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FERNANDO E. RICAFORT, petitioner, vs. HON. WENCESLAO L. FERNAN, in his capacity as Judge of the Court of First Instance of Davao, and JUANITO ESPERO, JR., respondents.
FACTS
Petitioner Fernando E. Ricafort filed a petition for certiorari seeking to annul an order dated September 23, 1955, issued by respondent Judge Wenceslao L. Fernan, which dismissed the information in Criminal Case No. 2980 (2819) of the Court of First Instance of Davao. The information charged respondent Juanito Espero Jr. with qualified theft, alleging that between October 1952 and July 31, 1953, Espero, with grave abuse of confidence, took medicines and money belonging to Ricafort totaling P1,426.17. The information was filed by the Provincial Fiscal. Counsel for Espero moved for a bill of particulars, which was denied, but balance sheets (Annexes A and A-1) were provided, showing Espero was a sales representative receiving a 5% commission and was found short P1,013.09. Based on these, Espero filed motions to quash on grounds including that the information charged more than one offense and the wrong offense. The court granted a hearing on the motions, where exhibits were presented, including Exhibit 1 where Ricafort recognized Espero as his sales representative, with a statement of accountability. It was disclosed that Espero, as a sales representative, was authorized to sell articles on commission, which Ricafort had turned over to him. The lower court held that the delivery of the goods to Espero for sale involved a transfer of juridical possession, so any misappropriation would constitute estafa, not theft, and dismissed the case. Ricafort, without first moving for reconsideration or involving the Provincial Fiscal, directly instituted this certiorari proceeding.
ISSUE
1. Do the petitioner and his attorney have legal representation in this case?
2. Does certiorari lie in the present instance?
3. If certiorari is the proper remedy, did the respondent Judge act without or in excess of jurisdiction, or with grave abuse of discretion, in dismissing the information on the ground that the facts do not constitute qualified theft?
RULING
1. No, the petitioner and his attorney do not have proper legal representation in this case. The petition is a continuation of the criminal proceeding; thus, the proper party to bring it is the State, represented by the Solicitor General, not the private complaining witness or his attorney. The offended party’s right to intervene is limited to protecting his pecuniary interest regarding civil liability. Here, Ricafort sought to restore the criminal case for trial, which falls within the State’s province. Furthermore, under Rule 67, Section 5, the People of the Philippines, as a party in the criminal case, should have been joined as a respondent. The Court cited People vs. Velez, holding that an offended party cannot appeal from an order dismissing a criminal case, especially if a civil action is pending or reserved, as the offended party has no special interest in the prosecution once the fiscal moves for dismissal.
2. No, certiorari does not lie in the present instance. The order dismissing the information was issued by a court with jurisdiction, and the alleged error, if any, was one of judgment, not jurisdiction. Certiorari is not a remedy for correcting errors of judgment but for lack of jurisdiction or grave abuse of discretion. The respondent Judge acted within his jurisdiction in resolving the motion to quash. Moreover, the petitioner failed to exhaust the remedy of moving for reconsideration of the order before resorting to certiorari.
3. No, the respondent Judge did not act without or in excess of jurisdiction or with grave abuse of discretion. The dismissal was legally sound. Based on the evidence presented, Espero, as a sales representative, received the goods for sale on commission, which involved a transfer of both material and juridical possession from Ricafort to Espero. Under legal doctrine, when both material and juridical possession are transferred, any misappropriation constitutes estafa, not theft. Theft requires that only material possession is transferred. Therefore, the facts alleged, if proven, would constitute estafa, not qualified theft, making the dismissal of the information for qualified theft proper. The case of People vs. de Leon cited by petitioner is distinguishable as it involved a single taking, whereas here, the alleged takings occurred on different days.
The petition for certiorari is dismissed, with costs against petitioner.
