FIRST
DIVISION
THE
UNITED STATES,
Plaintiff-Appellant,
G.
R.
No. 13638
February
24, 1920
-versus-
TOMAS
SUNICO AND
NG CHIONG,
Defendants-Appellees.
D
E C I S I
O N
JOHNSON,
J :
It appears from the record
that on the 9th day of August 1915, one, Lao Yong, was sentenced by the
Court of First Instance for the City of Manila to be imprisoned for a
period
of two years and to pay a fine of P300, for illegal importation of
opium.
Said sentence, upon appeal, was affirmed by this Court on October 14,
1916,
[G.R. No. 11416]. The cause having been remanded to the
Court
of First Instance in order that the sentence may be executed, the
appellees
herein as sureties of the said Lao Yong were notified to produce his
body
before the Court on November 14, 1916, with the admonition that, should
they fail to do so, their bond would be forfeited.
The said sureties fail
to produce the body of their principal on the date mentioned [November
14, 1916], whereupon the Court entered an order declaring forfeited the
bail bond executed by them and gave them 30 days within which to
produce
their principal before the Court and to show cause why execution should
not issue against them for the amount of their bond.
On December 14, 1916,
the said sureties petitioned the Court "that all action on their bond
be
suspended for at least three months" upon the ground that "they are
informed
and believed that the accused, Lao Yong, has been unable to return to
the
Philippine Islands to undergo sentence for the reason that he is
detained
in jail at Calcutta, in India for an offense against the customs laws
of
that country." Said motion was granted by the lower court, and the
sureties
were given an extension of three months within which to produce the
body
of their principal.
On March 15, 1917,
the said sureties again asked the Court for a further extension of six
months within which to comply with the original order of the court of
November
14, 1916, on the ground that they had not yet secured information from
India as to the detention there of the accused. The Court granted them
a further extension of three months.
On July 5, 1917, the
sureties again asked for an extension of sixty days upon the ground
that
their principal was sick in Macao [China] and was unable to return to
the
Philippine Islands. The Court granted them forty days, with the
condition
that if at the expiration of said period the accused was not produced
before
the court, the bond would be forfeited.
Shortly before the
expiration of the period last above granted, to wit, on August
16,
1917, the sureties informed the Court that they had received a
cablegram
to the effect that the accused Lao Yong died in Macao on August 13,
1917,
and asked for "a delay of 30 days within which to verify the above
report."
Said motion was granted by the Court.
Finally, on November
7, 1917, the fiscal of the City of Manila presented a motion asking the
Court to issue an order for the execution of the bond in question.
Accompanying
said motion was an argument to the effect that:
"The fact that the
principal [Loa Yong] was sick in Macao on June 16, 1917, and died in
the
same place on August 12, 1917, several months after the forfeiture of
the
bond, is not a satisfactory excuse for his failure to appear on the
date
required by the Court, and does not, in the opinion of the undersigned,
relieve the bondsmen from their responsibility on the bond."
On November 12, 1917, the
attorney for the sureties filed in Court a memorandum, answering the
above
argument and attempting to show that the death of the principal, Lao
Yong,
after the forfeiture of the bond and before judgment thereon, was a
sufficient
excuse to exonerate the bondsmen.
The lower court
sustained
the contention of the sureties and, on December 26, 1917, issued an
order
revoking its order of November 14, 1917, and absolved the said sureties
from all obligation and liability under their bond. From that order,
the
Government appealed to this Court.
It will be noted that
the question as to whether the principal, Lao Yong, had really died or
not was not presented in the lower court. It would seem that both
parties
assumed that he had died. And the lower court, in the order herein
appealed
from, found as a fact that the said Lao Yong died in Macao on August
12,
1917, evidently basing such finding from the two documents attached to
the record, which appear to be affidavits in Portuguese, of which there
is no translation, and which do not appear to have been properly
introduced
in evidence. However unfounded and erroneous that finding may be, as
contended
by the Attorney-General in his brief, We do not feel called upon to
consider
it in view of the fact that this cause was evidently submitted to the
lower
court upon the hypothesis that the principal, Lao Yong, died on the
12th
day of August, 1917, nearly nine months after the bond was declared
forfeited
for his failure to appear before the court and serve the sentence
imposed
upon him. Furthermore, under the facts and circumstances of this case,
as far as the liability of the sureties is concerned, We consider it
immaterial
whether their principal died or not. The question is, Did the sureties
and appellees in this case show cause sufficient to justify their
exoneration?
