Abay, Sr. vs. Garcia

A motu proprio dismissal order in a criminal case, even if it would otherwise operate as an acquittal and bar reprosecution, must be written in the official language, personally and directly prepared by the judge, and signed by him; a merely verbal order dictated in open court does not attain the effect of a judgment of acquittal and may be set aside.

Dr. Felix Abay, Sr. and Felix Abay, Jr. were the accused in Criminal Case No. 29688 for direct assault upon an agent of a person in authority, with Ramiro Garque as complainant. Rule 120, Section 2 of the Rules of Court requires a criminal judgment to be written in the official language, personally and directly prepared by the judge, and signed by him. The constitutional guarantee against double jeopardy supplies the stakes: an order that amounts to an acquittal bars reprosecution and is immediately executory.

On May 21, 1973, Criminal Case No. 29688 for direct assault upon an agent of a person in authority was filed in the City Court at Bacolod City against Dr. Felix Abay, Sr., Felix Abay, Jr., and two other accused. Felix Abay, Sr. and Felix Abay, Jr. were arraigned on May 27, 1975, and both pleaded not guilty. Trial commenced on July 26, 1976, with Ramiro Garque testifying on direct examination and partly on cross-examination. The trial was transferred to September 14, 1976, but the cross-examination was not terminated, so the case was reset to July 1, 1977.

At the continuation of the trial on July 1, 1977, both accused appeared without their counsel. The trial fiscal, Assistant Fiscal Angel Lobaton, was present, but complainant Garque, who was still to be cross-examined, failed to appear despite due notice. The private prosecutor, Atty. Henry Trocino, also failed to appear. City Judge Felino Garcia then verbally ordered, motu proprio, the dismissal of the case. Fiscal Lobaton did not object to the dismissal. Both accused remained silent and later left the courtroom after the judge dictated the order of dismissal.

At about 10:00 o'clock in the morning of the same day, Atty. Trocino, together with Garque, arrived in court and, upon learning that Criminal Case No. 29688 had been ordered dismissed, verbally moved to have the order of dismissal set aside. In the presence of special counsel Navarro, Atty. Trocino was allowed to present evidence in support of the verbal motion for reconsideration and to explain the failure of Garque to appear on time. In his written order of July 1, 1977, Judge Garcia granted the verbal motion for reconsideration and set aside the verbal order of dismissal. He further ordered the resetting of the case for hearing on another date.

Subsequently, the accused, through counsel, filed a motion for reconsideration of the order of July 1, 1977, invoking double jeopardy and claiming that the verbal order of dismissal, even if provisional, was rendered without the express consent of the accused. The motion for reconsideration was denied, after which the accused filed a petition for certiorari with the Court of First Instance at Bacolod City, with Judge Jose L. Coscolluela, Jr., presiding. The dismissal was merely dictated in open court and there was no showing that it was ever reduced to writing and signed by Judge Garcia; the written order of July 1, 1977 set aside the verbal dismissal and reset the case.

• Double Jeopardy: Petitioners invoked double jeopardy, claiming that the verbal order of dismissal, even if provisional, was rendered without the express consent of the accused.
• Scope of Cabarroguis vs. San Diego: Petitioners argued that the verbal order of dismissal, not having been based on the merits but on the failure of the complainant to appear, was not covered by Cabarroguis vs. San Diego; they maintained that the term "judgment" under Section 1, Rule 120 means the adjudication that the defendant is guilty or not guilty and the imposition of the penalty provided by law.

• Double Jeopardy — Verbal Dismissal: Whether a verbal order of dismissal dictated in open court, but never reduced to writing and signed by the judge, constitutes a judgment of acquittal that bars reinstatement of the criminal case under double jeopardy.
• Scope of Cabarroguis vs. San Diego: Whether the rule in Cabarroguis vs. San Diego requiring a written and signed judgment applies even when the dismissal is based on the complainant's failure to appear rather than on the merits.

