Petition for certiorari seeking the review of the decision of the Court of Appeals^[1] sustaining the order of the Court of First Instance of Bulacan denying the motion to quash filed by petitioner to an information for violation of Article 188, paragraph 2 of the Revised Penal Code.

It appears that petitioner was charged with violation of Article 189, paragraph 1, of the Revised Penal Code in an information quoted as follows:

"That in or about during the period from June, 1970 to October, 1970, in the municipality of Valenzuela, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Manuel Sy y Lim, in un­fair competition and for the purpose of deceiving or defrauding the Sea Commercial Company, Incor­porated, a domestic corporation duly organized under the laws of the Philippines, of its legitimate trade or the public in general, did then and there wilfully, unlawfully and feloniously sell or offer for sale hand pumps of inferior quality and labelled JETMATIC DRAGON HAND PUMP and at a lower price and giving them the general appearance of the JETMATIC DRAGON hand pumps of the Sea Commercial Company, Incorporated, as to the outside appearance, including, among others, the color, the embossed words PAT No. 463490 on the spout, the embossed words MODEL chamber assembly, the embossed words JETMATIC DRAGON HAND PUMP on the lateral surface of the cylinder assembly and many other parts both as to the design and the materials used which induced the public to believe that the JET­MATIC DRAGON HAND pumps offered are those of the Sea Commercial Company, Incorporated, to the damage and prejudice of the said Sea Commercial Company, Incorporated and the general public."^[2]

After trial, the trial court rendered judgment the dispositive portion of which reads:

"WHEREFORE, the prosecution having failed to prove that the accused gave his goods the general appearance of the goods of another manu­facturer or dealer, this Court finds him not guilty of the same and acquits him of the charge of violating Article 189, paragraph 1 of the Revised Penal Code. However, the Court finds that the evidence submitted in this case, show prima facie that the accused has violated Article 188, No. 2, of the Revised Penal Code and the Court, therefore, orders the Fiscal to prepare the corresponding information charging the accused Manuel Sy y Lim with violation of Article 188, No. 2 of the Revised Penal Code and to file the same within five (5) days from today."^[3]

The respondent Fiscal filed the information as ordered by the trial court, alleging as follows:

"That in or about or during the period from June, 1970 to October, 1970, in the municipality of Valenzuela, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Manuel Sy y Lim, in infringement of trade-mark and for the purpose of deceiving or defrauding the Sea Commercial Company, Incorporated, a domestic corporation duly organized under the laws of and doing business in the Philippines, of its legitimate trade and/or the public in general, did then and there wilfully, unlawfully and feloniously sell and/or offer for sale hand pumps of inferior quality and labelled JETMATIC DRAGON HAND PUMP at a lower price, accused knowing fully well that the trade­mark JETMATIC DRAGON HAND PUMP has been fraudulently used in the said hand pumps, thereby giving them the general appearance of the registered JETMATIC DRAGON HAND PUMP being sold and/or being offered for sale are those of the Sea Commercial Company, Incorporated, when in fact they are not to the damage and prejudice of the said Sea Com­mercial Company, Incorporated and the general public."^[4]

To the above information, petitioner filed a motion to quash alleging that it did not conform to the prescribed form; that the Court had no jurisdiction over the case because no preliminary investigation was conducted, thereby depriving accused of due process; and that the new informa­tion would place accused in double jeopardy.^[5] As already stated, this motion was denied.

In the instant case, petitioner makes the following assignment of errors:

I

"THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONER IS NOT PLACED IN DOUBLE JEOPARDY BY HIS PROSECUTION UNDER THE SECOND INFORMATION IN QUESTION.

II

"THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT PETITIONER COULD BE VALIDLY ARRAIGNED AND TRIED UNDER THE SECOND INFOR­MATION WITHOUT A PRELIMINARY INVESTIGATION HAVING BEEN PREVIOUSLY CONDUCTED THEREON BY THE FISCAL, AS INSISTED UPON.

