[G.R. No. L-15309. February 16, 1961. ]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, v. ROSALINA CASIANO, Defendant-Appellee.
Solicitor General, for Plaintiff-Appellant.
Lorenzo G. Suyat, for Defendant-Appellee.
1. PRELIMINARY INVESTIGATION; WAIVER; EFFECT OF DEFENDANT’S FAILURE TO INVOKE RIGHT BEFORE OR DURING ENTRY OF PLEA. — The right of a defendant to a preliminary investigation is deemed waived upon his failure to make it prior to or, at least, at the time of the entry of his plea in the court of first instance. (People v. Solon, 47 Phil., 443, 448; People v. Magpale, 70 Phil., 176; People v. Lambino, 103 Phil., 504; 55 Off. Gaz., 1565).
2. ID.; ABSENCE; VALIDITY OF INFORMATION AND JURISDICTION OF COURT NOT AFFECTED. — The absence of a preliminary investigation does not impair the validity of the information or otherwise render if defective. Much less does it affect the jurisdiction of the court over the case.
3. ID.; ID.; DISMISSAL OF CASE NOT THE REMEDY. — Even assuming that defendant in the present case was entitled to another preliminary investigation, and that her plea of not guilty upon arraignment did not imply a waiver of said right, the Court of First Instance would have, either conducted a preliminary investigation, or ordered the Provincial Fiscal to make it, pursuant to section 1687 of the Revised Administrative Code (as amended by Republic Act No. 732), or remanded the record for said investigation to the justice of the peace court, instead of dismissing the case.
4. DOUBLE JEOPARDY; SECTION 2, RULE 118, RULES OF COURT; JURISDICTION OF SUPREME COURT AND RIGHT OF GOVERNMENT TO APPEAL NOT LIMITED BY THE RULE. — If section 2 of Rule 118 were construed as limiting, either the jurisdiction of the Supreme Court to entertain appeals by the Government in criminal cases, or the right of the latter to appeal in such cases, the result would be that said Court had exceeded its rule making power under the Constitution, not only be legislating on a subject that concerns neither "pleadings, practice or procedure", but, also, by diminishing or modifying "substantive right", namely (a) the exclusive jurisdiction of the Supreme Court to "review, revise, reverse, modify or affirm on appeal . . . final judgments of decrees of inferior courts in . . . all . . . cases in which only errors or questions of law are involved, and (b) the right of both parties in a case to appeal to the Supreme Court from the decision of the lower court and raise only questions of law.
5. ID.; IMMUNITY FROM SECOND JEOPARDY WAIVABLE; RIGHT OF DEFENDANT TO APPEAL. — The immunity from second jeopardy granted by the Constitution is a personal privilege which accuse may waive (22 C.J.S., 412-413). He may, accordingly, appeal from a decision adverse to him, even though such appeal clearly puts him, again, in danger of punishment for the same offense.
6. ID.; ID.; IMMUNITY MUST BE SPECIALLY PLEADED; EFFECT OF SILENCE OF THE ACCUSED. — The immunity from second jeopardy must be especially pleaded (14 Am. Jur. 956) and should be done "at the earliest opportunity" (Territory of Lobato, 134, p. 222, Yates v. State 17 So. 2d 594); otherwise, it is deemed waived (14 Am. Jur. 598). The silence of the accused thereon must be construed as waiver of the immunity.
7. ID.; ID.; SECTION 2, RULE 118 RULES OF COURT, MERELY A PROCEDURAL MEASURE. — It is reasonable to conclude that Section 2, Rule 118, was incorporated in the Rules of Court merely as a procedural measure, for the purpose, not of affecting substantive rights, but of enforcing the constitutional immunity from double jeopardy.
8. ID.; ID.; EFFECT OF DEFENDANT’S FAILURE TO QUESTION IN HIS BRIEF RIGHT OF PROSECUTION TO APPEAL. — Where the defendant filed a brief in which he limited himself to a discussion of the merits of the appeal, he has not only failed to question in his brief, either expressly or impliedly, the right of the prosecution to appeal, but also, conceded, in effect, the existence of such right. He should be deemed, therefore, to have waived his constitutional immunity from a second jeopardy.
