Gentlemen:

Qouted hereunder, for your information, is a resolution of this Court dated FEB 9 2005.

G.R. No. 164327 (SERVANO FRANCO vs. PEOPLE OF THE PHILIPPINES.)

Can a counsel for an accused who has been convicted by the trial court, still have the information against his client quashed and his client cleared of all liability on the ground that the accused died after his appeal has been denied?

This case came to us via a petition for review on certiorari under Rule 45 from a decision of the Court of Appeals,[1] which affirmed petitioner Servando Franco’s conviction for estafa by the Regional Trial Court of Malolos, Bulacan.[2]

On September 20, 2004, we resolved to DENY Servando Franco’s petition on the grounds that the issues raised therein were factual and that petitioner failed to show a reversible error.[3]

On October 15, 2004, nearly a month after we denied the petition, counsel for petitioner filed a manifestation dated October 11, 2004 stating that petitioner had passed away on October 1, 2004.[4]This was evidenced by the deceased petitioner’s death certificate.[5]

On November 5, 2004, petitioner’s counsel filed a motion to quash the information. The motion stated that “in view of the death of the accused during the pendency of his appeal from his conviction and hence, before the judgment against him has become final, it is respectfully submitted that both his criminal liability as well as the civil liability arising from the offense charged against him have been extinguished by his death” and prayed for the quashal of the information and the dismissal of the case against the late Servando Franco.[6]

On November 11, 2004, counsel for the petitioner filed yet another manifestation reiterating the fact of petitioner’s death and enumerating his legal representatives, namely Leonor S. Franco, Nelia S. Franco, Lilia S. Franco-Lopez and Melissa S. Franco-Israel with address at No. 17 Maligaya Street, Bagong Nayon, Baliwag, Bulacan.[7]

On November 22, 2004, we resolved to NOTE WITHOUT ACTION the manifestation filed by counsel for petitioner to the effect that petitioner had died “considering that the petition for review on certiorari had already been denied in the resolution of September 20, 2004.”

Counsel for petitioner premises his motion to quash on the fact that petitioner died while the appeal of his conviction was pending. He is asking that the case against petitioner be dismissed. Were we to grant this motion, we would extinguish his criminal and his civil liabilities arising from the delict.

We deny the motion for the reasons stated below.

First, Section 1 of Rule 117 of the 2000 Rules of Criminal Procedure is categorical as to when a motion to quash may be filed:

SECTION 1. Time to move to quash. –At any time before entering his plea, the accused may move to quash the complaint or information.

In this case, not only had a plea been entered, but the entire case had already been prosecuted to its conclusion. To allow a motion to quash at this stage would seriously violate the Rules of Criminal Procedure.

Furthermore, we cannot agree with counsel’s contention that petitioner died while his case pending appeal because his petition was denied on September 20, 2004 or a full ten (10) days prior to his death. There is nothing on record to show, nor has counsel attempted to show, that notice of the fact of the denial was not received before petitioner’s death.

For obvious reasons, petitioner’s sentence of imprisonment, ranging from six (6) years and one (1) day of prision mayor, as minimum, to twenty (20) years and one (1) day of reclusion perpetua, as maximum[8] can no longer be implemented. It is solely in this respect that the deceased petitioner can be relieved of liability.

The motion, however, appears to be an underhanded attempt by the petitioner’s estate to escape the payment of civil liability to the private complainant in the criminal case. But even assuming for the sake of argument that we could grant counsel’s motion to quash, petitioner’s estate nonetheless remains liable to private complaint due to the fact that the civil liability of the petitioner was based not only on a delict but also on breach of contract. When petitioner induced the private complaint to sell him rice which he paid for with several bad checks, he entered into a contract with her.[9]

In People vs. Bayotas,[10]on the question of civil liability surviving the death of the convict, we said:

xxx

2. Corollarily, the claim for civil liability survives notwithstanding the death of the accused, if the same may be predicated on a source of obligation other than delict. Article 1157 of the Civil Code enumerates these other sources of obligation from which the civil liability may arise as a result of the same act or omission:

a) Law

b) Contracts

c) Quasi-contracts

d) xxx xxx xxx

e) Quasi-delicts

xxx (underscoring ours)

We reiterated this doctrine in the more recent case of People vs. Abungan[11] where we said “It must be added, though, that his civil liability may be based on sources of obligation other than delict. For this reason, the victims may file a separate civil action against his estate, as may be warranted by law and procedural rules.”

WHEREFORE, the motion to quash is hereby DENIED.

SO ORDERED.

Very truly yours,

(Sgd.) LUCITA ABJELINA-SORIANO

Asst. Clerk of Court

[1] CA Decision dated February 27, 2004 in C.A. G.R. CR No. 26335, penned by Associate Justice Jose Catral Mendoza and concurred in by Associate Justice B.A. Adefuin-de la Cruz and Eliezer R. de los Santos of the Ninth Division, Rollo, pp. 67-85.

[2] Decision dated January 30, 2002 in Criminal Case No. 3631-M-93, penned by Judge Aurora Santiago-Lagman of the Regional Trial Court of Malolos, Branch 77.

[10] G.R. No. 102007, 2 September 1994, 236 SCRA 239.

[11] G.R. No. 136843, 28 September 2000, 341 SCRA 258.