THE PEOPLE OF THE PHILIPPINE ISLANDS, PLAINTIFF AND APPELLANT, VS. HILARIA CABERO, DEFENDANT AND APPELLEE.

“The undersigned fiscal accused Hilaria Cabero of the crime of perjury, committed as follows:

“That
on or about the 6th day of December, 1932, in the municipality of
Caloocan, Province of Rizal, Philippine Islands, and within the
jurisdiction of this court, the said accused, Hilaria Cabero, presented
a written complaint to the court of the justice of the peace of the
said municipality of Caloocan, Province of Rizal, Philippine Islands,
duly subscribed and sworn to by her, the said accused Hilaria Cabero,
before Sofronio Abrera, the justice of the peace of the said court and
a competent person authorized by law to administer oaths, in which said
complaint she, the said accused Hilaria Cabero, wilfully, unlawfully
and feloniously testified and made the following affidavit or sworn
statement:

” ‘DENUNCIA

”
‘La que suscribe, despues de prestar juramento en forma legal, acusa a
Teresa Santos, la acusada arriba nombrada, del delito de lesiones
cometido como sigue:

” ‘Que en o hacia el 4 de diciembre de
1932, en el Municipio de Caloocan, Provincia de Rizal, Islas Filipinas,
y dentro de la jurisdiction de este Juzgado, la referida acusada,. sin
motivo justificado y usando violencia, voluntaria, ilegal, maliciosa y
criminalmente asalto, golpeo y agredio a la aqui denunciante con un
instrumento duro, infiriendole en su consecuencia en diferentes partes
de su cuerpo varias contusiones y lesiones que necesitaron unos 15 dias
de asistencia facultativa, e impidiendole a dedicarse a sus quehaceres
habituales por Igual periodo de tiempo. Hecho cometido con infraction
de la ley. Las contusiones y lesiones inferidas en la persona de la
denunciante se hallan mencionadas en el certificado medico que al
efecto se ha expedido.

” ‘Caloocan, Rizal, hoy 5 de diciembre de 1932.

” ‘Suscrita y jurada ante mi hoy 6 de diciembre de 1932, no habiendome exhibido cedula alguna por ser mujer.

when
in truth and in fact as the said accused Hilaria Cabero well knew, said
complaint, statements and affidavit made by her as aforesaid were false
and untrue, and were so made upon a material matter in a case in which
an oath was required by law.”

Upon arraignment the defendant entered a plea of not guilty. Several
adjournments were had at the request of defendant and when the case was
called for trial, the fiscal asked for a continuance showing by
documents that the offended party and one of the principal witnesses
was sick in hospital and a policeman, who was also an important
witness, was home sick in bed. After putting to the fiscal certain
questions, the court on its own motion dismissed the complaint, stating
(translated):

“After this case was called for trial, the
provincial fiscal asked for the postponement thereof alleging that two
of his principal witnesses, being ill, were absent. The petition was
opposed by the defense counsel. In order to know the value of the
testimony of said two witnesses, the court asked the fiscal on what
they were to testify, to which the fiscal answered that when said two
witnesses went to the house of the accused, the latter admitted to them
that the facts alleged in the complaint filed by her are false. The
fiscal likewise stated in his answer to the court that the complaint
filed by the accused in the justice of the peace court of Caloocan,
wherein said accused alleged the supposedly false facts, had not been
acted upon, that no trial was held, that neither the complainant nor
the accused therein has testified under oath, and that this information
was formulated in accordance with article 183 of the Revised Penal Code.

“The
information in this case alleges that Hilaria Cabero filed and
subscribed under oath a complaint before the justice of the peace of
Caloocan, Rizal, charging Teresa Santos with having used violence on,
assaulted, struck and attacked the complainant (the herein accused),
with a blunt instrument, without any justifiable motive whatsoever,
inflicting upon her, as a consequence thereof, various bruises and
injuries on different parts of her body, which required about fifteen
days of medical attendance and incapacitated her from engaging in her
customary work during the same period, notwithstanding that said
accused fully knew, and was aware that such facts or allegations are
false.

“The information, as formulated, does not fall under
article 183 of the Penal Code inasmuch as, according to the allegations
thereof, the alleged false statements have been made in a criminal case
by means of a complaint filed by the herein accused. Therefore the
information should be treated in the light of article 180 of said Code.
However, neither can this case prosper under the latter article on the
ground that, from the statements of said fiscal and from the very
information, it may be inferred that said complaint has not been acted
upon nor judgment rendered thereon sentencing the therein accused to a
penalty prescribed in any of the four paragraphs of the latter article,
which penalty would be made the basis of the penalty to be imposed upon
the accused if found guilty under article 180.

“Wherefore, the information is hereby dismissed, with costs de oficio. So ordered.

(Sgd.)

“VICENTE DE VERA

“Pasig, August 31,1933.”

From this order the Solicitor-General brings this appeal and makes the following assignment of error:

“The trial court erred in holding that the facts
alleged in the information filed in the case at bar do not constitute
perjury or a violation of the provisions of article 183 of the Revised
Penal Code, and in dismissing on that ground the information.”

The first question that presents itself for review is whether or not
an appeal will lie in this jurisdiction from the order complained of.
Section 44 of the Code of Criminal Procedure as amended by Act No. 2886
reads:

“SEC. 44. Either party may appeal from a final
judgment or from an order made after judgment affecting the substantial
rights of the appellant. The people of the Philippine Islands may also
appeal from a judgment for the defendant rendered on a demurrer to an
information or complaint and from an order dismissing a complaint or
information.”

