CASE #1:

G.R. No. L-25301            October 26, 1968

GOLD STAR MINING CO., INC., petitioner,

vs.
MARTA LIM-JIMENA, CARLOS JIMENA, GLORIA JIMENA, AURORA JIMENA, JAIME JIMENA,
DANTE JIMENA, JORGE JIMENA, JOYCE JIMENA, as legal heirs of the deceased VICTOR
JIMENA, and JOSE HIDALGO, respondents.

Emiliano S. Samson and R. Balderrama-Samson for petitioner.

Leandro Sevilla and Ramon C. Aquino for respondents.

REYES, J.B.L., J.:

From an affirmance in toto by the Court of Appeals1 of a decision of the Court of First Instance of
Manila,2 specifically the portion thereof condemning Gold Star Mining Co., Inc. to pay Marta Lim Vda.
de Jimena, et al., the sum of P30,691.92 solidarily with Ananias Isaac Lincallo for violation of an
injunction this appeal is taken.

It is of record that in 1937, Ananias Isaac Lincallo bound himself in writing to turn to Victor Jimena
one-half (1/2) of the proceeds from all mining claims that he would purchase with the money to be
advanced by the latter. This agreement was later on modified (in a 1939 notarial instrument duly
registered with the Register of Deeds of Marinduque in his capacity as mining recorder) so as to
include in the equal sharing arrangement not only the proceeds from several mining claims, which by
that time had already been purchased by Lincallo with various sums totalling P5,800.00 supplied by
Jimena, but also the lands constituting the same, and so as to bind thereby their "heirs, assigns, or
legal representatives." Apparently, the mining rights over part of the claims were assigned by
Lincallo to Gold Star Mining Co., Inc., sometime before World War Il because in 1950 the
corporation paid him P5,000 in consideration of, and as a quitclaim for, pre-war royalties.

On several occasions thereafter, the mining claims in question were made subject-matter of
contracts entered into by Lincallo in his own name and for his benefit alone without the slightest
intimation of Jimena's interests over the same. Thus, on 19 September 1951, Lincallo and one
Alejandro Marquez, as separate owners of particular mining claims, entered into an agreement with
Gold Star Mining Co., Inc., the assignee thereof, regarding allotment to Lincallo of 45% of the
royalties due from the corporation. Four months later, Lincallo, Marquez and Congressman Panfilo
Manguerra, again as owners, leased certain mining claims to Jacob Cabarrus, who, in turn,
transferred to Marinduque Iron Mines Agents, Inc., his rights under the lease contract. By virtue of
still another contract executed by these lessors on 29 February 1952, 43% of the royalties due from
Marinduque Iron Mines Agents, Inc., were agreed upon to be paid to Lincallo.

As early as August, 1939 and down to September, 1952, Jimena repeatedly apprised Gold Star
Mining Co., Inc., and Marinduque Iron Mines Agents, Inc., of his interests over the mining claims so
assigned and/or leased by Lincallo and, accordingly, demanded recognition and payment of his one-
half share in all the royalties, allocated and paid and, thereafter, to be paid to the latter. Both
corporations, however, ignored Jimena's demands.

Payment of the P5,800 advanced for the purchase of the mining claims, as well as the one-half
share in the royalties paid by the two corporations, were also repeatedly demanded by Jimena from
Lincallo. Acknowledging Jimena's contractual claim, Lincallo off and on promised to settle his
obligations. And on 14 July 1952, Lincallo promised for the last time, to settle everything on or before
the 30th day of the same month.

Lincallo, however, did not only fail to settle his accounts with Jimena but transferred on 16 August
1952, a month after he promised to pay Jimena, 35 of his 45% share in the royalties due from Gold
Star Mining Co., Inc., to one Gregorio Tolentino, a salaried employee, for an alleged consideration of
P10,000.00.

On 2 September 1954, Jimena commenced a suit against Lincallo for recovery of his advances and
his one-half share in the royalties. Gold Star Mining Co., Inc., and Marinduque Iron Mines, Inc.,
together with Tolentino, were later joined as defendants.

On 17 September 1954, the trial court issued, upon petition of Jimena, a writ of preliminary injunction
restraining Gold Star Mining Co., Inc., and Marinduque Iron Mines Agents, Inc., from paying royalties
during the pendency of the case to Lincallo, his assigns or legal representatives. Despite the
injunction, however, Gold Star Mining Co., Inc., was found out to have paid P30, 691.92 to Lincallo
and Tolentino. Said corporation claimed later on (on appeal) that the injunction had been
superseded and/or dissolved on 25 May 1955 by the trial court's grant of Jimena's petition for a writ
of preliminary attachment "to supersede the writ of preliminary injunction previously issued." But as
the grant was conditioned upon filing of a bond to be approved by the trial court, no writ of
attachment was issued because the bond offered by Jimena was disapproved.3

Jimena and Tolentino died successively during the pendency of the case in the trial court and were,
accordingly, substituted by their respective widows and children.

After a protracted trial, the lower court rendered a decision, the dispositive portion of which reads as
follows:

IN VIEW WHEREOF, judgment is rendered:

1. Declaring the plaintiffs —

(a) as successors in interest of Victor Jimena to be entitled to 1/2 of the 45% share of
the royalties of defendant Lincallo under the latter's contract with Gold Star, Exh. D
or Exh. D-l, dated September 19, 1951;

(b) to 1/2 of the 43% shares of the rental of defendant Lincallo under his contract with
Jesus (Jacob) Cabarrus assigned to Marinduque Iron Mines, and his contract with
Alejandro Marquez, dated December 5, 1951, and February 29, 1952, Exhs. J and J-
1; .

(c) and condemning defendants Gold Star and Marinduque Iron Mines to pay direct
to plaintiffs said 1/2 shares of the royalties until said contracts are terminated;

2. Condemning defendant Lincallo to pay unto plaintiffs, as successors in interest of Victor

Jimena —

(a) the sum of P5,800 with legal interest from the date of the filing of the complaint;

(b) the sum of P40,167.52 which is the 1/2 share of the royalties paid by Gold Star
unto Lincallo as of the September 14, 1957;
 (c) the sum of P3,235.64 which is the 1/2 share of Jimena on the rentals amounting
to P6,471.27 corresponding to Lincallo's share paid by Marinduque Iron Mines unto
Lincallo from December, 1951 to August 25, 1954; under Exhibit N;

(d) P1,000.00 as attorneys fees;

3. Declaring that the deed of sale, Exh. H, dated August 16, 1952, between defendant
Lincallo and Gregorio Tolentino was effective and transferred only 1/2 of the 45% (43%)
share of Lincallo, and ordering Gold Star Mining Company to make payment hereafter unto
plaintiffs, pursuant to this decision on the royalties due unto Lincallo, notwithstanding the
cession unto Tolentino, so that of the royalties due unto Lincallo 1/2 should always be paid
by Gold Star unto plaintiffs notwithstanding said session, Exh. H, unto Tolentino by Lincallo;

4. Judgment is also rendered condemning the estate of Gregorio Tolentino but not the heirs
personally, to pay unto plaintiffs the sum of P24,386.51 with legal interest from the date of
the filing of the complaint against Gregorio Tolentino.

5. Judgment is rendered condemning defendant Gold Star Mining Company to pay to

plaintiffs solidarily with Lincallo and to be imputed to Lincallo's liability under this judgment
unto Jimena, the sum of P30,691.92;

6. Judgment is rendered condemning defendant Marinduque Iron Mines to pay unto plaintiffs
the sum of P7,330.36;

7. The counterclaims of defendants are dismissed;

8. Costs against defendant Lincallo.

SO ORDERED. (Emphasis supplied.)

