THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT VS. JOSEPH ELKANISH, DEFENDANT AND APPELLEE.

The defendant was a member of the crew of the S. S. “Washington
Mail,” of American registry, on which 65 large boxes of blasting caps
were found and seized by the authorities while it was anchored inside
the breakwater off Manila. The ownership of the explosives being
imputed to the accused, two separate informations were filed against
him on the same date, one charging illegal importation of the articles
under section 2702 of the Revised Administrative Code, and the other,
illegal possession of the same articles under Section 1 of Act No. 3023.

Having been arraigned and entered the plea of not guilty on the
information for illegal possession, the accused afterward moved to
quash the information for illegal importation, on the grounds (1) that
blasting caps are not lawful objects of commerce and hence not embraced
by section 2702 of the Revised Administrative Code, and (2) that, in
any event, prosecution for importation is barred by the prosecution for
illegal possession. Without touching the first ground, His Honor, Judge
Potenciano Pecson of the Court of First Instance of Manila, dismissed
the information on the second.

This appeal, by the City Fiscal, is from that order.
Parenthetically, it should be stated that since the appeal was taken,
the other case has been tried and the defendant acquitted.

We will follow Judge Pecson’s example and confine this decision to
a discussion of the question on which the information was dismissed.

There are “hopeless conflicts” in the judicial decisions on the
question of former jeopardy; apparent disharmony exists even in
decisions of the same court and, it would seem on the surface, in the
decisions of this Court. The diversity arose in large measure from the
differences1 in the transactions involved and in the provisions of the
statutes, from the application of the general principles on the facts,
and from the circumstance that “the tests commonly adopted are by no
means infallible.” (22 C. J. S278) The nature then of the deed or deeds
alleged in the two indictments and their relations to each other and to
the statute concerned, must constantly be held in view if one is not to
be misled by the adjudicated cases.

Section 9 of Rule 113 of the Rules of Coijrt reads:

“When a defendant shall have been convicted or
acquitted, or the case against liim 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.”

With reference to the importation and possession of blasting caps,
it seems plain beyond argument that the latter is inherent in the
former so as to make thorn juridically identical There can hardly be
importation without possession. When one brings something or causes
something to be brought into the country, he necessarily has the
possession of it. The possession ensuing from the importation may not
be actual, but legal or constructive, but whatever its character, the
importer, in our opinion, is a possessor in the juristic sense and he
is liable to criminal prosecution. If lie parts with the ownership or
interest in the article before it reaches Philippine territory, he is
neither an importer nor a possessor within the legal meaning of the
term, and he is not subject to prosecution for either offense under the
Philippine Laws. The owner of the merchandise at the time it enters
Philippine waters is its importer and possessor. He who puts
merchandise on board a vessel and alienates the title thereto while it
is in transit does not incur criminal liability. Possession or
ownership of a prohibited article on a foreignvessel on the high seas
outside the jurisdiction of the Philippines does not constitute a crime
triable by the courts of this country. (U. S. vs. Look Chaw, 18 Phil., 573) Of the reported cases, U. S. vs. Lim Suco, 11 Phil., 484 and U. S. vs. Poh Chi, 20 Phil., 140, bear the closest resemblance to the case at bar.

In U. S. vs. Lim Suco, the defendant had been convicted
for smoking opium in a pipe. He was afterwards prosecuted for having a
pipe in his possession. It was held that “the possession of which he is
charged in the second complaint was the same possession which he
necessarily had in committing the offense specified in the first, and
therefore he could not be again convicted for having the pipe in hisr
possession.” The Court said that “when a person has been tried and
convicted for a crime which has various incidents included in it, he
can not be a second time tried for one of those incidents without being
twice put in jeopardy for the same offense.” (See also the cases cited.)

In U. S. vs. Poh Chi, the Court held that it was not the
intention of the legislature to have separate complaints filed against
a person found in the illegal possession of opium and a pipe for
smoking the same—one for illegal possession of the opium and another
for the possession of the pipe.

