G.R. No.

L-30250 September 22, 1977

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant,

vs.
PABLO PILPA defendant-appellant.

Solicitor General Felix V. Makasiar, First Assistant Solicitor General Esmeraldo Umali and Solicitor
Eulogio Raquel-Santos for appellant.

Fulvio C. Pelaez and Estanislao Granados for appellee.

AQUINO, J.:

The prosecution appealed from the order of the Court of First Instance of Leyte, dismissing the second
information for frustrated murder against Pablo Pilpa on the ground that it would place him in double
jeopardy since the first information for frustrated murder against him was dismissed without his consent
after he had plead not guilty. The facts are as follows:

On April 19, 1967 the city fiscal of Tacloban City filed in the lower court against Pilpa the following
information for frustrated murder (Criminal Case No. 11935):

The undersigned City Fiscal of the City of Tacloban accuses Pablo Pilpa of the crime of
Frustrated Murder, committed as follows:

That on or about the 29th day of October 1966, in the City of Tacloban, Philippines, and
within the jurisdiction of this honorable Court, the said accused armed with a deadly
weapon (bolo), with treachery and evident premeditation, did then and there wilfully,
unlawfully and feloniously attack, and stab on REX MAGSAMBOL on his back, thereby
inflicting upon said Rex Magsambol stab wound which ordinarily would have caused the
death of said Rex Magsambol thus performing all the acts of execution which should
have produced the crime of murder as a conseuquence, but nevertheless did not produce
it by reason of causes independent of his will that is, by the timely and able medical
assistance rendered to Rex Magsambol which prevented his death.

Contrary to Article 248 in connection with Article 6 of the Revised Penal Code.

About two months later, or on June 15, Pilpa was arraigned. With the assistance of counsel, he plead not
guilty.

At the hearing in the morning of November 20, 1967 the prosecution moved in open court for the
dismissal of the case on the ground of supposed lack of jurisdiction because intent to kill was not specify
alleged in the information. The counsel tor the manifested that he had no objection to the dismissal as
may on that occasion:

Atty. Pelaez (counsel for the accused): May we get a categorical statement from the Fiscal's office that it
is formally asking for the dismissal of this case?

Fiscal Anover Yes, we are.

Atty. Lastrilla (Private Prosecutor): We are.

 Atty. Pelaez (Counsel for the accused): We have no objection.

Judge Elias B. Asuncion forthwith dictated an order stating that "upon petition of the private and public
prosecution for the of this case, without objection on the part of the accused, expressed through counsel,
the Court grants the motion and orders this case dismissed with costs de officio."

Evidently, the counsel for the accused, after leaving the courtroom and arriving at his office, had second
thoughts about his manifestation that he had no objection to the dismissal of the case. Cognizant of the
technicalities of double jeopardy, he realized that the dismissal should have the effects of former
jeopardy. To achieve that objective, he decided, to nullify his manifestation that he had no objection to the
dismissal.

So, in the afternoon of the same day, November 20, the a accused filed a manifestation signed by him
and his two lawyers, making of record his opposition to the dismissal of the case.

The fiscal and the private prosecutor were furnished with copies of that manifestation. Judge Asuncion
placed on it the word "Noted".

Not satisfied with that manifestation of opposition to the dismissal of the case, the counsel for the
accused on the following day, November 21, filed a motion for the reconsideration of the order of
dismissal. he argued that the lower court had jurisdiction over the case.

Judge Asuncion denied that motion in his order of November 25, 1967. No appeal was interposed from
that order of denial.

In the meantime, or on November 22 (two days after the issuance of the oder of dismissal), the city fiscal
filed a new information for frustrated murder against Pilpa (Criminal Case No. 12183). In that second
information the fiscal reproduced the wording of the first information and added the words "intent to kill"
and "vital portion".

On February 15, 1968 the accused filed a motion to quash the second information on the ground of
double jeopardy. The fiscal opposed the motion.

Judge Lope C. Quimbo in his order of April 5, 1968 (mentioned at the begininng of this ) granted the
motion. He reasoned out that the dismissal of the first information was without the consent of the accused
because of his manifestation opposing the dismissal. He noted that the court had jurisdiction over the
crime alleged in the first information and that the erroneous dismissal of a case on the ground of lack of
jurisdiction does not prevent the accused from having been placed in jeopardy (People vs. Duran, Jr., 107
Phil. 979, where the dismissal was without the consent of the accused).

The issue is whether the second information would place the accused twice in jeopardy of being punished
for the crime of frustrated murder.

An information may be quashed on the ground "that the defendant has been previously convicted or in
jeopardy of being convicted, or acquitted of the offense charged" (Sec. 2[h], Rule 117, Rules of Court).
"No person shall be twice put in jeopardy of punishment for the same offense" (Sec. 22, Art. IV,
Constitution).

The prohibition against double jeopardy is an ancient and well established doctrine, "a sacred principle of
criminal jurisprudence, and is a part of the universal law of reason, justice, and conscience", It is founded
on the maxim non bis in Idem (not twice for the same) or nemo debet bis vexari pro una et eadem
causa (no one ought to be twice vexed for one and the same cause) (22 C.J.S. 616). The prohibition is
implemented in the following provisions of Rule 117:
 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 has 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 charge, or for any attempt to committ 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.

Under section 9 of Rule 117 the protection against double jeopardy may be invoked in cases of (a)
previous acquittal (autrefois acquit), (b) conviction (autrefois convict) of the same offense, or (c) when the
case against the accused has been dismissed or otherwise terminated without his express consent.

In any of these three cases, in order that there be former kill jeopardy, it is in the first case that (a) there
was a valid competent or information (b) before a court of competent jurisdiction, (c) and that the had
been and had entered his plea. When these conditions or requotes 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 carry offense which necessarily includes or is included therein. (4
Moran's Comments on the Rules of Court, 1970 Ed., pp. 242-243).

In synthesis, there is former jeopardy when in the first case there was a valid COMPLAINT of information
filed in a court of competent jurisdiction and, after the defendant had pleaded to the charge, he was
acquitted or convicted or the case against him was terminated without his express consent (People vs.
Consults, L-41251, March 31, 1976, 70 SCRA 277; People vs. Ylagan, 58 Phil. 851, 853).

It is conceded that the first information is valid. The absence of an averment as to intent to kill was not a
fatal defect because the intent to kill may be inferred from the allegation that the stab wound would have
caused the death of the victim. (People vs. Padios 97 Phil. 19, 21-22).

As already stated, after the accused Pilpa had entered his plea, the case was terminated. The question is
whether the termination of the case was without his express consent and is a bar to his prosecution for
frustrated murder under the second information.

We hold that the oral manifestation at the hearing made by the counsel of the accused that he had no
objection to the dismissal of the case was equivalent to a declaration of conformity to its dismissal or to
an express consent to its termination within the meaning of section 9 of Rule 117. He could not thereafter
revoke that conformity since the court had already acted upon it by dismissing the case. He was bound by
his counsel's assent to the dismissal (People vs. Romero, 89 Phil. 672; People vs. Obsania, L-24447,
June 29, 1968, 23 SCRA 1249, 1269-70).

In Pendatum vs. Aragon, 93 Phil. 798, 800 the prosecution filed a motion for the provisional dismissal of
the complaints for physical injuries and slander against Aida F. Pendatum At the bottom of that motion,
her lawyer wrote the words: "No objection". The court granted the motion.

Later, the cases were revived. The accused contended that the revival of the cases would place her in
double jeopardy. That contention was rejected because the provisional dismissal did not place the in
jeopardy. There was no jeopardy in such dismissal because the words "No objection" conveyed the Idea
of full concurrence with the dismissal and was equivalent to saying "I agree."