From this judgment, all four defendants, namely, Lincallo, the widow and children of Tolentino, and
the two corporations, appealed to the Court of Appeals. The appeal interposed by Marinduque Iron
Mines Agents, Inc., was, however, withdrawn, while that of Lincallo was dismissed for the failure to
file brief. Pending outcome of the appeal, the royalties due from Gold Star Mining Co., Inc., were
required to be deposited with the trial court, as per order of 17 June 1958 issued by the same court.
In compliance therewith, Gold Star Mining Co., Inc., made a judicial deposit in the amount of
P30,691.92.

On 8 October 1965, the Court of Appeals handed down a decision sustaining in its entirety that of
the trial court. Gold Star Mining Co., Inc., moved for reconsideration of said decision insofar as its
adjudged solidary liability with Lincallo to pay to the Jimenas the sum of P30,691.92 "for flagrant
violation of the injunction" was concerned. The motion was denied. Hence, the present appeal.

Petitioner Gold Star Mining Co., Inc., argues that the Court of Appeals' decision finding that
respondents Jimenas have a cause of action against it, and condemning it to pay the sum of
P30,691.92 for violation of an allegedly non-existent injunction, are reversible errors. Reasons: As to
respondents Jimena's cause of action, the same does not allegedly appear in the complaint filed
against petitioner corporation. And as to the P30,691.92 penalty for violation of the injunction, the
same can not allegedly be imposed because (1) the sum of P30,691.92 was not prayed for, (2) the
injunction in question had already been superseded and/or dissolved by the trial court's grant of
Jimena's petition for writ of preliminary attachment; and (3) the corporation was never charged,
heard, nor found guilty in accordance with, and pursuant to, the provisions, of Rule 64 of the (Old)
Rules of Court.

We are of the same opinion with the Court of Appeals that respondents Jimenas have a cause of
action against petitioner corporation and that the latter's joinder as one of the defendants before the
trial court is fitting and proper. Said the Court of Appeals, and we adopt the same:

There first assigned error is the Trial Court erred in not dismissing this instant action as
"there is no privity of contract between Gold Star and Jimena." This contention is without
merit.

The situation at bar is similar to the status of the first and second mortgagees of a duly
registered real estate mortgage. While there exists no privity of contract between them, yet
the common subject-matter supplies the juridical link.

Here the evidence overwhelmingly established that Jimena made prewar and postwar
demands upon Gold Star for the payment of his 1/2 share of the royalties but all in vain so he
(Jimena) was constrained to implead Gold Star because it refused to recognize his right.

Jimena now seeks for accounting of the royalties paid by Gold Star to Lincallo, and for direct
payment to himself of his share of the royalties. This relief cannot be granted without joining
the Gold Star specially in the face of the attitude it had displayed towards Jimena.

Borrowing the Spanish maxim cited by Jimena's counsel, "el deudor de mi deudor es deudor
mio," this legal maxim finds sanction in Article 1177, new Civil Code which provides that
"creditors, after having pursued the property in possession of the debtor to satisfy their
claims, may exercise all the rights and bring all the actions of the latter (debtor) for the same
purpose, save those which are inherent in his person; they may also impugn the acts which
the debtor may have done to defraud them (1111)."

From another standpoint, equally valid and acceptable, it can be said that Lincallo, in
transferring the mining claims to Gold Star (without disclosing that Jimena was a co-owner
although Gold Star had knowledge of the fact as shown by the proofs heretofore mentioned)
acted as Jimena's agent with respect to Jimena's share of the claims.

Under such conditions, Jimena has an action against Gold Star, pursuant to Article 1883,
New Civil Code, which provides that the principal may sue the person with whom the agent
dealt with in his (agent's) own name, when the transaction "involves things belonging to the
principal."

As counsel for Jimena has correctly contended, "the remedy of garnishment suggested by
Gold Star is utterly inadequate for the enforcement of Jimena's right against Lincallo
because Jimena wanted an accounting and wanted to receive directly his share of the
royalties from Gold Star. That recourse is not open to Jimena unless Gold Star is made a
party in this action."

Coming now to the violation of the injunction, we observe that the facts speak for themselves.
Considering that no writ of preliminary attachment was issued by the trial court, the condition for its
issuance not having been met by Jimena, nothing can be said to have superseded the writ of
preliminary injunction in question. The preliminary injunction was, therefore, subsisting and evidently
violated by petitioner corporation when it paid the sum of P30,691.92 to Lincallo and Tolentino.
Gold Star Mining Co., Inc., insists that it may not be penalized for breach of the injunction, issued by
the court of origin, without prior written charge for indirect contempt, and due hearing, citing section
3 of Rule 64 of the old Rules of Court, now Rule 71 of the Revised Rules. We fail to see any merit in
this contention, as it misses the true nature and intent of the award of P30,691.92 to Jimena,
payable by Gold Star and Lincallo's estate.

Said award is not so much a penalty against petitioner as a decree of restitution, in order to make
the violated injunction effective, as it should be, by placing the parties in the same condition as if the
injunction had been fully obeyed. If Gold Star Mining Co., Inc., had only heeded the injunction and
had not paid to Lincallo the royalties of P30,691.92, such amount would now be available for the
satisfaction of the claims of Jimena and his heirs against Lincallo. By sentencing Gold Star Mining
Co., Inc., to pay, for the account of Lincallo, the sum aforesaid, the court merely endeavoured to
prevent its award from being rendered pro tanto nugatory and ineffective, and thus make it
conformable to law and justice.

That the questioned award was not intended to be a penalty against appellant Gold Star Mining Co.,
Inc., is shown by the provision in the judgment that the P30,691.92 to be paid by it to Jimena is "to
be imputed to Lincallo's liability under this judgment." The court thus left the way open for Gold Star
Mining Co., Inc., to recover later the whole amount from Lincallo, whether by direct action against
him or by deducting it from the royalties that may fall due under his 1951 contract with appellant.

That the recovery of this particular amount was not specifically sought in the complaint is of no
moment, since the complaint prayed in general for "other equitable relief."

WHEREFORE, finding no reversible error in the decision appealed from, the same is affirmed, with
costs against petitioner-appellant, Gold Star Mining Co., Inc.

Concepcion, C.J., Dizon, Makalintal, Sanchez, Castro, Angeles, Fernando and Capistrano,
JJ., concur.
Zaldivar, J., is on leave.

CASE #2:

EN BANC
[G.R. No. L-8437.  November 28, 1956.]
ESTATE OF K. H. HEMADY, deceased, vs. LUZON SURETY CO., INC., claimant-Appellant.
 
