CO TE HUE, PETITIONER, VS. HON. DEMETRIO B. ENCARNACION, JUDGE OF THE COURT OF FIRST INSTANCE OF MANILA, RESPONDENT.

This is a petition for certiorari seeking to set aside an order of
the Court of First Instance of Manila which directs that petitioner be
included as one of the accused in a criminal case for estafa from which
he was previously excluded by an order of the court.

On July 15, 1950, several persons, including petitioner, were
charged with the crime of estafa in the Court of First Instance of
Manila: (Criminal Case No. 13229). Petitioner was arraigned and pleaded
not guilty. On August 29, 1951, upon motion filed by the offended
party, with the conformity of his counsel, and without objection on the
part of the fiscal, the case was provisionally dismissed as to
petitioner. On May 31, 1952, the fiscal filed a motion to revive the
case on the ground that its dismissal with respect to petitioner “was
impractical, discriminating since the ground of dismissal was not based
on the merits of the case.” Petitioner objected to this motion but the
court granted it stating that after a reinvestigation it was found that
he was just as guilty as the other accused. On November 12, 1952,
petitioner moved to quash the information as to him alleging that his
reinclusion in the same after it has been provisionally dismissed
places him in double jeopardy. This motion was denied, and respondent
Judge having refused to reconsider his order petitioner filed the
present petition for certiorari alleging that said Judge has acted in
excess of his jurisdiction.

It is the theory of petitioner that the charge for estafa filed
against him having been dismissed albeit provisionally without his
express consent, its revival constitutes double jeopardy which bars a
subsequent prosecution for the same offense under section 9, Rule 113,
of the Rules of Court. This claim is disputed by the Solicitor General
who contends that, considering what has transpired in relation to the
incident, the provisional dismissal is no bar to his subsequent
prosecution for the reason that the dismissal was made with his express
consent.

We are inclined to uphold the view of the Solicitor General. From
the transcript of the notes taken at the hearing in connection with the
motion for dismissal, it appears that a conference was had between
petitioner and the offended party in the office of the fiscal
concerning the case and that as a result of that conference the
offended party filed the motion to dismiss. It also appears that as no
action has been taken on said motion, counsel for petitioner invited
the attention of the court to the matter who acted thereon only after
certain explanation was given by said counsel. And when the order came
the court made it plain that the dismissal was merely provisional in
character. It can be plainly seen that the dismissal was effected not
only with the express consent of petitioner but even upon the urging of
his counsel. This attitude of petitioner, or of his counsel, takes this
case out of the operation of the rule.

A case in point is People vs. Romero,^[*]
G. R. No. L-4517-20, promulgated on July 31, 1951, wherein the order of
dismissal was issued after the defense counsel has invited the
attention of the court to its former order to the effect that the case
would be dismissed if the fiscal was not ready to proceed with the
trial on June 14, 1950. When the case reached this Court on appeal,
counsel claimed that “it is indubitable that your defendant did not
himself personally move for the dismissal of the cases against him nor
expressly consent to it; and that the dismissal was, in effect, an
acquittal on the merits for failure to prosecute, because no
reservation was made in favor of the prosecution to renew the charges
against your defendant in the ulterior proceedings.” In overruling this
plea, this Court said:

“Whatever explanation that may be given by the
attorneys for the defendant, it is a fact which cannot be controverted
that the dismissal of the cases against the defendant was ordered upon
the petition of defendant’s counsel. In opening the postponement of the
trial of the cases and insisting on the compliance with the order of
the court dated May 25, 1950 that the cases be dismissed if the
Provincial Fiscal was not ready for trial on the continuation of the
hearing on June 14, 1950, he obviously insisted that the cases be
dismissed- The fact that the counsel for the defendant and not the
defendant himself, personally moved for the dismissal of the
cases against him, had the same effect as if the defendant had
personally moved for such dismissal, inasmuch as the act of the counsel
in the prosecution of the defendant’s cases was the act of the
defendant himself, for the only case in which the defendant cannot be
represented by his counsel is in pleading guilty according to section
3, Rule 114, of the Rules of Court.”

There is more weighty reason to uphold the theory of reinstatement
in the present case than in that of Romero considering the
particularity that the dismissal was provisional in character. In our
opinion that is not the dismissal contemplated by the rule that has the
effect of barring a subsequent prosecution.

Petition is dismissed with costs.

Pablo, Padilla, Montemayor, Reyes, Jugo, and Labrador, JJ., concur.

Bengzon, J., concurs in the result.

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^[*] 89 Phil., 672.