RODRIGO ACOSTA, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

Appeal by certiorari, taken by Rodrigo Acosta, from a decision of
the Court of Appeals remanding this case to the court of origin for
retrial and the rendition of judgment in accordance with the evidence
that the parties may then present.

It appears that on January 2, 1951, an information for malversation
of public funds thru reckless negligence was filed, with the Court of
First Instance of Bukidnon, against petitioner Rodrigo Acosta, for
having allegedly made, as Provincial Treasurer of Bukidnon, “irregular
and excessive purchases of supplies, materials, equipment and printed
forms from private dealers for the use of the province”, and against
Leonardo Avila, for having, as Provincial Auditor of the same province,
“passed in audit the corresponding vouchers covering the payments for
such purchases”. Subsequently, the information was amended to include
as defendants three (3) private dealers, namely, C. Silvestre, E. M.
Haravata and Victoriano C. Arias, who had allegedly been able to
collect payments on said purchases. Still later, however, the
prosecution filed a second amended information excluding said dealers
from the charge.

The trial under this second amended information, in connection with
which Acosta and Avila had entered a plea of not guilty, began on June
19, 1952 and ended on July 28 of the same year. However, the trial
Judge, Hon. Jose F. Veluz, retired from the service without having
decided the case. His successor in office, Hon. Vicente Abad Santos,
Judge, “found the transcript of 482 pages prepared by stenographer
Celestino Suarez” replete with “omissions and also inaccuracies which
had been indicated by means of marginal notes on the pages mentioned
in” an “order of September 25, 1957”. Judge Abad Santos directed,
therefore, said stenographer “to re-transcribe his notes and to submit
the ‘new transcript as well as the first transcript’ not later than
forty days after receipt of a copy of said order”. But, “instead of
re-transcribing his notes * * *, Mr. Suarez merely made corrections in
handwriting and inserted some supplemental transcripts in the original
transcript”. Upon reading these supplemental typed transcripts,
particularly the portion covering the cross-examination of witness
Pedro Palafox by defense counsel Cipriano Asada, Judge Abad Santos
noticed, however, that it was still “full of inaccuracies”.
Accordingly, he ordered the stenographer to read his notes in his
(Judge Abad Santos’) chamber, in order that the necessary corrections
could be made on the transcript. Upon going over said notes, it
appeared that said portion “consisted of eleven pages although the
transcript thereof was spread to eight pages only”. Hence, Suarez was
ordered to further transcribe what had thus been omitted. What is more,
in order that he could decide the case with a “clear conscience”, Judge
Abad Santos bade Suarez to stay in his (Judge Abad Santos) office in
order to read his (Suarez’) notes from the beginning, with stenographer
Montes checking the transcript already made. Although he did not
immediately reveal his objection thereto, Suarez later refused to work
in said office stating that “it made him dizzy to come up and” that
“besides he was going to resign or retire” and then asked to be allowed
to do his work in the first floor of the court house. Instead of
granting this request, Judge Abad Santos recommended to the Department
of Justice, in order to avoid further delay in the disposition of the
case: (a) that any application for retirement or resignation that may be submitted by Suarez be denied; and (b)
that payment of his salary be suspended until otherwise recommended,
after compliance with the order that he should work in the office of
the Judge, provided that the result of his work is satisfactory.
Eventually, the transcript of the stenographic notes, certified to be
“true and correct”, consisted of 658 pages as compared to only 4682
pages found by Judge Abad Santos on September 9, 1957.

Meanwhile, Judge Abad Santos had resigned leaving the case
undecided. He was succeeded in office by Hon. Abundio Arrieta, Judge,
who on October 17,1958, rendered a decision convicting the defendants
as charged and sentencing each to an indeterminate penalty ranging from
eleven (11) years, six (6) months and twenty (20) days of prison mayor to sixteen (16) years, five (5) months and eleven (11) days of reclusion temporal,
to pay a fine of P28,808.86, representing one-half of the total sum
allegedly misappropriated, as well as to jointly and severally
indemnify the province of Bukidnon in the sum of P62,955.06, without
subsidiary imprisonment in case of insolvency, to perpetual
disqualification and to pay the costs.