DECISION
REYES, J. B. L., J.:
Appeal by Luzon Surety Co., Inc., from an order of the Court of First Instance of Rizal, presided by Judge
Hermogenes Caluag, dismissing its claim against the Estate of K. H. Hemady (Special Proceeding No. Q-
293) for failure to state a cause of action.
The Luzon Surety Co. had filed a claim against the Estate based on twenty different indemnity
agreements, or counter bonds, each subscribed by a distinct principal and by the deceased K. H.
Hemady, a surety solidary guarantor) in all of them, in consideration of the Luzon Surety Co.’s of having
guaranteed, the various principals in favor of different creditors. The twenty counterbonds, or indemnity
agreements, all contained the following stipulations:chanroblesvirtua llawlibrary
“Premiums. — As consideration for this suretyship, the undersigned jointly and severally, agree to pay
the COMPANY the sum of ________________ (P______) pesos, Philippines Currency, in advance as
premium there of for every __________ months or fractions thereof, this ________ or any renewal or
substitution thereof is in effect.
Indemnity. — The undersigned, jointly and severally, agree at all times to indemnify the COMPANY and
keep it indemnified and hold and save it harmless from and against any and all damages, losses, costs,
stamps, taxes, penalties, charges, and expenses of whatsoever kind and nature which the COMPANY
shall or may, at any time sustain or incur in consequence of having become surety upon this bond or any
extension, renewal, substitution or alteration thereof made at the instance of the undersigned or any of
them or any order executed on behalf of the undersigned or any of them;  and to pay, reimburse and
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make good to the COMPANY, its successors and assigns, all sums and amount of money which it or its
representatives shall pay or cause to be paid, or become liable to pay, on account of the undersigned or
any of them, of whatsoever kind and nature, including 15% of the amount involved in the litigation or
other matters growing out of or connected therewith for counsel or attorney’s fees, but in no case less
than P25. It is hereby further agreed that in case of extension or renewal of this ________ we equally
bind ourselves for the payment thereof under the same terms and conditions as above mentioned
without the necessity of executing another indemnity agreement for the purpose and that we hereby
equally waive our right to be notified of any renewal or extension of this ________ which may be
granted under this indemnity agreement.
Interest on amount paid by the Company. — Any and all sums of money so paid by the company shall
bear interest at the rate of 12%  per annum which interest, if not paid, will be accummulated and added
to the capital quarterly order to earn the same interests as the capital and the total sum thereof, the
capital and interest, shall be paid to the COMPANY as soon as the COMPANY shall have become liable
therefore, whether it shall have paid out such sums of money or any part thereof or not.
x x x                    x x x                    x x x
Waiver. — It is hereby agreed upon by and between the undersigned that any question which may arise
between them by reason of this document and which has to be submitted for decision to Courts of
Justice shall be brought before the Court of competent jurisdiction in the City of Manila, waiving for this
purpose any other venue. Our right to be notified of the acceptance and approval of this indemnity
agreement is hereby likewise waived.
x x x                    x x x                    x x x
Our Liability Hereunder. — It shall not be necessary for the COMPANY to bring suit against the principal
upon his default, or to exhaust the property of the principal, but the liability hereunder of the
undersigned indemnitor shall be jointly and severally, a primary one, the same as that of the principal,
and shall be exigible immediately upon the occurrence of such default.” (Rec. App. pp. 98- 102.)
The Luzon Surety Co., prayed for allowance, as a contingent claim, of the value of the twenty bonds it
had executed in consideration of the counterbonds, and further asked for judgment for the unpaid
premiums and documentary stamps affixed to the bonds, with 12 per cent interest thereon.
Before answer was filed, and upon motion of the administratrix of Hemady’s estate, the lower court, by
order of September 23, 1953, dismissed the claims of Luzon Surety Co., on two grounds:  (1) that the chanroblesvirtua llawlibrary

premiums due and cost of documentary stamps were not contemplated under the indemnity
agreements to be a part of the undertaking of the guarantor (Hemady), since they were not liabilities
incurred after the execution of the counterbonds;  and (2) that “whatever losses may occur after
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Hemady’s death, are not chargeable to his estate, because upon his death he ceased to be guarantor.”
Taking up the latter point first, since it is the one more far reaching in effects, the reasoning of the court
below ran as follows: chanroblesvirtuallawlibrary

“The administratrix further contends that upon the death of Hemady, his liability as a guarantor
terminated, and therefore, in the absence of a showing that a loss or damage was suffered, the claim
cannot be considered contingent. This Court believes that there is merit in this contention and finds
support in Article 2046 of the new Civil Code. It should be noted that a new requirement has been
added for a person to qualify as a guarantor, that is:  integrity. As correctly pointed out by the
chanroblesvirtuallawlibrary

Administratrix, integrity is something purely personal and is not transmissible. Upon the death of
Hemady, his integrity was not transmitted to his estate or successors. Whatever loss therefore, may
occur after Hemady’s death, are not chargeable to his estate because upon his death he ceased to be a
guarantor.
Another clear and strong indication that the surety company has exclusively relied on the personality,
character, honesty and integrity of the now deceased K. H. Hemady, was the fact that in the printed
form of the indemnity agreement there is a paragraph entitled ‘Security by way of first mortgage, which
was expressly waived and renounced by the security company. The security company has not demanded
from K. H. Hemady to comply with this requirement of giving security by way of first mortgage. In the
supporting papers of the claim presented by Luzon Surety Company, no real property was mentioned in
the list of properties mortgaged which appears at the back of the indemnity agreement.” (Rec. App., pp.
407-408).
We find this reasoning untenable. Under the present Civil Code (Article 1311), as well as under the Civil
Code of 1889 (Article 1257), the rule is that —
“Contracts take effect only as between the parties, their assigns and heirs, except in the case where the
rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or
by provision of law.”
While in our successional system the responsibility of the heirs for the debts of their decedent cannot
exceed the value of the inheritance they receive from him, the principle remains intact that these heirs
succeed not only to the rights of the deceased but also to his obligations. Articles 774 and 776 of the
New Civil Code (and Articles 659 and 661 of the preceding one) expressly so provide, thereby confirming
Article 1311 already quoted.
“ART. 774. — Succession is a mode of acquisition by virtue of which the property, rights and obligations
to the extent of the value of the inheritance, of a person are transmitted through his death to another or
others either by his will or by operation of law.”
“ART. 776. — The inheritance includes all the property, rights and obligations of a person which are not
extinguished by his death.”
In Mojica vs. Fernandez, 9 Phil. 403, this Supreme Court ruled: chanroblesvirtua llawlibrary

“Under the Civil Code the heirs, by virtue of the rights of succession are subrogated to all the rights and
obligations of the deceased (Article 661) and cannot be regarded as third parties with respect to a
contract to which the deceased was a party, touching the estate of the deceased (Barrios vs. Dolor, 2
Phil. 44).
x x x                    x x x                    x x x
“The principle on which these decisions rest is not affected by the provisions of the new Code of Civil
Procedure, and, in accordance with that principle, the heirs of a deceased person cannot be held to be
“third persons” in relation to any contracts touching the real estate of their decedent which comes in to
their hands by right of inheritance;  they take such property subject to all the obligations resting
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thereon in the hands of him from whom they derive their rights.”
(See also Galasinao vs. Austria, 51 Off. Gaz. (No. 6) p. 2874 and de Guzman vs. Salak, 91 Phil., 265).
The binding effect of contracts upon the heirs of the deceased party is not altered by the provision in
our Rules of Court that money debts of a deceased must be liquidated and paid from his estate before
the residue is distributed among said heirs (Rule 89). The reason is that whatever payment is thus made
from the estate is ultimately a payment by the heirs and distributees, since the amount of the paid claim
in fact diminishes or reduces the shares that the heirs would have been entitled to receive.
Under our law, therefore, the general rule is that a party’s contractual rights and obligations are
transmissible to the successors. The rule is a consequence of the progressive “depersonalization” of
patrimonial rights and duties that, as observed by Victorio Polacco, has characterized the history of
these institutions. From the Roman concept of a relation from person to person, the obligation has
evolved into a relation from patrimony to patrimony, with the persons occupying only a representative
position, barring those rare cases where the obligation is strictly personal, i.e., is contracted intuitu
personae, in consideration of its performance by a specific person and by no other. The transition is
marked by the disappearance of the imprisonment for debt.
Of the three exceptions fixed by Article 1311, the nature of the obligation of the surety or guarantor
does not warrant the conclusion that his peculiar individual qualities are contemplated as a principal
inducement for the contract. What did the creditor Luzon Surety Co. expect of K. H. Hemady when it
accepted the latter as surety in the counterbonds? Nothing but the reimbursement of the moneys that
the Luzon Surety Co. might have to disburse on account of the obligations of the principal debtors. This
reimbursement is a payment of a sum of money, resulting from an obligation to give;  and to the Luzon chan roblesvirtualawlibrary

