PEOPLE OF THE PHILIPPINES, PETITIONER, VS. HON. GAUDENCIO CLORIBEL, JUDGE, COURT OF FIRST INSTANCE, MANILA, BLENVENIDO Y. AGUILAR, DIONISIO M. LABAD, SENEN S. BURGOS, ZOSIMO U. …

This is a petition for certiorari to review the order of dismissal
entered by the respondent Judge in Criminal Case No. 45717 entitled
“People of the Philippines vs. Aguilar et al.”

On September 27,1958, a criminal information for falsification of
public, official and/or commercial documents was filed against the
herein respondents Bienvenido Aguilar, Dioniaio M. Labad, Senen S.
Burgos, Zosimo U. Angeles and Manuel Akol. It was docketed as Criminal
Case No. 45717 of the Court of First Instance of Manila.

The case was set for arraignment on October 17, 1958. In view,
however, of a number of preliminary motions filed in the case, the
arraignment did not take place as so scheduled but on March 23, 1959.

The case was then set for trial on the merits on May 26 and 27,
1959. Again, however, various incidents prevented the trial from
proceeding ns originally scheduled and it was eventually transferred to
September 16, 1959.

From September 16, 1959 to August 30, 1960, the scheduled hearings
were postponed for at least six times. Of these six postponements, four
were jointly sought or agreed upon by counsels for both parties herein
and one each on their own individual representation. Thus, the hearing
for September 16, 1959 was cancelled and postponed to November 23, 25
and 27, 1959 which were in turn transferred to the following dates
successively:

1. January 25, 26 and 27, 1960
2. March 9, 1960
3. April 20, 21 and 22, 1960
4. June 14, 15 and 16, 1960
5. July 11, 13 and 18, 1960
6. August 24, 25 and 26, 1960

Of the above six dates, postponements 1, 2, 4 and 5 were jointly
asked or agreed upon by the two parties herein. Number 3 was prayed for
by the respondent while (Number 6 was represented by the petitioner.
Finally, on August 23, 1960, the lower court postponed the heaving of
the case set for August 24, 25 and 26 “until further assignment.”

On January 23, 1962, Special Prosecutor E. Pañganiban was designated
Acting Commissioner of Immigration while Special Prosecutor Pedro D.
Cenzon, some weeks before May 17, 1962, was made to collaborate in the
prosecution of the Stonehill cases. In view of their additional
assignments, they moved for the cancellation of the trial set for May
17, 1962 which was granted and Criminal Case No. 45717 was again
transferred for trial to August 15 and 16, 1962.

Sometime in June, 1962, Special Prosecutor E. Pañganiban returned to
the Prosecution Division of the Department of Justice. On July 7, 1962,
however, he was assigned to investigate a number of Central Bank cases
by reason of which he held office at the Intelligence Division of the
Central Bank. During the same period, the other Prosecutor, Pedro D.
Cenzon, was extended an ad interim appointment to the Judiciary to the end that by July 3, 1962, he officially withdrew his appearance from the case.

On July 17, 1962, the Records Bureau of the Department of Justice
received the Notice of Hearing for the August 15 trial. When,
therefore, on the latter date, August 15, 1962, none of the Government
prosecutors appeared, the respondent Judge entered the order here asked
to be reviewed, to wit:

“When (his case was called for trial at 8:30 the
special prosecutor failed to appear despite due notice. The case was
called again fit 9:35 and still the prosecutor failed to appear.

“WHEREFORE, upon motion of the counsel for tlhe defense this case is hereby provisionally dismissed with costs de oficio and cancellation of bail bonds. So ordered.”

As it turned out, there was present in the courtroom a state witness
who, on hearing the order of dismissal forthwith notified Prosecutor
Panganiban. Immediately, the latter, in the company of Solicitor
Emerito M. Salva and Atty. Filoteo Evangelista of the Central Bank,
went to see the respondent Judge who had, by the time they arrived,
already adjourned the morning’s session. Nevertheless, they called on
the respondent Judge and explained their failure to appear earlier at
the trial. The Judge advised them to file their motion for
reconsideration which they did in due time.

