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[No. 19914. November 27, 1923]

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff

and appellee, vs. PEDRO ALVAREZ, defendant and
appellant.

1. CRIMINAL LAW; "ESTAFA;" ARTICLE 537 OF PENAL

CODE.—The sale of a thing as free when it is subject to an
encumbrance constitutes the crime of estafa defined in
article 537, and not in article 535, paragraph 1, of the
Penal Code.

2. ID.; ID., ACT No. 1508.—Act No. 1508 does not expressly
repeal article 537 of the Penal Code. Neither does it
impliedly repeal the same, because both laws are not
incompatible, nor do they exclude each other—they define
distinct offenses, penalize different acts, and can be
applied independently.

3. ID.; ID.; ID.; ID.—Article 537 of the Penal Code punishes

him who sells a thing as free when in fact it is subject to
an encumbrance; whereas Act No. 1508 punishes him who
sells a mortgaged chattel, without the consent in writing
of the mortgagee. An act may constitute the crime defined
in article 537 of the Penal Code without being a violation
of Act No. 1508 and, conversely, an act may constitute a
violation of Act No. 1508 without falling within the
provision of article 537 of the Penal Code.

4. ID.; ID.; ID.; ID.—To constitute the crime punished in

article 537 of the Penal Code, it is sufficient that the thing
mortgaged be sold as free, even though the vendor may
have obtained the consent of the mortgagee in writing, as
it is sufficient, in order to constitute a violation of Act No.
1508, that the sale be made by the vendor without
obtaining the consent in writing of the mortgagee, even if
he should inform the purchaser that the thing sold is
mortgaged. Act No. 1508 protects the mortgagee, while
article 537 of the Penal Code protects the purchaser in
good faith.

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5. ID.; ID.; ID.; ID.; DOUBLE JEOPARDY.—Where two

different laws define two crimes, the conviction of one of
them is no obstacle to that of the other, although both
offenses arise from the same facts, if each crime involves
some important act which is not an essential

473

VOL. 45, NOVEMBER 27, 1923 473

People vs. Alvarez

element of the other. (Garcia Gavieres vs. United States,

220 U. S., 338; 55 L, ed., 489; 41 Phil., 961.)

APPEAL from a judgment of the Court of First Instance of

Manila. V. del Rosario, J.
The facts are stated in the opinion of the court.
Jose Arnaiz for appellant.
Attorney-General Villa-Real for appellee.

AVANCEÑA, J.:

The accused was the owner of a two-passenger automobile

of "Dodge Bros." manufacture. On the 27th of September,
1920, he mortgaged it to the Philippine Automobile
Exchange, Inc. This mortgage being in force, the accused
sold on January 8, 1921, the automobile to Mr. Anselmo
Singian for the sum of P2,500, P700 having been paid in
cash, the balance to be paid in thirteen monthly
instalments of P125 each, the last instalment being of
P175, with interest at 12 per centum per annum. To this
end, Mr. Anselmo Singian delivered to the accused a
promissory note for the balance of the price payable in the
manner above stated, Upon this note Mr. Anselmo Singian
has paid the sum of P390 which together with the P700
makes a total of P1,090. Subsequently, the Philippine
Automobile Exchange, Inc., making use of the right
granted it by the mortgage of the automobile, took the
same from Mr. Singian, who thus lost both the automobile
and the sum of P1,090 that he had paid to the accused on
account of the price. Mr. Anselmo Singian bought this
automobile in the belief that it was free from all liens and
encumbrances, and the accused, on the other hand, did not
tell Mr. Singian that the automobile was mortgaged.
In view of these facts the following information was filed
against the accused:

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"That on or about the 8th day of January, 1921, in the

City of Manila, Philippine Islands, the said Pedro Alvarez
did then and there wilfully, unlawfully, and feloniously,
through false representations made to one Anselmo
Singian