Surety Co., it was indifferent that the reimbursement should be made by Hemady himself or by some
one else in his behalf, so long as the money was paid to it.
The second exception of Article 1311, p. 1, is intransmissibility by stipulation of the parties. Being
exceptional and contrary to the general rule, this intransmissibility should not be easily implied, but
must be expressly established, or at the very least, clearly inferable from the provisions of the contract
itself, and the text of the agreements sued upon nowhere indicate that they are non-transferable.
“(b)  Intransmisibilidad por pacto. — Lo general es la transmisibilidad de darechos y obligaciones;  le chan roblesvirtualawlibrary

excepcion, la intransmisibilidad. Mientras nada se diga en contrario impera el principio de la

transmision, como elemento natural a toda relacion juridica, salvo las personalisimas. Asi, para la no
transmision, es menester el pacto expreso, porque si no, lo convenido entre partes trasciende a sus
herederos.
Siendo estos los continuadores de la personalidad del causante, sobre ellos recaen los efectos de los
vinculos juridicos creados por sus antecesores, y para evitarlo, si asi se quiere, es indespensable
convension terminante en tal sentido.
Por su esencia, el derecho y la obligacion tienden a ir más allá de las personas que les dieron vida, y a
ejercer presion sobre los sucesores de esa persona;  cuando no se quiera esto, se impone una
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estipulacion limitativa expresamente de la transmisibilidad o de cuyos tirminos claramente se deduzca la

concresion del concreto a las mismas personas que lo otorgon.” (Scaevola, Codigo Civil, Tomo XX, p. 541-
542) (Emphasis supplied.)
Because under the law (Article 1311), a person who enters into a contract is deemed to have contracted
for himself and his heirs and assigns, it is unnecessary for him to expressly stipulate to that effect;  chan

hence, his failure to do so is no sign that he intended his bargain to terminate upon his death.
roblesvirtualawlibra ry
Similarly, that the Luzon Surety Co., did not require bondsman Hemady to execute a mortgage indicates
nothing more than the company’s faith and confidence in the financial stability of the surety, but not
that his obligation was strictly personal.
The third exception to the transmissibility of obligations under Article 1311 exists when they are “not
transmissible by operation of law”. The provision makes reference to those cases where the law
expresses that the rights or obligations are extinguished by death, as is the case in legal support (Article
300), parental authority (Article 327), usufruct (Article 603), contracts for a piece of work (Article 1726),
partnership (Article 1830 and agency (Article 1919). By contract, the articles of the Civil Code that
regulate guaranty or suretyship (Articles 2047 to 2084) contain no provision that the guaranty is
extinguished upon the death of the guarantor or the surety.
The lower court sought to infer such a limitation from Art. 2056, to the effect that “one who is obliged to
furnish a guarantor must present a person who possesses integrity, capacity to bind himself, and
sufficient property to answer for the obligation which he guarantees”. It will be noted, however, that the
law requires these qualities to be present only at the time of the perfection of the contract of guaranty.
It is self-evident that once the contract has become perfected and binding, the supervening incapacity of
the guarantor would not operate to exonerate him of the eventual liability he has contracted;  and if chan roblesvirtualawlibrary

that be true of his capacity to bind himself, it should also be true of his integrity, which is a quality
mentioned in the article alongside the capacity.
The foregoing concept is confirmed by the next Article 2057, that runs as follows: chanroblesvirtuallawlibrary

“ART. 2057. — If the guarantor should be convicted in first instance of a crime involving dishonesty or
should become insolvent, the creditor may demand another who has all the qualifications required in
the preceding article. The case is excepted where the creditor has required and stipulated that a
specified person should be guarantor.”
From this article it should be immediately apparent that the supervening dishonesty of the guarantor
(that is to say, the disappearance of his integrity after he has become bound) does not terminate the
contract but merely entitles the creditor to demand a replacement of the guarantor. But the step
remains optional in the creditor:  it is his right, not his duty;  he may waive it if he chooses, and hold
chanroblesvirtua llawlibrary chan roblesvirtualawlibrary

the guarantor to his bargain. Hence Article 2057 of the present Civil Code is incompatible with the trial
court’s stand that the requirement of integrity in the guarantor or surety makes the latter’s undertaking
strictly personal, so linked to his individuality that the guaranty automatically terminates upon his death.
The contracts of suretyship entered into by K. H. Hemady in favor of Luzon Surety Co. not being
rendered intransmissible due to the nature of the undertaking, nor by the stipulations of the contracts
themselves, nor by provision of law, his eventual liability thereunder necessarily passed upon his death
to his heirs. The contracts, therefore, give rise to contingent claims provable against his estate under
section 5, Rule 87 (2 Moran, 1952 ed., p. 437;  Gaskell & Co. vs. Tan Sit, 43 Phil. 810, 814). chan roblesvirtualawlibrary

“The most common example of the contigent claim is that which arises when a person is bound as
surety or guarantor for a principal who is insolvent or dead. Under the ordinary contract of suretyship
the surety has no claim whatever against his principal until he himself pays something by way of
satisfaction upon the obligation which is secured. When he does this, there instantly arises in favor of
the surety the right to compel the principal to exonerate the surety. But until the surety has contributed
something to the payment of the debt, or has performed the secured obligation in whole or in part, he
has no right of action against anybody — no claim that could be reduced to judgment. (May vs. Vann, 15
Pla., 553;  Gibson vs. Mithell, 16 Pla., 519;  Maxey vs. Carter, 10 Yarg. [Tenn.], 521 Reeves vs. Pulliam,
chan roblesvirtualawlibrary chan roblesvirtualawlibrary

7 Baxt. [Tenn.], 119;  Ernst vs. Nou, 63 Wis., 134.)”

chan roblesvirtualawlibrary
For Defendant administratrix it is averred that the above doctrine refers to a case where the surety files
claims against the estate of the principal debtor;  and it is urged that the rule does not apply to the
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case before us, where the late Hemady was a surety, not a principal debtor. The argument evinces a
superficial view of the relations between parties. If under the Gaskell ruling, the Luzon Surety Co., as
guarantor, could file a contingent claim against the estate of the principal debtors if the latter should
die, there is absolutely no reason why it could not file such a claim against the estate of Hemady, since
Hemady is a solidary co-debtor of his principals. What the Luzon Surety Co. may claim from the estate of
a principal debtor it may equally claim from the estate of Hemady, since, in view of the existing
solidarity, the latter does not even enjoy the benefit of exhaustion of the assets of the principal debtor.
The foregoing ruling is of course without prejudice to the remedies of the administratrix against the
principal debtors under Articles 2071 and 2067 of the New Civil Code.
Our conclusion is that the solidary guarantor’s liability is not extinguished by his death, and that in such
event, the Luzon Surety Co., had the right to file against the estate a contingent claim for
reimbursement. It becomes unnecessary now to discuss the estate’s liability for premiums and stamp
taxes, because irrespective of the solution to this question, the Luzon Surety’s claim did state a cause of
action, and its dismissal was erroneous.
Wherefore, the order appealed from is reversed, and the records are ordered remanded to the court of
origin, with instructions to proceed in accordance with law. Costs against the
Administratrix- Appellee. SO ORDERED.
CRIMINAL LAW

CASE #1:

G.R. No. L-20569             October 29, 1923

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
J. J. KOTTINGER, defendant-appellant.

