ManilaSECOND
DIVISION
GENEROSO
ESMEÑA and ALBERTO ALBA,
Petitioners,
G. R. No. L-54110
February 20, 1981
-versus-
JUDGE
JULIAN B. POGOY, City Court of Cebu
City,
Branch III, PEOPLE OF THE PHILIPPINES
and RICARDO B. TABANAO, as Special
Counsel,
Office of the City Fiscal, Cebu City,
Respondents.
R
E S O L U T I O N
AQUINO, J.:
This case poses
the issue of whether the revival
of a Grave Coercion case which was provisionally dismissed [after the
accused
had been arraigned] because of complainant's failure to appear at the
trial,
would place the accused in double jeopardy, considering their
constitutional
right to have a speedy trial.
Petitioners Generoso Esmeña and
Alberto
Alba and their co-accused, Genaro Alipio, Vicente Encabo and Bernardo
Villamira,
were charged with Grave Coercion in the city court of Cebu City for
having
allegedly forced Reverend Father Tomas Tibudan of the Jaro Cathedral,
Iloilo
City to withdraw the sum of five thousand pesos from the bank and to
give
that amount to the accused because the priest lost it in a game of
cards.
The case was
calendared on October 4, 1978 presumably
for arraignment and trial. Upon the telegraphic request of Father
Tibudan
the case was reset on December 13, 1978. Because Esmeña
and
Alba were not duly notified of that hearing, they were not able to
appear.
The two pleaded not guilty at their arraignment on January 23, 1979. No
trial was held after the arraignment because complainant Father Tibudan
requested the transfer of the hearing to another date.cralaw:red
In the meantime,
the fiscal lost his record of
the case. So, the hearing scheduled on June 18, 1979 was cancelled at
his
instance. On that date, respondent judge issued an order setting the
trial
"for the last time on August 16, 1979, at 8:30 o'clock in the morning."
[p. 21, Rollo].cralaw:red
When the case was
called on that date, the fiscal
informed the court that the private prosecutor received from
complainant
Father Tibudan a telegram stating that he was sick. The counsel for
petitioners
Esmeña and Alba opposed the cancellation of the hearing. They
invoked
the right of the accused to have a speedy trial.cralaw:red
Their counsel
told the court: "we are now invoking
the constitutional right of the accused to a speedy trial of the
case.
We are insisting on our stand that the case be heard today; otherwise,
it will [should] be dismissed on the ground of invoking (sic)
the
constitutional right of the accused particularly accused Alberto Alba
and
Generoso Esmeña [pp. 50 and 52, Rollo].cralaw:red
Respondent judge
provisionally dismissed the case
as to the four accused who were present because it "has been dragging
all
along and the accused are ready for the hearing" but the fiscal was not
ready with his witness. The court noted that there was no medical
certificate
indicating that the complainant was really sick. The case was continued
as to the fifth accused who did not appear at the hearing. His arrest
was
ordered [p. 23, Rollo].cralaw:red
Twenty-seven days
later, or on September 12, 1979,
the fiscal filed a motion for the revival of the case. He attached to
his
motion a medical certificate under oath attesting to the fact that
Father
Tibudan was sick of influenza on August 16, 1979.cralaw:red
The fiscal cited
the ruling that a provisional
dismissal with the conformity of the accused lacks the impress of
finality
and, therefore, the case could be revived without filing of a new
information
[Lauchengco vs. Alejandro, L-49034, January 31, 1979, 88 SCRA
175].
The accused did not oppose the motion. Respondent judge granted it in
his
Order of October 8, 1979 [p. 26, Rollo].cralaw:red
On October 24,
1979, Esmeña and Alba filed
a motion to dismiss the case on the ground of double jeopardy. They
pointed
out that they did not consent to the provisional dismissal of the case.
Hence, the provisional dismissal amounted to an acquittal which placed
them in jeopardy. Its revival would place them in double jeopardy.cralaw:red
The fiscal
opposed the motion. He called the court's
attention to the fact that Father Tibudan had appeared in court several
times but the hearing was not held. The court denied the motion to
dismiss.
That order denying the motion to dismiss is
assailed
in this special civil action of certiorari. The Solicitor General
agrees
with the petitioners that the revival of the case would place the
accused
in double jeopardy since the provisional dismissal of the case without
their consent was in effect an acquittal.cralaw:red
The rule on
double jeopardy [non bis in idem
or not twice for the same] is found in Section 22, Article IV
Bill
of Rights of the Constitution which provides that "no person shall be
twice
put in jeopardy of punishment for the same offense." This is
complemented
by Rule 117 of the Rules of Court which provides as follows:
Sec. 9. Former conviction or acquittal
or
former jeopardy. - When a defendant shall have been convicted or
acquitted,
or the case against him dismissed or otherwise terminated without the
express
consent of the defendant, by a court of competent jurisdiction, upon a
valid complaint or information or other formal charge sufficient in
form
and substance to sustain a conviction, and after the defendant had
pleaded
to the charge, the conviction or acquittal of the defendant or the
dismissal
of the case shall be a bar to another prosecution for the offense
charged,
or for any attempt to commit the same or frustration thereof, or for
any
offense which necessarily includes or is necessarily included in the
offense
charged in the former complaint or information.
