Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-21805 February 25, 1967

PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. FIDEL TAN, defendant-appellee. Narciso Vasquez, Jr. for defendant and appellee. Office of the Solicitor General for plaintiff and appellant. REYES, J.B.L., J.: Appeal from the order, dated 4 January 1963, of the Court of First Instance of Samar, in its Criminal Case G.R. No. 4097, denying the government's motion for the re- arrest of the accused-appellee, Fidel Tan. The aforesaid appellee was, under a modified judgment, sentenced by said court to suffer an indeterminate penalty ranging from TWO (2) YEARS and FOUR (4) MONTHS, as minimum, to FOUR (4) YEARS and TWO (2) MONTHS, as maximum, both of prision correccional, with the accessory penalties provided by law, indemnify the heirs of Sinforoso Volfango P3,000.00, and pay the costs. He appealed, but upon his own motion the Court of Appeals dismissed the appeal, in a resolution of 1 August 1958. The sentence having become final, the accused was committed to the Director of Prisons, on 2 March 1959, through the provincial warden. The provincial warden did not, however, commit the prisoner to the national penitentiary but retained him in the Samar provincial jail. Thereafter, the warden took it upon himself to apply the provisions of Articles 97 and 99 of the Revised Penal Code as well as Act No. 2489, and credited the prisoner with good conduct time allowance. After the prisoner's actual confinement in jail for 2 years, 8 months and 21 days, the warden released him on 23 November 1961. On 6 September 1962, the provincial fiscal moved for the re-arrest of the accused and to order him recommitted to the national penitentiary, on the ground that the provincial warden had no authority to release him with good conduct time allowance. The motion was unopposed. Acting on the motion, the court required the warden to explain why the prisoner was kept in the provincial jail and not "sent to Manila" and to answer the fiscal's allegation that he released the prisoner without an order from the Director of Prisons and before the service of the full term of the sentence.

The warden explained as follows: That said prisoner was not made to serve his imprisonment in the national penitentiary because sometime in 1959 our office received a communication from the Director of Prisons to withhold transfers of prisoners from the provincial jails to the New Bilibid Prison due to congestion resulting in the bloody riots. In same year when my attention was called why prisoner Fidel Tan was not yet sent to Muntinlupa inspite of the cessation of the riots, I have explained in a letter dated October 1, 1959, to the Assistant Director of Prisons, that same prisoner could not be sent as he was undergoing close medical treatment of his left lumbar region where previous wound was located, his left thigh, and presence of blood in the urine as evidenced by a medical certificate sent together with my explanation. Being of the opinion and belief then that if this prisoner be transferred to the national penitentiary he might be involved in another occasional and undetermined riots, where his physical condition cannot resist the fear and which may aggravate his ailment, that for the sake of humanity, until his physical condition should improve but which did not until his time of release.
1wph1.t

That said prisoner was released without order from the Director of Prisons on the ground that he cannot be made to still be lodged in the provincial jail when the date of his release was already due, much less send him to Muntinlupa when the term of his sentence minus good behavior credit has expired. That said prisoner was released after having served the term diminished by the credit of good conduct time allowance in accordance with the provisions of Art. XI, Sec. 1 (a) and (b) of the Revised Rules and Regulations for the Government of Insular and Provincial Prisoners in the Philippines. That the computation made by me was correct according to my interpretation in good faith of the aforementioned provision based on the maximum term of sentence of 4 years, 2 months. On 21 September 1962, the lower court issued an order requiring the appearance of the warden to show the veracity of his information and, on 4 January 1963, it issued the order that is now the subject of this appeal denying the fiscal's petition to recommit the accused. The excuses tendered by the provincial warden are clearly inacceptable. The alleged fear that the convict Tan might be involved in occasional riots in the Insular Penitentiary is but a flimsy pretext for evading the warden's plain duty of remitting the prisoner to his proper place of confinement. Having been sentenced to more than one year of imprisonment, the convict was not a provincial Prisoner but an insular prisoner (Adm. Code, section 1740), and there being no showing that his life would be endangered by the trip to Muntinlupa penitentiary, the warden's failure to send him thither was a breach of duty for which said officer should be held accountable. It needs no stressing that to allow provincial wardens to retain insular prisoners without proper authorization would open the way to all sorts of discrimination in the treatment of prisoners and constitute a standing invitation for the commission of abuses and anomalies for personal or political motives. Nor do we find in the record any justification for the warden's usurping the authority of the Director of Prisons in crediting the prisoner with good conduct time allowance. Article 99 of the Revised Penal Code vests such authority exclusively in the Director and no one else. Assuming that appellee Tan was entitled to good conduct time allowance, his release by the provincial warden, after an imprisonment of only 2 years, 8 months and 1 day, was premature. Under paragraph No. 1, Article 97, of the Revised Penal Code, he may be allowed a deduction of five (5) days for each month of good behavior during his first two years of imprisonment, which would be 24 months multiplied by 5, or 120, days; under paragraph No. 2, he may be allowed a

deduction of eight (8) days a month f or the next three years. For the balance of eight (8) months, multiplied by 8, we have 64 days; so that the total credit for good behavior would be 184 days, equivalent to 6 months and 4 days.1 The prisoner's actual confinement of 2 years, 8 months and 21 days, plus his possible total credit of 6 months and 4 days, would give the result of 3 years, 2 months and 25 days. Since the maximum term of his sentence is 4 years and 2 months, appellee Tan, assuming that he is entitled to good conduct time allowance, has an unserved portion of 11 months and 5 days.2 The court below denied the fiscal's motion for the rearrest of the accused-appellee on the following grounds: (a) that when the accused-appellee commenced serving his sentence and was committed to the warden, the court lost jurisdiction over the prisoner's "person with respect to his imprisonment"; (b) that to re-arrest him after his release would amount to double jeopardy or deprive him of his liberty without due process of law; and (c) that the accused abided by the judgment and served it in good faith, even if the act of the jailer was irresponsible and erroneous. We agree with the Solicitor General that the lower court had already lost jurisdiction to amend or alter its judgment of conviction, but not over its execution or satisfaction. The court's jurisdiction was not terminated by the commitment of the convict to the jail authorities the commitment was but the start in carrying out of the court's decision. It is the prerogative of the court meting out the punishment to see to it that the punishment be served until, by act of lawfully authorized administrative agencies of the state the convict is pardoned or paroled or, on lawful grounds, set at liberty sooner than the expiration of the sentence imposed. The prisoner's re-arrests3 would not place him twice in jeopardy because his re-incarceration is merely a continuation of the penalty that he had not completely served due to the erroneous act of the warden, it is not a new or subsequent conviction. Neither would his re-arrest deprive him of liberty without due process of law, because he was not yet entitled to liberty at the time he was released. Service of penalties and allowance for good conduct are specifically, even elaborately, governed by the Penal Code and do not depend upon the good faith of the warden and of the prisoner. For the foregoing reasons, the appealed order is hereby reversed and a new one entered, ordering the re-arrest, and the continuance of the imprisonment of the accused-appellee, Fidel Tan, for one (1) year, five (5) months and eleven (11) days more. Let a copy of this decision be furnished to the Director of Prisons, who is hereby directed to incarcerate the appellee in the national penitentiary, if present conditions thereat would allow his accommodation, or if not, in any other suitable jail, without prejudice to credit for good behavior from the time he was jailed on 2 March 1959, in accordance with Article 99 of the Revised Penal Code. Let another copy of this decision be sent to the Secretary of Justice, that he may take action, if warranted, against the warden concerned. No costs. Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur. Footnotes
1

The Solicitor-General's computation is 6 months and 10 days.

