G.R. No. L-2760. February 11, 1950
SIMPLICIO DURNA ET AL., PETITIONERS, VS. BIENVENIDO A. TAN, JUDGE OF THE COURT OF THE FIRST INSTANCE OF RIZAL, RIZAL CITY BRANCH, RESPONDENT.
MORAN, C.J.:
of First Instance of Rizal City charging the herein petitioners with having
stolen an automobile belonging to Ned C. Cook which was parked in Port Area,
City of Manila, on August 25, 1948, and which was later found in San Juan
street, Rizal City. During the trial, after the prosecution had presented its
evidence, the defense moved for the dismissal of the information on the ground
that the trial court lacked jurisdiction to try the case. This motion and a
subsequent motion for reconsideration were denied, and the defense was ordered
to present its case. After presenting its evidence, the defense again moved for
dismissal on the same ground and the lower court again denied the motion. Hence,
this petition on the ground that the offense charged having been allegedly
committed in Manila, the court of Rizal City has no jurisdiction to try the
case.
Rule 106 of the Rules of Court provides in its Sections 5, 9 and 14
(a):
“Sec. 5. Sufficiency of complaint or information.—A complaint or
information is sufficient if it states the name of the defendant; the
designation of the offense by the statute; the acts or omissions complained of
as constituting the offense; the name of the offended party; the approximate
time of the commission of the offense, and the place wherein the offense was
committed.“When an offense is committed by more than one person, all of
them shall be included in the complaint or information.”“Sec. 9.
Place of the commission of the offense.—The complaint or information is
sufficient if it can be understood therefrom that the offense, was committed or
some of the essential ingredients thereof occurred at some place within the
jurisdiction of the court, unless the particular place wherein It was committed
constitutes an essential element of the offense or is necessary for identifying
the offense charged.”Sec. 14. Place where action is to be
Instituted.—(a) In all criminal prosecutions the action shall be
instituted and tried in the court of the municipality or province wherein the
offense was committed or any one of the essential ingredients thereof took
place.”
From the foregoing provisions and in accordance with settled jurisprudence,
the commission of an offense is triable only in the courts of the place where
the offense was allegedly committed.
In the instant case, the offense
charged was fully committed in the City of Manila where the automobile was
allegedly stolen from its parking place in Port Area. The fact that said
automobile was later found in Rizal City is not an essential ingredient of the
crime but a mere circumstance which could add nothing to the nature of the
offense or to its consummation. Hence, this circumstance cannot be made
determinative of the jurisdiction of the trial court over the criminal action.
In the case of People vs. Mercado (65 Phil., 665, 666) the defendant
had stolen an animal in Gapan, Nueva Ecija, and had later taken it to Candaba,
Pampanga, where it was found, and this Court held that the fact that the animal
was taken to Pampanga did not give the court of that province concurrent
jurisdiction to try the case because the consummation of the theft was completed
when the animal was taken from the owner in Nueva Ecija, and its taking to
Pampanga added nothing to the nature or consummation of the offense.
The
American rule that larceny is a continuing offense does not apply to theft
because “carrying away” which is one of the characteristics of larceny is not an
essential ingredient of theft, as stated by this Court in the Mercado case. If,
as maintained by some members of the court, every moment’s continuance of the
thief’s possession is a new taking and asportation, then criminal action would
never prescribe against a thief in possession of the stolen thing.
For
all the foregoing, the Petition is hereby granted and respondent Judge is hereby
ordered to dismiss the case for lack of jurisdiction. No costs.
Ozaeta, Paras, Pablo, and Torres, JJ., concur.
Bengzon, J., see dissenting opinion.
Padilla, Tuason, Montemayor, and Reyes, JJ.,
joins Justice Bengzon dissent.
CONCURRING SEPARATE OPINION
FERIA, J.:
I concur in the decision of the
majority.
It is a well settled principle of Criminal Jurisprudence that
every offender against the law must be prosecuted for his crime in the
jurisdiction wherein it was committed and section 14, Rule 106, of the Rules of
Court, is declaratory of that principle. It prescribes that “all criminal
prosecution shall be instituted and tried in the court of the municipality or
province where the offense was committed or any one of the essential ingredients
thereof took place.”
The common law and statutory provision in most
States which provides, according to 22 C. J. S. pp. 291, 292, and 32 Am.
Jur. Larceny, Sec. 97, that “one who steals property in one county and brings it
into another may be indicted and tried for simple larceny either in the county
where the theft was committed or in any county into or through which the stolen
property was brought” can not be applied in this Jurisdiction, because said
common law and statutory provision are not in force here in the Philippines.
Just because the interests of justice may be best served by applying said common
law and statutory provision would not justify its application as part of our law
to the present case. If it is better than the provision of said Sec. 14 of Rule
106 we should recommend its formal adoption by the proper authorities; but until
that is done we can not apply it as part of our law to the present case,
specially in view of our ruling in the case of People vs. Mercado, (65
Phil., 665, 666) cited in the decision of the majority, which conforms to the
statutory provision of Sec. 14, Rule 106, of the Rules of Court.
