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[ GR No. 49046, Nov 22, 1943 ]



74 Phil. 455

[ G.R. No. 49046, November 22, 1943 ]




Appellant  is the offended party in criminal case No. 1 of the  justice of the peace court of Alitagtag,  Batangas, filed by  the chief of police against Apolonio Jumarang and Geronimo Jumarang, for less  serious physical injuries alleged to  have been committed  on  January 13, 1943.   An attempt was subsequently made by the  chief of police to amend  the complaint by  charging the accused with frustrated homicide instead of  less serious  physical  injuries, but the amended complaint was rejected by the justice of the peace.  On March 6, 1943, before the accused were arraigned on the original complaint, the private prosecutor tendered a second amended complaint (exhibit C) charging the accused with serious physical injuries, but the chief of police refused to sign it  and the justice of the peace denied the  oral petition of the private prosecutor to order the chief of police to sign  it.  The private prosecutor, announcing his intention to institute a  mandamus proceeding in the  Court of First Instance, objected to the arraignment of the accused upon the original complaint. The objection was overruled, and the accused were  arraigned.

On March 11, 1943, appellant filed  a petition for mandamus against the justice of the peace and the chief of police  of Alitagtag to compel the latter to sign the second amended complaint exhibit C, and the former to accept said complaint; and, in the meantime, to restrain the justice of the peace from going ahead with the trial of said criminal case No. 1. Upon the filing of said petition the Court of First Instance issued the following order:
"Habiendose presentado una peticion de mandamus con una peticion de interdicto en la demanda  que precede, Se ordena al Sr. Diego C.  Aranas,  Juez de Paz de Alitagtag, Batangas, que suspenda toda ulterior actuacion en la causa criminal No. 1  contra Apolonio Jumarang  y  Geronimo Jumarang, por lesiones menos graves, hasta nueva  orden."
On  July 7, 1943, the trial court, after hearing the case, entered the following order:
"Apareciendo del examen  cuidadoso de  estos autos que en la  demanda no se incluyeron todas las partes interesadas; que es discrecional de parte del jefe de policia recurrido firmar la denuncia enmendada objeto de este recurso, segun su criterio basado de Ios hechos al mismo sometidos, y que Ja referida denuncia  enmendada no esta firmada como requiere la ley;

"Por falta de meritos, se sobresee esta causa sin especial pronunciamiento  en cuanto a las  costas.  Asi se ordena.

"Batangas, Batangas, julio 7, 1943.

(Sgd.) "Modesto Castillo
"Modesto Castillo
From that  order the  petitioner has appealed to this Court.  In the meantime, arid on August 2, 1943, the justice of the peace called criminal case No. 1 for  trial and then and there dismissed it for nonappearance of the offended party and his witnesses.  In a motion filed by the petitioner-appellant herein on  September 1,  1943, he prays this Court to  "issue an order requiring the reinstatement of the said criminal case No. 1, to vacate the order of dismissal and to arrest the  accused," upon the  ground that the hearing of said criminal case and the entry of  the order of dismissal were in violation of the trial court's injunction. Action upon said motion was deferred until the consideration of the case on the merits.

We find the order appealed from to be correct in every respect.  It is patent that mandamus does not lie here against either the chief of police or the justice of the peace. To  subscribe and swear to a  criminal  complaint is not a ministerial but a discretionary act of a peace officer.  To coerce him  by mandamus to  perform such an act would make him a mere robot and nullify the oath.

All criminal actions must be commenced either by complaint or information.  (Section 1, Rule 106.)  "Complaint is a sworn  written statement charging a person with  an offense, subscribed by the offended party, any peace officer or other employee of the  Government or governmental institution in charge  of the enforcement or execution of the law violated."  (Section 2, id.)   Thus, under the law the offended party himself may subscribe  and  swear to the complaint in question.  The correct procedure for him to follow was to ask for the dismissal  of the original complaint for less serious physical injuries and to file another complaint for serious physical injuries, subscribed and sworn to by himself.  The justice of the peace would have to accept it and give it due course  by holding the preliminary investigation required by Rule  108.  Should the justice of the peace refuse to issue the warrant  of arrest after the preliminary investigation, and should  the offended party be dissatisfied with the action  of the justice of the peace, he could appeal to the provincial  fiscal.  This goes to show that appellant  has not  been excluded  from  the use and enjoyment of a right; he simply did not know how to exercise his right.

We have now to consider appellant's motion to vacate the order of dismissal of criminal case No. 1 entered by the justice  of the peace during the pendency of this appeal. The question to determine is whether the first order issued by the trial court, which may be considered as a temporary injunction, was ipso facto dissolved by the judgment dismissing the action, notwithstanding the appeal from said judgment and  notwithstanding the absence of  an express provision therein dissolving the injunction.

In an action for injunction, the judgment granting, dissolving, or denying an injunction is immediately operative, unless otherwise ordered by the court.  (See section 4, Rule 39.)  But in an action in which the writ of preliminary injunction has been issued as an auxiliary remedy, does the judgment of dismissal ipso facto dissolve the writ  of preliminary injunction notwithstanding an appeal?  In the cases of Watson vs. Enriquez, 1  Phil., 480, and Sitia Teco vs. Ventura, 1 Phil., 497, the trial court, in rendering judgment in favor of  the defendants, dissolved the temporary injunction theretofore issued by it.  This Court held that the dissolution was operative notwithstanding the appeal from the judgment.  This Court quoted with approval from Knox Company vs. Harshman, 132 U.S., 14, that "when  an injunction has been  dissolved, it cannot be revived except by a new exercise of  judicial power, and no appeal by a dissatisfied party can of itself revive it."  It was also held in said cases that the trial court "has the power, if the purposes of justice require it,  to order a continuance of the status quo until a decision should be made by the appellate court or until that court should order to the contrary."

In the instant case the trial court did not dissolve the temporary injunction it had issued.  Thus, we have here the converse of the Watson and Sitia Teco cases.  There it was held  that once an injunction has been dissolved, it stays dissolved unless revived Jay another order.  Here we have an injunction which has not been dissolved and which, therefore, should remain in force, unless otherwise ordered by the court, until the case  is finally decided.  In the instant case the appeal, which was expressly admitted by the trial court, would have been a moot case if the court had dissolved the temporary injunction.  That is evidently the reason why the trial court refrained from dissolving it in the order of dismissal.   The injunction ordered the justice of the peace to suspend all further  action in criminal case No. 1  "hasta nueva orden."  We hold, therefore, that in view of the absention by the trial court from expressly dissolving the temporary injunction, and in view of the appeal from the judgment of dismissal, the temporary injunction was not dissolved  but remained in force until the appeal was  finally decided.  Hence the  actuations of the justice of the peace in violation of said injunction were null and void.

Wherefore, the judgment appealed from is affirmed, without prejudice to the right of the appellant to present a new complaint against Apolonio Jumarang and Geronimo Jumarang for either less serious physical injuries or serious physical injuries.  No finding as to costs.

Yulo, C. J., Moran, Paras, and Bocobo, JJ., concur.