In their motion for reconsideration, the Government prosecutors explained their absence at the trial as follows:

“3. That from the records it appears that a Notice
of Hearing was issued in the above case, a copy of which was served at
the Records Division of the Department of Justice on July 17, 1962.
However, this notice of hearing never reached undersigned prosecutor
because he has been Associate Commissioner of Immigration and after his
recall from said office, ho was re-assigned to the Central Bank of the
Philippines on July 6, 1962;

“4. While it is true that said
notice was also addressed to Fiscal Pedro D. Cenzon, it is very
probable that the name did not reach him for the reason that on July 3,
1962, he has already filed a petition to withdraw his appearance in
view of his appointment as Judge of the Court of First Instance of
Misamis Oriental. Moreover, he was very busy in tho numerous Stonehill
investigations;

“5. That the undersigned prosecutor was
never aware of the hearing of the above case duo to the above
circumstances. Moreover, the undersigned counsel has always been under
the impression that the criminal case is consolidated for trial will
the civil case. The records will show that a motion to consolidate
Civil Case No. 38824 and Criminal Case No. 45717 was filed by the
Solicitor General’s office which was granted by this Honorable Court
without any objection of the accused or his counsel. Consequently, the
above-mentioned cases were set for joint trial by the then Judge
Gustavo Victorino and if undersigned recalls correctly, the hearing of
the above cases was postponed due to the illness of one of the accused
who has the right to be present;

“6. That because of the
above facts, undersigned prosecutor has always been under the
impression that the joint trial of the criminal and civil case
abovementioned is set for September 17, 1962;

After considering the motion for reconsideration, the respondent Judge resolved to deny it. Hence, this petition for certiorari.

Two issues are raised by this petition, namely: first, did the
respondent Judge gravely abuse his discretion in issuing the order of
August 15, 1962? And, second, what was the effect of the said order?
Did it amount to an acquittal as would bar a reinstatement of Criminal
Case No. 45717 by reason of double jeopardy?

The first issue should be resolved in the negative. The second should be answered in the affirmative.

To start with, the authority of the court to dismiss a case for
failure of the prosecution to appear cannot be denied. The authority
and the extent of the court’s power in that regard ia clearly recited
in Sec. 3, Rule 30 of the former Rules of Court which governs this
litigation. (It is now Sec. 3, Rule 17.) The rule reads:

“Sec. 3. Failure to prosecute.—Whim plaintiff fails
to appear at the time of the trial, or to prosecute his action for fan
unreasonable length of time, or to comply with these rules or any order
of the court, the action way 1ft; dismissed upon motion of the
defendant or upon the court’s own motion. This dismissal shall have
the effect of an adjudication upon, the merits, unless otherwise
provided by the court.”

It should be observed that under the aforequoted rule, the authority
of the court is broad and definite. It grants to the court the power to
dismiss even upon its own motion. (Manila Herald Publishing Co., Inc. vs.
Ramos, 88 Phil. 94) Moreover, it reposes in the trial court the
discretion to so dismiss or not. As past cases have held, “the
dismissal of an action pursuant to this rule rests upon the sound
discretion of the court and will not be reversed on appeal in the
absence of abuse. The burden of showing abuse of judicial discretion is
upon appellant since every presumption is in favor of thn correctness
of the court’s action.” (Smith Bell & Co., Ltd., et al. vs. American President Lines Ltd., et al., 94 Phil., 879; Venus Sanciangco vs. Sanciangco, et al., L-1G219, April 28, 1962).

