[ G.R. No. 45431. June 30, 1938 ] 65 Phil. 744
[ G.R. No. 45431. June 30, 1938 ]
THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. VIVENCIO ORAIS AND DAMIAN JIMENEZ, DEFENDANTS. FORTUNATO N. SUAREZ, COMPLAINANT AND APPELLANT. D E C I S I O N
VILLA-REAL, J.:
This case is now before us on appeal by the complainant, Fortunato N. Suarez, from the order issued by the Court of First Instance of Tayabas, on motion of the prosecuting attorney, dismissing the complaint filed by the aforementioned complainant and offended party against Vivencio Orais and Damian Jimenez for arbitrary detention.
In support of his appeal, appellant raises the following questions of law: First, whether the dismissal is erroneous and constitutes a glaring abuse of discretion; and, second, whether the offended party may appeal from the order of dismissal.
As the determination of the first question depends upon that of the second, we shall now proceed to consider and resolve the latter, that is, whether the offended party may appeal from the order of dismissal.
In the case of Gonzalez vs. Court of First Instance of Bulacan (36 Off. Gaz., 2059), this court said:
“The person injured by the commission of an offense may choose between bringing the civil action independently of the criminal action (article 111, in connection with article 117, Spanish Code of Criminal Procedure of September 14, 1882), to recover through the courts damages arising from the criminal liability of the author of the crime of which he was the victim, in view of the provision of article 100 of the Revised Penal Code to the effect that every person criminally liable is also civilly liable, or appear as a party in the criminal action instituted by the promoter fiscal at the initiative of either the injured person or said promoter fiscal (article 112, Spanish Code of Criminal Procedure of September 14, 1882). In this latter case the position occupied by the offended party is subordinate to that of the promotor fiscal because, as the promoter fiscal alone is authorized to represent the public prosecution, or the People of the Philippine Islands, in the prosecution of offenders, and to control the proceeding, and as it is discretionary with him to institute and prosecute a criminal proceeding, being at liberty to commence it or not or to refrain from prosecuting it or not, depending upon whether or not there is, in his opinion, sufficient evidence to establish the guilt of the accused beyond a reasonable doubt, except when the case is pending in the Court of First Instance, the continuation of the offended party’s intervention depends upon the continuation of the proceeding. Consequently, if the promoter fiscal desists from pressing the charge or asks the competent Court of First Instance in which the case is pending for the dismissal thereof, and said court grants the petition, the intervention of the person injured by the commission of the offense ceases by virtue of the principle that the accessory follows the principal. Consequently, as the offended party is not entitled to represent the People of the Philippine Islands in the prosecution of a public offense, or to control the proceeding once it is commenced, and as his right to intervene therein is subject to the promotor fiscal’s right of control, it can not be stated that an order of dismissal decreed upon petition of the promotor fiscal himself deprives the offended party of his right to appeal from an order overruling a complaint or information, which right belongs exclusively to the promotor fiscal by virtue of the provisions of section 44 of General Orders, No. 68. To permit a person injured by the commission. of an offense to appeal from an order dismissing a criminal case issued by a Court of First Instance upon petition of the promotor fiscal, would be tantamount to giving said offended party the direction and control of a criminal proceeding in violation of the provisions of the above-cited section 107 of General Orders, No. 58.”
We cannot find any reason or cause for altering the doctrine enunciated in the said case of Gonzalez vs. Court of First Instance of Bulacan concerning the right of the offended party, who does not seek restitution, reparation or indemnity, to appeal from an order of dismissal issued by a Court of First Instance on motion of the prosecuting attorney.
With regard to the second assignment of alleged error consisting in that “the dismissal ordered is erroneous and constitutes a glaring abuse of discretion,” we have already pointed out in the oft-repeated case of Gonzalez vs. Court of First Instance of Bulacan that if the provincial fiscal and the Court of First Instance have committed a grave abuse of discretion, the first by refusing to file an information and proceed with the case, and the latter by granting the motion for dismissal of the case filed by the fiscal, the offended party has the extraordinary legal remedy of mandamus to compel the fiscal to file the information and prosecute the case, and the judge, who dismissed the same on motion of the said fiscal, to restore the case and decide it on its merits.
In view of the foregoing considerations, the appeal interposed by the complainant Fortunato N. Suarez, because improperly allowed, is hereby dismissed with costs. So ordered.
Avanceña, C. J., Diaz, and Laurel, JJ., concur.
Abad Santos and Imperial, JJ., We dissent from the decision of the majority for the same reasons stated in our dissenting opinion in the case of Gonzalez vs. Court of First Instance of Bulacan, supra.