In order that
legal jeopardy may exist, there should
be [a] a valid complaint or information; [b] before a court of
competent
jurisdiction; and [c] the accused has been arraigned and has pleaded to
the complaint or information.
When these three
conditions are present, the acquittal
or conviction of the accused or the dismissal or termination of the
case
without his express consent constitutes res judicata and is a
bar
to another prosecution for the offense charged, or for any attempt to
commit
the same or frustration thereof, or for any offense which necessarily
includes
or is included therein [4 Moran's Comments on the Rules of Court, 1980
Ed., p. 240].cralaw:red
Previous acquittal
[autrefois acquit],
previous conviction [autrefois convict] or the dismissal or
termination
of the case without his consent precludes his subsequent indictment for
the same offense as defined in Section 9.cralaw:red
In the instant
case, We hold that the petitioners
were placed in jeopardy by the provisional dismissal of the Grave
Coercion
case. That provisional dismissal would not have placed the petitioners
in jeopardy if respondent judge had taken the precaution of making sure
that the dismissal was with their consent. In this case, it is not very
clear that the petitioners consented to the dismissal of the case.cralaw:red
It is the
practice of some judges before issuing
an order of provisional dismissal in a case wherein the accused had
already
been arraigned, to require the accused and his counsel to sign the
minutes
of the session or any available part of the record to show the
conformity
of the accused or his lack of objection to the provisional dismissal.cralaw:red
The judge
specifies in the order of provisional
dismissal that the accused and his counsel signified their assent
thereto.
That procedure leaves no room for doubt as to the consent of the
accused
and precludes jeopardy from attaching to the dismissal.cralaw:red
The petitioners
were insisting on a trial. They
relied on their constitutional right to have a speedy trial. The fiscal
was not ready because his witness was not in court. Respondent judge,
on
his own volition, provisionally dismissed the case. The petitioners did
not expressly manifest their conformity to the provisional dismissal.
Hence,
the dismissal placed them in jeopardy.cralaw:red
Even if the
petitioners, after invoking their
right to a speedy trial, moved for the dismissal of the case and,
therefore,
consented to it, the dismissal would still place them in jeopardy. The
use of the word "provisional" would not change the legal effect of the
dismissal [Esguerra vs. De la Costa, 66 Phil. 134; Gandicela vs.
Lutero,
88 Phil. 299].cralaw:red
If the defendant
wants to exercise his constitutional
right to a speedy trial, he should ask, not for the dismissal, but for
the trial of the case. After the prosecution's motion for postponement
of the trial is denied and upon order of the court the fiscal does not
or cannot produce his evidence and, consequently, fails to prove the
defendant's
guilt, the court upon defendant's motion shall dismiss the case, such
dismissal
amounting to an acquittal of the defendant. [4 Moran's Comments on the
Rules of Court, 1980 ed., p. 202, citing Gandicela vs. Lutero, 88 Phil.
299, 307 and People vs. Diaz, 94 Phil. 714-717].cralaw:red
The dismissal of
a criminal case upon motion of
the accused because the prosecution was not prepared for trial since
the
complainant and his witnesses did not appear at the trial, is a
dismissal
equivalent to an acquittal that would bar further prosecution of the
defendant
for the same offense [Salcedo vs. Mendoza, L-49375, February 28, 1979,
88 SCRA 811; Lagunilia vs. Hon. Reyes, etc. and Motas, 111 Phil. 1020
citing
People vs. Tacneng, 105 Phil. 1298 and People vs. Robles, 105 Phil.
1016.
See Taladua vs. Ochotorena, L-25595, February 15, 1974, 55 SCRA 528;
Acebedo
vs. Sarmiento, L-28025, December 16, 1970, 36 SCRA 247; Baesa vs.
Provincial
Fiscal of Camarines Sur, L-30363, January 30, 1971, 37 SCRA 437; People
vs. Cloribel, 120 Phil. 775; People vs. Abaño 97 Phil. 28;
People
vs. Labate, 107 Phil. 697].cralaw:red
WHEREFORE, the
Order of respondent Judge dated
October 8, 1979 reviving the criminal case against the petitioners, and
his Order of December 14, 1979, denying petitioners' Motion to Dismiss,
are reversed and set aside. No costs.cralaw:red
SO ORDERED.cralaw:red
Barredo,
Concepcion Jr., Abad Santos, and De Castro,
JJ., concur. |