When the above cases were decided, the law in force on the subject
was General Orders No. 58, Sections 19-30. If there is any difference
between that law and Section 9 of Rule 113 of the Rules of Court, it is
that the latter is more liberal, whereas by General Orders No. 58 there
was jeopardy when the offense charged in the second information or
indictment is necessarily included in the first complaint or
information, the Rules of Court operates both ways, barring a second
indictment, which charges an offense which “necessarily includes or is
necessarily included in the offense charged in the former complaint or
information.”

Penal statutes, substantive and remedial or procedural, are, by the
consecrated rule, construed strictly, or liberally in favor of accused.
The fact that the protection against being twice put in jeopardy for
the same offense is not only a legislative creation but secured by the
Constitution, impresses with a command such construction as would bring
the statute into harmony with the spirit of the fundamental law. As
this Court, through Mr. Justice Moreland, has said in U. S. vs. Gustilo, 19 Phil., 208.—

“We are confident that that portion of the
Philippine Bill embodying the principle that no person shall be twice
put in jeopardy of punishment of the same offense should, in accordance
with ica letter and spirit, be made to cover as nearly as possible
every result which flows from a single criminal act impelled by a
single criminal intent. The fact should not be lost sight of that it is
the injury to the public which a criminal action seeks to redress, and
by such redress to prevent its repetition, and not the injury to
individuals. In so far as a single criminal act, impelled by a single
criminal intent, in other words, one volition, is divided into separate
crimes and punished accordingly, just so far are the spirit of the
Philippine Bill and the provisions of article 89 of the Penal Code
violated.”

This doctrine was reiterated in U. S. vs. Poh Chi, supra.

In our case, there is no denying that importation and possession
represent only one criminal intent, one volition; the design was to
sell or dispose of the blasting caps for profit, the importation and
possession being no more than means to accomplish that purpose, the
media between the accused and the ultimate objective. Importation and
possession, at least in this particular case, played the same auxiliary
role with reference to the object pursued. That, it should be borne in
mind, does not go exactly for smoking opium and possession of a pipe,
the latter of which was considered merged in smoking in the cases above
cited. For smoking is an end in itself; and while pipe is indispensable
and therefore a means for smoking, possession of pipe may have a
purpose for its owner other than selling it or smoking with it himself.
He can allow others to use it for compensation or keep it as part of an
equipment for running an opium den. In other words, possession of an
opium pipe may envisage broader objectives than possession and
importation of blasting caps.

The appealed order is affirmed without costs.

Bengzon, Padilla, Reyes, and Jugo JJ., concur.

Paras, C. J., concurs in the result.

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I dissent from the decision of the majority.

The ownership of the 65 large boxes of blasting caps found and
seized by the authorities on board the S.S. “Washington Mail”, of
American registry, while it was anchored inside the breakwaters of
Manila, was imputed to the accused who was a member of the crew of said
steamship. The accused was charged in one case with the offense of
illegal possession of the said blasting caps under section 1 of Act No.
3023, ana in the other with illegal importation of the same article
under Section 2702 of the Administrative Code.

The defendant pleaded not guilty on the information for illegal
possession of blasting caps, and filed a motion to quash the
information for illegal importation thereof on the ground (1) that the
facts charged in the information do not constitute an offense, and (2)
“assuming that they constitute the crime charged, it is a second
jeopardy for the same offense” of illegal possession of the same
article charged in the other case pending before the same court. The
Court of First Instance of Manila dismissed the information on the
ground that “it appearing that the accused is charged in Criminal Case
No. 8080 of illegal possession of explosives, arising out of the same
act, * * * the second ground is well taken.” The City Fiscal appealed
from the order dismissing the information.

We are of the opinion and so hold that the lower court erred in
dismissing the information for illegal importation against the
defendant.

