PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT, VS. SERAFIN HERNANDEZ, ACCUSED AND APPELLEE.

The
prosecution has appealed from the decision of the Court of First
Instance of Rizal dismissing the information against Serafin Hernandez,
which is of the following tenor:

“That on or about
the 23rd day of September 1949, in the municipality of Pasig, Province
of Rizal, Philippines and within the jurisdiction of this Honorable
Court, the above-named accused did then and there willfully and
feloniously attack, assault and use personal violence on the person of
Amador Palor as a result of which the latter sustained physical
injuries in the different parts of his body which required and will
require medical attendance for the period of 25 days, and incapacitated
and will incapacitate him to perform his customary labor for the same
period of time, and as a consequence of said injuries the offended
party lost the power to hear of his right ear.”

Hernandez
pleaded not guilty to the charge. Subsequently he was tried together
with Apolonio Velasco, accused in another case for serious physical
injuries committed on the same occasion. The joint trial was agreed on
all sides, witnesses testified and the court finding that both had
inflicted physical injuries, convicted Apolonio Velasco, but dismissed
the information as to Hernandez holding it had no jurisdiction because
the crime charged therein was triable before the justice of the peace
court. Said the judge,

“The information against Serafin
Hernandez charges an offense of less serious physical injuries falling
under the first paragraph of Article 265 of the Revised Penal Code.
However, at the trial, the prosecution intended to prove the crime as
defined in article 263, of the same code. Under the circumstances of
the case, therefore, this court cannot convict the accused for the
higher offense proved but not charged because in no case can a
conviction be sustained for a higher offense that charged in the
complaint, a general rule which has its foundation in the
constitutional right of the accused to be advised at the outset of the
proceedings as to the precise nature of the charge against an accused
and for the further reason that the crime charged in one triable by the
Justice of the Peace Court in the exercise of its original
jurisdiction. (Sec. 87-b, Republic Act No. 296). * * * As to
accused Serafin Hernandez the court finds that the information against
him must be, as the same is, hereby dismissed, for lack of
jurisdiction.”

In this appeal the Solicitor General
contends the crime described was serious physical injuries, under
article 265, paragraph 2, which for convenience is quoted:

“2. The penalty of prision correccional
in its medium and maximum periods, if in consequence of the physical
injuries inflicted, the person shall have lost the use of speech or the
power to hear or to smell, or shall have lost an eye, a hand, a foot,
an arm, or a leg or shall have lost the use of any such member, or
shall have become incapacitated for the work in which he was
theretofore habitually engaged.”

Attention is
invited by the prosecution to the last part of the information alleging
that “as a consequence of said injuries, the offended party lost the
power to hear of his right ear.” Loss “of the power to hear” is surely
a serious physical injury. But is the loss “of the power to hear of his
right ear” a loss of the power to hear? As the offended party may still
hear thru his left ear, it would seem he has not lost the power to
hear. However Article 263, paragraph 3, prescribes prision correccional
in its minimum and medium periods if the person injured shall have lost
“the use of any other part of his body.” A. Palor was deprived of the
use of his right ear, a part of his body, and the offense described in
the information was cognizable by the court of first instance.

However a majority of the court believe that as the Court of First
Instance had jurisdiction, the judgment dismissing the case is
unappealable, because the appeal places the accused in a second
jeopardy. (U. S. vs. Regala, 28 Phil., 57; People vs. Borja, 43 Phil., 618; People vs. Fajardo, 49 Phil, 206; Kepner vs. U. S. 195 U. S. 100).

In support of this appeal, the Salico precedent is invoked.^[1]
But this is not conclusive because the main point raised there was
dismissal of the case with the consent or at the request of the
accused, which is not the situation here.

Wherefore, this appeal is dismissed, with costs de officio. So ordered.

Paras, C. J., Padilla, Jugo, Bautista Angelo and Labrador, JJ., concur.

Reyes, J., concurs in the result.

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^[1] People vs. Salico, 47 Off. Gaz., 1765.