9. PLEADING AND PRACTICE; ANSWER; WHEN ALLEGATIONS DEEMED DENIED AND WHEN DEEMED ADMITTED; WHEN PERSONAL DEFENSES DEEMED WAIVED. — When no answer to the pleading of an opponent is filed, all material allegations made or new matters contained in such pleading are deemed denied. Conversely, if an answer is filed, such allegations or new matters in said pleading of the opponent as have not been specifically controverted in the answer, are deemed admitted, and such personal defenses as could have been or should have been set up therein are, in general, waived.
10. ID.; BRIEFS IN APPELLATE COURTS NOT PLEADINGS; WHEN SUBJECT TO GENERAL PRINCIPLES COVERING PLEADING; EFFECT OF DEFENDANT’S FAILURE TO FILE BRIEF IN A CRIMINAL CASE. — Briefs in appellate courts are not "pleadings" in the technical legal meaning of this term, because in such courts, there are no "pleadings", in the sense of formal concise statements of the ultimate facts constituting plaintiff’s cause or causes of action, and specifying the relief sought, or on which the defendants relies for his defense (Rule 6, section 1, and Rule 9, section 1, Rules of Court). However, the briefs like the pleadings, define and limit the issue submitted for determination, and accordingly, should be subject to the general principles governing pleadings, insofar as the admission or denial of the claims of an opponent, as well as the waiver of defenses, are concerned. Hence, when defendant-appellee in a criminal case does not file a brief, he may be deemed to controvert the claim of plaintiff-appellant in his brief, without objecting to plaintiff’s appeal, which plaintiff may take if the defendant consents or does not object thereto, said defendant-appellee must be deemed to have waived his immunity from a second jeopardy.
11. APPEAL AND ERROR; THEORY INCONSISTENT WITH THAT SUSTAINED IN LOWER COURT NOT ALLOWED ON APPEAL. — Parties to a judicial proceeding may not, on appeal, adopt a theory inconsistent with that which they sustained in the lower court (Williams v. McMicking, 17 Phil., 408; Molina v. Somes, 24 Phil. 49; Agoncillo v. Javier, 38 Phil., 424; American Express v. Natividad, 46 Phil., 208; Toribio v. Decasa, 55 Phil., 416 San Agustin v. Barrios 68 Phil., 476; Jimenez v. Bucoy, 103 Phil., 40; Northern Motors Inc. v. Prince Line, Et Al., 107 Phil., 253; Model v. Calasanz, 109 Phil., 348).
12. ID.; ID.; JURISDICTION OF COURTS; WHEN PRINCIPLE OF ESTOPPEL APPLIES. — The operation of the principle of estoppel on the question of jurisdiction seemingly depends upon whether the lower court actually had jurisdiction or not. If it had no jurisdiction, but the case was tried and decided upon the theory that it had jurisdiction, the parties are not barred, on appeal, from assailing such jurisdiction, for the same "must exist as a matter of law, and may not be conferred by consent of the parties or by estoppel" (5 C.J.S. 861-863). However, if the lower court had jurisdiction, and the case was heard and decide upon a given theory, such, for instance, as that the court had no jurisdiction, the party who induced it to adopt such theory will not be permitted, on appeal, to assume an inconsistent position — that the lower court had jurisdiction. Here the principle of estoppel applies. The rule that jurisdiction is conferred by law, and does not depend upon the will of the parties, has no bearing thereon.
D E C I S I O N
Appeal from an order of the Court of First Instance of Pangasinan granting a motion to dismiss of defendant Rosalina Casiano.
