EN
BANC
THE
GOVERNMENT OF
THE UNITED STATES
IN THE PHILIPPINE
ISLANDS,
Plaintiff-Appellee,
G.
R.
No. 5012
April
2, 1909
-versus-
PEDRO
CARMEN, ET
AL.,
Defendants-Appellants.
D
E C I S I
O N
JOHNSON,
J :
From the record the
following
facts appear:chanroblesvirtuallawlibrary
First. That upon the
27th day of February 1906, the fiscal of the Province of Nueva Ecija
presented
in the Court of First Instance of said province a complaint against
Victor
Pangilinan, charging him with the crime of robo en cuadrilla.
Second. That, after
the defendant was arrested on the 23d of March, 1906, a bond was given
for his release, signed by Pedro Carmen and Antonio Elvina. Said bond
was
in the words following:
"Witness: Personal
bond. — In the Court of First Instance of San Isidro, Province of Nueva
Ecija, Philippine islands. — The United States vs. Victor Pangilinan.
"A complaint having
been filed in the Court of First Instance of San Isidro of the Province
of Nueva Ecija on the 27th day of February 1908, charging Victor
Pangilinan
with the crime of robo en cuadrilla, and he having been admitted to
bail
in the sum of P1,000, therefore, we Don Pedro Carmen Legaspi, of San
Isidro,
Nueva Ecija, and Don Antonio Elvina, of the same place, jointly and
severally,
hereby bind ourselves to guarantee the appearance of the accused Victor
Pangilinan before the court which will try him to answer the said
charge,
and that he shall be at all times amenable to the orders and
resolutions
of said court, and, if convicted, he shall appear for judgment and
present
himself for the execution thereof; and, if he fails to perform any of
these
conditions, that we will pay to the United States the sum of
P1,000.-Pedro
Carmen.-Antonio Elvina. — Pueblo of San Isidro, Province of Nueva
Ecija.-We,
Don Pedro Carmen Legaspi, of San Isidro, Nueva Ecija and Don Antonio
Elvina,
of the same place, having been duly sworn, solemnly declare, each for
himself,
that we are residents and property holders in the Philippine Islands,
and
that we are each worth the sum of the above bond of P1,000, over and
above
all debts and obligations which we may have and property which ca not
be
attached by reason of said bond. Therefore, we, Don Pedro Carmen
Legaspi,
and Don Antonio Elvina, residents of San Isidro, Nueva Ecija, jointly
and
severally, hereby guarantee that the accused Victor Pangilinan shall
appear
before the court which will try him to answer the aforesaid charge,
that
he shall be at all times amenable to the orders and resolutions of the
court, and, if convicted, he shall appear for judgment and present
himself
to the execution thereof; and, if he fails to perform any of these
conditions,
that we will pay to the United States the sum of P1,000.-Pedro
Carmen.-Antonio
Elvina.-Subscribed and sworn to before me this 23d day of March 1906,
in
San Isidro, Philippine Islands.-Rufino Villaruz, auxiliary justice of
the
peace."
Third. That later, the
defendant was duly tried before the said court upon the said complaint,
and on the 12th day of November 1906, was duly sentenced by the judge
of
the said court to be imprisoned for the period of nine years of
presidio
mayor, and to suffer the accessory penalties provided for in article 57
of the Penal Code, and to return the property stolen to one Fulgencio
Manansala,
or to indemnify the said Manansala in the sum of P11.75, and to pay the
costs.
Fourth. That on the
18th day of November 1906, the sheriff being unable to find the
defendant
in his province, notified the said bondsmen Pedro Carmen and Antonio
Elvina,
to present the body of the said defendant before the court immediately.
On the 21st day of December 1906, the bondsman Pedro Carmen, for
himself
and as attorney for Antonio Elvina, presented a petition in the Court
of
First Instance of said province, asking that they be given thirty days
more within which to present the body of the defendant Victor
Pangilinan
in said court.
Fifth. On the 21st
day of December 1906, the judge, the Hon. Julio Llorente, granted to
the
said bondsmen an additional thirty days’ time within which to present
the
body of the defendant before the Court.
Later it appears that
the governor of the province, as well as the Constabulary of said
province,
made diligent search in said province to find the body of the
defendant,
but his whereabouts could not be ascertained.
Sixth. On the 7th day
of August 1907, the fiscal of said province commenced an action in the
Court of First Instance upon said bond against the said bondsmen for
the
purpose of recovering of them the amount of their liability as fixed by
said bond. A copy of the said complaint was served upon each of the
defendants
upon the 14th day of August 1907.
Later, each of the
defendants duly appeared in said cause and after having presented a
demurrer,
which was denied, filed an answer to said complaint, which answer was a
general and a special denial. The special denial simply states that the
facts set out in the complaint were not sufficient to constitute a
cause
of action. This special denial was nothing more nor less than a
demurrer
to the complaint, and should have been so considered.
The cause was brought
to trial upon the 30th day of April 1908. After hearing the evidence
adduced
during the trial of the cause, the judge of the lower court rendered a
judgment in favor of the plaintiff and against the defendants, jointly
and severally in the sum of P1,000 and costs. Against this sentence the
defendants appealed and made the following assignments of error:
"1. The court erred
in holding that the simple fact that the appearance of the accused was
ordered for the rendering of the judgment, and that the fact that the
said
accused failed to appear and the bondsmen failed to present the body of
the same, were sufficient grounds to enforce the bond.
"2. The court,
finally,
erred in overruling the demurrer to the complaint, and in sentencing
the
defendants to pay jointly and severally the sum of P1,000 to the
Government
of the United States in the Philippines."
