VICTOR SESE Y BUNO, PETITIONER, VS. AGUSTIN P. MONTESA, JUDGE, COURT OF FIRST INSTANCE OF MANILA, AND AUGUSTO LEONARDO, RESPONDENTS.

In criminal case No. 9763 of tho Court of First Instance of Manila,
the petitioner was convicted in a judgment promulgated on February 16,
1950, of the crime of damage to property through reckless imprudence,
and contended to pay a fine of P856.80, with subsidiary imprisonment
in case of insolvency. The petitioner waived, his right to appeal, and
in an order forthwith issued by the respondent Judge he was committed
to the New Bilibid Prisons at Muntinlupa, the period of imprisonment
connecting to run from February 16. The respondent Augusto Leonardo,
the offended party in the criminal¦case, filed through his attorney a
notion for reconsideration dated May 5, 1950, alleging that in the
decision of February 16 the court failed to sentence the petitioner to
indemnify the offended party in the sum of P856.80, and praying that
said decision be modified accordingly. In an order dated May 16, 1950,
the respondent Judge amended.the dispositive part of the decision of
February 16, so as to road as follows:

“For all the foregoing, the Court finds that the
guilt of the accused has been established, beyond reasonable doubt, as
defined and punished under Art. 365 of the Rev. Penal Code, and hereby
sentences him to pay a fine of P856.80, or suffer the subsidiary
imprisonment in case of insolvency, and to indemnify the offended party
in the amount of P856.80, without further subsidiary imprisonment in
case of insolvency, and to pay the costs.”

A new commitment order was thereafter issued, under which
petitioner’s term of imprisorment commenced to run from June 2, 1950.
The petitioner instituted the present special civil action for
certiorari to annul the order of May 16, 1950, amending the decision of
February 16. The theory of the petitioner is that this decision became
when he waived his right to appeal and immediately served his sentence,
and the respondent Judge accordingly had no power to modify the same
on May 16.

Counsel for respondents admits that while the decision of February
16 became final with respect to the criminal liability of the
petitioner, it was not yet final with respect to his civil liability
when the motion for reconsideration of May 5 was filed, because neither
respondent Augusto Leonardo nor his counsel (the private prosecutor)
received notice of said decision. Specifically, it is alleged that the
private prosecutor acquired notice of the decision only after
examining, on his own initiative, the court docket in the latter part
of April.

There can be no doubt that respondent Augusto Leonardo was entitled
to intervene, personally or by attorney, in criminal case No. 9763, as
he did not waive the civil action or expressly reserve the right to
institute it separately, subject of course to the direction and control
of the fiscal. (Rule 106, sec. 15). In criminal cases the judgment if
promulgated in open court (Rule 116, sec. 9); and it is not pretended
that the fiscal was not notified of the decision of February 16 or its
promulgation. While it may be desireable to give notice of all
proceedings in a criminal case to the private prosecutor, there is no
legal requirement to that effect. Practically speaking, the employment
of a private prosecutor is a mere gesture of assistance on the part of
the offended party, and when one actually appears, he and the fiscal
represent a common cause and party, with the fiscal having direction
and control of the case. Hence notice to the fiscal is notice to the
private prosecutor. (Rule 27, ces. 2.) Indeed, the fiscal could have
filed the necessary motion for reconsideration.

Wherefore, the order of the respondent Judge dated May 5, 1950, and
the corresponding order of commitment dated June 2, 1950, are hereby
set aside. So ordered.

Moran, C.J., Ozaeta, Pablo. Bengzon, Tuason, Montemayor, and Reyes, JJ., concur.