WILSON SERINO, PETITIONER, VS. HON. MARIANO A. ZOSA, PRESIDING JUDGE, BRANCH 3, COURT OF FIRST INSTANCE OF MISAMIS OCCIDENTAL AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS.

This is a petition for certiorari with pre­liminary
injunction. The petitioner, Wilson
Serino, was charged with murder for the death of one Jose Maghuyop, under an
information filed by the Assistant Provincial Fiscal of Misamis Occidental with
Branch III of the Court of First Instance of said province, presided by now
respondent Judge Mariano A. Zosa. After
several postponements of the trial, petitioner having been arraigned and having
entered a plea of not guilty, the case was called for hearing on December 9,
1970.

The transcript of the stenographic notes taken of the
proceedings, certified by the court stenographer-recorder, reads as follows:

“This case was called for trial at about 8:40 on December 9,
1970 and thereafter –

ASST. FISCAL CELSO CONOL: Appearing for the pro­secution, Your
Honor. We are ready and that our move
is to delegate the handling of our witnesses to the Private Prose­cutor,
Ex-Fiscal Diosdado Bacolod, without, however, re­linquishing our control over
the same.

ATTY. DIOSDADO BACOLOD: Appearing as private prosecutor, Your Honor.

ATTY. ALARIC P. ACOSTA: For the defense, we are ready, Your Honor.

COURT: We have to finish first the last evidence for the defendant in civil
case No. 2762; and will call this case after.

ATTY. BACOLOD: We agree, Your Honor.

(The trial of the civil case proceeded)

After the trial of civil case and at about 10:30 A.M. the same
date, this case was again called and –

ATTY. ACOSTA: We are ready, Your Honor.

COURT: Where are the pro­secution? (Nobody appeared) Go to Fiscal’s
office and notify them. (Bailiff went
outside and after few minutes):

BAILIFF: Fiscal Conol is in the other sala and Atty. Bacolod is not there.

COURT: Order: For failure of the
prosecution to appear this morning, this case is dismissed with costs de
oficio; and the can­cellation of the bail bond posted for the provisional
release of the accused.

In the afternoon of the same day, December 9, 1970, the Assistant
Provincial Fiscal and the private pro­secutor filed a motion for reconsideration
of the order of dismissal, alleging that after the court announced that it
would first hear the civil case before it and then call the criminal case later
they withdrew from the courtroom, the Fiscal heading for the courtroom of
Branch I to handle another case there, and the private prosecutor for the office of Assistant Provincial
Fiscal George L. Siton to interview a witness who had arrived late, both of
them “expecting that the court bailiff would notify (them) as soon as the
trial of the civil case was terminated.” They returned to the session hall
of respondent Judge after ten o’clock the same morning, only to find that the case had already been dismissed.

The motion for reconsideration was supported by the affidavits of
the court bailiff and of the chief clerk of the Provincial Fiscal’s
office. The bailiff affirmed that he
was instructed by respondent Judge to look for Fiscal Celso Conol, whom he
found in another sala conducting the direct examination of a witness in a criminal case then
being tried there; that the Fiscal told him to look for the private prosecutor,
Attorney Diosdado Bacolod, but that he did not do so because the instruction he
had received from the Judge was only to look for the Fiscal. The chief clerk, on his part, affirmed that
when the bailiff came to him and inquired as to the whereabouts of Fiscal
Conol, the private prosecutor was actually in the room of Assistant Fiscal
Siton, but that he did not volunteer such information because the bailiff did
not ask him about it.

Respondent Judge, in an order dated December 14, 1970, granted
the motion for reconsideration “in the interest of justice,” set
aside the previous order of dismissal and reinstated the case. It is from that order of December 14 that
the accused, Wilson Serino, came up to this Court on certiorari,
claiming that under the decisions of this Court^[1] the
dismissal of the case, made unconditionally and without reservation, was equivalent to an acquittal, which
“became final immediately after promulgation and could no longer be recalled for correction or reconsideration, with or without
good reason.” In essence, the ground on which the petition is based is that the reinstatement of the case
placed the petitioner in double
jeopardy for the same offense.