The
principle upon which the common law of England applied in the United States and
the statutory provision in most of the States declaratory thereof is predicated
is that in larceny because the “legal possession still remaining in the true
owner, every moment’s continuance of the trespass and felony and every
subsequent act of removal or asportation amount, in legal consideration, to a
new caption and asportation.” This principle can not be invoked in this
jurisdiction, for theft as defined in our Revised Penal Code can not be
considered as a continuing and transitory offense, inasmuch as asportation or
carrying away of the stolen goods is not an essential element thereof. In Texas,
however, though asportation is not also an essential ingredient of larceny and,
therefore, this offense is not a continuing or transitory one, the thief may be
prosecuted “either in the county where he took the property or in any other
county through or into which he may have carried the same” (Sec. 235, Texas Code
of Criminal Procedure), because there is there an express statutory provision to
that effect.
“To constitute larceny the first essential is that the thing
which is the subject of the crime should be taken from the possession of the
owner into the possession of the thief, and be carried away by Mm, for until
this is done there is no larceny, however definite may be the intent of the
prospective thief to commit the theft, and however elaborate his preparations
for doing so. This was the rule at collision law and seems to be the rule under
all the statutes except in Texas inhere the statute omits the words ‘carrying
away;’ for which reason asportation is held not to be an element of larceny in
that state, even in the case of larceny from the person.” (36 Corpus Juris, pp.
747, 748.)
“In the case of Hartman vs. State, (8 Tex. Cr. 582,;
213 S. W. 936), it was held that “Under the statute any taking of property
without the owners consent and with the present intent to deprive the owner of
its value and to appropriate the same by the taker is theft, and asportation is
not necessary to make out the offense.”
Besides, it is not true that the
interests of justice would be served by following and applying the above quoted
common law and statutory provision in most of the States. The reason given by
the dissenters to the effect that “if a car stolen in Manila and driven by the
thief to Appari, Cagayan, it would be very inconvenient to bring here the
witness in Appari who actually saw the accused in possession of the automobile,
(possession is partial proof that accused stole it)” is predicated upon the
erroneous assumption that ordinarily it is necessary to prove the possession of
the thing, stolen by the accused after the offense was consummated in order to
obtain the latter’s conviction. Generally the offense of theft is committed by
taking, without violence or intimidation against persons or force upon things, a
personal property belonging to another without the latter’s consent and with
intent of gain. It is immaterial that the thief should, after committing the
offense, keep the property in his possession, consumes it if it is perishable or
give it to another person, and therefore the witness or witnesses who may
testify to the stealing by the accused must necessarily be those who reside or
were found at the place from where the property was taken.
The only cases
in which it is necessary to prove the actual possession of a stolen good by the
accused after the theft was consummated or completed is, when a personal
property was stolen or disappeared from the possession of the owner, no person
saw the act of stealing it, and the property lost or stolen is found a short
time afterwards in the possession of a person who can not satisfactorily explain
how he came into the possession thereof, because in such case it maybe presumed
that the person having in his possession a property recently stolen is the one
who has committed the theft; but it is also necessary to prove, besides the
possession, that the property belongs to another and was stolen or has recently
disappeared from the latter’s possession by the testimony of the owner. But”even
in such exceptional cases it would be more convenient to prosecute the offense
in the municipality or province where the property was taken or stolen than in
the jurisdiction into which the property was taken and compel the owner to go
to the place into which the stolen property was brought and testify as the
principal witness, because the fact that it was found in possession of the
defendant after the commission of the offense may be established by the
testimony of any person who might have seen the accused in possession thereof at
any place, or by the agents of authority arresting the defendant with the stolen
property in his possession.
DISSENTING OPINION
BENGZON, J.:
The court of first instance of Rizal had jurisdiction to try
the case. The information alleged, that the accused had stolen the car from the
Manila Port Area and had trot it to Rizal City, Rizal province.
I have no quarrel with the general rule that an offense is triable in the
courts of the place where it was committed. But I submit that this particular
theft was also deemed to have been committed in Rizal City, to which the stolen
car was taken by the accused. Our crime of theft is of the same nature as
larceny in the United States, where it is held that:
“Both at common law and under statutory provisions in most states one who
steals property in one county and brings it into another may be indicted and
tried for simple larceny either in the county where the theft was committed, or
in any county into or through which the stolen property was brought; the theory
being that the possession of the stolen goods by the thief is a larceny in every
county through or into which he carries them, because, as the legal possession
still remains in the owner, every moment’s continuance of the trespass and
felony amounts to a new taking and asportation.” (22 C. J. S., Criminal Law, pp.
