Co Te Hue, Petitioner vs. Hon. Demetrio B. Encarnacion, Judge, Court of First Instance of Manila, Respondent, G. R. No. L-6415, Junuary 26, 1954 [Supreme Court Decisions]

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Title: Co Te Hue, Petitioner vs. Hon. Demetrio B. Encarnacion, Judge, Court of First Instance of Manila, Respondent, G. R. No. L-6415, Junuary 26, 1954 [Supreme Court Decisions]
Language: English
Source: The Lawyers Journal XIX (5) May 31, 1954
Year: 1954
Subject: Criminal Procedure; Double Jeopardy; Court of First Instance -- Manila; Certiorari
Rights
Abstract: [A petition for certiorari seeking to set aside an order of the Court of First Instance of Manila which directs that petitioner be included as one of the accused in a criminal case for estafa from which he was previously excluded by an order of the court. Petition was dismissed with costs.]
Fulltext: tion of the nature of the positions held by ·petitioners at the time 41f their removal. Petitioners contend that, having been appointed as detectives, they should be regarded as members of the Police Department of Cebu City and, therefore, they are members of the city polit:e. As such they can only be removed in. line with the pro. cedure laid down in Republic Act: No. 557. On the other hand, respondents contend that petitioners are not members of the police force, but of the detective force, of the City of Cebu, and, therefo1-e, their removal is governed by Executive Order No. 264. Let us first make a brief outline of the procedure concerning_ removal laid down in the legislation invoked by the parties before passing on to determine the nature of the positions held by petitioners. Section 1 of Republic Act No~ 557 provides, in so far as may be pertinent to their case, that the members of the city police shall not be removed "except for misconduct or incompetency, dishonesty, disloyalty to the Philippine government, serious irregularities in the performance of their duties, and violation of"1aw or duty," and in such cases, charges shall be p1·eferred ·by the city mayor and investigated by the city CO)lncil in ·a publiC heraing, and the accused shall be given opportunity to make their defense. A copy of the charges shall be furnished the accused and the investigating body shall try the case within ten dayS from notice. The trial shall be finished within a nasonable time, and the investigating ·body shall decide the case within fifteen days fr0m the time the case is submitted for decision. The decision of the city council shaU be appealable to the Commission cf Civil Service. e. Executive Order No. 264, on the other hand, prescribes a more summary Procedure. It applies to secret service agents or detectives and provides in a' general way that the appointing officer may terminate the services of the persons appointed if he deems it necessary because of lack of ti·ust or confidence and if the person to be separated is a civil service eligible, the advice of his separation shall state the reasons therefor. Under this procedure no investigation is neceSsary, it being sufficient that the appointee be notified of hls separation based on lack of confidence on the part cf the appointing officer. . · An analysis of the pertinent provisions of the Charter of thG City of ~ebu CComnionwealth Act No. 58) will reveal that the position of a detective comes under the police department of the city. "This is clearly deducible from the pr.ovisions of sections 32, 34 and 35. Section 32 creates the position of Chief of Police "who shall have charge of the poli«:e department and everything pertaining thereto, including the organization, government, discipline, and dis. position of the city police and detecti'Ue force." Section 34 creates the. position of Chief of the Secret Service who shall, under the Chief of Police, "have charge of the detective work of the department and of the detective force of the city, and shall perform such other duties as may be assigned to him by the Chief of Police." ·And section 35 classifies the Chief of "Police and Assistant Chief ~~of Police, the Chief of the Secret Service and all officers and mem"bers of the city police and detective force as peace officers. Under this _;set-up it is clear that, with few exceptions, both policemen and . detectives perform common functions and duties and both belong to the