Both defendants appealed from this decision to the Court of Appeals
and urged the same to acquit them upon the ground, among others, that
said decision was based on incomplete and tampered transcript, upon
which a conviction beyond reasonable doubt could not be predicated.
Acosta, moreover, claimed that his constitutional right to a speedy
trial had been violated. On July 2, 1960, the Court of Appeals rendered
its decision, from which we quote:

“* * * on the basis of available transcript, (which
originally contains 482 pages and when retranscribed and corrected it
consists of 658 pages), indicating that irregularities in taking the
notes and in transcription thereof were committed, we can not see our
way clear to pronounce either a conviction or acquittal in this case.
Indeed, the evidence in this case is not quite accurate or reliable for
the reasons already underscored earlier. Since the crime with which the
accused were charged carries a stiff penalty and that it is one that
should be fully prosecuted for being highly undesirable, if not
immoral, we prefer to subordinate acquittal or conviction to time.
Stated otherwise, we are of the opinion that the ends of justice, both
to the government and to the accused, would be better served if further
proceedings will take place in order that this case could be decided
satisfactorily once and for all.

“From the corrected’
transcript, we gathered that counsel for accused Leonardo Avila in the
court below incurred certain inconsistencies, to wit:

(1) Your Honor please, without renouncing or waiving our rights to
present evidence for the defense of the accused Leonardo Avila, * *, we
move for the dismissal of this case on two grounds:

* * * “

(2) As regards the accused Avila,
your Honor, we waive our right to present evidence on his defense and
we rest our case with respect to the accused Avila, and we submit the
case far decision with the evidence presented by the Fiscal, and we beg
to allow us to withdraw—insofar as the accused Avila is concerned—we
beg to leave the courtroom.

(3) We do not ask for a
separate trial, your Honor, in order to obviate duplicity of questions,
but new we will ask for a separate defense.

(4) And that
is within the lookout of the defense, Your Honor, and we reiterate our
motion to leave this Honorable Court to allow us to leave the
courtroom, and consider our case close, (t.s.n., pp. 545, 554 &
558.)

“On appeal, counsel for appellant
Leonardo Avila filed a motion for new trial, because of the aforequoted
statements and of the erroneous and incomplete transcript of the trial
stenographer. The motion was, however, denied (Res., 3rd Div., Feb. 12,
1959). Appellate Courts have that broad power to order new trial
without specifying the grounds therefor in order to avoid a miscarriage
of justice. The grounds upon which courts of first instance may grant a
new trial are limited (Pls. see Sec. 5, Rule 117/ Rules of Court), but
appellate courts, under section 14, Rule 120, are authorized to remand
a case to a court of first instance for new trial or retrial, without
specifying, and, hence, without limiting, the grounds upon which the
action may be predicated. And pursuant to section 11, Rule 120, of the
Rules of Court, an appellate court may * * * remand a case to a court
of first instance for new trial or retrial * * *.

“WHEREFORE, the record of this case is ordered remanded to the court of
origin for retrial and another judgment be rendered in accordance with
the evidence that the parties concerned may desire to present.”

Acosta sought a reconsideration of this decision, which was denied. Hence, his present appeal by certiorari.

Petitioner maintains that the Court of Appeals erred in ordering a
retrial, instead of acquitting him, not only because he had been
deprived of the constitutional right to a speedy trial, but, also,
because a retrial would be impractical, oppressive and expensive, apart
from amounting to a denial of justice, for a principal witness for the
defense, one Justiniano B. Castillo, had allegedly died on December 24,
1957, and his other witnesses may no longer be available.

It should be noted that the original information in this case was
filed on January 2, 1951 and that the trial for the reception of the
evidence for both parties commenced on June 19, 1952 and was finished
on July 18 of the same year. Petitioner does not contend that there has
been any undue delay in this part of the proceeding’s. His alleged
deprivation of the right to a speedy trial is anchored on the fact that
the decision of the lower court was rendered over six (6) years later.
In this connection, the Court of Appeals aptly observed:

“* * * True enough that judgment was pronounced
after almost six years. But ‘the constitutional right to a public and
speedy trial does not extend to the act of pronouncement of sentence’
(Reed vs. State, 147 Ind., 46 N.E., 135, 136). It has been
said that ‘trial and judgment are two different stages of a judicial
proceeding: the former is provided for in Rule 115, and the latter is
covered by Rule 116, of the Rules of Court’ (Talabon vs. Iloilo Prov. Warden, 78 Phil., 600). And ‘the period of the trial terminates when the judgment begins’ (Felismino vs.
Gloria, 47 Phil., 967). Therefore, and since the accused did not avail
themselves of the writ of mandamus to compel the trial judge or his
successor to pronounce the corresponding judgment, it may be said in
the light of the ruling laid down in the case of Talabon vs. Iloilo Prov. Warden, Infra, that they had waived their right to a speedy trial”.