Fisher, Dewitt, Perkins and Brady for appellant.

Attorney-General Villa-Real for appellee.

MALCOLM, J.:

The question to be here decided is whether or not pictures portraying the inhabitants of the country
in native dress and as they appear and can be seen in the regions in which they live, are absence or
indecent. Surprising as it may seem, the question is one of first impression not alone in the
Philippine Islands, but in the United States, Great Britain, and elsewhere. This will explain why a
case which otherwise would be heard and voted in Division has been submitted to the court in
banc for decision.

On November 24, 1922, detective Juan Tolentino raided the premises known as Camera Supply Co.
at 110 Escolta, Manila. He found and confiscated the post-cards which subsequently were used as
evidence against J. J. Kottinger, the manager of the company.
Out of these facts arose the criminal prosecution of J. J. Kottinger in the Court of First Instance of
Manila. The information filed in court charged him with having kept for sale in the store of the
Camera Supply Co., obscene and indecedent pictures, in violation of section 12 of Act No. 277. To
this information, the defendant interposed a demurrer based upon the ground that the facts alleged
therein did not constitute an offense and were not contrary to law; but trial court overruled the
demurrer and the defendant duly excepted thereto. Following the presentation of evidence by the
Government and the defense, judgment was rendered finding the defendant guilty of the offense
charged and sentencing him to pay a fine of P50 with subsidiary imprisonment in case of insolvency,
and the costs.

The five errors assigned by defendant-appellant in this court divide themselves into two general
issues. The first point sustained by counsel for the appellant is in nature a technical objection,
growing out of the defendant's demurrer. The second point, in reality the decesive issue, is as
suggested in the beginning of the decision. We will take upon the assignments of errors as thus
classified in order.

Act No. 277 is the Philippine Libel Law. But included therein is a section, No. 12, making obscene or
indecent publications misdemeanors. Said section 12 which, it is contended by the Government, has
here been violated, and which, appellant argues, does not apply to the information and the facts,
reads as follow:

Any person who writes, composes, stereotypes, prints, publishes, sells, or keeps for sale,
distributes, or exhibits any obscene or indecent writing, paper, book, or other matter, or who
designs, copies, draws, engraves, paints, or otherwise prepares any obscene picture or print,
or who moulds, cuts, casts, or otherwise makes any obscene or indecent figure, or who
writes, composes, or prints any notice or advertisement of any such writing, paper, book,
print, or figure shall be guilty of a misdemeanor and punished by a fine of not exceeding one
thousand dollars or by imprisonment not exceeding one year, or both.

Counsel has gone to the trouble to make a careful analysis of section 12 of the Libel Law which is
intended to bear out his thesis, first, that section 12 does not prohibit the taking, selling, and
publishing of alleged obscene and indecent pictures and prints, and second, that the information in
this case charges no offense prohibited by section 12. Recall, however, that the law provides
punishment, among other things, for any person who keeps for sale or exhibits any absence or
indecent writing, paper, book, or other matter, and that the information charges the defendant,
among other things, with having wilfully and feloniously kept for sale, distribution, or exhibition,
obscene and indecent pictures.

The phrase in the law "or other matter", was apparently added as a sort of "catch-all." While limited
to that which is of the same kind as its antecedent, it is intended to cover kindred subjects. The rule
of ejusdem generis invoked by counsel is by no means a rule of universal application and should be
made to carry out, not to defeat, the legislative intent. Even if the phrase "or other matter" be
cobstrued to mean "or other matter of like kind," pictures and postcards are not so far unrelated to
writings, papers, and books, as not to be covered by the general words (Commonwealth vs. Dejardin
[1878], 126 Mass., 46; 30 Am. Rep., 652; Brown vs. Corbin [1889], 40 Minn., 508).

The line of argumentation is more refined that practical. Once conceded that section 12 of Act No.
277 does not cover the present case, there yet remain for application article 571, No. 2, of the penal
code, and section 730 of the Revised Ordinances of the City of Manila. The section of the Revised
Ordinances cited is most specific when it provides in part that no person shall "exhibit, circulate,
distribute, sell, offer or expose for sale, or give or deliver to another, or cause the same to be done,
any lewd, indecent, or absence book, picture, pamphlet, card, print, paper, writing, mould, cast,
figure, or any other thing."

While admittedly the information is lacking in precision and while the content of section 12 of the
Libel Law is not as inclusive as it might be, we yet conclude that the information is not fatally
defective, and that said section 12 covers the alleged facts.

We come now to decide the main issue. We repeat that our own researches have confirmed the
statement of counsel that no one parrallel case be found. We must perforce reason from the general
to the specific and from universal principle to actual fact.

The pictures which it is argued offend against the law on account of being obscene and indecent,
disclose six different postures of non-Christian inhabitants of the Philippines. Exhibit A carries the
legend "Philippines, Bontoc Woman." Exhibit A-1 is a picture of five young boys and carries the
legend "Greetings from the Philippines." Exhibit A-2 has the legend "Ifugao Belle, Philippines.
Greetings from the Philippines." Exhibit A-3 has the legend "Igorot Girl, Rice Field Costume." Exhibit
A-4 has the legend "Kalinga Girls, Philippines. Exhibit A-5 has the legend "Moros Philippines."

The prosecution produced no evidence proving the postcards obscene and indecent because it
thought the post-cards themselves the best evidence of that fact. The fiscal admitted in open court
"that those pictures represented the natives (non-Christians) in their native dress." The defendant,
on the other hand, attempted to show that the pictures as true to life. Dr. H. Otley Beyer, Professor in
the University of the Philippines, corroborated by other witnesses, testified from his studies in
various parts of the Islands, such as the Mountain Province, Abra, Palawan, and Mindanao and
Sulu, that none of the pictures represented poses which he had not observed on various occasions,
and that the costumes worn by the people in the pictures are the true costumes regularly worn by
them. Are such pictures obscene or indecent?

The word "obscene" ands the term "obscenity" may be defined as meaning something offensive to
chastify, decency, or delicacy. "Indeceny" is an act against behavior and a just delicacy. The test
ordinarily followed by the courts in determining whether a particular publication or other thing is
obscene within the meaning of the statutes, is whether the tendency of the matter charged as
obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into
whose hands a publication or other article charged as being obscene may fall. Another test of
obscenity is that which shocks the ordinary and common sense of men as an indecency, (29 Cyc.,
1315; 8 R. C. L., 312.)

The Philippine statute does not attempt to define obscene or indecent pictures, writings, papers, or
books. But the words "obscene or indecent" are themselves descriptive. They are words in common
used and every person of average intelligence understand their meaning. Indeed, beyond the
evidence furnished by the pictures themselves, there is but little scope for proof bearing on the issue
of obscenity or indecency. Whether a picture is obscene or indecent must depend upon the
circumstances of the case. (People vs. Muller [1884], 96 N. Y., 408; 48 Am. Rep., 635.)

