THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT VS. MAKIA G. BALBOA, DEFENDANT AND APPELLEE.

This is an appeal from the order of the Court of First Instance of
Manila dismissing the present case (No. 8865 of said court) against
Maria G. Balboa, on the ground of double jeopardy.

On July 17, 3947, the City Fiscal of Manila filed an information in
Criminal Case No. 3830 of the Court of First Instance of Manila,
charging Francisco Martinez and the herein appellee, Maria G. Balboa,
with the crime of estai’a. Said information reads as follows:

“The undersigned accuses Francisco Martinet and Maria Balboa of the crime of cstafa, committed as follows:

“That
on or about April 9, 1947, in the City of Manila, Thilippines, the said
accused, conspiringand confederating together and mutually helping each
other, did then and there willfully, unlawfully and feloniously defraud
one .Paul C. Nesbitt in the following1 manner, to wit: the said accused
received tram the said Paul C. Nesbitt, thru Mrs. 0. Serrano, one (1)
small diamond ring with 9 karats and one (1) big diamond ringwith .17
karats, of the total value of P11,000, for the purpose of selling the
same on commission until 4:00 o’clock of the nest day, April 10, 1947,
under the express obligation of turningover and delivering the proceeds
thereof, if sold, or the rings themselves, if not sold, to the said
Mrs. C. Serrano or Paul C. Nesbitt, but the said accused. once in
possession of the said rings, far from complyingwith their aforesaid
obligation, in spite of repeated demands made upon them to do so and
the length of time that has elapsed, did then and there willfully,
unlawfully and feloniously, with Intent to defraud, misappropHate,
misapply and convert the same to their own personal use and benefit, to
the damage and prejudice of the said Paul C. Nesbitt in the
aforementioned sum of P11,000, Philippine currency.

“Contrary to law
		” (Sgd.) JOSE B. JIMENEZ
		Assistant City Fiscal”

Maria G. Balboa pleaded not guilty to said
information. Later on the Fiscal orally moved that the case against
Maria G. Balboa be dismissed provisionally on the ground that her
co-accused Francisco Martinez had not yet been arrested and without him
the charge could not be proved against Balboa beyond reasonable doubt.
The court provisionally dismissed the case against Balboa on February
20, 1948.

Subsequently, Francisco Martinez was arrested and
pleaded not guilty. On September 20, 1948, Martinez’s counsel moved for
the definite dismissal of the case against him on the ground that he
had satisfactorily explained the matter to the complainant Paul C.
Nesbitt, who was no longer interested in pressing the case against
Martinez. The motion contained the written consent of the complainant
Nesbitt and a note signed by the Fiscal that he had no objection to it.
This motion was granted by the court and the case was definitely
dismissed with regard to Martinez.

On September 20, 1948,
counsel for Balboa prayed that the provisional dismissal against her be
made definite; this was granted by the court.

On November 10, 1948, an information was filed in the Court of
First Instance of Manila in Criminal Case No. 8365 against Maria G.
Balboa, charging her with estafa. Said information reads as follows:

“The undersigned accuses Maria G. Balboa of the crime of estafa, committed as follows:

“That on or about the 10th day of April, 1947, in the City of Manila,
Philippines, the said accused then and there willfully, unlawfully and
feloniously defraud one Francisco Martinez in the followingmanner, to
wit: the said accused having received from the said Francisco Martinez
one 9 carat solitaire diamond ring and one 17 carat solitaire diamond
ring of the total value of P13,000, for the purpose of selling the same
on commission, under the express obligation of turning over and
delivering the proceeds of the sale thereof, or returning the said
rings, if not sold, in the afternoon of the same date to the said
Francisco Martinez, but the accused, once in possession of the said
rings, with intent to defraud and far from complying with her aforesaid
obligation, in . spite of repeated demands made upon her to do so and
the length of time that has elapsed, did then and there willfully,
unlawfully and feloniously, misapply, misappropriate and convert the
said rings or their value to her own personal use and benefit, to the
damage and prejudice of said Francisco Martinex in the aforementioned
sura of P13,000, Philippine currency.

“Contrary to law.
		“(Sgd.) LORENZO RELOVA
		Assistant City Fiscal”

Maria G. Balboa pleaded not guilty to said information on December 13, 1948. The case was set for trial but was set for trial, November 2, 1949, the attorney for Balboa orally moved that the case be quashed on the ground of double jeopardy. The court ordered the attorney to file his motion in writing and the Fiscal to answer it also in writing.

On November 9, 1949, a written petition to Quash
was filed with the court and was answered by the Fiscal on November 10,
1949. The court dismissed the case on the ground of double jeopardy by
an order which reads as follows:

“The accused Maria G.
Balboa is charged with estafa for having allegedly misappropriated and
converted two diamond rings valued at P13.000.

“The attorney
for the accused moved to quash the information upon the ground that in
a former case (Criminal Case No. 3830) the accused Maria G. Balboa and
one Francisco Martinez were charged with estafa for misappropriation
and conversion of the same two diamond rings and that case was
dismissed, as to Francisco Martinez in the order of the eourt of
September 22, 1948, and as to Maria G. Balboa in the order of October
2, 1948. The dismissal was made after the said two accused entered a
plea of not; guilty.

“WHEREFORE, under the provisions of
Sections 9 and 10, Rule 113, of the Rules of Court, the case is hereby
dismissed, with costs de oficio.

“So ordered.

“Manila, Philippines, November 16, 1949.

