FIRST DIVISION

[G.R. No. L-49454. December 21, 1990.]

PEOPLE OF THE PHILIPPINES , appellant, vs. SALVADOR MONTEIRO ,

The Solicitor General for appellant.

DECISION

CRUZ , J : p

The appellant is questioning the order of the Court of First Instance of Laguna 1 dated May
17, 1976, granting the motion to quash the following information against Salvador
Monteiro:
That on or about the period from January 1964 to May 31, 1974 at Liliw, Laguna
and within the jurisdiction of this Honorable Court, the above-named accused,
being the operator and owner of "Monteiro's Footwear," an establishment
engaged in the manufacture of footwear, did then and there wilfully, unlawfully
and feloniously fail to register and/or report to the Social Security System,
Elizabeth Collantes as member thereof who was employed in said rm or
establishment from January 1964 to May 1974 in violation of the Social Security
Laws; and despite demands failed to register aforesaid employee to the damage
and prejudice of the offended party.

The reason for the quashal was prescription. The trial court agreed with the appellee that
the crime charged, which is punishable only with a ne from P500.00 to P5,000.00 or
imprisonment of not less than six months to more than one year, or both, could no longer
be prosecuted. 2 The law applied was Section 1(b) of Act 3326, as amended, providing
that offenses punishable with imprisonment for more than one month but less than two
years prescribe after four years.
The trial court reckoned the 4-year prescriptive period from January 1964, holding that the
crime was deemed committed from the time the private respondent failed to register the
employee. No other act was needed to complete the crime. The Order applied the case of
People v. Ching Lak, 3 where this Court declared that the prescriptive period for violation of
the War Pro ts Tax Law commenced from the date the accused failed to pay his war
pro ts tax. As the information against Monteiro was led only on November 10, 1975, it
was clear that it was already time-barred under the cited provision.
The appellant contends otherwise. According to the Solicitor General, the 4-year period
should commence, not in January 1964, when the violation started, but in May 1974, when
it was discovered. He cites in support of his view Elizabeth Collantes's statements 4 at the
preliminary investigation of the case and Section 2 of the same Act, providing as follows:
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 SEC. 2. Prescription shall commence to run on the day of the commission of the
violation of the law and if the same be not known at that time, from the discovery
thereof and the institution of judicial proceedings for its investigation and
punishment. Cdpr

For his part, the appellee argues that the appellant cannot change its theory on appeal
from its original position that the offense was a continuing one. He insists that the
prescriptive period should be counted from the date of the alleged violation as this was
not concealed and did not have to be discovered. The statements of Collantes were not
admissible evidence because they had not been formally offered; hence, no proof of
discovery had been presented by the appellant. He also suggests that the subsequent
registration of Collantes with the SSS had the effect of extinguishing the offense and that
in any case the appeal would place him in double jeopardy.
In the recent case of Benedicto v. Abad Santos , 5 also involving the failure to register an
employee with the SSS, the Court declared:
In the case at bar, the information was led against petitioner Benedicto ten (10)
years after the alleged violations had been discovered by the SSS. We hold that
the statutory crime here charged had prescribed by then, the prescriptive period
here applicable being four (4) years.

Although this was not the ratio decidendi of that case, we af rm the conclusion that the
period of prescription for the offense of failure to register with the SSS shall begin from
the day of the discovery of the violation if this was not shown at the time of its
commission. A contrary view would be dangerous as the successful concealment of an
offense during the period xed for its prescription would be the very means by which the
offender may escape punishment.
The Solicitor General was, indeed, not changing his theory on appeal but merely shifting his
emphasis. Even in the lower court, he had consistently opposed the contention that the
offense had prescribed.
We cannot accept the appellee's argument that the appeal should be dismissed because
the appellant had failed to show that it was only in 1974 that the offense was discovered.
That was not his responsibility. On the contrary, the burden of proving that the crime had
prescribed fell on the appellee because it was he who was invoking that af rmative
defense. 6 The fact of prescription not being apparent on the face of the information, it
was incumbent on the appellee to establish the basis of that defense. 7
The trial court should have applied Section 7 of Rule 133 of the Rules of Court, providing as
follows:
Sec. 7. Evidence on Motion. — When a motion is based on facts not appearing of
record, the court may hear the matter on af davits or depositions presented by
the respective parties, but the court may direct that the matter be heard wholly or
partly on oral testimony or depositions.

In Sapida v. De Villanueva , 8 we held that "while the court may rule upon motions solely on
the basis of af davits and counter-af davits, if the af davits contradict each other on
matters of fact, the court can have no basis to make its ndings of facts and the prudent
course is to subject the af ants to cross-examination so that the court can decide whom
to believe."
We note that in the case at bar, the trial court resolved the motion merely on the basis of
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 the amended information, the motion to quash and the opposition thereto. These were
insufficient bases for the findings of fact needed to justify the grant of the motion. The trial
judge did not require submission of af davits and counter-af davits or hold a preliminary
hearing to inform himself of the date when the prescriptive period was supposed to have
commenced. This was because he assumed at the outset that the period of prescription
began in 1964. prLL

In holding that the prescriptive period should begin in January 1964, the trial judge was
merely presuming that the appellant was already aware on that date of the commission of
the crime. There is no proof of this, nor is such knowledge deducible from a reading of the
information. Even the motion to quash did not allege that the appellant already knew of the
violation immediately when it began in January 1964.
The case of People v. Dinsay , 9 where the Court dismissed the information because it had
been led beyond the prescriptive period is not in point. The estafa committed by the
accused was known to the offended party from the very start; one would say the
commission and the discovery of the offense were simultaneous. In the case at bar, it
does not appear that Collantes knew at the outset, that is, from January 1964, that she had
not been registered by the appellee with the SSS. In fact, she said she learned she was not
a member only much later, when she wanted to avail herself of SSS benefits because of the
hospitalization of her husband. 1 0
The appellee's claim that his subsequent registration of Collantes with the SSS
extinguished his current liability, if any, is not acceptable. If subsequent compliance with
the law were suf cient to condone past violation, then the penal clause might as well be
deleted from the statute. Many an unscrupulous employer could simply not register his
employees and, when found out and prosecuted, register them belatedly. Such an
interpretation would nullify the purpose of the law, which is precisely to protect the
members of the working class.
The invocation of the rule against double jeopardy must also be rejected. Double jeopardy
will attach only if there is: (a) a valid complaint or information; (b) led before a competent
court; (c) to which the defendant had pleaded; and (d) of which he had been previously
acquitted or convicted or which was dismissed or otherwise terminated without his
express consent. 1 1 The herein appellee has not yet been arraigned and it was upon his
express motion that the information was quashed and the case dismissed.
WHEREFORE, the challenged Order dated May 17, 1976, is SET ASIDE. This case is
remanded to the Regional Trial Court of Laguna for determination, after hearing, of the date
when the alleged offense was discovered and the prescriptive period commenced to run.
No costs. cdphil

SO ORDERED.
Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

Footnotes

1. Presided by Judge Maximo A. Maceren.

2. Rollo, p. 8.

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5. G.R. No. 74689, March 21, 1990.

7. Ibid.
8. 48 SCRA 19.

9. C.A., 40 O.G., 12th Supp., 50.

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