Sec. 1. Time to move to quash. –– At any time before entering his plea, the accused may move to quash the complaint or information.
It
is true that a person who does not move to quash a complaint or
information until after he has pleaded is deemed to have waived all
objections then available which are grounds of a motion to quash. 8
However, this is subject to exception. By express provision of Sec. 8
of the same rule, failure to assert certain grounds in a motion to quash
filed prior to the plea does not operate as a waiver of the right to
invoke them later. Even after arraignment, a motion to dismiss the
information may be filed if it is based on the ground that:
(a) the
information charges no offense;
(b) the trial court has no jurisdiction;
(c) the penalty or the offense has been extinguished; and
(d) that
double jeopardy has attached.
The
petitioner contends that the prosecution is now estopped from
questioning the motion to dismiss, having participated without objection
in the hearing thereof and not having controverted the evidence adduced
by the movant at that time. This is untenable. Estoppel does not he
against the government because of the supposedly mistaken acts or
omissions of its agents. As we declared in People v. Castañeda, 9
"there is the long familiar rule that erroneous application and
enforcement of the law by public officers do not block subsequent
correct application of the statute and that the government is never
estopped by mistake or error on the part of its agents."
It remains to observe that an order denying a motion
to quash is interlocutory and therefore not appealable, nor can it be
the subject of a petition for certiorari. Such order may only be
reviewed in the ordinary course of law by an appeal from the judgment
after trial. The petitioner should have proceeded with the trial of the
case in the court below, without prejudice to his right, if final
judgment is rendered against him, to raise the same question before the
proper appellate court.
TEODORO B. CRUZ, JR., petitioner,
vs.
COURT OF APPEALS, Fifteenth Division, respondents.
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