291, 292).“Notwithstanding the general rule that crimes are to be
prosecuted in the county in which committed, in the law of larceny it is settled
that a person committing a simple larceny may be prosecuted not only in the
county in which he originally steals the property, but in any county into which
he subsequently carries it with, a continuing felonious intent to make it the
subject of larceny. A similar rule has been applied in the Federal courts, in
cases where property stolen in one Federal district is brought into another by
the offender and the question has arisen as to which district is proper for
institution of prosecution under a Federal statute. In such, cases a larceny is,
in contemplation of law, committed in the county or district into which the
property is brought, on the principle that since legal possession of the
property remains in the true owner, the law will regard each moment’s
continuance of the trespass and felony, and every subsequent act of removal by
the thief as a new caption and asportation.” (32 Am. Jur., Larceny, sec.
97).
In the interests of justice the above rule—on the so-called continuing or
transitory offenses—should be followed in this country, because if a car is
stolen in Manila and driven by the thief to Aparri, Cagayan, it would be very
inconvenient to bring here the witnesses in Aparri, who actually saw the accused
in possession of the automobile (possession is partial proof that accused stole
it). Such rule is not unknown, in our jurisprudence. It was explained
(apparently with approval) in U. S. vs. Cunanan, 26 Phil., 376; and U.S. vs. Bernabe, 23 Phil., 154 is obviously—although not expressly—an
application thereof.
I know that in People vs. Mercado, (65
Phil., 665, 666) the above theory of American jurisprudence was examined and
expressly rejected. But it seems clear that the rejection was based on two
propositions, which upon careful examination do not sustain such
rejection.
The first proposition is: There is a difference between the
crime of larceny in the United States and the crime of theft in the Philippines,
because whereas larceny requires not only the “taking” of property but also the
“carrying away”, it is enough in the Philippines that the property be “taken”
for the consummation of theft. On this proposition, I would say that the
difference, even if admitted, has no substantial effect upon the adjective
principle that where the theft is consummated in one province it may be
prosecuted in any other province into which the thief should subsequently bring
the stolen merchandise, because in the eyes of the law every moment’s
continuance of the dispossession of the owner amounts to a new taking and
asportation. (See C. J. S. and Am. Jur., supra.). In the
Mercado case, supra, there was no doubt that theft of cattle was
consummated in Nueva Ecija. The prosecution there contended—and I think
rightly—that even if consummated in Nueva Ecija the offenders could be
prosecuted in Pampanga where the rustled animals were subsequently conveyed. In
the precedents cited by the prosecution (in the Mercado case) the larceny was
consummated also in one county, but the thieves were allowed to be prosecuted in
another county to which they had removed the stolen things. Therefore, the
difference between the essential elements of the crime did not justify a
different procedural doctrine.
The second proposition which induced the
court to reject the transitory-offense theory is this:
“Practical reasons and considerations, however, require that no pass be
opened to the thief through which he may easily frustrate the right of the owner
of a stolen thing to recover it from him or to go after it, or which may make it
difficult, if not impossible, for him to secure the punishment of the offender.
By allowing the owner of the stolen thing to follow the thief no matter how far
from the scene of the crime the latter may have brought it, in order to have him
prosecuted which, surely, will be the effect of sustaining a contrary opinion,
is to put obstacles in his way precisely because this will result in expenses
and delay. If this were done, the thief would contrive in all cases to carry as
far as possible what he may have stolen so that lie would have greater chances
of getting unpunished.” {65 Phil., 674}
It is difficult to perceive how the theory we advocate could favor the
culprit and frustrate prosecution. On the contrary, if the thief may be booked
in any place to which he carries his plunder, his main accomplice – flight –
becomes valueless. It may even become an additional hazard, if and when the
forces of law and order are given the privilege to prosecute him in any of the
provinces through which he has travelled with his booty – wherever the
prosecution may have found convenient evidence against him.
Moreover, the
above paragraph of the Mercado decision is premised on the assumption that the
transitory-offense idea requires the owner to follow the thief
and prosecute him in the province where such thief may have chosen to carry the
loot. That assumption is a fundamental mistake. The theory permits
(does not require) the owner to prosecute in any province to which the culprit
may have brought the stolen articles. The owner may choose to prosecute him in
the province where the goods had originally been feloniously seized.
An
example: A car is stolen in Manila and later carried by the thief into Davao. No
witness in Manila saw him in the act of grabbing or driving the vehicle. But in
Davao there are persons who saw him in possession. Under the transitory-offense
theory, the owner may either prosecute him in Manila and spend for
transportation of the Davao witnesses to Manila, or else prosecute him in Davao,
and pay for his own transportation from Manila to Davao. Such owner may choose
according to his convenience; of course, with advice of the prosecuting officers
under whose direction the case for the People is always handled.
It being
clear, in my opinion, that the rejection of the transitory-offense theory, is
unfair to the victim and is contrary to the intention of the justices who
concurred in the Mercado ruling, I have no hesitation to vote for departure from
it.