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People vs. Alvarez

that he possessed as owner a Dodge roadster, bearing

chassis No. 186139, motor No. 23833 with license No. 1356
for the year 1920, free from all liens and encumbrances and
as such had the right to dispose thereof, when in truth and
in fact, as said accused well knew, said automobile was
then the property of the Philippine Automobile Exchange,
Inc., and had no right to dispose of it. succeed in inducing
the said Anselmo Singian to buy said automobile, as in fact
said Singian bought it and paid Pedro Alvarez therefor the
sum of two thousand five hundred pesos (P2,500),
Philippine currency; thus defrauding the said Anselmo
Singian in the manner above stated in the said sum of
P2,500, equivalent to 12,500 pesetas."
Under this information and the facts above stated, the
lower court found the accused guilty of the crime of estafa
defined in paragraph 1 of article 535, in connection with
paragraph 2 of article 534, of the Penal Code, and
sentenced him to six months of arresto mayor, to indemnify
the offended party, Anselmo Singian, in the sum of P1,090,
with the corresponding subsidiary imprisonment in case of
insolvency, and to pay the costs of the action. From this
judgment the defendant appealed.
As the accused did not inf orm Mr. Singian, when he
sold the automobile, that it was mortgaged, this omission
constitutes a deliberate concealment of this fact, which led
Mr. Singian to believe, as he did in fact believe, that the
automobile was not mortgaged, for under the
circumstances of this case and in the ordinary course of
business, it is evident that had Mr. Singian known that the
automobile was mortgaged, he would not have bought it for
the price he agreed to pay. This being the fact, the case is
one of sale of a thing as free when as a matter of fact it is
subject to an encumbrance, which constitutes the crime of
estafa defined in article 537, and not in article 535,
paragraph 1, of the Penal Code, that was applied by the
trial court.

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People vs. Alvarez

It is alleged that article 537 of the Penal Code was repealed

by section 10 of Act No. 1508 of the Philippine Legislature,
which provides:

"A mortgagor of personal property shall not sell or pledge such

property, or any part thereof, mortgaged by him without the
consent of the mortgagee in writing on the back of the mortgage
and on the margin of the record thereof in the office where such
mortgage is recorded."

This contention is groundless. Act No. 1508 does not

expressly repeal article 537 of the Penal Code. On the other
hand, neither can it be held to have repealed it impliedly,
for both laws are not incompatible, nor do they exclude
each other—they define distinct offenses, penalize different
acts and can be applied independently. Article 537 of the
Penal Code punishes him who sells a thing as free when in
fact it is subject to an encumbrance; whereas Act No. 1508
punishes him who sells a mortgaged chattel, without the
consent in writing of the mortgagee. An act may constitute
the crime defined in article 537 of the Penal Code without
being a violation of Act No. 1508 and, conversely, an act
may constitute a violation of Act No. 1508 without falling
within the provision of article 537 of the Penal Code.
The acts penalized by both laws are essentially different.
While an act is common to both offenses—that the selling
of a mortgaged property—yet it does not in itself constitute
either one of these offenses. The concurrence of another
additional act—different in each case, and which is what is
punished—is necessary in order to commit the one, or the
other, offense. To constitute the crime punished in article
537 of the Penal Code it is sufficient that the thing
mortgaged be sold as free, even though the vendor may
have obtained the consent of the mortgagee in writing, as it
is sufficient, in order to constitute a violation of Act No.
1508, that the sale be made by the vendor without
obtaining the consent in writing of the mortgagee, even if
he should
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People vs. Alvarez
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inform the purchaser that the thing sold is mortgaged. It

may be said that the crime punished by Act No. 1508 is
new because it was not punished before and is distinct from
the one punished in article 537 of the Penal Code, because
it is not included therein. One of these laws can be violated
without violating the other. According to the theory of the
defense to the effect that Act No. 1508 has repealed article
537 of the Penal Code, the act of selling as free a thing that
is mortgaged would not now be a crime if the vendor
obtains the consent of the mortgagee in writing to the sale.
It is sufficient to enunciate this in order to understand that
that cannot be the intention of the law. It is the mortgagee
that is protected by Act No. 1508, while in article 537 of the
Penal Code it is the purchaser in good faith, and we can see
no reason why it should now be permitted to defraud the
latter without any penal sanction, there being no law
expressly providing to that effect.
The accused sets up also the defense of jeopardy because
he has already been convicted upon the same facts under
Act No. 1508.
It must be noted, in connection with this allegation, that
prior to the institution of this action a complaint was filed
against the accused for a violation of Act No. 1508, which is
as follows:

"That on or about the 8th day of January, 1921, in the City of

Manila, Philippine Islands, the said Pedro Alvarez being then the
mortgagor of a personal property, to wit: a Dodge Roadster,
bearing chassis No. 186139, motor No. 238133 and license No.
1356 (1920), did then and there wilfully, unlawfully and
feloniously sell and transfer said automobile to Anselmo Singian,
without the consent of the Philippine Automobile Exchange, Inc.,
in whose favor said automobile was mortgaged for the sum of ?
1,800 according to a chattel mortgage contract entered into
between said Pedro Alvarez, as mortgagor, and the Philippine
Automobile Exchange, Inc., as mortgagee, on September 23, 1920,
and recorded In the office of the register of deeds

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People vs. Alvarez

of the City of Manila, expressed in writing on the back of said

mortgage and on the margin of the record thereof in the office of
the register of deeds, while said mortgage is in full force and
effect."

