ROMEO JACA, PETITIONER, VS. MANUEL BLANCO, JUDGE OF THE COURT OF FIRST INSTANCE OF ILOILO, RESPONDENT.

Romeo Jaca was accused before the Court of First Instance of Iloilo
of triple homicide thru reckless imprudence. After arraignment the case
was called for trial at 8:06 in the morning of February 3, 1949, and
counsel for the accused entered his appearance. The accused was also
present. But as nobody appeared for the prosecution, the court then and
there dismissed the case without prejudice. Four minutes
later counsel for the private prosecution arrived, followed a little
later by the City Fiscal together with the witnesses for the
prosecution, and explained to the court that their tardiness was due to
the fact that the chauffeur of the jeep in which they were riding was
detained by a policeman for driving on the wrong side of the street.
Satisfied with the explanation, the respondent judge set aside the
order of dismissal and reset the case for trial on the following
morning, February 4, 1949. On that date counsel for the accused asked
for the postponement ©f the trial until February 16, and the respondent
judge granted the request. In the meantime, that is to say, on February
5, 1949, counsel for the accused moved for the reconsideration of the
order of the court setting aside its order of dismissal and reinstating
the case, on the ground that the court had exceeded its jurisdiction in
so doing.

That motion having been denied, the accused filed the; present
petition for certiorari, contending that by setting aside its order of
dismissal and reinstating the case, the respondent judge placed him in
double jeopardy inasmuch as he had been arraigned and the dismissal of
the case was without his express consent.

The accused-petitioner relies upon section 9 of Rule 113, which reads as follows:

“Sec. 9. Former conviction or acquittal or former .jeopardy.—When
a defendant shall have been convicted or acquitted, or the case against
him dismissed or otherwise terminated without the express consent of
the defendant, by a court of competent jurisdiction, upon a valid
complaint or information or other formal charge sufficient in form and
substance to sustain a conviction, and after the defendant had pleaded
to the charge, the conviction or acquittal of the defendant or the
dismissal of the case shall be a bar to another prosecution for the
offense charged, or for any attempt to commit the same or frustration
thereof, or for any offense which necessarily includes or is
necessarily included in the offense charged in the former complaint or
information.”

We hold that the dismissal contemplated in the above-quoted section
of the rule is a definite or unconditional dismissal which terminates
the case, and not a dismissal without prejudice as in the present case.
In the absence of any statutory provision to the contrary, we find no
reason why the court may not, in the interest of justice, dismiss a
criminal case provisionally, i.e., without prejudice to reinstating it
before the order becomes final or to the subsequent filing of a new
information for the same offense. If the accused should deem such
conditional or provisional dismissal to be unjust and prejudicial to
him because he has been deprived of his right to a speedy trial, as for
instance where the case has dragged on for an unreasonably long time
without his fault, he could and should object to such dismissal and
insist that the case be heard and decided on the merits. Upon such
objection and insistence of the accused, if the prosecution does not
present its evidence and if its failure to do so is unjustified, the
court should dismiss the case for failure to prosecute. Such dismissal
would come under the purview of section 9, Rule 113.

In the present case the information was filed on or after October
12, 1948; the accused, who was at liberty on bail, was arraigned on
January 15, 1949, when the case was first set for trial; but the trial
did not take place then because the respondent judge was in Manila, and
although the private prosecutor appeared with his witnesses, neither
the accused nor his attorney appeared. At the request of the private
prosecutor the case was reset for trial on February 3, 1949, when the
fiscal and the private prosecutor with their witnesses appeared four
minutes after the case had been called. Both the accused and his
attorney were present when the respondent judge dictated the order of
dismissal without prejudice, but interposed no objection thereto. Under
the circumstances we find no violation of any constitutional right of
the accused by the respondent judge in reconsidering his previous order
of dismissal a few minutes after it was dictated and in reinstating the
case against the accused. The accused had been neither previously
convicted nor acquitted, nor had the case against him been definitely
dismissed since the dismissal was without prejudice. Had the respondent
judge refused to vacate the order of dismissal under the circumstances,
we think he would have committed a grave miscarriage of justice.

The petition is denied, with costs against the petitioner.

Pablo, Bengzon, Tuason, Montemayor, and Reyes, JJ., concur.