The Solicitor-General's computation is 10 months and 29 days. The foregoing computations suffer from clerical errors and disregard par. 2, Art. 97.

Some authorities hold that a fresh warrant is not necessary (4 Moran 120, 1963 Ed.).

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-1782 February 2, 1948

FIDEL B. FORTUNO, petitioner, vs. THE DIRECTOR OF PRISONS, respondent. Fidel B. Fortuno on his own behalf. First Assistant Solicitor General Roberto A. Gianzon and Solicitor Ramon L. Avancea for respondent. PARAS, J.: This is a petition for the writ of habeas corpus in which the petitioner, a prisoner whose aggregate penalty is more than twenty years of imprisonment counted from October 8, 1941, seeks his immediate release. The first ground is that the recommitment order issued by the Board of Indeterminate Sentence on October 4, 1941, directing the confinement of the petitioner for the unexpired portion of his maximum sentence in case No. 9587 of the Court of First Instance of Rizal (2 years, 4 months and 22 days), was illegal and otherwise premature, because (1) petitioner's one-day trip to Santa Rosa, Laguna, merely to get money from his relatives, did not constitute a violation of his parole that he was to live in Manila and not to change his residence during the period of his parole without the prior permission of the board, and (2) the mere filing against the petitioner of several complaints for estafa, without final judgment of conviction, did not constitute a violation of another condition of his parole that he was not to commit any crime and was to conduct himself in an orderly manner. Petitioner's position is untenable. Without deciding whether or not his visit to Santa Rosa without first securing the consent of the board was a violation of one of the conditions of his parole, it may safely be held that he broke the other condition; namely, that he would not commit any crime, since the petitioner was prosecuted for and finally convicted of the series of estafa committed by him during the period of his parole. Petitioner's contention that the recommitment order was premature, because it came down before his convictions, is now rather academic, even assuming that final conviction is necessary in order to constitute a violation of the condition in dispute. The second ground is that the additional penalty of 10 years of imprisonment imposed upon the petitioner in CA G.R. No. 79, was illegal and in excess of the jurisdiction of the court, because his conviction for illegal possession of counterfeit bills should not be counted for habitual delinquency purposes, since said conviction is not for robbery, theft, estafa or falsification. In other words, petitioner's contention is that his previous conviction for illegal possession of counterfeit bills was wrongly included. Such mistake, even if true, cannot be corrected in a proceeding for habeas corpus, for there is virtually no difference between the alleged error and that pointed out inPaguntalan vs. Director of Prisons, 57 Phil., 140, wherein it was held that the error of counting as separate convictions various convictions which should be counted as one due to the proximity of the commission of the crimes, should "have been corrected by appeal, for it was rather an error of judgment and not an undue exercise of judicial power which vitiates and nullifies the proceeding."

Petitioner also argues that the information in CA G.R. No. 79 did not contain any allegation that he was an habitual delinquent, though it was alleged therein that he was a recidivist. Apart from the absence of proof on the point, and from the legal presumptions that the court acted lawfully in the exercise of its jurisdiction and performed its duty regularly (section 69, pars. m and n, Rule 123), the alleged defect may be likened to that referred to in Domingo y Reyes vs. Director or Prisons, 44 Off. Gaz., 2201, wherein we said that "the allegation, if true, that the judgment of conviction was rendered without a plea of guilty properly entered by the accused to the lesser offense of homicide, is merely a defect of procedure, not of jurisdiction, though it may have the effect of voiding the judgment," and "cannot be reviewed in habeas corpus proceedings wherein the only issue is whether or not the petitioner is entitled to release." The third ground is that the petitioner is entitled to a special allowance of one-fifth of his aggregate penalty on account of his failure to escape from his place of confinement during the war. Our ruling on this feature of the case has to be adverse to the petitioner, inasmuch as we have already held that "the special allowance for loyalty authorized by articles 98 and 158 of the Revised Penal Code refers to those convicts who, having evaded service of their sentence by leaving the penal institution, give themselves up within two days," and not to those who have not escaped. (Artigas Losada vs. Acenas, 44 Off. Gaz., 2694.) It appearing that the petitioner has not yet served his total term of imprisonment, as the periods sought by him to be deducted are not allowable, the petition will be, as the same is hereby, denied without costs. So ordered. Moran, C.J., Pablo, Bengzon, Briones, Padilla, and Tuason, JJ., concur.

Separate Opinions FERIA, J., dissenting: Petitioner complains that the recommitment order issued on October 4, 1941, by the Board of Indeterminate Sentence, for the unexpired portion of the petitioner's sentence in case No. 9587 of the Court of First Instance of Rizal, was illegal and premature, upon two grounds: (1) That his oneday trip to Santa Rosa, Laguna, merely to get money from his relatives, did not constitute a violation of the condition of his parole that he was to live in Manila and not change his residence during the period of his parole without the prior permission of the board, and (2) That the mere filing against petitioner of several criminal complaints, without final judgment of conviction did not constitute a violation of the condition that he was not to commit any crime and was to conduct himself in an orderly manner. Petitioner's position is well taken. By making the trip to Santa Rosa, petitioner did not cease to live in Manila and did not change his residence. Residence in one place is not incompatible with visits to other places for purposes other than to establish therein another residence. The condition not to commit any crime and to conduct himself in an orderly manner is not violated by the mere fact that several criminal complaints have been filed. Before final judgment of conviction, the accused cannot be considered as having bee guilty of any crime. He is protected by the constitutional presumption of innocence until the contrary is proved, and proof is the final sentence of conviction. (Section 1 [17], Art. III of the Constitution.)