Indeed:

“No general principle fixes the exact time within which a trial must be
had to satisfy the requirement of a speedy trial. The right to a speedy
trial is necessarily relative; it is consistent with delays, and
whether such a trial is afforded must be determined in the light of the
circumstances of each particular case as a matter of judicial
discretion. It is generally said that a speedy trial is one had as soon
after indictment as the prosecution can with reasonable diligence
prepare for it, regard being had to the terms of court, a trial
conducted according to fixed rules, regulations and proceedings of law,
free from vexations, capricious, and oppressive delays. An accused of
crime is not entitled to a trial immediately on his arrest or
accusation, he must wait a regular term of the court having
jurisdiction of the offense with which he is charged, until an
indictment is found and presented if the case is one wherein the trial
is on indictment, and until the prosecution has had a reasonable time
to prepare for the trial.” (22 C.J.S., 715-716.)

“Under
constitutional provisions securing to accused ‘the right to a public
trial* or to a ‘speedy trial’, it has been held that the formal
declaration of sentence is no part of the trial.” (24 CJ.S., 16.)

Moreover, the delay in the rendition of the decision of the Court
of First Instance was due to circumstances beyond the control of the
judges who presided the same, Judge Veluz, who received the evidence,
was automatically retired owing to his age. Judge Abad Santos, who
succeeded him, could not decide the case because he found the
transcript to be inaccurate and he had to make disciplinary measures in
order to compel stenographer Suarez to re-transcribe his notes. By the
time this was done, Judge Abad Santos was no longer in the service.
Hence, his successor Judge Arrieta was the one who rendered the
decision of the lower court.

Upon the other hand, we cannot, in the exercise of our jurisdiction
on appeal by certiorari absolve the petitioner of the crime charged
against him, for there are no findings of fact in the decision of the
Court of Appeals upon which this Court could base a judgment of
acquittal. Moreover, the opinion of the Court of Appeals to the effect
that the transcript of the stenographic notes taken during the trial of
this case in the Court of First Instance does not reflect faithfully
what transpired during said trial is, apart from being shared by
petitioner herein, conclusive upon us. Under these circumstances, we
should not interfer in the exercise of discretion by the Court of
Appeals. In the language of Corpus Juris:

“Under a statute which provides that a person
restrained of his liberty is entitled to certiorari to inquire into the
cause of his imprisonment, certiorari does not lie to review a
determination in a criminal case where relator was discharged from
custody under a bail bond. The reason for such a rule is that the
Telator, therefore, was not restrained of his liberty. The imprisonment
or restraint in his liberty within the meaning of this section, is an
actual physical restraint by which the liberty of the individual ‘is in
some way interferred with. A person cannot be said to be restrained in
his liberty when he can do what and go where he pleases. The mere fact
that his bail has authority to surrender him to custody at any time is
not a restraint in his liberty. * * * If the relator should be
surrendered by his bail, and thus be actually in custody, he would be
entitled to have the cause of his detention reviewed; but until there
is an actual restraint of his liberty, he is not entitled to either of
these writs (certiorari or habeas corpus) * * *.” (17 Corpus Juris, pp.
18-19.)

We are not unaware of the possible disadvantages to which
petitioner might be placed in the event of a retrial, but we are not in
a position now to determine the effects of such disadvantages. In fact,
the very petitioner has not particularized the evidence which might not
be available to him at a retrial, aside from the circumstance that the
prosecution may then be similarly handicapped. In any event, when the
retrial takes place, petitioner may point out what evidence he can no
longer present and why, and the Court1 should then consider the effect
thereof upon the question of guilt or innocence of petitioner herein.

Wherefore, the decision of the Court of Appeals is hereby affirmed,
and the case remanded to the Court of First Instance of Bukidnon for
further proceedings, in compliance therewith. It is so ordered.

Bengzon, C. J., Padilla, Paredes, Dizon, Regala, and Makalintal, JJ., concur.