Considerable light can be thrown on the subject by turning to the Federal Laws prohibiting the use of
the mails for obscene matter and prohibiting the importation into the Philippine Islands of articles,
etc., of obscene or indecent character. (U. S. Rev. Stat., art. 3893; 36 stat. at L., 135; 7 Fed. Stat.
Ann., 1194, sec. 3[b].)

"Obscene," as used in the Federal Statutes making it a criminal offense to place in the mails any
obscene, lewd, or lascivious publication, according to the united States Supreme Court and lesser
Federal courts, signifies that form of immorality which has relation to sexual impurity, and has the
same meaning as is given at common law in prosecutions for obscene libel. (Swearingen vs. U. S.
[1896], 161 U. S., 446; U. S. vs. Males [1892], 51 Fed., 41; 6 Words and Phrases, 4888, 4889.)

The case of United States vs. Harmon ([189], 45 Fed., 414), grew out of an indictment for
despositing an obscene publication in a United States post-office in violator of the Postal Law. Judge
Philips said:

The statute does not undertake to define the meaning of the terms "obscene," etc., further than may
be implied by the succeeding phrase, "or other publication of an indecent character." On the well-
organized canon of construction these words are presumed to have been employed by the law-
maker in their ordinary acceptation and use.

As they cannot be said to have acquired any technical significance as applied to some
particular matter, calling, or profession, but are terms of popular use, the court might perhaps
with propriety leave their import to the presumed intelligence of the jury. A standard
dictionary says that "obscene" mean "offensive to chastity and decency; expressing or
presenting to the mind or view something which delicacy, purity, and decency forbid to be
exposed." This mere dictionary definition may be extended or amplified by the courts in
actual practice, preserving, however, its essential though, and having always due regard to
the popular and proper sense in which the legislature employed the term. Chief Justice
Cockburn, in Rex vs. Hicklin (L. R. 3 Q. B., 360), said: "The test of obscenity is this: Where
the tendency of the matter charged as obscene is to deprave and corrupt those whose minds
are open to such immoral influences, and into whose hands a publication of this sort may
fall;" and where "it who suggest to the minds of the young of either sex, or even to persons of
more advanced years, thoughts of the most impure and libidinous character." So, also, it has
been held that a book is obscene which is offensive to decency or chastity, which is
immodest, which is indelicate, impure, causing lewd thoughts of an immoral tendency." U. S.
vs. Bennet, 16 Blatchf., 338. Judge Thayer, in U. S. vs. Clarke, 38 Fed. Rep., 732, observed:

"The word "obscene" ordinarily means something which is offensive to chastity;

something that is foul or filthy, and for that reason is offensive to pure-minded
persons. That is the meaning of the word in the concrete; but when used, as in the
statute, to describe the character of a book, pamphlet, or paper, it means containing
immodest and indecent matter, the reading whereof would have a tendency to
deprave and corrupt the minds of those into whose hands the publication might fall
whose minds are open to such immoral influences."

Laws of this character are made for society in the aggregate, and not in particular. So, while
there may be individuals and societies of men and women of peculiar motions are
idiosyncrasies, whose moral sense would neither be depraved nor offended by the
publication now under consideration, yet the exceptional sensibility, or want of sensibility, of
such cannot be allowed as a standard by which its obscenity or indecency is to be tested.
Rather is the test, what is the judgment of the aggregate sense of the community reached by
it? What is its probable, reasonable effect on the sense of decency, purity, and chastity of
society, extending to the family, made up of men and women, young boys and girls, — the
family, which is the common nursery of mankind, the foundation rock upon which the state
reposes?

. . . To the pure all things are pure, is too poetical for the actualities of practical life. There is
in the popular conception and heart such a thing as modesty. It was born in the Garden of
Eden. After Adam and Eve ate of the fruit of the tree of knowledge they passed from the
condition of perfectibility which some people nowadays aspire to, and, their eyes being
 opened, they discerned that there was both good and evil; "and they knew that they were
naked; and they sewed fig leaves together, and made themselves aprons." From that day to
this civilized man has carried with him the sense of shame, — the feeling that there were
some things on which the eye — the mind — should not look; and where men and women
become so depraved by the use, or so insensate from perverted education, that they will not
evil their eyes, nor hold their tongues, the government should perform the office for them in
protection of the social compact and the body politic.

As above intimated, the Federal statue prohibits the importation or shipment into the Philippine
Islands of the following: "Articles, books, pamphlets, printed matter, manuscripts, typewritten matter,
paintings, illustrations, figures or objects of obscene or indecent character or subversive of public
order." There are, however, in the record, copies of reputable magazines which circulate freely
thruout the United States and other countries, and which are admitted into Philippines without
question, containing illustrations identical in nature to those forming the basis of the prosecution at
bar. Publications of the Philippine Government have also been offered in evidence such as Barton's
"Ifugao Law," the "Philippine Journal of Science" for October, 1906, and the Reports of the Philippine
Commission for 1903, 1912, and 1913, in which are found illustrations either exactly the same or
nearly akin to those which are now impugned.

It appears therefore that a national standard has been set up by the Congress of the United States.
Tested by that standard, it would be extremely doubtful if the pictures here challenged would be held
obscene or indecent by any state of Federal court. It would be particularly unwise to sanction a
different type of censorship in the Philippines that in the United States, or for that matter in the rest of
the world.

The pictures in question merely depict persons as they actually live, without attempted presentation
of persons in unusual postures or dress. The aggregate judgment of the Philippine community, the
moral sense of all the people in the Philippines, would not be shocked by photographs of this type.
We are convicted that the post-card pictures in this case cannot be characterized as offensive to
chastity, or foul, or filthy.

We readily understand the laudable motives which moved the Government to initiate this
prosecution. We fully appreciate the sentiments of colleagues who take a different view of the case.
We would be the last to offend the sensibilities of the Filipino people and the sanction anything which
would hold them up to ridicule in the eyes of mankind. But we emphasize that we are not deciding a
question in political theory or in social ethics. We are dealing with a legal question predicated on a
legal fact, and on this question and fact, we reach the conclusion that there has not been proved a
violation of section 12 of the Libel Law. When other cases predicated on other states of facts are
brought to our attention, we will decide them as they arise.

We seem to recall the statement of counsel that the proprietor of the photographic concern whom he
represents would on his own initiative place suitable and explicit inscriptions on the pictures so that
no one may be misled as to them. Indeed, he might even go further and out of consideration for the
natural sensibilities of his customers, withdraw from sale certain pictures which can be pointed out to
him.

We hold that pictures portraying the inhabitants of the country in native dress and as they appear
and can be seen in the regions in which they live, are not obscene or indecent within the meaning of
the Libel Law. Disagreeing therefore with the appellant on his technical argument but agreeing with
him on his main contention, it becomes our duty to order the dismissal of the information.  1awph!l.net
Judgment is reversed, the information is dismissed, and the defendant-appellant is acquitted with all
costs de oficio. So ordered.

Johnson, Street, Avanceña, Villamor and Johns, JJ., concur.

Mr. Chief Justice Manuel Araullo was present at the time this case was voted and then voted with
Mr. Justice Romualdez. (Sgd.) E. FINLEY JOHNSON.

