SEGUNDA SURBANO, PETITIONER, VS. THE HONORABLE DIEGO GLORIA, JUDGE OF THE COURT OF FIRST INSTANCE OF TAYABAS, AND THE PROVINCIAL FISCAL OF TAYABAS, RESPONDENTS.

Segunda Surbano brings this action through her attorney,
alleging that the Court of First Instance of Tayabas sentenced her in criminal
case No. 3667, for the misdemeanor of slight insults without said court having
jurisdiction, said misdemeanor having prescribed, for although the complaint is
for grave insults, yet, the judgment of conviction is for slight insults, and
she applies for a writ of certiorari praying, at the same time, that all
proceedings for the execution of the said judgment be suspended pendente
lite.

The respondents, namely, the Honorable Diego Gloria, Judge, and
the Provincial Fiscal of Tayabas, answering the petition, which they pray be
dismissed, allege that the misdemeanor, which is the subject matter of the
judgment contested by the petitioner, has not prescribed.

While it might be maintained in this jurisdiction that once the
Court of First Instance has acquired jurisdiction by virtue of the complaint for
grave insults, said court did not lose said jurisdiction by declaring the grave
insults charged to be slight (sec. 29, G. O. 58, and U. S. vs. Mallari and
Cueson, 24 Phil., 366); although, according to some American cases, the general
rule is that when the criminal act proven, which is lesser than the one charged,
has prescribed the court has no jurisdiction (16 C. J., 224, par. 343, No. 3),
yet, the fact is that in the present case it is unnecessary to solve this
question, because, according to the facts and considerations hereinafter set
forth, the slight insults referred to have not prescribed.

It appears that on December 27, 1926, a quarrel took place
between the accused and the offended party, when the insults in question were
uttered; that on the following day, December 28, 1926, the offended party
denounced the act to the local justice of the peace court, where the proper
preliminary investigation was held, and, on February 18, 1927, the complaint was
dismissed for lack of evidence.

On March 15, 1927, the complainant filed a new complaint
against the accused, but not in the court of the justice of the peace of her
town, but in the Court of First Instance of the province, which referred the
case to the justice of the peace of the provincial capital for the proper
preliminary investigation, as a result of which the cause was forwarded to the
Court of First Instance, he finding merits in the case. After the case was
heard, the Court of First Instance, presided over by the respondent judge,
rendered the judgment which is the subject matter of the present certiorari
proceeding.

As may be seen, the act was denounced on the following day,
December 28, 1926, in a complaint presented to that end, and dismissed on
February 18, 1927. Therefore, the period of prescription was interrupted during
the time included between these two said dates, because, according to the last
paragraph of article 131 of the Penal Code, the period of prescription of
felonies and misdemeanors is interrupted from the commencement of the
proceedings against the offender, and the term of prescription shall commence to
run again when such proceedings terminate without the accused being
convicted.

In the present case the period of prescription only commenced
to run again on February 18, 1927; and as only twenty-five days elapsed from
this last mentioned date until March 15, 1927, when the offended party repeated
her denunciation in the Court of First Instance of Tayabas, and not the two
months constituting the period of prescription provided by the law (art. 131,
par. 5, Penal Code) for misdemeanors, it is clear that the said misdemeanor has
not prescribed.

Therefore, the petition which is the subject matter of these
proceedings is groundless and it is therefore denied with the costs against the
petitioner, and the suspension of the execution of the judgment here in
controversy is set aside, which judgment is hereby declared valid and legally
effective.

Johnson, Street, Malcolm, Ostrand, Johns, and
Villa-Real, JJ., concur.