THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLANT, VS. LEE DIET, ACCUSED AND RIZAL SURETY AND INSURANCE COMPANY, BONDSMAN AND APPELLEE.

On
May 25, 1951, Lee Diet was charged before the Justice of the Peace
Court of Cotabato, Cotabato, with the crime of uttering false U. S.
gold coins in connivance with some counterfeiters. On the same date,
the Justice of the Peace issued a warrant for his arrest and fixed the
bail bond for his provisional liberty at P12,000. Thereupon, the bond
was put up by the Rizal Surety & Insurance Company and the accused
was released.

The Justice of the Peace set the preliminary
investigation of the case for June 14, 1951. On this date the accused
failed to appear. Counsel for the surety however appeared and informed
the court that the whereabouts of the accused was not known due to the
fact that he escaped three days before while under the custody of the
Philippine constabulary. It appears that the accused while out on bail
was re-arrested on June 8, 1951, by some agents of the constabulary for
questioning regarding his alleged subversive activities, but during his
detention he escaped. For his failure to appear, the Justice of the
Peace declared the bond forfeited and required the surety to produce
the body of the accused within 30 days from notice and to show cause
why judgment should not be rendered against it for the amount of the
bond. Two days later, however, the justice of the peace reconsidered
his order and remanded the case to the Court of First Instance of
Cotabato.

On July 2, 1951, the Provincial Fiscal filed the
corresponding information against the accused. The arraignment and
trial of the accused were set for August 2, 1951, but on said date the
accused again failed to appear, whereupon the Provincial Fiscal moved
for the confiscation of the bond posted by him for his provisional
liberty. Counsel for the surety objected giving as reason for the
non-appearance of the accused the same reason given by him before the
Justice of the Peace Court of Cotabato. The court denied the motion
holding in substance that the reason given by counsel for the surety
for the non-appearance of the accused was satisfactory and had the
effect of relieving it from its liability under the bond. Hence this
appeal.

The only question to be determined is whether, while
the accused was out on bail, was picked up by the constabulary
authorities in the province for questioning in connection with
subversive activities, and thereafter escaped from their custody, will
excuse the surety, the Rizal Surety & Insurance Company, from the
non-performance of its obligation under the bond.

It is a
well-settled doctrine that a surety is the jailer of the accused. “He
takes charge of, and absolutely becomes responsible for the latter’s
custody, and under such circumstance, it is incumbent upon him, or
rather, it is his inevitable obligation, not merely a right, to keep
the accused at all times under his surveillance inasmuch as the
authority emanating from his character as surety is no more nor less
than the Government’s authority to hold the said accused under
preventive imprisonment.” (People vs. Tuising, 61 Phil, 404.)

When the surety in this case put up the bond for the provisional
liberty of the accused it became his jailer and as such was at all
times charged with the duty to keep him under its surveillance. This
duty continues until the bond is cancelled, or the surety is
discharged. The procedure for the discharge of a surety is clear in the
Rules of Court. Thus, it is there provided that the bail bond shall be
cancelled and the sureties discharged of liability (a) where the sureties so request upon surrender of the defendant to the court; (b) where the defendant is re-arrested or ordered into custody on the same charge or for the same offense; (c)
where the defendant is discharged by the court at any stage of the
proceedings, or acquitted, or is convicted and surrendered to serve the
sentence; and (d) where the defendant dies during the pendency of the action. (Section 16, Rule 110.)

It is true that a surety may also be discharged from the
non-performance of the bond when its performance “is rendered
impossible by the act of God, the act of the obligee, or the act of the
law” (U. S. vs. Sunico, 40 Phil., 826-832), but even in these
cases there still remains the duty of the surety to inform the court of
the happening of the event so that it may take appropriate action and
decree the discharge of the surety (section 16, Rule 110). Here no such
step was taken by the surety when the accused was re-arrested by the
constabulary authorities. The surety kept silent since it did not take
any of the steps pointed out by law if it wanted to be relieved from
its liability under the bond. It only gave notice to the court of that
fact when the court ordered the appearance of the accused either for
arraignment or for trial. It was only then that it informed the court
that the accused was re-arrested and that while he was detained, he
made good his escape. Since at that time his bond was still valid and
binding, and notwithstanding the re-arrest of the accused the surety
kept silent, it must be presumed that the surety chose to continue with
its liability under the bond and should be held accountable for what
may later happen to the accused. It has been held that “The subsequent
arrest of the principal on another charge, or in other proceedings,
while he is out on bail does not operate ipso facto as a
discharge of his bail * * *. Thus if, while in custody on another
charge, he escapes, or is again discharged on bail, and is a free man
when called upon his recognizance to appear, his bail are bound to
produce him.” (6 C. J., p. 1026.)

This case should be distinguished from the recent case of People vs.
Mamerto de la Cruz, 93 Phil., 487, wherein this Court said: “It has
been seen that if the sureties did not bring the person of the accused
to court, which they were powerless to do due to causes brought about
by the Government itself, they did the next best thing by informing the
court of the prisoner’s arrest and confinement in another province and
impliedly asking that they be discharged. On its part, the court, by
keeping quiet, and, indeed, issuing notices of the hearings direct to
the prisoner through the sheriff of Camarines Norte and ignoring the
sureties, impliedly acquiesced in the latter’s request and appeared to
have regarded the accused surrendered.” No such step was taken by the
surety in this particular case for it failed even to inform the court
of the apprehension made of the accused by the constabulary authorities.

Wherefore, the order appealed from is reversed without pronouncement as to costs.

Paras, C. J., Pablo, Bengzon, Padilla and Labrador, JJ., concur.
Tuason, Reyes, and Jugo, JJ., concur in the result.

Montemayor, J.,
concurring: I concur in this opinion penned by Mr. Justice Bautista
because it is in accordance with and follows the view maintained in my
dissenting opinion in the case of People vs. Mamerto de la Cruz, 93 Phil., 487, despite an attempt to distinguish the present Diet case from the Cruz case.