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VOL. 14, MAY 27, 1965 109

People vs. Villanueva

No. L-19450. May 27, 1965.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs. SIMPLICIOVILLANUEVA, defendant-appellant.

Attorneys-at-law; Attorneys-at-law employed in the

government; Prohibition to engage in private practice; Meaning.—
Practice is more than an isolated appearance, for it consists in
frequent or customary actions, a succession of acts of the same
kind. The practice of law by attorneys employed in the
government, to fall within the prohibition of statute, has been
interpreted as customarily or habitually holding one’s self out to
the public, as a lawyer and demanding payment for such services.
The appearance as counsel on one occasion, is not con-

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110 SUPREME COURT REPORTS ANNOTATED

People vs. Villanueva

clusive as determinative of engagement in the private practice of

law. The word private practice of law implies that one must have
presented himself to be in the active and continued practice of the
legal profession and that his professional services are available to
the public for a compensation, as a source of his livelihood or in
consideration of his said services.
Same; Same; Assistant City Attorney handling case for
relative with permission of superior not prohibited private
practice.—The isolated appearance as a private prosecutor,
previously authorized by his superior, of an assistant city
attorney in a criminal case for malicious mischief before a justice
of the peace court where the offended party is his relative, does
not violate Section 32, Rule 127, now Sec. 35, Rule 138, Revised
Rules of Court, which bars certain attorneys from practicing.

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APPEAL from a decision of the Court of First Instance of

Laguna (San Pablo City Branch). Jarencio, J.
The facts are stated in the opinion of the Court.

Solicitor General for plaintiff-appellee.

Magno T. Bueser for defendant-appellant.

PAREDES, J.:

On September 4, 1959, the Chief of Police of Alaminos,

Laguna, charged Simplicio Villanueva with the crime of
Malicious Mischief before the Justice of the Peace Court of
said municipality. Said accused was represented by counsel
de officio but later on replaced by counsel de parte. The
complainant in the same case was represented by City
Attorney Ariston Fule of San Pablo City, having entered
his appearance as private prosecutor, after securing the
permission of the Secretary of Justice. The condition of his
appearance as such, was that every time he would appear
at the trial of the case, he would be considered on official
leave of absence, and that he would not receive any
payment for his services. The appearance of City Attorney
Fule as private prosecutor was questioned by the counsel
for the accused, invoking the case of Aquino, et al. vs.
Blanco, et al., L-1532, Nov. 28, 1947, wherein it was ruled
that “when an attorney had been appointed to the position
of Assistant Provincial Fiscal or City Fiscal and therein
qualified, by operation of law, he ceased to engage in
private law practice.” Counsel then argued that the JP
Court in
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VOL. 14, MAY 27, 1965 111

People vs. Villanueva

entertaining the appearance of City Attorney Fule in the

case is a violation of the above ruling. On December 17,
1960 the JP issued an order sustaining the legality of the
appearance of City Attorney Fule.
Under date of January 4, 1961, counsel for the accused
presented a “Motion to Inhibit Fiscal Fule from Acting as
Private Prosecutor in this Case,” this time invoking Section
32, Rule 27, now Sec. 35, Rule 138, Revised Rules of Court,
which bars certain attorneys from practicing. Counsel
claims that City Attorney Fule falls under this limitation.
The JP Court ruled on the motion by upholding the right of
Fule to appear and further stating that he (Fule) was not
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actually engaged in private law practice. This Order was

appealed to the CFI of Laguna, presided by the Hon.
Hilarion U. Jarencio, which rendered judgment on
December 20, 1961, the pertinent portions of which read:

“The present case is one for malicious mischief. There being no

reservation by the offended party of the civil liability, the civil
action was deemed impliedly instituted with the criminal action.
The offended party had, therefore, the right to intervene in the
case and be represented by a legal counsel because of her interest
in the civil liability of the accused.
“Sec. 31, Rule 127 of the Rules of Court provides that in the
court of a justice of the peace a party may conduct his litigation in
person, with the aid of an agent or friend appointed by him for
that purpose, or with the aid of an attorney. Assistant City
Attorney Fule appeared in the Justice of the Peace Court as an
agent or friend of the offended party. It does not appear that he
was being paid for his services or that his appearance was in a
professional capacity. As Assistant City Attorney of San Pablo he
had no control or intervention whatsoever in the prosecution of
crimes committed in the municipality of Alaminos, Laguna,
because the prosecution of criminal cases coming from Alaminos
are handled by the Office of the Provincial Fiscal and not by the
City Attorney of San Pablo. There could be no possible conflict in
the duties of Assistant City Attorney Fule as Assistant City
Attorney of San Pablo and as private prosecutor in this criminal
case. On the other hand, as already pointed out, the offended
party in this criminal case had a right to be represented by an
agent or a friend to protect her rights in the civil action which was
impliedly instituted together with the criminal action.

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People vs. Villanueva

“In view of the foregoing, this Court holds that Asst. City
Attorney Ariston D. Fule may appear before the Justice of the
Peace Court of Alaminos, Laguna as private prosecutor in this
criminal case as an agent or a friend of the offended party.
“WHEREFORE, the appeal from the order of the Justice of the
Peace Court of Alaminos, Laguna, allowing the appearance of
Ariston D. Fule as private prosecutor is dismissed, without costs.”

The above decision is the subject of the instant proceeding.

The appeal should be dismissed, for patently being
without merits.

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Aside from the considerations advanced by the learned

trial judge, heretofore reproduced, and which we consider
plausible, the fallacy of the theory of defense counsel lies in
his confused interpretation of Section 32 of Rule 127 (now
Sec. 35, Rule 138, Revised Rules), which provides that “no
judge or other official or employee of the superior courts or
of the office of the Solicitor General, shall engage in private
practice as a member of the bar or give professional advice
to clients.” He claims that City Attorney Fule, in appearing
as private prosecutor in the case was engaging in private
practice. We believe that the isolated appearance of City
Attorney Fule did not constitute private practice within the
meaning and contemplation of the Rules. Practice is more
than an isolated appearance, for it consists in frequent or
customary actions, a succession of acts of the same kind. In
other words, it is frequent habitual exercise (State vs.
Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice
of law to fall within the prohibition of statute has been
interpreted as customarily or habitually holding one’s self
out to the public, as a lawyer and demanding payment for
such services (State vs. Bryan, 4 S.E. 522, 98 N.C. 644,
647). The appearance as counsel on one occasion is not
conclusive as determinative of engagement in the private
practice of law. The following observation of the Solicitor
General is noteworthy:

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Zulueta vs. Commission on Elections

“Essentially, the word private practice of law implies that one

must have presented himself to be in the active and continued
practice of the legal profession and that his professional services
are available to the public for a compensation, as a source of his
livelihood or in consideration of his said services.”

For one thing, it has never been refuted that City Attorney
Fule had been given permission by his immediate superior,
the Secretary of Justice, to represent the complainant in
the case at bar, who is a relative.
CONFORMABLY WITH ALL THE FOREGOING, the
decision appealed from should be, as it is hereby affirmed,
in all respects, with costs against appellant.

          Bengzon, C.J., Concepcion, Reyes, J.B.L., Barrera,

Dizon, Regala, Makalintal, Bengzon, J.P. and Zaldivar,
JJ., concur.

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     Bautista Angelo, J., took no part.

Decision affirmed.

———o0o———

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