GR Nos.

L-6687 and L-6688 July 29, 1954

THE PEOPLE OF THE PHILIPPINES, complainant-appellant,

vs.
ANG CHO KIO, aka KI WA, aka LUCIO LEE, aka PHILIP ANG, aka Mr. ANG, aka GO ONG,
and aka Mr. ONG,accused-appellant.

The Attorney General Mr. Juan R. Liwag and the Attorney Mr. Jose Bautista on behalf of the
appellant.
Messrs. Francisco Reyes, F. Lardizabal and S. Pañonil in representation of the appellee.

PABLO, J .:

The complaint in the first case is of the following tenor:

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 inflicting gunshot wound on his (Eduardo Diago)
body and as a result of said Eduardo Diago died instantly.

Contrary to law.

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

The complaint in the second case 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 the
Philippine Air Line Plane PI-C-38 enroute from Laoag to Aparri While the said plane was flying
over Mountain 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 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 feloniously, shot said Pedro Perlas,thus inflicting gunshot wounds on the different parts of
his (Pedro Perlas) body and as a result of said Pedro Perlas died instantly.

All contrary to law.

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

Informed the accused of the two complaints with the assistance of their lawyers, pleaded guilty. The
Court condemned him in the first case to twelve (12) years of major prison as a minimum to twenty
(20) years of maximum temporary imprisonment, with compensation to the heirs of Eduardo Diago in
the sum of P6,000 and costs. In the second case, the Court ordered him to receive life imprisonment ,
with compensation to the heirs of Pedro Perlas in the sum of P6,000 and costs. The motion for
reconsideration filed in these cases, alleging that the lower court failed to impose in the first case the
penalty of life imprisonment and in the second death, have been denied by the lower court, so the
provincial prosecutor presented an appeal .
The Attorney General argues in his argument that the lower court committed error, in the first case, by
not declaring compensated the aggravating circumstance of premeditation with the extenuating
spontaneous declaration of guilt and by not imposing the defendant the penalty of life
imprisonment 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.

The contention of the Public Prosecutor's Office in the first case is well-founded. Since the
aggravating circumstance of premeditation is compensated with the mitigation of the declaration of
guilt, the accused must be imposed the penalty provided by article 248 of the Revised Penal Code in
its medium degree, that is to say, life imprisonment .

As for the second case, the defendant forced the pilot Pedro Perlas to direct the airplane from Laoag
to Amoy instead of taking it to Aparri and, as a result of fulfilling such an illegal requirement, the
defendant shot him several revolver shots. The crime committed - contends the Attorney General - is
the complex crime of serious coercion with murder, and the death penalty. This claim is baseless.

Said article provides that "In the event that a single act constitutes two or more crimes or when one of
them is necessary to commit the other, the penalty corresponding to the most serious crime shall be
imposed, applying it to its maximum extent."

The defendant forced the aviator Pedro. Pearls to change the direction of the airplane, and as I did
not fulfill his order I kill him; the defendant executed two different facts, and not one; therefore, these
two successive acts can not constitute the complex crime of coercion with murder. If the aviator had
followed the order of the accused, he would not have had to kill him; the pilot was put on the hard
alternative of fulfilling the order, or dying. Elaviador did not want to be disloyal to his obligation, and
was killed.

The defendant could have deprived Pedro Perlas of his life without having to force him to change the
direction of the airplane; Coercion to commit murder was not indispensable. Nor was it indispensable
to assassinate to commit coercion, quite the contrary; for having murdered the pilot, the defendant did
not obtain his desire to reach Amoy: he committed two acts that consisted of the crimes of coercion
and murder murder.

"The one who smoothes the dwelling of others, making the door surrender by force of blows and
closes it, and, already in it, kills the woman who resides there, and with whom he had previously had
illicit relations," does not commit complex crime of housing training with homicide. The accused must
be imposed the penalty corresponding to each of the crimes. (Judgment of January 24, 1881.) (2
Viada, 5th ed., 613.)

