PEOPLE OF THE PHILIPPINES, AND ASST. PROV’L. FISCAL F. VISITACION, JR., PETITIONERS, VS. HONORABLE MIDPANTAO L. ADIL, PRESIDING JUDGE, COURT OF FIRST INSTANCE OF ILOILO, BRANCH …

Petition for certiorari to set aside the orders of
respondent judge dated September 22, 1975 and October 14, 1975 dismissing
Criminal Case No. 5241 of the Court of First Instance of Iloilo against private
respondent Margarito Fama,
Jr., said dismissal being predicated on the ground of double jeopardy, in view
of the dismissal of a previous charge of slight physical injuries against the
same respondent for the same incident by the Municipal Court of Janiuay, Iloilo in Criminal Case No. 3335, notwithstanding
that in the information in the first-mentioned case, it was alleged that the
injuries sustained by the offended party, aside from possibly requiring medical
attendance from 5 to 9 days “barring complications”, as was alleged
in the information in Criminal Case No. 3335, had left “a permanent scar
and deform(ed) – the right face of (said offended party) Miguel Viajar.”

The first criminal complaint filed against respondent Fama Jr. on April
15, 1975 (Case No. 3335) was as follows:

“That at about 5:30 o’clock in the afternoon of April 12,
1975, at Aquino Nobleza
St., Municipality of Janiuay, Province of Iloilo,
Philippines, and within the jurisdiction of this Honorable Court the
above-named accused, while armed with a piece of stone, did then and there
willfully, unlawfully and feloniously, assault, attack and use personal
violence upon one Miguel Viajar by then hurling the
latter with a stone, hitting said Miguel Viajar on
the right cheek, thereby inflicting physical injuries which would have required
and will require medical attendance for a period from 5 to 9 days barring
complication as per medical certificate of the physician hereto attached.

“CONTRARY TO LAW.” (Pp. 93-94, Record)

Arraigned on July 7, 1975, the accused entered a plea of not guilty.

Meanwhile, on June 8,
1975, complainant Viajar filed a
letter-complaint with the Provincial Fiscal of Iloilo charging Atty. Alfredo Fama, Raul Fama and herein
respondent Margarito Fama,
Jr. with serious physical injuries arising from the same incident alleged in
above Criminal Case No. 3335.  After
conducting a preliminary investigation, under date of July 28, 1975, the Fiscal filed in the Court of
First Instance of Iloilo an information, but only
against respondent Fama Jr., (Case No. 5241) for
serious physical injuries as follows:

“That on or about April 12, 1975, in the Municipality of Janiuay, Province of Iloilo, Philippines, and within the
jurisdiction of this Court, the said accused, with deliberate intent, and
without any justifiable motive, armed with pieces of stone did then and there
willfully, unlawfully and feloniously attack, assault and throw pieces of stone
at Miguel Viajar, hitting him on the lower right eye
which would heal from five (5) to nine (9) days barring complications but
leaving a permanent scar and deforming on the right face of said Miguel Viajar.

 “CONTRARY
TO LAW.” (Pp. 94-95, Record)

On August 1, 1975,
Fama Jr. filed an urgent motion to defer proceedings
in Criminal Case No. 5241, claiming that since he was already charged and
pleaded not guilty in Criminal Case No. 3335, he would
be in double jeopardy, if Case No. 5241 were to be prosecuted.  This motion was opposed by the Fiscal and the
Court required both parties to file their respective memorandum on the issue of
double jeopardy.

In the meantime, the Fiscal, after filing Case No. 5241, sought
the dismissal of Case No. 3335, but the Municipal Court did not act on said
motion.  Instead, the case was set for
hearing, and in view of the postponements asked by the Fiscal in order to await
the resolution of the issue of double jeopardy in Case No. 5241, on September 11, 1975, the following
order was entered:

“Under our democratic and constituted system of government
litigants before our courts of justice, plaintiffs and defendants, complainants
and accused are entitled to the equal protection of our laws.  More is an accused,
the trial of his case has been repeatedly postponed for several times by this
Court in the exercise of its sound discretion at the instance of the
prosecution.  So, when this case was
called for hearing on the afternoon of September
1, 1975 the accused through counsel vigorously objected to another
postponement and moved for the dismissal of the case against him.  To grant another postponement as sought by
the Fiscal against the vehement, strong and vigorous objection of the accused is to the mind of the Court,
no longer an exercise of sound discretion consistent with justice and fairness
but a clear and palpable abuse of discretion amounting to a serious denial to,
and a grave violation of, the right of the accused to a speedy trial to which
he is rightfully entitled to under Section 16 of Article IV, (Bill of Rights)
of the Philippine Constitution.

