PINEDA & AMPIL MANUFACTURING CO. AND ISAAC AMPIL, PETITIONERS, VS. ARSENIO BARTOLOME, MANUEL BARTOLOME AND COURT OF APPEALS, RESPONDENTS.

This is a petition for review of a decision of the Court of Appeals
granting the writ of certiorari applied for and ordering the court of
origin to quash the amended information filed against the accused on
the ground that while said amended information does not charge two
separate offenses of estafa, nor the crime of malicious mischief, as
contended by the lat ter, nevertheless, it charges the crime of
falsification of private document as an offense separate and distinct
from that of estafa and, therefore, it should be quashed on that ground.

On September 4, 1951, an information for estafa was filed in the
Court of First Instance of Manila against Arsenio Bartolome and Manuel
Bartolome, which was later on amended on October 18, 1951. Before said
accused entered their plea upon the information, they filed a motion to
quash on the ground that it charges four distinct and separate offenses
punishable under four different and separate provisions of the Revised
Penal Code.

Counsel for private prosecution vigorously opposed the motion
contending that the amended information does not charge multiple
offenses in the manner pointed out by the defense because, while
apparently two offenses of estafa are charged therein, they may not be
considered as two distinct offenses which call for different punishment
for the reason that there is only one subject matter, one offended
party and a series of fraudulent acts committed with one criminal
intent; nor does it charge separately an offense of falsification of
private documents for it lacks an essential element characterizing such
offense which-consists in the alteration or falsity of a private
document; and that neither does it charge an offense of malicious
mischief because the destruction of the books, papers, and documents
alleged therein was not made with a feeling of hate but merely with
intent to defraud.

On November 9, 1951, the court denied the motion to quash, and the
motion for reconsideration interposed thereto having been denied, the
accused filed a petition for certiorari with the Court of Appeals
imputing lack or excess of jurisdiction, or grave abuse of discretion
to the lower court, in failing to quash the information on the ground
of “duplicity of offense.”

The Court of Appeals gave due course to the petition for certiorari
and, after hearing, it rendered decision overruling accused’s
contention in part and sustaining it in part, the court holding that
while the amended information does not charge two separate offenses of
estafa nor the crime of malicious mischief, punishable under different
provisions of the Revised Penal Code, it nevertheless charges the crime
of falsification as an offense separate and distinct from estafa, and
ordered that said information be quashed. In due time, counsel for
private prosecution filed a motion for reconsideration, and this motion
having been denied, counsel filed the present petition for review.

The first issue posed by petitioners refers to a question of
jurisdiction. They contend that respondent Court of Appeals erred in
taking cognizance of the certiorari case interposed by the accused
instead of inhibiting itself from acting thereon on the ground that it
has no jurisdiction over the subject matter involved in the petition,
citing in favor of their contention section 17 of Republic Act 296
otherwise known as the Judiciary Act of 1948.

There is no merit in this contention. Section 17 of Republic Act
296, it is true, confers upon the Supreme Court exclusive jurisdiction
to review final judgments or decrees of inferior courts in all cases in
which only errors and questions of law are involved, but this is so
only in cases where an appeal is taken “by certiorari or writ of
error.” The rule differs when the relief applied for is a special civil
action of certiorari. In such a case, as in cases of mandamus,
prohibition, and injunction, the Court of Appeals has original
jurisdiction to issue the writ when that is sought in aid of its
appellate jurisdiction. (Section 30, Republic Act 296). And so it has
been held that, “Where a criminal case has not yet been decided the
basis in determining what court has original jurisdiction over a
petition for certiorari founded upon questions arising from said
criminal case, should be the penalty fixed by law for the offense
charged in the information.” (Roldan vs. Villaroman, 69
Phil., 12.) And as a supplement to this ruling, it was also held that a
petition for certiorari may be entertained by the Court of Appeals if
it appears from the allegations in the petition, complaint, or
information that the parties have a right to appeal, according to law,
from any final order or decision of the lower court to the Court of
Appeals (Breslin vs. Luzon Stevedoring Co., 47 Off. Gaz., 1170; 84 Phil., 618.)

