THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. HERMOGENES CAYOSA, DEFENDANT-APPELLANT.

Appeal from the order of the
Court of First Instance of Leyte (in Criminal Case
No. 10269) denying, for lack of merit, the motion to dismiss the information
filed by therein accused.

On 6
September 1963, upon
the strength of a warrant issued by the Justice of the Peace Court of Dulay, Leyte, Hermogenes Cayosa was arrested to answer the charge of acts of
lasciviousness allegedly committed by him on the person of one Celenia Galarosa, a minor.  The complaint was signed by Eleuteria T. Galarosa, mother of
the minor, subscribed on the same day, 6 September 1963, before the Municipal Mayor of Dulay, Leyte.  This
complaint was supported by the affidavits of the offended girl and another
witness, both signed and subscribed before the same municipal official.^[1] The accused having renounced the right to
preliminary investigation, the case was remanded to the Court of First Instance
of Leyte for further proceedings.

In due time, the
necessary information was filed by the Pro­vincial Fiscal in the Court of First
Instance of Leyte (Criminal Case No. 10269), and on 4
May 1964 accused Hermogenes Cayosa,
assisted by counsel, was arraigned and pleaded not guilty to the charge.^[2] When the case was called for hearing on 4
June 1964, however, counsel for the accused moved for the dismissal thereof,
claiming that the complaint signed by the mother of the minor as well as the
supporting affidavits were all subscribed before the Municipal Mayor of Dulay, Leyte, not before the
Justice of the Peace, as required by Republic Act 3828, and were thus
defective.  The trial court denied the
motion on the ground that the accused’s pleading to
the charge constituted a waiver of that defense; and the latter instituted the
present appeal, raising the same question of alleged lack of jurisdiction of
the trial court to try the case.

The issue involved is whether or not the subscribing of the
complaint before the municipal mayor, and not before the justice of the peace,
conferred jurisdiction on the court over the person of the accused.

In pointing to the defect in the complaint as basis of his motion
to quash the information, appellant actually assails the validity of the
warrant for his arrest, said to have been issued by the Justice of the Peace of
Dulay, Leyte, in violation
of Republic Act 3828, amending
Section 87 of the Judi­ciary Act, providing that no warrant of arrest shall
issue except upon per­sonal examination of the witnesses by the justice of the
peace, and which examination shall be by question and answer method and in
writing.  Parenthetically, it may be
noted that the charge is not lack of personal examination by the justice of the
peace of the complainant and her witnesses, which is now presumed to have been
conducted.  In fact, the complaint signed
before the municipal mayor on 6
September 1963 appeared to have been filed with the justice of the
peace on the same day (Exhibit “1”).

We find no error in the lower court’s denial of the motion.  In the first place, appellant’s failure to
set up the question before he pleaded to the
charge of the information is fatal to his cause.  It is well-established under Revised Rule
117, section 10, that the failure of an accused to move for the quashal of the complaint or information before he pleads
thereto constitutes a waiver of all objections which may properly be grounds
for such a motion, except when the complaint or information does not charge an
offense or the court is without jurisdiction over the said offense.^[3]
In the present case, as previously stated, the pretended defect is one of
jurisdiction over the person, and it is one of the defenses deemed waived by
the accused-appellant when he submitted to the arraignment and entered his plea
therein.^[4]

Secondly, under the
Rules, a complaint is substantially suffi­cient if it states the name of the
defendant, the designation of the offense by statute, the acts or omissions
constituting the offense, the name of the offended party, the approximate time
of the commission of the offense, and the place where it was committed^[5] –– all of which elements
were duly satisfied by the complaint under considera­tion.  The defect adverted to by the
accused-appellant, i.e., the complaint’s being subscribed to before the
municipal mayor instead of before the Justice of the Peace, is clearly one of
form that is curable by amendment.^[6] For even the absence of an oath in the
complaint does not necessarily render it invalid,^[7] unless the complaint charged a private
offense under Articles 344 and 360 of the Revised Penal Code, which is not the
case here.^[8]

Finally, the denial of
the motion to dismiss was not a final order, since it did not put an end to the
proceedings in the court below.  Not
being final, said denial order is not appealable
(section 1, Revised Rule 122).  The duty
of the accused was to go ahead with the trial until judgment on the merits, and
thereafter reiterate his objections embodied in the motion to dismiss in the
course of his appeal from the judgment, if it be one of conviction.

FOR THE FOREGOING
CONSIDERATIONS, the order
appealed from is hereby affirmed, and the case is remanded to the lower court
for further trial, without retaking evi­dence already received, and decision on
the merits.  And because the present
appeal has merely served to delay final disposition of the case, the appellant
is assessed treble costs, to be paid by his counsel, Attorney Leovigildo Radaza.

SO ORDERED.

Concepcion, C.J., Dizon,
Makalintal, Zaldivar,
Sanchez, Ruiz Castro, Fernando, and Teehankee, JJ., concur.

Barredo, J., did not take part.

^[1]
Exhibits “1” and “2”, pages 4-8, CFI record.

^[2]
Pages 16-17, Id.

^[3]
Oca vs. Jimenez, G.R. No. L-17777, 29 June 1962, 5 SCRA 425; see also
Pro­vincial Fiscal vs. CFI of Nueva Ecija, 79 Phil. 165; People vs. Enrique, G.R. No. L-3094,
30 July 1949, 47 O.G. No.
10, 5182; People vs. Marquez, G.R. No. L-23654, 28 March 1969, 27 SCRA 808; Palanea
vs. Querubin, G.R. No. L-29510, November,
1969.

^[4]
Francisco, Revised Rules of Court Anno., Criminal
Procedure, page 588.

^[5]
Section 5, Revised Rule 110; People vs. Rodrigo, G.R. No. L-18507, 31 March 1966, 16 SCRA 475.

^[6]
Section 13, Revised Rule 110.

^[7]
“The want of an oath was, in any event, a defect of form which did not
affect the substantial rights of the defendant on the merits.” (U.S.
vs. Bibal, 4 Phil. 369).

^[8]
Griñen vs. Consolacion
(31 July 1962), 5 SCRA 722;
Hernandez vs. Albano (31 May 1961), 2 SCRA 607.