“IN VIEW OF THE FOREGOING, the above-entitled case is hereby
ordered dismissed.  The Cash Bond posted
by the accused is hereby ordered cancelled and released.” (Pp. 96-97, Record.)

Whereupon, on even date, Fama Jr. filed
an addendum to his memorandum in Case No. 5241 inviting attention to the above
dismissal order and reiterating his theory of double jeopardy.  On September
22, 1975, respondent court issued the impugned order sustaining the
contention of double jeopardy and dismissing Case No. 5241.  The prosecution’s motion for reconsideration
was denied in the other assailed order of October 14, 1975, respondent
judge relying on the ruling laid down in Peo. vs. Silva, 4 SCRA 95.

In brief, what happened here was that when Case No. 3335 was
filed in the inferior court of Janiuay, the charge
against Fama Jr. had to be for slight physical
injuries only, because according to the certification of the attending
physician, the injuries suffered by the offended party Viajar,
would require medical attendance from 5 to 9 days only “barring complications.”
Indeed, when the complaint was filed on April
15, 1975, only three days had passed since the incident in which
the injuries were sustained took place, and there were yet no indications of a
graver injury or consequence to be suffered by said offended party.  Evidently, it was only later, after Case No.
3335 had already been filed and the wound on the face of Viajar
had already healed, that the alleged deformity became apparent.

Now, expert evidence is not needed for anyone to understand that
the scar or deformity that would be left by a wound on the face of a person
cannot be predetermined.  On the other
hand, whether or not there is actually a deformity on the face of Viajar is a question of fact that has to be determined by
the trial court.  The only issue We are to resolve here is whether or not the additional
allegation of deformity in the information in Case No. 5241 constitutes a
supervening element which should take this case out of the ruling in People vs.
Silva cited by respondent court.

In Silva, there was no question that the extent of the damage to
property and physical injuries suffered by the offended parties therein were
already existing and known when the prior minor case was prosecuted.  What is controlling then in the instant case
is Melo vs. People, 85 Phil. 766, in which it was
held:

“This rule of identity does not apply, however, when the
second offense was not in existence at the time of the first prosecution, for
the simple reason that in such case there is no possibility for the accused
during the first prosecution, to be convicted for an offense that was then
inexistent.  Thus, where the accused was
charged with physical injuries and after
conviction the injured dies, the charge of homicide against the same
accused does not put him twice in jeopardy.”

So also is
People vs. Yorac, 42 SCRA,
230, to the following effect:

“Stated differently, if after the first prosecution ‘a new
fact supervenes’ on which defendant may be held liable, resulting in altering
the character of the crime and giving rise to a new and distinct offense, ‘the
accused cannot be said to be in second jeopardy if indicted for the new
offense.'”

In People vs. Buling, 107 Phil. 112, We explained how a deformity may be considered as a
supervening fact.  Referring to the
decision in People vs. Manolong, 85 Phil. 829, We held:

“No finding was made in the first examination that the
injuries had caused deformity and the loss of the use of the right hand.  As nothing was mentioned in the first medical
certificate about the deformity and the loss of the use of the right hand, we
presume that such fact was not apparent or could have been discernible at the
time the first examination was made.  The
course (not the length) of the healing of an injury may not be determined
before hand; it can only be definitely known after the period of healing has
ended.  That is the reason why the court
considered that there was a supervening fact occuring
since the filing of the original information.”

In other words, in the peculiar circumstances of this case, the
plea of double jeopardy of private respondent Fama Jr., cannot hold.  It
was, therefore, a grave error correctible by certiorari for respondent
court to have dismissed Criminal Case No. 5241.

ACCORDINGLY, the orders of September 22, 1975 and October
14, 1975 herein complained of are hereby set aside and respondent court is
ordered to proceed with the trial and judgment thereof according to law.  Costs against private
respondent Fama Jr.

Fernando, (Chairman), Antonio, Aquino,
and Concepcion,
Jr., JJ., concur.