Republic of the Philippines

SUPREME COURT
Manila

IN BANC

G.R. Nos. L-6687 and L-6688 July 29, 1954

THE PEOPLE OF FILIPINAS, complainant-appellant,

vs. ANG CHO KIO, alias KI WA, alias LUCIO LEE, alias PHILIP ANG, alias Mr.
ANG, alias GO NGO, and alias Mr. NGO, accused-appealed.

Attorney General Juan R. Liwag and Solicitor Mr. Jose Bautista representing the
appellant.
Mr. Francisco Reyes, F. Lardizabal and Mr. Pañonil representing the appellant.

PABLO, J.:

The complaint in the first case is worded as follows:

That on or about the 30th day of December, 1952, in Mountain Province,

Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, then a passenger of Philippine Air Line plane PI-C-38
entroute from Laoag to Aparri, and while said plane was flying over
Mountain Province, did then and there willfully, unlawfully, and feloniously,
and armed with .45 and .38 caliber pistols , with treachery and known
premeditation shot Eduardo Diago, the purser of the aforesaid plane, thus
wounding gunshot wound on his (Eduardo Diago) body and as a result
thereof said Eduardo Diago died instantly.

Contrary to law.

Baguio City, March 9, 1953 (p. 1, rec., Criminal Case No. 419).

The complaint in the second cause is as follows:.

That on or about the 30th day of December, 1952, in Mountain Province,

Philippines and within the jurisdiction of this Honorable Court, the above-
 named accused, then a passenger of Philippine Air Line Plane PI-C-38
enroute from Laoag to Aparri while the said plane was flying Mountain over
Province, did then and there willfully, unlawfully and feloniously, and
without authority of law , compel Pedro Perlas, pilot of the aforesaid plane,
against the latter's will and consent, to change the route of the plane and
take him (Accused) to Amoy, and when Pedro Perlas failed to comply
immediately with said order, said accused who was then armed with .45
and .38 caliber pistols, with treachery and known premeditation, did then
and there willfully, unlawfully and feloni , shot said Pedro Perlas, thus
wounding gunshot wounds on the different parts of his (Pedro Perlas) body
and as a result thereof said Pedro Perlas died instantly.

All contrary to law.

Baguio City, March 9, 1953 (p 1, rec., Criminal Case No. 420.).

Informed by the defendant of the two complaints with the assistance of his
lawyers, he pleaded guilty. In the first case, the Court sentenced twelve (12) year
of higher prison as a minimum of twenty (20) years of temporary relusion at most,
with compensation to the heirs of Eduardo Diago in the sum of P6,000 and costs.
In the second cause the Court sentenced him to life imprisonment, with
compensation to the heirs of Pedro Perlas in the sum of P6,000 and costs. The
motions of reconsideration filed in those cases, claiming that the lower court
erred in not imposing in the first case the penalty of perpetual relusion and in the
second case the death penalty, have been denied by the lower court, so the
provincial prosecutor filed an appeal.

The Solicitor-General contends in his pleading that the Lower Court erred, in the
first case, in not declaring compensation for the aggravating cirunstancy of
premeditation with the mitigating statement of blatant guilt and by not imposing
on the accused the penalty of perpetual relucing and, in the second case, by not
declaring that the accused committed the complex crime of serious coercion with
murder and by not imposing the death penalty on him.

The containment of the Public Prosecutor's Office in the first case is well founded.
As the aggravating premeditation cirucnstance with the mitigating guilty plea is
compensated, the sentence provided for in article 248 of the Revised Criminal
Code must be imposed on the accused to its middle degree, i.e. perpetual
relucing.

As for the second case, the defendant forced the pilot Pedro Perlas to direct the
aircraft from Laoag to Amoy instead of taking him to Aparri and, for not
complying with such an illegal request, the accused shot him several revolver
shots. The crime committed — the Attorney General contends — is the complex
crime of serious coercion with murder, and the death penalty. This pressure is
baseless.

This article provides that "In the event that a single fact constitutes two or more
offences or where one of them is necessary means to commit the other, the
penalty shall be imposed corresponding to the most serious crime, applying it to
its maximum degree."

The defendant forced aviator Pedro. Pearls to change the direction of the
airplane, and if it did not fulfill its order I kill it; the accused executed two
different facts, and not one; therefore, those two successive acts cannot
constitute the complex crime of coercion with murder. If the aviator had followed
the defendant's order, the accused would not have had to kill him; the pilot was
put in the harsh alternative of fulfilling the order, or dying. Theaviator did not
want to be disloyal to his obligation, and he was killed.

The defendant could have deprived Pedro Perlas of his life without forcing him to
change the direction of the airplane; coercion to commit murder was not
indispensable. Nor was the ase sinato indispensable to commit coercion, but quite
the opposite; for murdering the pilot, the defendant did not get his desire to
reach Amoy: he committed two acts that would criminal the crimes of coercion
and murder.

