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MANUEL
SY y LIM,
G. R. No. L-37494 March 30, 1982 -versus-HON.
COURT OF APPEALS,
DE CASTRO, J.: chanroblesvirtualawlibraryPetition for Certiorari seeking the review of the Decision of the Court of Appeals[1] sustaining the Order of the Court of First Instance of Bulacan denying the Motion to Quash filed by petitioner to an information for violation of Article 188, paragraph 2 of the Revised Penal Code. It appears that petitioner was charged with violation of Article 189, paragraph 1, of the Revised Penal Code in an Information quoted as follows:
After trial, the trial court rendered judgment the dispositive portion of which reads:
The respondent Fiscal filed the Information as ordered by the trial court, alleging as follows:
To the above Information, petitioner filed a Motion to Quash alleging that it did not conform to the prescribed form; that the Court had no jurisdiction over the case because no preliminary investigation was conducted, thereby depriving accused of due process; and that the new Information would place accused in double jeopardy.[5] As already stated, this motion was denied. In the instant case, petitioner makes the following assignment of errors: 1. It is
the contention of petitioner that
by the filing of the second Information, he would be placed in double
jeopardy
because under the first Information, he could have been convicted of
the
offense charged in the second Information. Since he was acquitted under
the first Information, to charge him again for the same offense as
aforestated
would according to petitioner, constitute double jeopardy.
In advancing the above propositions, petitioner would treat the two offenses of infringement of trademark and unfair competition as separate and distinct, not as one necessarily included in, or including, the other. Upon this premise, it cannot be successfully contended that what happened with respect to the offense of infringement of trademark, assuming it was also charged in the first Information as a separate offense, is, by no manner of reasoning, one of acquittal for said offense. The trial court precisely found sufficient evidence with which to indict him for said offense and accordingly ordered the filing of a more proper Information, proceeding in accordance with Section 13 paragraph 2, of Rule 110 and Section 12, of Rule 119 of the Rules of Court, which are quoted:
In the opinion of the trial court, the first Information did not properly charge the offense of infringement of trademark, for what was expressly charged was unfair competition. In proceeding in accordance with the above quoted provisions of the Rules of Court, the trial court evidently felt it cannot properly convict the accused of infringement of trademark, although it found evidence sufficient to justify filing the proper Information for said offense. But, undoubtedly, the court found it not proper to acquit the accused of said offense. Hence, there can be no double jeopardy as to the offense charged in the second information on the ground of a prior acquittal for the same offense. It is, therefore, absolutely correct to hold that there is on the basis of the facts as stated above, no double jeopardy even on the premise that "registration" is not an essential element of the offense charged in the second Information as contended by petitioner. It becomes more so if registration is a necessary element as submitted by the Solicitor General with whom We are inclined to agree, although an express ruling on the matter need no longer be made for not being material nor decisive.cralaw:red Upon a slightly different theory, petitioner would, likewise invoke his right against double jeopardy. Thus he cites the case of U.S. vs. Lim Juco[7] which hold that after conviction for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy. He also cites another case[8] for the proposition that the charge in the second Information for an act already alleged in the first Information which flowed from an identical or a single criminal intent, in this case, the single criminal act of unfair competition, should not be divided into separate crimes, as would happen if a separate crime of infringement of trademark is to be prosecuted again, More specifically, he cites the case of a charge for illegal importation of explosives as not allowing a subsequent prosecution for illegal possession of the same explosives.[9] This holds true, according to petitioner, if the description of the offense is merely changed in the second Information but which would not make for any substantial difference between the description in the first Information and that in the second Information, citing Chief Justice Moran.[10] What makes the ruling cited by petitioner not applicable to the present is that in the cases cited, acquittal was for the offense specifically charged without the trial court expressly finding that for the other offense also charged but not expressly so by the statutory designation of the offense, evidence exists to justify his being held to answer for such offense, in accordance with Section 12, Rule 119 of the Rules of Court, as the trial court in the instant case very explicitly did. It is this circumstance that, clearly and undisputably, would prevent double jeopardy to attach, for there is neither acquittal nor conviction, not even dismissal of the case, which might result in double jeopardy arising to ban the proceedings contemplated in the aforecited provisions of the Rules of Court.cralaw:red From what has been said above, the applicability of Section 13, paragraph 2 of Rule 110, in relation to Section 12, Rule 119, to the case at bar is clear. It is justified by petitioner's own theory that the offense of infringement as charged in the second Information was also sufficiently included in the first Information as a separate offense. But with respect thereto, the trial court made no decision, either of acquittal or conviction. It felt that under the Information as so worded, conviction was not legally possible obviously for not sufficiently informing the accused of the nature and cause of the accusation against him, which is one of his constitutional rights, although factually, the assessment of the evidence by the court tended towards justifying conviction. Verily, the situation fits into what is contemplated by the provisions of the Rules of Court already referred to, which do not call for a new or separate preliminary investigation, which petitioner contends is indispensable, to which the Solicitor General expressed agreement.cralaw:red What evidently led the Solicitor General to give his conformity to the stand taken by petitioner as to the necessity of a new preliminary investigation is his belief that "judgment has already been rendered acquitting the accused", while the Rules of Court cited speaks of "before judgment." But as already intimated, as to the offense of infringement of trademark, which petitioner himself contends was also charged in the first Information, the Court rendered no judgment yet, either for acquittal or for conviction, as it appeared to the trial judge that the accused cannot properly be convicted for said offense, even if conviction was warranted by the evidence, a mistake having been made, as he read the Information, and with reason, in charging the proper offense.cralaw:red However, if petitioner insists on another preliminary investigation, the same may be granted by way of "reinvestigation", the Solicitor General who actually represents also the prosecution having expressed conformity to the holding of one. Let it not be said that We are not mindful of the rule that all doubts should be resolved in favor of the accused, a rule which itself should be liberally construed in his favor.cralaw:red WHEREFORE, as recommended by the Solicitor General, the decision appealed from is modified as to give petitioner the right of preliminary investigation before he is arraigned and tried under the second Information for violation of Article 188, paragraph 2, of the Revised Penal Code. No costs.cralaw:red SO ORDERED. Concepcion,
Jr., Abad Santos, and Escolin, JJ.,
concur.
