DOMINADOR BERMISA, PETITIONER, VS. THE COURT OF APPEALS, HON. VICENTE SANTIAGO, JR., AND ASSISTANT PROVINCIAL FISCAL PROCULO L. VIERNES, RESPONDENTS.

Appeal by certiorari, seeking the reversal of the Decision
of respondent Court of Appeals, promulgated on August 17, 1970, denying the
Petition for Certiorari and Prohibition filed therein by petitioner and
ordering the preliminary injunction theretofore issued dissolved.  Additionally, the Petition assails the Order
dated March 3, 1970, denying
petitioner’s Motion to Quash, issued by respondent Hon. Vicente Santiago, Jr.,
then Presiding Judge of the Court of First Instance of Pangasinan,
Urdaneta Branch. 
Petitioner prays ultimately that Criminal Case No. U-1425, entitled
“People vs. Dominador Bermisa”
be dismissed on the ground of infringement of his constitutional right to a
speedy trial.

A review of the antecedent facts discloses that, on May 8, 1963, petitioner Dominador Bermisa was charged
with the crime of Frustrated Murder before the Justice of the Peace (now
Municipal Court) of San Manuel, Pangasinan (Criminal
Case No. 797).  Having waived his right
to enter into the second stage of the preliminary investigation, the Municipal
Court forwarded the case to the Court of First Instance of Pangasinan,
Tayug Branch (Criminal Case No. T-1062).  On November
26, 1963, the corresponding Information was filed charging
petitioner with the same crime of Frustrated Murder.  After protracted proceedings, petitioner was
arraigned on December 22, 1964,
and he entered a plea of “not guilty”.

On June 2, 1965,
the Prosecuting Fiscal, instead of proceeding with the trial, moved for
provisional dismissal on the ground that the witnesses for the prosecution had
failed to appear despite notice. 
Considering that the case had been pending for almost two years, the
trial Court in its Order, dated June 2, 1965, “dismissed (it) provisionally
with the consent of the accused and his counsel, with costs de oficio“.

On September 10, 1969,
after a lapse of 4 years, 3 months and 8 days, respondent Assistant Provincial
Fiscal Proculo L. Viernes,
filed before the Court of First Instance of Pangasinan,
Urdaneta Branch, the second Information for Frustrated
Murder (Criminal Case No. U-1425), reproducing exactly the same allegations as
in the first Information.

On February 18, 1970, before entering his plea to the second
Information, petitioner, thru his counsel, moved to quash the same on the
ground that he had been denied his constitutional right to a speedy trial,
citing the ruling in Conde vs. Rivera, et al., (45
Phil. 650 [1924] and in Kalaw vs. Apostol,
et al. (64 Phil. 852 [1937], as follows:

“This Court has held that there is a positive remedy in cases
where the constitutional right of the accused to have a speedy trial is
violated.  The accused, who is deprived
of his fundamental right to have a speedy trial, is entitled to ask for his
release, if he is restrained of his liberty, or for the final dismissal of the
case pending against him.”

An opposition to the Motion to Quash was
filed by respondent Fiscal.

On March 3, 1970,
the day set for petitioner’s arraignment, respondent Judge denied the quashal in open Court and ordered the arraignment of the
accused.  Over his objection, petitioner
entered his plea of not guilty.  Trial
was set for April 22 to 24, 1970.  During the same proceedings, counsel for the
petitioner manifested in open Court his intention to file a Motion for
Reconsideration, and, in fact, requested for three days within which to file
the same “because this case really affects the life and liberty of the
accused and the possibility of bringing the case to the Supreme Court is being
studied.”^[1]
To this, respondent Judge replied that the Motion for Reconsideration would be
denied because it had already taken the arguments of both sides into
consideration.