"He who raids the abode of others, causing the door to be beaten and closed
from it, and already in it, kills the woman there, and with which he had previously
had ilicite relations," he does not commit the complex crime of trespassing with
murder. The sentence for each of the offences must be imposed on the accused.
(Judgment of 24 January 1881.) (2 Viada, 5th ed., 613.)

"Two subjects appear at night in the abode of a third party; they knock on the
door, and asking the owner they wanted, they answer to enjoy her and her
daughter; having not been opened, they forcefully penetrate, mistreat and beat
the inhabitants, causing them serious and minor injuries, taking them when
leaving, some fects appraised in less than 10 pesetas: "The accused do not
commit the offences of trespassing with violence and intimidation, serious injury,
minor injuries and theft. Article 88 should apply and not Article 90 dealing with
complex crime. (Judgment of 10 February 1885.) (2 Viada, 5. a ed.; 614-615.) The
accused cannot therefore be imposed on the death penalty.

Can the tax ministry appeal? Article 2 of Rule 118 reads as follows:

Quen can appeal. — The People of the Philippines, however, or may appeal
when the accused is exposed to double jeopardy. In all other cases, either
party may appeal a final judgment or self-judgment after the judgment
affecting the appellant's essential rights.

This article is a reproduction of Articles 43 and 44 of General Order No. 58 as

amended by Article 4 of Law No. 2886. General Order No. 58 is of American origin
and, therefore, Anglo-American precedents must be taken into account.

On a long list of decisions after Kepner's case against the United States, 195 U.S.,
100; 11 JUR. Phil., 689, the Doctrine that the charge cannot appeal against a
judgment acquitting the accused has been invariably established by this Court, for
the reason that for the second time he is at risk of being punished for the same
offence. "Common American law also prohibits a second trial for the same crime
if the accused suffered or not suffered any punishment, or was acquitted or
convicted in an earlier quasa."

In the U.S. case against Sanges, cited in Kepner's, it was said: "From the time of
Lord Hale to the date of Chadwick's case we have just cited, textbooks, with rare
exceptions, or assume or claim that the accused, (or his representative), is the
only one who can get a retrial to appeal on criminal cases, and a sentence in his
favor is definite and conclusive. (See 2 Hawk., c. 47, sec. 12; c. 50, sections 10 and
following; Bac. Ab. Trial, L. 9; Error, B; 1 Chit, Crim. Law, 657, 747; Stark, Crim. Pi.
(Second Edition), 357, 367, 371, Archb. Crim. Pl..

(Duodecima English Edition and Sixth American Edition) 177, 199.)"

"...'There has been no case of appeal against a judgment on behalf of the accused,
after acquitting.' (Arcbold Cr. PI & PR., Pomery's Ed., 199).
"No mistake, however, flagrant, committed by the court against the state, can be
reserved by it for decision by the supreme court when the defendant has eleven
been placed in jeopardy and discharged, even though the discharge was the result
of the mistake committed. State vs.State Rook, 49 L.R.A. 186, 61, Kan. 382, 59
Pac. 653. (1 L. R. A. 242.)

This Court has never resolved a matter similar to the present case in which the
accused was convicted of a penalty less than that indicated by law and the public
prosecutor's office, on appeal, requests that, under the Revised Criminal Code,
the accused be imposed a longer sentence. If the prosecutor— like the accused —
can appeal to correct an error of law, then it will be forced to impose the
sentence of perpetual relusion on the accused. After being and — by mistake-
condemned by the court under the sentence of 12 years in prison greater than 20
years of temporary relusion,is it not to put the accused again in danger of being
convicted for the same offence? If the accused were the appellant, he would not
have the right to complain if a higher sentence were imposed on him, in the case
of the prosecutor's office, and that appeal endangers the accused of receiving
another major sentence. We believe that in the present case the accused is put
in double jeopardy,that is, in danger of receiving the sentence of perpetual
relusion after having already been convicted by the court of less than a lesser
sentence. For this danger, the public prosecutor's office cannot appeal, in
accordance with article 2 of Rule 118 and following the constitutional guaranty
that "a person should not be put in danger of being punished twice for the same
under-action" on en jeopardy.

The appeal is dismissed.

Paras, Pres., Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, Labrador,
Concepcion y Reyes, J.B.L., MM., concurrent.

Separate Opinions

BENGZON, J., concurring:.

I concur in the dismissal of the appeal on the ground that it places the accused in
a second jeopardy. However, as the case is not properly before this Court, we
have o business discussing the correctness of the penalty. Whether correct or not,
it must stand. In effect, therefore, we are rendering either an advisory opinion
which we are not empowered to render, or a declaratory judgment on a
controversy not covered by the rules. A practice is thereby openeded allowing the
prosecution to appeal on questions of law "for future guidance of trial courts",
without affecting the prisoner — practice which in some states is observed
pursuant to specific statutory direction (cf.C.J.S. Vol. 24 pp. 262, 263 and cases
cited) not embodied in the set of Philippine laws.