Inasmuch as the case involved is a special civil action of
certiorari, and not an appeal by certiorari or writ of error, wherein
lack or excess of jurisdiction, or grave abuse of discretion is imputed
to an inferior court, it follows that respondent Court of Appeals acted
rightly in taking cognizance of said special action of certiorari.

The next issue, posed by petitioners refers to the finding of the
respondent Court of Appeals to the effect that the amended information
charges falsification as an offense separate and distinct from estafa,
and, therefore, it should be quashed on that ground. In other words,
petitioners assails the following finding of respondent Court of Appeals:

“The contention, however, that the amended
information charges falsification as an offense separate and distinct
from estafa, appears to be very well taken. It is one thing to commit
the crime of estafa, and an entirely different matter to commit
falsification so as to conceal a defraudation already accomplished by
the same or different means. The first is estafa complexed by
falsification, and to allege these separate acts in a single
information is permissible, falling as it does, within the excepting
clause of the rule against duplicity of charges (Rule 106, section 12,.
Rules of Court). The second is a case of two separate and distinct
offenses of estafa and falsification, and both may not validly be
charged in the same information. .

It is contended that, in order that a given information may be
assailed as alleging duplicity of charge, it is necessary to show that
the elements of each charge be recited in the information, or the
recital of such separate charge be complete and sufficient in itself
such that, if the accused is found guilty, a conviction could be had
thereon. In the instant case, petitioners aver, the crime of
falsification allegedly punishable under article 171, paragraph 4, in
relation to article 172, paragraph 2, of the Revised Penal Code, does
not appear sufficiently described in the information for it does not
allege (1) that the accused had a legal obligation to make a “narration
of facts” and (2) if they had such obligation, that they made false or
untruthful statement in a narration of facts as required by law. These
two elements not being present, petitioners contend that the charge of
falsification does not appear sufficiently recited in the information.

A cursory reading of the information would disclose no basis for
this contention. While the amended information does not allege in so
many words that the accused have a legal obligation or duty to make any
narration of facts, it does however allege that Arsenio Bartolome was
the treasurer and Manuel Bartolome the accountant, and that the former
was under obligation “to make or cause to be made necessary entries
therefor in the books of said corporation” which recital constitutes a
substantial compliance with the law. It is also true that the amended
information does not literally allege that the accused made a false or
untruthful narration of facts; however, it does appear in the
information that the accused “failed and neglected to make and record
the corresponding entries or otherwise manipulated the proper keeping of the books of accounts,” in order to conceal the misappropriation. The word manipulated
is broad enough to imply tampering or falsification of the books or
entries made therein. This is also a substantial compliance with the
law. So, it may therefore be said that the two elements of the offense
of falsification are present, and coupled with the statement that they
were done with intent to cause damage to the corporation, in our
opinion, those averments are sufficient to sustain a conviction on that
charge. And it cannot be contended, as petitioners do, that those
averments were inserted merely to make a complete narration of facts
constituting the crime of estafa, or to show the different means by
which the same may be committed, it appearing that the alleged
manipulation was committed in order to conceal the misappropriation. It
cannot, therefore, be said that the crime of falsification was
committed merely as a means to commit estafa, for in fact two separate
offenses are charged in the information.

In arriving at the conclusion that the amended information charges
two separate offenses of estafa and falsification of which the accused
can be convicted if found guilty, respondent Court of Appeals invoked
in support thereof the cases of U.S. vs. Geta, 43 Phil., 1009, People vs. Dizon, 47 Phil., 350, and People vs.
Bersabal, 48 Phil., 439. Their applicability is now disputed by
petitioners on the ground that the facts and findings made therein are
not on all fours to the present case. We have gone over and examined
the cases thus invoked and we are satisfied that the conclusion reached
by the Court of Appeals is correct.

A collateral issue raised by petitioners is that the respondent
Court of Appeals erred in taking cognizance of the petition for
certiorari despite their contention that, if the lower court had
committed an error in denying the motion to quash or in holding that
the amended information does not contain duplicity of charge, such
error cannot be corrected by a petition for certiorari but by appeal,
and, therefore, the respondent court should have dismissed the petition
on that ground.