police department. In contemplation of }aw therefor both shall be considered. as members of the police force of the City of Cebu. The authorities in the United States are of the same import. Thus, "The word 'detective', as commonly understood in the U. S., is defined aa one of a bOdy of police officers, usually dressed in plain clothes, to whom is intrusted the detection of crimes and the apprehension of the offenders, or a policeman whose business is to detect wrongs by adl'Ditly investigating their haunts and habits." [Grand Rapids & I. Ry. Co. v. King, 83 N.E. 778, 780, 41 Ind. App. 707, citing Am. Diet. and Webst. Diet. (Vol. 12, Words and Phrases, p. 812.) ]. The· term "policemen" may include detectives (62 C.J.S. p. 1091). And "the term 'police' has been defined as an organized civil force for maintaining order, preventing and detecting crimes, and enforcing the laws, the body of men by which the municipal law, and regulations of a city, town, or district are enforced." (Vol. 62, C.J.S. p. _1050.) It appearing that petitioners, as detectives,. or members of the police force of Cebu City, were separated from the service not for any of the gi-ounds enumerated in Republic Act No. 557, and without the benefit of investigation or trial therein prescribed, the ~n clusion is inescapable that their removal is illegal and of no valid effect. In this sense, the provisions of Executive Order No. 264 of the President of the Philippines should be deemed as having been impliedly repealed in so far as they may be inconsistent with the provisions of said Act. <See sec. 6, Republic Act No. 557.) This interpretation is the more justified considering the rank and length of service of many of the petitioners, involved. The great majority of them had been in the service fur 6 years, one for 9 years, one for 11 years, one for 14 years and .one even for 81 years with an efficiency. rating which is both commendable and satisfactory. These data give an inkling that their separation is due to causes other than those recognized by law. . Wherefore, the petition is gran~, without pronouncement as to costs. Paras, Pablo, Bengzrm, Padilla, Mrm.temayOt", Reyes, Jugo, ~ lwador, Concepcion and Diolrno, J. J., concur. XVI Co 7'e Hue, Petitinncr vs. H'.ln. De1;ietrio B. Encanza.cion, Judge, Court of First Instance qf Manila, Respondrnt, G. R. No. L-6415, Junua;,71 26, 1954. CRIMINAL PROCEDURE; DOUBLE JEOPARDY; DISMISS.. AL CONSENTED AND URGED BY COUNSEL OF THE AC.. CUSED.-Where an accused is dismissed provisionally not only with the express consent of the accused but even upon the urging of his counsel, there is no double jeopardy under Sec, 9, Rule l 13. if the case against him is revived by the fiscal. Amado .4. l'atco for petitioner. J>cmetrlo B. EnearnacUm, .4ssistan.t Solicitor General Guillermo I!.'. TIYl'1"es and Solicitor Jaime. de Ills Angeles for respondents DECISION BAUTISTA ANGELO, /.: This is a petition for certiorari seeking to set aside an order of the Court of First Instance of Manila which directs that peti· tioner be included as one of the accused in a criminal case for estafa from which he was previously exclllded by an order of the court. On July 15, 1950, seve1·al pe~sons including petitioner, were charged with the crime of estafa in the Court of First Instance of Manila (Criminal Case No. 13229>. Petitioner was arraigned and pleaded not guilty. On August 29, 1951, upon motion filed by the offended party, with the conformity of his counsel, and without objection on the part of the fiscal, t~e case was provisionally dismissed as to petitioner. On May 31, 1952, the fiscal filed a motion to revive the case on the ground that its dismissal with i-espect to petitioner "was impractical, discriminating since the ground of-dismissal was not based on the merits of the case." Petitioner objected to this motion but the court granted it stating that after a i·einvestigation it was found that he was just as guilty as the other accused. On November 12, 1952, petitioner moved to quash the infonnation as to him alleging that his reinclusion in the same after it has been provisionally dismissed places him in double jeopardy. This motion was denied, and reapondent Judge having refused to i·econsid~ hie order, petitioner filed the present petition for certiorari alleging that s&id Judge has acted in excess of his