WHEREFORE, the order of dismissal under appeal is reversed and set aside. The trial court is directed to
arraign and try the accused. Costs against the accused. SO ORDERED.
G.R. No. L-43790 December 9, 1976

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
THE CITY COURT OF SILAY, ERNESTO DE LA PAZ, PACIFICO SENECIO, JR. y SEBUSA, ROMEO
MILLAN y DELEJERO and WILFREDO JOCHICO y MAGALONA, respondents.

Acting Solicitor General Hugo E. Gutierrez, Jr., Assistant Solicitor General Octavio R. Ramirez and
Solicitor Enrique M. Reyes for petitioner.

Hilado, Hagad & Hilado as private prosecutors.

Benjamin Z. Yelo, Sr. for private respondent Romeo Millan.

Ciceron Severino and Emeterio Molato for other private respondents.

MUOZ PALMA, J.:

This is a Petition for Review jointly filed by the City Fiscal of Silay City, Marcelino M. Paviera, and the Law
Offices of Hilado, Hagad & Hilado, the latter as private prosecutors, praying that an order of the City Court
of Silay dated December 19, 1975, issued by Judge Reynaldo M. Alon, dismissing Criminal Case No.
7124-C entitled "People vs. Ernesto de la Paz, et al." be set aside and that respondent court be directed
to continue with the trial of the aforementioned case. *

In compliance with Our Resolution of July 21, J976, the Office of the Solicitor General filed its comment
on October 13, 1974, joining the Petitioner's prayer that the order of respondent court of December 19,
1975, be reversed and the case remanded for further proceedings.

The record shows that private respondent herein, Ernesto de la Paz, Pacifico Senecio, Jr. y Sebusa
Romeo Millan y Delejero and Wilfredo Jochico y Magalona, were charged with "falsification by private
individuals and use of falsified document" under Par. 2, Article 172 of the Revised Penal Code, alleged to
have been committed as follows.

That sometime on January 4, 1974, at Hawaiian-Philippine Company, Silay City,

Philippines, and within the jurisdiction of this Honorable Court, the accused Ernesto de la
Paz, overseer of Hda. Malisbog belonging to Deogracias de la Paz, and the other three
accused, scalers of Hawaiian-Philippine Company, with intent of gain and to cause
damage by conniving, cooperating and mutually helping one another did then and there
wilfully, unlawfully and feloniously alter or falsify the sugar cane weight report card or
"tarjeta", a private document showing the weight of sugarcane belonging to Deogracias
de la Paz, particularly those loaded in cane cars Nos. 1686, 1743 and 1022 by increasing
the total actual weight of 22.005 tons to 27.160 tons for said three cane cars, thereby
causing damage to the central and other cane planters of about 8.68 piculs of sugar
valued in the total amount of P618.19, to the damage and prejudice of Hawaiian Central
and other sugarcane planters adhered thereto in the aforestated amount of P618.19.

IN VIOLATION OF PARAGRAPH 2, ART. 172, R.P.C. (p. 14, rollo) Evidence was
presented by the prosecution showing that:

On January 4, 1974, accused Pacifico Senecio, Jr. Romeo Millan and Wilfredo Jochico
who were then scalers on duty that day at the Hawaiian-Philippine Company, weighed
 cane cars Nos. 1743,1686 and 1022 loaded with sugar canes belonging to Deogracias
de la Paz. The weight of the sugar canes were reflected on the weight report cards (H.P.
Co. Lab. Form No. 1) or "tarjetas" showing that for car No. 1743 8.920 tons (Exhibit
"B-1"), for Car No. 1686 8.970 tons (Exhibit "C-1") for car No. 1022 8.875 tons or a
total weight of 26.765 tons. However, they did not submit said "tarjetas" to the laboratory
section, instead, they substituted "tarjetas" showing a heavier weight for car No. 1743
10.515 tons (Exhibit "B"), car No. 1686 10.525 tons (Exhibit "C") and car No. 1022
10.880 tons (Exhibit "D") with a total of 27.160 tons or an additional of 5.155 tons. These
were the "tarjetas" submitted to the laboratory section. Exhibits "B-1", "C-1" and "D-1"
were taken later by the prosecution witness PC Sgt. Rogelio Sevilla from the wife of
Pacifico Senecio, Jr. (pp. 15-16, rollo, Order of December 19, 1975).

After the prosecution had presented its evidence and rested its case, private respondents moved to
dismiss the charge against them on the ground that the evidence presented was not sufficient to establish
their guilt beyond reasonable doubt. Acting on this motion, respondent court issued its order of December
19, 1975, dismissing the case with costs de oficio principally on the ground that the acts committed by the
accused as narrated above do not constitute the crime of falsification as charged. Reasoning out his
order, Judge Alon said:

To be convicted under paragraph 2, Article 172, an accused should have committed one
of the eight acts of falsification enumerated under Article 171, R.P.C. Is the act of
substituting the "tarjetas" with higher cane weight for the ones with lower cane weight fall
under one of the acts enumerated. After going over the acts of falsification one by one
and trying to correlate the act of the accused with each of them, the Court finds that the
said act could not possibly be placed under any of them. Inclusio unius est exclusio
alterius, the inclusion of one is the exclusion of the other. Following this maxim, we
cannot just include the act of substitution as among those acts enumerated under Article
171. And, under the rule of statutory construction, penal laws should be liberally
construed in favor of the accused. This Court, therefore, is of the opinion that the
accused have not committed the act of falsification with which they are charmed.
Obviously, it follows that there could be no use of falsified document since there is no
falsified document.

The imputed acts of the accused in making the substitution, if true, is repugnant to the
human sense of right and wrong. But, however reprehensible the act may be, it is not
punishable unless there is a showing that there is a law which defines and penalizes it as
a crime. Unless there be a particular provision in the Penal Code or Special Law that
punishes the act, even if it be socially or morally wrong, no criminal liability is incurred by
its commission. (U.S. vs. Taylor, 28 Phil. 599)

xxx xxx xxx

Wherefore, the motion is hereby granted and the case dismissed with costs de oficio ...
(pp. 17-18, rollo)

In their comment on this Petition, private respondents claim that there was no error committed by
respondent court in dismissing the case against them for insufficiency of evidence and that for this Court
to grant the present petition would place said respondents in double jeopardy.

On the other hand, the People asserts that the plea of double jeopardy is not tenable inasmuch as the
case was dismissed upon motion of the accused, and the dismissal having been made with their consent,
they waived their defense of double jeopardy, citing various cases in support thereof. (pp. 58-59, rollo,
Comment of the Solicitor General)
We disagree with the position taken by the Acting Solicitor General Hugo E. Gutierrez, Jr. that the plea of
double jeopardy is not available in the instant situation.

It is true that the criminal case of falsification was dismissed on motion of the accused; however, this was
a motion filed after the prosecution had rested its case, calling for an appreciation of the evidence
adduced and its sufficiency to warrant conviction beyond reasonable doubt, resulting in a dismissal of the
case on the merits, tantamount to an acquittal of the accused.

