Republic of the Philippines

SUPREME COURT
Manila

FIRST DIVISION

G.R. No. L-45129 March 6, 1987

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
THE HONORABLE BENJAMIN RELOVA, in his capacity as Presiding Judge of the Court of
First Instance of Batangas, Second Branch, and MANUEL OPULENCIA, respondents.

FELICIANO, J.:

In this petition for certiorari and mandamus, the People of the Philippines seek to set aside the
orders of the respondent Judge of the Court of First Instance of Batangas in Criminal Case No. 266,
dated 12 August 1976 and 8 November 1976, respectively, quashing an information for theft filed
against private respondent Manuel Opulencia on the ground of double jeopardy and denying the
petitioner's motion for reconsideration.

On 1 February 1975, members of the Batangas City Police together with personnel of the Batangas
Electric Light System, equipped with a search warrant issued by a city judge of Batangas City,
searched and examined the premises of the Opulencia Carpena Ice Plant and Cold Storage owned
and operated by the private respondent Manuel Opulencia. The police discovered that electric
wiring, devices and contraptions had been installed, without the necessary authority from the city
government, and "architecturally concealed inside the walls of the building" 1 owned by the private respondent.
These electric devices and contraptions were, in the allegation of the petitioner "designed purposely to lower or decrease the readings of
electric current consumption in the electric meter of the said electric [ice and cold storage] plant." 2 During the subsequent investigation,
Manuel Opulencia admitted in a written statement that he had caused the installation of the electrical devices "in order to lower or decrease
the readings of his electric meter. 3

On 24 November 1975, an Assistant City Fiscal of Batangas City filed before the City Court of
Batangas City an information against Manuel Opulencia for violation of Ordinance No. 1, Series of
1974, Batangas City. A violation of this ordinance was, under its terms, punishable by a fine "ranging
from Five Pesos (P5.00) to Fifty Pesos (P50.00) or imprisonment, which shall not exceed thirty (30)
days, or both, at the discretion of the court."   This information reads as follows:
4

The undersigned, Assistant City Fiscal, accuses Manuel Opulencia y Lat of violation
of Sec. 3 (b) in relation to Sec. 6 (d) and Sec. 10 Article II, Title IV of ordinance No. 1,
S. 1974, with damage to the City Government of Batangas, and penalized by the
said ordinance, committed as follows:

That from November, 1974 to February, 1975 at Batangas City, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, with intent
to defraud the City Government of Batangas, without proper authorization from any
lawful and/or permit from the proper authorities, did then and there wilfully, unlawfully
and feloniously make unauthorized installations of electric wirings and devices to
lower or decrease the consumption of electric fluid at the Opulencia Ice Plant
situated at Kumintang, Ibaba, this city and as a result of such unathorized
installations of electric wirings and devices made by the accused, the City
 Government of Batangas was damaged and prejudiced in the total amount of
FORTY ONE THOUSAND, SIXTY TWO PESOS AND SIXTEEN CENTAVOS
(P41,062.16) Philippine currency, covering the period from November 1974 to
February, 1975, to the damage and prejudice of the City Government of Batangas in
the aforestated amount of P41,062.16, Philippine currency.

The accused Manuel Opulencia pleaded not guilty to the above information. On 2 February 1976, he
filed a motion to dismiss the information upon the grounds that the crime there charged had already
prescribed and that the civil indemnity there sought to be recovered was beyond the jurisdiction of
the Batangas City Court to award. In an order dated 6 April 1976, the Batangas City Court granted
the motion to dismiss on the ground of prescription, it appearing that the offense charged was a light
felony which prescribes two months from the time of discovery thereof, and it appearing further that
the information was filed by the fiscal more than nine months after discovery of the offense charged
in February 1975.

Fourteen (14) days later, on 20 April 1976, the Acting City Fiscal of Batangas City filed before the
Court of First Instance of Batangas, Branch 11, another information against Manuel Opulencia, this
time for theft of electric power under Article 308 in relation to Article 309, paragraph (1), of the
Revised Penal Code. This information read as follows:

The undersigned Acting City Fiscal accuses Manuel Opulencia y Lat of the crime of
theft, defined and penalized by Article 308, in relation to Article 309, paragraph (1) of
the Revised Penal Code, committed as follows:

That on, during, and between the month of November, 1974, and the 21st day of
February, 1975, at Kumintang, lbaba, Batangas City, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, with intent of gain
and without the knowledge and consent of the Batangas Electric Light System, did
then and there, wilfully, unlawfully and feloniously take, steal and appropriate electric
current valued in the total amount of FORTY ONE THOUSAND, SIXTY TWO
PESOS AND SIXTEEN CENTAVOS (P41,062.16) Philippine Currency, to the
damage and prejudice of the said Batangas Electric Light System, owned and
operated by the City Government of Batangas, in the aforementioned sum of
P41,062.16.