AQUINO, J., Dissenting: Judge Eduardo P. Caguioa acquitted Manuel Sy of unfair competition but ordered him prosecuted for selling water pumps with an imitation trademark. The factual background is as follows: Sea Commercial Co., Inc., a domestic corporation, has a duly registered trademark for water pumps known as Jetmatic. At the same time, it is the local distributor of the water pumps manufactured by Kawamoto Pump Manufacturing Co., Ltd. of Nagoya, Japan under the trademark Dragon which is duly registered with the Philippine Patent Office.cralaw:red Sea Commercial Co., Inc. sells water pumps under the trademark Jetmatic Dragon, a combination of its trademark and the trademark of its Japanese principal. At the instance of Sea Commercial Co., Inc., agents of the National Bureau of Investigation raided Manuel Sy's warehouse at 380 Gapan Street, Tondo, Manila and seized 274 water pumps. Sy admitted ownership of the pumps and his sales of that merchandise. Sy also admitted that he imported hand pumps or water pumps from King Brothers Corporation of Taiwan which were manufactured by Mun Lung Iron Manufacturing. In appearance, the Taiwan water pumps and the Japanese water pumps were very similar. Judge Caguioa found:
It will be noted, however, that outside of the color, the similarities referring to the embossed words, numbers and figures appearing on the various parts of the pumps, are words and figures which are moulded into the pumps and could have only been placed there through a would with that kind of embossed words and figures at the time of casting. It is obvious, therefore, that these similarities, outside of the color, could only have been placed by the manufacturer of the pumps himself.cralaw:red Judge Caguioa concluded that because the prosecution had not proven that Sy was the manufacturer of the imitation pumps or that he was the one responsible for giving to the imitation pumps the same appearance as the water pumps of Sea Commercial Co., Inc., he could not be held liable for unfair competition under Article 189[1] of the Revised Penal Code.cralaw:red However, Judge Caguioa held that since Sy was aware that the imitation pumps bear the registered trademark of Sea Commercial Co., Inc. and that they are not the same as the hand pumps described in the brochures of King Brothers Corporation, Sy should be prosecuted for the crime of substituting trademarks under Article 188[2] of the Revised Penal Code.cralaw:red Hence, Judge Caguioa ordered Provincial Fiscal [now CFI Judge] Pedro D. Ofiana to file the corresponding Information against Sy. In compliance with that directive, Fiscal Ofiana, in an Information dated June 1, 1972, charged Sy with selling hand pumps with the knowledge that the trademark "Jetmatic Dragon Hand Pump" had been fraudulently used on them to the damage and prejudice of Sea Commercial Co., Inc. The crime of unfair competition and selling goods with an imitation trademark imputed to Sy belong to the category of crimes against public interest which are divided into [1] forgeries; [2] other falsities; and [3] frauds.cralaw:red The crimes regarded as frauds are classified into [a] machinations, monopolies and combinations; and [b] frauds in commerce and industry, Unfair competition and sale of goods with a substitute trademark are frauds in commerce and industry.cralaw:red Under paragraph 1 of Article 189, the crime of unfair competition is committed by "any person who, in unfair competition and for the purpose of deceiving or defrauding another of his legitimate trade or the public in general, shall sell his goods giving them the general appearance of goods of another manufacturer or dealer, either as to the goods themselves, or in the wrapping of the packages in which they are contained, or the device or words thereon or in any other feature of their appearance which would be likely to induce the public to believe that the goods offered are those of a manufacturer or dealer other than the actual manufacturer or dealer.cralaw:red In the Information for unfair competition filed against Sy, it was alleged that he, "in unfair competition and for the purpose of deceiving or defrauding the Sea Commercial Co., Inc. of its legitimate trade or the public in general did then and there wilfully sell or offer for sale hand pumps of inferior