground.  xxx In the case at bar, however, the fact is
that the accused (now the respondent Gonzales) was arraigned in the same
court.  He, therefore, cannot claim
ignorance of the existence of another charge against him for supposedly the
same offense^[8]“.

Petitioner’s argument is well-taken.  Sec. 10, Rule 117, of the Rules of Court,
before its amendment stated?

“SEC. 10.  – Failure
to move to quash – Effect of – Exception. 
– If the defendant does not move to quash the complaint or information
before he pleads thereto he shall be taken to have waived all objections which
are grounds for a motion to quash except when the complaint or information does
not charge an offense, or the court is without jurisdiction of the same.  If, however, the defendant learns after
he has pleaded or has moved to quash on some other ground that the offense for
which he is now charged is an offense for which he has been pardoned, or of
which he has been convicted or acquitted or been in jeopardy, the court may in
its discretion entertain at any time before judgment a motion to quash on the
ground of such pardon, conviction, acquittal or jeopardy”.  (Emphasis supplied)

However, it must be noted that, under the
1985 Rules, the provision now reads as follows:

“Failure to move or quash or to allege any ground therefor.  The
failure of the accused to assert any ground of a motion to quash before he
pleads to the complaint or information, either because he did not file a motion
to quash or failed to allege the same in said motion, shall be deemed a waiver
of the grounds for a motion to quash, except the grounds of no offense charged,
lack of jurisdiction, extinction of the offense or penalty, and jeopardy.  xxx”^[9]

The above, being an amendment favorable
to the accused, the benefit thereof can be extended to the accused-respondent.  However, whatever benefit he may derive from
this amendment, is also illusory.  For,
as previously noted, there is no double jeopardy which gave rise to a valid
motion to quash.

The People (petitioner) rightly appealed the dismissal of
Criminal Case no. F-147348.  For, as
ruled in People v. Desalisa^[10]

“As a general rule, the dismissal or
termination of a case after arraignment and plea of the defendant to a valid
information 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 complaint or
information (Sec. 9. Rule 113).  However,
an appeal by the prosecution from the order of dismissal (of the criminal case)
by the trial court shall not constitute double jeopardy if (1) the dismissal is
made upon motion, or with the express consent, of the defendant, and (2)
the dismissal is not an acquittal or based upon consideration of the evidence
or of the merits of the case; and (3) the question to be passed upon by
the appellate court is purely legal so that should the dismissal be found
incorrect, the case would have to be remanded to the court of origin for
further proceedings, to determine the guilt or innocence of the defendant^[11]“.

WHEREFORE, the petition is granted.  The appealed orders are hereby reversed and
set aside.  Criminal Case no. F-147348 is
ordered reinstated and remanded to the respondent Court for trial according to
law.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Paras,
Feliciano, Bidin, Sarmiento,
and Cortes, JJ., concur.

Gutierrez, Jr., J., concur but
also joins J. Cruz in his reservations about R.A. 3060.

Gancayco, J., on leave.

^[1]
Const. (1973), Art. IV, Sec. 22:  “No
person shall be twice put in jeopardy of punishment for the same offense.  If an act is punished by a law or an
ordinance, convic­tion or acquittal under either shall constitute a bar to
another prosecution for the same offense.” Reiterated in the 1987
Constitution as Art. III, Sec. 21.

^[2]
Rule 117, Sec. 2 of the Revised Rules of Court states:  “Motion
to quash-Grounds – The defendant may move to quash the complaint or
information on any of the following grounds: 
xxx (h) that the defendant has been previously convicted or in jeopardy
of being convicted, or acquitted of the offense charged.” Reiterated in
the 1985 Rules on Criminal Procedure (“1985 Rules”)

^[3] As a matter of interest, sec. 3 of Rep. Act
3060 em­powers the Board of Censors “[t]o screen, censor, examine and
supervise the examination of, approve or disapprove or delete portions from,
and/or prohibit the introduction and exhibition of motion pictures, imported or
produced in the Philippines for non?theatrical, theatrical and television
distribution which in its judgment are immoral, indecent, contrary to law,
and/or good customs, or injurious to the prestige of the Republic of the
Philippines and its people.”

^[4]
In People v. Padan, 101
Phil. 749 (1957) the Court upheld the conviction of persons who exhibited and
performed highly immoral and indecent acts before a crowd of one hundred
persons who paid admission to see the performance.

^[5]
Cf. People v. Relova, G.R. No. L-45129, 6 March 1987

^[6]
G.R. No. L-24444-45, 29 July 1968,
24 SCRA 163

^[7]
Id. at 171

^[8]
Rollo at 59

^[9]
Rule 117, Sec.
8

^[10]
G.R. No. L-15516, Dec. 17, 1966,
125 Phil. 27 (1966).     Not reported in Supreme Court Reports
Annotated (SCRA).

^[11]
Id at 43

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