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EN BANC

G.R. No. L-45715 April 20, 1939

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, vs. REMEGIO OLIVERIA, Defendant-Appellee.

Office of the Solicitor-General Tuason for the Government.
C. A. Oconer for appellee.

MORAN, J.: chanrobles virtual law library

On February 18, 1937, the chief of police of the municipality of Samal, Bataan, filed with the justice of the peace court of the same municipality a complaint against Remigio Oliveria, now appellant, charging him with violation of section 60 of Commonwealth Act No. 1, for having failed and refused to register for military training, he being a Filipino citizen 20 years of age. After the corresponding preliminary investigation, the justice of the peace found probable cause against the accused and, consequently, certified the case to the Court of First Instance of Bataan where the provincial fiscal filed the following information:

The undersigned fiscal accuses Remigio Oliveria of the violation of section 53 and 76 of Commonwealth Act No. 1 as amended by section 3 of Commonwealth Act No. 70 committed as follows:chanrobles virtual law library

That on or about the period comprised April 1-7, 1936 both dates inclusive at the municipality of Samal, Bataan, the herein defendant being a Filipino citizen and resident in the municipality of Samal, Bataan, who has attained his 20th birthday during the year 1936, voluntarily, illegally and feloniously failed and refused to register himself for military service in spite of several requests made to him to do so by the police force of Samal, Bataan.

Defendant pleaded not guilty to the charge and, thereafter, demurred to the information on several grounds, among them, that the legal provision alleged in the justice of the peace court to have been violated by the accused had already been repealed, and that there has been no preliminary investigation of the charge alleged in the fiscal's information. The court below sustained the demurrer, stating:

Con respecto al segundo fundamento, la denuncia presentada en el juzgado de paz de Abucay, Bataan, no constituye infraccion de la Ley de Defensa Nacional por los siguientes motivos: 1.� porque el articullo 60 de la Ley de Defensa Nacional has sido derogado por el articulo 1 de la Ley No. 70 del Commonwealth, y 2.� porque segun el articulo 3 de dicha Ley No. 70 para que sea infraccion, el dejar de inscribirse para el servicio militar es necesario que antes sea notificado el interesado para que se registre a dicho efecto.chanroblesvirtualawlibrary chanrobles virtual law library

La denuncia que fue objeto de investigacion preliminar en el juzgado de paz no era valida porque no alega que el acusado fue notificado de que debia registratrse para el servicio militar y que no lo hizo. Esta falta de alegacion vicia de nulidad dicha investigacion, y la querrella que ahora se presenta subsanando dicha falta de alegacion carece de investigacion preliminar.chanroblesvirtualawlibrary chanrobles virtual law library

Por esta falta de investigation preliminar se estima el demurrer por falta de jurisdiccion y se sobrese esta causa con las costas de oficio, cancelandose la fianza del acusado para su libertad provisional. Se reserva al Fiscal el derecho de presentar querella en el juzgado de paz de Abucay, Bataan, para la investigacion preliminar.

From this order the present appeal was taken.chanroblesvirtualawlibrary chanrobles virtual law library

The order is erroneous on several counts: Firstly, the demurrer should not have entertained without the accused having first withdraw his plea of not guilty to the information (U.S. vs. Junio, 1 Phil., 51; U.S. vs. Schneer, 7 Phil., 523); secondly, the absence of preliminary investigation is not a ground for demurrer, nor does it go to the jurisdiction of the court but merely to the regularity of the proceedings (sec. 21, Code of Criminal Procedure; Ex parte McLaughlin, 210 Mo., 657, 663; 109 S.W., 626); thirdly, the accused has waived his right to such preliminary investigation for not having claimed it before pleading to the charge (16 C.J., 318; Ex parte McLaughlin, supra); and, lastly, even if it has been claimed in time, the court should not have dismissed the case but should have proceeded to conduct the preliminary investigation or else have remanded the case to the justice of the peace court for such preliminary investigation (U.S. vs. Banzuela and Banzuela, 31 Phil., 564).chanroblesvirtualawlibrary chanrobles virtual law library

It is true that section 60 of Commonwealth Act No. 1 has been repealed by section 1 of Commonwealth Act No. 70, and, in its place section 76-A is created by section 3 of the latter Act. But with respect to the offense charged, section 60 and 76-A are exactly the same, and the only difference between them is that the latter provision, after reproducing the former provision, defines a new offense. Furthermore, it is well settled rule that the real nature of the crime charged is determined not by the title of the complaint, nor by the specification of the provision of law alleged to have been violated, but by the facts alleged in the complaint or information (U.S. vs. Li-Dao, 2 Phil., 458; U.S. vs. Peralta and Peralta, 8 Phil., 200; U.S. vs. Supila, 13 Phil., 671; U.S. vs. Treyes, 14 Phil., 270; U.S. vs. Jeffrey, 15 Phil., 391; U.S. vs. Lim San, 17 Phil., 273; U.S. vs. Vega, 31 Phil., 450; U.S. vs. Cabe, 36 Phil., 728; U.S. vs. Ondaro, 39 Phil., 70; and U.S. vs. Burns, 41 Phil., 418).chanroblesvirtualawlibrary chanrobles virtual law library

The lower court held that notice to the accused is necessary before he may be criminally prosecuted for failure to register for military service; that such notice, while alleged in the fiscal's information, was not alleged in the complaint filed in the justice of the peace court; and that therefore the charge contained in the fiscal's information has not been subjected to a preliminary investigation by the justice of the peace court. This argument proceeds from a misconception of the law. Section 76-A of Commonwealth Act No. 1 as recreated by Commonwealth Act No. 70 provides as follows:chanrobles virtual law library

Any person failing to register for military service herein provided, or who shall fail to report to the corresponding acceptance board or to a designated training station (after having been duly notified to do so) shall, upon conviction, be sentenced to serve not more than one year in prison or to pay a fine of not to exceed two thousand pesos, or both, at the discretion of the court. Conviction for this offense shall not exempt the person convicted from the military service herein required." The phrase "after having been duly notified to do so" refers exclusively to the person "who shall fail to report to the corresponding acceptance board or to a designated training station." Such notice is not required of persons directed to "register for military service," for in section 54 of Commonwealth Act No. 1 the dates for registration, April 1 to 7, are specifically mentioned. It follows that as the accused has been accorded his right to a preliminary investigation on the offense charged against him in the justice of the peace court, he cannot be heard of having been deprived of it on exactly the same offense instituted against him in the Court of First Instance.chanroblesvirtualawlibrary chanrobles virtual law library

Order is reversed, and let the case be remanded to the lower court for trial on the merits.

Avance�a, C.J., Villa-Real, Imperial, Diaz, Laurel and Concepcion, JJ., concur.