It is on record that from the time Criminal Case No. 45717 was filed
to the time that it was actually called for trial on the merits, some
three years and eleven month had elapsed. The case was filed on
September 27. 1958 and it was called for trial on August 15, 1962. The
respondent Judge, therefore, may reasonably be assumed to have
considered this time element in issuing the order of August 15, 1962.
For by any fair standard, three years and eleven months can hardly be
ignored or disregarded by a magistrate when he is called upon to rule
on a motion to dismiss a criminal prosecution grounded on defendants’
constitutional right to speedy trial. Taking into account the
protracted delay, as well as the broad concessions extended to a Judge
by Rule 30, Sec. 3 as earlier discussed, it would seem that the order
here assailed can hardly be labeled “a grave abuse of discretion.”

The petitioner contends, however, that the long delay in the
prosecution of the case is primarily attributable to the respondents’
own “numerous requests for postponement and initiation of incidents and
proceedings which were all overruled by the lower court.” Consequently,
it is urged that the lower court should not have heard, much less acted
favorably on, respondents’ complaint that their right to speedy trial
was being impaired.

While it is true that the herein respondents had, on various
occasions, sought the postponement of the scheduled hearings, it is no
less true that the petitioner itself had, on as many if not more
occasions, effected the deferment of the trial. Thus, and as earlier
pointed out, of the six cancellations from September 16, 1959 to August
26, 1960, four were requested jointly by the petitioner and respondents
and one each by each of them. Moreover, the transfer of the hearing to March 16, 17 and 20, 1961 resulted from petitioner’s own motion for
consolidation of the criminal and civil cases. Again, it was on
petitioner’s motion, concurred in by counsel for respondents, that the
trial set for May 17, 1962 was moved to August 15, 1962. Any
suggestion, therefore, that the respondents were singularly and
primarily to blame for the long drawn Munition would not he quite
accurate.

To be sure, We reject the charge of grave abuse of discretion. We
have not overlooked that the respondent Judge desisted from dismissing
the case outright. When he first called the case for trial and no
prosecutor appeared, he put off the hearing and waited for an hour to
give the Government lawyers time to appear. It was only after they
failed to appear the second time that he entered the order here
complained of. And even then, he did not dismiss the case motu proprio,
although he was possessed of the prerogative so to do; he decreed the
dismissal only in resolution of the defendant’s motion to that effect.

We further note that when the prosecutors went to see the respondent
Judge to explain their absence at the trial, the latter himself advised
the filing of a motion for reconsideration. All these are incompatible
with the concept of grave abuse which assumes that the power is
exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and it must be so patent and gross as to amount to
an evasion of positive duty or to a virtual refusal to perform the duty
enjoined or to act at all in contemplation of law. (Tavera-Luna Inc., vs. Nable, 67 Phil. 340; Alafriz vs. Nable, 72 Phil. 278)

In addition, there is yet another reason why the charge of grave
abuse of discretion cannot be sustained. The petitioner has not really
satisfactorily explained its failure to appear.

Petitioner’s main explanation is that the notice of hearing never
reached its counsel, Prosecutor Pañganiban, “because he has been
Associate Commissioner of Immigration and after his recall from said
office, he was reassigned to the Central Bank of the Philippines on
July 6, 1962.” Furthermore, it is claimed that Prosecutor Pañganiban
“has always been of the impression that the joint trial of the criminal
and civil cases abovementioned is set for September 17, 1962.”

First of all, this Court cannot give serious consideration to the
plea that the notice of hearing never reached the petitioner.
Petitioner expressly admits that a copy of the said notice was served
at and received by the “Records Division of the Department of Justice
on July 17, 1962.” Consequently, it is of no moment whatsoever that it
did not eventually reach its counsels. For service to and receipt by
the Records Division, an agent-office of the petitioner, is
unquestionably due service to the petitioner. The fact that it was
thereafter lost, misplaced or forgotten can only be blamed on the
petitioner, and definitely not on the respondent Judge nor on the
respondents herein. Especially so when its Records Division had
practically a full month to transmit it to its counsels herein.