quality and labeled Jetmatic Dragon Hand Pump and at a lower price and giving them the general appearance of the Jetmatic Dragon hand pumps of the Sea Commercial Co., Inc., as to the outside appearance, including, among others, the color, the embossed words, and many other parts both as to the design and the materials used which induced the public to believe that the Jetmatic Dragon Hand Pumps offered are those of the Sea Commercial Co., Inc., to the damage and prejudice of the said" company and the general public." It is manifest that the Information for unfair competition follows substantially the wording or phraseology used in Article 189[1]. On the other hand, the crime of selling goods with a substitute or imitation trademark defined in article 188[2] is committed by a person who shall sell articles of commerce, or offer the same for sale, knowing that the trademark has been fraudulent used in such goods because the trademark of another manufacturer or dealer, or a colorable imitation thereof, has been substituted on such goods for the trademark of the real manufacturer or dealer.cralaw:red In the second Information, it was alleged that Sy "in infringement of trademark and for the purpose of deceiving or defrauding the Sea Commercial Co., Inc., of its legitimate trade and/or the public in general, did then and there wilfully sell and/or offer for sale hand pumps of inferior quality and labeled Jetmatic Dragon Hand Pump at a lower price, accused knowing fully well that the trademark Jetmatic Dragon Hand Pump has been fraudulently used in the said hand pumps, thereby giving them the general appearance of the registered Jetmatic Dragon Hand Pump being sold and/or being offered for sale are those of the Sea Commercial Co., Inc., when in fact they are not, to the damage and prejudice" of the said company and the general public.cralaw:red The second information uses the wording or phraseology of paragraph 2 of article 188. It should be stressed that in the first Information, Sy was charged with having sold hand pumps to which he had given the same appearance as the hand pumps sold by Sea Commercial Co., Inc. The evidence shows that he did not manufacture said hand pumps. Therefore, he could not have given them the appearance of the hand pumps of Sea Commercial Co., Inc. since the embossed features of the said hand pumps were placed there during the original casting by the manufacturer thereof. Sy could not have perpetrated that fraud because he was not the manufacturer. He was a mere seller of the hand pumps.cralaw:red But if he was a
mere seller, it would not follow
that he was not criminally liable for selling those hand pumps. The
seller
of goods with an imitation trademark is punished under paragraph 2 of
Article
188. That explains why Judge Caguioa ordered Sy's prosecution under
that
statutory provision.
I am also of the opinion that Sy's trial for unfair competition in Criminal Case No. 0290-V amounted to a preliminary investigation of Sy by a Judge of the Court of First Instance for the offense of selling goods with an imitation or substitute trademark within the meaning of Section 13, Rule 112 of the Rules of Court.cralaw:red Hence, he is not entitled to another preliminary investigation for that offense to be conducted by the fiscal. If another preliminary investigation is to be given to Sy by the fiscal by requiring the filing of the affidavits of the complainant and Sy and their witnesses, as provided in Republic Act No. 5180 and Presidential Decrees Nos. 77 and 911, then the same facts alleged in the first preliminary investigation and during the trial of the unfair competition case would be brought out.cralaw:red That proceeding would be a repetitious and useless ceremony. The purpose of the preliminary investigation is to avoid hasty and malicious prosecution. We cannot say that Judge Caguioa's order for the prosecution of Sy for the crime of selling hand pumps with an imitation trademark is a hasty and malicious prosecution. That order is based on the evidence adduced during the trial of Sy where he was duly heard. That evidence will be used against him in the second case.cralaw:red However, in
fairness to Sy, the second case should
be tried not by Judge Caguioa but by any of his colleagues in the
Malolos
Branch of the lower court.
