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,
COURT OF APPEALS, Fifteenth Division, respondents.