PUA YI KUN, PETITIONER, VS. THE PEOPLE OF THE PHILIPPINES, HON. PLACIDO C. RAMOS, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, RESPONDENTS.

Raised as the only issue in this original petition for certiorari
and prohibition^[1]
is the materiality, in an information for Theft, of
the identity of the owner of the stolen property; in other words, whether or
not an accurate identification of the owner of the stolen property is essential
to the validity of an information for theft.

The facts of this case
are not in dispute:

On February
13, 1964, Pua Yi Kun was charged with the crime of theft before the
City Court of Manila (Crim. Case No. E-18590; I.S. 64-5062),
in an information reading as follows:

“The undersigned (Assistant Fiscal) accuses Pua Yi Kun of the crime of theft, committed as follows:

“That on or about the period from January 10, 1964 to January
13, 1964, in the City of Manila, Philippines, the said accused, conspiring and
confederating to­gether with one whose true name and identity are still unknown
and helping each other, did then and there wilfully,
unlawfully and feloniously, with intent of gain and without the knowledge and
consent of the owner thereof, take, steal and carry away the following:

“Nine (9) stock certificates of the Lepanto
Consolidated Mining Co. and the Consolidated Mining, Inc., to wit:

Lepanto
Shares:  Certificate Nos. 44431 – 30,000
shares; 50372 – 19,000 shares; 48758 -1,351 shares; Consolidated Shares:  45453-B – 90,000 shares; 44728-B – 100,000
shares; 44562-B – 100,000 shares; 43691-B – 100,000 shares; 43688-B – 50,000
shares; 43529-B – 90,000 shares,

all valued at
P10,335.00, belonging to the aforesaid mining companies to the damage and
prejudice of said owners in the aforesaid sum of P10,335.00, Phil­ippine
currency.

“Contrary to law.”

Arraigned
on July 15, 1964,
the accused entered a plea of not guilty.

On January
26, 1965, Assistant
Fiscal Agapito C. Magpantay
moved for the dismissal of the case against the accused Pua
Yi Kun, on the ground that reinvestigation and re-examination of the evidence
on hand disclosed that the same would be insufficient to establish the guilt of
the accused beyond reasonable doubt.  In view
of this motion, the City Judge on January 29, 1965, ordered the dismissal of the case with
costs de officio.

On April 20, 1966,
another information for theft of the same stock certificates was filed in the Court of First Instance of Manila (Crim. Case No.
82120; I.S. 64-5062 &
64-5063), this time charging Pua Yi Kun and Frank
Chou, thus:

“That on or about the
10th day of January, 1964, in the City of Manila, Philippines, the said
accused, conspiring and confederating together and mutually helping each other,
did then and there wilfully, unlawfully and
feloniously, with intent of gain and without the knowledge and consent of the
owner thereof, take, steal and carry away three (3) stock certificates of the Lepanto Consolidated Mining Co., consisting of 50,351
shares, valued at P0.72 a share, or a total value of P36,252.72, and six (6)
stock certificates of the Consolidated Mines, Inc., consisting of 530,000
shares valued at P0.085 a share or a total value of P45,050.00, belonging to
the Chiong & Co., Inc., to the damage and prejudice of said owner in
the aforesaid sum of P81,302.72 , Philippine currency.

“Contrary to law.”

Thereupon, the accused Pua Yi Kun moved
to quash the in­formation on the ground of double jeopardy, pointing to the
previous dismissal of the theft-case against him in the City Court of
Manila.  The court below, however, taking
into account the fact that the information filed in the City Court named the Lepanto Consolidated Mining Company and the Consolidated
Mines, Inc. as the owners of the stolen certificates of stock, when it appeared
that the said property actually belonged to Chiong
& Co., ruled that such erroneous allegation of ownership of the property
affected the valid­ity of the information. 
Consequently, according to the lower court, since the accused Pua Yi Kun could not have been validly convicted under the
aforementioned first information (in the City Court), the filing of the second case in the Court of
First Instance did not expose him to the danger of a second conviction for the
same offense.  The motion to quash the
information in Criminal Case No. 82120 was, therefore, denied.  The accused filed the present petition.

It cannot be denied that
the theft-charge against herein petitioner, now pending in the Court of First
Instance of Manila, is practically the same as that filed against him in the
City Court of Manila;^[2] that said case was dismissed upon motion of
the prosecuting fiscal himself, after the accused had been duly arraigned and
had entered his plea to the charge.  The
court below, never­theless, rejected petitioner’s claim of being placed in
second jeopardy reasoning that, as it is necessary to aver in an information for theft that the owner of the stolen
property did not give his consent to its taking by the accused, then the
correct identity of that owner is essential to the validity of the
information.  And, since admitted­ly,
there was an erroneous naming of the supposed offended party in the first
information, that information was defective and the case did not constitute a
first jeopardy to the accused.

We see no grave abuse of discretion in the appealed denial of the
motion to quash the second information.

