DAVID ACEBEDO Y DALMAN, PETITIONER, VS. HON. MALCOLM G. SARMIENTO, AS JUDGE OF THE COURT OF FIRST INSTANCE OF PAMPANGA AND THE PROV. FISCAL OF PAMPANGA, RESPONDENTS.

This Court not so long ago reaffirmed the doctrine that where a
dismissal of a criminal prosecution amounts to an acquittal, even if arising
from a motion presented by the accused, the ban on being twice put in jeopardy
may be invoked, especially where such
dismissal was predicated on the right to a speedy trial.^[1] The specific question then that this
certiorari and prohibition proceeding presents is whether on the undisputed
facts, an order of dismissal given in open court by respondent Judge falls within the operation of the above principle,
precluding its reconsideration later as the defense of double jeopardy would be
available.  Here respondent Judge did reconsider, and his actuation is
now assailed as a grave abuse of discretion. 
As will be made apparent, petitioner has the law on his side.  The writs should be granted.

It was shown that on August
3, 1959, respondent Provincial Fiscal filed in the Court of First
Instance of Pampanga a criminal
information for damage to property through
reckless imprudence against petitioner and a certain Chi Chan Tan.  As
there were no further proceedings in
the meantime, petitioner on May 19,
1965 moved to dismiss the
criminal charge.  Respondent Judge was not in agreement as shown by his order
of denial of July 10,
1965.  Then, after two more years, came the trial with
the complainant having testified on direct examination but not having as yet been
fully cross-examined.  At the continuation of the trial
set for June 7, 1967 such witness did not show up.  The
provincial fiscal moved for postponement.  Counsel for petitioner, however, not only
objected but sought the dismissal of
the case based on the right of the accused to
speedy trial.  Respondent Judge this time acceded, but would
likewise base his order of dismissal, orally given, on the cross-examination of complainant not having started as yet.  Later that same day, respondent Judge did reconsider the order and reinstated the case, his action being due to its being shown that the cross–examination of the complainant had already
started.

On the above facts, there can be no dispute as to the applicable law.  It is not to be lost sight of that the petition on
its face had more than its fair share of plausibility, thus eliciting an affirmative response to
the plea for a writ of preliminary injunction, duly issued by
this Court.  For it was all too evident that petitioner could rely on his constitutional right to a speedy trial.  For more than six
years the threat of his being subjected
to a penal liability did hang over his head, with the prosecution failing
to take any step to have the
matter heard.  He did ask that the case
be dismissed, but respondent
Judge turned him down.  When the
trial did at long last take place after two more years and again postponement
was sought as the complainant was not
available for cross-examination, petitioner, as could have been expected, did again seek to put an end to his
travail with a motion for dismissal
grounded once more on the undeniable fact that he was not accorded the speedy trial that was his due.  This time respondent Judge was quite
receptive – and about time too.  The
order of dismissal given in open court had then the effect of an acquittal.  For the respondent Judge to give vent to a
change of heart with his reconsideration was to subject petitioner to the risk
of being put in jeopardy once more.  Nor could respondent Judge’s allegation that he could do so as he
acted under a misapprehension be impressed with the quality of persuasiveness.  The decisive fact was the absence of that
speedy trial guaranteed by the Constitution. 
This petition then, to repeat, possesses merit.

1. The right to a speedy trial means one free from vexatious,
capricious arid oppressive delays, its salutary objective being to assure that
an innocent person may be freed from
the anxiety and expense of a court litigation or, if otherwise, of having his
guilt determined within the shortest possible time compatible with the
presentation and consideration of whatever legitimate defenses he may interpose.^[2]
The remedy in the event of a non-observance of this right is by habeas corpus if the
accused were restrained of his liberty, or by certiorari, prohibition, or
mandamus for the final dismissal of the case.^[3]

In the first Supreme Court decision after the Constitution took
effect, an appeal from a judgment of conviction, it was shown
that the criminal case had been dragging on for almost five years.  When the trial did finally take place, it was tainted
by irregularities. White ordinarily the remedy would have been to remand the case again for a new trial, the
appealed decision of conviction was set aside and the accused acquitted.  Such a judgment was called for according to
the opinion penned by Justice Laurel, if this constitutional right were to be
accorded respect and deference. 
Thus:  “The Government should
be the last to set an example of delay and oppression in the administration of
justice and it is the moral and
legal obligation of this court to see that
the criminal proceedings against the accused came to an end and that they be
immediately discharged from the custody of the law.”^[4]

