MONSIG. CAMILO DIEL, PETITIONER, VS. FELIX MARTINEZ. JUDGE OF FIRST INSTANCE OF CEBU, CESAR KINTANAR, ASSISTANT CITY FISCAL OF CEBU, AND VICENTE SOTTO, RESPONDENTS.

PERFECTO, J.:

On October 24, 1945, information for illegal practice of medicine was filed
against petitioner. On January 14, 1946, the respondent attorney was permitted,
over petitioner’s objection, to appear in the case as private prosecutor. After
the order was entered, although retaining full control of the prosecution and
assuming full responsibility therefor, the fiscal announced that he was turning
over to said attorney the active conduct of the trial.

Petitioner complains that said order was issued with a grave abuse of
discretion, there being no offended party named in the information, no damages
sued to be recovered in the criminal action, and Atty. Vicente Sotto having
previously announced his expressed reservation to file at a later date the
corresponding civil action against petitioner.

Respondents answered that all the witnesses who testified before the fiscal
are offended parties, they having been victims of petitioner; that, although it
is true that said attorney manifested in open court that he had no objection to
reserving the right to institute a civil’ action, it is not less true that later
he withdrew said statement so as to bring the case under the provision of Rule
106, section 15; that the victims of petitioner wanted to recover in the
criminal case the fees they paid to him; that petitioner has another remedy by
appeal; and that there is no abuse of discretion in the issuance of the order in
question.

At the hearing of this case, no one appeared to argue in behalf of
petitioner. Attorney Juris Sotto appeared for the respondents and, on her
petition, she was allowed to file a memorandum instead of arguing orally.

As alleged by petitioner, no offended party is named in the information, but
such omission is not incompatible with the fact that, as alleged by respondents,
all the witnesses who appeared before the fiscal as alleged victims of
petitioner should be considered as offended parties, it appearing that the
offense alleged in the information belongs to the class of harmful ones. If
there are offended parties, petitioner’s contention that no damages are to be
recovered in the criminal action must be untenable.

The fact that respondent attorney manifested in open court that he had no
objection to reserving the right to institute a civil action, should not be
considered for the purpose of applying section 15 of Rule 106, it appearing that
the statement has been withdrawn being the result of lapsus
linguae.

Under the facts in this case, we are of opinion that the respondent judge did
not commit any abuse of discretion or any legal error in permitting the
intervention of respondent attorney as private prosecutor in the criminal case
in question.

In fact, we do not see anything objectionable in said intervention if we take
into consideration that in its order dated January 14, 1946, the lower court
specifically guaranteed: “The court will see to it that the prosecution of this
case be pushed through within the bounds of law, will not tolerate persecution
nor delay. The case will be handled under the full responsibility of the fiscal.
In ordinary parlance, attorney Sotto will be a guest of fiscal Kintanar, host,
who may permit attorney Sotto to assist him. From the record of this case it can
be gleaned that this court has not given consideration to any petition made by
private prosecutor without the consent of the fiscal.”

Section 15 of Rule 106, as interpreted by petitioner, is premised on the
theory that the prosecution of offenses is a public function. But said public
function can be performed not exclusively by fiscals or other public officers,
but by private attorneys in cases where they are allowed to intervene as private
prosecutors, s After all, in the performance of their professional duties,
lawyers are officers of the court and assume public and official
responsibilities.

Petition is dismissed with costs to be taxed against petitioner. So
ordered.

Moran, C, J., Ozaeta, Paras, Jaranilla, Feria, De Joya, Pablo, Hilado,
Bengzon, and Briones, JJ., concur.