III

"THE HONORABLE COURT OF APPEALS ERRED IN DENYING PETITIONER'S PLEA FOR CERTIORARI AND MANDAMUS TOWARD QUASHING THE SECOND INFOR­MATION IN QUESTION."^[6]

1. It is the contention of petitioner that by the filing of the second information, he would be placed in double jeopardy because under the first information, he could have been convicted of the offense charged in the second informa­tion. Since he was acquitted under the first information, to charge him again for the same offense as aforestated would according to petitioner, constitute double jeopardy.

Petitioner supports this contention by pointing out that the only difference between the two informations, in so far as the charge of infringement of trademark is con­cerned, is that in the first information, there is no alle­gation that the trademark is registered while in the second information, the allegation is made that the trademark is registered. He contends, however, that registration is not an element of the crime as defined in Article 188, par. 2, of the Revised Penal Code. The absence of allegation of registration of the trademark is, therefore, no impediment to his conviction for infringement of trademark under the first information which, in all other respects, alleged what would constitute the aforesaid offense. Although by express designation of the offense, what was charged there­in is unfair competition, it is the allegation of the infor­mation that determines what offense is being actually charged.

In advancing the above propositions, petitioner would treat the two offenses of infringement of trademark and un­fair competition as separate and distinct, not as one neces­sarily included in, or including, the other. Upon this pre­mise, it cannot be successfully contended that what happened with respect to the offense of infringement of trademark, assuming it was also charged in the first information as a separate offense, is, by no manner of reasoning, one of ac­quittal for said offense. The trial court precisely found sufficient evidence with which to indict him for said offense and accordingly ordered the filing of a more proper informa­tion, proceeding in accordance with Section 13 paragraph 2, of Rule 110 and Section 12, of Rule 119 of the Rules of Court, which are quoted:

"If it appears at any time before judgment that a mistake has been made in charging the pro­per offense the court may dismiss the original complaint or information and order the filing of a new one charging the proper offense, provided the defendant would not be placed thereby in double jeopardy, and may also require the wit­nesses to give bail for their appearance at the trial.

"SEC. 12. When mistake has been made in charging the proper offense.- When it appears at any time after trial has begun and before judgment is taken, that a mistake has been made in charging the proper offense, and the defendant cannot be convicted of the offense charged, nor of any other offense necessarily included therein, the defendant must not be discharged, if there ap­pears to be a good cause to detain him in custody, but the court must commit him to answer for the proper offense, and may also require the witnesses to give bail for their appearance at the trial."

In the opinion of the trial court, the first information did not properly charge the offense of infringement of trademark, for what was expressly charged was unfair competi­tion. In proceeding in accordance with the above quoted provisions of the Rules of Court, the trial court evidently felt it can not properly convict the accused of infringement of trademark, although it found evidence sufficient to justify filing the proper information for said offense. But, un­doubtedly, the court found it not proper to acquit the accused of said offense. Hence there can be no double jeopardy as to the offense charged in the second information on the ground of a prior acquittal for the same offense.

It is, therefore, absolutely correct to hold that there is on the basis of the facts as stated above, no double jeo­pardy even on the premise that "registration" is not an essen­tial element of the offense charged in the second information as contended by petitioner. It becomes more so if registra­tion is a necessary element as submitted by the Solicitor General with whom We are inclined to agree, although an express ruling on the matter need no longer be made for not being material nor decisive.