Petitioner attacks the legality of the additional penalty of 10 years of imprisonment imposed upon him in CA G.R. No. 79, because his conviction for illegal possession of counterfeit bills should not be counted for habitual delinquency purposes, since said conviction is not for robbery, theft, estafa, or falsification. The complaint is well founded. Illegal possession of counterfeit bills cannot be classified as robbery, theft, estafa or falsification. Petitioner is entitled to relief. We disagree with the majority's position that the error cannot be corrected in a proceeding for habeas corpus. It is not a case of a simple harmless mistake. It is a case of manifest illegality which this Court is duty bound to correct if true justice is to be administered. The case of Paguntalan (57 Phil., 140) is invoked in support of the theory that appeal is the proper remedy. The theory is unreasonable and no authority can make it reasonable. All authorities have to bow before the authority of reason. To give your back to reason is to defeat justice. Another ground of petitioner is that the information in CA G.R. no. 79 did not contain any allegation that he was a habitual delinquent. But this contention is dismissed by the majority upon the theory that the error or defect of procedure "though it may have the effect of voiding the judgment, cannot be reviewed in habeas corpusproceedings wherein the only issue is whether or not the petitioner is entitled to release." This position appears to us to be untenable and absurd. Of course it is elemental that the issue in habeas corpus proceedings is whether or not the detained or imprisoned person is entitled to release, but this is only the conclusion to be arrived at and it has to be based on the result of the inquiry as to whether or not the detention or imprisonment is legal or illegal. The right to be released is merely a conclusion, and should not be gathered from a result of the question as to the legality or illegality of the deprivation of liberty. When this deprivation is based on a judgment, the validity of the judgment becomes an issue essential in the habeas corpus proceedings. When a prisoner is deprived of his freedom by virtue of a void judgment he is entitled to be released on habeas corpus. In support of the majority position the decision in Domingo vs. Director of Prisons, G.R. No. L-1229 is invoked. That it is erroneous we have already shown in our opinion in said case which we quote: On July 31, 1946, petitioner was charged with the crime of murder, allegedly committed on July 6, 1946. On August 20, 1946, the accused was arraigned. His attorney made the statement that he advised the prosecution of the fact that provocation came from the victim, and that the information ought to be amended. The information without the amendment was read, and the accused entered a plea of not guilty. The following is a transcript of the stenographic notes taken during the hearing on August 30, 1946; "RESUMPTION OF THE PROCEEDINGS ON AUGUST 30, 1946 IN THE MORNING "APPEARANCES "Assistant City Fiscal Guillermo Dacumos, for the prosecution; and, Attorney Celestino de Dios, for the defense. "Sr. de Dios: "El Agosto 26 yo he presentado una carta al Fiscal diciendo que la acusacion tenia entremanos ... diciendo que con las pruebas no es de asesinato sino homicidio, y considerando la declaracion espontanea de culpabilidad y la falta de instruccion del

acusado y sumision a las autoridades, con estas circunstancias el acusado se declara culpable del delito de homicidio. "Fiscal: "I read over this case and I have no evidence to sustain the murder charge and we are willing to agree to the plea of guilty of the accused, that is homicide. "Court: "With the mitigating circumstance of plea of guilty and voluntary surrender ... Como se entrego? "Sr. de Dios: "Cuando fueron a su casa se entrego voluntariamente. "Court: "SIX years and one day of prision mayor to twelve years and one day of reclusion temporal, to indemnify the offended party in the sum of TWO thousand pesos. The accused is credited with one-half of his preventive imprisonment. "The foregoing is true to the best of my understanding and belief. "(Sgd.) VALENTIN C. GUTIERREZ (Stenographer)" The above is conclusive evidence that, without the petitioner pleading guilty, but only upon his attorney's statement of petitioner's willingness to plead guilty, the lower court sentenced him forthwith from six years and one day of prision mayor to twelve years and one day of reclusion temporal and to indemnify the offended party in the sum of P2,000, crediting the accused with one-half of his preventive imprisonment. Section 3 of Rule 114 provides: "A plea of guilty can be put in only by the defendant himself in open court." Speaking of identical provision in section 25 of General Orders No. 58, this Court stated that "stronger and clearer language could not have been used." "ONLY," as thus used, is clearly restrictive and excludes as clearly as language can, the idea that someone else can enter the plea of guilty for an accused person charged of felony, "ONLY," coupled with the words "the defendant himself," has the effect of absolutely prohibiting any other person from entering such a plea. "If a plea of guilty be entered into by another person, where the charge is that of a felony although such person may be the counsel for the accused, it is nullity and no conviction can rest thereon" (U.S. vs. Jimenez, 34 Phil. 74). "A plea of his attorney for him is a nullity" (McWillars vs. State, 98 Am. Dec. 791). And from the book of one of the authors of the Rules of Court we quote: "Under Section 3, a plea of guilty can be put in only by the defendant himself in open court. Such a plea entered by any other person, as counsel, is a nullity and no

conviction can rest thereon. (Comments on the Rules of Court, Moran, Volume II, page 521.) If conviction cannot rest on any other plea of guilty but only the one entered personally by the defendant himself, the judgment convicting him becomes illegal and a nullity. A person committed to imprisonment under such a judgment may be released on habeas corpus (29 C. J., 17; Andres vs. Wolfe, 5 Ilf. 60; Ex parte Lange, 21 U. S. [L. Ed.] 872; State vs. Bailey, 106 Minn. 138; Collins vs. Johnston, 237 U. S. 502). The violation of the law in petitioner's case is justified by the following statement in the majority opinion: "The allegation, if true, that the judgment of conviction was rendered without a plea of guilty properly entered by the accused to the lesser offense of homicide, is merely a defect of procedure, not of jurisdiction, though it may have the effect of voiding the judgment. And this error of procedure cannot be reviewed in habeas corpus proceedings wherein the only issue is whether or not the petitioner is entitled to release. And the petitioner is not entitled to release even if we have power to set aside the judgment upon the ground aforementioned, for, in such event the proper procedure would be to reopen the criminal case and order the trial court to proceed further as if no judgment has ever been entered therein, that is, it must arraign the accused for the lesser offense of homicide after the information is duly amended, then try the case if the accused pleads not guilty, and the latter in the meantime should remain in confinement if he is not on bail." Defect of procedure are words that express a very wide range of ideas, which include the most insubstantial and harmless and those which encroach into the fundamental rights of an accused. Generalities are often resorted to for the purpose of avoiding hard or disagreeable problems. Excess of jurisdiction is also a defect of procedure, and the majority in stating both ideas, the one contradicting the other, are laboring under the wrong premise of eliminating a particular idea from the general which comprises it. From a wrong premise we cannot expect a correct conclusion. Of course, the issue in this case is whether petitioner is entitled to be released or not, a question whether which necessarily involves the question whether he is illegally deprived of his liberty. As we have shown, the judgment convicting petitioner, by virtue of which he is confined in prison, is a nullity. The majority makes the lukewarm admission that the fact that petitioner did not personally enter a plea of guilty "may have the effect of voiding the judgment," This dubitative and nubilous statement is not clarified in any part of the majority opinion. If the judgment under the authority of which petitioner is deprived of his liberty, is null and void, then his confinement should be declared illegal for lack of a legal basis to support it. The majority evade facing the full consequences of the illegality of the confinement by resorting to a technicality. Without good grounds or any ground at all in support of their position, they opine that habeas corpus is not the proper procedure but a reopening of the criminal case in which the illegal and void judgment has been rendered. The position has the evident purpose of depriving petitioner of a legal remedy to the illegality of which he is a victim, by denying him the remedy of habeas corpus, to which recourse he has resorted on time, and offering him instead a remedy the time for whose usefulness had already elapsed, that is the remedy of an appeal months after it could be resorted to. It is true that certiorariproceedings is also suggested. But if there is a substantial meaning in their