We fail to find in
the record a copy of the bond executed by the appellees; but, in the
absence
thereof, We presume that it was executed in accordance with the
provision
of the law and that its terms are substantially those provided for in
Section
67 of General Orders No. 58. Under said Section, the sureties jointly
and
severally undertake that the principal will appear and answer the
charge
against him "in whatever court it may be tried, and will at all times
hold
himself amenable to the orders and process of the court, and if
convicted
will appear for judgment, and render himself to the execution thereof;
and if he fails to perform any of these conditions," that the sureties
will pay to the United States the amount of the bond. The amount of the
bond in this case, according to the Attorney-General, was P3,500.
The law governing the
forfeiture of bail bonds in this jurisdiction is found in Section 76 of
General Orders No. 68, which 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 promotor fiscal shall at once proceed by action against the bail
upon
their undertaking."
It is clear from the foregoing
that if a bail bond is declared forfeited for failure of the accused to
appear when required by the Court, the forfeiture may be discharged if,
within thirty days, the accused or his counsel appears before the Court
and satisfactorily explains why he neglected or failed to appear when
first
required so to do. The practice is that when the appearance of an
accused
is required by the Court, his sureties are notified to produce him
before
the Court on a given date. If the accused fails to appear as required,
the bond is declared forfeited and the bondsmen are given 30 days
within
which to produce their principal and to show cause why a judgment
should
not be rendered against them for the amount of their bond. Within the
said
period of 30 days the bondsmen are required to do two things in order
that
they may be exonerated: (1) they must produce the body of their
principal,
or give the reason for its non-production; and (2) they must explain
satisfactorily
why the bond was not performed, why the accused did not appear
before
the court when first required so to do. Failing in these two
requisites,
the sureties cannot be exonerated and a judgment must be rendered
against
them for the amount of their bond.
In order that the
sureties
may be exonerated, what will constitute a satisfactory explanation for
the non-performance of the bond? "It is the settled law of this class
of
cases that the bail will be exonerated where the performance of the
condition
is rendered impossible by the act of God, the act of the obligee, or
the
act of the law. Where the principal dies before the day of performance,
the case is within the first category. Where the Court before which the
principal is bound to appear is abolished without qualification, the
case
is within the second. If the principal is arrested in the State where
the
obligation is given and sent out of the State by the governor, upon the
requisition of the Governor of another State, it is within the third."
[Taylor vs. Taintor, 83 U. S., 366, 369, cited with approval in U. S.
vs.
Que Ping, 40 Phil., 17].
Taking the foregoing
as the gauge of what may be considered an explanation sufficient to
justify
the exoneration of a bail, can the appellees herein rightly claim to
have
rendered such an explanation? What explanation did they offer for the
nonperformance
of their bond? At first, they informed the Court that they could not
produce
their principal because, as they had been informed, he was being
detained
by the authorities in India for an offense against the customs laws of
that country; then, nearly seven months later, they told the Court that
they had received information that their principal was sick at Macao
and
could not return to the Philippine Islands; then, forty days
thereafter,
they informed the Court that they had received news that their man had
died and lastly, they told the court that they had been assured of his
death, and for this reason asked that they be relieved from all
obligation
and liability under their bond.
Under no consideration
whatever can such an "explanation be considered satisfactory and
sufficient
to justify the exoneration of the appellees in this case. To release
them
upon such an "explanation" would be to treat the solemn obligation of a
bail bond as mere farce and a mockery. None of the successive excuses
given,
the alleged arrest and detention of the principal in India, his alleged
sickness in Macao, and his alleged subsequent death, was a reason at
all
why the appellees did not produce their said principal before the Court
on November 14, 1916. They should not have allowed him to escape to
foreign
countries and get beyond the jurisdiction of the Court. "It was against
that they guaranteed the government; to prevent that they became
responsible."