The above information was docketed as Criminal Case No. 266 before the Court of First Instance of
Batangas, Branch II. Before he could be arraigned thereon, Manuel Opulencia filed a Motion to
Quash, dated 5 May 1976, alleging that he had been previously acquitted of the offense charged in
the second information and that the filing thereof was violative of his constitutional right against
double jeopardy. By Order dated 16 August 1976, the respondent Judge granted the accused's
Motion to Quash and ordered the case dismissed. The gist of this Order is set forth in the following
paragraphs:

The only question here is whether the dismissal of the first case can be properly
pleaded by the accused in the motion to quash.

In the first paragraph of the earlier information, it alleges that the prosecution
"accuses Manuel Opulencia y Lat of violation of Sec. 3(b) in relation to Sec. 6(d) and
Sec. 10 Article II, Title IV of Ordinance No. 1, s. 1974, with damage to the City
Government of Batangas, etc. " (Emphasis supplied). The first case, as it appears,
was not simply one of illegal electrical connections. It also covered an amount of
P41,062.16 which the accused, in effect, allegedly with intent to defraud, deprived
 the city government of Batangas. If the charge had meant illegal electric installations
only, it could have alleged illegal connections which were done at one instance on a
particular date between November, 1974, to February 21, 1975. But as the
information states "that from November, 1974 to February 1975 at Batangas City,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused with intent to defraud the City Government of Batangas, without proper
authorization from any lawful and/or permit from the proper authorities, did then and
there wilfully, unlawfully and feloniously make unauthorized installations of electric
wirings and devices, etc." (Emphasis supplied), it was meant to include the P
41,062.16 which the accused had, in effect, defrauded the city government. The
information could not have meant that from November 1974 to 21 February 1975, he
had daily committed unlawful installations.

When, therefore, he was arraigned and he faced the indictment before the City
Court, he had already been exposed, or he felt he was exposed to consequences of
what allegedly happened between November 1974 to February 21, 1975 which had
allegedly resulted in defrauding the City of Batangas in the amount of P 41,062.16.
(Emphases and parentheses in the original)

A Motion for Reconsideration of the above-quoted Order filed by the petitioner was denied by the
respondent Judge in an Order dated 18 November 1976.

On 1 December 1976, the present Petition for certiorari and mandamus was filed in this Court by the
Acting City Fiscal of Batangas City on behalf of the People.

The basic premise of the petitioner's position is that the constitutional protection against double
jeopardy is protection against a second or later jeopardy of conviction for the same offense. The
petitioner stresses that the first information filed before the City Court of Batangas City was one for
unlawful or unauthorized installation of electrical wiring and devices, acts which were in violation of
an ordinance of the City Government of Batangas. Only two elements are needed to constitute an
offense under this City Ordinance: (1) that there was such an installation; and (2) no authority
therefor had been obtained from the Superintendent of the Batangas City Electrical System or the
District Engineer. The petitioner urges that the relevant terms of the City Ordinance — which read as
follows:

Section 3.-Connection and Installation

(a) x x x

(b) The work and installation in the houses and building and their connection with the
Electrical System shall be done either by the employee of the system duly authorized
by its Superintendent or by persons adept in the matter duly authorized by the
District Engineer. Applicants for electrical service permitting the works of installation
or connection with the system to be undertaken by the persons not duly authorized
therefor shall be considered guilty of violation of the ordinance.

would show that:

The principal purpose for (sic) such a provision is to ensure that electrical
installations on residences or buildings be done by persons duly authorized or adept
in the matter, to avoid fires and accidents due to faulty electrical wirings. It is
 primarily a regulatory measure and not intended to punish or curb theft of electric
fluid which is already covered by the Revised Penal Code.  5

The gist of the offense under the City Ordinance, the petitioner's argument continues, is the installing
of electric wiring and devices without authority from the proper officials of the city government. To
constitute an offense under the city ordinance, it is not essential to establish any mens rea on the
part of the offender generally speaking, nor, more specifically, an intent to appropriate and steal
electric fluid.