Standing alone, the language of the last clause of section 44
clearly authorizes an appeal such as here presented. Appellee, however,
contends that the statute must be read in connection with the
constitutional provision against double jeopardy, and that while an
appeal would lie against an order solicited by the defendant on motion
or by demurrer, it does not lie where the action is taken by the court.

The exact question has never arisen, so far as we know, in English
or American jurisprudence. While the trial court has ample powers and
the writer of this opinion is firmly of the opinion that such powers
should be courageously exercised by the trial court, our Code of
Criminal Procedure contemplates a legal trial according to the regular
rules. It does not consider the possibility that the caprice of the
judge would take the place of orderly procedure.

In the instant case the court had before it a well-founded motion
for continuance. After an informal discussion the court did not pass on
the matter before it but attempted to dismiss the complaint sua sponte
on its own ideas as to the sufficiency of the complaint. The Code of
Criminal Procedure can be searched in vain for a single sentence that
would indicate such a power in the trial magistrate.

While the court had jurisdiction of the person and of the subject
matter and was authorized to pass upon any question that arose in
connection with the case, it cannot be Said that the question of the
dismissal of the complaint on motion ever arose. Even the accused could
not present such a motion at that time without consent of court and
withdrawing her plea.

The cases of Kepner vs. United States (1 Phil., 397, 519, 727; 195 U. S., 100^[1]), and People vs.
Webb (38 Cal., 467), relied upon by appellee in her brief, are entirely
different cases from the instant one. In the Webb case there was a
verdict by a jury. In the Kepner case there was an acquittal after
trial by the Court of First Instance. Erroneous rulings during trial
are not subject to review by the state. Where the statute authorizes a
review of erroneous rulings prior to trial, the statute has always been
upheld. In the Kepner case, the majority opinion seemed to give weight
to the idea that section 44 of General Orders, No. 58 had been revoked
by subsequent legislation. It is to be noted that Act No. 2886 was
passed some time after the Kepner decision.

The proceedings were not terminated, as the fiscal took prompt
exception to the unauthorized action of the court and the
Solicitor-General brought this appeal in the manner and within the time
authorized by statute.

We are therefore constrained to hold that an appeal in such an exceptional case as this, will lie.

The second question is whether the court was correct in holding that
the indictment is not good under either article 180 or article 183 of
the Revised Penal Code. There is no contention that it is good under
article 180. The pertinent portions of article 183 read:

“ART. 183. False testimony in other cases and perjury in solemn affirmation.—The penalty of arresto mayor in its maximum period to prision correccional
in its minimum period shall be imposed upon any person who, knowingly
making untruthful statements and not being included in the provisions
of the next preceding articles, shall testify under bath, or make an
affidavit, upon any material matter before a competent person
authorized to administer an oath in cases in which the law so requires.
* * * “

The indictment in the complaint closely follows article 183 and
alleges every fact required by that article. An affidavit was made upon
material matters before a competent person authorized to administer an
oath required by law. It is further clearly alleged that the accused
well knew that the affidavit in question made by her was false and
untrue upon the material matters recited. It would seem that the court
had the opinion that an affidavit to a criminal complaint has an
entirely different status from an affidavit for other purposes. In the
case of People vs. Rivera ([1933], 59 Phil, 236), we held
that a false affidavit was not a violation of article 363 of the
Revised Penal Code but did not hold that it would not violate article
183 of the Revised Penal Code. The indictment in the present case is
more complete than in the Rivera case in that it has an express
allegation of guilty knowledge. The holding of the trial court that the
complaint did not properly charge an offense was therefore erroneous.

The third question presented is whether or not under our ruling in the case of People vs.
Ylagan ([1933], 58 Phil., 851), that jeopardy having attached and the
trial court having attempted to dispose of the case, are further
proceedings lawful? This question is virtually covered by what we have
said above on the first point. For the purposes of the present appeal,
it might be sufficient to say that under section 24 of the Code of
Criminal Procedure the plea of jeopardy is an affirmative plea that
must be raised in the trial court.

Although not within the express language, there are many known
exceptions to the jeopardy rule that have from time to time been
declared by the court. Had the occasion arisen, it Is just as
reasonable to suppose that an exception to the rule would have been
declared from an unlawful action of the court as it would for the
existence of an exception in case of the insanity of the judge. The
accused is no more harmed in the one case than in the other. Even if
following the Ylagan case we should ultimately hold that the accused
was placed in jeopardy by her plea we must hold that the proceedings
have not been terminated, as the action of the trial court was without
authority and therefore null and void.

The order appealed from is therefore set aside and declared of no
value and the case is remanded to the court of origin for an orderly
determination of the case in the manner provided by law. Costs against
appellee. So ordered.

Street, Malcolm, Villa-Real, Abad Santos, Imperial, Butte, Goddard, and Diaz, JJ., concur.

CONCURRING

VICKERS, J.,

I
concur in the result. I wish to point out, however, that in holding the
complaint in this case valid the court in effect reverses its decision
in the cases of the People vs. Rivera ([1933], 59 Phil.,
136), from which I dissented. There is no substantial difference
between the complaint in the present case and the complaint in that
case. It was of course immaterial that Rivera was charged with having
violated article 363 instead of article 183 of the Revised Penal Code.

Order set aside and ease remanded for further proceedings.