[State vs. McAllister, 54 N. H., 156, 158]. To this end, they had
plenary power and control over his person. "When bail is given, the
principal
is regarded as delivered to the custody of his sureties. Their dominion
is a continuance of the original imprisonment. Whenever they choose to
do so, they may seize him and deliver him up in their discharge; and if
that cannot be done at once, they may imprison him until it can be
done.
They may exercise their rights in persons or by agent. They may pursue
him into another State; may arrest him on the Sabbath; and, if
necessary,
may break and enter his house for that purpose." [Taylor vs. Taintor,
83
U. S. 366, 371; see also U. S. vs. Van Fossen, 28 Fed. Cas., 357].
The lower court
exonerated
the appellees as sureties in this case, following the Decision in some
of the States of the Union, which hold that the death of the principal
in recognizance after forfeiture thereof but before judgment thereon
may
be pleaded by the sureties in discharge of such recognizance. Nearly
all
of the cases cited and relied upon by the lower court have also been
cited
and commented upon by this Court in the case of U. S. vs. Babasa [19
Phil.,
198]. In that case Babasa et al., as sureties, asked that they be
exonerated
on the ground that their principal had been killed by the Constabulary
subsequent to the judgment against them on their bond. This Court,
construing
Section 76 of General Orders No. 58, held that said Section was
conclusive
against their contention.
The court further said:
"We do not forget those decisions in which it has been held that the
death
of the principal in any recognizance, after forfeiture thereof, but
before
judgment thereon, may be pleaded by the sureties in discharge of such
recognizance.
[State vs. Traphagen, 45 N. J. L., 134 ; Woolfolk vs. The State, 10
Ind.,
532 ; Mather vs. The People, 12 Ill., 9; Mix vs. The People, 26 Ill.,
481;
People vs. Watkins, 19 Ill., 117]. These decisions, however, were,
generally
speaking, based upon the wording of particular statutes. Under the form
of the statute which We are construing [Sec. 76, General Orders No.
58],
and in view of the mischief which it seeks to prevent, We are of the
opinion
that the judgment of the Court below should be affirmed." [U. S. vs.
Babasa,
19 Phil., 198, 202].
Aside from the
statutory
provisions [Sec. 76, General Orders No. 58] which preclude the
contention
of the sureties in this case, there are also various decisions which
militate
against their pretension. In the case of Lamphire vs. State [73 N. H.,
462; 62 Atl., 786; 6 Am. & Eng. Ann. Cas., 615], the bond signed by
Lamphire for the release of one McIntyre was declared forfeited because
McIntyre, without the knowledge of his sureties, enlisted in the U. S.
Navy making it impossible for the sureties to produce him in accordance
with the terms of their bond. Lamphire then petitioned to be released
from
the conditions of the bond. The Supreme Court of New Hampshire had
statutory
authority to release the bondsmen where the sureties "without their
fault
are prevented from surrounding their principal," but that court decided
that the bond of Lamphire should be forfeited upon the ground that:
"The principal was
not impressed as a seaman or drafted by the government, but voluntarily
enlisted. If by such voluntary act he has been enabled to depart from
the
state so that the sureties cannot reach him, his absence is due to his
voluntary act, and not, as far as appears, to any act of the government
of the United States His absence is purely voluntary and affords the
sureties
no justification or excuse. 'It was against that that they guaranteed
the
government ; to prevent that they became responsible.' [State vs.
McAllister,
54 N. H., 156, 158]. The recognizance was a contract between the
sureties
and the state for the production of the principal at the required time."
In the following cases,
it has been held that serious sickness, insanity, or absence from the
State,
of the principal, on the date fixed for his appearance in court was not
a sufficient cause to excuse his sureties for the non-performance of
the
conditions of their bond [Bonner vs. Com., 27 Ky. L. Rep., 652; Markham
vs. State, 33 Tex. Crim. Rep., 91; State vs. Edwards, 4 Hump., 266;
Piercy
vs. People, 10 Ill. App., 219; Adler vs. State, 35 Ark., 517; 37 Am.