Secondly, the designation of Prosecutor Pañganiban to the Bureau of
Immigration and his subsequent detail to the Central Bank do not seem
to have any relevance to his failure to receive the notice of hearing.
For while it is really on record that he was so assigned to the Bureau
of Immigration on January 23, 1962, it is also recorded that by June,
1962, the assignment had ended and he had returned to the Prosecution
Division of the Department of Justice. Undoubtedly, therefore, when the
notice of hearing was served on July 17, 1962, Prosecutor Pañganiban
was already back in the Department. Too, although during the period
between July 7, 1962 and August 15, 1962 then, he still was officially
with the Prosecution Division he was handling Central Bank Cases, the
fact was, even of the Department of Justice. All these dates and
circumstances considered, therefore, there should be no difficulty
assessing the correctness of our view that petitioner’s failure to
appear at the trial has been unsatisfactorily explained.

We fail to see either how Prosecutor Pañganiban could have been of
the impression that the trial date was September 17, 1962. It was upon
petitioner’s own motion of January 2?,, 1962, on the ground that the
prosecutors assigned thereto have been given additional assignments and
were therefore very busy, that tlic trial date was transferred to
August 15, 1962. True, Prosecutor Pañiganiban was then absent when the
motion of January 23, 1962 was made and that it was Prosecutor Cenzon
who made the motion, but nevertheless, the petitioner cannot excuse
itself from the failure of Fiscal Cenzon to notify Prosecutor
Pafiganiban of the renewed hearing date. Both Fiscals Cenzon and
Pañganiban have been collaborating on the, case since its inception.
There was no reason why the postponement to August IB was neither
annotated in the expediente of this case for Prosecutor Pañiganiban to
see nor made known to him. Besides, there were not just the two of them
prosecuting this case. The City Fiscal’s Office of Manila and the
Central Bank each had their own prosecutor collaborating with the
Department of Justice in all the previous antecedents of this case. It
certainly could not have been diligence which caused them all to be so
uncoordinated even in the matter of the correct trial date. It is
significant to note that as against their collective misreading of the
true trial schedule, there was a prosecution witness who promptly
reported for trial on August 15, 1962.

The second issue is the move fundamental. May the respondents now
plead double jeopardy against the reinstatement of Criminal Case No.
45717?

The petitioner denies Hint the respondents can so invoke the
protection of the double jeopardy rule because, first it was they
themselves who moved for the dismissal, and second, because the
dismissal was expressly decreed to be “provisional”. ‘

On the other hand, the respondents contend that the dismissal was an
acquittal within the meaning of Sec. 9, Rule 113 of the former Rules of
Court (now Rule 1171 Sec. 9) because it was ordered subsequent to
arraignment by n competent court and upon a valid information.
Furthercmore, they urge that the qualification of the dismissal into
“provisional” is of no legal consequence since it was beyond the
respondent Judge’s power to do.

As indicated earlier, We find for respondents again.

In asserting that Criminal Case No. 45717 may still be reinstated,
the petitioner adopts the ruling once followed by this Court to the
effect that a dismissal upon the defendant’s own motion is a dismissal
consented to by him and, consequently “will not be a bar to another
prosecution for the same offense, because, his action having the case
dismissed constitutes a waiver of his constitutional right or
privilege, for the reason that he thereby prevents the court from
proceeding to the trial on the merits and rendering a judgment of
conviction against him.” (People vs. Salico, 84 Phil. 722.) But, this authority has long been abandoned and the ruling therein expressly repudiated.

Thus, in the case of People vs. Robles, 105 Phil. 1016, citing People vs. Bangalao, 94 Phil., S54; People vs. Diaz, 94 Phil., 714; People vs. Albano, 97 Phil., 28; and People vs. Ferrer, 100 Phil., 124, We said:

“* * * In reaching the above conclusion, this Court
has not overlooked the ruling in the case of People t«. Salico, 47 Off.
Gaz., 4765, to the effect that a dismissal upon defendant’s motion will
not be a bar to another prosecution for the same offense ns said
dismissal was not without the express consent of the defendant, which
ruling the prosecution now invokes in support of its appeal; but
said ruling it not vow contrnllinij, having heen modified or abandoned
in subsequent cnaea wherein this Court mttamed the theory of double
jeopardy despite the fact that the dismissal was secured upon motion of
the accused.” (Italics supplied.)

