ORLANDO DE LEON, PETITIONER, VS. THE HON. JESUS S. RODRIGUEZ, ETC., ET AL., RESPONDENTS.

Under date of June 2, 1958, the Chief of Police of Cauayan, Negros
Occidental, filed a complaint for murder against Orlando de Leon before
the justice of the peace court of said municipality. After conducting
the requisite preliminary investigation, the case was forwarded to the
court of first instance of the province for trial on the merits. The
provincial fiscal filed on July 28, 1958 against the accused an
information for homicide charging him with having killed one Lory
Chavez.

On August 6,1958, when the case was called for arraignment, the
accused entered a plea of guilty: Whereupon, his counsel manifested in
open court that there are present the mitigating circumstances of (a) voluntary surrender, (b) plea of guilty, and (c)
the privilege mitigating circumstance of minority as defined under
Article 68 of the Revised Penal Code, and with respect to the latter
circumstance, he expressed his desire to present evidence as to the age
of the accused if the prosecution was not willing to admit it. To this
manifestation, Assistant Fiscal Joaquin Sola retorted by saying that
the prosecution agrees to the existence of the three mitigating
circumstances advanced by the defense and to that effect he recommends
that a penalty of one year be imposed upon the accused.

On the strength of the above admission both on the part of the
prosecution as well as of the defense, the court rendered decision on
August 6, 1958 convicting the accused and sentencing him to a penalty
of one year of prision correccional, with the accessory
penalties of the law, to indemnify the heirs of the deceased in the sum
of P3,000.00, with subsidiary imprisonment in case of insolvency, and
to pay the costs.

Upon the promulgation of the decision, the accused began serving his
sentence in the provincial jail of Negros Occidental. That was on
August 6, 1958. On August 15, 1958, the provincial fiscal filed a
motion for reconsideration alleging that the prosecution has in its
possession documentary evidence in the form of official records to the
effect that the accused was at the time of his arraignment more than 18
years of age for which reason it prayed that the decision be amended so
that instead of the penalty of one year which was imposed upon him it
be raised to 2 years 4 months and 1 day of prision correccional to 6 years and 1 day of prision mayor.
On its part, the private prosecution moved the court to set aside the
decision on the ground that the same was null and void and to authorize
the provincial fiscal to file a new information for murder based on the
same ground of fraud with regard to the age of the accused.

The two motions were set for hearing, and after both parties have
argued orally and have submitted written memoranda, the court, on
October 6, 1958, issued an order granting the motion for
reconsideration by denying the motion for the filing of a new
information for murder. To this effect, the court, without setting
aside its decision of August 6, 1958, authorized the provincial fiscal
to present evidence as to the age of the accused and the defense to
present rebuttal on October 18, 1958.

Upon receipt of this order, counsel for the accused filed a motion
for reconsideration alleging that, as the accused has already begun
serving his sentence, the court can no longer reopen the case because
it has already lost jurisdiction over it, the judgment having already
become final. This motion having been denied, the accused interposed
the present petition for certiorari.

In authorizing the reopening of the case in order that the
prosecution may present evidence with regard to the true age of the
accused, the trial court made the following statement:

“Considering that, although the decision in this
case was rendered after a plea of guilty and the accused forthwith
commenced to serve his sentence, the Court, in the interest of justice
and in view of the fact that, when the case was called on August 6,
1958, at the instance of the accused, and without sufficient previous
notice to the Provincial Fiscal, the latter was thus unable to
controvert in any way the existence of the privileged mitigating
circumstance of minority, should at least grant the prosecution the
chance to present formally in evidence Annexes A and B of its motion
for reconsideration, with the right on the part of the accused to rebut
the same.”

Section 7, Rule 116, of the Rules of Court, provides:

“Sec. 7. Modification of judgment.—A
judgment of conviction may be modified or set aside by the court
rendering it before the judgment has become final or appeal has been
perfected. A judgment in criminal case becomes final after the lapse of
the period for perfecting an appeal, or when the sentence has been
partially or totally satisfied or served, or the defendant has
expressly waived in writing his right to appeal.”

From the above it appears that a judgment of conviction may only be
modified or set aside before it has become final or appeal has been
perfected, and a judgment becomes final after the lapse of the period
of perfecting the appeal, or after the sentence has been partially or
totally satisfied by the defendant. It appearing that the sentence
imposed upon defendant has already become final because he has already
begun serving the same on the very date of the promulgation of the
judgment, it is evident that the case can no longer be reopened with a
view to the modification of the sentence which is the purpose of the
order of the court. Much as we sympathize with the move of the
prosecution and the motive behind the order of the court in view of the
apparent fraud the defendant has committed with regard to his age, the
move cannot be entertained for it will place the accused in double
jeopardy.

Wherefore, petition is granted. The order of the trial court dated October 6, 1958 is hereby set aside. No costs.

Paras, C. J., Bengzon, Padilla, Montemayor, Labrador, Concepcion, Endencia, Barrera, and Gutierrez David JJ., concur.