From the aforesaid Order of respondent Judge, petitioner,
alleging grave abuse of discretion amounting to excess of jurisdiction and that
he had no other plain, speedy and adequate remedy in the ordinary course of
law, lodged a Petition for Certiorari and Prohibition with Preliminary
Injunction before the Court of Appeals, docketed therein as CA-G.R. No.
45077-R, entitled “Dominador Bermisa
vs. Hon. Vicente M. Santiago, Jr., et al.” The same was given due course
and a writ of Preliminary Injunction was issued upon the filing of the required
bond of P500.00 by the petitioner.

On August 17, 1970,
respondent Court of Appeals^[2]
rendered its Decision dismissing the Petition and dissolving the Preliminary
Injunction.

The aforestated judgment, which is
assailed for not being in conformity with law and established precedents, is
now the subject of this Petition.  After
giving due course to the same, on September 11, 1970, this Court issued a
temporary Restraining Order enjoining respondent Court from executing its
Decision dated August 17, 1970, and restraining respondent Judge and Assistant
Provincial Fiscal from proceeding with Criminal Case No. U-1425, entitled
“People vs. Dominador Bermisa.”

Three closely related errors have been assigned by petitioner,
namely, that respondent Court erred

I

“IN REFUSING TO GRANT THE PETITION FOR CERTIORARI AND
PROHIBITION WITH PRELIMINARY INJUNCTION, CA.G.R. NO. 45077, AND TO DISMISS
FINALLY CRIMINAL CASE NO. U-1425, ENTITLED PEOPLE VS. DOMINADOR BERMISA, FOR
FRUSTRATED MURDER NOTWITHSTANDING THE VALID REASONS STATED THEREFROM, THEREBY
SANCTIONING THE UNJUSTIFIED, SCANDALOUS AND LONG DELAY CAUSED BY INEXCUSABLE
FAILURE AND NEGLECT OF THE RESPONDENT ASSISTANT PROVINCIAL FISCAL TO REFILE THE
ALREADY DISMISSED CRIMINAL CASE NO. T-1062 IN TAYUG BRANCH WITHIN THE PERIOD OF
TIME IN COMPLIANCE WITH RULES, REGULA­TIONS AND DECISIONS OF THIS HONORABLE
SUPREME COURT;

II

“IN HOLDING THAT THE DOCTRINES LAID DOWN IN THE CASES OF CONDE
VS. RIVERA AND UNSON AND KALAW VS. APOSTOL, ET AL., (Supra) ARE NOT APPLICABLE
IN THE CASE AT BAR;

III

“IN NOT DECLARING THE FINAL DISMISSAL OF CRIMINAL CASE NO.
U-1425 — PEOPLE VS. DOMINADOR BERMISA PENDING IN THE COURT OF FIRST INSTANCE
OF PANGASINAN, URDANETA BRANCH.”

The errors raised may be consolidated into the single question of
whether or not under the facts recounted, petitioner’s constitutional right to
a speedy trial has been violated as to warrant the final dismissal of the
criminal charges against him.

Our organic and criminal laws expressly guarantee that in all
criminal prosecutions, the accused shall enjoy the right to have a speedy
trial.  A speedy trial “is a trial
conducted according to the law of criminal procedure and the rules and
regulations, free from vexatious, capricious, and oppressive delays.”^[3]
It can be one which may be had as soon after indictment as the prosecution can
with reasonable diligence prepare for trial. 
And such a trial is denied an accused person where through the
vacillation and procrastination of prosecuting officers, the accused is forced
to wait many months or years for trial.^[4]

A review of the facts on record constrains us to rule that the
right to a speedy trial is not invocable in this
case.  The delay in the refiling of the case was not a delay in trial amounting to
a violation of a constitutional right. 
There was no trial to speak of, in the legal sense, as there was no
indictment, as yet.

It has been held that the right to speedy trial cannot be violated
by delay between offense and indictment, though it can be violated by an
inordinate delay in the return of the indictment after the arrest has been
made.^[5]

Where a statute requiring indictment or information within a
certain period after defendant is held to answer is treated as a legislative
definition of the constitutional right, the right arises when defendant is held
to answer by a magistrate, and the right has been held not violated by unwarranted
delay in bringing him before a magistrate following arrest.^[6]

The criminal case at bar was provisionally dismissed with the
consent of the accused and his counsel on June 2, 1965. 
Considering its nature, it was entered with a possibility of the filing
of a subsequent suit.  The case was refiled approximately four years thereafter, or on September 10, 1969, before another
Branch of the same Court.  That refiling was an act within the prerogative of the prosecution.