"Present at night two subjects in the dwelling of a third, knock on the door, and asking the owner they
wanted, answer that enjoy her and her daughter, not having opened, penetrate the force, mistreat
and beat the dwellers , causing serious and minor injuries, taking away, some fectos valued at less
than 10 pesetas: "Defendants do not commit the crimes of burglary with violence and intimidation,
serious injuries, minor injuries and theft. Article 88 should be applied and not Article 90 dealing with
complex crime. (Judgment of February 10, 1885.) (2 Viada, 5. toed .; 614-615.) There is imposed
upon the defendant therefore the death penalty.

Can the public prosecutor appeal? Article 2 of Rule 118 reads as follows:

Quen can appeal . - The People of the Philippines, however, or may appeal when the accused
was exposed to double jeopardy . In all other cases, either party may appeal a final judgment
or a ruling issued after the judgment that affects 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, the Anglo precedents -
Americans should be kept in mind.

In a long list of decisions after the Kepner's case against the United States, 195 US, 100; 11
JUR. Phil., 689, has been established invariably by this Court the doctrine that the accusation can not
appeal against a sentence in which the accused is acquitted, for the reason that for the second time
he is put in danger of being punished by the same crime. "The American common law also prohibited
a second trial for the same offense had the accused suffered or not some punishment, or was
absolved or convicted in a previous quasi."

In the United States case against Sanges, quoted in Kepner's, it was said: "From the time of the Lord
Hale to the date of Chadwick's case that we have just quoted, textbooks, with rare exceptions, take
for granted or state that the accused, (or his representative), is the only one who can obtain a new
trial to appeal in cassation in a criminal case, and a judgment in his favor is definite and conclusive
(See 2 Hawk., c.47, Section 12, Section 50, Sections 10 and Sections, Bac.Ab. Trial, L. 9, Error, B, 1
Chit, Crim. Law, 657, 747, Stark, Crim. PI. (Second Edition), 357 , 367, 371, Archb. Crim. Pl.,.

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

"...` No cassation appeal has been given against a judgment in favor of the accused, after being
acquitted. ' (Arcbold Cr. PI & PR., Pomery's Ed., 199).

"No error, however, flagrant, committed by the court against the state, may be reserved by it for
decision by the supreme court when the defendant has been placed in jeopardy and discharged,
even though the result was the result of the error committed State vs. Rook, 49 LRA 186, 61, Kan.
382, 59 Pac. 653. (1 LRA 242.)

This Court has never resolved a question similar to the present case in which the defendant was
convicted of a lesser penalty than that indicated by law and the prosecution, on appeal, requests that,
in accordance with the Revised Penal Code, be imposed on the accused a greater penalty. If the
prosecutor - like the defendant - can appeal to correct an error of law, then it will be forced to impose
on the defendant the penalty of life imprisonment . After having been and - by mistake - condemned
by the court lower than the penalty of 12 years of imprisonment greater than 20 years
of temporary confinementIs not it to put the accused back in danger of being sentenced to a greater
penalty for the same crime? If the defendant was the appellant, he would not have the right to
complain if a greater penalty were imposed on him, in the present case the appellant is the
prosecutor's office, and that appeal puts the accused in danger of receiving another major
sentence. We believe that in the present case the defendant is placed in double jeopardy , that is, in
danger of receiving the sentence of life imprisonment after having already been sentenced by the
lower court to a lesser penalty. Because of this danger, the prosecution can not appeal, in
accordance with Article 2 of Rule 118 and following the constitutional guarantee that "a person will not
be put in danger of being punished twice for the same offense" on Jeopardy .

The appeal is dismissed.

Paras, Pres., Padilla, Montemayor, Reyes, A., Juice, Baptist Angelo, Labrador, Concepcion and
Reyes, JBL, 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 or 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 here inaugurated by 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 according to specific statutory direction (CJS Vol. 24 pp. 262 , 263 and
cases cited) not embodied in the set of Philippine laws.