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In that case the accused was sentenced to twenty-five days'

imprisonment, to indemnify Mr. Singian in the amount of
P1,090 and to pay the costs.
As may be seen, in the complaint filed therein the
appellant was charged with having sold the automobile
without the written consent of the creditor, which is
penalized by Act No. 1508, while in the instant case he is
prosecuted for having sold the automobile to Mr. Singian as
free when as a matter of fact it was mortgaged, which is
what article 537 of the Penal Code penalizes.
From this it clearly appears that the former prosecution
wherein the accused was charged with the crime of selling
a mortgaged automobile without the written consent of the
owner is no obstacle to this action in which he is charged
with estafa for having sold the same automobile as free.
Nor can it be said in this case that the accused was placed
twice in jeopardy, contrary to the provision of the Jones
Law, in which it is prohibited that a person be put twice in
jeopardy for the same offense.
The doctrine applicable to this case was enunciated by
the Supreme Court of the United States in the case of
Garcia Gavieres vs. United States (220 U. S., 338; 55 L. ed.,
489), appealed from the Philippine Islands to that court,
which holding is conclusive upon this court. In that case
the accused was prosecuted f or having insulted a public
officer in violation of article 257 of our Penal Code. The
defense therein set up was that he had previously been
convicted of having conducted himself in an indecent
manner in a public place in violation of a municipal
ordinance. It appeared that the acts for which the accused
was prosecuted in both cases were essentially the same.
Although the matter could have been held to present two
legal aspects, the Supreme Court of the United States
regarded the case as
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People vs. Alvarez

one exclusively relating to the provision of the Philippine

Organic Law above cited, and it was expressly held by that
court that the two offenses there under consideration were
not identical, and that the conviction in the first case was
no obstacle to, the second.
That case appears now in the Philippine Reports (41
Phil., 961), and upon examination thereof it clearly shows
that the test for determining whether or not a prosecution
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for one crime constitutes an (obstacle to a subsequent

action for another distinct crime upon the same facts, is to
inquire whether the facts alleged in the second
information, if proven, would have been sufficient to
support the former information, of which the accused may
have been acquitted or convicted. The gist of the question is
whether or not the same evidence supports the two actions.
Stated in another way, the doctrine of the Gavieres case
is that where two different laws define two crimes, the
conviction of one of them is no obstacle to that 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.
The Supreme Court of the United States having so
broadly and clearly given its view about such a
constitutional point arising from the Organic Law of these
Islands, it is unnecessary for this court to go upon a
lengthy discussion of the matter; but we may say that the
author of the article on criminal law contained in the
Corpus Juris, after saying a word of censure against the so-
called "Proof of same fact," which seems to have been
adopted by some courts, expounds the general doctrine as
follows:
"* * * The safest general rule is that the two offenses
must be in substance precisely the same or of the same
nature or of the same species, so that the evidence which
proves the one would prove the other; or if this is not the
case, then the one crime must be an ingredient of the
other." (16 C. J., 264, sec. 444.)

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People vs. Alvarez

In this connection we may also cite the words found in

Ruling Case Law, giving in synthesis the law on this
matter, to wit:
"A single act may be an offense against two statutes,
and, if each statute requires proof of an additional act
which the other does not, an acquittal or conviction under
either statute does not exempt the defendant from
prosecution and punishment under the other. And there is
no doubt that it is within the power of the legislature to
create two or more offenses which may be committed by a
single act, each of which is punishable by itself. A
conviction or acquittal in such case under either statute
would be no bar to. a conviction under the other, for the
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accused would not be twice in jeopardy for one offense, but

only once in jeopardy for each offense." (8 R. C. L., 149, sec.
135.)
Under these authorities, it is evident that the
constitutional question raised by the appellant is devoid of
any importance. It is not necessary to say that our previous
decisions contain nothing in conflict with this conclusion,
they being rather in accord with it. (U. S. vs. Chan-Cun-
Chay, 5 Phil., 385; U. S. vs. Garcia Gavieres, 10 Phil., 694.)
As to. the indemnity to Mr. Singian in the sum of P1,090
which the accused was sentenced to pay in this case, we
believe that it is unjustified inasmuch as the accused was
already sentenced in the other case to the payment of the
same indemnity.
The judgment appealed from is modified in so. far as the
indemnity in the sum of P1,090 ordered paid to Mr.
Anselmo Singian must be eliminated, and the accused is
sentenced, under article 537, paragraph 2 of the Penal
Code, to two months and one day of arresto mayor and to
pay a fine of P1,090, with subsidiary imprisonment in case
of insolvency, with the costs. So ordered.

Araullo, C. J., Johnson, Street, and Romualdez, JJ.,

concur.