Separate Opinions

ROMUALDEZ, J., dissenting:

I do not agree with the view taken by the majority as to the nature of the photographic pictures in
question. While said pictures cannot, strictly, be termed obscene, they must, however, be regarded
as indecent, for they are so.

Such pictures offend modesty and refinement, and for this reason, they are indecent. This is shown
by common sense. No woman claiming to be decent would dare to stand before the public in Manila,
where said pictures were exhibited, in the same fashion as these pictures are.

It is alleged that these pictures were taken from nature in non-Christian regions. We agree that in
said regions they are not, perhaps, regarded as offensive to modesty, and, therefore, are
accidentally not indecent there. But in the City of Manila where they were exhibited, no doubt they
are.

And the law prohibits the exhibition not only of obscene pictures, but of indecent as well. (Sec. 12,
Act No. 277.)

I understand that the judgment appealed from should have been affirmed.

CASE #2:

G.R. No. L-36528 September 24, 1987

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
THE CITY COURT OF MANILA, BRANCH VI and AGAPITO GONZALES Y
VENERACION, respondents.

PADILLA, J.:
Petition for review on certiorari to set aside the order of the respondent City Court of Manila, Branch
VI, dated 20 January 1973, dismissing the information (for violation of Article 201 (3) of the Revised
Penal Code) against the accused, herein respondent Agapito Gonzales, in Criminal Case No. F-
147348 and its amended order, dated 16 March 1973, denying petitioner's motion for
reconsideration of the first order.

Respondent Agapito Gonzales, together with Roberto Pangilinan, was accused of violating Section
7, in relation to Section 11, Republic Act No. 3060 and Article 201 (3) of the Revised Penal Code, in
two (2) separate informations filed with the City Court of Manila on 4 April 1972.

On 7 April 1972, before arraignment in the two (2) cases, the City Fiscal amended the information in
Criminal Case No. F-147347 (for violation of Section 7 in relation to Section 11, Rep. Act No. 3060),
by alleging that the accused.

conspiring, and confederating together, and mutually helping each other did then and
there wilfully, unlawfully, and feloniously publicly exhibit and cause to be publicly
exhibited ... completed composite prints of motion film, of the 8 mm. size, in color
forming visual moving images on the projection screen through the mechanical
application of the projection equipment, which motion pictures have never been
previously submitted to the Board of Censors for Motion Pictures for preview,
examination and partnership, nor duly passed by said Board, in a public place, to wit:
at Room 309, De Leon Building, Raon Street corner Rizal Avenue, [Manila].

On the other hand, the information in Criminal Case No. F-147348 (for violation of Article 201 (3) of
the Revised Penal Code) was amended to allege that, on the same date, 16 July 1971, the same
accused,

conspiring and confederating together and actually helping each other, did then and
there wilfully, unlawfully, feloniously and publicly exhibit, through the mechanical
application of movie projection equipment and the use of projection screen, indecent
and immoral motion picture scenes, to wit: motion pictures of the 8 mm. size, in color,
depicting and showing scenes of totally naked female and male persons with
exposed private parts doing the sex act in various lewd and obvious positions,
among other similarly and equally obscene and morally offensive scenes, in a place
open to public view, to wit: at Room 309, De Leon Building, Raon Street corner Rizal
Avenue, [Manila].

On 31 May 1972, upon arraignment, accused Agapito Gonzales pleaded not guilty to both charges.
The other accused, Roberto Pangilinan, was not arraigned as he was (and he still is) at large.

On 26 June 1972, accused Agapito Gonzales filed a motion to quash the informations in the two (2)
cases, on the ground that said informations did not charge an offense. The motion was denied on 17
July 1972 and the cases were set for trial on 7 August 1972.

No hearing was held on 7 August 1972, however, as the accused moved for postponement of the
trial set on said date and the trial set on two (2) other dates. On 15 November 1972, the accused
Gonzales moved for permission to withdraw his plea of "not guilty" in Criminal Case No. F-147348,
without however, substituting or entering another plea. The Court granted the motion and reset the
hearing of the cases for 27 December 1972.

On 27 December 1972, accused Gonzales moved to quash the information in Criminal Case No. F-
147348 on the ground of double jeopardy, as there was according to him, also pending against him
Criminal Case No. F-147347, for violation of Rep. Act No. 3060, where the information allegedly
contains the same allegations as the information in Criminal Case No. F-147348.

Petitioner opposed the motion to quash but the respondent City Court, in an order, dated 20 January
1973, dismissed the case (Criminal Case No. F-147348) stating thus:

In one case (F-147347), the basis of the charge is a special law, Rep. Act No. 3060.
In the other case (F-147348), the basis of the same is the pertinent provision of the
Revised Penal Code. Considering that the allegations in the information of said
cases are Identical the plea entered in one case by the accused herein can be
reasonably seen as exposing him to double jeopardy in the other case, as said
allegations therein are not only similar but [sic] Identical facts.

After the dismissal of Criminal Case No. F-147348, or on 7 February 1973, in Criminal Case No. F-
147347, the accused changed his plea of "not guilty" and entered a plea of "guilty" for violation of
Rep. Act No. 3060. He was accordingly sentenced to pay a fine of P600.00.

On 10 February 1973, petitioner filed a motion for reconsideration of the order of 20 January 1973,
dismissing Criminal Case No. F-147348. This was however denied by respondent court in its order
dated 15 March 1973, and in its amended order dated 16 March 1973; hence, this petition for review
on certiorari.

Petitioner contends that the accused could not invoke the constitutional guarantee against double
jeopardy, when there had been no conviction, acquittal, dismissal or termination of criminal
proceedings in another case for the same offense.  1 The respondent, on the other hand, argues that conviction or
acquittal in, or dismissal or termination of a first case is not necessary, so long as he had been put in jeopardy of being convicted or
acquitted in the first case of the same offense.2

It is a settled rule that to raise the defense of double jeopardy, three requisites must be present: (1) a
first jeopardy must have attached prior to the second; (2) the first jeopardy must have been validly
terminated; and (3) the second jeopardy must be for the same offense, or the second offense
includes or is necessarily included in the offense charged in the first information, or is an attempt to
commit the same or a frustration thereof

All these requisites do not exist in this case.

The two (2) informations with which the accused was charged, do not make out only one offense,
contrary to private respondent's allegations. In other words, the offense defined in section 7 of Rep.
Act No. 3060 punishing the exhibition of motion pictures not duly passed by the Board of Censors for
Motion Pictures does not include or is not included in the offense defined in Article 201 (3) of the
Revised Penal Code punishing the exhibition of indecent and immoral motion pictures.

The two (2) offenses do not constitute a jeopardy to each other. A scrutiny of the two (2) laws
involved would show that the two (2) offenses are different and distinct from each other. The relevant
provisions of Rep. Act No. 3060 state:

Sec. 7. It shall be unlawful for any person or entity to exhibit or cause to be exhibited
in any motion picture theater or public place, or by television within the Philippines
any motion picture, including trailers, stills, and other pictorial advertisements in
connection with motion pictures, not duly passed by the Board; or to print or cause to
be printed on any motion picture to be exhibited in any theater, or public place or by
television, a label or notice showing the same to have been previously passed by the
 said Board when the same has not been previously authorized, except motion
pictures imprinted or exhibited by the Philippine Government and/or its departments
and agencies, and newsreels.