On October 19, 1955, Ricardo Macapagal filed, with the Justice of the Peace Court of Rosales, Pangasinan, a complaint, which was amended on or about December 6, 1955, charging Rosalina Casiano with "estafa." After conducting the first stage of the preliminary investigation and finding the existence of probable cause, said court issued a warrant of arrest, whereupon defendant posted a bail bond for her temporary release. When the case was called for preliminary investigation, defendant waived her right thereto, and, accordingly, the record was forwarded to the Court of First Instance of Pangasinan. Subsequently, the provincial fiscal filed therein an information for "illegal possession and use of a false treasury or bank notes", alleging:jgc:chanrobles.com.ph
"That on or about the 16th day of April, 1955, in the municipality of Rosales, Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused with full knowledge that check No. 728681 is spurious and false and supposedly issued by the American Bankers Association of New York City, U.S.A., did then and there wilfully, and unlawfully and feloniously use and have in her possession said false check No. 728681 which she sold and cashed to one Ricardo Macapagal for P580 although the face value of said check is $300, to the damage of the latter in said amount. Contrary to Article 168 of the Revised Penal Code."cralaw virtua1aw library
Upon arraignment on November 16, 1956, defendant entered a plea of not guilty. Thereupon, the prosecution began to present its evidence by introducing the testimony of a witness — Pedro Punsalan, cashier of the Tarlac Branch of the Philippine National Bank — who was cross-examined by defense counsel. Then the case was set for continuation of the hearing on December 12 and 13, 1956. Owing to several postponements secured by the defendant, the hearing was not resumed, however, until October 15,1958, on which date defendant appeared with a new counsel, Atty. Lorenzo Suyat, who prayed for and secured another postponement. On November 10, 1958, said counsel was granted permission to submit a "motion to dismiss", which was filed on November 24, 1958, on the ground that there had been no preliminary investigation of the charge of illegal possession and use of a false bank note, and that the absence of such preliminary investigation affected the jurisdiction of the court. The motion was granted and, a reconsideration of the order to this effect having been denied, the prosecution interposed the present appeal.
Defendant-appellee maintains, and the Court of First Instance of Pangasinan held, that the waiver made by the defendant in the justice of the peace court did not deprive her of the right to a preliminary investigation of the crime of illegal possession and use of a false bank note, for this offense does not include, and is not included in, that of "estafa", to which her aforementioned waiver referred, the latter offense being covered by Article 315 of the Revised Penal Code, which article forms part of Title Ten thereof, entitled "Crimes against Property", whereas the former is the subject matter of Article 168 of said Code, which is part of Title Four thereof, entitled "Crimes against Public Interest."cralaw virtua1aw library
We are not concerned, however, with an abstract academic question. The issue before us is whether defendant is entitled to a preliminary investigation of the crime of illegal possession and use of a false bank note as charged in the information herein. The answer to this question depends upon whether or not such crime was included actually in the allegations of the amended complaint filed with the justice of the peace court, regardless of the term used in said pleading to designate the offense charged therein.
In this connection, the offended party Ricardo Macapagal, averred in the amended complaint that the —
"accused under false manifestations and fraudulent representations which she made to Ricardo Macapagal, that a check on its face valued at $300.00 and numbered 728681, was good and genuine as it was drawn by the American Bankers Association against the Guaranty Trust Company of New York in favor of Domingo Flores as Payee, sold to Ricardo Macapagal said check for P580.00 Philippine currency, which manifestations and representations the accused well knew were false and fraudulent and were only made to induce the aforementioned Ricardo Macapagal to buy said check as he in fact bought said check, paying to mentioned accused the stated amount of P580.00, which amount the accused converted unlawfully to her own use and benefit to the damage and prejudice of Ricardo Macapagal in said sum for the reason that the check upon presentation for collection was dishonored on the ground that it was fraudulent."cralaw virtua1aw library
Thus, complainant alleged in said amended complaint — as he did in the original complaint — that defendant-appellee had knowingly had in her possession, with intent to use, and actually used, a false or falsified bank note or other obligation payable to bearer, which is the crime defined and punished in Article 168, in relation to Article 166, of the Revised Penal Code, and the substance of the charge contained in the information above quoted.
