CANDIDO MENDOZA Y PIMENTEL, PETITIONER, VS. NATIVIDAB ALMEDA-LOPEZ, JUDGE, BRANCH III, MUNICIPAL COURT OF THE CITY OF MANILA, RESPONDENT.

In the municipal court of the City of
Manila, the petitioner was charged with having violated section 821 of
the Revised Ordinances of said city, by virtue of the following
allegations of the information: “That on or about the 10th day of May,
1937, In the City of Manila, Philippines, the said accused did then and
there willfully and unlawfully behave in a rude and indecent manner
toward one K. Severien by then and there placing himself on top of her,
without her consent and to her annoyance, in violation of section 821
of said Rev. Ords.” The case so instituted was docketed as No. H-74598.
After having been arraigned, the petitioner pleaded “not guilty” and
the case was called for trial on June 9, 1937. Before the presentation
of the evidence for the prosecution, the fiscal orally applied for
permission to amend the information by substituting the name of K.
Severien, as the aggrieved party, by that of Aurea Almazan, who was
really the offended one. The attorney for the petitioner opposed the
motion and the municipal court ruled that, as the amendment sought to
be introduced was substantial, it was not proper to do so in view of
the opposition of the petitioner, for which reason it denied said
motion. The case was again called for trial on June 29, 1937, but the
fiscal, before presenting his evidence, asked for the dismissal of the
case on the ground that the amendment sought to be introduced by him
had been denied and because he intended to file another information
setting forth the correct name of the offended party. The petitioner,
through his attorney, opposed the motion and urged the trial of the
case. The municipal court granted the fiscal’s motion and dismissed the
case, the petitioner excepting to the order of dismissal. On June 30th
of said year, the fiscal filed a new information the material
allegations of which are as follows: “That on or about the 10th day of
May, 1937, in the City of Manila, Philippines, the said accused did
then and there willfully and unlawfully behave in a rude and indecent
manner toward one Aurea Almazan by then and there placing himself on
top of her, without her consent and to her great annoyance, in
violation of section 821 of said Rev. Ords.” This second information
was docketed as criminal case No. H-77249. Upon being newly arraigned,
the petitioner filed a written answer invoking the defense of double
jeopardy in his favor, contending that he could not again be tried for
the same offense with which he had been charged in the first
information which culminated in a dismissal rendered against his will.
On July 3, 1937, the municipal court overruled the defense of double
jeopardy and ordered an immediate trial. The attorney for the
petitioner excepted to the order overruling the defense of double
jeopardy and gave notice of his intention to appeal, but the municipal
court did not expedite the appeal, informing the petitioner that he
could perfect it after the trial and the rendition of final judgment,
in case the same should be one of conviction. The municipal court
ordered the first witness for the prosecution called, but before the
latter could begin to testify, the fiscal announced that the petitioner
was absent from the session hall, notwithstanding the fact that he had
been notified of the trial, whereupon the court confiscated his bond
and ordered his arrest. At this stage of the case, the petitioner
instituted the present proceeding and prays that the orders overruling
his defense of double jeopardy and directing the confiscation of his
bond and his arrest be set aside, and that it be declared that he can
not again be tried upon the second information.

I. The petitioner contends that he was placed in double jeopardy
of conviction of the same offense when he was arraigned anew, for the
reason that in the second information he is charged with the same
violation of ordinance alleged in the first information, which case was
dismissed without his consent and at the instance of the fiscal. The
municipal court, upon overruling said defense, expressed its opinion
that the petitioner was not placed in jeopardy by the first trial, on
the ground that the first information was invalid and insufficient in
substance. Section 28 of General Orders, No. 58 provides:

“SEC. 28. A person cannot be tried for an offense,
nor for any attempt to commit the same or frustration thereof, for
which he has been previously brought to trial in a court of competent
jurisdiction, upon a valid complaint or information or other formal
charge sufficient in form and substance to sustain a conviction, after
issue properly joined, when the case is dismissed or otherwise
terminated before judgment without the consent of the accused.”

According to this legal provision, in order that an accused may
invoke the defense of double jeopardy, he must prove: (1) that he has
been previously brought; to trial; (2) in a court of competent
jurisdiction; (3) upon a valid complaint or information sufficient in
form and substance; (4) for the same offense or an attempt to commit
the same or frustration thereof; (5) that the case has been dismissed
or terminated after he had pleaded to the information but before
judgment was rendered, and (6) that the case has been dismissed or
otherwise terminated without his consent (Kepner vs. U. S., 195 U. S., 100; U Phil., 669; Julia vs. Sotto, 2 Phil., 247; U. S. vs. Padilla, 4 Phil., 511; U. S. vs. Parcon, 6 Phil., 632; Grafton vs. U. S., 206 U. S., 333; 11 Phil., 776; U. S. vs. Rubin, 28 Phil., 631; U. S. vs.
Macalingag, 31 Phil., 316). In view of the admitted facts, this court
is of the opinion and so holds that all the conditions required by law
were present in this case.