Also, the rule that a dismissal upon defendant’s motion will not be
a bin- to another prosecution for the same offense as said dismissal is
not without the express consent of the defendant, has no application to
a case where the dismissal, as here, is predicated on the riplit of a
defendant to a speedy trial. (People vs. Tacneng, et al., G. R. No.L-12082, April 30, 1959.)

The petitioner nest contends that the qualification of the dismissal
into “provisional” removes i from the protective mantle of the double
jeopardy rule for the said rule contemplates a definite or
unconditional termination of the case.

Petitioner’s formulation of the rule is correct but irrelevant. A
conditional, provisional, or without-prejudice dismissal admittedly
cannot be the legal basis for a claim to the protection of the double
jeopardy rule. The issue in this case, however, is not the validity of
that proposition. Rather, the issue is whether the qualification
notwithstanding, the dismissal entered on August 15, 1962 was definite
or without prejudice.

In the case of People vs. Diaz, supra, March 10, 1954, this
Court ruled that the dismissal of a case upon motion of the defense for
failure of the fiscal to be present on the day of trial constitutes a
bar to a subsequent prosecution of the accused for the same offense.
Again, in the case of People vs. Labatete, 107 Phil., 697, We said:

“We again call attention to the fact that judges
should be careful in the use of the term ‘dismissal’ nnd not use the
term fn cases where there has been trial on the merits and the conrt
finds that the evidence is insufficient, In which case the judgment
that should be entered is one of acquittal, not merely dismissal. Even
where the fiscal fails to prosecute and the judge dismisses the case,
the termination is not real dismissal but acquittal because the
protecution failed to prove the case when the time therefor came.” (Italic supplied.)

Considering the foregoing jurisprudence, therefore, We can only
conclude that the dismissal here complained of was not truly a
“dismissal” but an acquittal. For it was entered upon the defendants’
insistence on their constitutional right to speedy trial and by reason
of the prosecution’s failure to appear on the date of trial.

If, therefore, the qualification by the respondent Judge of the
dismissal into “provisional” has any consequence in law, it is what We
expressed in the case of Gandicela vs. Lutero, 88 Phil. 299, to wit:

“* * * Courts have no discretion to determine or
characterize the legal effects of their orders or decisions, unless
expressly authorized to do so as provided for in Rule 30 of the Ruins
of Court. The addition of such words ‘witliout prejudice’,
‘provisionally’ or ‘definitely’ to their order or decision would be
mere surplusage if the legal effect under the law is othervnse, because
courts cannot amend the law. So it is not for the court, to state in
the order or decision that the case ia dismissed either definitely or
without prejudice.” (Italics supplied.)

We reiterated in the case of People vs. Diaz, supra, March 30, 1954, the above doctrine. Then, We said:

“Here the prosecutor 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. The case was Bet for
hearing twice and the prosecution without asking for postponement or
giving any explanation just failed to appear. So the dismissal of
the case, though at tlte instance of the defendant Dinz, may according
to what we said in the Gandicela case,, be regarded as an acquittal.” (Italics supplied.)

In view of all the foregoing, We hold that a reinstatement of this
case would operate to violate the respondents-defendants’ right against
double jeopardy. And having failed to establish grave abuse of
discretion against the respondent Judge herein, this petition is
dismissed, costs de oficio. So ordered.

Bengzon, C. J., Bautista Angelo, Reyes, J. B. L., and Paredes, JJ., concur.
Makalintal, J., votes of dismissal on the first ground.