In contrast, the petitioner goes on, the offense of theft under Article 308 of the Revised Penal Code
filed before the Court of First Instance of Batangas in Criminal Case No. 266 has quite different
essential elements. These elements are:

1. That personal property be taken;

2. That the personal property (taken) belongs to another;

3. That the taking be done with intent of gain;

4. That the taking be done without the consent of the owner; and

5. That the taking be accomplished without violence against or intimidation of

persons or force upon things.  6

The petitioner also alleges, correctly, in our view, that theft of electricity can be effected even without
illegal or unauthorized installations of any kind by, for instance, any of the following means:

1. Turning back the dials of the electric meter;

2. Fixing the electric meter in such a manner that it will not register the actual
electrical consumption;

3. Under-reading of electrical consumption; and

4. By tightening the screw of the rotary blade to slow down the rotation of the same.  7

The petitioner concludes that:

The unauthorized installation punished by the ordinance [of Batangas City] is not the
same as theft of electricity [under the Revised Penal Code]; that the second offense
is not an attempt to commit the first or a frustration thereof and that the second
offense is not necessarily included in the offense charged in the first inforrnation  8

The above arguments made by the petitioner are of course correct. This is clear both from the
express terms of the constitutional provision involved — which reads as follows:

No person shall be twice put in jeopardy of punishment for the same offense. If an

act is punished by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act. (Emphasis supplied; Article
IV (22), 1973 Constitution)  9
and from our case law on this point. 10 The basic difficulty with the petitioner's position is that it must be examined, not under
the terms of the first sentence of Article IV (22) of the 1973 Constitution, but rather under the second sentence of the same section. The first
sentence of Article IV (22) sets forth the general rule: the constitutional protection against double jeopardy is not available where the second
prosecution is for an offense that is different from the offense charged in the first or prior prosecution, although both the first and second
offenses may be based upon the same act or set of acts. The second sentence of Article IV (22) embodies an exception to the general
proposition: the constitutional protection, against double jeopardy is available although the prior offense charged under an ordinance be
different from the offense charged subsequently under a national statute such as the Revised Penal Code, provided that both offenses
spring from the same act or set of acts. This was made clear sometime ago in Yap vs. Lutero. 11

In Yap, petitioner Manuel Yap was charged in Criminal Case No. 16054 of the Municipal Court of
Iloilo City, with violation of Article 14 of Ordinance No. 22, Series of 1951, in relation to Ordinance
No. 15, Series of 1954, of the City of Iloilo. The information charged him with having "wilfully,
unlawfully and feloniously drive[n] and operate[d]" an automobile — "recklessly and without
reasonable caution thereby endangering other vehicles and pedestrians passing in said street."
Three months later, Yap was again charged in Criminal Case No. 16443 of the same Municipal
Court, this time with serious physical injuries through reckless imprudence. The information charged
him with violation of the Revised Motor Vehicle Law (Act No. 3992 as amended by Republic Act No.
587) committed by driving and operating an automobile in a reckless and negligent manner and as a
result thereof inflicting injuries upon an unfortunate pedestrian. Yap moved to quash the second
information upon the ground that it placed him twice in jeopardy of punishment for the same act. This
motion was denied by the respondent municipal judge. Meantime, another municipal judge had
acquitted Yap in Criminal Case No. 16054. Yap then instituted a petition for certiorari in the Court of
First Instance of Iloilo to set aside the order of the respondent municipal judge. The Court of First
Instance of Iloilo having reversed the respondent municipal judge and having directed him to desist
from continuing with Criminal Case No. 16443, the respondent Judge brought the case to the
Supreme Court for review on appeal. In affirming the decision appealed from and holding that the
constitutional protection against double jeopardy was available to petitioner Yap, then Associate
Justice and later Chief Justice Roberto Concepcion wrote:

To begin with, the crime of damage to property through reckless driving — with which
Diaz stood charged in the court of first instance — is a violation of the Revised Penal
Code (third paragraph of Article 365), not the Automobile Law (Act No. 3992, as
amended by Republic Act No. 587). Hence, Diaz was not twice accused of a violation
of the same law. Secondly, reckless driving and certain crimes committed through
reckless driving are punishable under different provisions of said Automobile Law.
Hence — from the view point of Criminal Law, as distinguished from political or
Constitutional Law — they constitute, strictly, different offenses, although under
certain conditions, one offense may include the other, and, accordingly, once placed
in jeopardy for one, the plea of double jeopardy may be in order as regards the other,
as in the Diaz case. (Emphases in the original)