In other words, regardless of whether or not the crime of "estafa" includes or is included in that of illegal possession or use of a false bank note or other obligation payable to bearer, the Court of First Instance of Pangasinan erred in holding that the allegations of the information filed in this case were not included in those of the aforementioned amended complaint and that defendant-appellee was entitled to another preliminary investigation of the charge contained in the information. It erred, also, in dismissing the case for, even if defendant had a right to such other preliminary investigation, the same was deemed waived upon her failure to invoke it prior to or, at least, at the time of the entry of her plea in the court of first instance (People v. Solon, 47 Phil., 443, 448; People v. Magpale, 70 Phil. 176; People v. Lambino, 55 Off. Gaz., 1565). Independently of the foregoing, the absence of such investigation did not impair the validity of the information or otherwise rendered it defective. Much less did it affect the jurisdiction of the court of first instance over the present case. Hence, had defendant-appellee been entitled to another preliminary investigation, and had his plea of not guilty upon arraignment not implied a waiver of said right, the court of first instance should have, either conducted such preliminary investigation, or ordered the Provincial Fiscal to make it, in pursuance of section 1687 of the Revised Administrative Code (as amended by Republic Act No. 732), or remanded the record for said investigation to the justice of the peace court, instead of dismissing the case, as it did in the order appealed from.
Although not raised by any of the parties herein, one question has arisen in the course of the deliberations of this Court. May we entertain the appeal taken in this case by the prosecution? This calls for a determination of the following issues, namely:chanrob1es virtual 1aw library
(a) What is the effect of Rule 118, section 2, of the Rules of Court, upon the authority of this Court to pass upon the merits of the present appeal?
(b) Has defendant waived her constitutional right not to be twice placed in jeopardy of punishment for the same offense?
(c) May she still invoke such right?
Rule 118, section 2, of the Rules of Court reads:jgc:chanrobles.com.ph
"The People of the Philippines cannot appeal if the defendant would be placed thereby in double jeopardy. In all other cases either party may appeal from a final judgment or ruling or from an order made after judgment affecting the substantial rights of the appellant."cralaw virtua1aw library
Does the foregoing provision deny to this Court the authority or jurisdiction to entertain the present appeal by the prosecution? The answer must be in the negative, for the following reasons, namely:chanrob1es virtual 1aw library
1. Apart from being inherently legislative in nature, the power to "define, prescribe and apportion the jurisdiction of the various courts" is explicitly vested by the Constitution in Congress (Article VIII, section 2, Constitution of the Philippines), not in the Supreme Court. An affirmative answer to the query would lead, therefore, to an encroachment by the Supreme Court upon the prerogatives of Congress, and, hence, to the unconstitutionality and nullity of the rule above quoted.
2. The same was adopted by this Court in the exercise of its authority, under our fundamental law, "to promulgate rules concerning pleadings, practice and procedure in all courts", which rules "shall not diminish, increase or modify substantive rights." (Article VIII, section 13, Constitution of the Philippines.) If section 2 of Rule 118 were construed as limiting, either the jurisdiction of the Supreme Court to entertain appeals by the Government in criminal cases, or the right of the latter to appeal in such cases, the result would be that this Court has exceeded its rule making power under the Constitution, not only by legislating on a subject that concerns neither "pleadings, practice or procedure", but, also, by diminishing or modifying "substantive rights", namely (a) the exclusive jurisdiction of the Supreme Court to "review, revise, reverse, modify or affirm on appeal . . . final judgments or decrees of inferior courts in . . . .all . . .cases in which only errors or questions of law are involved" — which is statutory (Republic Act No. 296, section 17 , as well as (with slight difference in phraseology) constitutional (Article VIII, section 2, Constitution of the Philippines) — and, hence, (b) the right of both parties in a case to appeal to the Supreme Court from the decision of the lower court and raise only questions of law, as in the case at bar.
