ARTHUR MEDINA Y YUMUL, PETITIONER, VS. MARCELO F. OROZCO, JR., ACTING CITY WARDEN OF CALOOCAN CITY, RESPONDENT.

On application for habeas corpus. The facts are: At about 12:00 p.m. on
November 7, 1965, petitioner Arthur Medina y Yumul was arrested and thereafter
incarcerated in the Caloocan City jail, allegedly as one of those responsible
for the death of one Marcelo Sangalang y Diwa which occurred on October 31, 1965
in said city. At about 9:00 o’clock in the morning of the same day, November 7,
1965, the case against Medina and two others for Sangalang’s murder was ref
erred to a fiscal, who forthwith conducted a preliminary investigation in
petitioner’s presence. At about 3:40 p.m. on November 10, 1965, an information
for murder was filed against petitioner Arthur Medina y Yumul, and Antonio
Olivar y Flores and Alexander Enriquez y Raginio in the Caloocan branch of the
Court of First Instance of Rizal, docketed as Criminal Case No. C-1197 of said
court. By court order, they were promptly committed to jail. Arraigned, Medina
and his co-accused stood trial—which has not yet terminated.

1. First to be considered is the charge of arbitrary detention. Petitioner
   claims violation of Article 125 of the Revised Penal Code. The crime—for which
   petitioner is detained—is murder, a capital offense. The arresting officer’s
   duty under the law^[1] was either to
   deliver him to the proper judicial authorities within 18 hours, or thereafter
   release him. The fact however is that he was not released. From the time of
   petitioner’s arrest at 12:00 o’clock p.m. on November 7, to 3:40 p.m. on
   November 10 when the information against him for murder actually was in court,
   over 75 hours have elapsed. But, stock should be taken of the fact that November
   7 was a Sunday; November 8 was declared an official holiday; and November 9
   (election day) was also an official holiday. In these three no-office days, it
   was not an easy matter for a fiscal to look for his clerk and stenographer,
   draft the information and search for the Judge to have him act thereon, and get
   the clerk of court to open the courthouse, docket the case and have the order of
   commitment prepared. And then, where to locate and the certainty of locating
   those officers and employees could very well compound the fiscal’s difficulties.
   These are considerations sufficient enough to deter us from declaring that
   Arthur Medina was arbitrarily detained. For, he was brought to court on the very
   first office day following arrest.^[2]

2. Nor could discharge from custody, by now, be justified even on the
   assumption that detention was originally arbitrary.

   Petitioner at present
   is jailed because of the court’s order of commitment of November 10, 1965 upon a
   murder indictment. No bail was provided for him, because he is charged with a
   capital offense. Such detention remains uninfected by the alleged previous
   arbitrary detention. Because, detention under a valid information is one thing,
   arbitrary detention anterior thereto another. They are separate concepts. Simply
   because at the inception detention was wrong is no reason for letting petitioner
   go scot-free after the serious charge of murder has been clamped upon him and
   his detention ordered by the court. The first is illegal; but the second is
   not.^[3] Thus, the petition for habeas
   corpus came too late.^[4]

3. As unavailing is petitioner’s claim that no preliminary investigation was
   conducted by the fiscal before the criminal charge against him was registered in
   court. Other than that averment in the petition herein, petitioner has nothing
   whatsoever to show for it. Upon the other hand, the assertion that such
   investigation was made on the very day of petitioner’s arrest and in his
   presence, is confirmed by the fact that on November 12, 1965 he moved the office
   of the city fiscal for a reinvestigation of his case. And that
   re-investigation was held on December 1, 1965. Thereafter, the case against him
   proceeded to trial. Add to all of these the legal presumption of regularity in
   the performance of official duties,^[5]
   and the question of lack of preliminary investigation is well nailed down.
4. Besides, the proper forum before which absence of preliminary investigation
   should be ventilated is the Court of First Instance, not this Court. Reason is
   not wanting for this view. Absence of preliminary investigation does not go to
   the jurisdiction of the court but merely to the regularity of the proceedings.
   It could even be waived. Indeed, it is frequently waived.^[6] These are matters properly to be inquired
   into by the trial court, not an appellate court.

5. The cry of deprivation of a speedy trial merits but scant consideration. The
   arraignment of petitioner set for December 1, 1965 was postponed to December 20,
   1965, thence to February 28, 1966, to March 14, 1966, all on petition of counsel
   for the accused, including petitioner. Then, on April 14, 1966, petitioner’s
   counsel moved to reset the date of hearing on the merits. And again, the hearing
   scheduled on July 26, 1966 was transferred to September 6, 1966 on motion of
   defendant Alexander Enriquez with the conformity of petitioner’s counsel.
   Finally, on motion of petitioner’s counsel, the hearing on September 6, 1966 was
   recalendared for December 6, 1966. In this factual environment, we do not see
   denial to petitioner of the right to speedy trial. Delay of his own making
   cannot be oppressive to him.^[7]

FOR THE REASONS GIVEN, the petition herein to set petitioner Arthur
Medina y Yumul at liberty is hereby denied. Costs against petitioner.

SO ORDERED.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala,
Makalintal, Bengzon, J.P., Zaldivar and Ruiz Castro, JJ., concur.

^[2] U. S. vs. Vicentillo, 19 Phil.
118, 119; Sayo, et al. vs. Chief of Police, et al., 80 Phil. 859, 870;
Aquino, The Eevised Penal Code, 1961 ed.. Vol. II, p. 820, citing People
vs. Acacio, 60 Phil. 1030.

^[3] People vs. Mabong, 100 Phil.
1069, 1070-1072, citing Gunabe, et al. vs. Director of Prisons, 77
Phil. 993, 995.

^[4] Matsura, et
al. vs. Director of Prisons, 77 Phil. 1050, 1051-1052.

^[5] Section 5(m), Rule 131, Rules of
Court.

^[6] People vs.
Oliveria, 67 Phil. 427, 429-430; Bustos vs. Lucero, etc., 81 Phil. 640,
644.

^[7] Navarro, in his treatise
on the Law of Criminal Procedure, 1960 ed., p. 310, says: “The right to speedy
trial may be waived by ‘not object- ing to postponements or other delays of the
trial.” Footnote: “Gunabe vs. Director of Prisons, supra. People
vs. Jabajab, 53 O.G. No. 3, 632, 633-634 (1956), where postponements
were due to agreements of both parties; Manabat vs. Provincial Warden,
G.R. No. L-6483, November 27, 1963, postponements requested by the defense.”
“The waiver is even clearer when the accused himself or his counsel asks for the
postponements. The accused is entitled to remedial action only when the delays
are due to the prosecution”. Footnote: “ld., distinguishing
this case from those of Conde. See People vs. Goode, [G. R. No. L-6358,
May 25, 1955]; Velasquez vs. Director of Prisons, 77 Phil. 983, 985
(1947), the delay being due to the destruction of records and the failure of the
petitioner to move for re constitution of the records; Manabat vs.
Provincial Warden, supra, defendant escaped and asked for
postponements; Rebotoc vs. Benitez, 71 Phil. 408, 413-414 (1941).”