Thus, in People vs. Acosta, L-23657, October 29, 1968, this Court dismissed an appeal taken by
the People against an order of the Court of First Instance of Ilocos Norte dismissing a criminal case upon
motion of the accused after the presentation of evidence by the prosecution as such appeal if allowed
would place the accused in double jeopardy. There the accused was charged with estafa by obtaining
from Pedro Miguel a ring valued at P16,500.00 and issuing a check for $5,000.00 in Payment thereof
which turned out later to be counterfeit to the damage and prejudice of said Pedro Miguel in the
aforementioned amount of P16,500.00. After the presentation of the evidence of the prosecution, the
accused moved to dismiss the case on the ground that the evidence showed that the ring belonged to
somebody else, Banang Jaramillo, and not to Pedro Miguel as alleged in the information and that the
element of damage was absent. This motion was opposed by the Assistant Provincial Fiscal but
notwithstanding said opposition, the trial court dismissed the case on the ground that Pedro Miguel was a
mere agent of the true owner of the ring and therefore not the real offended party. The Assistant
Provincial Fiscal appealed to this Court, but the Solicitor General moved for the dismissal of the appeal
on the ground that it would place the accused in double jeopardy, and the Court agreed with the Solicitor
General, stating that it cannot be seriously questioned that the trial court had grievously erred in his
conclusion and application of the law, and in dismissing outright the case; however, the error cannot now
be remedied by an appeal because it would place the accused in double jeopardy. (per Eugenio Angeles,
J., 25 SCRA 823,826)

In the earlier case of Catilo vs. Hon. Abaya, May 14, 1954, petitioner Catilo was charged with murder
before the Court of First Instance of Batangas presided by respondent Judge. Petitioner was arraigned
and after the prosecution had rested its case petitioner moved for the dismissal of the charge for
insufficiency of evidence. This motion was granted by the Judge and his order was promulgated in open
court to the accused. Later in the day, Judge Abaya set aside his order of dismissal motu proprio and
scheduled the case for continuation of the trial on specific dates. A motion for reconsideration was filed by
the defense counsel but because respondent Judge failed to take action, the accused filed an original
action for certiorari with this Court. In granting relief to petitioner Catilo, the Court, through Justice
Marcelino R. Montemayor, held:

From whatever angle we may view the order of dismissal Annex "A", the only conclusion
possible is that it amounted to an acquittal. Whether said acquittal was due to some
"misrepresentation of facts" as stated in the order of reconsideration, which alleged
misrepresentation is vigorously denied by the defendant-petitioner, or to a
misapprehension of the law or of the evidence presented by the prosecution, the fact is
that it was a valid order or judgment of acquittal, and thereafter the respondent Judge
himself advised the accused in open court that he was a free man and could not again be
prosecuted for the same offense.

The inherent powers of a court to modify its order or decision, under section 5, Rule 124
of the Rules of Court claimed for the respondent to set aside his order of dismissal, does
not extend to an order of dismissal which amounts to a judgment of acquittal in a criminal
case; and the power of a court to modify a judgment or set it aside before it has become
final or an appeal has been perfected, under section 7, Rule 116 of the Rules of Court,
refers to a judgment of conviction and does not and cannot include a judgment of
acquittal.
 In conclusion, we hold that to continue the criminal case against the petitioner after he
had already been acquitted would be putting him twice in jeopardy of punishment for the
same offense. ... (94 Phil. 1017)

The cases cited by the Acting Solicitor General are not applicable to the situation now before Us because
the facts are different. In Co Te Hue vs. Judge Encarnacion , 94 Phil. 258, the case was dismissed
provisionally with the express consent of the accused. The same occurred in People vs. Togle, 105 Phil.
126 there was a provisional dismissal upon express request of the counsel for the accused, In Gandicela
vs. Lutero, 88 Phil. 299, it was the accused who asked for the dismissal of the case because the private
prosecutor was not in court to present the prosecution's evidence and the Municipal Court of the City of
Iloilo dismissed the case without prejudice to the refiling of the charge against the accused. 1 In People
vs. Romero, 89 Phil. 672, the dismissal was made at the instance of the accused because the
prosecution was also not ready with its evidence. The case of People vs. Belosillo, 9 SCRA 836, is not
applicable either, because the order of dismissal of the Information was made before arraignment, hence,
the accused was not yet placed in jeopardy of punishment for the offense charged.

In the case of the herein respondents, however, the dismissal of the charge against them was one on the
merits of the case which is to be distinguished from other dismissals at the instance of the accused. All
the elements of double jeopardy are here present, to wit: (1) a valid information sufficient in form and
substance to sustain a conviction of the crime charged, (2) a court of competent jurisdiction, and (3) an
unconditional dismissal of the complaint after the prosecution had rested its case, amounting to the
acquittal of the accused. The dismissal being one on the merits, the doctrine of waiver of the accused to a
plea of double jeopardy cannot be invoked.

It is clear to Us that the dismissal of the criminal case against the private respondents was erroneous.

As correctly stated in the Comment of the Acting Solicitor General, the accused were not charged with
substitution of genuine "tarjetas" with false ones. The basis for the accusation was that the accused
entered false statements as to the weight of the sugar cane loaded in certain cane cars in "tarjetas" which
were submitted to the laboratory section of the company. The act of making a false entry in the "tarjetas"
is undoubtedly an act of falsification of a private document, the accused having made untruthful
statements in a narration of facts which they were under obligation to accomplish as part of their duties-
Ernesto de la Paz, as overseer of Hda. Malisbog, and the other accused as scalers of the offended party,
the Hawaiian-Philippine Company, thereby causing damage to the latter.

However erroneous the order of respondent Court is, and although a miscarriage of justice resulted from
said order, to paraphrase Justice Alex Reyes in People vs. Nieto, 103 Phil, 1133, such error cannot now
be righted because of the timely plea of double jeopardy.

In Nieto, the background of the case is as follows: On September 21, 1956, an Information for homicide
was filed with the Court of First Instance of Nueva Ecija against Gloria Nieto who, upon arraignment
pleaded guilty to the charge but -notwithstanding that plea, the trial judge acquitted her on the Page 254
ground that although the accused was a minor "over 9 and under 15 years old" the Information failed to
allege that she acted with discernment. Thereafter the prosecution filed another Information for the same
offense stating therein that the accused Gloria Nieto was "a child between 9 and 15 years" and alleging in
express terms that she acted with discernment. The defense filed a motion to quash this second
Information on grounds of double jeopardy, and the trial court already presided by another Judge, Hon.
Felix V. Makasiar, now Justice of this Court, granted the motion. The prosecution appealed to this Court
from said order. In its Decision, the Court dismissed the appeal and sustained the order of then Judge
Makasiar, deploring that as a result of a mistaken view taken by the trial judge who acquitted the accused
Gloria Nieto despite her plea of guilty there was a miscarriage of justice which cannot be righted and
which leaves the Court no choice bat to affirm the dismissal of the second Information for reasons of
double jeopardy. 2
We cannot but express Our strong disapproval of the precipitate action taken by Judge Alon in dismissing
the criminal case against the private respondents at that stage of the trial. A thorough and searching
study of the law, the allegations in the Information, and the evidence adduced plus a more circumspect
and reflective exercise of judgment, would have prevented a failure of justice in the instant case. We
exhort Judge Alon to take into serious consideration what We have stated so as to avoid another
miscarriage of justice.

IN VIEW OF THE FOREGOING, We are constrained to DISMISS this Petition of the People. Without
pronouncement as to costs. Let copy of this Decision be entered in the personal file of Judge Reynaldo
Alon.

So Ordered
G.R. No. L-54110 February 20, 1981

GENEROSO ESMEA and ALBERTO ALBA, petitioners,

vs.
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.

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 Esmea 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 Esmea 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.

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).

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 Esmea
and Alba opposed the cancellation of the hearing. They invoked the right of the accused to have a speedy
trial.

