THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. BUENAVENTURA BULING, DEFENDANT AND APPELLANT.

Appeal from a judgment of the Court of First Instance of Leyte, Hon.
Gaudencio Cloribel, presiding, finding the accused Buenaventura Buling
guilty of serious physical injuries and sentencing him to imprisonment
of four months of arresto mayor, as minimum, to one year of prision correccional, as maximum, and to indemnify the offended party.

The following uncontroverted facts appear in the record: On December
7, 1956, the accused was charged in the Justice of the Peace Court of
Cabalian, Leyte, with the crime, of less serious physical injuries for
having inflicted wounds on complaining witness Isidro Balaba, which
according to the complaint would “require medical attendance for a
period from 10 to 15 days and will incapacitate the said Isidro Balaba
from the performance of his customary labors for the same period of
time.” The accused pleaded guilty to the complaint and was on December
8, 1957 found guilty of the crime charged and sentenced to 1 month and
1 day of arresto mayor and to pay damages to the offended
party in the sum of P20.00, with subsidiary imprisonment in case of
insolvency. On the same day he began to serve his sentence and has
fully served the same.

However, Balaba’s injuries did not heal within the period estimated,
and so on February 20, 1957, the Provincial Fiscal filed an information
against the accused before the Court of First Instance of Leyte,
charging him of serious physical injuries. The information alleges that
the wounds inflicted by the accused on Isidro Balaba require medical
attendance and incapacitated him for a period of from 1½ months to 2½
months. After trial the accused was found guilty of serious physical
injuries and sentenced in the manner indicated in. the first paragraph
hereof. This is the decision now sought to be set aside and reversed in
this appeal.

The only question for resolution by this Court is, whether the
prosecution and conviction of Balaba for less serious physical injuries
is a bar to the second prosecution for serious physical injuries.

Two conflicting doctrines on double jeopardy have been enunciated by this Court, one in the cases of People vs. Tarok, 73 Phil., 260 and People vs. Villasis, 81 Phil., 881, and the other, in the cases of Melo vs. People, 85 Phil., 766, People vs. Manolong, 85 Phil., 829 and People vs. Petilla, 92 Phil., 395. But in Melo vs. People, supra, we expressly repealed our ruling in the case of People vs. Tarok, supra, and followed in the ease of People vs. Villasis, supra. In the Melo vs. People case, we stated the ruling to be that:

“* * * Stating it in another form, the rule is that
“where after the first prosecution a new fact supervenes for which the
defendant is responsible, which changes the character of the offense
and, together with the facts existing at the time, constitutes a new
and distinct offense” (15 Am. Jur., 66), the accused can not be said to
be in second jeopardy if indicted for the new offense.” (85 Phil.,
769-770).

Do the facts in the case at bar justify the application of the new
ruling? In other words, has a new fact supervened, like death in the
case of Melo vs. People, which changes the character of the
offense into one which was not in existence at the time the case for
less serious physical injuries was filed? We do not believe that a new
fact supervened, or that a new fact has come into existence. What
happened is that the first physician that examined the wounds of the
offended party certified on. December 10, 1956 that the injury was as
follows: “wound, incised, wrist lateral, right, ¾ inch long, sutured”
and that the same would take from 10 to 15 days to heal and
incapacitated (the wounded man) for the same period of time from his
usual work (Exh. 3). It was on the basis of this certificate that on
December 8, 1956, defendant-appellant was found guilty of less serious
physical injuries and sentenced to imprisonment of 1 month and 1 day of
arresto mayor, etc.

But on January 18, 1957, another physician examined the offended
party, taking an X-ray picture of the arm of the offended party which
had been wounded. The examination discloses, according to the
physician, the following injuries:

“Old stab wound 4 inches long. With infection,
distal end arm, right. X-ray plate finding after one month and 12
days—Fracture old oblique, incomplete distal end, radius right, with
slight calus.” (Exh. “E”).

and the certification is to the effect that treatment will take from 1½ months to 2½ months barring complications.

Counsel for the appellant claims that no fact had supervened in the
case at bar, as a result of which, another offense had been committed.
It is argued that the injury and the condition thereof was the same
when the first examination was made on December 10, 1956, as when the
examination was made on January 18, 1957, and that if any new fact had
been disclosed in the latter examination failure of this new fact to be
disclosed in the previous examination may be attributed to the
incompetence on the part of the examining physician. We find much
reason in this argument. What happened is no X-ray examination of the
wounded hand was made during the first examination, which was merely
superficial. The physician who made the first examination could not
have seen the fracture at the distal end of the right arm, and this
could only be apparent or visible by X-ray photography.

Under the circumstances above indicated, we are inclined to agree
with the contention made on behalf of appellant that no new supervening
fact has existed or occurred, which has transformed the offense from
less serious physical injuries to serious physical injuries.

But the Solicitor General cites the case of People vs. Manolong, supra,
and argues that our ruling in said case should apply to the case at
bar, for the reason that in the said case the first crime with which
the accused was charged was less serious physical injuries and the
second one was serious physical injuries and yet we held that there was
no jeopardy. We have carefully examined this case and have found that
the first examination made of the offended party showed injuries which
would take from 20 to 30 days to heal, whereas the subsequent
examination disclosed that the wound of the offended party would
require medical attendance and incapacitate him for labor for a period
of 90 days, “causing deformity and the loss of the use of said member”
No finding was made in the first examination that the injuries had
caused deformity and the loss of the use of the right hand. As nothing
was mentioned in the first medical certificate about the deformity and
the loss of the use of the right hand, we presume that such fact was
not apparent or could not have been discernible at the time the first
examination was made. The course (not the length) of the healing of an
injury may not be determined before hand; it can only be definitely
known after the period of healing has ended. That is the reason why the
court considered that there was a supervening fact occurring since the
filing of the original information.

But such circumstances do not exist in the case at bar. If the X-ray
examination discloses the existence of a fracture on January 17, 1957,
that fracture must have existed when the first examination was made on
December 10, 1956. There is, therefore, no new or supervening fact that
could be said to have developed or arisen since the filing of the
original action, which would justify the application of the ruling
enunciated by us in the cases of Melo vs. People and People vs. Manolong, supra.
We attribute the new finding of fracture, which evidently lengthened
the period of healing of the wound, to the very superficial and
inconclusive examination made on December 10, 1956. Had an X-ray
examination taken at the time, the fracture would have certainly been
disclosed. The wound causing the delay in healing was already in
existence at the time of the first examination, but said delay was
caused by the very superficial examination then made. As we have
stated, we find therefore that no supervening fact had occurred which
justifies the application of the rule in the case of Melo vs. People and People vs. Manolong, for which reason we are constrained to apply the general rule of double jeopardy.

We take this opportunity to invite the attention of the prosecuting
officers that before filing informations for physical injuries,
thorough physical and medical examinations of the injuries should first
be made to avoid instances, like the present, where by reason of the
important Constitutional provision of double jeopardy, the accused can
not be held to answer for the graver offense committed.

The decision appealed from is hereby reversed. The judgment of
conviction is set aside and the defendant-appellant acquitted of the
charge of serious physical injuries. Without costs.

Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Concepcion, Endencia, Barrera, and Gutierrez David, JJ., concur.