LIM TEK GOAN, PETITIONER, VS. HONORABLE NICASIO YATCO, PRESIDING JUDGE, COURT OF FIRST INSTANCE OF LAGUNA, RESPONDENT.

In a case for grave threats instituted against Co Peng alias
Tony Tan, et al., in the Court of First Instance of Laguna, presided
over by respondent Judge, (Criminal Case No. 15664), petitioner herein
put in his appearance as one of the offended parties.

The
accused was arraigned on August 7, 1952 and the case set for hearing on
September 19, 1952. On the latter date, after the first witness for the
prosecution has testified, counsel for private prosecution moved for
the postponement of the trial on the ground that their next witness was
sick and unable to come to court. This motion was granted and the trial
was postponed to October 17, 1952, this time to be held at Calamba,
Laguna. When this date came, the private prosecution, through counsel,
presented an urgent motion for continuance of the trial, which was
granted with the conformity of the defense, the court setting it on
November 13, 1952.

On said date, November 13, counsel for
private prosecution, instead of going to trial, again filed a motion
for postponement, this time seeking to transfer the case to the San
Pablo branch alleging as reasons that his witnesses were all residents
of San Pablo City and it would be to their convenience, as well as of
the defendants, who were likewise residing in the same place, that the
trial be continued there. This motion was objected to not only by the
defense but also by Fiscal David Carreon who argued that he saw no
reason for the transfer in view of the fact that the case had already
been partially tried at the Calamba branch. In the course of the
argument that ensued, counsel for the accused intervened and joined
Fiscal David Carreon in his opposition to the transfer making the
observation in passing that since the private prosecutor was acting
under the direction and control of the fiscal and the latter had
registered his objection, he found no reason for him to insist on his
petition more so when his appearance in this case was not as a matter
of right but merely by tolerance on the part of the court.

This observation came as a surprise to the counsel for private
prosecution who then and there asked the court for a ruling as to
whether his appearance in the case was a matter of right or a matter of
tolerance as insinuated, intimating that if this should be resolved
against him he would bring the matter to the Supreme Court for a
definite ruling. Forthwith, the court ruled that in cases of this
nature which do not involve any civil liability the appearance of a
private prosecutor cannot be considered as a matter of right and if
allowed it would only be upon tolerance of the court and of the
parties. This conclusion notwithstanding, the court noted that counsel
for the private prosecution cannot claim any prejudice on his part for
he could continue appearing as such by tolerance of the court until
after the final termination of the case. Not satisfied with this
ruling, counsel interposed the present petition for certiorari.

The issue before us is whether in the prosecution of a criminal case
commenced either by complaint or by information an offended party may
intervene, personally or by attorney, as a matter of right as claimed
by petitioner, or upon mere tolerance, as ruled by respondent judge.
The law on this point is clear. Section 4, Rule 106, provides that “all
criminal actions either commenced by complaint or by information shall
be prosecuted under the direction and control of the fiscal”, and, as a
corollary, it is also provided that “unless the offended party has
waived the civil action or expressly reserved the right to institute it
after the termination of the criminal case, * * * he may intervene,
personally or by attorney, in the prosecution of the offense.” (Section
15, Rule 106.) From these provisions we can clearly infer that while
criminal actions as a rule are prosecuted under the direction and
control of the fiscal, however, an offended party may intervene in the
proceeding, personally or by attorney, specially in cases of offenses
which cannot be prosecuted except at the instance of the offended
party. (People vs. Dizon, 44 Phil., 267; Herrero vs.
Diaz, 75 Phil., 489.) The only exception to this rule is when the
offended party waives his right to civil action or expressly reserves
his right to institute it after the termination of the case, in which
case he loses his right to intervene upon the theory that he is deemed
to have lost his interest in its prosecution. (People vs. Velez, 77 Phil., 1026, 44 Off. Gaz., [6], 1811; People vs.
Capistrano, 90 Phil, 823.) And in any event, whether an offended party
intervenes in the prosecution of a criminal action, his intervention
must always be subject to the direction and control of the prosecuting
official (Idem.).

Considering the foregoing
observations, it is apparent that the ruling of respondent judge that
in cases like the one under consideration which do not involve any
civil liability an offended party can only appear upon tolerance on the
part of the court is not well taken it being contrary to the law and
precedents obtaining in this jurisdiction. In this respect, the law
makes no distinction between cases that are public in nature and those
that can only be prosecuted at the instance of the offended party. In
either case the law gives to the offended party the right to intervene,
personally or by counsel, and he is deprived of such right only when he
waives the civil action or reserves his right to institute one. Such is
not the situation in the present case. The case at bar involves a
public crime and the private prosecution has asserted its right to
intervene in the proceedings. The respondent judge, therefore, erred in
considering the appearance of counsel merely as a matter of tolerance.

We believe, however, that the incident at bar is not of such a
character as to give rise to a petition for certiorari for it does not
involve grave abuse of discretion. While the ruling of the judge is
erroneous, he has however caused no prejudice to counsel since he has
expressly manifested in his order that he could continue representing
the interest of his client. The action of the judge may at most be
considered an error of judgment which can be remedied by appeal. We
find therefore no reason for granting the relief now urged by counsel
in his petition for certiorari.

Wherefore, the petition is denied, without pronouncement as to costs.

Paras, C. J., Pablo, Bengzon, Padilla, Tuason, Reyes, Jugo and Labrador, JJ., concur.