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 Esmea (pp. 50 and 52, Rollo).

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).

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.
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 the 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).

On October 24, 1979, Esmea 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.

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.

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).

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.

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 place 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.
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.

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.

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.

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).

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).

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. Abao 97 Phil. 28; People vs. Labatete, 107
Phil. 697).

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. SO ORDERED.
EDUARDO CUISON, petitioner, vs. COURT OF APPEALS and THE PEOPLE OF THE
PHILIPPINES, respondents.

DECISION
PANGANIBAN, J.:

The constitutional proscription of double jeopardy is not violated by a Court of Appeals order
requiring the trial court to promulgate a decision sentencing the accused to imprisonment even if, earlier,
the same decision has been promulgated in regard only to the payment of the modified civil indemnity
arising from the same criminal act.Otherwise stated, the promulgation of only one part of the
decision, i.e., the liability for civil indemnity, is not a bar to the subsequent promulgation of the other part,
the imposition of the criminal accountability.

The Case

This is the gist of this Courts resolution of the petition for review on certiorari , assailing the
November 5, 1996 Decision[1] of the Court of Appeals[2] in CA-GR SP No. 41096. The dispositive portion
of the said Decision, which set aside the April 12, 1996 Resolution [3] of the Regional Trial Court of
Lingayen, Pangasinan, Branch 39,[4] reads as follows:
WHEREFORE, premises considered, the Resolution dated April 12, 1996 of the respondent
Judge is hereby SET ASIDE and he is ordered to set anew the promulgation of the decision of
the Court of Appeals affirming the judgment of conviction and sentencing the accused to serve
imprisonment for the duration stated in the decision of the said respondent Court dated February
7, 1989. The order for the payment of the civil liabilities has been promulgated earlier.
SO ORDERED.[5]
The RTC Resolution, set aside by the Court of Appeals, disposed:
WHEREFORE, in view of the foregoing considerations, the Court finds that the Urgent Motion to
Set Aside Promulgation filed by the accused thru counsel, is meritorious and accordingly, the
same is hereby granted.

The Facts

The undisputed facts of this case, as narrated by the Court of Appeals, are reproduced below:
On February 7, 1989, respondent Presiding Judge of the Regional Trial Court of Pangasinan
(Branch 39) rendered a Joint Decision in Criminal Cases Nos. L-3553 and L-3554, the
dispositive portion of which is as follows:
WHEREFORE, judgment is hereby rendered finding accused Eduardo Cuison guilty of
the crime of double homicide, beyond reasonable doubt and therefore sentences him to
suffer imprisonment from 6 years and 1 day of [p]rision [m]ayor as [m]inimum to 12
years and 1 day of [r]eclusion [t]emporal as [m]aximum, for each offense, with the
accessories provided by law and to pay the costs. Accused is also ordered to indemnify
the heirs of Rafael Sapigao the amount of P30,000.00 and the heirs of Rulo Castro also
the amount of P30,000.00 without subsidiary imprisonment in case of insolvency.
On appeal to the Court of Appeals, the said decision was affirmed with the modification that the
civil indemnity was increased to P50,000.00. The dispositive portion of said Decision of this
Court dated July 30, 1991 reads:
 PREMISES CONSIDERED, the joint decision appealed from is hereby MODIFIED by
ordering accused Eduardo Cuison to indemnify the heirs of Rafael Sapigao the amount
of P50,000.00 and the heirs of Rulo Castro also the amount of P50,000.00 without
subsidiary imprisonment in case of insolvency.
The accused elevated the decision on a petition for review docketed as G.R. Nos. 108985-86
but the Supreme Court denied the said petition on December 1, 1993.
The case was remanded to the Regional Trial Court of Pangasinan (Br. 39) for promulgation of
the decision. However, respondent Judge promulgated [on April 4, 1995] the decision of [the
Court of Appeals] only with respect to the modified civil liability of the accused but did not commit
the accused to jail to commence service of his sentence.
Asst. City Prosecutor Abraham L. Ramos II reported the matter to the Solicitor General and
requested that a motion for clarification be filed with this Court to clarify the decision dated July
30, 1991. On July 7, 1995, the Solicitor General filed a Motion to Clarify Decision. On August 17,
1995, [the Court of Appeals] rendered a Resolution which states in pertinent portions thereof:
In the dispositive portion of this Courts decision, We simply modified the appealed
decision of the court a quo in one respect only - the increase of the indemnity to be paid
by the appellant to the heirs of the victims from P30,000.00 to P50,000.00 as ruled in
various cases including that cited in Our decision, People vs. Sison, 189 SCRA 643,
646.
In view of the foregoing, it is ineluctable that the penalty imposed by the lower court was
not touched on at all by this Court especially in the light of [o]ur [o]bservation in the said
decision, as follows:

After a careful review of the evidence on records, this Court entertains no doubt as to the participation of
the accused-appellant in the shooting of Sapigao and Rulo Castro. The court a quo has expressed the
following findings in its decision, to which findings this Court accords the great weight and respect such
findings of the trial court are entitled to:

Conspiracy . . . was proven by the following circumstances:

xxx xxx xxx

The following circumstances showing the sequence of events, the mode or manner in which the offenses
were perpetrated taken together indicated that the assailants cooperated and helped each other in the
attainment of the same aim. (Memorandum, pp. 20-21) (CA Decision, pp. 14-16; Rollo, pp. 127-129)

Acting on the afore-cited motion to clarify decision, this Court hereby declares that this Court
had affirmed the decision of the court a quo with regard to the penalty of imprisonment imposed in the
said trial courts decision.