suggestion, we do not see any reason why the present petition for habeas corpus cannot be considered also as an action for certiorari, although, if necessary, it be amended to follow the majority's suggestion that the trial court be made a respondent. Petitioner's allegation that he did not enter a plea of guilty is disbelieved by the majority because the trial judge states in his judgment that the accused "pleaded guilty to the crime of homicide and the deputy clerk of court signed an affidavit that she rearraigned the accused for the lesser offense on August 30, 1946, and that the accused pleaded guilty." The two evidences pointed out by the majority appear without firm ground to stand on. The trial court's sentence appears to contain an unquestionable misstatement of fact. The sentence is dated "August 31, 1946." It narrates the proceedings under which the accused is alleged to have pleaded guilty to the crime of homicide as having taken place "this morning." But the affidavit of the deputy clerk of court states that the re-arraignment and plea of guilty entered by the accused took place on "August 30, 1946." The contradiction between the statement of the trial court and that of the deputy clerk of court has not been explained, and there is no way of knowing which should be accepted as to the correct narration of the facts. The trial judge states the plea of guilty was entered in the "morning" of August 31, 1946, while the deputy clerk of court states that it took place on August 30, 1946. The majority appear to accept both as correct. We prefer to accept the transcript of the stenographic notes as the better and logical one, because there it appears that, although the accused was present in court on August 30, 1946, he was not then arraigned nor did he enter a plea of guilty. With respect to the affidavit of the deputy clerk of court, it is surprising that such affidavit has been presented, while the original notes which she must have taken during the proceedings and the minutes of the session she must have entered and kept, were not offered in evidence. That the accused, instead of appealing against the sentence, filed the petition three-and-ahalf months after notice of his conviction, is no evidence at all that he pleaded guilty. The majority assert that "this passive attitude is an indication of conformity with the proceedings," but such conformity does not establish the fact that he pleaded guilty when he did not, and it is elemental that such conformity does not make legal an illegal judicial actuation. Such alleged conformity, at most, may be construed as petitioner, a 20-year-old-youngster, took for granted as well done the illegal proceedings in which his own attorney and the trial judge, both trained and experienced in law, took part as the principal actors, inducing petitioner to believe that they were acting in conformity with the law. The majority tried to weaken the force of the transcript of stenographic notes by stating that "the stenographer may take note of the plea of guilty entered by an accused, but he is not bound to do so, that proceeding being a proper subject matter for the minutes to be entered by the clerk of court." But as we have already asserted, no minutes entered by the deputy clerk of court was offered as evidence in this case. Besides, it is legal heresy to assert that the stenographer "is not bound to take note of the plea of guilty entered by an accused." The court stenographer is duty bound to take note of all the proceedings of the court sessions attended by him. Precisely, because formerly some judges used to order the court stenographer not to take note of some proceedings, there is a law which guarantees litigants and their attorneys the right to have inserted in the record and be noted by the court stenographer all actuations and proceedings in their cases in a court session. And there is no proceeding more important in a criminal case than the arraignment of the accused and his entering a plea of guilty or nor guilty. There is absolutely no valid reason why a court stenographer should be relieved from the duty of noting down the plea entered by the accused at his arraignment. We refuse to countenance such an absurdity.

We vote to order the release of petitioner, it appearing that he is illegally confined by virtue and under the authority of a judgment which is null and void ab initio. The last question propounded by the petitioner is that he is entitled to the allowance of one-fifth of his aggregate penalty because he did not escape from his place of confinement during the war. The contention is also rejected by the majority who invoke the decision in Losada vs. Acenas, L-810-813. Our disagreement with said decision is explained in the opinion which we quote: The legal controversy in this case centers upon the interpretation and application of articles 98 and 158 of the Revised Penal Code. We are inclined to follow the liberal interpretation adopted by the lower court and, therefore, to affirm its judgment, dated July 20, 1946, ordering the release of appellees Manuel Artigas Losada, Santiago Aguda, Getulio Geocada and Francisco Danao. Under the two above-mentioned articles of the Revised Penal Code, a convict who shall evade the service of his sentence by leaving the penal institution where he is confined, on the occasion of disorder resulting from a conflagration, earthquake, explosion, or similar catastrophe, or during a mutiny in which he has not participated, shall suffer an increase of one-fifth of the period still remaining to be served under his sentence, or a deduction of onefifth of his sentence if, in the first case, he shall fail to give himself up to the authorities or, in the second case, he gives himself up to the authorities within forty-eight hours following the issuance of a proclamation announcing the passing away of the calamity or catastrophe. There is no question that war is a calamity or catastrophe similar to those specifically mentioned by law. It is a fact that appellees behaved well during the last war and remained loyal to the prison authorities in spite of the disorder occasioned by the war. As they did not escape, their cases apparently do not fall within the letter of articles 98 and 158 of the Revised Penal Code. But the spirit embodied in said articles offers no doubt that appellees' cases fall within the substantial purview of the law. Under the provisions of articles 98 and 158 of the Revised Penal Code, the convict who shall evade the service of his sentence and does not give himself up to the authorities within fortyeight hours following the issuance of a proclamation announcing the passing away of the calamity, shall be punished with an increase in his sentence, but if he gives himself up he will be granted as a reward, a reduction of his sentence, a reduction that in appellee's cases will entitle them to freedom. Appellant and the majority of this Court, instead of following the clear intention of the law, would sacrifice it for the sake of the application ad pedem litere. Such attitude will lead us to absurd conclusions. For example, the articles in question contemplate the issuance of a proclamation by the Chief Executive announcing the passing away of the calamity. In the hypothesis that such a proclamation is never issued, a convict who shall have evaded service of sentence under the circumstances contemplated by the law but later gives himself up to the authorities, will not be entitled to one-fifth deduction. In another hypothesis, a convict who, on the occasion of disorder resulting from a calamity or catastrophe, had opportunity to evade the service of his sentence, instead of escaping, voluntarily continues to submit himself under the custody of the authorities who might not have the force to make effective said custody, will be in a worse situation than the one who evaded his sentence. The absurd consequences of the narrow-minded interpretation that sticks to the letter of the law, instead of following the clear intention of the lawmaker, compels us to reject it.