Thirdly, our Bill of Rights deals with two (2) kinds of double jeopardy. The first
sentence of clause 20, section 1, Article III of the Constitution, ordains that "no
person shall be twice put in jeopardy of punishment for the same offense."
(Emphasis in the original) The second sentence of said clause provides that "if an act
is punishable by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act." Thus, the first sentence
prohibits double jeopardy of punishment for the same offense, whereas the second
contemplates double jeopardy of punishment for the same act. Under the first
sentence, one may be twice put in jeopardy of punishment of the same act provided
that he is charged with different offenses, or the offense charged in one case is not
included in or does not include, the crime charged in the other case. The second
sentence applies, even if the offenses charged are not the same, owing to the fact
that one constitutes a violation of an ordinance and the other a violation of a statute.
If the two charges are based on one and the same act conviction or acquittal under
 either the law or the ordinance shall bar a prosecution under the other. 12 Incidentally,
such conviction or acquittal is not indispensable to sustain the plea of double jeopardy of punishment for the same
offense. So long as jeopardy has attached under one of the informations charging said offense, the defense may be
availed of in the other case involving the same offense, even if there has been neither conviction nor acquittal in either
case.

The issue in the case at bar hinges, therefore, on whether or not, under the
information in case No. 16443, petitioner could — if he failed to plead double
jeopardy — be convicted of the same act charged in case No. 16054, in which he
has already been acquitted. The information in case No. 16054 alleges, substantially,
that on the date and in the place therein stated, petitioner herein had wilfully,
unlawfully and feloniously driven and operated "recklessly and without reasonable
caution" an automobile described in said information. Upon the other hand, the
information in case No. 16443, similarly states that, on the same date and in the
same place, petitioner drove and operated the aforementioned automobile in a
"reckless and negligent manner at an excessive rate of speed and in violation of the
Revised Motor Vehicle Law (Act No. 3992), as amended by Republic Act No. 587,
and existing city ordinances." Thus, if the theories mentioned in the second
information were not established by the evidence, petitioner could be convicted in
case No. 16443 of the very same violation of municipal ordinance charged in case
No. 16054, unless he pleaded double jeopardy.

It is clear, therefore, that the lower court has not erred eventually sustaining the
theory of petitioner herein.

Put a little differently, where the offenses charged are penalized either by different sections of the
same statute or by different statutes, the important inquiry relates to the identity of offenses
charge: the constitutional protection against double jeopardy is available only where an Identity is
shown to exist between the earlier and the subsequent offenses charged. In contrast, where one
offense is charged under a municipal ordinance while the other is penalized by a statute, the critical
inquiry is to the identity of the acts which the accused is said to have committed and which are
alleged to have given rise to the two offenses: the constitutional protection against double jeopardy
is available so long as the acts which constitute or have given rise to the first offense under a
municipal ordinance are the same acts which constitute or have given rise to the offense charged
under a statute.

The question may be raised why one rule should exist where two offenses under two different
sections of the same statute or under different statutes are charged, and another rule for the
situation where one offense is charged under a municipal ordinance and another offense under a
national statute. If the second sentence of the double jeopardy provision had not been written into
the Constitution, conviction or acquittal under a municipal ordinance would never constitute a bar to
another prosecution for the same act under a national statute. An offense penalized by municipal
ordinance is, by definition, different from an offense under a statute. The two offenses would never
constitute the same offense having been promulgated by different rule-making authorities — though
one be subordinate to the other — and the plea of double jeopardy would never lie. The discussions
during the 1934-1935 Constitutional Convention show that the second sentence was inserted
precisely for the purpose of extending the constitutional protection against double jeopardy to a
situation which would not otherwise be covered by the first sentence. 13

The question of Identity or lack of Identity of offenses is addressed by examining the essential
elements of each of the two offenses charged, as such elements are set out in the respective
legislative definitions of the offenses involved. The question of Identity of the acts which are claimed
to have generated liability both under a municipal ordinance and a national statute must be
addressed, in the first instance, by examining the location of such acts in time and space. When the
acts of the accused as set out in the two informations are so related to each other in time and space
as to be reasonably regarded as having taken place on the same occasion and where those acts
have been moved by one and the same, or a continuing, intent or voluntary design or negligence,
such acts may be appropriately characterized as an integral whole capable of giving rise to penal
liability simultaneously under different legal enactments (a municipal ordinance and a national
statute).

In Yap, the Court regarded the offense of reckless driving under the Iloilo City Ordinance and serious
physical injuries through reckless imprudence under the Revised Motor Vehicle Law as derived from
the same act or sets of acts — that is, the operation of an automobile in a reckless manner. The
additional technical element of serious physical injuries related to the physical consequences of the
operation of the automobile by the accused, i.e., the impact of the automobile upon the body of the
offended party. Clearly, such consequence occurred in the same occasion that the accused
operated the automobile (recklessly). The moral element of negligence permeated the acts of the
accused throughout that occasion.