Respondent Judge then set the promulgation of the decision anew. The accused, however, filed
a Motion to Set Aside Promulgation on the following grounds:
1. That the judgment in said case was already promulgated on 4 April 1995 and
therefore there is nothing to promulgate anymore.
2. To pursue with [sic] the scheduled promulgation will violate the accuseds
constitutional right against jeopardy.
In a Resolution dated April 12, 1996, the respondent Judge granted the aforestated motion
holding:
Now, the question is: May the resolution of the Honorable Court of Appeals promulgated
on 17 August 1995 which clarified the dispositive portion of its original decision, be
considered as an amendment, alteration or modification of the decision? Here, we must
not forget the basic rule that in the execution of the judgment, it is the dispositive
portion of the decision which controls. We cannot also forget that, as already mentioned
above, we have already promulgated the said decision by reading to the accused the
dispositive portion, and that to the best of our knowledge, he had already complied
therewith by paying the damages which were awarded. It may be relevant at this point in
time, to cite the decision of the Honorable Supreme Court in the case of Heirs of
George Bofill vs. Court of Appeals, 237 SCRA 393 that
Had the Court of Appeals been more accurate and precise in quoting data
from the records, it would have arrived at the right conclusion
The Honorable Court of Appeals cited the decision of the Honorable Supreme Court in
the case of Partola-Jo vs. CA, 216 SCRA 692, that:
Where there is an ambiguity caused by an omission or mistake in the
dispositive portion of the decision, the Supreme Court may clarify such
ambiguity by an amendment even after the judgment has become final.
(emphasis supplied)
The above decision is in consonance with the decision of the Honorable Supreme Court
in the case of Buan vs. Court of Appeal, et al., 235 SCRA 424 wherein the Supreme
Court said:
x x x Thus the respondent Court stated, it is undisputed that the Decision of
the Court of Appeals x x x had become final and executory. Taken in this
light the respondent court apparently did not err in leaving the issue
unresolved, a final decision being unreviewable and conclusive.
But judging from the facts presented by this case, it is beyond doubt that
serious injustice will be committed if strict adherence to procedural rules were
to be followed. It should be remembered that rules of procedure are but mere
tools designed to facilitate the attainment of justice, such that when rigid
application of the rules would tend to frustrate rather than promote
substantial justice, this Court is empowered to suspend its
operation. (emphasis supplied)
It would seem from the above pronouncements of the Honorable Supreme Court
therefore, that it may suspend the operation of the rules of procedure by virtue of its
rule-making power. Certainly if the Honorable Supreme Court has the power to
promulgate the Rules of Court, then it has the power to suspend its operation in order to
promote substantial justice. Unquestionably, however, the Honorable Court of
Appeals does not have that rule[-] making authority.Therefore it may not suspend the
operation of the Rules of Court.
Moreover, the above discussion refers to civil cases. Will the same doctrines apply to
criminal cases as in the cases before us? The accused thru his counsels raised the
issues of the effect of a promulgation already once made arguing in the process that
another promulgation can no longer be legally feasible if the constitutional right of the
accused against double jeopardy will not be violated.
We are not unmindful of the injunction upon lower courts, which the Honorable Supreme
Court has imposed, i.e., to accept with modesty the orders and decisions of the
appellate courts. However, we feel that we must equate this with another injunction, that
trial judges must keep abreast with the jurisprudence or run the risk of being found to be
grossly ignorant of the law. In short, this Court finds itself in the horns of a
dilemma. Since the very jurisprudential authority relied upon by the Honorable [Court] of
 Appeals refers to the power of the Supreme Court to clarify an ambiguity, may not this
Court therefore conclude that the Honorable Court of Appeals does not have the power
to clarify the dispositive portion of the decision which has not only become final, but has
already been previously promulgated?
Finally, it appears to this Court that there is validity to the observation made by counsel
for the accused in paragraph 4 of their motion which we quote:
4. It appears, therefore, that there is nothing to promulgate as the same had
already been promulgated on April 4, 1995. Besides, there is, likewise,
nothing to promulgate in the Court of Appeals Resolution dated February 2,
1996 and much less in the alluded August 17, 1995 Resolution of the Court
of Appeals.
Indeed, the said Resolution did not authorize nor did it direct this Court to re-
promulgate the Decision.
On June 28, 1996, the Solicitor General, representing the People of the Philippines, filed [before
the Court of Appeals a] petition for certiorari and mandamus contending that the respondent
Judge seriously erred and gravely abused his discretion in refusing to execute the penalty of
imprisonment in spite [the Court of Appeals] Decision of July 30, 1991 and Resolution of August
17, 1995. He prays that the Order dated April 12, 1996 of respondent Judge be nullified and the
penalty of imprisonment rendered against the accused be enforced.[6]

Ruling of the Appellate Court

In ruling for the People, the Court of Appeals ratiocinated in this way:
Obviously, respondent Judge was of the belief that the penalty of imprisonment was not affirmed
by [the Court of Appeals] although it increased the civil liability from P30,000.00
to P50,000.00. He failed to recognize the fact that the only modification made by [the Court of
Appeals] on the decision [was] to increase the civil liability, which would not have been imposed
if the accused was not found guilty of the charge. Had he looked carefully into the text of the
decision he would have found that [the Court of Appeals] affirmed the decision of conviction, as
borne out by the following portions of said decision:
After a careful review of the evidence on record, this Court entertains no doubt as to the
participation of the accused-appellant in the shooting of Sapigao and Rulo Castro. The
Court a quo has expressed the following findings in its decision, to which findings this
Court accords the great weight and respect such findings of the trial court are entitled to:

Conspiracy ... was proven by the following circumstances:

1. Accused Eduardo Cuison was seen together occupying the same table with Sgt.
Bustarde and Sgt. Castro drinking beer at the terrace upon the arrival of Leo Petete and
his companions;
2. They left the terrace of the Tropical Hut about 10 to 15 minutes after the arrival of
Rulo Castro, Rafael Sapigao, Leo Petete and Agardo Reyes and boarded the same
yellow car owned and driven by accused Eduardo Cuison.
3. Accused Eduardo Cuison was seen by Ronald Ligayo, a resident of Poblacion,
Bugallon, Pangasinan, a disinterested witness in the evening of May 27, 1986 infront
(sic) of the house of said accused Eduardo Cuison in Poblacion, Bugallon,
Pangasinan. Accused Eduardo Cuison alighted from his car, proceeded to his house
and after coming out of his house was seen holding a 45 (sic) caliber and a carbine
 pistol. Eduardo Cuison called for his brother Warling to whom he handed the carbine
pistol and received by the latter.
Eduardo Cuison sent Domy Cuison to call for Bot Cuison. When Bot Cuison arrived, he,
Warling, Domy, Eduardo Cuison and two others inside the car proceeded towards the
north. Obviously, these two were Sgt. Castro and Sgt. Bustarde.
4. Upon arrival of accused Eduardo Cuison, Bot Cuison, Warling Cuison, Domy Cuison,
Sgt. Bustarde and Sgt. Castro at the driveway of the Tropical Hut on board the car of
accused Eduardo Cuison, each of them with the use of their respective firearms
simultaneously fired several shots in the air;
5. Sgt. Castro and Sgt. Bustarde pulled and poked their guns to [sic] Sapigao. Then Sgt.
Castro fired the fatal shot to [sic] Sapigao;
6. After Sapigao fell down, Sgt. Castro, Warling Cuison, Eduardo Cuison, Bot and Domy
Cuison turned at [sic] Sapigao obviously to see to it and make sure Sapigao was already
dead;
7. After ascertaining that Sapigao was shot dead, accused Eduardo Cuison called for
Rulo Castro to come outside the restaurant and when Rulo Castro emerged at the door,
accused Eduardo Cuison, Warling Cuison, Bot Cuison, Domy Cuison and Sgt. Bustarde
simultaneously pointed their guns and shot at Rulo Castro hitting the latter;
8. Accused Eduardo Cuison and Warling Cuison are brothers and uncles of Bot and
Domy Cuison. Eduardo Cuison being a kagawad enjoyed moral influence upon his
brother Warling and his two nephews Bot and Domy;
9. Sgts. Bustarde and Castro and Kagawad Cuison knew each other before the incident;
10.After shooting the victims to death, the accused Cuisons went away from the scene
of the crime on board the same car.
The following circumstances showing the sequence of events, the mode o[r] manner in
which the offenses were perpetrated taken together indicated that the assailants
cooperated and helped each other in the attainment of the same aim. (Memorandum,
pp. 20-21)
As held by the Supreme Court in the case of People vs. Colman, et al. 55 O.G. 2392
(cited in Regalado, Remedial Law Compendium, 88 ed., Vol. 2, p. 560),
Conspiracy need not be established by direct evidence of the acts charged,
but may and generally must be proved by a number of indefinite acts,
conditions and circumstances which vary according to the purpose to be
accomplished. If it be proved that two or more persons aimed by their acts
towards the accomplishment of the same unlawful object, each doing a part
so that their acts, though apparently independent, were in fact connected and
cooperative, indicating a closeness of personal association and a
concurrence of sentiment, a conspiracy may be inferred though no actual
meeting among them for concerted means is proved (People vs. Colman, et.
al., 55 O.G. 2393).
In the appealed decision, the trial court had ordered the accused-appellant to indemnify
the heirs of Rafael Sapigao [in] the amount of P30,000.00 and to [sic] the heirs of Rulo
Castro also the amount of P30,000.00 (Decision, p. 24). In accordance with the new
policy of the Supreme Court on this matter, the above-specified amount of P30,000.00
should be increased to P50,000.00 (People vs. Sison, 189 SCRA 643, 646).
It is absurd to conclude that [the Court of Appeals] increased the civil liability in accordance with
new rulings of the Supreme Court without finding that the accused [was] guilty of the offense of
 homicide. Thus, the promulgation of the civil liability only and omission of the criminal liability is
an error.
Furthermore, [the Court of Appeals] has clarified the ambiguity in the dispositive portion through
its Resolution dated August 17, 1995 which categorically stated that the court affirmed the
decision of the respondent court with respect to the penalty of imprisonment imposed upon the
accused.
This clarification is not an amendment, modification, correction or alteration to an already final
decision. It is conceded that such cannot be done anymore. The Court of Appeals simply stated
in categorical terms what it obviously meant in its decision - - that the conviction of the accused
is affirmed with the modification that the civil liability is increased. The dispositive portion of the
decision may not have used the exact words but a reading of the decision can lead to no other
conclusion.
It certainly would be ridiculous to allow the accused to go scot-free after paying the heirs the civil
indemnity imposed by the Court for his participation in the act of killing the two (2) victims in
these cases, because of a wrong interpretation of a decision.[7]'
Hence, this appeal.[8]