Sec. 11. Any violation of Section seven of this Act shall be punished by imprisonment
of not less than six months but not more than two years, or by a fine of not less than
six hundred nor more than two thousand pesos, or both at the discretion of the court.
If the offender is an alien he shall be deported immediately. The license to operate
the movie theater or television shall also be revoked. Any other kind of violation shall
be punished by imprisonment of not less than one month nor more than three
months or a fine of not less than one hundred pesos nor more than three hundred
pesos, or both at the discretion of the court. In case the violation is committed by a
corporation, partnership or association, the liability shall devolve upon the president,
manager, administrator, or any office thereof responsible for the violation.

On the other hand, Article 201 (3) of the Revised Penal Code provides:

Art. 201. Immoral doctrines, obscene publications and exhibitions.- The penalty

of prision correccional in its minimum period, or a fine ranging from 200 to 2,000
pesos, or both, shall be imposed upon:

... 3. Those who in theaters, fairs, cinematographs, or any other place open to public
view, shall exhibit indecent or immoral plays, scenes, acts, or shows; ...

It is evident that the elements of the two (2) offenses are different. The gravamen of the offense
defined in Rep. Act No. 3060 is the public exhibition of any motion picture which has not been
previously passed by the Board of Censors for Motion Pictures. The motion picture may not be
indecent or immoral but if it has not been previously approved by the Board, its public showing
constitutes a criminal offense.   On the other hand, the offense punished in Article 201 (3) of the
3

Revised Penal Code is the public showing of indecent or immoral plays, scenes, acts, or shows, not
just motion pictures. 
4

The nature of both offenses also shows their essential difference. The crime punished in Rep. Act
No. 3060 is a malum prohibitum in which criminal intent need not be proved because it is presumed,
while the offense punished in Article 201 (3) of the Revised Penal Code is malum in se, in which
criminal intent is an indispensable ingredient.

Considering these differences in elements and nature, there is no Identity of the offenses here
involved for which legal jeopardy in one may be invoked in the other.   Evidence required to prove
5

one offense is not the same evidence required to prove the other. The defense of double jeopardy
cannot prosper. As aptly put in People v. Doriquez.6

It is a cardinal rule that the protection against double jeopardy may be invoked only
for the same offense or Identical offense. A single act may offend against two (or
more) entirely distinct and unrelated provisions of law, and if one provision requires
proof of an additional fact or element which the other does not, an acquittal or
conviction or a dismissal of the information under one does not bar prosecution
under the other. (People v. Bacolod, 89 Phil. 621; People v. Alvarez, 45 Phil. 24).
Phrased elsewhere, where two different laws (or articles of the same code) define
two crimes, prior jeopardy as to one of them is no obstacle to a prosecution of the
other, although both offenses arise from the same facts, if each crime involves some
 important act which is not an essential element of the other. (People v. Alvarez, 45
Phil. 472).  (Emphasis supplied)
7

Petitioner also questions the propriety of allowing the accused in Criminal Case No. F-147348 to
withdraw his plea of not guilty in order to file a motion to quash on the ground of double jeopardy.
Petitioner argues:

It is true that on February 3, 1973, the trial court finally convicted respondent
Gonzales in Criminal Case No. F-147347 by imposing on him a fine of P600.00. But
it is obvious that respondent Gonzales's conviction in that case cannot retroactively
supply the ground for the dismissal of Criminal Case No. F-147348.

But even if conviction in Criminal Case No. F-147347 preceded the dismissal of
Criminal Case No. F-147348, still that conviction cannot bar the prosecution for
violation of Article 201 (3) of the Revised Penal Code, because, by pleading to the
charge in Criminal Case No. F-147348 without moving to quash the information, the
accused (now the respondent) Gonzales must be taken to have waived the defense
of double jeopardy, pursuant to the provisions of Rule 117, section 10. (Barot v.
Villamor, 105 Phil. 263 [1959]) It is only in cases where, after pleading or moving to
quash on some other grounds, the accused learns for the first time that the offense of
which he is charged is an offense for which he has been in jeopardy that the court
may in its discretion entertain at any time before judgment a motion to quash on that
ground. ... In the case at bar, however, the fact is that the accused (now the
respondent Gonzales) was arraigned in the same court. He, therefore, cannot claim
ignorance of the existence of another charge against him for supposedly the same
offense. 8

Petitioner's argument is well-taken. Sec. 10, Rule 117, of the Rules of Court, before its amendment
stated —

SEC. 10. Failure to move to quash-Effect of- Exception. — If the defendant does not
move to quash the complaint or information before he pleads thereto he shall be
taken to have waived all objections which are grounds for a motion to quash except
when the complaint or information does not charge an offense, or the court is without
jurisdiction of the same. If, however, the defendant learns after he has pleaded or
has moved to quash on some other ground that the offense for which he is now
charged is an offense for which he has been pardoned, or of which he has been
convicted or acquitted or been in jeopardy, the court may in its discretion entertain at
any time before judgment a motion to quash on the ground of such pardon,
conviction, acquittal or jeopardy. (Emphasis supplied)

However, it must be noted that, under the 1985 Rules, the provision now reads as follows:

Failure to move or quash or to allege any ground therefore. The failure of the

accused to assert any ground of a motion to quash before he pleads to the complaint
or information, either because he did not file a motion to quash or failed to allege the
same in said motion, shall be deemed a waiver of the grounds for a motion to quash,
except the grounds of no offense charged, lack of jurisdiction, extinction of the
offense or penalty, and jeopardy. ... 9

The above, being an amendment favorable to the accused, the benefit thereof can be extended to
the accused-respondent. However, whatever benefit he may derive from this amendment, is also
illusory. For, as previously noted, there is no double jeopardy which gave rise to a valid motion to
quash.

The People (petitioner) rightly appealed the dismissal of Criminal Case No F-147348. For, as ruled
in People v. Desalisa: 10

As a general rule, the dismissal or termination of a case after arraignment and plea
of the defendant to a valid information shall be a bar to another prosecution for the
offense charged, or for any attempt to commit the same or frustration thereof, or for
any offense which necessarily includes or is necessarily included in the complaint or
information (Sec. 9, Rule 113). However, an appeal by the prosecution from the
order of dismissal (of the criminal case) by the trial court shall not constitute double
jeopardy if (1) the dismissal is made upon motion, or with the express consent, of the
defendant, and (2) the dismissal is not an acquittal or based upon consideration of
the evidence or of the merits of the case; and (3) the question to be passed upon by
the appellate court is purely legal so that should the dismissal be found incorrect, the
case would have to be remanded to the court of origin for further proceedings, to
determine the guilt or innocence of the defendant. 11

WHEREFORE, the petition is granted. The appealed orders are hereby reversal and set aside. Criminal Case No. F-147348 is ordered
reinstated and remanded to the respondent Court for trial according to law.

SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Paras, Feliciano, Bidin, Sarmiento and
Cortes, JJ., concur.

Gancayco, J., is on leave.

Separate Opinions

 
CRUZ, J., concurring.

I fully concur with the ponencia of Mr. Justice Teodoro Padilla but reserve judgment on Republic Act
No. 3060, the validity of which is here presumed, until its constitutionality is squarely raised in an
appropriate proceeding for a full examination of its effects on freedom of expression.

Gutierrez, Jr., J., concur.

Separate Opinions
CRUZ, J., concurring.

I fully concur with the ponencia of Mr. Justice Teodoro Padilla but reserve judgment on Republic Act
No. 3060, the validity of which is here presumed, until its constitutionality is squarely raised in an
appropriate proceeding for a full examination of its effects on freedom of expression.

Gutierrez, Jr., J., concur.

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