ERICTA, J., Dissenting: I believe that giving the petitioner another preliminary investigation and another trial under the second Information is unnecessary. The first Information clearly charges two offenses, namely, the offense of unfair competition penalized under Article 189, paragraph 1, and the offense of substituting and altering a trademark penalized under Article 188, paragraph 2, both of the Revised Penal Code. That the first Information charges unfair competition leaves no room for doubt. Aside from the clear allegations in the Information, the fiscal seemed to have designated the offense as a violation of Article 189, paragraph 1 of the Code. What seems to be debatable is whether or not the same Information also sufficiently charges the offense of substituting and altering trademarks penalized under Article 188, paragraph 2 of the Code.cralaw:red I am of the firm belief that the first Information sufficiently informs the accused of the offense of substituting and altering trademarks penalized under Article 188, paragraph 2, of the Code. Paragraphs 1 and 2 of said Article, read as follows:
The first Information alleges, among others, that the defendant, "for the purpose of deceiving or defrauding the Sea Commercial Company, Inc. [complainant], of its legitimate trade or the public in general, did then and there willfully, unlawfully and feloniously sell or offer for sale hand pumps of inferior quality and labeled JETMATIC DRAGON HAND PUMP which induced the public to believe that the JETMATIC DRAGON HAND PUMP offered are those of the Sea Commercial Company, Inc., to the damage and prejudice of the Sea Commercial Company, Inc., and the general public." There is no question that "Jetmatic Dragon Hand Pump" is a trademark. The said Information alleges all the elements of the crime as defined in paragraph 2 of Article 188 of the Revised Penal Code. More specifically, the allegations that the defendant had the purpose of "deceiving the complainant or the public"; that the act of selling or offering for sale the said hand pumps were done "wilfully, unlawfully and feloniously"; and that the unlawful act "induced the public to believe that the JETMATIC DRAGON HAND PUMP offered are those of the complainant" to the "damage and prejudice of the complainant and general public," sufficiently convey that the defendant sold his hand pumps "knowing that the trademark has been fraudulently used on such goods" which is the gist of the offense as defined in paragraph 2 of article 188 of the Code, It is the allegation in the Information, not the designation of the offense by the fiscal, that determines the nature of the offense. The designation of the offense by the fiscal is only his conclusion, which, if erroneous, may be corrected by the court. Even if the fiscal fails to designate the nature of the offense, the court, after trial, may convict the defendant of the offense charged in the Information and proven during the trial.cralaw:red I do not share the view of the Solicitor General that an allegation in the Information that the trademark in question is registered is necessary. Registration is not an element of the offense as defined by the statute. An Information is sufficient if it alleges the elements of the offense defined in the statute. Whether or not proof during the trial of registration of the trademark is necessary for conviction is a question which We are not now called upon to resolve. At any rate, the trial court already pronounced in the dispositive portion of the decision that there is prima facie evidence "that the accused has violated Article 188, paragraph 2 of the Revised Penal Code." Such prima facie evidence may already include proof of registration of the trademark. The complainant could not have been using his trademark for quite sometime without having registered the same in accordance with law.cralaw:red The first Information is quashable for duplicity of charges. But having failed to object, the defendant [petitioner herein] may be convicted of the offenses, or of any one of them, charged in the Information and proven during the trial.cralaw:red In actual practice, when a defendant is accused of two or more separate and distinct offenses in one and the same Information without objection and all the offenses charged are proven, the trial court renders a joint decision on the two or more offenses charged. But there is no law prohibiting the trial judge from rendering a decision for one of the offenses in a separate decision, then rendering at a later time, another decision for the other offense or offenses.cralaw:red In the instant case, the trial court had already rendered a judgment acquitting the defendant [petitioner] of one of the offenses charged, namely, that of unfair competition penalized under Article 189 paragraph 1 of the Code. But it has not yet rendered a judgment of conviction or acquittal with respect to the other offense of substituting and altering trademarks penalized under Article 188, paragraph 2 of the Code, although it has found prima facie evidence of the same. Neither has the trial court dismissed the first Information.cralaw:red So I suggest the following: [1] the trial court should be directed to render a decision on the charge of violation of the offense of substituting and altering trademarks penalized under Article 188, paragraph 2 of the Code, as charged in the Information; [2] the second Information may be admitted by the trial court under Rule 110, Section 13, 1st paragraph, of the Rules of Court, as an amendment of the first Information, the amendment being only on a matter of form; and [3] to avoid undue prejudice or undue surprise, the trial court may allow the reopening of the case with respect to the charge of violating Article 188, paragraph 2 of the Code so that the defendant may present any additional evidence which he may deem necessary for his defense.cralaw:red Giving the
petitioner the right of another preliminary
investigation and requiring that another trial be conducted amount to a
ruling by the Court that the first Information which charges the same
offense
charged in the second Information, is already "terminated." [Rule 117
Section
9, Rules of Court]. Since the termination is without the express
consent
of the accused, the second Information subjects him to double jeopardy.
________________________________
[2] p. 4, Petitioner's Brief; p. 61, Rollo. [3] p. 5, Id. [4] pp. 6-7, Id. [5] Annex "F" to Petition in CA-G. R. No. Sp. 01412. [6] pp. 1-2, Petitioner's Brief; p. 61, Rollo. [7] 11 Phil. 484. [8] U. S. vs. Gustilo, 19 Phil. 208. [9] People vs. Elkanish 90 Phil. 53. [10] Comments on the Rules of Court, 1970 ed., pp. 257-258, citing People vs. Maria del Carmen, G. R. No. L-3459, January 9, 1951. |
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