GREGOEIO K. KALAW, PETITIONER, VS. SEGUNDO APOSTOL, PROVINCIAL FISCAL OF SAMAR, AND CELEDONIO ALCAZAE, JUSTICE OF THE PEACE OF CALBAYOG, SAMAR, RESPONDENTS.

The petitioner, invoking the doctrine laid down in the case of Conde vs.
Rivera and Unson (45 Phil., 650), instituted this proceeding to compel
the justice of the peace of Calbayog, Samar, to dismiss criminal case
No. 10656, and the fiscal of said province and said justice of the
peace to abstain permanently from proceeding with the case in question
and, lastly, that the fiscal may refrain from further attempts to
prosecute him for any crime as a result of the same facts. At the
instance of the petitioner a writ of preliminary injunction was issued
requiring the respondents, until further orders, to abstain from
proceeding with the criminal case in question.

On January 21, 1935, the acting chief of police of Calbayog,
Province of Samar, filed a complaint in the justice of the peace court
of said municipality against the petitioner, charging him with the
crime of frustrated murder, giving rise to criminal case No. 10499. The
petitioner’s arrest was ordered and he filed a bond of P10,000 and
waived the preliminary investigation after having pleaded not guilty.
The respondent justice of the peace, on January 22, 1935, entered an
order stating the opinion that the petitioner was guilty of the crime
imputed to him, and forwarded the record of the case to the Court of
First Instance of the province where it was docketed as criminal case
No. 9531. On the 28th of said month, the respondent fiscal filed an
information in the same case, charging the petitioner, not with the
crime of frustrated murder, but with that of frustrated homicide. The
trial of the case was set for the first time for August 21, 1935 (for
the 20th of said month, according to the fiscal), at Calbayog. Upon
petition of the private prosecutor, seconded by the fiscal, but without
the knowledge or consent of the petitioner or of his attorney, the
court, in an order of August 12th of said year, acceded to the motion
for postponement and transferred the trial until further assignment. On
April 22, 1936, the private prosecutor asked that the case again be set
for trial during the special sessions in May, at Catbalogan. The
attorney for the petitioner opposed the motion alleging that it would
be impossible for him to appear because in said month he already had
other urgent engagements which he could not abandon, and asked that the
trial be set for the ordinary court sessions during the month of
November, at Catbalogan. The trial was set for June 21, 1936, but the
court cancelled the entire calendar for said month and the case was not
tried. Once more the trial of the case was set for August 21, 1936. On
the 17th of said month, the court denied the private prosecutor’s
motion for another postponement thereof. When the case was called for
trial on August 21,1936, the respondent fiscal appeared and asked for
the postponement of the trial on the ground that it had been so asked
by the private prosecutor who, together with the offended party, was
absent, stating that he did not have available the evidence for the
prosecution. The petitioner and his attorney, who, proceeding from
Manila, had appeared, opposed the new motion for postponement and asked
for the dismissal of the case. The court, in an order of said date,
denied the motion for postponement and, before the petitioner could
plead to the information, dismissed the case, with costs de oficio
and cancellation of the bond filed by the petitioner. On December 8,
1936, after the lapse of more than three months from the date of the
dismissal of the case, and more than one year and ten months from the
filing of the first information, the respondent fiscal filed a second
information for the same crime of frustrated homicide against the
petitioner, in the justice of the peace court of Calbayog, the case so
instituted having been docketed as No. 10656. The justice of the peace
court again ordered the arrest of the petitioner, fixing the bond that
should be filed by him at P2,000. The petitioner filed said bond and
the preliminary investigation was set for April 3, 1937. The petitioner
asked for the postponement of the hearing on preliminary investigation
for the purpose of enabling him to file a pleading questioning the
jurisdiction of the justice of the peace court to take cognizance of
the second information, and finally filed a pleading alleging that the
respondent fiscal could not again prosecute him for the same crime and
asking for the dismissal of the second information and the cancellation
of his bond. His petition having been denied, the petitioner instituted
this present proceeding.

1. It is inferred from the foregoing facts that the
   petitioner was not put in jeopardy of conviction for the crime of
   frustrated homicide, described in the first information filed by the
   fiscal, for the reason that criminal case No. 9531 was dismissed by the
   Court of First Instance of Samar before the petitioner pleaded to said
   information (sec. 28, General Orders, No. 58). For this same reason,
   the petitioner does not invoke in his favor the defense of double
   jeopardy or claim that by virtue of said defense he cannot again be
   brought to trial for the same offense and upon the second information.
   The question before this court is whether or not the petitioner can
   again be prosecuted and tried by virtue of the second information filed
   by the respondent fiscal, charging him with the same crime and alleging
   the same facts stated in the first information.

The second paragraph of section 3 of the Jones Law, in force on the
date of the filing of the first information, provides as follows:

“‘That in all criminal prosecutions the accused
shall enjoy the right to be heard by himself and counsel, to demand the
nature and cause of the accusation against him, to have a speedy and
public trial, to meet the witnesses face to face, and to have
compulsory process to compel the attendance of witnesses in his behalf.”

Section 15, No. 7, of General Orders, No. 58, contains the same provision couched in the following terms:

“Sec. 15. In all criminal prosecutions the defendant shall be entitled:

* * * * * * *

“7. To have a speedy and public trial.”