The liberal interpretation adopted by the lower court is in consonance with the modern trend of the law. That interpretation is in accordance with the spirit which should pervade all criminal laws, that is, that any doubt or controversy should be resolved in a way that will be more beneficial to the accused. For all the foregoing, we not to affirm the appealed decision. For all the foregoing, we vote to grant the petition.

HILADO, J., dissenting: I dissent. Consistently with my stand on the question of validity or nullity of judgments and proceedings of occupation courts, I am of the opinion that petitioner's confinement is illegal with respect to the orders mentioned in paragraphs 2 to 11, both inclusive, of the return. As to the order of the Parole Board of October 4, 1941, referred to in paragraph 1 of said return, Act 4103, section 8, as amended by Act 4225, section 3, provides that in case of violation by a parolee of any of the conditions of his parole, the Board of Indeterminate Sentence may issue an order for his re-arrest, in which case the prisoner so re-arrested shall serve the remaining unexpiredportion of the maximum sentence for which he was originally committed to prison, with the exception therein established but which does not hold in this case. Petitioner was ordered re-arrested and reconfined by the Board of Indeterminate Sentence through its order Exhibit 1, dated October 4, 1941, signed by the Secretary of Justice, as Chairman of the Board. As stated in the majority opinion, the unexpired portion, of the petitioner's sentence was 2 years, 4 months, and 22 days. Judging from the very first allegations of the return, petitioner must have been recommitted under that order on October 8, 1941. Therefore, the unexpired portion of his sentence above referred to terminated on March 1, 1944. From then on, in my opinion, petitioner's confinement became illegal, and he should therefore forthwith be released.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-9598 August 15, 1956

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. YU HAI alias " HAYA", defendant-appellee. Office of the Solicitor General Ambrosio Padilla and Solicitor Antonio A. Torres for appellant. Eduardo de Leon Jr., Jose L. de Leon and Nicolas V. Benedicto Jr., for appellee. REYES, J.B.L, J.: On October 22, 1954, Yu Hai alias "Haya" was accused in the Justice of the Peace Court of Caloocan of a violation of Article 195, sub-paragraph 2 of the Revised Penal Code, for having allegedly permitted the game of panchongor paikiu, a game of hazard, and having acted as maintainer thereof, in the municipality of Caloocan on or about the 26th day of June 1954. The accused moved to quash the information on the ground that it charged more than one offense and that the criminal action or liability therefor had already been extinguished; and the Justice of the Peace of Court, in its order of December 24, 1954, sustained the motion to quash on the theory that the offense charged was a light offense which, under Article 90 of the Revised Penal Code, prescribed in two months. The provincial fiscal appealed to the Court of First Instance of the province, which affirmed the order of dismissal of the information. Wherefore, the provincial fiscal appealed directly to this Court. The sole issue is the period for prescription of the offense charged, punishable under Article 195 of the Revised Penal Code by arresto menor or a fine not exceeding P200. The lower court held that the crime charged is a light offense as defined in Article 9 of the Code, and prescribed in two months; while the Solicitor General argues that as the crime charged may be punished by a maximum fine of P200 (a correctional penalty under Article 26),the same prescribe, also under Article 90, in ten years. The pertinent legal provisions of the Revised Penal Code are: ART. 90. Prescription of crimes. xxx xxx xxx

Those punishable by a correctional penalty shall prescribe in ten years; with the exception of those punishable by arresto mayor, which shall prescribe in six months. The crime of libel or other similar offenses prescribe in two years. The offense of oral defamation and slander by deed shall prescribe in six months. Light offense prescribe in two months. xxx xxx xxx

ART. 9. Grave felonies, less grave felonies, and light felonies. xxx xxx xxx

Less grave felonies are those which the law punishes with penalties which in their period are correctional, in accordance with the above mentioned article. Light felonies are those infraction of law for the commission of which the penalty of arresto mayor or a fine not exceeding 200 pesos or both, is provided. ART. 26. Fine, when afflictive, correctional, or light. A fine, whether imposed as a single or as an alternative penalty, shall be considered an afflictive penalty, if it exceeds 6,000 pesos; a correctional penalty, if it does not exceed 6,000 pesos but is not less than 200 pesos; and a light penalty if it be less than 200. Under Article 90, supra, "light offenses prescribe in two months". The definition of "light offenses" is in turn to be found in Article 9, which classifies felonies into grave, less grave, and light, and defines "light felonies" as "those infraction of law for the commission of which the penalty of arresto mayor or a fine not exceeding 200 pesos or both is provided ". The offense charged in punishable by arresto menor or a fine not exceeding 200 pesos (Article 195). Hence, it is a "light offense" under Article 9 and prescribes in two months under Article 90. The Solicitor General argues that as the crime charged may be punished by a maximum fine of P200, which under Article 26 is a correctional penalty, the time for prescription thereof is ten years, pursuant to paragraph 3 of Article 90. This argument is untenable. In the First place, while Article 90 provides that light offense prescribe in two months, it does not define what is meant by "light offenses" , leaving it to Article 9 to fix its meaning. Article 26, on the other hand, has nothing to do with the definition of offenses, but merely classifies fine, when imposed as a principal penalty, whether singly or in the alternative into the categories of afflictive, correctional, and light penalties. As the question at issue is the prescription of the crime and not the prescription of a penalty, Article 9 should prevail over Article 26. In the second place, Article 90 could not have intended that light offenses as defined by Article 9 would have two prescriptive periods two months if they are penalized by arresto menor and/or a fine of less than P200. and ten years if penalized by a maximum fine of P200. Under the theory of the Solicitor General, the difference of only one peso in the imposable fine would mean all the difference of nine years and ten months in the prescriptive period of the offense. And what is worse, the proper prescriptive period could not be ascertained until and unless the court decided which of the alternative penalties should be imposed; which the court could not properly do if the offense had prescribed, for then it could no longer be prosecuted. These absurd results the law-makers could not have wittingly intended, especially since more serious offenses as those punishable by arresto mayor (a correctional penalty) prescribe, also under Article 90, in five years, while other "less grave" offense like libel, and oral defamation and slander, prescribe in even shorter periods of times, tow years and six months respectively. As held in the case of People vs. Florendo, 73 Phil., 679, there is no reason to suppose that the law-maker would raise the prescriptive period for certain light offenses over other light offenses. It should also punishable by arresto menor of a fine not exceeding 200 pesos or both. Now, if we are to follow the argument of the Solicitor General that Article 26 should prevail over Article 9 if the offense is punishable by a maximum fine of P200 we would again have the absurd situation that an offense penalized by arresto menor or fine not exceeding P200 in the alternative, would be a less

grave felony, while the more serious one, which the law penalizes with both imprisonment of arresto menor and a fine not exceeding P200, remains only a "light offense". Finally, criminal statutes are to be strictly construed against the government and liberally in favor of the accused. As it would be more favorable to the herein accused to apply the definition of "light felonies" under Article 9 in connection with the prescriptive period of the offense charged, being a light offense, prescribed in two months. As it was allegedly committed on June 26, 1954 and the information filed only on October 22, 1954, the lower court correctly ruled that the crime in question has already prescribed. The decision appealed from is affirmed, with the costs de oficio. So ordered. Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Endencia and Felix, JJ.,concur.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-47684 June 10, 1941