II. Nobody denies that the petitioner was tried upon the first
information. Neither is it doubted that the petitioner had already
answered the information by pleading not guilty when the case was
dismissed, said dismissal having been ordered by the municipal court
without his consent after his attorney had filed his opposition to the
fiscal’s motion for dismissal.

III. The jurisdiction of the municipal court to take cognizance of
the first information is admitted by the parties and it is
unquestionable because the penalty prescribed by the Revised Ordinances
for the alleged violation is a fine not exceeding P200 or imprisonment
for a period not exceeding six (6) months, or both such fine and
imprisonment, at the discretion of the court.

IV. The sufficiency of the first information both in form and
substance cannot be denied. The allegations thereof clearly indicate
that the petitioner was charged with commission of the violation
defined and punished by section 821 of the Revised Ordinances of the
City of Manila. It will be seen from a careful reading of the terms
thereof that the fiscal has employed almost exactly the same language
of section 821. The municipal court was of the opinion that the error
in the name of the offended party was a substantial defect which
invalidated the information, but such opinion is erroneous and
untenable because according to section 7 of General Orders, No. 58, an
erroneous allegation as to the name of the person injured shall be
deemed immaterial and it has been so held by this court in the cases of
United States vs. Kepner (1 Phil., 519), and United States vs.
Lahoylahoy and Madanlog (38 Phil., 330). In fact the municipal court
should have allowed the amendment applied for, although without it the
fiscal could have proceeded with the trial and presented evidence
tending to show that the offended party was Aurea Almazan and not K.
Severien.

V. That the violations described in the two informations are
identical or the same, is another incontrovertible proposition. The
fiscal himself admitted the identity of the violations alleged in the
two informations when he formulated the motion to amend the first one
and expressed his desire to correct the error as to the name of the
offended party by substituting that of K. Severien by that of Aurea
Almazan. Both informations are couched in the same terms, with the
exception of the names of the offended party. Under these
circumstances, it is absurd to claim that the petitioner was charged
with a different violation in the second information. One of the rules
established by the writers for determining the question whether or not
the offense charged in a second information is distinct from that
charged in the previous one, and whether or not it is embraced therein,
is that we should take into account whether or not conviction could be
had under the first information upon evidence of the facts alleged in
the second (Bishop’s Criminal Law, volume 1, page 1052; U. S. vs.
Arcos, 11 Phil., 555, 561). If the evidence prepared by the fiscal in
support of the second information had been presented to substantiate
the first, there is no doubt that it could have brought about the
conviction of the petitioner because the variance in the name of the
offended party would have been immaterial, and the fiscal could have
insisted in proving that the real offended party was Aurea Almazan and
not K. Severien (sec. 7, General Orders, No. 58; U. S. vs. Kepner, supra; U. S. vs. Lahoylahoy and Madanlog, supra).

VI. The respondent argues that the defense of double jeopardy
interposed by the petitioner is, at any rate, untenable, because he has
failed to prove it. She contends that the same has not been proven
because the petitioner has not presented the record of the municipal
court to which the first information is attached. This court is of the
opinion and so holds that the contention is unfounded because, while
the doctrine is already settled in this jurisdiction that such defense
must be proven, it appears, however, that it required no proof in this
case on the ground that all the facts constituting said defense were
admitted by the parties, and the municipal court itself had complete
knowledge thereof, they having taken place almost successively within a
very short period of time. At any rate, the respondent does not claim
in her answer that the facts relative to the defense have not taken
place, as alleged by the petitioner.

VII. Lastly, the respondent contends that the petition filed by the
petitioner does not lie because he could still appeal from the judgment
to be rendered, if the same were one of conviction. In answer, suffice
it to state that the appeal suggested would not be an effective or
adequate remedy (section 217, Code of Civil Procedure).

For the foregoing reasons, the remedy applied for is granted, the
petitioner is declared in double jeopardy in criminal case No. Hr-77249
of the municipal court of the City of Manila, and the order of said
municipal court confiscating the petitioner’s bond and directing his
arrest is set aside, without special pronouncement as to costs. So
ordered.

Avancena, C. J., Abad Santos, and Laurel, JJ., concur.

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DIAZ, J.,

I regret to have to dissent from the majority opinion.

To decide the question whether or not double jeopardy exists, it
should first be ascertained and determined whether the evidence to be
presented in the second case for the purpose of establishing, with
probable success, that the offense imputed therein has been committed,
could have brought about the same result, that is, the conviction of
the accused, if the first case instituted against him, which was
discontinued by reason of ‘one of the causes enumerated in section 28
of General Orders, No. 58, had been prosecuted to its final
termination. Naturally, I refer to a first case where, as in the case
under consideration, (a) the court in which it was instituted was competent to take cognizance thereof; (b) the information with which it was commenced was valid; (c) the accused was duly arraigned, and (d) said accused pleaded “not guilty” thereby expediting the case for due trial and the corresponding decision (People vs.
Ylagan, 58 Phil., 851). If the answer must be in the affirmative, then
double jeopardy exists, in which case the second cause, that is, the
subsequent one, cannot be proceeded with. (People vs. Martinez, 55 Phil., 6; People vs. Alvarez, 45 Phil., 472.)