Section 2, Rule 113 of the Rules of Court provides as ground for a motion to quash “that the defendant has been previously convicted or in jeopardy of being eonvicted, or acquitted of the
offense charged.” But this is essentially different from the erroneous
legal conclusion that “it is a second’ jeopardy for the same offense”
alleged as1 ground in the motion to quash, for according to the facts
required to be alleged in said motion by section 5 of Rule 113, said
second jeopardy consists in the prosecution of the defendant for the
same offense with which he is being charged in another action still
pending in the court. Different, because in order that a defendant may
successfully allege former jeopardy, it is necessary that he had
previously been (1) convicted or (2) acquitted, or (3) in jeopardy of
being convicted of the offense charged, that is, that the former case
against him for the same offense “has been dismissed or otherwise
terminated without his express consent by a court of competent
jurisdiction, upon a valid complaint or information, and after the
defendant has pleaded to the charge.” (See 2 (8) and section 9, Rule
113, of the Rules of Court.)

Section 9 of Rule 113 of the Rules of Court was taken from the
provisions of General Orders No. 58 on jeopardy, and from the doctrines
laid down in the decisions of this court as well as those of the courts
of last resort in the United States, which did not legislate but only
construed and applied the said principle. There is no substantial
difference between the provisions of General Orders No. 58 on jeopardy
and those of section 9 of Rule 113, in so far as the identity of
offenses charged in the actual and previous prosecution. Section 9 of
Rule 113 can not be more or less liberal, for the defense of jeopardy
is a substantive right, which this Supreme Court cannot change or
modify in the exercise of the power conferred upon it by the Philippine
Constitution to promulgate “rules concerning pleading, practice and
procedure in all courts” which “shall not diminish, increase, or modify
substantial rights.” There is no substantial difference, because,
although accordingto the former there is identity of offenses when the
offense charged in the second complaint or information is necessarily
included in the previous complaint or information, and section 9, Rule
113 of the Rules of Court provides that there is identity when the
offense presently charged necessarily includes the offense charged in
the former complaint or information, the defense of jeopardy is not
enlarged thereby. The said provisions of section 9 of Rule 113 were
adopted only for as1 a better test for determining the identity of
offenses. Because when the offense charged in the second or subsequent
complaint or information necessarily includes the one charged in the
former, the defendant will be in danger of being convicted, not only of
the offense charged, but of the offense necessarily included therein
and charged in the former information.

The pendency of two criminal prosecutions against a person charged
with one and the same offense cannot be considered as the same as, or
equivalent to, the ground that “the defendant has been previously
convicted or in jeopardy of being convicted, or acquitted of the
offense charged,” for the simple reason that he has not yet, at that
stage of the proceeding, been previously convicted or acquitted of the
offense charged, or the case against him dismissed without the express
consent of the defendant in one of the two prosecutions’. In order that
a defendant may invoke former conviction or acquittal or former
jeopardy, it is necessary that he had previously “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 has pleaded to the charge.” Only after one of the
criminal actions or prosecutions has been decided by judgment of
conviction or acquitted, or dismissed or otherwise terminated without
the express consent of the defendant under the terms and condition
above set forth, may the defendant successfully set up former jeopardy
as a ground for dismissal of or defense against the other prosecution
or criminal action.

Besides, according to the decisions of this Court hereinafter
quoted the offense of illegal possession of opium, and of blasting caps
for that matter, is not committed until after the opium has been landed
from a vessel upon the Philippine soil, and then and only then would
the Philippine court have jurisdiction over the offense. Therefore the
pendency of the case for illegal possession did not and could not have
placed the defendant in jeopardy of being convicted of that offense,
because as the blasting caps were seized on board the S. S. “Washington
Mail” while it was anchored inside the breakwaters of Manila, the
information for illegal possession was not and could not be valid and
sufficient, and the Court of First Instance of Manila did not have
jurisdiction over the said offense.

Furthermore and principally, because the illegal importation of
blasting caps in the present ease is obviously an offense different
from illegal possession of the same article, and one of them does not
necessarily include or is not necessarily included in the other, even
assuming for argument’s sake that the blasting caps were landed by the
defendant upon Philippine soil. Because, the illegal importation is
complete or consummated the moment the article imported is brought or
enters the territorial waters of the country, “before entry of the
custom house;” while illegal possession of the same article is not
committed until after it has been landed from the vessel upon the
Philippine soil, according to uniform rulings of this Court in cases of
illegal importation and illegal possession of opium, which are
applicable by analogy to importation and illegal possession of blasting
caps in the present case.