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs. DIONISIO A. MANEJA, defendant-appellee. First Assistant Solicitor-General Reyes and Solicitor Barcelona for appellant. Del Rosario & Del Rosario, Pelaez & Pelaez and Hilario B. Abellana for appellee. Godofredo Reyes and Enrique Medina as private prosecutors. MORAN, J.: The sole question raised in this appeal is whether the period of prescription for the offense of false testimony which, in the instant case, is five years (art. 180, No. 4, in relation to art. 90, Revised Penal Code), should commence from the time the appellee, Dionisio A. Maneja, adduced the supposed false testimony in criminal case No. 1872 on December 16, 1933, as the lower court held, or, from the time the decision of the Court of Appeals in the aforesaid basic case became final in December, 1938, as the prosecution contends. We hold that the theory of the prosecution is the correct one. The period of prescription shall commence to run from the day on which the crime is discovered by the offended party, the authorities or their agents. (Art. 91, Revised Penal Code.) With regard to the crime of false testimony, considering that the penalties provided therefor in article 180 of the Revised Penal Code are, in every case, made to depend upon the conviction or acquittal of the defendant in the principal case, the act of testifying falsely does not therefore constitute an actionable offense until the principal case is finally decided. (Cf. U. S. vs. Opinion, 6 Phil., 662, 663; People vs. Marcos, et al., G.R. No. 47388, Oct. 22, 1940.) And before an act becomes a punishable offense, it cannot possibly be discovered as such by the offended party, the authorities or their agents. If the period of prescription is to be computed from the date the supposed false testimony is given, it would be impossible to determine the length of such period in any particular case, depending, as it does depend, on the final outcome of the basic case. For instance, a witness testifies falsely against an accused who is charged with murder. If the accused is found guilty, the penalty prescribed by law for the perjurer is reclusion temporal (art. 180, No. 1, Revised Penal Code), in which case the period of prescription is twenty years (art. 90, idem). On the other hand, if the accused is acquitted, the penalty prescribed for the perjurer is only arresto mayor (art. 180, No. 4,idem), in which case the period for prescription is only five years. Upon these hypotheses, if the perjurer is to be prosecuted before final judgment in the basic case, it would be impossible to determine the period of prescription whether twenty years or five years as either of these two periods is fixed by law on the basis of conviction or acquittal of the defendant in the main case. The mere fact that, in the present case, the penalty for the offense of false testimony is the same, whether the defendant in criminal case No. 1872 were convicted or acquitted, is of no moment, it being a matter of pure coincidence. The four cases enumerated in article 180 of the Revised Penal Code and the instant case falls on one of them uniformly presuppose a final judgment of

conviction or acquittal in the basic case as a prerequisite to the action ability of the crime of false testimony. Order of dismissal is reversed, and let the case be remanded to the court of origin for further proceedings, without costs. Avancea, C.J., Diaz, Laurel and Horilleno, JJ., concur.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-22465 February 28, 1967

PEOPLE OF THE PHILIPPINES, ET AL., plaintiffs-appellants, vs. ASCENSION P. OLARTE, defendant-appellee. Saturnino D. Bautista for plaintiff-appellant Meris. Office of the Solicitor General Arturo A. Alafriz and Solicitor Ceferino S. Gaddi for plaintiff-appellant People of the Philippines. Chuidian Law Offices, P. V. Sison, D. Acuna, J. Asuncion, E. G. Bruno and Silverio B. de Leon for defendant-appellee. REYES, J.B.L., J.: This is the second time the present case is brought on appeal to this Supreme Court on the identical issue of prescription. The antecedents of this case are briefly stated in the decision of the previous appeal (L-13027): Defendant 'Ascension P. Olarte is charged with libel. It is alleged in the information that on or about the 24th day of February, 1954 and subsequently thereafter said defendant had willfully, unlawfully and feloniously written certain letters which were libelous, contemptuous and derogatory to Miss Visitacion M. Meris, 'with evident and malicious purpose of insulting, dishonoring, humiliating and bringing into contempt the good name and reputation' of said complainant. It appears that on January 7, 1956, Miss Meris lodged the corresponding charge of libel with the provincial fiscal of Pangasinan, who assigned it to an assistant provincial fiscal; that upon the latter's advice, on February 22, 1956, she filed with the Justice of the Peace Court of Pozorrubio, Pangasinan, a complaint for libel against Ascencion P. Olarte that the defendant waived her right to a preliminary investigation, whereupon the justice of the peace court forwarded the case to the Court of First Instance of Pangasinan, in which the corresponding information was filed on July 3, 1956; that the defendant seasonably moved to quash the information upon the ground of prescription of the offense; and that, after due hearing, the court of first instance granted said motion and dismissed the case, with costs de oficio. Hence, this appeal by complainant Miss Meris with the conformity of the special counsel of the office of the provincial fiscal of Pangasinan, who represented the prosecution in said court. This Court, likewise, stated in said previous appeal: It is conceded that, as provided in Article 90 of the Revised Penal Code, 'the crime of libel ... shall prescribe in two (2) years, which, pursuant to Article 91 of the same Code, 'shall commence to run from the day on which the crime is discovered by the offended party, the authorities or their agents, and shall be interrupted by the filing of the complaint or