jurisdiction. It is the theory of petitioner that the charge for estafa filed against him having been dismissed albeit provisionally without him express consent, its revival constitutes double jeopardy which bars a subsequent prosecution for the same ·offense. under section 9, Rule 113, of the Rules Of Cou1t. This Claim is diePuted by the Solicitor GeneTal who contends that, considering What has transpired in relation to the incident, the provisional dismissal• is no bar to his subsequent prosecution for the reason that the dismissal was made with his express consent. May 31, 196' LAWYERS JOURNAL 241 We are inclined to uphold the view of the Solicitor General. From the transcript of the notes taken at the hearing in connec~ tion with the motion for disnussal, it appears that a conference was had between petitioner and the offended party in the office of the fiscal concerning the case and that as a result of that con· ference the offended party filed the motion 'to dismiss. It also a,.. pears that as no action has been taken on said motion, counsel for petitioner invited the attention of the court to the matter who acted thereon only after certain explanation was given by said coUnset And when the order came the court made it plain that the dis· missal was merely provisional in character. It can be plainly seen that the dismissal was effected. not onl11 with the ezpNBB consent of petitioner but even. uptm the urging of his counsel. This attitude of petitioner, or of his counsel, takes thia case out of the operation of the ritle. · A case in pOint is People v. Romero, G. R. No. L-4517·20, promulgated on J'uly 31, 1951, wherein the order of dismissal was is-sued after the defense counsel has invited the attention i>f the court t.o its former order to the· effect that the case would be dis-missed if the fiscal was not ready to proceed with the trial on J'une 1', 1960. When the case reached this Court on appeal, coun· se1 claiml!d that "it is indubitable that your defendant d\d not himself personally move for the dismissal of the cases against him nor expressly consent to it; and that the dismissal was, in effect, an acquittal on the merits for failure to prosecute, because no reserva· tiOn was made in favor of the prosecution to renew the charges against 1our defendant in the ulterior proceedings." In overruling this plea, this Court sai~: "Whatever explanation that may be given by the attorneys for the defendant, it is a fact which cannot be controverted that the dismissal of the cases against the defendant was or· dered upon the petition of defendant's counsel. In opening the postponement of the trial of the cases and insisting on the compliance with the .:irder of the court dated May 25, 1950 that the cases be dismissed if the Provincial Fiscal Was not ready for trial on the continuation of the hearing on June 14, 1950, he obViously insisted that the cases be dismissed. The fact that the counsel for the defendant and not the defendant himself, personall11 moved for the dismisaal of the cases against him, had the same effect as if the defendant had personally moved for such dismissal, inasmuch as the act of the counsel in the prosecution of the defendant's cases was the act of the defendant himself, for the only case in which the defendant cannot be represented by his counsel is in pleading guilty according to section 3, Rule 114, of the Rules of Court." There is more weighty reason to uphold the theory of reinstate~ ment in the present case than in that of Romero considering the particularity that the dismissal was provisional in character. In our opinion this is not the dismissal contemplated by the rule that has the effect of barring 8. Subsequent prosecution. Petition is diamis1ed with coats. Pablo, Padilla, Montema.vor, Reyes, Jugo and Labrador, J. J., concur. Justice Bengzon, concurs in the result. Chief Justice Ptllf'a.S took no part. XVII Philippine National Bank, Pla.intiff-AppeUee 11s. Lauf'eano Atendi.. do, Defendant-Appellant G. R. No . .L..6342, Januat-y 26, 1954. WAREHOUSE RECEIPT; PLEDGE THEREOF TO GUARANTEE THE PAYMENT OF AN OBLIGATION; CASE AT BAR.-On June. 26. 