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480 PHILIPPINE REPORTS ANNOTATED

People vs. Alvarez

MALCOLM, J., with whom concur VILLAMOR and

JOHNS, JJ., dissenting:

I am of the opinion that the information in this case should

be dismissed and the defendant and appellant acquitted for
the reason that, applying the rule of Criminal Law
sometimes called the "same transaction test," since the
accused has already been convicted of a violation of the
Chattel Mortgage Law, he should not on the same facts be
convicted of the crime of estafa.
The information in the case charging the accused with
the violation of section 10 of the Chattel Mortgage Law (Act
No. 1508) is set out in the opinion of the majority and, in
brief, alleges that the accused had wilfully, unlawfully, and
feloniously sold and transferred an automobile of which the
accused was the mortgagor to Anselmo Singian, without
the consent of the mortgagee. On this information he was
found guilty and was sentenced to twentyfive days'
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imprisonment and to indemnify Mr. Singian in the sum of

P1,090.
The information charging the accused with the crime of
estafa is likewise set out in the opinion of the majority, and
discloses that the accused was charged with having
defrauded Anselmo Singian in the sum of P2,500 (P1,090).
As stated by the Attorney-General "the fact proved by the
prosecution consists in the accused having sold to Mr.
Singian the automobile in question as free from all
incumbrances when he knew that it was subject to a lien."
Previous decisions of this court have uniformly held that
the unauthorized removal or sale of mortgaged property is
penalized under the provision of the Chattel Mortgage
Law, with the implied inference that this should constitute
the sole penalty to be imposed in this class of cases. (U. S.
vs. Kilayko [1915], 32 Phil., 619; U. S. vs. Iguidez [1917], 36
Phil., 860; U. S. vs. Razon and Tayag [1918], 37 Phil., 856.)
In the case first cited it was said with telling effect, "that
the object of the penal provisions of the Chattel Mortgage
Law is not merely to protect the mortgagee
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People vs. Alvarez

in particular cases in which criminal actions are instituted,

and to secure the payment of the mortgage indebtedness in
such cases (although they may, and should have that effect
in many instances), but also to, give the necessary sanction
to the provision of the statute in the interest of the public
at large, so that in all cases wherein loans are made and
secured under the term of the statute, the mortgage
debtors may be deterred from the violation of its provisions
and the mortgage creditors may be protected against loss
or inconvenience resulting from the wrongful removal or
sale of the mortgaged property."
I am of course not unmindful of the proposition, oft
stated, to the effect, that if two offenses grow out of the
same transaction and such offenses are severable and
distinct, a prosecution for one will not bar a prosecution for
the other. But the corollary to the rule should not be
forgotten, viz.: If the prosecution under the second
information involves the same transaction which was
referred to in the former information and it was or properly
might have been the subject of investigation under that
information, an acquittal or a conviction under the former
information would be a bar to a prasecution under the last
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information. (Pierson vs. State, 159 Ala., 6; Gunter vs.

State, 111 Ala., 23; Gully vs. State, 116 Ga., 527; Bell vs.
State, 103 Ga., 397; State vs. Gapen, 17 Ind. A., 524;
Hughes vs. Com., 131 Ky., 502; State vs. Cooper, 13 N. J.
L., 361; People vs. Grzesczak, 77 Misc., 202; 137 N. Y.
Supp., 538; People vs. Furlong, 127 N. Y. Supp., '422;
People vs. Purcell, 16 N. Y. Supp., 199; State vs. Lawson
and Cheatham, 123 N. C., 740; State vs. Howe, 27 Or., 138;
State vs. Smith, 43 Vt, 324.)
I invite particular attention to the decision of this court
in the case of United States vs. Gustilo ([1911], 19 Phil.,
208), wherein is found the following well-considered
doctrine:
"We are confident that that portion of the Philippine Bill
embodying the principle that no person shall be twice put
in jeopardy of punishment for the same offense should, in
accordance with its letter and spirit, be made to

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482 PHILIPPINE REPORTS ANNOTATED

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cover as nearly as possible every result which flows f rom a

single criminal act impelled by a single criminal intent.
The fact should not be lost sight of that it is the injury to
the public which a criminal action seeks to redress, and by
such redress to prevent its repetition, and not the injury to
individuals. In so far as a single criminal act, impelled by a
single criminal intent, in other words, one volition, is
divided into separate crimes and punished accordingly, just
so far are the spirit of the Philippine Bill and the provisions
of article 89 of the Penal Code violated."
The interests of the offended party have been protected
by the prosecution of the accused for a violation of the
Chattel Mortgage Law. The interests of the public have
likewise been protected by his conviction in that case.
Further prosecutions of the accused for crimes, which the
ingenuity of man finds falling under these same facts
changes a prosecution to a persecution. To punish a man
twice for the same offense shocks one's sense of justice.
Accordingly, I insist with all sincerity that the defendant
and appellant should be acquitted. Judgment modified.

_____________

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