PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT, VS. PEDRO M. DURAN, JR., ALIAS POTOY, DEFENDANT AND APPELLEE.

On June 4, 1956, the Chief of Police of Balangiga, Samar, filed in
the Justice of the Peace Court against Pedro M. Durari, Jr. the
following complaint for serious slander by deed:

“That on or about the 16th day of April, 1956, at
the Session Hall of the Municipal Building of Balangiga, Samar,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused with intent and decided purpose to cast dishonor,
discredit or contempt upon the offended party, Ignacio A. Amarillo,
Municipal Councilor of said town, did, then and there willfully,
unlawfully, criminally and feloniously slap or box said offended party
in the presence of many people and other councilors during the council
meeting, hitting the latter in his left shoulder.”

The accused waived his right to a preliminary investigation, and the
case was elevated to the Court of First Instance of Samar.
Consequently, on October 19, 1956, an information was filed in the
latter court by the assistant provincial fiscal accusing defendant
Duran of the crime of serious slander by deed allegedly committed as
follows:

“That on or about the 16th day of April, 1956, in
the Municipality of Balangiga, Province of Samar, Philippines, and
within the jurisdiction of this Honorable Court, the above-named
accused, with the deliberate intent of bringing one Ignacio A.
Amarillo, a municipal councilor, Balangiga, Samar, into dishonor,
discredit and contempt and taking advantage of his official position,
the accused being the mayor of said municipality, did then and there
willfully, unlawfully and feloniously box and slap said Ignacio A.
Amarillo in the presence of many people and during and on the occasion
of a regularly or officially convened meeting at the Municipal Building
of the municipal council at which both the offended party and the
accused were then in attendance in their respective capacities.”

On November 27, 1957, the accused Duran moved to quash the
information or, alternatively, for a reinvestigation, claiming that the
complaint and the affidavits of the prosecution witnesses filed with
the inferior court did not state that the accused ever slapped the
offended party so that the offense charged did not constitute grave
serious slander by deed, while the information filed in the court of
first instance sufficiently charged the offense. The motion was not
expressly resolved but must have been denied, because the case
proceeded to trial. After the prosecution had rested its case, the
defense moved to dismiss the charge on the ground that the guilt of the
accused had not been proved beyond a reasonable doubt. The court,
Honorable Emilio Benitez presiding, ordered the dismissal of the
complaint, but on another ground, namely, that it did not acquire
jurisdiction over the same because the serious slander by deed charged
does not impute any crime and the complaint was not subscribed and
sworn to by the offended party himself, as required by Article 360 of
the Revised Penal Code. From this order of dismissal, the prosecution
appealed to this Court.

We agree with the Solicitor General that the dismissal was
erroneous. The last paragraph of Article 360 of the Revised Penal Code
under which the dismissal was made, provides that “no criminal action
for defamation which consists in the imputation of a crime which cannot
be prosecuted de oficio shall be brought except at the
instance of and upon complaint expressly filed by the offended party”.
Under this provision, only defamation imputing crimes which may not be
prosecuted de oficio under Article 344, i. e., adultery,
concubinage, seduction, abduction, rape, and acts of lasciviousness
must be prosecuted upon complaint by the offended party (People vs. Juan B. Santos and Francisco Guballa, 98 Phil., 111; 52 Off. Gaz., No. 1, 203; People vs.
Añel, G. R. No. L-8393, April 27, 1956). So that where no imputation of
any of the crimes mentioned in article 344 is made, the complaint by
the offended party is not necessary (Vda. de Gorostiza vs. People, G. R. No. L-9091, August 28, 1956; People vs.
Marquez, 68 Phil., 506). Likewise, the imputation of a vice or defect
which does not constitute a crime at all is not within the exception
(People vs. Añel, G. R. No. L-8393, April 27, 1956). As the
grave slander by deed charged in this case does not impute any crime,
public or private, to the offended party, his complaint was not
necessary to confer jurisdiction upon the court.

In dismissing the information for not having been filed by the
offending party, the lower court relied on the decision of the Court of
Appeals in Pueblo vs. Virgilio Roman, 53 Off. Gaz. No. 12 (June 30,
1957) 3818, following our rulings in U. S. vs. de la Cruz, 17 Phil., 139 and People vs. Martinez, 76 Phil., 599; 43 Off. Gaz., 135. But the doctrine of the U. S. vs. De
la Cruz case, which later became the basis for the subsequent ruling of
this Court in the De Martinez case and of the Court of of Appeals in
the Roman case, was based on the provision of section 1 of Act No. 1773
of the Philippine Commission that required all prosecutions for the
crime of injuria committed against private persons to. be
instituted only upon the complaint of the aggrieved party. However,
this law has already been repealed by Article 360 of the Revised Penal
Code (Vda. de Gorostiza vs. People, supra). In fact, the ruling in the case of Pueblo vs. Jose de Martinez has been expressly overruled in the recent case of People vs. Juan B. Santos and Francisco Guballa, above cited.

The erroneous dismissal of the complaint notwithstanding, we cannot
now remedy the error because, as correctly argued by the appellant,
this appeal by the government places him in double jeopardy. Settled
is, the rule that where a trial court has jurisdiction but mistakenly
dismisses the complaint or information on the ground of lack of it, the
order of dismissal is unappealable because an appeal by the government
therefrom would place the accused in second jeopardy for the same
offense (People vs. Hernandez, 94 Phil., 49; Off. Gaz. No. 12, 5342; People vs. Ferrer, 100 Phil.,124; 55 Off. Gaz. [4] 620; People vs. Fajardo, 49 Phil., 206; People, vs.
Borja, 43 Phil., 618). The only exception to this rule is where the
dismissal was made with the consent of the accused (People vs.
Salico, 84 Phil., 722; 47 Off. Gaz., 1765). It cannot be said that the
appellant herein consented to the dismissal of the case on the ground
of lack of jurisdiction, because his motion to quash after the
prosecution has presented its evidence was based on another ground,
namely, that the prosecution had failed to establish his guilt beyond a
reasonable doubt.

The appeal is, therefore, dismissed, with costs de oficio.

Paras, C. J., Bengzon, Padilla, Montemayor, Bautista Angelo, Labrador, Concepcion, Endencia, Barrera, and Gutierrez David, JJ., concur.