GR L 6415; (January, 1954) (Digest)
G.R. No. L-6415; January 26, 1954
CO TE HUE, petitioner, vs. HON. DEMETRIO B. ENCARNACION, Judge of the Court of First Instance of Manila, respondent.
FACTS
On July 15, 1950, several persons, including petitioner Co Te Hue, were charged with estafa in the Court of First Instance of Manila (Criminal Case No. 13229). The 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 from the fiscal, the case was provisionally dismissed as to the petitioner. Subsequently, on May 31, 1952, the fiscal filed a motion to revive the case against the petitioner, arguing that the dismissal was impractical and discriminatory as it was not based on the merits. The petitioner objected, but the court granted the motion after a reinvestigation found him just as guilty as the other accused. The petitioner then moved to quash the information, alleging that his reinclusion after the provisional dismissal placed him in double jeopardy. This motion was denied, and the respondent Judge refused to reconsider the order, prompting the petitioner to file this petition for certiorari, alleging that the Judge acted in excess of jurisdiction.
ISSUE
Whether the revival of the estafa case against the petitioner, after its provisional dismissal, constitutes double jeopardy, thereby barring his subsequent prosecution.
RULING
The petition is dismissed. The revival of the case does not constitute double jeopardy. The provisional dismissal was effected with the express consent of the petitioner, as evidenced by the transcript of the hearing notes showing that a conference occurred between the petitioner and the offended party in the fiscal’s office, leading to the motion to dismiss. Furthermore, the petitioner’s counsel urged the court to act on the motion, and the court made it plain that the dismissal was merely provisional. This consent takes the case out of the operation of the double jeopardy rule under section 9, Rule 113, of the Rules of Court. The Court cited the precedent in People vs. Romero, where it was held that a dismissal upon the petition of the defendant’s counsel has the same effect as if the defendant personally moved for it, as the act of counsel is the act of the defendant. The provisional character of the dismissal in this case provides even more weighty reason to uphold the reinstatement, as it is not the type of dismissal contemplated by the rule that bars a subsequent prosecution.