Conformably to the above ruling as well as the earlier case of Conde v. Rivera,^[5]
the dismissal of a second information for frustrated homicide was ordered by
the Supreme Court on a showing that the first information had been dismissed
after a lapse of one year and seven months from the time the original complaint
was filed during which time on the three occasions the case was set for trial, the
private prosecutor twice asked for postponements and once the trial court
itself cancelled the entire calendar for the month it was supposed to have been
heard.  As pointed out in such decision:  “The right of the accused to have a
speedy trial is violated not only when unjustified postponements of the trial
are asked for and secured, but also when, without good cause or justifiable
motive, a long period of time is allowed to elapse without having his case
tried.”^[6]
It did not matter that in this case the postponements were sought and obtained
by the private prosecution, although with the consent and approval of the
fiscal.  Nor was there a waiver and
abandonment of the right to a speedy, trial when there was a failure on the part of the accused to urge that the case be
heard.  “Such a waiver or
abandonment may be presumed only when the postponement of the trial has been
sought and obtained [by him.].”^[7]
A finding that there was an infringement of this right was predicated on an accused having been criminally prosecuted for
an alleged abuse of chastity in a justice of the peace court as a result of which he was arrested three times, each time
having to post a bond for his provisional liberty.  Mandamus to compel the trial judge to dismiss
the case was under the circumstances the appropriate remedy.^[8]

In Mercado v. Santos,^[9]
the second occasion Justice Laurel had to write the opinion for the Supreme
Court in a case of this nature,
the transgression of this constitutional mandate came about with petitioner
having in a space of twenty months been arrested four times on the charge of
falsifying his deceased wife’s will, the first two complaints having been
subsequently withdrawn only to be refiled a third time and thereafter dismissed
after due investigation by the justice of the peace.  Undeterred the provincial fiscal filed a
motion for reinvestigation favorably acted on by the Court of First Instance
which finally ordered that the case be heard on the merits.  At this stage the accused moved to dismiss
but was rebuffed.  He sought the aid of
the Court of Appeals in a petition for certiorari but did not prevail.  It was then that the matter was elevated to
the Supreme Court which reversed the Court of Appeals, the accused “being
entitled to have the criminal proceedings against him quashed.  ” It was
stressed in Justice Laurel’s opinion: 
“An accused person is entitled to a trial at the earliest
opportunity.  * * * He cannot be ppressed by delaying the commencement of trial for an
unreasonable length of time.  If the
proceedings ending trial are deferred, the trial itself is necessarily
delayed.  It is not to be supposed, of
course, that the Constitution intends to remove from the prosecution every
reasonable opportunity to prepare for trial. 
Impossibilities cannot be expected or extra­ordinary efforts required on
the part of the prosecutor or the court.”^[10] The opinion likewise considered as
not decisive the fact that the provincial fiscal did not intervene until an
information was filed charging
the accused with the crime of falsification the third time.  Thus: “The Constitution does not say
that the right to a speedy trial may be availed of only where the prosecution
for crime is commenced and undertaken by the fiscal.  It does not exclude from its operation cases
commenced by private individuals.  Where
once a person is prosecuted criminally, he is entitled to a speedy trial,
irrespective of the nature of the offense or the manner in which it is
authorized to be commenced.”^[11]

2.  More
specifically, this Court has consistently adhered to the view that a dismissal
based on the denial of the right to speedy
trial
amounts to an acquittal.  Necessarily, any further attempt at
continuing the prosecution or starting a new one would fall within the prohibition against an accused
being twice put in jeopardy.  The
extensive opinion of Justice Castro in People v. Obsania
noted earlier made reference to four Philippine decisions, People v. Diaz,^[12] People v. Abaño,^[13] Pople v. Robles,^[14] and People v. Cloribel,^[15] In all of the above cases, this Court left
no doubt that a dismissal of the case, though at the instance of the defendant
grounded on the disregard of his right to a speedy trial was tantamount to an acquittal.  In People v. Diaz, it was shown that the case
was set for hearing twice and the prosecution without asking for postponement
or giving any explanation failed to appear. 
In People v. Abaño, the facts disclosed that
there were three postponements. 
Thereafter, at the time the resumption of the trial was scheduled, the
complaining witness as in this case was absent; this Court held that respondent
Judge was justified in dismissing the case upon motion of the defense and that
the annulment or setting aside of the order of dismissal would place the
accused twice in jeopardy of punishment for the same offense.  People v. Robles likewise presented a picture
of witnesses for the prosecution not being available, with the lower court
after having transferred the hearings on several occasions denying the last
plea for postponement and dismissing the case. 
Such order of dismissal, according to this Court “is not
provisional in character but one which is tantamount to acquittal that would
bar further prosecution of the accused for the same offense.”^[16] This is a summary of the Cloribel
case as set forth in the above opinion of Justice Castro:  “In Cloribel, the case dragged for
three years and eleven months, that is, from September 27, 1958 when the information was filed to August
15, 1962 when it was
called for trial, after numerous post­ponements, mostly at the instance of the
prosecution.  On the latter date, the
prosecution failed to appear for trial, and upon motion of defendants, the case
was dismissed.  This Court held ‘that the dismissal here complained of was
not truly a ‘dismissal’ but an cquittal.  For it was entered upon the defendants’
insistence on heir constitutional right
to speedy trial and by reason f the prosecution’s failure to appear on the date
of trial.’^[17] (Italics supplied.)”  There is no escaping the conclusion then hat
petitioner here has clearly made out a case of an acquittal arising from the
order of dismissal given in open court.