In the instant case, the relevant acts took place within the same time frame: from November 1974 to
February 1975. During this period, the accused Manuel Opulencia installed or permitted the
installation of electrical wiring and devices in his ice plant without obtaining the necessary permit or
authorization from the municipal authorities. The accused conceded that he effected or permitted
such unauthorized installation for the very purpose of reducing electric power bill. This corrupt intent
was thus present from the very moment that such unauthorized installation began. The immediate
physical effect of the unauthorized installation was the inward flow of electric current into Opulencia's
ice plant without the corresponding recording thereof in his electric meter. In other words, the
"taking" of electric current was integral with the unauthorized installation of electric wiring and
devices.

It is perhaps important to note that the rule limiting the constitutional protection against double
jeopardy to a subsequent prosecution for the same offense is not to be understood with absolute
literalness. The Identity of offenses that must be shown need not be absolute Identity: the first and
second offenses may be regarded as the "same offense" where the second offense necessarily
includes the first offense or is necessarily included in such first offense or where the second offense
is an attempt to commit the first or a frustration thereof. 14 Thus, for the constitutional plea of double jeopardy to be
available, not all the technical elements constituting the first offense need be present in the technical definition of the second offense. The
law here seeks to prevent harrassment of an accused person by multiple prosecutions for offenses which though different from one another
are nonetheless each constituted by a common set or overlapping sets of technical elements. As Associate Justice and later Chief Justice
Ricardo Paras cautioned in People vs. del Carmen et al., 88 Phil. 51 (1951):

While the rule against double jeopardy prohibits prosecution for the same offense, it
seems elementary that an accused should be shielded against being prosecuted for
several offenses made out from a single act. Otherwise, an unlawful act or omission
may give use to several prosecutions depending upon the ability of the prosecuting
officer to imagine or concoct as many offenses as can be justified by said act or
omission, by simply adding or subtracting essential elements. Under the theory of
appellant, the crime of rape may be converted into a crime of coercion, by merely
alleging that by force and intimidation the accused prevented the offended girl from
remaining a virgin. (88 Phil. at 53; emphases supplied)

By the same token, acts of a person which physically occur on the same occasion and are infused
by a common intent or design or negligence and therefore form a moral unity, should not be
segmented and sliced, as it were, to produce as many different acts as there are offenses under
municipal ordinances or statutes that an enterprising prosecutor can find
It remains to point out that the dismissal by the Batangas City Court of the information for violation of
the Batangas City Ordinance upon the ground that such offense had already prescribed, amounts to
an acquittal of the accused of that offense. Under Article 89 of the Revised Penal Code, "prescription
of the crime" is one of the grounds for "total extinction of criminal liability." Under the Rules of Court,
an order sustaining a motion to quash based on prescription is a bar to another prosecution for the
same offense. 15

It is not without reluctance that we deny the people's petition for certiorari and mandamus in this
case. It is difficult to summon any empathy for a businessman who would make or enlarge his profit
by stealing from the community. Manuel Opulencia is able to escape criminal punishment because
an Assistant City Fiscal by inadvertence or otherwise chose to file an information for an offense
which he should have known had already prescribed. We are, however, compelled by the
fundamental law to hold the protection of the right against double jeopardy available even to the
private respondent in this case.

The civil liability aspects of this case are another matter. Because no reservation of the right to file a
separate civil action was made by the Batangas City electric light system, the civil action for recovery
of civil liability arising from the offense charged was impliedly instituted with the criminal action both
before the City Court of Batangas City and the Court of First Instance of Batangas. The extinction of
criminal liability whether by prescription or by the bar of double jeopardy does not carry with it the
extinction of civil liability arising from the offense charged. In the present case, as we noted
earlier, 16 accused Manuel Opulencia freely admitted during the police investigation having stolen electric current through the installation
and use of unauthorized elibctrical connections or devices. While the accused pleaded not guilty before the City Court of Batangas City, he
did not deny having appropriated electric power. However, there is no evidence in the record as to the amount or value of the electric power
appropriated by Manuel Opulencia, the criminal informations having been dismissed both by the City Court and by the Court of First Instance
(from which dismissals the Batangas City electric light system could not have appealed 17) before trial could begin. Accordingly, the related
civil action which has not been waived expressly or impliedly, should be remanded to the Court of First Instance of Batangas City for
reception of evidence on the amount or value of the electric power appropriated and converted by Manuel Opulencia and rendition of
judgment conformably with such evidence.

WHEREFORE, the petition for certiorari and mandamus is DENIED. Let the civil action for related
civil liability be remanded to the Court of First Instance of Batangas City for further proceedings as
indicated above. No pronouncement as to costs.