In no case can the defense of double jeopardy prosper when there is
no positive and clear evidence to the effect that the offense charged
in the information filed in one case, which has been dismissed or
otherwise terminated without the consent of the accused, is the same as
the one charged in the subsequent case. (U. S. vs. Claveria, 29 Phil., 527.)

I am of the opinion that the requisites of double jeopardy, as this
defense has been interpreted and understood in the cases above-cited,
are not present in the case of the defense now adduced by the
petitioner before this court, which defense, in my judgment, is
certainly not and cannot be double jeopardy. It is not double jeopardy
because the evidence that could be presented against him in the last
case (case No. H-77249) in support of the charge imputed against him
therein, would not be competent or admissible to prove the charge
imputed against him in the first, that is, the case that was dismissed
over his opposition (case No. H-74598), for the simple reason that the
person claimed to be the offended party in this last mentioned case is K. Severien, a man, and not Aurea Almazan, a woman.

The error committed in the allegation of the name of the offended
party in the first information (case No. H-74598), was not merely one
of form, which could have very well been corrected even without the
consent of the petitioner, but a substantial error, because, had the
trial been proceeded with and had it been proven therein that the
offended party was not K. Severien but Aurea Almazan, in no way could a
judgment of conviction have been obtained against him, as it could not
have been possible not to take into account the circumstance alleged in
the info’rmation that the act imputed therein was “to her (K.
Severien’s) annoyance,” and not “to the annoyance of Aurea Almazan.”
Furthermore, it could not have been possible to prove that the offended
party was Aurea Almazan, because the petitioner would have opposed—and
rightly so—every attempt to do so, by alleging as his ground that the
evidence must necessarily agree with the allegation. This is reasonably
deduced from his own attitude in opposing, as he did, the fiscal’s
petition to amend the information.

Section 821 of the Revised Ordinances of the City of Manila, by
virtue of which both the first and the second information in question
were filed against the petitioner, reads as follows:

“No person shall be drunk or intoxicated, or behave
in a drunken, boisterous, rude, or indecent manner, in any public
place, or place open to public view; or be drunk or intoxicated, or
behave in a drunken, boisterous, rude, or indecent manner in any place
or premises, to the annoyance of another person.”

For the purposes of said provision of the municipal ordinance, I do
not think it is the same that the act prohibited therein be committed
to the vexation, molestation or “annoyance,” according to the English
text, of A or of B, two different persons, as are K. Severien and Aurea
Almazan in the case under consideration, since, according to the
record, the latter is a servant of the former.

I do not ignore the doctrine laid down in the Kepner case where it
is stated that where the complaint sufficiently identifies the act
complained of, a defect in naming the party prejudiced is a mere defect
of form and is not vital. Neither do I ignore the requisites
prescribed, by law in order that an information may be considered
sufficient (sec. 6, No. 5, and sec. 7, of General Orders, No. 58).
However, I ask: Has not this court held in the case of United States vs.
Lahoylahoy and Madanlog (38 Phil., 330), in interpreting said
provisions of law, that the data omitted in the information (name of
the real party aggrieved by the robbery) is substantial, because
without it the accused would not be sufficiently informed of the
offense imputed to him, thereby not giving to the information the
import it is desired to be given to it by law, which is that it should
serve as a means of informing the accused of the true offense with
which he stands charged, in order to enable him to defend himself, and
not as a means of concealing it? Furthermore, if, as everybody knows,
jeopardy means the risk one incurs of being convicted of an offense,
inasmuch as the petitioner never incurred such risk by reason of the
first case filed against him, because, without the amendment proposed
by the fiscal, in no way could he have been found guilty of the
violation of municipal ordinance with which he was charged, why should
said defense now be sustained in his favor in the second case against
him? For all these considerations, and following the same ruling laid
down in the cases of Reynolds vs. State (124 S. W., 931); U. S. vs. Aurandt (27 L. R. A., 1181; 107 Pac, 1064); and in 16 Corpus Juris, 243, Wherein it was stated that:

“A plea of former jeopardy cannot be sustained
where the indictment in the former case did not contain the recitals
necessary to charge the offense, * * *.

“Where in a
prosecution for assault, accused had previously been acquitted because
of a variance in the name of the person assaulted, such! acquittal did
not constitute jeopardy, preventing a subsequent conviction for the same offense.

“* * * There as, however, no former jeopardy where the testimony
necessary to sustain the latter charge would not be admissible to
sustain the former.”

I arrive at the conclusion that the remedy of certiorari applied
for by the petitioner should be denied him. In this sense do I cast my
vote.

VILlA-REAL AND CONCEPCION, JJ.:

We concur in the foregoing dissenting opinion of Justice Diaz.