9/14/2019 PHILIPPINE REPORTS ANNOTATED VOLUME 067

[No. 46428. April 13, 1939]

THE PEOPLE OF THE PHILIPPINES, plaintiff and

appellee, vs. IRINEO TUMLOS, defendant and appellant.

1. CRIMINAL LAW; THEFT OF CATTLE; INDIVISIBILITY

OF THE OFFENSE.—The theft of the thirteen cows
committed by the defendant took place at the same time
and in the same place; consequently, he performed but one
act. The fact that eight of said cows pertained to one
owner and five to another does not make him criminally
liable for two distinct offenses, for the reason that in such
case the act must be divided into two, which act is not
susceptible of division.

2. ID. ; ID. ; ID. ; INDIVISIBILITY OF THE CRIMINAL

INTENT.—The intention was likewise one, namely, to
take for the purpose of appropriating or selling the
thirteen cows which he found grazing in the same place.
As neither the intention nor the criminal act is susceptible
of division, the offense arising from the concurrence of its
two constituent elements cannot be divided, it being
immaterial that the subject matter of the offense is
singular or plural, because whether said subject matter be
one or several animate or inanimate objects, it is but one.

3. ID. ; ID. ; ID. ; ID. ; JEOPARDY.—Therefore, as the five

cows alleged to be stolen by I. T. were integral parts of the
thirteen cows which were the subject matter of theft, and
as he had already been tried for and convicted of the theft
of eight, he cannot now be convicted of the theft of the
other five.

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VOL. 67, APRIL 13, 1939 321

People vs. Tumlos.

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ID.; ID.; ID. ; ID. ; ID.—Wherefore, as he had already been

4.
put in jeopardy of being convicted of the theft of the five
cows in question when he was tried for and convicted of
the theft of the eight which together with the five form an
integral part of the thirteen which were the subject matter
of the offense, the conviction of the herein defendant I. T.
for the said five cows in the present case would be the
second, in violation of his constitutional right not to be
punished twice for the same offense; hence, he is acquitted
of the charge, which is dismissed, with costs de oficio.

APPEAL from a judgment of the Court of First Instance of

Iloilo, Barrios, J.
The facts are stated in the opinion of the court.
Marcelo Nubla for appellant,
Solicitor-General Ozaeta and Acting Assistant Attorney
Kahn for appellee.

VlLLA-REAL, J.:

The defendant Irineo Tumlos appeals to this court from the

judgment of the Court of First Instance of Iloilo finding him
guilty of the crime of theft of large cattle defined and
punished in article 310, in relation to article 309, of the
Revised Penal Code, and sentencing him to suffer the
indeterminate penalty of from two months and one day of
arresto mayor to two years, four months and one day of
prisión correccional, with the accessories prescribed by law
and costs, by virtue of an information reading as follows:

"The undersigned acting provincial fiscal accuses Irineo Tumlos of

the crime of qualified theft committed as follows:
"That on or about November 21, 1937, in the municipality of
Sara, Province of Iloilo, Philippines, and within the jurisdiction of
this court, said defendant, wilfully and without using force upon
things or violence or intimidation against persons, took, with
intent to gain and without the consent of their owner, five cows
valued at P39 and belonging to Ambrosio Pecasis.
"An act punishable by law.
"Iloilo, July 11, 1938."

In support of his appeal the appellant assigns as the only

error allegedly committed by the lower court in the
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322 PHILIPPINE REPORTS ANNOTATED

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People vs. Tumlos.

aforesaid judgment its failure to sustain the defense of

"autrefois convict" or double jeopardy, interposed by said
defendant.
On or about November 21, 1937, eight cows belonging to
Maximiano Sobrevega and five belonging to his son-in-law,
Ambrosio Pecasis, then grazing together in the barrio of
Libong-cogon, municipality of Sara, Province of Iloilo, were
taken by the herein defendant without the knowledge or
consent of their respective owners. The deputy fiscal of
lloilo filed on July 11, 1938, an information against the said
defendant for the offense of theft of the eight cows
belonging to Maximiano Sobrevega, which resulted in his
being sentenced, on July 15, 1938, to an indeterminate
penalty of from one year, eight months and twenty-one
days to five years, five months and eleven days of prisión
correccional, with the accessories prescribed by law and
costs. In the information filed in the present case the same
defendant is charged with the theft of five cows belonging
to Ambrosio Pecasis, committed on November 21, 1937, the
date of the commission of the theft of the eight cows of
Maximiano Sobrevega charged in the previous information.
The question to be decided in the present appeal is
whether or not the conviction of the accused for the theft of
the eight cows belonging to Maximiano Sobrevega
constitutes a bar to his conviction for the theft of the five
cows belonging to Ambrosio Pecasis, which were grazing
toge ther with the aforesaid eight cows belonging to
Maximiano Sobrevega in the same place from which they
were stolen at the same time, under the legal procedural
principle of "autrefois convict" or double jeopardy.
The theft of the thirteen cows committed by the
defendant took place at the same time and in the same
place; consequently, he performed but one act. The fact
that eight of said cows pertained to one owner and five to
another does not make him criminally liable for two
distinct offenses, for the reason that in such case the act
must be divided into two, which act is not susceptible of
division,
The intention was likewise one, namely, to take for the
purpose of appropriating or selling the thirteen cows which
323

VOL. 67, APRIL 14, 1939 323

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Fidelity and Surety Company of the Philippine Islands vs.

Sanchez.

he found grazing in the same place. As neither the

intention nor the criminal act is susceptible of division, the
offense arising from the concurrence of its two constituent
elements cannot be divided, it being immaterial that the
subject matter of the offense is singular or plural, because
whether said subject matter be one or several animate or
inanimate objects, it is but one.
Therefore, as the five cows alleged to be stolen by Irineo
Tumlos were integral parts of the thirteen cows which were
the subject matter of theft, and as he had already been
tried for and convicted of the theft of eight, he cannot now
be convicted of the theft of the other five.
Wherefore, as he had already been put in jeopardy of
being convicted of the theft of the five cows in question
when he was tried for and convicted of the theft of the eight
which together with the five form an integral part of the
thirteen which were the subject matter of the offense, the
conviction of the herein defendant Irineo Tumlos for the
said five cows in the present case would be the second, in
violation of his constitutional right not to be punished twice
for the same offense; hence, he is acquitted of the charge,
which is dismissed, with costs de oficio. So ordered.

Avanceña, C. J., Imperial, Diaz, Laurel, Concepcion,

and Moran, JJ., concur.

Defendant acquitted.

_____________

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