In the case of U. S. vs. Look Chaw, 18 Phil., 573, quoted with approval in U. S. vs. Ah Sing, 36 Phil., 978, 980, and in People vs.
WongCheng, 46 Phil., 729, 732, we held that the mere possession of
opium aboard a foreign vessel in transit or in any other ports is not
considered as a public offense triable by our own courts, but it would
only constitute illegal possession of opium in violation of the Opium
law when it is landed from a vessel upon Philippine soil, thus
committing an open violation of the laws of the land; and only then
would the court of the Philippines established in the said place have
competent jurisdiction over the offense in the absence of an agreement
under an international treaty. In said ease of U. S. vs. Look Chaw this Court held:

“Although the mere possession of an article of
prohibited use in the Philippine Islands, aboard a foreign vessel in
transit, in any local port, does not, as a general rule, constitute a
crime triable by the courts of the Islands, such vessel being1
considered as an extension of its own nationality, the same rule does
not apply when the article, the use of which is prohibited in the
Islands, is landed from the vessel upon Philippine soil; in such a case
an open violation of the laws of the land is committed with respect to
which, as it is a violation of the penal law in force at the place of
the commission of the crime, no court otlier than that established in
the said place has jurisdiction of the offense, in the absence of an
agreement under an international treaty.”

As the blasting caps were found on board the S. S. “Washington
Mail” of American registry in transit and seized by the Philippine
authorities while the steamship was anchored inside the breakwater of
Manila, no offense of illegal possession of said article was committed
in violation of section 1 of Act No. 3028, and besides no court of the
Philippines has jurisdiction to try it.

But the illegal importation of blasting caps was consummated or
completed the moment the S. S. Washington Mail entered the Philippine
waters or the article brought into the jurisdietional waters of the
country with the intent to import it. In the case of United States vs. Chu Loy and Lee Kam, 37 Phil., 510, 512, this Supreme Court held:

“The rule, that the importation of merchandise for
the purpose of the revenue department of the Government as well as for
the other purposes is complete the moment the vessel enters the waters
of the country, is 50 well established that the citation of authorities
io support .it seems almost unnecessary. (U. S. vs., Look Chaw, 18 Phil. Rep., 573; The Mary, 16 Fed. Cases, 932; U. S. vs. Lyraan, 26 Fed. Cases, 1024; Perots vs. U. S., 19 Fed. Cases, 258; U. S. us. Jose, 34 Phil., Eep. 840; U. S. vs. Ah Sing, 36 Phil. Rep., 978.)

“However well that rule may be established hy eminent authorities, it
is necessary limited in its scope of operation by another rule that is
equally well established, and that is that the bringing of merchandise
into the jurisdictional waters of the country must be with the intent to impart it. * * *”

In United States vs. Ah Sing, 36 Phil., 978, 981, we held the following:

“* * * The Federal Courts of the United States have
held that the mere act of going into a port, without breaking bulk, is
prvma facie evidence of importation. (The Mary [U. S.], 16
Fed. Cas., 932, 933.) And again, the importation is not the making
entry of goods at the custom house, but merely the bringing them into
port; and the importation is complete before entry of the Custom House.
(U. S. vs. Lyman [U. S.], 26 Fed. Cas., 1024, 1028; Perots vs.
U. S., 19 Fed. Cas., 25S.) As applied to the Opium Law, was expressly
held that any person unlawfully imports or brings any prohibited
druginto the Philippine Islands, when the prohibited drug is found
under this person’s control on a vessel which has come direct from a
foreign country and is witmn the jurisdietional limits of the
Philippine Islands. In such case, a person is guilty of illegal
importation of the drug unless contrary circumstances exist or the
defense proves otherwise. * * *”

Wherefore we are of the opinion that the order appealed from should
be reversed and the case is remanded to the lower court for further
proceedings.

Pablo, J., concurs.