And Article III, section 1, No. 17, of the Constitution of the
Commonwealth of the Philippines, in force on the dates of the dismissal
of criminal case No. 9531 of the Court of First Instance of Samar and
of the filing of the second information, provides:

“(17) In all criminal prosecutions the accused
shall be presumed to be innocent until the contrary is proved, and
shall enjoy the right to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have
a speedy and public trial, to meet the witnesses face to face, and to
have compulsory process to secure the attendance of witnesses in his
behalf.”

It is inferred from the above-quoted legal provisions that every
accused in a criminal case is entitled to have a speedy and public
trial. Speedy trial means a trial conducted according to the law of
criminal procedure and the rules and regulations, free from vexatious,
capricious, and oppressive delays (Burnett vs. State, 76 Ark., 295; 88 S. W., 956; 113 A. S. R., 94; Stewart vs. State, 13 Ark., 720; People vs. Shufelt, 61 Mich., 237; 28 N. W., 79; Nixon vs. State, 10 Miss., 497; 41 Am. D., 601; State vs. Cole, 4 Okl. Cr., 25; 109 P., 736; State vs. Caruthers, 1 Okl. Cr., 428; 98 P., 474; State vs.
Keefe, 17 Wyo., 227; 98 P., 122; 22 L. R. A. [N. S.], 896; 17 Ann.
Cas., 161). According to the admitted facts, it appears that the
petitioner was granted a partial trial of the case in the Court of
First Instance of Samar, only after more than one and a half years had
already elapsed from the date of the filing of the first information
and from the receipt of the case in said court, and after the trial of
the case had been postponed twice without his consent. To this may be
added the fact that the first postponement of the trial was clearly
unjustified because the alleged cause thereof consisted merely in the
personal convenience of the offended party and his attorney, the
former’s allegation to the effect that he was then ill not having been
sufficiently proved. It is true that the petitioner had asked that the
trial of the case be set for November, 1936, instead of May of said
year, but, aside from the fact that the reason alleged by him was
sufficiently strong, his attorney having been opposed to appearing
because of urgent engagements previously contracted by him, under which
circumstances he would have been defenseless had he been compelled to
go to trial, it appears that the trial was postponed by the court motu proprio,
having cancelled the entire judicial calendar prepared by the clerk of
court for the month of June. In view of these facts, this court holds
that the petitioner was deprived of his fundamental right to have a
speedy trial.

2. 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 (Conde vs. Rivera and Unson, supra; In the matter of Ford [1911], 160 Cal., 334; U. S. vs. Fox [1880], 3 Mont., 512).

3. The
   respondent fiscal alleges in his answer, by way of a defense, that he
   has asked for only one postponement of the trial and that, on the other
   hand, the petitioner has not urged the trial of the case. This court is
   of the opinion that the defense is without merit. 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. The promoter fiscal
   has charge of the prosecution of all public crimes and offenses, and
   such prosecution is under his control and direction (sees. 1681 and
   2465 of the Revised Administrative Code). For this reason, he is in
   duty bound to see to it that criminal cases are tried without
   unfounded, capricious, vexatious and oppressive delays, so that the
   courts may decide them on their merits and determine immediately
   whether the accused is guilty or not. The postponement of the trial
   sought and obtained by the private prosecution, with the consent and
   approval of the fiscal, is equivalent to a postponement asked for and
   obtained by the fiscal himself. The right to have a speedy trial is not
   understood to have been waived or abandoned by the accused when he or
   his attorney fails to urge the trial of the case. Such a waiver or
   abandonment may be presumed only when the postponement of the trial has
   been sought and obtained by the accused himself or by his attorney. The
   suspension of the trial set for June 21, 1936, cannot be attributed to
   the accused or to his attorney because the same was resolved by the
   court itself when it cancelled the entire calendar of trials prepared
   for said month. The practice of permitting the promotor fiscal, after
   filing informations, to be idle and to allow criminal cases instituted
   by him to remain inert in the files of the courts for a long or
   indefinite period of time and even for years, is a pernicious practice
   unjust to the accused. Such practice violates the fundamental right of
   the accused to have a speedy trial, is contrary to the public interest,
   and detrimental to the speedy administration of justice.

4. The
   respondent fiscal also alleges that, pursuant to section 161 of the
   Revised Administrative Code, as recently amended, the criminal case
   against the petitioner should have been set for trial during the month
   of September, 1936, in the municipality of Calbayog, because the
   sessions of the court in said municipality are held on the second
   Tuesday of said month every year. This defense is without merit
   because, according to said section, the Court of First Instance of
   Samar holds sessions in other months in different municipalities, and
   in Catbalogan, the capital, on the first Tuesday of the months of June
   and November of each year. There should not have been any obstacle to
   the trial of the case at the capital when in fact the trials set for
   August 21, 1935, June 21, and August 21, 1936, were to be held at
   Catbalogan. On the other hand, the fact that there was but one session
   at Calbayog each year should have influenced the definitive holding of
   the first trial set. Lastly, there was no reason to insist that the
   case be tried at Calbayog, because it appears that the accused never
   invoked such right but, on the contrary, he asked that the same be
   tried at Catbalogan.

For the foregoing reasons, the remedy applied for is granted,
criminal case No. 10656 of the justice of the peace court of Calbayog,
Samar, entitled “The People of the Philippine Islands vs.
Gregorio K. Kalaw, for the crime of frustrated homicide”, is
definitively dismissed, and the respondents are ordered henceforth to
abstain from prosecuting the petitioner for the same facts constituting
the same crime, with the costs of these proceedings to the respondent
fiscal. So ordered.

Avancena, C. J., Villa-Real, Abad Santos, Diaz, Laurel, and Concepcion, JJ., concur.