The basis of the
dismissal of the case in Lagunilla vs. Reyes was the apparent lack of interest
on the part of the complainant to prosecute the case, counterpoised by the
constitutional right of the accused to a speedy trial. It there appeared that when the case was
called the Fiscal asked for postponement on the ground that the complainant and
his witnesses were not present although they had been duly notified of the
trial. The accused thereupon moved for
dismissal, but the court waited until later in the morning and granted the
motion only when it became obvious that they would not show up at all. This Court, in holding that the dismissal
was proper and that it had the effect
of an acquittal, reviewed
previous decisions on the point and said:

“In the case of Gandicela vs. Hon. Lutero, L-4069, May 21,
1951, we held that if the prosecution asks for the postponement of the hearing
and the court believes that the hearing cannot be postponed without violating
the right of the accused to a speedy trial, the court should deny the
postponement and proceed with the trial, and if the fiscal fails to prove the
defendant’s guilt beyond a reasonable doubt, the court, upon the motion of the
defendant, should dismiss the case; and that this dismissal is not in reality a dismissal in the general
sense but an acquittal based on the failure of the prosecution to prove the
defendant’s guilt, which bars another prosecution for the same offense.

“Later, in the case of People vs. Diaz, L-6518, March 30, 1954, wherein the prosecution was not even present at
the trial, we reiterated the Gandicela ruling,
pointing out that there was more
reason to dismiss the case upon the instance of the accused because the
prosecution was not even present on the day of the trial so as to be in
a position to proceed with the presentation of evidence to prove the guilt of
the accused, and that said dismissal should likewise be regarded as an
acquittal.

Still later, in People v. Tacneng, L-12082, April 30, 1959, wherein
the prosecution, after asking for several postponements, con­fessed to the
court that it was not ready for trial because none of its witnesses had
appeared, and the accused, invoking his constitutional right to a speedy trial, asked for dis­missal,
and the court dismissed the case, we also ruled that such dismissal amounted to
an acquittal.

Finally, in the case of People vs. Robles, L-12761, June 29, 1959,
where­in the court ordered dismissal of the case upon the motion of the accused
because the prosecution was still not prepared for trial after several post­ponements,
we again held that the dismissal was tantamount
to an ac­quittal that would bar further pro­secution of the accused for
the same offense.”

The case at bar presents a different set of facts. The prosecution was ready to enter into
trial, as the transcript of the proceedings hereinabove quoted reveals. Both the Assistant Provincial Fiscal and the
private prosecutor were readily available, having merely stepped out of the
courtroom when the Judge announced that he would first finish the trial of
another case. What prompted the Judge
to dismiss the case, as stated by him in his subsequent order of
reconsideration, was that “when (he) asked for the prosecution panel to
come to court for trial, he was told to wait for them,” and that he considered
the same an “assault on the dignity of the court.” This is not borne
out by the transcript of record; but assuming that the statement was true it
serves only to emphasize the groundless and precipitate character of the order
of dismissal. The assault on the
court’s dignity would have justified a citation
for contempt, but certainly not the outright dismissal of the case, considering
that there had been no violation of the right of the accused to a speedy trial
and that, consistently with such right, tile plea of the complainant for
redress as well as the paramount interests of justice were no less entitled to
protection from the court. Respondent
Judge must have realized this when he recalled his order of dismissal and
reinstated the case; and we hold that under the circumstances he did so
correctly since the said order did not amount to an acquittal, having been
issued in disregard of the requirements of due process.

In the case of People vs. Hon. Amado Gomez et al., 20 SCRA 293,
May 29, 1967, notice of the trial of a criminal case in the Cebu Court of First
Instance was not served upon the Special Prosecutor who was actively handling
the said case. An Assistant Fiscal
appeared and manifested that he was not ready because the records were with the
Special Prosecutor, who was even then attending to another case in Tacloban
City. The Fiscal’s request for
postponement was denied and the case was dismissed. It was the first such request made by the prosecution, after a considerable delay in the trial
due to several legal maneuvers on the part of the defense. This Court, speaking through Mr. Justice
Jose P. Bengzon, said that the dismissal was purely capricious, a grave abuse
of discretion amounting to excess of juris­diction, and held:

“A purely capricious dismissal of an information as herein involved, moreover, deprives the State of
fair opportunity to prosecute and convict. It denies the prosecution its day in court. Accordingly, it is a dismissal without due process and,
therefore, null and void. A dismissal invalid for lack of a
fundamental requisite, such as due process, will not constitute a proper basis
for the claim of double jeopardy (People vs. Balisacan L-26376, August 31,
1966, Tilghman v. Mago [Fla.] 82 So. 2d 136; MaCleary v. Hudspeth, 124 F. 2d
445)

Under the circumstances of the present case there is reason to
hold, even more than in the case just cited, that the order of dismissal issued
by respondent Judge was null and
void for lack of due process, and hence was correctly set aside by him
thereafter.

Wherefore, the writ prayed for is denied and the
preliminary injunction is dissolved, without pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Zaldivar, Castro, Fernando,
Teehankee, Barredo, Villamor, and
Makasiar, JJ., concur.

^[1]
Lagunilla vs. Reyes, 1 SCRA 1367 and cases therein cited.