EN BANC

[G.R. No. L-22345. May 29, 1967.]

PEOPLE OF THE PHILIPPINES , petitioner, vs. HON. AMADOR GOMEZ,

CRESENCIO I. RICHARDS, J. BOYARSKI, PRUDENCIO UY, EDUARDO
VELOSO, LEONCIO SORONIO, IGNACIO DAGTAHAN and LAURA
GINGO , respondents.

Solicitor General Arturo A. Alafriz, Solicitor E. M. Solva and Atty. E. A. Agana for petitioner.
Eddy A. Deen, and M. C. Osmeña for respondents Cresencio Richards, et al.
Cesar A. Kintanar for respondents Eduardo Veloso, et al.
Hon. Amador E. Gomez for and in his own behalf as respondent.
David Velasco for respondent Lauro Gingco.

SYLLABUS

1. CRIMINAL PROCEDURE; DOUBLE JEOPARDY; APPLICATION WHERE THE ORDER

DISMISSING A CRIMINAL ACTION TO BE INVALID. — Where the case before the Supreme
Court is not an appeal by the prosecution asserting the dismissal of a criminal action to be
erroneous, but, rather, a petition for certiorari assailing the order of dismissal as invalid for
having been made with grave abuse of discretion tantamount to lack, or excess of
jurisdiction, there would in effect be no order of dismissal to speak of in the event that the
petitioner's submission is sustained. Consequently, there would be no dismissal or
termination of the case which could be the basis for the plea of double jeopardy.
2. ID.; ID.; ID.; ORDER OF DISMISSAL VOID IF MADE WITHOUT AUTHORITY OR IN
VIOLATION OF DUE PROCESS REQUIREMENT. — order of dismissal of a criminal
complaint, made sua sponte, for no proper reason at all, is void for being issued without
authority. Being void, it cannot terminate the proceedings. And when it deprives the State
of fair opportunity to prosecute and convict, the dismissal is likewise invalid for lack of a
fundamental prerequisite, namely, due process. Therefore, it will not constitute a proper
basis for the claim of double jeopardy.
3. ID.; ID.; ID.; ORDER OF DISMISSAL RENDERED VOID BY THE CONSIDERATION OF
EXTRANEOUS MATTERS. — The consideration by a judge of matters not in the record and
outside of judicial notice, which provided a real though unstated reason for his order
dismissing a criminal complaint, albeit in good faith rendered the dismissal as one
affected with partiality and bias, making it null and void, for lack of a fundamental
prerequisite to due process in a criminal case. namely, an impartial judge, not moved by
prejudice or bias.

DECISION

BENGZON , J.P. , J : p

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 The State has filed this petition for certiorari to assail, as allegedly a nullity, an order of the
Court of First Instance of Cebu dismissing an information for copra overshipment in
violation of Section 4 of Monetary Board Circular 31 in relation to Section 34 of Republic
Act 265.
At the request of the Monetary Board, the Secretary of Justice designated Special
Prosecutor Enrique A. Agana to investigate and prosecute crimes and offenses in
connection with copra exportation from the Philippines.
Special Prosecutor Agana, acting pursuant to said designation, filed in the Court of First
Instance of Cebu on December 6, 1962, jointly with the Fiscal of Cebu City, against seven
persons, an information for alleged overshipment, over-export and/or smuggling out of the
Philippines, from February 1961 to March 1961, in Cebu City, of 1,700 long tons of
Philippine copra valued at $255,000, in excess of the quantity duly licensed to be exported,
contrary to Section 4, Circular 31 of the Monetary Board in relation to Section 34 of
Republic Act 265. Accused were: Cresencio I. Richards, Richard J. Boyarski, Prudencio Uy
(who were then general manager, assistant manager, and warehouseman, respectively, of
Corominas, Richards & Co., Inc.), Lauro Gingco, Eduardo R. Veloso, Leoncio Soronio and
Ignacio Dagtahan (then representatives of the Philippine Coconut Administration, Bureau
of Internal Revenue, Bureau of Customs and Philippine Constabulary, respectively to the
Export Coordination Committee).
Subsequent to the filing of the information, defendants filed motions to quash and for bills
of particulars. The same were eventually denied; and by September 27, 1963, all of the
accused had entered pleas of not guilty. The court thereafter set the case for hearing on
October 23 and 24, 1963.
Notice of said trial was served on Assistant Fiscal Rafael Ybañez of Cebu City. Special
Prosecutor Agana, however, was not separately furnished a notice.
As a result, on October 23, 1963, Special Prosecutor Agana was not present when the case
was called for trial. At said time, he was attending to another case in Tacloban City.
Assistant Fiscal Ybañez, who appeared, manifested that he was not ready for trial, the
records of the case being with the Special Prosecutor, who was the one actively handling
the case. Furthermore, he submitted to the court a telegram to him from one Evangelista
stating that the Chief of the Export Department (Central Bank) just received a subpoena in
the case for the date in question, that Special Prosecutor Agana was at Tacloban City, and
requesting that he ask for postponement. A similar wire from one "F. R. Evangelista" was
addressed to the court and received by it.
Then "the Court tried to sound out the six accused" — except Laura Gingco, whose counsel
filed a motion for postponement — "whether they are agreeable to either a postponement
of the trial or a dismissal of the case without prejudice, but Atty. Eddy A. Dean, Atty. Luis
Guerrero, and Atty. Cesar Kintanar informed the Court that the accused whom they
represent oppose vigorously the postponement of the trial and likewise object to a
provisional dismissal." * Whereupon respondent Judge ordered the case dismissed, except
as to defendant Laura Gingco.
A motion for reconsideration, filed by Special Prosecutor Agana, was opposed by
defendants Veloso, Soronio and Dagtahan, upon the ground of double jeopardy. Said
motion having been denied by the court on October 31, 1963, the Special Prosecutor
instituted on January 20, 1964, the present action for certiorari.