The Issues

In this appeal, Petitioner Eduardo Cuison raises the following assignment of errors:
I. The Respondent Court seriously erred and gravely abused its discretion in not holding that the
Solicitor General failed to establish the requisites for the issuance of the extraordinary writ
of certiorari .
II. The Respondent Court seriously erred and gravely abused its discretion in not holding that the
Solicitor General failed to show the existence of the elements for the issuance of a Writ
of Mandamus.
III. The Respondent Court seriously erred and gravely abused its discretion in not holding that
the promulgation of April 4, 1995 cannot be modified, over objection of the accused.
IV. The Respondent Court seriously erred and gravely abused its discretion in not holding that
the filing of the Petition for Certiorari and Mandamus dated June 28, 1995 by the Solicitor
General violates the constitutional right of the accused against double jeopardy.
V. The Respondent Court seriously erred and gravely abused its discretion in deciding as it did
and in denying herein petitioners motion for reconsideration.[9]
Simply put, petitioner raises the following issues: (1) whether the writs
of certiorari and mandamus were properly issued by the Court of Appeals, and (2) whether petitioners
right against double jeopardy was violated.

The Courts Ruling

The petition is utterly unmeritorious.

 First Issue: Certiorari and Mandamus Justified

A petition for certiorari is allowed under Rule 65 of the Rules of Court, provided the following
requisites are present: (1) the writ is directed against a tribunal, a board or an officer exercising judicial or
quasi-judicial functions; (2) such tribunal, board or officer has acted without or in excess of jurisdiction, or
with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or
any plain, speedy and adequate remedy in the ordinary course of law. [10] Grave abuse of discretion x x x
implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in
other words where 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. [11]
Petitioner points out that the solicitor generals petition for certiorari and mandamus before the Court
of Appeals failed to show grave abuse of discretion in the assailed April 12, 1996 Resolution of the trial
court. In the said Resolution, the trial court declined to order the incarceration of petitioner and, thus,
effectively refused to promulgate the August 17, 1995 CA Decision which, in turn, clarified that the CAs
earlier Decision dated July 30, 1991 merely increased the amount of indemnity but did not delete the
penalty of imprisonment. In justifying its said Order, the trial court insisted that it had already promulgated
the July 30, 1991 CA Decision when it ordered petitioner to pay the increased amount of
indemnity. Petitioner argues that the trial courts Order, far from being whimsical, capricious or malevolent,
[was] valid and substantial, to say the least, and the impugned [R]esolution was issued after a careful
deliberation and weighing of the facts, issues and points of applicable law. [12]
We disagree. While its language may have been a little faulty, it is still quite obvious that the Court of
Appeals affirmed the trial courts Decision convicting Petitioner Eduardo Cuison of double homicide. The
dispositive portion of the CA Decision, therefore, cannot be construed to mean that the appellate court
merely imposed an indemnity and deleted the penalty of imprisonment. The dispositive portion of the
Court of Appeals Decision in no way communicated that the appealed Decision of the trial court was
modified only in regard to the amount of indemnity. Nowhere could it be gleaned that the penalty of
imprisonment was deleted. In fact, the CA Decision and the entire records of this case contain no legal or
factual basis for acquitting petitioner or dismissing the criminal cases against him.
In granting petitioners motion, the trial court judge capriciously and arbitrarily decided not to
promulgate the Court of Appeals July 30, 1991 Decision.[13] He had no discretion to refuse; his refusal
was thus a glaring transgression of his jurisdiction.
We must also emphasize that we dismissed the petition questioning the Court of Appeals July 30,
1991 Decision, thereby affirming the conviction of petitioner. The trial courts assailed April 12, 1996
Resolution was therefore tantamount to overruling a judicial pronouncement of the highest Court of the
land affirming the judgment of conviction of respondent Court and unmistakably a very grave abuse of
discretion.[14]
Manifestly erroneous then is the trial judges justification that he has previously promulgated the
Court of Appeals Decision on April 4, 1995. As already stated, the penalty imposed by the Court of
Appeals was imprisonment plus a higher amount of civil indemnity. In ordering only the payment of the
indemnity, the trial court failed to execute the CA Decision in its entirety. Notwithstanding the subsequent
CA Decision clarifying -- and this Courts dismissal of the petition questioning -- the said earlier CA
Decision, the trial court still adamantly refused to do so. The persistent refusal of the trial court is a clear
display of grave abuse of discretion.
We find misleading the claim of petitioner that the Court of Appeals itself acknowledged that the
latters July 30, 1991 Decision was ambiguous and obscure.[15] Such claim is bereft of factual
basis. Nowhere in its Resolution[16] did the CA so describe its previous Decision. It merely restated the
import of its July 30, 1991 Decision. Evidently, this was either misunderstood or distorted by the trial
court, which stated that it is ineluctable that the penalty imposed by the lower court was not touched on at
all by [the Court of Appeals] x x x.[17]
 Furthermore, the Court of Appeals cannot be faulted for issuing a writ of mandamus, in view of the
trial courts refusal to perform its ministerial duty of promulgating the appellate courts Decision in its
entirety. Under Section 3, Rule 65 of the Rules of Court, a petition for mandamus is warranted [w]hen any
tribunal, corporation, board, or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station x x x. [18] Obedience to a superior
courts order is a ministerial duty of lower courts.
Lastly, petitioner contends that the petition for certiorari filed before the Court of Appeals was
improper, because the People had not filed a motion for reconsideration of the assailed trial court
Order.[19] This contention is bereft of merit. A motion for reconsideration need not precede a petition
for certiorari where the questioned resolution was a patent nullity, as in this case. [20]