Upon a slightly different theory, petitioner would, likewise, invoke his right against double jeopardy. Thus he cites the case of U. S. vs. Lim Suco^[7] which hold that after conviction for a crime which has various incidents included in it, he cannot be a second time tried for one of those incidents without being twice put in jeopardy. He also cites another case^[8] for the proposition that the charge in the second information for an act already alleged in the first information which flowed from an identical or a single criminal intent, in this case the single criminal act of unfair competition, should not be divided into separate crimes, as would happen if a separate crime of infringement of trademark is to be prosecuted again. More specifically, he cites the case of a charge for illegal importation of explosives as not allowing a subsequent prosecution for illegal possession of the same explosives.^[9] This holds true, according to petitioner, if the description of the offense is merely changed in the second information but which would not make for any substantial difference between the description in the first information and that in the second information, citing Chief Justice Moran.^[10]

What makes the ruling cited by petitioner not appli­cable to the present is that in the cases cited, acquittal was for the offense specifically charged without the trial court expressly finding that for the other offense also charged but not expressly so by the statutory designation of the offense, evidence exists to justify his being held to answer for such offense, in accordance with Section 12, Rule 119 of the Rules of Court, as the trial court in the instant case very explicitly did. It is this circumstance that, clearly and undisputably would prevent double jeopardy to attach, for there is neither acquittal nor conviction, not even dismissal of the case, which might result in double jeopardy arising to ban the proceedings contemplated in the aforecited provisions of the Rules of Court.

From what has been said above, the applicability of Section 13, paragraph 2 of Rule 110, in relation to Section 12, Rule 119, to the case at bar is clear. It is justified by petitioner's own theory that the offense of infringement as charged in the second information was also sufficiently included in the first information as a separate offense. But with respect thereto, the trial court made no decision, either of acquittal or conviction. It felt that under the information as so worded, conviction was not legally possible obviously for not sufficiently informing the accused of the nature and cause of the accusation against him, which is one of his constitutional rights, although factually, the assess­ment of the evidence by the court tended towards justifying conviction. Verily, the situation fits into what is contemplated by the provisions of the Rules of Court already referred to, which do not call for a new or separate preliminary inves­tigation, which petitioner contends is indispensable, to which the Solicitor General expressed agreement.

What evidently led the Solicitor General to give his conformity to the stand taken by petitioner as to the neces­sity of a new preliminary investigation is his belief that "judgment has already been rendered acquitting the accused", while the Rules of Court cited speaks of "before judgment." But as already intimated, as to the offense of infringement of trademark, which petitioner himself contends was also charged in the first information, the Court rendered no judgment yet, either for acquittal or for conviction, as it appeared to the trial judge that the accused cannot properly be convicted for said offense, even if conviction was warranted by the evidence, a mistake having been made, as he read the information, and with reason, in charging the proper offense.

However, if petitioner insists on another preliminary investigation, the same may be granted by way of "reinvesti­gation", the Solicitor General who actually represents also the prosecution having expressed conformity to the holding of one. Let it not be said that We are not mindful of the rule that all doubts should be resolved in favor of the ac­cused, a rule which itself should be liberally construed in his favor.

WHEREFORE, as recommended by the Solicitor General, the decision appealed from is modified as to give petitioner the right of preliminary investigation before he is arraigned and tried under the second information for violation of Article 188, paragraph 2, of the Revised Penal Code. No costs.

SO ORDERED. Concepcion, Jr., Abad Santos, and Escolin, JJ., concur. Ericta, J., see separate dissenting opinion. Aquino, J., see dissent. Barredo, J., (Chairman), in the result.

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^[1] Annex "A" to Petition, p. 21, Rollo.

^[2] p. 4, Petitioner's Brief, p. 61, Rollo.

^[3] p. 5, Id.

^[4] pp. 6-7, Id.

^[5] Annex "F" to Petition in C.A.-G. R. No. Sp. 01412.

^[6] pp. 1-2, Petitioner's Brief, p. 61, Rollo.

^[7] 11 Phil. 484.

^[8] U. S. vs. Gustilo, 19 Phil. 208.

^[9] People vs. Elkanish, 90 Phil. 53.

^[10] Comments on the Rules of Court, 1970 Ed. pp. 257­-258, citing People vs. Maria del Carmen, G.R. No. L-3459, January 9, 1951.


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