1940. A obtained from the Philippine Na.. tional Bank a loan of P3,000 payable in 120 days with interest at 6% per annum from the date Of maturity. To guarantee the payment of the obligation the borrower pledge to the ba:nk 2,000 cavanea of palay which w11re then depositfod in the warehouse of Cheng Siong Lam & Co. in San Miguel Bulacan, and. to that effect the borrower e,ndorsed in favor of the bank the correaponding warehouse receipt. . Before the maiurity of the loan, the 2,000 ca.vanes of palay disappeared for unknown reason in the warehouse. When the loan matured the borrower failed to pay either the principal or the interest and so action was instituted. Held: The delivery of said palay being meJ:ely by we.y of security, it follows that by the very nature of the transaction its ownership remains with the pledgor subject only to foreclosure in case of non-fulfillment of· the obligation. By thia we mean that if the obligation ia not paid upon maturity the moit that the pledgee can do is to sell the property and apply the proceeds to the payment of the obligation and to return the balance, if a.ny, to the pledgor (Article 1872, Old Civil Code). This is the essense of this contJ:act, for, a.cco1·ding to law, a pledgee cannot become the o~ner of, no1· appropriate to hinlself, the thing given in pledg'! <Article 1859, Old Civil Codel. If by the contract of pledge the pledgor continues to be the owner of the thing peldge durin~ the pendency o~ the obligation, it stands to reason that in case of loaa of the property, the loss shonld be borne by the pledgor. The fact that the wuehouse receipt cc.vering the p&lay was delivered, endorsed in blankr to the bank does not alter the situation, the pu1·pose of i!IUch endorsement being merely to transfer the juridical. possession of the property to the pledgee and to forestall any possible disposition thereof on the party of the pledgor. Thia is true notwithstanding the provisions to the contrary of the Warehouse Receipt Law. Gaudencfo L Atendido for appellant. Ramon B. d« los Re11es and Nfl'IMaio P. Li6unao for a.pfellee .. DECISION BAUTISTA ANGELO, J., Thia is an appeal from a decision of the Court of First Inatance of Nueva Ecij~ which orders the defendant to pay to the pl&intiff the sum of P3,000, with interest thereon at the rate of 6% per annum from June 26, 1940, and the coats of action. On June 26, 1940, Laureano Atendido obtained. from the Philip.. pine National Bank a loan of P3,000 payable in 120 days with interest at 6% pel' annum from the da.te of maturity. To guarantee the pay. 1nent of the obligation the borrower pledge to the bank 2,000 cavanes of palay .;,hich were then deposited in the wa1-ehouse of Cheng Siong Lam & Co. in San 1fliguel, Bulacan, and to that effect the borrower endorsed in favor of the bank the correspondi~g warehouse receipt. Before the maturity of the loan, the 2,000 cavanes of palay dis. appeared for unknown reasons in the warehouse. When the loan matured the borrower failed to pay either the principal or the interest and so the present action was instituted. Defendant set up a special defense and a counterclaim. As i·eg-ards the former, defendant claimed that the warehouse receipt cc.veJ;ing the palay which was given as security having been endorsed in blank in fa.vor of the bank, and the palay having been lost or disappeared, he thereby became relieved of liability. And, by way of counterclaim, defendant claimed that, as a corollary to his theory, he is entitled to an indemni~y which represents the difference, between the va.lue of the pa lay lost and ::.he amount of his obligation. The case was submitted on an agreed statement of facts and thereupon the cou1t i·endered judgment as stated in the early part of this decision. Defendant took the case on appeal to the Court of Appeals but later it was certified to this Cou1t on the ground that the C!Ueation involved is purely one of law. The only issue involved in this appeal is whether the surrender cf the warehouse receipt covering the 21 000 cavanes of palay giver. as a security, endorsed in blank, to appellee, has the effect of transferring their title Ol' ownership to said appellee, or it should be considered merely as a guarantee to secUl'e the payment of the nb1igation of appellant. In ·upholding the view of appellee the lower court said: "The surrr.ndering of warehouse receipt No. 8-1719 covering the 2,000 cavanes of palay by the defendant in favo1· df the pla.intiff was not th~t of a final transfe1· of that wa1-ehouse receipt but merely 242 LAWYERS JOURNAL May 31, 1954
pages: 241-242