JESUS WYLENGCO, PETITIONER-APPELLANT, EPIFANIA GUEZON VDA. DE CABIGTING, ERLINDA CRISTOBAL VIRAY, SPECIAL COUNSEL OF ANGELES CITY AND ELLER CRISTOBAL VIRAY, SPECIAL COUNSEL AT T…

This appeal on a question of law is interposed by Jesus Wylengco from the decision of the Court of First Instance
of Pampanga dismissing Civil Case No. 2679 on the
ground that the refusal of the City Fiscal of Angeles City to grant the appellant’s
motion to dismiss, or to desist from proceeding with, the prelimi­nary
investigation in Criminal Case I.S. No. 693 amounted to a grave abuse of
discretion.

It appears that due to a typhoon which hit Pampanga
sometime before July 22, 1964,
some of the bamboo trees growing on the residential lot of Jesus Wylengco at Sto. Entierro Street, Angeles
City, fell or leaned heavily
towards the adjoining lot owned by Epifania Guezon Vda. de
Cabigting, causing considerable damage to her
concrete fence.  The latter asked her
neighbor for permission to cut the
bamboos so she could repair her damaged fence. 
The permission was granted.  Cabigting spent her own money cutting the bamboo trees but
did not remove the main trunks remaining on the ground.  Evidently her failure to do so made Wylengco
angry, for at noontime on July 22,
1964, he went to Cabingting’s yard and
uttered defamatory remarks at her in the Pampango
dialect, as follows:  “Obat emo pepaloco
ding pun, et emo pepalinis,
puñieta ca, anac puta, puta nayda
mo, malandi.” Translated into English the
remarks were:  “Why did you not have
the trunks removed, why didn’t you have them cleaned, you daughter of a whore
and woman of loose morals.” Many other words of similar import were added,
all in the presence of and within the hearing of many persons, including Cabigting’s daughters, one of whom had to be sent to call a
peace officer.

Two days later, on July
24, 1964, a complaint for serious oral defamation (I.S. No. 693)
was filed by Epifania Guezon
Vda. de Cabigting
against Jesus Wylengco with the City Fiscal’s Office of Angeles City.

At the preliminary investigation of the case on October 13, 1964 before Special
Counsel Erlinda Cristobal Viray, one of the respondents herein, Cabigting
admitted on cross-examination that Wylengco was very
angry when he uttered the defamatory remarks in question.  This was cor­roborated by Pelagia
Vda. de Mabini,
the lone witness for the complainant. 
Fourteen days later, or on October 27, Cabigting
rested her case before the Special Counsel, pre­senting as part of her evidence
the sworn statement she had executed before the police of Angeles City dated
July 24, 1964 (Annex “A” of the petition).  On the same day Wylengco,
through counsel, moved to dismiss the complaint on the ground that inasmuch as
according to Cabigting the alleged defamatory
statements were uttered in the heat of anger
they would constitute merely the crime of slight oral defa­mation, and
since no information had been filed within two months from July 22, 1964, when
said remarks were uttered, the crime of slight oral defamation as defined in
Article 358 of the Revised Penal Code had already prescribed.

On November 10, 1964
Special Counsel Viray denied the motion to dismiss
and directed Wylengco to present his evidence on
November 23 and December 2, 1964.  Wylengco filed a
motion for reconsideration reiterating the same grounds alleged in his motion
to dismiss.  This second mo­tion was
likewise denied.  On November 25, 1964, Wylengco filed a petition for certiorari and
prohibition with writ of preliminary injunction in the Court of First Instance
of Pampanga, seeking to restrain the respondents
Special Counsel and the City Fiscal of Angeles City from proceed­ing with the
preliminary investigation of Criminal Case I.S. No. 693, and praying further
that after hearing the resolution of respondent Special Counsel Viray dated Novem­ber 10, 1964 be declared null and void.

On December 2, 1964
the trial court issued the writ
of preliminary injunction asked for.  After the respondents filed their answer the trial court, on December 23, 1964, rendered judgment on the pleadings and on the memoranda of the
parties, dismissing the petition and dissolving the writ of preliminary
injunction.

The issue presented in this appeal is whether or not the respondent Special Counsel Erlinda C. Viray acted with grave
abuse of discretion or in excess of her jurisdiction when she denied Wylengco’s motion to dismiss and directed the preliminary
investigation to proceed.

The record shows that in denying the motion to dismiss and the
motion for reconsideration, the respondent Special Counsel who conducted the
preliminary investigation did not rule squarely on the question of prescription
raised by Wylengco, but directed him to present his
evidence, if he so desired, so as to enable her to appreciate more clearly the
facts of the case based on the
testimony of both parties.  The denial of
the motion to dismiss was in effect a ruling that in the opinion of the
investigating counsel the evidence before her at that stage of the case did not
justify the dis­missal, or at least the grounds relied upon in the motion were
not indubitable, for which reason she wanted
to hear the evidence for herein petitioner. 
Such ruling cannot be considered as an abuse of discretion or in excess
of jurisdiction.  It was neither
arbitrary nor oppressive.  As pointed out
by the Solicitor General, the doctrine relied upon by the appellant in his brief
(People vs. Doronila,
40 O.G. 231; People vs. Modesto,
40 O.G. 128), to the effect that defamatory words uttered in the heat of anger with some provocation on the part of the offended party would
constitute only slight oral defamation, would not apply in this case where
there is no evidence that there was such provocation at all.

In deciding the petition for certiorari and prohibition
the lower court did not have the criminal charge for trial before it.  The merits thereof were not in issue,
particularly the question of whether the statements at­tributed to Wylengco constituted serious or slight oral defamation and
whether the case had already prescribed. 
The only issue before the court was whether respondent Special Counsel
had acted with or without jurisdiction or grave abuse of discretion in denying
the petitioner’s mo­tion to dismiss.  The
action taken by the Special Counsel was within her discretion in the
matter.  At any rate, such action did not
deprive Wylengco of his right to raise the defense of
prescription at the trial after the eleva­tion of the case to the court.

WHEREFORE, the decision appealed from is hereby affirmed
and because the present appeal has merely served to delay final disposition of
the case, the appellant is
assessed treble costs.

Concepcion, C.J., Reyes, J.B.L., Zaldivar,
Castro, Fernando, Teehankee, Barredo, Villamor, and Makasiar, JJ., concur.