THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT, VS. VICENTE S. DEL ROSARIO AND NATALIO B. BACALSO, DEFENDANTS AND APPELLEE.

The question for decision is whether a libelous publication
affecting more than one person constitutes one crime or more. This is
an appeal from an order of the Court of First Instance of Cebu
sustaining the first theory and dismissing a complaint for libel on a
motion to quash.

The alleged defamatory writing was printed in one sheet of paper in Visaya, which was translated in the complaint into English as follows:

“MY PLEA TO THE CEBUANOS

“Because Morelos, as head of the PRRA wanted to
sell flour outside of Cebu preferring that the Chinese could make
money, notwithstanding that the inhabitants of the City would suffer;

“Because Morelos, as President of the Municipal Board of the City of Cebu, made money out of the copra ordinance;

“Because, Morelos has a gang in which Zapanta, Seno and companions are
members, who, instead of serving the people are only serving for their
own good, I plead, with great humility, to all upright Cebuanos, not to
elect these men that I mentioned above.

“Because Espina, was
merely appointed Mayor of the City of Cebu in order to be made a Herod
to go after and dismiss policemen and employees who are without guilt;

“Because Espina now is to be transferred to the Capitol in order to be
made Esecutioner (Berdugo) of the employees whom they want to be
executed;

“Because, even when he was still in Ormoc, Espina
was nearly killed by his tenants because he grabbed lands, I plead that
Espina should be buried by all upright Cebuanos.

“President
Roxas in his speech made yesterday, when he mentioned about the
candidates for councilors in the City of Cebu, said; ‘Give me honest
men in the City Board, and I will cooperate with them.’ These men
mentioned above are not honorable and we should cast them aside on
election day.”

It will be seen that the leaflet attacked Morelos and Espina.
Espina instituted a criminal action against the herein defendants,
action which was assigned to one branch of the court presided by Judge
Moscoso. The case at bar was later commenced by Morelos and
corresponded to Judge Felix Martinez, presiding another branch of the
Court of First Instance of Cebu. It was the latter case which was
dismissed on motion of the defendants.

Judge Martinez, citing Article 48 of the Revised Penal Code ruled
that, although two persons claimed to be aggrieved by the libel, yet,
he said, “the two libels * * * were the result of a single act,” “hence
should be subject of a single information, the crime being complex
one.” His Honor argued thus: “A written defamation becomes punishable
the moment, and only when, it is given publicity. Hence, the writing
alleged to be defamatory on Espina and Morelos has become punishable
following its publication. And it is admitted that the leaflet in
question has been published by a single act.” To bolster its opinion,
the court also cited State vs. Hoskins, 60 Minn. 168, in
which it was held that “A libel on two or more persons contained in one
writing and published by a single act constitutes but one offense so as
to warrant a single indictment therefor.”

If the act of publishing the libel were the sole or main element of
the crime, the court’s reasoning would be faultless. But is it?

In the case of State vs. Hoskins, supra, the ratio decidendi
was that the gist of the offense of libel at common law is the
publication of something which tends to affect injuriously the peace
and good order of society regardless of its effect upon the person
concerned. We cull these thoughts from the decisions “The general
policy of the law is to leave the care of men’s reputations to
themselves. No damage done to a reputation (at least, unless the
further element of conspiracy enters into the act) is, at common law?
in and of itself, a foundation for a criminal prosecution,,”
“The law makes the publication of libel punishable as a crime, not
because of injury to the reputation, but because the publication of
such articles tends to affect injuriously the peace and good order of
society.”

So also was the interest of public peace and order given the controlling and private interest secondary consideration in State vs.
Hosmer, (142 Pac. 581, 585, cited in 37 C. J. 147). The court said:
“When a libel has been committed, the state in its sovereign capacity
seeks to avenge the wrong, not because the commission of the act tends
to affect injuriously the good order of society and the dignity of the
State,” but “because it tends to produce a breach of peace.” “The
number libelled in the article is immaterial, and the libeler is
punished for his own act of publishing a libel calculated to produce
violence.”

That is the common-law rule. Such rule has been discarded in many states of the Union. Referring to State vs. Hoskins, supra,
the footnote in 27 L.R.A., 412 says that “The above decision is a
rare one and almost without precedent as appears from the opinions of
the judges.” American Jurisprudence (Vol. 33, p. 292) explains that
“Under the common-law theory, which is embodied in some of the
statutory provisions on the subject, the criminality of a defamatory
statement consists in the tendency thereof to provoke a breach of the
peace,” but, it adds, “many of the modern enactments, * * * ignore this
aspect altogether and make a libelous publication criminal if its
tendency is to injure the person defamed, regardless of its effect upon
the public.”

The present Philippine law on libel conforms to this modern
tendency. For a little digression on the present law of libel or
defamation, let it be noted that the Revised Penal Code has absorbed
libel under Act No. 277 and calumny and insult under the old Penal
Code, (Commentaries on the Revised Penal Code, Guevara, p. 764) The new
Penal Code includes “all kinds of attacks against honor and reputation,
thereby eliminating once and for all the idle distinction between
calumny, insult and libel.” (Idem, p. 765.)

The subject is treated in Chapter I, entitled “Libel” in the
English text and “Defamacion” in the Spanish, under Title Thirteen
entitled “Crimes Against Honor,” Judge Albert and Judge Guevara in
their respective commentaries on the Revised Penal Code criticize the
use of the term “libel” in the English version, correctly observing
that libel and defamation are not synonymous terms and that the latter
is the more appropriate of the two and should have been adopted in both
editions. They point out that libel is confined to written insults
while defamation includes insults both in written and oral forms.