Second Issue: Promulgation of Conviction

Not Barred by Double Jeopardy

Petitioner submits that the trial courts promulgation of the CA Decision on April 4, 1995 cannot be set
aside and a second promulgation be ordered [21] because to do so would contravene the prohibition
against double jeopardy.[22] He contends that the judgment as promulgated on April 4, 1995 has become
final[23] and that courts have thus lost jurisdiction over the case.[24]
To substantiate a claim of double jeopardy, the following must be proven:
x x x (1) a first jeopardy must have attached prior to the second; (2) the first jeopardy must have
been validly terminated; (3) the second jeopardy must be for the same offense, or the second
offense includes or is necessarily included in the offense charged in the first information, or is an
attempt to commit the same or is a frustration thereof (citations omitted).
And legal jeopardy attaches only: (a) upon a valid indictment; (b) before a competent
court; (c) after arraignment; (d) [when] a valid plea [has] been entered; and (e) the case was
dismissed or otherwise terminated without the express consent of the accused (citation
omitted).[25]
Petitioner contends that the promulgation by Judge Ramos on April 4, 1995 of the Respondent
Courts decision of June 30, 1991 by reading its dispositive portion has effectively terminated the criminal
cases against the petitioner x x x.[26] In other words, petitioner claims that the first jeopardy attached at
that point.
The Court is not persuaded. As a rule, a criminal prosecution includes a civil action for the recovery
of indemnity.[27] Hence, a decision in such case disposes of both the criminal as well as the civil liabilities
of an accused. Here, trial court promulgated only the civil aspect of the case, but not the criminal.
As earlier observed, the promulgation of the CA Decision was not complete. In fact and in truth, the
promulgation was not merely incomplete; it was also void. In excess of its jurisdiction, the trial judge
rendered a substantially incomplete promulgation on April 4, 1995, and he repeated his mistake in his
April 12, 1996 Order. We emphasize that grave abuse of discretion rendered the aforementioned act of
the trial court void.[28] Since the criminal cases have not yet been terminated, the first jeopardy has not yet
attached. Hence, double jeopardy cannot prosper as a defense.[29]
We must stress that Respondent Courts questioned Decision did not modify or amend its July 30,
1991 Decision. It merely ordered the promulgation of the judgment of conviction and the full execution of
the penalty it had earlier imposed on petitioner.
 Cases Cited Not Applicable

People vs. Hernando, Ramos vs. Hodges and Republic vs. Court of Appeals, cited by petitioner, are
not applicable because they refer either to the lower courts proceeding that is not void or to errors of
judgment, not to lack or excess or abuse of jurisdiction. Thus, in People vs. Hernando,[30] the Court ruled
that the questioned proceedings of the court a quo were not an absolute nullity as to render the judgment
of acquittal null and void, considering that the prosecution was not denied due process. In Ramos vs.
Hodges[31] the Court found that the trial judges erroneous conclusion merely constituted errors of fact or of
law, and not of jurisdiction. Lastly, in Republic vs. Court of Appeals[32] the Court held that the lower court
committed merely an error of judgment and not an error of jurisdiction as there was no clear showing [that
it] exercised its power in [an] arbitrary or despotic manner by reason of passion or personal hostility, or
that its act was so patent and gross as to amount to an evasion or a virtual refusal to perform the duty
enjoined or to act in contemplation of law.

Epilogue

This Court takes this occasion to remind members of the bench to be precise in their ponencias,
most especially in the dispositions thereof. Accuracy and clarity in substance and in language are revered
objectives in decision-making.
Having said that, we also lament the trial courts convoluted attempt at sophistry, which obviously
enabled the petitioner to delay the service of his imprisonment and to unnecessarily clog the dockets of
this Court and of the Court of Appeals. His Honors expressed desire to accept with modesty the orders
and decisions of the appellate court was, in truth and in fact, merely a sarcastic prelude to his veiled
rejection of the superior courts order modifying his earlier decision. His sophomoric justification of his
refusal to obey for fear of being found to be grossly ignorant of the law does not deserve one whit of
sympathy from this Court. Lady Justice may be blindfolded but she is neither blind nor naive. She can
distinguish chicanery from wisdom, fallacious argument from common sense.
WHEREFORE, the petition is hereby DENIED and the assailed Decision of the Court of Appeals
is AFFIRMED. Double costs against petitioner.
SO ORDERED.
LEOPOLDO SALCEDO, petitioner,
vs.
HONORABLE JUDGE FILEMON H. MENDOZA and THE PEOPLE OF THE
PHILIPPINES, respondents.

Atienza Law Office for petitioner.

Office of the Solicitor General for respondents.

MAKASIAR, J.:

This is a petition for review on certiorari with preliminary injunction of the order of respondent Judge
Filemon H. Mendoza, dated May 8, 1978, setting aside the order of dismissal dated March 28,1978
issued by him in Criminal Case No. C-1061 entitled "People of the Philippines, Plaintiff, versus Leopoldo
Salcedo, Accused."

The record shows that on November 11, 1977, Provincial Fiscal Nestor M. Andrada of Oriental Mindoro
filed a criminal information of homicide through reckless imprudence against the herein petitioner
Leopoldo Salcedo, docketed as Criminal Case No. C-1061 of the Court of First Instance of Oriental
Mindoro, Branch I.

Upon arraignment on December 19, 1977, petitioner entered a plea of not guilty and the case was then
set for trial on the merits on January 25, 1978. When the case was called for trial on that date, Provincial
Fiscal Nestor M. Andrada asked for postponement to February 22, 1978, which was granted, for trial on
February 22, 1978, which was granted, because the accused failed to appear. When the case was called
for trial on February 22, 1978, the prosecution, through Assistant Provincial Fiscal Emmanuel S.
Panaligan, once more moved for its postponement and the case was reset for trial on March 28, 1987.

On March 28, 1987, when the case was called for trial, no prosecuting fiscal appeared for the
prosecution. A private prosecutor, Atty. Juan P. Adzuarra, who withdrew his appearance from the case
and reserved the right to file a separate civil action, moved for its postponement in order to give the
prosecution another chance because they intend to request the Ministry of Justice to appoint a special
prosecutor to handle the case. The trial court, however, denied the said motion. Whereupon, the
petitioner, through counsel, Atty. Edgardo

Aceron, moved for the dismissal of the criminal case against him invoking his constitutional right to
speedy trial and respondent Judge issued an order dismissing the case, the pertinent portion of which
reads as follows:

Atty. Edgardo Aceron moved that considering the fact that this is the third time that this
case was postponed always at the instance of the fiscal although the first postponement
was made by the provincial fiscal in behalf of the accused who failed to appear, the Court
orders the dismissal of this case with costs de officio.

Although the government is interested in the prosecution of this case, the Court must also
take into consideration the interest of the accused for under the Constitution he is entitled
to a speedy administration of justice, hence the dismissal of the case.

IT IS SO ORDERED. (pp. 2-3, Annex A, Petition for Certiorari, pp. 14-14A, rec.).
On the same day, the prosecution, through Assistant Provincial Fiscal Arthur B. Panganiban, filed a
motion to reconsider the above order (Annex B, Petition, p. 15. rec.). In an order dated March 29, 1978,
the trial court denied the motion "for lack of merit, there being no assurance that the procecuting fiscal will
promptly and adequately prosecute the case (Annex C, Petition, p. 16, rec.). His first motion for
reconsideration having been denied, Assistant Provincial Fiscal filed a filed a second motion for
reconsideration which the court set for hearing to April 20, 1978 (Annex D, Petition, p. 17, rec.).

It appears that on April 20, 1978, the trial court issued an order requiring both parties to submit within five
(5) days from that date their respective pleadings (Annex E, Petition, p. 19, rec.). However, the parties
failed to comply with the said order. On May 8, 1978, respondent Judge entered the order here asked to
be reviewed, setting aside the order of dismissal dated March 28, 1978 and ordering that the case be set
for trial on June 5, 1978, as follows:

Considering that both parties failed to comply with the order of the is Court dated April 20,
1978 giving them five to days from that date to submit before the Court their respective
pleadings. the Court in the interest of justice sets aside the order of this Court dated
March 28, 1978.

Conformably with the above, let the trial of this case be set to June 5, 1978 at 1:30
o'clock in the afternoon.