While a denial of a motion to dismiss for lack of jurisdiction was
held not to be a proper basis for a petition for certiorari [Nico vs.
Blanco, 46 Off. Gaz., Supp. (1) 88; 81 Phil., 213], or an appeal and
not certiorari is the proper remedy for correcting an error which a
lower court may commit in denying a motion to set aside a judgment, or
in setting aside an order of dismissal, [Rios vs. Ros, et al., 45 Off. Gaz. (No. 3) 1265; 79 Phil., 243; Santos vs.
Pecson, 45 Off. Gaz., (No. 3), 1278; 79 Phil., 754] however, in some
instances, the Supreme Court has departed from the general rule and has
entertained the writ notwithstanding the existence of an appeal. Thus,
in one case the Supreme Court took cognizance of a petition for
certiorari notwithstanding the fact that the accused could have
appealed in due time when it found that the action was necessary to
promote public welfare and public policy (People vs. Zulueta,
89 Phil., 880). In another case, a petition for certiorari to annul an
order of the trial judge admitting an amended information was
entertained although the accused had an adequate remedy by appeal
“inasmuch as the Surplus Property cases have attracted nationwide
attention, making it essential to proceed with dispatch in the
consideration thereof.” (People v.s. Zulueta, supra. Citing Arevalo vs.
Nepomuceno, 63 Phil., 627.) And still in another case, the writ was
entertained where the appeal was found not to be adequate remedy, as
where the order which is sought to be reviewed is merely of
interlocutory or peremptory character and the appeal therefrom can be
interposed only after final judgment and may therefore be of no avail.
(Rocha vs. Crossfield, 6 Phil., 355; Leung Ben vs. O’Brien, 38 Phil., 182. See also Mendoza vs. Paruñgao, 49 Phil., 271; Dais vs. Court of First Instance, 51 Phil., 36).

For analogous reasons it may be said that the petition for certiorari interposed by the accused against the order of the court a quo
denying the motion to quash may be entertained, not only because it was
rendered in a criminal case, but because it was rendered, as claimed,
with grave abuse of discretion, as found by the Court of Appeals. It
would be indeed unfair and unjust, if not derogatory of their
constitutional right, to force the accused to go to trial under an
information which, in their opinion, as was found, accuses them of
multiple offenses in contravention of law. And so, in our opinion, the
respondent court did not err in entertaining the petition for
certiorari instead of dismissing it, as claimed.

It only remains for us to consider respondents’ plea that we review
the decision appealed from with a view to securing its modification by
stating that it charges not only one offense of estafa but two contrary
to the finding of the respondent Court of Appeals. Counsel for
respondent argue that this Court can make this review in spite of the
fact that they have not appealed from the decision because the
modification, if any, would not have the effect of changing its
dispositive part.

We disagree with this contention. While an appellee may on appeal be
permitted to make counter-assignment of errors when the purpose is
merely to defend himself against the errors imputed by appellant to the
court a quo such is allowed merely to sustain the judgment in his favor
but Lot to seek a modification or reversal of said judgment, for in
such a case there is need for him to appeal from the judgment. This is
what we said in a recent case.^[1] For us to change the ratio decidendi of the decision to suit the theory of respondents would be to infringe this ruling, and this we are not prepared to do.

Wherefore, the decision appealed from is affirmed, without prejudice
on the part of the fiscal to amend the information discarding therefrom
the objectionable features as found by the Court of Appeals, with costs.

Paras, C.J., Pablo, Montemayor, Reyes, A., Jugo, Concepcion and Reyes, J.B.L., JJ., concur.

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^[1] “Appellee, who is not
appellant, may assign errors in his brief where his purpose is to
maintain the judgment on other grounds, but he may not do so if his
purpose is to have the judgment modified or reversed, for, in such
case, he must appeal. (Saenz vs. Mitchell, 60 Phil., 69, 80; Mendoza vs. Mendiola. 53 Phil., 267; Villavert vs. Lim, 62 Phil., 178; Balajadia va. Eusala, G. R. No. 42579). “(Bunge Corporation and Universal Agencies vs. Elena Camenforte & Co., 91 Phil., 861.)