THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT, VS. AMANDO AUSTRIA, DEFENDANT AND APPELLEE.

Amando Austria was accused before the Court of First Instance of
Ilocos Norte in two separate information, one of murder and the other
of illegal possession of firearm. Because the weapon used by the
accused in killing: the deceased in the crime of murder is the same
unlicensed firearm for which he was charged in the case for illegal
possession of firearm, the two cases were tried jointly by agreement of
the parties and with the approval of the court.

After the prosecution had presented its evidence, counsel for the
defense filed an oral motion to dismiss the case for illegal possession
of firearm on the ground that the facts alleged in the information do
not constitute an offense, invoking in support thereof Republic Act No.
482 which exempts from criminal liability persons found in possession
of unlicensed firearms unless they are used or carried in the person of
the possessor. The court denied the motion. With this denial, trial was
resumed with the defense presenting its evidence in both cases. And
when the case were submitted for decision, the court convicted the
accused in the case of homicide but dismissed that for illegal
possession of firearm on the ground that the information does not
charge an offense under Republic Act No. 482.

Later, another information was filed against the accused also for
illegal possession of firearm where in it was alleged for the first
time that the accused carried the firearm in his person and used it in
killing one Alejo Austria. Counsel for the accused filed a written
motion to quash this information pleading double jeopardy in his
behalf. This motion was denied by Judge Jose P. Flores, then presiding
the court but, on motion for reconsideration, Judge Antonio Belmonte,
who took over the court, sustained the motion to quash and dismissed.
the case on the ground that if it be continued it would place the
accused in double jeopardy. Not satisfied with this order, the fiscal
took the present appeal.

The issue posed in this appeal is: Is the dismissal of the
information filed in the first case for illegal possession of firearm
against the accused a bar to a subsequent prosecution for the same
offense?

It should be noted that the court dismissed the first case for
illegal possession of firearm upon the sole ground that the information
did not contain facts sufficient to constitute an offense. Bear in mind
that information was filed in connection with Republic Act No. 482
which exempts from criminal liability persons found in possession of
unlicensed firearms unless the firearm is used or carried in his person
by the possessor. And we already held in a recent case that in order
that an information under that Act may be deemed sufficient it must
allege that the accused was using the unlicensed firearm or carrying it
in his person at the time he was caught by the authorities with the
unlicensed weapon (People vs. Santos Lopez y Jacinto,^[*] G. R. No. L-1603, November 29, 1947). And these essential allegations
not having been averred in the information, the court rightly dismissed
the case on the ground that the information did not allege facts
sufficient to constitute an offense.

With this background, it is evident that the plea of double jeopardy
cannot be entertained either .under our rules or under our
jurisprudence. Thus, section 9, Rule 113, expressly provides that the
dismissal of a case against the defendant can only be considered as a
bar to another prosecution for the same offense when the case against
him is dismissed “upon a valid complaint or information or other formal
charge sufficient in form and substance to sustain a conviction.” And
elaborating on the scope of this provision, we find the following
rulings: As a general rule, one is not put in jeopardy if the
information under which he is tried is entirely void because it charges
no offense at all known to law. (16 C. J. sec. 379, p. 243; U. S. vs.
Balmori, 1 Phil., 660.) Accordingly, if an information is dismissed and
the accused discharged on a demurrer, or on petition of the fiscal or
the accused, or on the court’s own motion because the information or
complaint is either void or fatally defective, or what amounts to the
same thing, when it does not charge the proper offense, such dismissal
and the consequent discharge of the accused is not a bar to his
prosecution for the same offense. (U. S. vs. Montiel, 7 Phil., 272;
People vs. Nargatan, 48 Phil., 470; People vs. Mirasol, 43 Phil., 860;
16 C. J., pp. 241-6; Hopt. vs. Utah, 104 U. S., 631; Murphy vs.
Massachusetts, 177 U. S., 155; U. S. vs. Openheimer, 24 U. S., 85, 61
Law Ed. 161.)

It is true that the motion to quash was interposed by counsel for
the accused after the prosecution had presented its evidence and that a
portion of that evidence tended to prove that the weapon for which the
accused was prosecuted for illegal possession of firearm had been used
in killing his victim in the homicide case, to which evidence, as the
record shows, the accused, or his counsel, did not interpose any
objection. This fact, however, cannot have the effect of validating a
void information, or of proving an offense which does not legally
exist. Such is the situation that obtains in the present case. The
information was not merely defective but it does not charge any offense
at al., Technically speaking, that information does not exist in
contemplation of law.

