In  a  criminal complaint dated August 17, 1955, accused Eustaquio Hinaut, Odona Taguran and Agapito  Hinaut were charge  with the crime of theft before the Justice of the Peace of Lopez Jaena  (Criminal Case No. 2496).  After arraignment,  wherein all  the defendants  pleaded  "not guilty", the prosecution presented its evidence, both testimonial  and documentary, and thereafter rested its  case with  reservation to introduce additional evidence, which was stated  to be  unavailable  at  the time.   The  defense followed, and likewise offered its evidence,  but before it had  entirely  closed, the  Provincial Fiscal submitted a motion  for the provisional dismissal  of the case.  Accused expressed their consent thereto by  placing their thumbmarks (only Agapito Hinaut signed  his  name) at the end of the motion, after the word "with our conformity".

In  its order of December 19, 1955, the  Justice of  the Peace dismissed the  case  provisionally as  prayed  for. About six months later, the prosecution filed  a motion to revive the case, which was  granted  by the Justice of  the Peace court  in  an  order dated January 8,  1956.  The corresponding information  was  rented by the Fiscal on June 1,  1956.

The defense appealed to the Court of First  Instance of Misamis Occidental, and after review of the above facts the court opined: "when a criminal  case, after  due arraignment and plea had been made and after the trial had almost been completed,  even if the  case is dismissed with an express conformity of the accused,  the  said accused had already been  placed in double jeopardy".

Hence,  this appeal by the prosecution.

The plea of double jeopardy was  improperly sustained by the lower court.   Section  9,  Rule 113 of the Rules of Court provides:

"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  frustration  thereof, or for  any  offense which necessarily includes or is necessarily included in the offense charged in the former complaint or information."   (Italics supplied).

When the accused signified their express conformity with the  provisional dismissal of  the case, there was neither acquittal  nor dismissal that would put them twice in jeopardy of the same offense upon the refiling of the case. The resolution of this Court  dated May 21, 1951,  in  the case  of  Gandicela vs.  Lutero,  88  Phil., 299  (wherein it was hinted that the addition of the words "without prejudice" or "provisional" to a court's order  dismissing a case are without legal effect)  contemplates a dismissal on the merits amounting to acquittal or a dismissal after arraignment and plea without  the express  consent of  the accused.  This is not true in  this case, for the dismissal, according to the Justice of the Peace, was premised  on the need of the prosecution to have more time in securing a missing piece of evidence necessary for the conviction of the accused.  It is important to note that what was sought for  by the  Provincial Fiscal,  to  which the accused expressed their agreement, was not a simple or unconditional dismissal of the  case, but its  provisional  dismissal that prevented it from being  finally  disposed of.  Certainly, the  accused cannot now validly claim  that  the dismissal was, in effect, on the  merits and deny its provisional character.  Even assuming moreover, that there was double jeopardy, they should be considered as  having waived the constitutional safeguard against the same.

This case is not to be likened to that of People vs. Cabarles, 102 Phil., 926; 54 Off. Gaz., [29],  7051 where the motion to quash was based on the insufficiency of the evidence after the prosecution  had rested its case, and what was prayed for was not  a provisional  dismissal  of the case, but such a dismissal as would  amount to an acquittal or one on the  merits.

As stated  in the concurring opinion of Mr. Justice Alejo Labrador in  the  case of  People vs. Jabajab,  100  Phil., 307; 53 Off. Gaz.,  [3], 632:

"I concur.   In my  humble opinion the decisive fact which determines whether jeopardy attached upon the issuance of the order of dismissal is the provisional nature of the dismissal  and  the reservation of the  right of the fiscal to 'refile these two cases if he so desires in the interest of Justice.'  Jeopardy can be invoked  only if the case is  finally disposed of or terminated.  Dismissal under Section 9 of Rule 113 implies final dismissal,  a positive termination of the case.  If the dismissal contains a reservation of the right to file another action, the case can not be said to have terminated and jeopardy does  not attach.  This is the reason for our ruling in Jaca vs. Blanco, 86 Phil., 452."

What could have been done by the accused in the case at bar was the action suggested by this Court in the case of Gandicela vs. Lutero  (see Resolution, supra), by  invoking their constitutional right to speedy trial  rather than consent to a provisional dismissal of the case that would allow a valid reinstatement thereof  (Go Te Hua vs. Encarnacion, 50 Off. Gaz.,  599).

Do the words "with our conformity" operate as a sufficient conveyance of express consent within the purview of the Rules of Court (see supra) ?  We believe so, for these words imply not merely passive assent but an active manifestation on the part of the accused of their express agreement to  the provisional dismissal of the case.  This Court had occasion  to pass upon the meaning of "express consent" in the case of  Pendatun vs. Aragon,  (93 Phil., 796; 49 Off. Gaz.,  [10], 4372) :

"The words 'No objection' written on the motion to dismiss directly conveyed, as  undoubtedly they were intended to convey,  the idea of full accordance with the proposed dismissal.  It was not the same as acquiescence manifested by signs,  actions, facts, inaction or silence.   It was the same as saying 'I  agree' although it  was not as emphatic  as the latter expression.   Having manifested 'no objection' to the motion for the express purpose of obtaining a ruling of the court upon such motion, counsel  could not  have meant  other than that he was  in  agreement with the dismissal, and there  is no question that that was what the court and the prosecution understood him to mean;  otherwise, trial could  have  been postponed instead of the case being temporarily dismissed, there being good grounds for  the continuance."

Wherefore, the order appealed from is set aside and the case remanded for  further  proceedings.  No pronouncement as to costs.  So ordered.

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, and Endencia, JJ., concur.