It is not contested that
one of the requisites for a success­ful plea of former jeopardy is the
existence of a valid complaint or
information, sufficient in form and substance to support a conviction, in the
first prosecution to which the accused has been subjected (Sec. 9, Revised Rule
117).  This means that the complaint or
information must aver all the elements of the offense charged, because if it is
radically defective, “as when it does not recite the essential requisites
of the offense, so that unless cured by the evidence at the trial, it cannot
support a judgment of convic­tion” (IV Moran, Rules of Court, 1963 Ed.,
208; U.S. vs.
Extrana, 16 Phil. 520; Serra
vs. Mortiga, 11 Phil. 762, 204 U.S. 470).  As ruled in People vs. McNealy,
17 Calif. 332, 335, “[I]t would he a contradiction in terms to say that a
person was put in jeopardy by an indictment under which he could not be
convicted, and it is obviously immaterial whether the inability to convict arose
from the variance between the proof and the indictment, or from some defect in
the indictment itself.”

Because in the case at
bar the offense charge is theft, it became essential that the previous
indictment that was dismissed without the consent of the accused, should have
expressed all the requisites of that particular offense.  As theft is defined in paragraph 1 of Article
308 of the Revised Penal Code to be a felony committed –

“by any
person who, without intent to gain, but with­out violence against or
intimidation of persons, nor force upon things, shall take personal property of
another without the latter’s consent.”

the decisions of this Court have ruled
that five elements are essen­tial to constitute the crime:  (1) the taking of personal property; (2) that
the property belongs to another; (3) that the taking was done with intent of
gain; (4) that it was done without the consent of the owner, and (5) that it
was accomplished without violence or intimidation of persons nor force upon
things (U.S. vs. De Vera, 43 Phil. 1000; People vs. Mercado, 65 Phil. 665;
People vs. Yusay, 50 Phil. 598; People vs. Rodrigo,
L-18507, March 31, 1966, 16 S.C. Rep. Anno. 475).

Now,
with particular regard to the
taking without the consent of the owner, it is conceded that the first
information (City Court Case No. E-18590 of Manila)
averred that the stolen certificates belonged to the mining companies (Lepanto Consolidated Mining Co. and the Consolidated Mines, Inc.). 
The allegation that the accused took, stole and
carried away certificates of stock without the consent of their owner could
only mean that it was done without the
consent of the two companies aforementioned. 
But as the motion to quash the second charge necessarily assumes the
truth of the averment therein that the true owner was Chiong
& Co., then we must conclude that the first information in the City Court
was insufficient to support a conviction, because the same did not allege that
the taking of the certificates was done without the consent of the true owner
or possessor (Chiong & Co.).  True, that the first charge did state that
the taking was done without the consent of the mining companies Lepanto and Consolidated; but as they were not the owners,
the allegation was not only irrelevant, but it did not import that the act was
also done against or without the consent of the real owner.  Such deficiency is fatal to the suf­ficiency
of the first charge, because non-consent of the owner to the taking is
essential to the existence of the crime of theft under the first paragraph of
Article 308 of the Revised Penal Code.

We are aware that
some decisions state that the crime of theft does not require that the culprit
should know the owner of the thing stolen. 
Other authorities declare that it is not necessary for the existence of
the crime of theft that it should appear in a specific manner who is the owner
of the thing stolen, and the crime is consummated provided the thing belongs to
another and the same is taken with intent of gain (Decision, Supreme Court of
Spain, Nov. 22, 1898 and October 4, 1905).

By and large, these pronouncements are merely generaliza­tions
designed to cover all varieties of theft, from the one where the thing stolen
is taken directly from the owner’s control to that committed by “any
person who having found lost property, shall fail to deliver the same to
the local authorities or to its owner” which is also theft under Article
308, paragraph 2(1), Revised Penal Code. 
The rulings, therefore, are not fully applicable to the present case,
which does not involve property lost (extraviada) nor do they warrant the inference that the non-consent of the
owner or possessor can be excused.

In the ordinary course of events, the owner of the thing (whoever
he should be) would not consent to the taking of his property without any
consideration or quid pro quo therefor;
never­theless, the possibility of such consent remains and the law de­mands
that it be negated in the information. 
That the owner’s lack of consent cannot be dispensed with in charging
an ordinary theft under the first paragraph of Article 308 of the Penal Code,
is shown by the express requirement there in that the taking should be without
the consent of the owner.^[3] In view of the clear text of the
law, an information or charge that does not aver this lack of consent is
manifestly bad and insufficient, and may be quashed for failure to allege an
essential element of the delict.

Since the first charge against petitioner in the City Court was
thus deficient in not alleging each and every element of the offense, and as no
evidence was produced to cure the defect, the Court of First Instance did not
gravely abuse its discretion in hold­ing that there under jeopardy did not
attach.

WHEREFORE, the petition for certiorari is dismissed, and
the writ applied for is denied, with costs against petitioner Pua Yi Kun.

Concepcion, C.J., Dizon,
Zaldivar, Sanchez, and
Angeles, JJ., concur.

Makalintal and Fernando, JJ., took no part.

Castro, J., reserves his vote.

^[1]
This petition was filed to determine the correctness of the denial by the Court
of First Instance of Manila of the accused’s motion
to quash the information in Criminal Case No. 82120 of said court, insofar as
herein petitioner is concerned.

^[2]
Except for the names of the supposed offended party and the value of the stolen
articles.

^[3]
“Ha de ejecutarse el hecho
sin la voluntad del
dueño de la cosa mueble.  Aun en el caso del
consentimiento del
dueño prestado con engaño, desaparece el hurto para dar
paso a otro
delito.” (Sanchez Tejerina, Derecho Penal, Vol. 2,
p. 401).