Let the parties be notified accordingly.

SO ORDERED. (Annex E, Petition, p. 19, emphasis supplied).

Petitioner learned for the first time about the existence of the above order an June 5, 1978, thus he filed
on June 16, 1978 a motion for reconsideration of the said order alleging that the dismissal of the criminal
case against him was equivalent to an acquittal and reinstatement of the same would place him twice in
joepardy for the same offense (Annex F, Petition, p. 20, rec.).

On June 20, 1978, the trial court issued an order denying petitioner's motion for reconsideration and
setting the case for trial on July 20, 1978 (Annex G, Petition, p. 24, rec.). Unable to obtain reconsideration
of the May 8, 1978 order, petitioner filed the present petition for certiorari with preliminary injunction on
November 29, 1978 reiterating his contention that the dismissal of the criminal case. which was upon his
motion, predicate on his constitutional right to a speedy trial, amounts to an acquittal, and therefore the
reinstatement of the same criminal case against him would violate his right against double jeopardy.

In our resolution of December 8, 1978. the Court required the respondents to comment on the petition.
The Solicitor General, on behalf of the respondents, filed his comment on January 26, 1979 agreeing with
the petitioner that "a reinstatement of this case would operate to violate his right against double jeopardy"
(p. 4, Comment, p. 31, rec.).

The Stand of the petitioner and the solicitor General is well taken. Time and again, We have said that the
dismissal of a criminal case predicated on the right of the accused to speedy trial, amounts to an acquittal
on the merits which bars the subsequent prosecution of the accused for the same offense.

Thus, in the case of Gandicela vs. Lutero (88 Phil. 299, 307, May 21, 1951), We said:

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. If the prosecution asks for the
postponement of the hearing and the court believes that the hearing cannot be
postponed anymore without violating the night of the accused to a speedy trial, the court
shall deny the postponement and proceed with the trial and require the fiscal to present
 the witnesses for the prosecution; and if the fiscal does not or cannot produce his
evidence and consequently fails to prove the defendant's guilt beyond reasonable doubt,
the Court, upon the motion of the defendant, shall dismiss the case. Such dismissal is not
in reality a mere dismissal although it is generally so called but an acquittal of the
defendant because of the prosecution's .failure to prove the guilt of the defendant, and it
will be a bar to another prosecution for the same offense even though it was ordered by
the Court upon motion or with the express consent of the defendants, in exactly the same
way as a judgment of acquittal obtained upon the defendants motion (People vs. Salico,
84 Phil. 722). (emphasis supplied).

And in the case of People vs. Diaz (94 Phil. 714, 717, March 30, 1954), wherein the prosecution failed to
appear on the day of the trial, We reiterated the Gandicela case, doctrine stating that:

... Here the prosecution 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 set for hearing twice and the prosecution without asking for postponement
or giving any explanation, just failed to appear. So the dismissal of the case, tho at the
Instance of defendant Diaz may, according to what we said in the Gandicela case,be
regarded as an acquittal. (emphasis supplied).

Likewise, in People vs. Abano (97 Phil. 28, May 17, 1955), wherein the court dismissed the case upon the
motion of the accused for failure of the prosecution to produce its evidence, We held that:

The defendant was entitled to a speedy trial, ... The defendant was placed in jeopardy of
punishment for the offense charged in the information and the annulment or setting aside
of the order of dismissal would place him twice in jeopardy of punishment for the same
offense.

Furthermore, in People vs. Tacneng (L-12082, April 30, 1959), where the Court ordered the dismissal of
the case upon the motion of the accused because the prosecution was not ready for trial after several
postponements, this court held that:

... when criminal case No. 1793 was called for hearing for the third time and the fiscal
was not ready to enter into trial due to the absence of his witnesses, the herein appellees
had the right to object to any further postponement and to ask for the dismissal of the
case by reason of their constitutional right to a speedy trial; and if pursuant to that
objection and petitioner for dismissal the case was dismissed, such dismissal amounted
to an acquittal o" the herein appellees which can be invoked as they did, in a second
prosecution for the same offense. (emphasis supplied).

Then, in People vs. Robles (105 Phil. 1016, June 29, 1959), a case with a similar factual setting as that
of People vs, Tacneng, supra We ruled that:

In the circumstances, we find no alternative than to hold that the dismissal of Criminal
Case No. 11065 is not provisional in character but one which is tantamount to acquittal
that would bar further prosecution of the accused for the same offense.

Later, in the 1960 case of People vs. Lasarte (107 Phil, 697, April 27, 1960), this Court pointed out that:

... where the fiscal fails to prosecute and the judge dismiss the case, the termination is
not real dismissal but acquittal because the prosecution failed to prove the case when the
trial ,wherefore came.
And in Lagunilla vs. Honorable Reyes and Motas (1 SCRA 1364, April 29, 1961), where the court
dismissed the case because of the apparent lack of interest of the complainant to prosecute the case, this
Court again ruled that:

Such dismissal made unconditionally and without reservation, after plea of not guilty, and
apparently predicated on the constitutional right of the accused to a speedy trial is, ...
equivalent to an acquittal. And being an order of acquittal, it became final immediately
after promulgation and could no longer be recalled for correction or reconsideration
(People vs. Sison, L-11669, January 30, 1959; Catilo Abaya, 94 Phil. 1014; 50 Off. Gaz.,
[6] 2477; People vs. Yelo, 83 Phil. 618; 46 Off. Gaz. [11th Supp.] 71), with or without
good reason.

In the more recent case of People vs. Cloribel (11 SCRA 805, August 31, 1964) where the Court again
ordered the dismissal of the case upon notion of the accused because of the failure of the prosecution to
appear, WE had occasion again to reiterate Our previous rulings, thus:

... the dismissal here complained of was not truly a a "dismissal" but an acquittal. For it
was entered upon the defendant's insistence on their contitutional right to speedy trial
and by reason of the prosecution's failure to appear on the date of trial.

In the present case, the respondent Judge dismissed the case, upon the motion of the petitioner invoking
his constitutional right to speedy trial, because the prosecution failed to appear on the day of the trial on
March 28, 1978 after it had previously been postponed twice, the first on January 26, 1978 and the
second on February 22, 1978.

The effect of such dismissal is at once clear Following the established jurisprudence, a dismiss
predicated on the right of the accused to speedy trial upon his own motion or express consent, amounts
to an acquittal which will bar another prosecution of the accused for the same offense This is an
exception to the rule that a dismissal upon the motion or with the express consent of the accused win not
be a bar to the subsequent prosecution of the accused for the same offense as provided for in Section 9,
Rule 113 of the Rules of Court. The moment the dismissal of a criminal case is predicated on the right of
the accused to speedy trial even if it is upon his own motion or express consent, such dismissal is
equivalent to acquittal And any attempt to prosecute the accused for the same offense will violate the
constitutional prohibition that "no person shall be twice put in jeopardy of punishment for the same
offense (New Constitution, Article IV, Sec 22).

The setting aside by the respondent Judge on May 8, 1978 of the order of dismissal of March 28, 1978
and thereby reviving or reinstating Criminal Case No. C-1061 places the petitioner twice in jeopardy for
the offense The respondent Judge therefore committed a grave abuse of discretion in issuing the order of
May 8, 1978 setting aside the order of dismiss issued on March 28, 1978.

WHEREFORE, THE PETITION IS HEREBY GRANTED AND THE CHALLENGED ORDER DATED MAY
8, 1978, IS HEREBY SET ASIDE AS NULL AND VOID. NO COSTS.

SO ORDERED.