However that may be, the prosecution for libel upon the initiative
of the prosecuting attorney, as was the practice under Act No. 277, has
been abolished with one exception. Now libel or defamation, like
insults and calumny under the old Penal Code, is prosecuted only at the
instance of the offended party or parties,, unless the imputation
constitutes a crime that should be the subject of prosecution de oficio, (People vs. Luz Jose, 43 Off. Gaz., 135 [1]) The last paragraph of Article 360 of the Revised Penal Code thus provides:

“No criminal action for defamation which consists
in the imputation, of a crime which cannot be prosecuted de oficio
shall be brought except at the instance of and upon complaint expressly
filed by the offended party.”

Construing this rule in People vs. Luz Jose, ante, this Court said:

“Esta disposicion es clara, terminante. Bajo su
fraseologia, solamente cuando la difamacion consiste en la imputacion
de un delito perseguible de oficio cabe deducir accion
criminal contra el difamador mediante simple querella del fiscal, sin
necesidad de instancia ni denuncia escrita de parte de la persona
ofendida. Cuando la difamacion imputa un delito no perseguible de
oficio, o bien una cosa deshonorosa, si, pero no delietiva como en el
caso que nos ocupa, la instancia y denuncia escrita de la parte
ofendida es absolutamente indispensable. (E. U. contra De la Cruz, 17 Jur. Fil. 140.)”

The libel or defamation under consideration does not fall within the
class of cases indictable without the concurrence of the aggrieved
persons.

The requirement that prosecution for libel must be upon complaint
of the offended party amply illustrates the intendment and purpose to
make injury to the honor and reputation of the persons libelled the
dominant factor in the offense. The meaning of this requirement is that
there are as many offenses of libel as there are persons libelled, and
the computation of the number is not the publication but the writing or
composing of the libel. From this point of view there can not be only
one defamation when more than one person are defamed. The inclusion of
several persons in a libel can not, in the nature of things, be the
product of one and the same act.

The fusion of calumny, insult and libel in one definition and the
adoption for the resultant offense (defamation or libel) of the
procedure indicated for the indictment for the crimes of insult and
calumny before the Penal Code was revised, make available for our
guidance decisions of the Spanish Supreme Court in the matter of
multiplicity of action. Two of such decisions, reported and digested by
Viada, will suffice.

“Cuestion 6. Cuando en un folleto se injuria a cinco
personas y todas ellas ejercitan la oportuna accion criminal, existirin
cinco delitos de injurias?—El Tribunal Supremo ha resuelto la
afirmatives Considerando que a pesar de hallarse contenidas en el
misrao folleto todas las frases calificadas de injuriosas, no cabe
estimar que constituyan un solo delito, porque refiriendose, como se
refieren, a cinco personas distintas, todas las cuales han ejercitado
para perseguirlas la accion criminal correspondiente, la imputacion que
a cada una de ellas se dirige de vicios o faltas de moralidad
perjudiciales a su credito y fama ha de ser como lo ha sido, juzgada,
aunque en la misma causa con separacion de las restantes, puesto que da
lugar a responsabilidades independientes, y mayormente si se atiende a
que la indole de estos delitos reserva exclusivamente a la iniciativa
particular el derecho de instar y seguir el procedimiento, etc. (S. de
23 de septiembre de 1902, Gaceta de 16 de enero de 1903.)” (2 Viada,
5th ed., p. 608.)

“Cuestion 11. Aun cuando en un misrao
acto, o sea en una disputa habida entre dos personas, la una dirige
expresiones injuriosas a la otra, y sucesivamente otras calumniosas, b
sea imputandole falsamente la comisldn de delitos concretos,
perseguibles de oficio, deberan penarse dos hechos distintos, con
arreglo al art. 88 del Codigo, o solo el delito mas grave en el grado
maximo, con sujeci6n al art. 90?—Esto tultimo entendio la Sala de 10
criminal de la Audiencia de la Coruna, la que impuso al procesado la
pena del delito mas grave de calumnia en el grado maximo, con arreglo a
dicho art. 90; mas el Tribunal Supremo declaro haber lugar al
recurso de casacion interpuesto contra dicha sentencia por infraccion
del citado articulo, fundlndose en que a esta disposicdn legal no puede
ni debe darsele mayor extension que la que alcanza el literal con texto
de sus palabras, como excepcion gue es de otra regla general, refiriendose terminantemente al caso en que de un solo hecho, es decir, de una sola accion,
resulten distintas infracciones, no cuando son distintos los hechos que
producen las Infracciones, aunque en el mismo acto as produzcan, como
ocurre cuando en una riña el procesado hiere a una persona y mata a
otra, lo cual produce dos delitos distintos que deben penarse
separadamente, sin que en tal caso sea posible apliear el art. 90, cuya
disposicion es evidente que infringio la Sala al aplicarla al caso de
autos, en que se produjeron dos distintos delitos.” (S. de l.^o de febrero delb79 Gaceta de l.o de abrilo) (2 Viada, p. 635.)

The theory that only one prosecution may be instituted even though
several persons are affected would lead to injustice to the offended
parties, defeat of some of the law’s aims, and great inconvenience. It
would deprive of their right offended parties who were absent or for
one reason or another were not ready to prosecute the libeler at the
time other offended parties commenced action. It would deprive them of
their right to vindicate their honor and reputation by proving the
falsity or malice of the defamatory imputation. It would bar them from
recovering damages in the criminal proceeding, right which is theirs
under the penultimate paragraph of Article 360 of the Revised Penal
Code.

Upon the foregoing considerations, the order appealed from is
reversed and the case is remanded to the court of origin for further
proceeding according to law, with costs of this appeal against the
appellees.

Moran, C.J., Ozaeta, Pablo, Bengzon, Montemayor, and Reyes, JJ., concur.

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^[1] 76 Phil., 599.

MORAN, C.J.:

Mr. Justice Padilla voted to reverse.