A similar issue was settled in the case of Marquez v. Prodigalidad (83 Phil., 813), an election protest involving municipal councilors, which was dismissed by the Court of First Instance. On appeal taken by the protestant, our jurisdiction to review the order appealed from was contested by the protestee, who relied on section 178 of the Revised Election Code (Republic Act No. 180) reading:jgc:chanrobles.com.ph
"From any final decision rendered by the Court of First Instance in protests against the eligibility or the elections of provincial governors members of the provincial board, city councilors, and mayors, the aggrieved party may appeal to the Court of Appeals or to the Supreme Court, as the case may be, within five days after being notified of the decision, for its revision, correction, annulment or confirmation, and the appeal shall proceed as in a criminal case. Such appeal shall be decided within three months after the filing of the case in the office of the clerk of the court to which the appeal has been taken." (Italics ours.)
Speaking, through Mr. Justice Pablo, we held:jgc:chanrobles.com.ph
". . .Se pretende que, bajo esta disposicion legal, las decisiones de los Jusgados de Primera Instancia en protestas contra la eleccion de concejales en los municipios regularmente organizados, no son apelables. Nótese, sin embargo, que la orden, apelada en el presente caso no resuelve los meritos de la protesta, sino que sobresee la misma por supuesta falta de jurisdiccion en virtud de una supuesta omision de incluir como partes a todos los candidatos electos. De modo que la orden apelada versa sobre una cuestión de jurisdicción, o sobre una cuestión puramente de derecho. Y el articulo 2, Titulo VIII de la Constitucion dispone que: ’The Congress shall have the power to define, prescribe, and apportion the jurisdiction of the various courts, but may not deprive the Supreme Court of its original jurisdiction over cases affecting ambassadors, other public ministers, and consuls, nor of its jurisdiction to review, reverse, modify, or affirm on appeal, certiorari, or writ of error, as the law or the rules of court may provide, final judgments and decrees of inferior courts in — (1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulations is in question. (2) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (3) All cases in which the jurisdiction of any trial court is in issue. (4) All criminal cases in which the penalty imposed is death or life imprisonment. (5) All cases in which an error or question of law is involved.’
"La Constitucion claramente autoriza a la Legislatura a definir, prescribir y distributir la jurisdicción de los tribunales; pero expresamente dispone que no puede privar al Tribunal Supremo de su jurisdicción para revisar, reexaminar, revocar, modificar o conocer en apelacion o mediante certiorari o recurso de casacion las decisiones de Juzgados inferiores que versan, entre otras cosas, sobre la constitucionalidad de alguna ley, ordenanza, tratado, u orden ejecutiva o sobre la jurisdicción del tribunal sentenciador, o sobre otras cuestiones puramente de derecho. En otras palabras, la Constitucion ha querido establecer y conservar inalterable la jurisdicción del Tribunal supremo sobre cuestiones constitucionales o puramente de derecho, con el proposito evidente de convertirlo en arbitro supremo en la interpretacion de la Constitucion y de la Ley.
"Se pretende que la prohibicion constitucional de privar al Tribunal Supremo de su jurisdiccion sobre las mencionadas cuestiones se refiere tan solo a aquellos asuntos sobre los cuales este Tribunal tenia jurisdicción al tiempo de aprobarse la Constitución y no a aquellos que, como el presente, no caian bajo su jurisdicción de acuerdo con las leyes entonces vigentes, pues es obvio, segun se alega, que no se priva a un tribunal de una jurisdicción que no tenia. Esta distinción, sin embargo, no halla fundamento en el lenguaje de la Constitución, pues la prohibición alli establecida es en sus terminos absoluta con un proposito claro y evidente que es el de situar en el Supremo Tribunal la autoridad suprema en la interpretacion de la constitución y de la ley.
"Debe recordarse que antes de la aprobacion de nuestra Constitución la jurisdiccion apelada del Tribunal Supremo no dependia, seg