THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. FELIX KHO, ALIAS CO CAM, ET AL., DEFENDANTS AND APPELLANTS.

In criminal case No. 4253 of the Court of First Instance of Rizal, Felix Kho
alias Co Cam, Sun Leo, Choa Eng Kuan and Amado M. Apostol were charged
with having allowed or procured the removal from the Felix Cigar and Cigarettes
Factory of cigaretters which were subject to specific tax in the amount of
P2,014.05 without paying said tax, because the stamps affixed to said cigarettes
were fake, false and counterfeit. After trial, Felix Kho, Sun Leo and Amado M.
Apostol were acquitted upon the theory that Choa Eng Kuan, the factory manager,
had exclusive control of the Felix Cigar & Cigarettes Factory and, if any
offense was committed, said factory manager was responsible therefor; and upon
the finding that “there is not iota of evidence to show that the President and
members of the Board of Directors conspired with the factory manager in the
commission of the alleged offense, much less was evidence presented to show that
the President and directors had knowledge of the commission of the act
complained.

Subsequently, in criminal case No. 4264 of the Court of First Instance of
Rizal, Felix Kho, Sun Leo, Choa Eng Kuan and Amado M. Apostol were charged with
having had in their possession and control in the Felix Cigar & Cigarettes
Factory false and counterfeit internal revenue stamps for the purpose of using
them to evade the payment of specific taxes amounting to P24,312.25, in
violation of section 170 of the National Internal Revenue Code. Felix Kho, Sun
Leo and Amado M. Apostol filed a motion to quash, alleging that in criminal case
No. 4253, it was already shown that the factory manager Choa Eng Kuan had full
supervision and control of the operations of the Felix Cigar & Cigarettes
Factory, without any knowledge or participation on the part of movants; and that
if there was any responsibility for any offense in connection with said
operations, it was solely in the factory manager, the accused Choa Eng Kuan. The
court issued an order dated October 27, 1953, dismissing the case against Felix
Kho, Sun Leo and Amado M. Apostol, with their proportionate shares of the costs
de oficio. From this order the prosecution has appealed.

In the appealed order the lower court stated that “Although the ground for
the motion to quash in this case is not couched exactly in the language of the
second clause of Section 10 of Rules 113 of the Rules of Court, yet, after a
careful scrutiny of all the allegations contained in said motion it is apparent
that the same is the ground relied upon by the defense.” Inasmuch as section 10
of Rule 113 speaks of previous acquittal or jeopardy, there can be no doubt that
the lower court in essence and effect had ruled that the acquittal of Felix Kho,
Sun Leo and Amado M. Apostol in criminal case No. 4253, is a bar to the present
prosecution.

It is elementary that the plea of previous conviction will prosper only if
the former prosecution is for the same offense, or for an 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 (section 9, Rule 113, Rules of Court).

It is quite clear that the offense charged in the present case, namely,
possession of counterfeit internal revenue stamps for the purpose of using them,
punished under section 170 of the National Internal Revenue Code, is distinct
and different from the offense charged in the information in criminal case No.
4253, namely, allowing or procuring the removal of cigarettes subject to
specific tax without paying said tax, punished under section 174 of the National
Internal Revenue Code.

But it is contended that if anybody is responsible for or guilty of the
possession of the counterfeit internal revenue stamps in question, it is solely
the factory manager Choa Eng Kuan who, upon his plea of guilty, was already
convicted by the lower court in this case and sentenced to pay a fine of P1,000,
with subsidiary imprisonment in case of insolvency, plus one-fourth of the
costs. This would be good as a matter of defense on the part of the
defendants-appellees, Felix Kho, Sun Leo and Amado M. Apostol, on which,
however, they are necessarily required to present corresponding proof. It should
be remembered that the acquittal of said appellees in criminal case No. 4253 was
based on the very finding of the lower court that there was not an iota of
evidence to show that they conspired with the factory manager in the commission
of the offense charged therein, namely, allowing or procuring the removal of
cigarettes with fake or counterfeit internal revenue stamps, and that there was
no evidence to show that they had knowledge of the commission of said offense.
Without the appellees having presented any evidence in the present case as to
their lack of participation in or knowledge of the possession of the counterfeit
internal revenue stamps, it cannot be assumed that, as in the other criminal
case, No. 4253, they did not conspire with the factory manager or had no
knowledge of the existence in the Felix Cigar & Cigarettes Factory of the
counterfeit internal revenue stamps in question.

Appellees’ argument that the appeal taken by the prosecution in this case
would place the appellees in jeopardy for a second time is clearly untenable,
because an amended information was filed by the fiscal and there is nothing in
the record to show that arraignment has been made thereunder. It is noteworthy
that it was said amended information which the appellees moved to quash.

Wherefore, the appealed order is hereby reversed, and the case remanded to
the Court of First Instance of Rizal for further proceedings. So ordered without
costs.

Bengzon, Padilla, Montemayor, Jugo, Reyes, A., Bautista Angelo, and
Labrador, JJ., concur.

Concepcion, J., concurs in the result.

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CONCURRING OPINION

REYES, J.B.L., J., concurring:

I concur, but wish to stress the fact that,from the allegations of both
informations, it is manifest that the counterfeit stamps involved in the present
charge are different from the false stamps allegedly used by the accused for the
purpose of evading payment of specific taxes under the first information. This
is shown by the fact that while the counterfeit stamps involved in the present
information amounts to P24,312.25 in value, the stamps involved in the first
case were only P2,014,05 worth. Even if the stamps referred to in the first case
form part of the stamps now involved in the present information, the accused are
entitled only to a reduction of the quantity of stamps, and their corresponding
value, allegedly possessed by them under the present charge, but not to a
dismissal of the charge.