		“(Sgd.) RAFAEL AMPARO
		Judge”

The Solicitor General did not attach to his brief as an appendix the
order of the court appealed from, in accordance with section 7, Rule
120.

In his appeal the Solicitor General makes the following assignment of errors:

“I

“The lower court erred In finding that
defendant-appellee had been previously placed in jeopardy of punishment
for the same offense charged in the instant case.

“II

“The lower court erred in not findingthat the
appellee had waived her right not to be in jeopardy of being convicted
twice for the sarae offense.

“III

“The lower court erred in dismissing1 the case against appellee.”

The question may be reduced to the issue whether the offense
charged in the first information, which had been definitely dismissed
with regard to the two defendants, is the same as that charged in the
second,’in such a way that conviction or acquittal of the first charge
amounts to jeopardy with regard to the second.

The similarities and differences between the two informations may be tabulated as follows:

	Case No. 3830	Case No. 8865
Nature of information ……………………….	Estafa	Estafa
Defendants ………………	Francisco Martinezand Maria G. Balboa	Maria G. Balboa
Offended party………..	Paul C. Nesbitt	Francisco Martinez
Date of commission ofcrime …………….	April 9, 1947	April 10, 1947
.
Things misappropriated and their value..	One small diamondring, 9 karats, and1 big	One solitaire diamond ring, 9 karats, and 1
	diamond ring, 17 karats,with a total valueof	solitaire diamond ring,17 karats, all valued
	P11,000	at P13.000
How committed ……….	For the purpose of selling said rings on	For the purpose of selling said rings on
	commission un-til 4:00 p.m., of April 10,	commissionand turning over the proceeds,
	1947, and delivering the proceedsif sold,	if sold, and the rings,if not sold, in the after-
	and the rings, if not sold, to Mrs. C. Serrano	noon of same date(April 10, 1947) to Fran-
	or Paul C. Nesbitt, but has not returned	cisco Martinez, but has not returned the rings
	the rings nor delivered the proceeds.	nor delivered the proceeds.

The difference in the date of the commission of the crime may be
disregarded as immaterial. The descriptions of the two rings, although
a little different in the words, used, refer to the same objects.

The important material differences are in the defendants who, in
the first information, were Francisco Martinez and Maria G. Balboa,
whereas in the second it is only Maria G. Balboa; in the offended
parties, Paul C. Nesbitt being the offended party in the first
information and Francisco Martinez in the second; and in the manner of
the commission of the offense, for in the first information, the value
of the rings or the rings themselves should have been delivered to Mrs.
C. Serrano or Paul C. Nesbitt, whereas, in the second information, the
delivery of the money or the rings should have, been made to Francisco
Martinez.

To commit estafa against Paul C. Nesbitt is not the same as to
commit estafa against Francisco Martinez, for they are different
persons. A person may be acquitted of the charge of committing estafa against Nesbitt but may be convicted of committing it against Martinez, or vice versa. An estafa committed against Nesbitt is different from an eslafa
committed against Martinez. John may be accused of hitting Peter, but
if he proves that he did not hit Peter he will be acquitted.
Nevertheless, this acquittal. cannot be a bar to a charge against him
for hitting Paul. Hitting Peter is not the same as hitting Paul.

In the case of United States vs. Lahoylahoy (38 Phil., 330) it was held:

“3. Id.; Id.; Variance between allegation and, proof as to ownership of property robbed.—The
information in a. prosecution for robbery with quadruple homicide
charged that the accused criminally and by force appropriated certain
articles of value, the property of one Roman Estriba, and on occasion
thereof killed the said Roman Estriba and three others. The proof
showed that the money which was the subject of the robbery was taken
from one Juana who was robbed and killed separately from the other
three victims. Held: That the conviction for the robbery
could not be sustained because of the variance between the allegation
and proof as to ownership of the property robbed. But the accused were
sentenced by the Supreme Court for the four separate homicides. (U. S.
vs. Balaba, 37 Phil. Rep., 260).” (Syllabus)

In another part of the decision, the Court had the following to say:

“It should be borne in mind that the plea of former
conviction or acquittal, or former jeopardy, is supposed to be proved
by the pleadings and judgment in the former case, supplemented only by
proofs showing1 the identity of the party, or parties. Courts are not
accustomed to determine the plea of former jeopardy by examining1 the
proof to discover just what facts may have been developed in the former
case. (Henry vn. State, 33 Ala., 389; Grisham vs. State, 19 Tex. Cr.
App., 504). In fact it is not always practicable or even possible to
produce for inspection upon the trial of this issue the evidence which
was adduced in court at the trial of the former case. (p. 336)

The appellant contends that the motion to quash on the ground of
double jeopardy was presented too late under the provisions of section
10, Rule 113, for the reason that Maria G. Balboa had been aware of
such alleged ground long before she pleaded in the second case, in view
of the result reached by us in regard to the other point, it is not
necessary to pass upon this question.

It results that the definite dismissal in Criminal Case No. 3830
does not constitute jeopardy against the defendant in the latter ease,
No. 8365.

In view of the foregoing the order of the Court of First Instance
of Manila, dated November 16, 1949, dismissing Criminal Case No. 8365
of said court is hereby reversed and the ease ordered remanded to said
court for further proceedings, without pronouncement as to costs. It is
so ordered.

Feria, Pablo, Itengzon, Padilla., Tuason, and Reyes, JJ., concur.

Order reversed and the case remanded to the Court of First Instance for further proceedings.