THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT, VS. GERVASIO ALGER, DEFENDANT AND APPELLEE.

Gervasio Alger was charged in the Court of First Instance of
Cebu with illegal possession of a .30 caliber rifle, model 1917, serial No.
137428 and three rounds of ammunition. When the case was called for trial,
defendant made an oral motion to dismiss contending that, if it be continued, he
would be placed in double jeopardy. It appears that defendant has been
previously accused and convicted of a crime of homicide for the perpetration of
which he used a weapon which was made the subject of the present charge. After
the parties had been heard in support of their respective contentions, the court
issued an order sustaining the plea of jeopardy. Hence this appeal.

The plea of jeopardy is predicated on section 9, Rule 113,
which provides:

“SEC. 9. Former conviction or acquittal or former jeopardy.—When a defendant shall have been convicted or acquitted, or the case against him
dismissed or otherwise terminated without the express consent of the defendant,
by a court of competent jurisdiction, upon a valid complaint or information or
other formal charge sufficient in form and substance to sustain a conviction,
and after the defendant had pleaded to the charge, the conviction or acquittal
of the defendant or the dismissal of the case shall be a bar to another
prosecution for the offense charged, or for any attempt to commit the same or
frustration thereof, or for any offense which necessarily includes or is
necessarily included in the offense charged in the former complaint or
information”.

It appears from the above-quoted provision that when a
defendant is convicted of a crime by a court of competent jurisdiction upon a
valid information, his conviction “shall be a bar to another prosecution for the
offense charged, or for any attempt to commit the same or frustration thereof,
or for any offense which necessarily includes or is necessarily included in the
offense charged in the former complaint or information”. In order that a former
conviction may be a bar to another prosecution, it is, there Core, important to
determine if the accused is newly prosecuted either for the same offense, or for
any offense which necessarily includes or is necessarily included in the offense
charged. Stated in another way, the new charge should refer to the same offense,
or to any other necessarily included in it.

This situation does not here obtain. The record shows that the
defendant has been previously charged and convicted of a crime of homicide
whereas in the present case he is charged with illegal possession of a firearm.
The two crimes are distinct from each other. It is true that he crime of
homicide has been perpetrated with the same weapon subject of the present case,
but this is of no consequence it appearing that the present offense was not eluded in the case of homicide for the reason that the information does not
state that such weapon or firearm did not have the permit required by law. The
gauge to determine if an offense is necessarily included in another offense is
whether the accused could be held liable and convicted of that offense. The
defendant in this case could not have been convicted of illegal possession of
firearm in the homicide case because of the failure to allege therein an
essential element constituting that offense.

We have taken notice of the fact that the trial court was
persuaded to sustain the plea of double jeopardy in view of the ruling laid down
in two cases previously decided by this Court (U. S. vs. Poh Chi, 20 Phil, 140;
U. S. vs. Gustilo, 19 Phil., 208). But the ruling enunciated in said cases is
not on all fours with the present because there the accused committed the acts
charged with one criminal act and did so impelled by a single criminal intent.
In the case at bar, the defendant committed two different acts with two separate
criminal intents, to wit, the desire to take unlawfully the life of a person,
and the willful violation of the law which prohibits the possession of a firearm
without the required permit. Under the circumstances of this case, the plea of
double jeopardy is of no avail.

The order appealed from is hereby set aside, without costs. The
Court orders that this case be remanded to the lower court for further
proceedings.

Paras, C. J., Pablo, Bengzon, Padilla, Montemayor, Jugo, and
Labrador, JJ., concur.