3. Respondent Judge would rely on Cabarroguis
v. San Diego^[18]
to lend support to the reconsideration of his order of dismissal.  The case is not applicable; the factual
setting is different.  The order of
dismissal set aside in that case arose from the belief of the court that the
crime of estafa was not committed as the liability
was civil in character.  At no stage then
was there a plea that the accused was denied his right to a speedy trial.  The reconsideration was granted as there was
documentary evidence to show that the intention to defraud on the part of the
accused could be shown.  Under such
circumstances, this Court saw no grave abuse of discretion in the actuation of
the trial judge.  To repeat, the
proceeding now before this Court is any­thing but that.  Petitioner not once but twice did seek to
have the prosecution for damage to property against him terminated as the
matter was pending for at least six years, the first time he sought to put an
end to it.  When at
last, the trial stage was reached, the complaining witness testified on direct
examination but made no appearance when his cross-examination was to be
continued.  A clear case of a
denial of the right to a speedy trial was thus made out.  There was an order of dismissal that amounted
to an acquittal.  No reconsideration
could therefore be had without offending the provision on double jeopardy.

WHEREFORE, the writ of certiorari is granted annulling the
order of respondent Judge of June 7,
1967 reconsidering his order of dismissal and reinstating the
criminal case against petitioner.  The
writ of prohibition is likewise granted, respondent Judge and respondent
Provincial Fiscal of Pampanga being restrained and
precluded from continuing with this case against petitioner, now adjudged
definitely dismissed:  The writ of
preliminary injunction issued is made permanent.

Reyes, Acting C.J., Makalintal, Zaldivar, Castro, Teehankee, Barredo, and Villamor, JJ., concur.

Dizon and
Makasiar, JJ., on official leave.

^[1]
People v. Obsania, G.R. No.
L-24447, June 29, 1968, 23 SCRA 1249.
In the exhaustive opinion penned by Justice Castro, People v. Diaz, 94
Phil. 714 (1954); People v. Abaño 97 Phil. 28
(1955); People v. Robles, 105 Phil. 1016 (1959) and People v. Cloribel, G.R. No. L-20314, Aug. 31, 1964, 11 SCRA 805 were
cited in support of such a view.

^[2]
Cf. Justice Malcolm‘s words in a pre­-Commonwealth leading case:  “Aurelia Conde,
like all other accused persons; has a right to a speedy trial in order that if
innocent she may go free, and she has been deprived of that right in defiance
of law.  * * * By the use of reasonable
diligence, the prosecution could have settled upon the appropriate information, could have
attended to the formal preliminary examination, and could hive prepared the
case for a trial free from vexatious,
capricious, and oppressive delays.” Conde v. Rivera, 45 Phil. 650
at p. 651 (1924).

^[3]
Kalaw v. Apostol,
64 Phil. 852 (1937) citing the Conde v. Rivera
decision.

^[4]
People v. Castañeda, 63 Phil. 480, at p. 486 (1936).

^[5]
 45 Phil. 650 (1924).

^[6]
Kalaw v. Apostol,
64 Phil. 852 at pp. 858-859 (1937).

^[7]
Ibid, at p. 859.

^[8]
Esguerra v. De la Costa, 66
Phil. 134 (1938).

^[9]
66 Phil. 215 (1938).

^[10]
Ibid, at pp. 234-235.

^[11]
Ibid, at p. 234.

^[12]
94 Phil. 714 (1954).

^[13]
97 Phil. 28 (1955).

^[14]
105 Phil. 1016 (1959).

^[15]
G.R. No. L-20314, August 31, 1964, 11 SCRA 805.

^[16]
105 Phil. 1016, 1021 (1959).

^[17]
People v. Obsania, G.R. No. L-24447, June 29,
1968, 23 SCRA 1249, 1273.

^[18]
G.R. No. L-19517, November 30, 1962, 6 SCRA 866.