• Double Jeopardy — Verbal Dismissal: No. The verbal order did not attain the effect of a judgment of acquittal because it was not written, personally prepared by the judge, and signed as required by Rule 120, Section 2; double jeopardy did not attach.
• Scope of Cabarroguis vs. San Diego: Yes. Cabarroguis vs. San Diego did not distinguish between dismissals on the merits and those based on failure of prosecution witnesses to appear; the written-and-signed requirement applies to both.

• Double Jeopardy — Verbal Dismissal: The SC started from the rule that where there is a valid information and the accused has been arraigned, an order of dismissal issued by the court motu proprio in the course of trial has the effect of a judgment of acquittal and double jeopardy attaches; the order is immediately executory. But Rule 120, Section 2 requires the judgment to be written in the official language, personally and directly prepared by the judge, and signed by him. The SC found that the order in this case was merely dictated in open court by the trial judge and that there was no showing it was ever reduced to writing and duly signed. Because it did not attain the effect of a judgment of acquittal, it remained within the judge's power to set it aside and enter another order, now in writing and signed, reinstating the case. The SC relied on Cabarroguis vs. San Diego, where a verbal dismissal withdrawn before it could be reduced to writing and signed was held incomplete and ineffective.
• Scope of Cabarroguis vs. San Diego: The SC agreed with the CA that Cabarroguis vs. San Diego did not distinguish whether the judgment was based on the merits or not. It did not adopt petitioners' argument that the term "judgment" under Section 1, Rule 120 refers only to an adjudication of guilt or innocence and the imposition of penalty. Because the dismissal in this case was based on the complainant's failure to appear, the same written-and-signed requirement applied, and the verbal order could not operate as an acquittal.

• Double Jeopardy from Motu Proprio Dismissal — An order of dismissal issued motu proprio by the court in the course of trial, where there is a valid information and the accused has been arraigned, has the effect of a judgment of acquittal and double jeopardy attaches; the order is immediately executory. In this case, the SC recognized that rule but held it did not save the verbal dismissal because the order was not written and signed.
• Written and Signed Judgment Requirement — A criminal judgment, including a dismissal order that would operate as an acquittal, must be written in the official language, personally and directly prepared by the judge, and signed by him under Rule 120, Section 2. A verbal order dictated in open court but never reduced to writing and signed does not attain the effect of a judgment of acquittal and may be set aside. The SC applied this to Judge Garcia's verbal dismissal.
• No Distinction Between Dismissal on Merits and Failure to Prosecute — Cabarroguis vs. San Diego did not distinguish between a judgment based on the merits and one based on failure of prosecution witnesses to appear; the written-and-signed requirement applies to both. The SC rejected petitioners' attempt to limit the rule to dismissals on the merits.

• "Where there is a valid information and the accused has been arraigned, an order of dismissal issued by the court, motu proprio, in the course of a trial of a criminal case, whether based on the merits or for failure of prosecution witnesses to appear, has the effect of a judgment of acquittal and double jeopardy attaches. The order is also immediately executory." — This states the general rule that a motu proprio dismissal after valid information and arraignment operates as an acquittal and is immediately executory.
• "However, this order of dismissal must be written in the official language, personally and directly prepared by the judge and signed by him conformably with the provisions of Rule 120, section 2 of the Rules of Court (now Rule 120, section 2 of the 1985 Rules on Criminal Procedure)." — This qualifies the rule: the dismissal order must be written, personally prepared, and signed under Rule 120, Section 2.
• "In the instant case, it is very clear that the order was merely dictated in open court by the trial judge." — This applies the requirement to the facts, finding that the dismissal was merely verbal.

• Cabarroguis vs. San Diego, L-19517, November 30, 1962, 6 SCRA 866 — Controlling precedent; the SC relied on it for the rule that a verbal dismissal withdrawn before it could be reduced to writing and signed was incomplete and ineffective, so it did not operate as an acquittal.

• Rule 120, Section 2, Rules of Court (now Rule 120, Section 2, 1985 Rules on Criminal Procedure) — Requires a judgment to be written in the official language, personally and directly prepared by the judge, and signed by him; applied to hold that the verbal dismissal did not attain the effect of a judgment of acquittal.