We are not unmindful of the doctrine laid down in the cases of Serra
vs. Mortiga, 11 Phil., 762, U. S. vs. Estrana, 16 Phil., 520, and
United States vs. Destrito and De Ocampo, 23 Phil., 28, cited with
approval in the case of People vs. Abad Santos, 76 Phil., 744, wherein
this court held that “Any defect in the accusation other than that of
lack of jurisdiction over the subject matter may be cured by good and
sufficient evidence introduced by the prosecution, and admitted by the
trial court, without any objection on the part of the defense, and the
accused may be legally convicted of the crime or offense intended to be
charged and so established by the evidence.” But this doctrine does not
apply to our case because we are concerned here with an information
which charges no offense at all, and not with one which is merely
defective.

The present case should be likened to one where, “When the offense proved is
more serious than, and includes the offense charged, as when the
offense charged is less serious physical injuries and the offense
proved is serious physical injuries the accused may be convicted of the
former but not of the latter offense of which he has not been
informed.” (U. S. vs. De Guzman, 8 Phil., 21), or to the rule which
requires that “a qualifying circumstance which constitutes one of the
essential elements of the offense like alevosia in murder should be
pleaded, otherwise it should be considered merely as an aggravating
circumstance if proved (U. S. vs. Campo, 23 Phil., 368). The philosophy
behind this ruling is that an accused cannot be convicted of a charge
of which he has not been informed.

Wherefore, the order appealed from is set aside, and the case is
remanded to the lower court for further proceedings, without costs.

Pablo, Bengzon, Jugo, and Conception, JJ., concur. Reyes, J., concurs in the result.

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^[*] 79 Phil., 658.

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DISSENTING

PARAS, C. J.,:

The defendant-appellee was charged in the Court of First Instance of
Ilocos Norte with the crime of illegal possession of firearm under
Republic Act No. 482, in an information which failed to allege that the
firearm was used by or carried in the person of the appellee. After the
prosecution had presented its evidence tending to show that the firearm
had been used by the appellee in killing one Alejo Austria, to which
evidence the appellee or his counsel did not interpose any objection, a
motion to quash was filed on the ground that the information did not
contain facts sufficient to constitute an offense, in that it failed to
allege that the firearm was used or carried by the appellee. This
motion was denied and the defense accordingly presented its evidence.
The court thereafter rendered a decision dismissing the information for
the reason that it did not charge an offense under Republic Act No. 482.

Subsequently another information was filed against the appellee for
the same illegal possession of firearm, it being now alleged that he
carried said firearm in his person and used it in killing Alejo
Austria. Counsel for the appellee filed a written motion to quash,
based on double jeopardy. This was denied by the then presiding Judge
Jose P. Flores but, on motion for reconsideration, the next presiding
Judge, Antonio Belmonte, sustained the motion and dismissed the case on
the ground invoked by the appellee. The fiscal has appealed.

I am of the considered opinion that the appealed order is correct.
The information in the first case was valid, although fatally defective
for failing to allege an essential element of the crime of illegal
possession of firearm; but as said fatal defect was supplied by
necessary evidence during the trial; without objection on the part of
the defense, the court below could have rendered a judgment of
conviction against the appellee. As already held in People vs. Abad
Santos, 76 Phil., 744, “any defect in the accusation other than that of
lack of jurisdiction over the subject matter may be cured by good and
sufficient evidence introduced by the prosecution, and admitted by the
trial court, without any objection on the part of the defense, and the
accused may be legally convicted of the crime or offense intended to be
charged and so established by the evidence.” This Court cited with
approval the decision in U. S. vs. Estrana, 16 Phil., 520, in which the
accused was prosecuted for the crime of perjury in an information which
failed to allege that the false testimony involved was material, this
allegation being an essential element of the crime of perjury under
section 3 of Act No. 1687; but as no objection to the sufficiency of
the complaint was raised during the trial, this Court held that the
fatal defect could have been supplied by competent testimony. To quote:

‘The complaint in the case at bar is fatally
defective for the want of an allegation that the testimony, alleged to
be false, was material to the issues involved in the murder case. Our
.statute (section 3 of Act No. 1687, supra) specifically
makes materiality an essential element of the crime of perjury and
without this the crime can not legally exist. As no objection to the
sufficiency of the complaint was raised this fatal defect could have
been supplied by competent testimony on the trial. (United States vs.
Estrana, 16 Phil., 520, 529.)

The case at bar is on all fours with the case of U. S. vs. Estrana,
in that in both cases the information failed to allege an essential
element of the offenses respectively charged therein: in the first,
that the appellee carried or used the firearm; and in the second, that
the alleged false testimony was material.

I vote, therefore, for the dismissal of the appeal.

Montemayor, J., concurs.

LABRADOR, J.:

I concur in the dissent of Chief Justice Paras. The grounds upon
which the majority decision are based are too technical to subserve the
ends of justice.