information ....' In an affidavit, attached to the complaint filed with the justice of the peace court, Miss Meris stated that one defamatory letter was received by her on February 27, 1954 and that there were other libelous letters, seemingly written after the first. According to another affidavit, likewise, attached to said complaint, the subsequent letters were received on or about March 1 and 13, April 26 and May 9, 1954. The issue in the lower court, as well as in this appeal, is whether the statute of limitations was suspended by the filing of the complaint with the justice of the peace court on February 22, 1956, as claimed by appellant, or continued to run until July 3, 1956, when the information was filed with the court of first instance, as contended by the defendant. His Honor, the trial Judge adopted the latter alternative, and, accordingly, held that the prescriptive period had expired before the filing of said information. (Emphasis supplied) Resolving the issue thus posed on the basis of the abovequoted facts, this Court, speaking through the then Associate Justice (now Chief Justice) Roberto Concepcion, and after an extensive and exhaustive dissertation on the applicable laws and pertinent decisions on the subject, rendered a decision, promulgated on June 30, 1960, the dispositive portion of which reads: IN VIEW OF THE FOREGOING, it is our considered opinion that the filing of the complainant with the justice of the peace court of Pozorrubio, Pangasinan, interrupted the running of the statute of limitations, as regards the crime of libel with which defendant herein is charged, and that said crime has not been extinguished, therefore, by prescription, for which reason the order appealed from is reversed, and the records of this case are hereby remanded to the lower court for further proceedings, conformably with law. IT IS SO ORDERED. The above ruling became final and executory, and, pursuant thereto, the lower court set the case for hearing on the merits and the prosecution started presenting its evidence. However, on August 26, 1963, the defense presented anew a motion to quash the information, supplemented by another motion of September 5, 1963, on the ground of prescription of the offense charged in the information. In said motions, the defense invoked the subsequent ruling of this Court in the case of People vs. Coquia, G.R. No. L-15456, promulgated on June 29, 1963. On November 4, 1963, the prosecution opposed said motions. The defense submitted its reply on November 13, 1963. After due hearing on this incident, the lower court issued the appealed order, dated January 16, 1964, sustaining the defense's new motion to quash upon the ground of prescription. In this order, the lower court, after comparing and finding that the set of facts obtaining in the case at bar is practically identical with those of the Coquia case, opined that inasmuch as the latter is inconsistent with or contradicts the previous decision (L-13027) in the case at bar, promulgated on June 30, 1960, the 1963 ruling in the Coquia case indicates that this Supreme Court intended to abandon the one made in 1960 in the first appeal of this same case (L-13027). Not satisfied, the prosecution (special counsel of the Office of the Provincial Fiscal of Pangasinan and the private prosecutor jointly) interposed the present appeal to this Court on a pure question of law. The complainant Miss Meris through her private prosecutor, filed her brief. Subsequently, the Solicitor General, in representation of plaintiff-appellant People of the Philippines, instead of filing a brief, filed, on August 18, 1964, a manifestation, stating to the effect that they are submitting the case without any brief, said complainant having filed a brief in her behalf; and that they are of the opinion that the order of the lower court dismissing the case was well taken. In view of this

manifestation, defendant-appellee presented, on September 7, 1964, a motion to dismiss the appeal. This Court, by resolution dated October 2, 1964, denied said motion for the present. Defendant-appellee moved to reconsider said denial but this Court, in its resolution of October 21, 1964, overruled the defendant's motion.
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Thereafter, said defendant-appellee filed her brief and the case was submitted for decision. The only issue presented for determination in this appeal is the effect of this Court's ruling on the first appeal to this very same case (L-13027) and whether the decision in the later case of People vs. Coquia, G.R. No. L-15456, June 29, 1963, warrants the dismissal of the information in the case at bar on the ground of prescription. Suffice it to say that our ruling in Case L-13027, rendered on the first appeal, constitutes the law of the case, and, even if erroneous, it may no longer be disturbed or modified since it has become final long ago. A subsequent reinterpretation of the law may be applied to new cases but certainly not to an old one finally and conclusively determined (People vs. Pinuila, G.R. No. L-11374, May 30, 1958; 55 O.G. 4228). 'Law of the case' has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever is once irrevocably established as the controling legal rule of decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court. (21 C.J.S. 330). (cited in Pinuila case, supra) As a general rule a decision on a prior appeal of the same case is held to be the law of the case whether that decision is right or wrong, the remedy of the party being to seek a rehearing (5 C.J.S. 1277). (also cited in Pinuila case) It is also aptly held in another case that: It need not be stated that the Supreme Court, being the court of last resort, is the final arbiter of all legal question properly brought before it and that its decision in any given case constitutes the law of that particular case. Once its judgment becomes final it is binding on all inferior courts, and hence beyond their power and authority to alter or modify. (Kabigting vs. Acting Director of Prisons, G.R. No. L-15548, October 30, 1962). More categorical still is the pronouncement of this Court in Pomeroy vs. Director of Prisons, 1,14284-85, February 24, 1960: It will be seen that the prisoner's stand assumes that doctrines and rulings of the Supreme Court operate retrospectively, and that they can claim the benefit of decisions in People vs. Hernandez; People vs. Geronimo, and People vs. Dugonon (L-6025-26, July 18, 1956; L8936, Oct. 31, 1956; and L-8926, June 29, 1957, respectively), promulgated four or more years after the prisoner applicants had been convicted by final judgment and started serving sentence. However, the rule adopted by this Court (and by the Federal Supreme Court) is that judicial doctrines have only prospective operation and do not apply to cases previously decided (People vs. Pinuila, L-11374, promulgated May 30, 1958.)

In the foregoing decision, furthermore, this Court quoted and reiterated the rule in the following excerpts fromPeople vs. Pinuila, G.R. No. L-11374, jam cit.: 'The decision of this Court on that appeal by the government from the order of dismissal, holding that said appeal did not place the appellants, including Absalon Bignay, in double jeopardy, signed and concurred in by six justices as against three dissenters headed by the Chief Justice, promulgated way back in the year 1952, has long become the law of the case. It may be erroneous, judged by the law on double jeopardy as recently interpreted by this same Tribunal. Even so, it may not be disturbed and modified. Our recent interpretation of the law may be applied to new cases, but certainly not to an old one finally and conclusively determined. As already stated, the majority opinion in that appeal is now the law of the case.' The same principle, the immutability of the law of the case notwithstanding subsequent changes of judicial opinion, has been followed in civil cases: Fernando vs. Crisostomo, 90 Phil. 585; Padilla vs. Paterno, 93 Phil. 884; Samahang Magsasaka, Inc. vs. Chua Guan, L-7252, February, 1955. It is thus clear that posterior changes in the doctrine of this Court can not retroactively be applied to nullify a prior final ruling in the same proceeding where the prior adjudication was had, whether the case should be civil or criminal in nature. Analysis of the precedents on the issue of prescription discloses that there are two lines of decisions following differing criteria in determining whether prescription of crimes has been interrupted. One line of precedents holds that the filing of the complaint with the justice of the peace (or municipal judge) does interrupt the course of the prescriptive term: People vs. Olarte L-13027, June 30, 1960 and cases cited therein; People vs. Uba, L-13106, October 16, 1959; People vs. Aquino, 68 Phil. 588, 590. Another series of decisions declares that to produce interruption the complaint or information must have been filed in the proper court that has jurisdiction to try the case on its merits: People vs. Del Rosario, L-15140, December 29, 1960; People vs. Coquia, L-15456, June 29, 1963. In view of this diversity of precedents, and in order to provide guidance for Bench and Bar, this Court has reexamined the question and, after mature consideration, has arrived at the conclusion that the true doctrine is, and should be, the one established by the decisions holding that the filing of the complaint in the Municipal Court, even if it be merely for purposes of preliminary examination or investigation, should, and does, interrupt the period of prescription of the criminal responsibility, even if the court where the complaint or information is filed can not try the case on its merits. Several reasons buttress this conclusion: first, the text of Article 91 of the Revised Penal Code, in declaring that the period of prescription "shall be interrupted by the filing of the complaint or information" without distinguishing whether the complaint is filed in the court for preliminary examination or investigation merely, or for action on the merits. Second, even if the court where the complaint or information is filed may only proceed to investigate the case, its actuations already represent the initial step of the proceedings against the offender. Third, it is unjust to deprive the injured party of the right to obtain vindication on account of delays that are not under his control. All that the victim of the offense may do on his part to initiate the prosecution is to file the requisite complaint. And it is no argument that Article 91 also expresses that the interrupted prescription " shall commence to run again when such proceedings terminate without the accused being convicted or acquitted", thereby indicating that the court in which the complaint or information is filed must have power to acquit or convict the accused. Precisely, the trial on the merits usually terminates in

