THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT, VS. ARMANDO FAJARDO Y GALANG AND VICENTE LIWANAG Y MARCELO, DEFENDANTS AND APPELLEES.

Armando Fajardo y Galang and Vicente Liwanag y Marcelo were
charged in the Court of First Instance of Manila with violation of
Section 878 of the Revised Administrative Code, in connection with
Section 2692 thereof, under an information which reads:

“That on or about the 19 th day of June 1960, in
the City of Manila, Philippines, the said accused, conspiring and
confederating together and helping each other, did then and there
wilfully and unlawfully have in their possession and under their
custody and control one (1) home made revolver, Paltik, 22 caliber
without ammunition, without having first secured the necessary license
or permit therefor.”

Upon arraignment both of the defendants pleaded not guilty. More than
six months thereafter they filed a motion to quash on the grounds that:

“The facts charged in the said information do not
constitute an offense against one of the two accused for the reason
that two (2) persons cannot be held responsible for the illegal
possession of One (1) Paltik as it cannot be actually possessed by both
of then at the same time, it being well settled that the rule of
conspiracy in the Revised Penal Code is not applicable to violations of
any provision of the Revised Administrative Code.

“Paltik, a
home made revolver, is not a firearm for which a license or permit can
be issued to its possessor and, therefore, it is not a ‘firearm’
contemplated within the purview of Section 878 in connection with
Section 2692 of the Revised Administrative Code as amended by
Commonwealth Act No. 56, as further amended by Republic Act No. 4. A
Paltik with ammunition is a ‘deadly weapon’; without ammunition, it is
merely a ‘weapon’.”

and prayed that:

“The information in the
above-entitled case be quashed or in fairness to one of the accused, a
re-investigation of this case be ordered with the object in view of
determining the true person criminally liable and dropping from the
information the innocent one.”

Acting on the motion and the assistant fiscal’s opposition thereto, the court issued an order as follows:

“Finding the motion to quash of defendant dated
February 14, 1961, to be meritorious, the Assistant Fiscal is hereby
ordered to file an amended information, within five days from receipt
of this order, otherwise this case will be dismissed.”

Upon
failure of the assistant fiscal to file an amended information, the
court on March 13, 1961 ordered the case dismissed provisionally with
costs de oficio and directed the release of the accused.

The State appealed and now claims that the lower court
erred (1) in entertaining the motion to quash the information after the
defendants had been arraigned and had pleaded not guilty; (2) in
holding that the motion to quash was meritorious and in ordering the
filing of an amended information; and (3) in dismissing the case and
ordering the release of defendants from custody.

Defendants, however, argue that the prosecution may not appeal because they would be placed in double jeopardy.

An
appeal by the prosecution in a criminal case is not available if the
defendant would be placed thereby in double jeopardy (Rule 118, Section
2, Revised Rules of Court). 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 or is necessarily included in the offense charged
in the former complaint or information (Section 9, Rule 117, id.).

There
can be no question that the information was sufficient with respect to
both appellees. While no license or permit may be issued for a
“paltik”, it is, nevertheless, a “firearm” as the term is used in the
Revised Penal Code, which “includes rifles, muskets, carbines,
shotguns, revolvers, pistols, and all other deadly weapons from which a
bullet, ball, shot, shell, or other missile may be discharged by means
of gunpowder or other explosive” (Section 817). A “paltik” discharges
bullets by means of gunpowder.

To be guilty of the crime of
illegal possession of firearms, one does not have to be in actual
physical possession of a firearm. The law does not punish physical
possession alone but possession in general, which includes not only
actual physical possession but also constructive possession, or the
subjection of the thing to the owner’s control (People vs.
Villanueva, 43 O.G. 1271). Since the information charged both appellees
with having conspired and helped each other in possessing the firearm,
both could have been convicted of that crime, even if only one was in
actual physical possession of the firearm.

The decisive issue
hexe is whether the case against the accused was dismissed or otherwise
terminated with their express consent.

The record does not
reveal that appellees expressly agreed to the dismissal of the
information as ordered by the trial Judge or that they performed any
act which could be considered as express consent within the meaning of
the rule. While they did file a motion asking that the case be quashed
or that a reinvestigation thereof be ordered, the court granted neither
alternative. What it did was to order the prosecution to amend the
complaint. This order was in effect a denial of the motion to quash;
and it was only after the prosecution failed to amend that the court
dismissed the case on that ground. Consequently, even under the theory
enunciated in some decisions of this Court,^[1]
that if a valid and sufficient information is erroneously dismissed
upon motion of the defendant he is deemed to have waived the plea of
double jeopardy in connection with an appeal from the order of
dismissal, appellees here are not precluded from making such plea.

WHEREFORE, the appeal Is dismissed, with costs de oficio.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Bengzon, J.P., Zaldivar, and Sanchez, JJ., concur.

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^[1] People vs. Salico, 84 Phil. 722; People vs. Acierto, 92 Phil. 534; People vs. Reyes, 98 Phil. 646; People vs. Casiano, L-15309, February 16, 1961; and People vs. Archilla, L-15632, February 28, 1961.