In the absence of any statutory provision to the contrary, there is
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.^[7]

The right of an accused to a speedy trial is guaranteed to him by
the Constitution but the same shall not be utilized to deprive the State of a
reasonable opportunity of fairly indicting criminals.^[8]
It secures rights to a defendant but it does not preclude the rights of public
justice.^[9]

In fact, the consent of petitioner to the dismissal constituted a
waiver of his constitutional right not to be prosecuted for the same offense.

xxx where a defendant expressly consents to or move for the
dismissal of the case against him, even if the court or judge states in the
order that the dismissal is definite or does not say that the dismissal is
without prejudice to the filing of another information, the dismissal will not
be a bar to a subsequent prosecution of the defendant for the same offense.^[10]

The effect of a discharge (of a person committed on a criminal
charge in case of a failure to find an indictment or file an information within
a certain time) depends upon the particular statute.  Under some statutes, the discharge does not
prevent another indictment for the same offense, since it is considered that
the effect of the discharge is merely to relieve the accused from imprisonment
or from being held to bail, and not to acquit him of the crime.  xxx xxx^[11]

If petitioner believed that the provisional dismissal deprived
him of the right to a speedy trial, then he should have objected to the same instead
of having given his consent thereto.

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.^[12]

A contrary conclusion would run afoul of the provision on
prescription of crimes, which states:

Art. 90.  Prescription of
Crimes – Crimes punishable by death, reclusion perpetua
or reclusion temporal shall prescribe in twenty years.^[13]

The crime of Frustrated Murder, with
which petitioner is charged, is punishable by prision-mayor
in its maximum period to reclusion temporal in its medium
period.  Under the rule that when the
penalty fixed by law is a compound one, the highest penalty, or reclusion
temporal, for the computation of the prescriptive period shall be made the
basis (Art. 90, last paragraph of the Revised Penal Code), the crime prescribes
in twenty years.

The refiling of the case on September 10, 1969, therefore, was
still well within the prescriptive period of twenty years, even considering the
interim period of approximately four years when prescription commenced to run
again from the date of provisional dismissal up to the refiling
of the criminal case.

Withal, petitioner’s prayer for the final dismissal on the ground
that he was denied the right to a speedy trial of the criminal case against him
finds no legal sanction nor doctrinal support.

WHEREFORE, the instant Petition is hereby denied for lack
of merit.

Costs against petitioner.

SO ORDERED.

Makasiar, Fernandez, Guerrero, and De Castro, JJ., concur.

Teehankee, J., (Chairman), took no part.

^[1]
Petitioner’s Brief, p. 10.

^[2]
Sixth Division, composed of JJ. Hermogenes Concepcion, Jr., Eulogio S.
Serrano, ponente, and Lourdes P. San Diego.

^[3] Kalaw vs. Apostol, et al.,
64 Phil. 852 (1937).

^[4] Conde vs. Judge, et al., 45 Phil. 173 (1923).

^[5]
21 Am. Jur. 2d, p. 283.

^[6] Ibid.
p. 284.

^[7] Jaca vs. Blanco, 86 Phil. 452 (1950).

^[8]
14 Am. Jur. 859.

^[9]
Mercado vs. CFI, et al., 66 Phil. 215; Gunabe,
et al. vs. Director of Prisons, 77 Phil. 993.

^[10] Gandicela vs. Lutero, 88
Phil. 299 (1951).

^[11]
27 Am. Jur., pp. 597-598.

^[12]
Solis vs. Agloro, 64 SCRA 370 (1975), citing Jaca vs. Blanco, supra.

^[13]
Article 90, Revised Penal Code of the Philippines.