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 Respondents six accused filed their answer, and, later, their memoranda. Respondent
Judge also separately filed an answer.
In their answer and memoranda, respondents accused raise two arguments: first, that the
petition fails upon the merits because respondent Judge did not act without or in excess
of jurisdiction or with grave abuse of discretion tantamount thereto; and, second, that the
petition, if granted, would place them in double jeopardy.
A return to the sources of the double jeopardy rule reveals that originally it was held to
prohibit only a subsequent prosecution in a new and independent cause. After the ruling of
the United States Supreme Court, however in Kepner vs. United States, 1 a case from the
Philippines the rule was extended to an appeal in the same case by the prosecution after
jeopardy had attached, thereby in effect viewing such appeal as presenting a new and
separate jeopardy, repugnant to the fundamental law's provision against double jeopardy.
And, since then, the stand in Kepner has repeatedly been adopted here. 2 For that matter, it
is set forth in Section 2 of Rule 122 of the Rules of Court, thus:
"Sec. 2. Who may appeal. — The People of the Philippines can not appeal if
the defendant would be placed thereby in double jeopardy. In all other cases
either party may appeal from a final judgment or ruling or from an order made
after judgment affecting the substantial rights of the appellant."

The present case, however, is not an appeal by the prosecution asserting a dismissal to be
erroneous; it is a petition for certiorari, assailing the order of dismissal as invalid and a
nullity, for having been made with grave abuse of discretion tantamount to lack, or excess,
of jurisdiction. It stands to reason that if petitioner's submission is sustained, there would
in effect be no order of dismissal to speak of, since it would be legally non- existent. And
thus, there would be no dismissal or termination of the case as a basis for the plea of
double jeopardy.
Accordingly, respondents' second argument on double jeopardy would be in point only if
their first — on validity (not simply correctness) of the dismissal order — proves tenable.
Now the record shows the dismissal order to have been capriciously issued. All the delay
prior to the first date set for trial, which lasted almost ten months after the filing of the
information, was caused by the defendants who presented several motions to quash and
for bills of particulars, which, as respondent Judge later conceded, were "devoid of serious
legal bases" and premised only on "trivial grounds". 3 The prosecution's manifestation that
it was not ready for trial on said first day amounted to a motion for postponement. It was
the first postponement asked for by the prosecution, predicated upon reasonable ground.
Since the reason given for the dismissal order was the delay that so far attended the case,
and since said delay was attributable to the defense rather than to the prosecution, the
dismissal was totally devoid of reason Specially is this true, considering that previously,
respondent Judge granted several motions for postponement of arraignment presented
by the defendants, and even Richards' motion to leave for the United States before he was
finally arraigned upon his return (Respondent Judge's Answer, p. 7). Furthermore, defense
moves resulted in about ten months delay. And the prosecution's first request for
postponement was denied, altho one of the accused also requested for postponement.
The dismissal was therefore purely capricious. It amounted to grave abuse of discretion
tantamount to excess of jurisdiction. Such a dismissal order, made sua sponte, for no
proper reason at all, is void for being issued without authority. And being void, it cannot
terminate the proceedings. The same jeopardy that attached continues, the cause not
having been terminated, thereby rendering the defense of double jeopardy without merit
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 (People vs. Cabero, 61 Phil. 121, 125).
A purely capricious dismissal of an information, as herein involved, moreover, deprives the
State of fair opportunity to prosecute and convict. It denies the prosecution its day in
court. Accordingly, it is a dismissal without due process and, therefore, null and void. A
dismissal invalid for lack of a fundamental prerequisite, such as due process, will not
constitute a proper basis for the claim of double jeopardy (People vs. Balisacan, L-26376,
August 31,1966 ** , Tilghman vs. Mago [Fla.] 82 So. 2d 136; McCleary vs. Hudspeth, 124 F.
2d 445).