With reference to the first
above assignment of error: By reference to the obligation or bond which
the defendants gave, it will be seen that they imposed upon themselves
the following obligation:
"A complaint having
been filed in the Court of First Instance of San Isidro in the Province
of Nueva Ecija on the 27th day of February, 1906, charging Victor
Pangilinan
with the crime of robo en cuadrilla, and he having been admitted to
bail
in the sum of P1,000, therefore, we, Don Pedro Carmen Legaspi, of San
Isidro,
Nueva Ecija, and Don Antonio Elvina, of the same place, jointly and
severally,
hereby guarantee that the accused Victor Pangilinan shall appear before
the court which will try him to answer said charge, and that he shall
be
at all times amenable to the orders and resolutions of the court, and,
if convicted, he shall appear for judgment and present himself for the
execution thereof; and, if he fails to perform any of these conditions,
that we will pay to the United States the sum of P1,000."
The plaintiff proved, and
the defendants did not attempt to deny, that no part of this obligation
had been complied with. By reason of their failure to comply with the
conditions
of the bond they were liable to pay the amount of the obligation
assumed
by said bond, and the lower court committed no error in rendering a
judgment
against them for the amount of said bond.
With reference to the
second assignment of error: Upon an examination of the complaint filed
in said cause, We are convinced, and so hold, that the complaint was
sufficient
in law to show a cause of action existing against the said defendants.
Therefore, the judgment of the lower court is hereby affirmed, with
costs.
While there is no
objection
raised in the record to the practice adopted by the plaintiff in this
cause
in the Court below, yet We are of the opinion that the practice in
commencing
an ordinary action upon a recognizance or a bond such as constitutes
the
basis of the action in the present cause, was not intended by Section
76
of General Orders No. 58. This method of recovering the amount due upon
a bond given in a criminal cause, in our opinion, is entirely too
cumbersome
and is subject to too many delays. Section 76 above cited, provides as
follows:
"If without
sufficient
cause the defendant neglects to appear for arraignment, trial, or
judgment,
or neglects to appear on any other occasion when his presence may be
required
in court, or fails to surrender himself in execution of the judgment,
the
court must direct the fact of his neglect or failure to be entered in
the
records of the cause, and declare the undertaking or deposit, as the
case
may be, to be forfeited. But if at any time within thirty days
thereafter
the defendant or his counsel appears and satisfactorily explains the
neglect
or failure, the court may direct the forfeiture to be discharged upon
such
terms as it may consider just. If the forfeiture is not so discharged,
the promoter fiscal shall at once proceed by action against the bail
upon
their undertaking."
The last sentence of said
Section provides that “if the forfeiture is not so discharged, the
promoter
fiscal shall at once proceed by action against the bail upon their
undertaking.”
We believe that the word action” as used here does not necessarily mean
the ordinary action for the purpose of recovering a sum of money, but
rather
that the promotor fiscal shall at once take such steps as may be
necessary
against the bail for the purpose of recovering the amount due under
such
bond. The practice which has been adopted, as We believe, by the Courts
of First Instance generally, is substantially as follows:
(1) If the defendant
does not appear after final sentence for the purpose of receiving the
penalty
imposed by the Court, the Court shall make a record of this fact;
(2) The Court shall
declare the bond forfeited;
(3) The Court shall
then notify the said bondsmen and give them thirty days within which to
present the body of the defendant;
(4) If the bondsmen
do not present the body of the defendant within thirty days, at the
expiration
of that time the Court shall give them notice to show cause why a
judgment
should not be rendered against them for the amount of the bond; and
(5) If no sufficient
reason appears or is given by the bondsmen for not presenting the body
of the defendant within the time specified above, the Court may then
render
a judgment against the said bondsmen for the amount represented by said
body, upon which judgment an execution should be issued at once without
further delay against said bondsmen. Ii other words, in order to
enforce
the bond, the prosecuting attorney should not bring a new action, nor
institute
an ordinary action; he should only take the necessary steps for the
execution
of the prior judgment of forfeiture and require the bondsmen to pay the
amount of the bond or attach a portion of their property the proceeds
of
which on sale should be enough to satisfy the liability of the bondsmen.
Arellano, C.J.,
Torres, Mapa and Carson, JJ., concur.
Separate
Opinions
WILLARD,
J.,
Dissenting:
Section 76 of General
Orders No. 58, is as follows:chanroblesvirtuallawlibrary
"If without
sufficient
cause the defendant neglects to appear for arraignment, trial, or
judgment,
or neglects to appear on any other occasion when his presence may be
required
in court, or fails to surrender himself in execution of the judgment,
the
Court must direct the fact of his neglect or failure to be entered in
the
records of the cause, and declare the undertaking or deposit, as the
case
may be, to be forfeited. But if at any time within thirty days
thereafter
the defendant or his counsel appears and satisfactorily explains the
neglect
or failure, the court may direct the forfeiture to be discharged upon
such
terms as it may consider just. If the forfeiture is not so discharged,
the promotor fiscal shall at once proceed by action against the bail
upon
their undertaking."
This
action was evidently
commenced by virtue of the last provision contained in this Section,
and
in my opinion was prematurely brought. Such an action can only be
brought
“if the forfeiture is not so discharged.” The forfeiture cannot be
discharged
until it has been declared, the sureties have thirty days after such
declaration
in which to act and during that time no action can be commenced against
them. No forfeiture has ever been declared in the criminal case. That
the
facts showing such a forfeiture might be proven in this action cannot
be
the equivalent of the declaration required in the criminal case, for
the
period of thirty days would thereby be eliminated. Section 76 of
General
Orders No. 58, is similar in this respect to Act No. 1778, which
provides
that an action for forcible entry by reason of nonpayment of rent shall
not be brought until three days have elapsed after a demand for payment
has been made. The court, in the criminal case, can still declare the
forfeiture
and, if it is not discharged within thirty days thereafter, another
action
can be brought. |