conviction or acquittal, not otherwise. But it is in the court conducting a preliminary investigation where the proceedings may terminate without conviction or acquittal, if the court should discharge the accused because no prima facie case has been shown. Considering the foregoing reasons, the Court hereby overrules the doctrine of the cases of People vs. Del RosarioL-15140, December 29, 1960; and People vs. Coquia, L-15456, promulgated June 29, 1963. And it having been finally decided in the previous appeal that the criminal action here was not barred, the issue of prescription is utterly foreclosed, and all that remains is to try and decide the case on the merits. It is expected that it will be done with the utmost dispatch, this case having been already pending for many years. Wherefore, the appealed order of dismissal is hereby set aside and reversed, and the records of this case ordered remanded to the lower court for further proceedings conformably with this decision. With costs against defendant-appellee. Concepcion, C.J., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.

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Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-1779 June 29, 1948

JOSE A. ARCHES, recurrente-apelante, vs. ANACLETO I. BELLASILLO y EL FISCAL PROVINCIAL DE CAPIZ, recurridos-apelados. Jose A. Arches en representacion del recurrente-apelante. El Primer Procurador General Auxiliar Sr. Roberto A. Gianzon y el Procurador Sr. Luis R. Feria en representacion de los recurridos-apelados. BRIONES, J.: Contra el recurrente y apelante, Jose A. Arches, el fiscal provincial de Capiz presento el 10 de Enero de 1947 ante el juzgado de paz del municipio de Capiz, cabecera de la provincia, la querella que se transcribe a continuacion: That on or about the year 1939 up to this date, in the municipality of Capiz, Province of Capiz, Philippines, and within the jurisdiction of this court, said accused did then and there wilfully, unlawfully, and feloniously block the course of the Talaga River and Lacturan Creek both waterways are navigable and of public domainby constructing therein three dikes in the former and another 3 dikes in the latter without authority from the Secretary of Public Works and Communications, thereby causing prejudice to the inhabitants of barrios Tanza and Banica of said municipality by obstructing their only shortest fluvial passage from said barrios to the capital of Capiz. Contrary to law. El acusado presento mocion de sobreseimiento (motion to quash) por dos fundamentos: (a) porque a simple vista, leyendo la querella, el delito alegado en ella y su pena ya estaban presciritos; (b) porque el juzgado de paz del municipio de Capiz carecia de jurisdiccion sobre la causa, habiendose cometido la infraccion objeto de querella en la comprension territorial del municipio contiguo de Panay. El Juzgado desestimo la mocion por inmeritoria. Casi inmediatamente depues el acusado procedio a incoar un recurso de certiorari prohibicion, en virtud de los mismos fundamentos, ante el Juzgado de Primera Instancia, con resultado igualmente adverso. De la sentencia que desestima el recurso se ha interpuesto la apelacion que ahora tenemos que decidir. Es evidente que la apelacion carece enteramente de merito. El que en la querella se diga "en o hacia el ao 1939 hasta esta fecha ... el acusado, deliberada y maliciosamente, bloquea y obstrueye el curso del rio Talaga y del riachuelo Lacturan mediante la construccion de 3 diques en el primero y 3 diques en el segundo, sin authorizacion del Secretario de Obras Publicas y Comunicaciones, con grave perjuicio de los habitantes de los barrios de Tanza y Banica ...," no significa que el periodo de 4 aos para la prescripcion de que habla el apelante deba hacerse partir del ao 1939 en que, al parecer, se levantaron por primera vez los diques, con infraccion de la Ley del Commonwealth No. 383 que prohibe y castiga tales actos de obstruccion. Tiene razon el Procurador General al decir que se trata de una infraccion continua. Mientras los diques esten actualmente alli, obstrueyendo el curso de rio y reachuelo de que se trata, no hay ninguna solucion de continuidad, el delito no cesa;

por tanto, mal puede corner el periodo de prescripcion, la cual tendria lugar solamente desde que el delito se cometio y seacabo. en otros terminos, el periodo de prescripcion equivale al vacio que se crea entra la fecha de la comision y consumacion del delito y la fecha de su prosecucion. El caso seria diferente si en la querella se dijera que los diques existieron hasta tal fecha obstruyendo el curso de los rios, y desde tal fecha hasta que se prsento la querella hubiese transcurrido el periodo prescriptivo. El segundo fundamento de la mocion de sobreseimiento es menos meritorio todavia. En la querella se dice categorica y especificamente que la infraccion se cometio dentro de la jurisdiccion del municipio de Capiz, y es elemental que lo que determina la jurisdiccion y competencia de nuestros tribunales es lo alegado en la querella (E. U. contra Mallari, 24 Jur. Fil., 378; Pueblo contra co Hiok,1 R.G. No. 43154, Nov. 7, 1935; y Pueblo contraVelez, R.G. No. 41234, Agosto 31, 1934). Se habla de affidavits en que, al parecer, se insinua que los mencionados rios estan compredidos en el municipio de Panay; pero no solo dichos affidavits no forman parte de la querella, sino en todo caso este punto constitutye materia de prueba y no cabe suscitarlo en un recurso especial como el que nos ocupa. La impropriedad de este recurso salta a la vista si se tiene en cuenta la considerable demora a que da lugar en el despacho de la causa principal. Si se hubiese seguido la vista en el juzgado de paz, planteandose alli en forma de defensa la scuestiones suscitadas en el certiorari y prohibicion que no ocupa (de todas maneras le hubiera cabido al acusado el derecho de apelar), acaso la causa principal estaria terminada actualmente, y no como ahora que hay comenzar de nuevo. Por lo expuesto, se confirma la sentencia apelada, con las costas a cargo del recurrente-apelante. Asi se ordena. Feria, Pablo, Perfecto, Bengzon, Padilla, y Tuason, MM., estan conformes. Paras, J., concurs in the result.

Footnotes
1

62 Phil., 501.

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