Rep.,
48; Com. vs. Hart, 17 Pa. Co. Ct., 148].
The following cases
hold that the death of the principal after default and forfeiture of
his
recognizance does not exonerate his sureties: U. S. vs. Van Fossen [28
Fed. Cas 357]; The State of Iowa vs. Scott [20 Iowa, 63].
Our conclusion is that
the sureties and appellees herein had not shown cause sufficient to
justify
their exoneration. Therefore, the order of the lower court discharging
the said sureties and appellees is hereby revoked and it is hereby
ordered
and decreed that a judgment be rendered against them, jointly and
severally,
and in favor of the appellant for the sum of P3,500, the amount of
their
bond, with costs. So ordered.
Arellano, C.J.,
Torres, Araullo and Avanceña, JJ., concur.
Separate
Opinions
STREET,
J.,
Dissenting:
Certainly, no question
can reasonably be made as to the power of a Court of First Instance to
prolong the time within which the bondsmen of a person who has been
admitted
to bail may be allowed, under Section 76 of General Orders No. 58, to
explain
their neglect or failure to produce the principal named in the bond.
For
this reason the forfeiture of the bond with which we are here concerned
never became absolute. On the contrary, the Court below kept the matter
open until the day when the bondsmen appeared and showed that the
principal
named in the bond was dead. Is it not evident that if the sureties had
produced in Court and had surrendered their principal upon the very
last
day that the Court acted in this matter, that is, on December 26, 1917,
it would have been within the power of the Court to relieve the
bondsmen
from all responsibility on their bond? Therefore, when it was made to
appear
that the principal had died on August 12, 1917, and' it being evident
that
the bondsmen had been unable to produce him before his death because he
had absconded from the Islands, the action of the trial judge, in
refusing
to make the forfeiture of the bond absolute and in relieving them from
liability, was both just and proper.
The obligation of the
bondsmen to produce their principal in Court was terminated by his
death,
which occurred while the period allowed by the trial court for the
bondsmen
to show cause was yet running. It is to be admitted that if' the court
of first instance had, in the exercise of its discretion, refused to
extend
the time within which the bondsmen might show cause for their failure
to
produce their principal, or if they had failed to ask for the extension
of time, the liability of the bondsmen would have become fixed, and the
judgment declaring the bond forfeited would have been final.
In U. S. vs. Babasa
[19 Phil. Rep. 198], a bond was declared forfeited on October 15 and an
execution was issued against the bondsmen by direction of the Court on
January the 27th following. It was afterwards made to appear that the
principal
had been killed on December 20, intervening between these two dates, at
which time the order of forfeiture had doubtless already become final,
as there was nothing in the report of that case to show that the Court
of origin had extended the period of 30 days within which the bondsmen
were entitled to show cause. All of the American authorities recognize
the rule that the death of the principal prior to the date of the
forfeiture
of the bond releases the bondsmen; and We do not question that a death
occurring after forfeiture has become final does not discharge the
bondsmen.
In State vs. Scott
[20 Iowa, 64], cited in the opinion, the death of the principal
occurred
two years after the bond had been forfeited in a criminal action. It
was
held a civil action upon the bond that the death in this case was no
defense.
The adjudication of forfeiture in the criminal case must of course be
accepted
as conclusive where a separate civil action is instituted.
MALCOLM,
J.,
Dissenting:
In
my opinion, the
judgment of the trial court should not be disturbed. One fact, and one
fact only, need be recalled, namely, that the death of the principal is
admitted to have taken place prior to the expiration of the extension
of
time granted by the trial court to the sureties in which they were to
produce
the body of the principal. The sole question, not discussed in
the
main decision or in the dissenting opinion of Mr. Justice Street, then
is: Whether a Court has ' authority to extend the thirty-day period
fixed
by Section 36 of the Code of Criminal Procedure. I think, a Court
possesses
such inherent discretion or reasons which delve deep into the
foundation
principles of equity and justice. This concession once made, an the
Attorney-General
does not argue against it, and the death of the principal before the
day
of performance i. e., the ultimate date fixed by the court —
acts
to discharge the sureties on the bail bond. |