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EN BANC

G.R. No. L-19517           November 30, 1962

CARIDAD CABARROGUIS, Petitioner, vs. HON. LOURDES P. SAN DIEGO, Judge, Court of First Instance of Rizal, Pasay City Branch, Respondent.

Tancredo M. Guray for petitioner.
No appearance for respondent.

CONCEPCION, J.:

This is an original action for certiorari and prohibition against the court of First instance of Rizal, Pasay City Branch, presided over by respondent, Hon. Lourdes P. San Diego, Judge.chanroblesvirtualawlibrarychanrobles virtual law library

Petitioner Caridad Cabarroguis is accused of estafa in Criminal Case No. 5355-P of said court. At the hearing thereof on February 28, 1962, complainant therein, Emerita C. Orpilla, was the sole witness for the prosecution. She declared, among other things:

FISCAL:chanrobles virtual law library

"Q.      When the herein accused informed you she was in need of cash to pay some customs duties, what did you tell Mrs. Cabarroguis, if you told her anything?chanrobles virtual law library

A.      She asked me to finance the customs duties?chanrobles virtual law library

COURT:chanrobles virtual law library

Q.      What do you mean she asked you to finance the customs duties? Do you mean she asked you to lend some money?chanrobles virtual law library

A.      Yes, she told me to give her some money and in return she would pay me in goods.chanroblesvirtualawlibrarychanrobles virtual law library

FISCAL:chanrobles virtual law library

Q.      Did you ask her what goods she would give to you in payment of the money that you were going to lend her?chanrobles virtual law library

A.      Yes, Sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q.      What were these goods?chanrobles virtual law library

A.      Sewing machines, clothing, Namarco goods which were pending in the pier for payment of customs duties.chanroblesvirtualawlibrarychanrobles virtual law library

Q.      When you were informed of these goods were pending payment of customs duties in the pier and she could not pay for them, what did you tell her?chanrobles virtual law library

A.      I agreed her to pay me in goods.chanroblesvirtualawlibrarychanrobles virtual law library

Q.      And you were referring to the goods that were allegedly in the pier after the customs duties were paid?chanrobles virtual law library

A.      Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q.      Did you agree to finance the payment of the customs duties for these goods for which you were to receive certain goods?chanrobles virtual law library

A.      Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q.      When was that?chanrobles virtual law library

A.      I told Mrs. Cabarroguis I would be able to have the money at the end of June. That would be July 1st.chanroblesvirtualawlibrarychanrobles virtual law library

Q.      When you told the accused that you could have the money by the end of June, did she return?chanrobles virtual law library

A.      Yes, she did at the end of June.chanroblesvirtualawlibrarychanrobles virtual law library

Q.      What date?chanrobles virtual law library

A.      Maybe that was June 29.chanroblesvirtualawlibrarychanrobles virtual law library

Q.      When the accused returned what did you tell her?chanrobles virtual law library

A.      I told her then that I was coming from Cavite and that I could meet her in Pasay because my brother would be the one to make the document.chanroblesvirtualawlibrarychanrobles virtual law library

COURT:chanrobles virtual law library

Q.      In other words, to finalize the transaction?chanrobles virtual law library

A.      Yes, sir.chanroblesvirtualawlibrarychanrobles virtual law library

Q.      And how much did you give her?chanrobles virtual law library

A.      P7,800.00."

At this juncture, respondent Judge dictated in open court the following order:

From the testimony of the complaining witness - coming from her mouth - the Court gathers that she agreed to lend the amount of P7,800.00 to the accused, Caridad Cabarroguis, under the agreement that the said P7,800.00 would be returned in the form of goods.chanroblesvirtualawlibrarychanrobles virtual law library

This is sufficient to convince that the court that the crime of estafa, as described in the Penal Code, does not obtain in this case.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, let this case be, as it is hereby dismissed, against the accused, Caridad Cabarroguis, and the bail bond she filed for her provisional release is hereby cancelled.

Forthwith, the prosecution sought a reconsideration of the action thus taken by respondent Judge, starting:

. . . and may I show the court this document where it can be shown that the herein accused did not have the goods allegedly in the pier when she took the amount in question from the complainant, which shows that there was intention to defraud the complainant in this case.

Thereupon, respondent set aside or "withdrew" her aforementioned order of dismissal and allowed the prosecution to continue the direct examination of said complainant, after which the latter was cross-examined by counsel of petitioner herein. When the prosecution closed its evidence, which was granted by respondent. When the hearing was resumed on March 7, 1962, petitioner moved to set aside the order of respondent withdrawing her aforementioned order of dismissal, alleging that otherwise petitioner would be again "in danger of being placed in jeopardy". This motion was immediately denied, whereupon the present case was instituted, upon the theory, based on Catilo vs. Abaya, L-6921 (May 14, 1954, 50 O.G. 2477), and Esguerra vs. De la Costa (66 Phil. 134) that said verbal order of dismissal of February 28, 1962, without the consent of the accused (petitioner herein), amounted to her acquittal, and that the withdrawal of said order, followed by the continuation of the examination of the complainant and the prosecution, placed the petitioner in double jeopardy. Hence, petitioner prayed that said order withdrawing the verbal order of dismissal be set aside and that respondent be commended to desist from further proceeding with the trial of said Criminal Case No. 5355-P.chanroblesvirtualawlibrarychanrobles virtual law library

Petitioner's case pretense is untenable. The verbal order of dismissal of said case was withdrawn or set aside, as soon as it was dictated by respondent and before it could be reduce to writing and signed by her. As a matter of fact, it was never put in writing. Much less was it ever signed by respondent. For this reason, respondent contended that said order of dismissal was incomplete and did not have the effect of acquitting the accused before it was withdrawn. Indeed, pursuant to section 2 of Rule 116 of the rules of court "the judgment" - and the order of dismissal in question had, if completed, such effect - "must be written . . . personally and directly prepared by the judge, and signed by him . . . ." The cases cited by herein petitioner involved written orders of dismissal, which were signed by the corresponding judges. Hence, said cases are not controlling in the one at bar.chanroblesvirtualawlibrarychanrobles virtual law library

Moreover, petitioner did not forthwith object, either to the motion of the prosecution for the reconsideration of the verbal order of dismissal, or to the order of respondent Judge withdrawing or setting aside the same. Neither did petitioner object to the continuation of complainant's examination by the prosecution. What is more, upon the conclusion thereof, petitioners counsel cross-examined the complainant as alleged in the very petition filed herein, said continuation of the presentation of the evidence for the prosecution had already placed the petitioner twice in jeopardy of punishment for the same offense, on the assumption that the order of dismissal in question had effectively dismissed the criminal case. Petitioner's failure to object, at that time, to the taking of said evidence for the prosecution, and the cross-examination of complainant by counsel for the petitioner amounted, therefore, to a waiver of her constitutional right against double jeopardy (People vs. Casiano, L-15309, February 16, 1961; 14 Am. Jur., 958). Petitioner did not invoke such right until about a week later, or on March 7, 1962, when the hearing was resumed for the reception of the evidence for the defense. The objection then made by her came too late in view of her aforementioned waiver.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the petition herein is hereby dismissed, with costs against the petitioner. It is so ordered.chanroblesvirtualawlibrarychanrobles virtual law library

Bengzon, C.J., Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.