A question has been presented in the Court of First Instance of Capiz regarding the admissibility of a civil action arising ex  delicto, without dependence upon the judgment of conviction  rendered in the original case for the crime committed.

Leocadio Pajarillo and twelve  other persons were charged with the crime robbery in a gang for having seized personal property amounting to sever thousand pesos belonging to Elias Oro.   Case  No. 970  was begun in said court on a criminal  complaint and prosecuted against Onofre Odruña and eight other defendants; but Leocadio Pajarillo and three more of the were excluded  from the complaint, because they were already serving sentences of life imprisonment in Bilibid Prison for another crime, to wit, murder.

On December 16, 1910, Elias Oro exercised his right of civil action arising that crime of robbery in a gang in order to secure restitution of the pr stolen or reparation  and indemnity for damages.

But counsel for Leocadio Pajarillo by a motion presented on December 28, 1910,  asked for the suspension of this civil complaint, especially as " connection with Leocadio Pajarillo no order of dismissal has been issued said case No. 970  for  robbery  in a  gang"  and the success of the civil action arising from the crime of robbery in a gang, therein tried, must depend upon the outcome of this case No. 970. (B. of E., 7 & 8.)

By order of January 17, 1911, the court passed upon the motion in conform with the petition made therein, ordering, in accordance with articles 11 of the Spanish Law of Criminal Procedure of 1882, applicable in the pres case, the suspension of the civil complaint until final judgment should rendered in criminal case No. 970, for robbery in a gang, with respect the defendant Leocadio Pajarillo.   (B. of E.,  14 &  15.)

But on May 13, 1911, the court ordered the dismissal of case No. 970, fo robbery in a gang, with respect to Leocadio Pajarillo and  his  three accomplices (who were serving life sentences) and declared  canceled the bonds  filed for said  accused and the costs de oficio.  (B. of E

On July 26, 1911, the plaintiff Elias  Oro presented a motion  requestin revocation  of the order of January 17, 1911, wherein suspension of the complaint was ordered; by this motion raising  the present question.

The court refused the revocation asked and overruled the motion by its decree of August 7, 1911, to which the plaintiff Elias Oro objected  and appealed to this court by means of a bill of  exceptions.

The reason for denying revocation of the order of January 17, 1911  that for not raising the suspension of the pending civil complaint  is that order of dismissal on May 13, 1911, with respect to  Leocadio Pajarillo accomplices, is not a final judgment and therefore prevents the  present against them of a new complaint for the same crime, for said dismissal h to be ordered before any trial, before any answer to the complaint drawn up against these defendants, just as if it might be said that if at any Leocadio Pajarillo and his  accomplices  in  murder should be free from life sentences, not having  been placed in real jeopardy in  case No.  9 they could still be tried for the crime of robbery in a gang,  from which pending civil action arose, and it therefore follows that this would rem suspended, subject to such contingency, that is, the possibility that th action for such robbery in a gang might be prosecuted at some more  or less remote time, and until then, until this  possibility  should  have disappeared, the civil action must  remain in suspense, dependent, not u criminal case pending final judgment, but  upon a criminal complaint merely possible  at some indefinite time.

Later, on February 14,  1912, this Supreme Court  rendered a  judgment execution in  the oft-cited case No. 970, against Onofre Odruna ^[1] and accomplices for robbery in a gang,  dismissing the  complaint presented, the costs de oficio, and ordering the defendants set free immediately. Thus was this  case of robbery in a gang,  perpetrated  against Elias Or finally  terminated. Dismissal was due to the application to the defend of the Amnesty Proclamation of the President of the United States of Jul 4, 1902.

If Leocadio Pajarillo  and his three accomplices had remained subject to case No. 970, they would, like Onofre Odruna and his associates,  have h the amnesty applied to them, and they must necessarily be regarded a priori in any possibility of a new complaint as included in the Proclamation of the  President of the United States.

The trial court's order of May  13,  1911,  wherein said case  No. 970 w dismissed with respect to Leocadio Pajarillo  and his accomplices, is fi and in force.

The decree of the same court of August 7, 1911, which is appealed from, must be revoked.

In accordance with article  130  of the Penal Code, criminal  responsibility extinguished:  "1:  *  *   *   3.   By amnesty, which completely extinguish the penalty and all its effects."  And  in accordance  with the said  La Criminal Procedure, article  116  whereof has been cited, extinction of penal action does not carry with it extinction of the civil, unless the proceeds from a declaration  in a final judgment that the fact from which the civil might arise did not exist.  In the  other cases, the person en the  civil action may exercise it in the jurisdiction and in the proper against the person who  may be liable for restitution  of the  thing  an reparation or indemnity for the damages suffered.

The decree appealed from,  of August 7, 1911, is hereby revoked, with th costs de oficio.

Torres, Mapa, Johnson, Carson, and Trent, JJ., concur.

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^[1] U. S. vs. Odruna (21 Phil. Rep., 452).