Finally, respondent Judge states in his answer herein, that he took into account matters
not in the record and outside of judicial notice, which provided a real though unsteady
reason for his dismissal order. Said matter was an alleged dinner invitation from a
stranger, styled as Col. Miguel M. Moreno, extended thru Assistant City Fiscal Ybañez,
which he regarded as suspicious and unusual; that after some investigation as to this man,
he concluded that "the indications were to the effect that some 'pillos' and opportunist
were making the Court of First Instance of Cebu the unwitting forum for extortion and
exploitation of persons charged with crime." (Respondent Judge's Answer, pp 4-7).
Such consideration of extraneous matters by respondent Judge, albeit in good faith,
rendered the dismissal as one affected with partiality and bias, making it null and void, for
lack of another fundamental prerequisite to due process in a criminal case, namely, an
impartial Judge, not moved by prejudice or bias (Becker vs. Webster, 171 F 2d 762;
Wharton vs. People, 90 P 2d 615; 16A C.J.S. 834).
Respondent Judge states in his answer that it is his "hope and expectation" that this Court
"would give vindication to his actuations"; that should this Court, however, resolve
otherwise and nullify the same, ordering the case to proceed upon trial on the merits, he
prays that "he should be disqualified therefrom and that the case should be ordered re-
raffled among the other five branches of the Court of First Instance of Cebu." Stated as
reason for the prayer is that "In all frankness, he has lost all respect in the manner the
special prosecutor, Atty. Enrique A. Agana, has been prosecuting the case."
In justice to Special Prosecutor Agana, it should be pointed out that respondent Judge, in
his order of October 23, 1963, said:
". . . In fairness, however, to Special Prosecutor Agana, the court finds satisfactory
his explanation that his failure to personally appear before this Court on October
23, 1963 was due to reasons beyond his control, and that it was due to the fact
that by a curious coincidence he was designated by the Secretary of Justice, in
Administrative Order No. 375, dated October 17, 1963, and had to leave Manila for
Leyte, to assist the Provincial Fiscal in the prosecution and investigation of old
crimes and offenses arising within said province. The Court likewise finds
satisfactory the further explanation of Special Prosecutor Enrique A. Agana that
his not having vigorously resisted the various motions for (1) another preliminary
investigation before arraignment, (2) bill of particulars, and (3) motions for
dismissal filed by the defense during the early stages of this case was due to the
fact that he considered them all to be devoid of serious legal bases, and that he
knew all along that the presiding Judge of this Court was fully aware of the trivial
nature of the grounds for those various motions . . ."

Now considering that the Revised Rules of Court, already in effect when respondent Judge
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 filed his answer herein containing the prayer to be disqualified from the case, altho not yet
in effect when the proceedings at issue were taken in the court below, states in Section 1
of Rule 137 that, "A judge may, in the exercise of his sound discretion, disqualify himself
from sitting in a case, for just or valid reasons" other than the usual grounds for
disqualification, this Court, after considering all the circumstances of the case, finds as
reasonable, respondent Judge's afore-stated request for disqualification from further
sitting in the Richards case, and We rule that he is thereby deemed, in light of the new
Rules, to have inhibited himself from further taking cognizance of the case.
Wherefore, the petition for certiorari is granted and respondent Judge's dismissal order of
October 23, 1963, in Criminal Case No. V- 9350 of the Court of First Instance of Cebu is
hereby declared null and void and without legal effect. Respondent Judge is, at his request,
deemed to have inhibited himself from taking further cognizance of said case, and said
case is hereby ordered to be proceeded to trial upon the merits by another Judge of the
same Court to be chosen by raffle in accordance with Section 7 of Rule 22, Revised Rules
of Court. No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Regala, Zaldivar, Sanchez and Castro, JJ., concur.
Dizon, J., concurs in the result.
Makalintal, J., did not take part.

Footnotes

* See CFI Order of October 23, 1963, Petition, Annex E, p. 3.

1. 195 U.S. 100.

2. E.g., Trono vs. U.S., 11 Phil. 725; People vs. Ang Cho Kio, 50 O.G. 3563; People vs.
Pomeroy, L 8229, Nov. 28, 1955; People vs. Flores, L-11022, April 28, 1958.

3. See Order of Respondent Judge dated Oct. 31, 1963, Petitioner, Annex H, p. 9.
** 17 Supreme Court Reports Annotated 1119.

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