THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. MAMERTO ABNER ET AL., DEFENDANTS. ROBERTO SOLER AND DOMINGO ABELLA, BONDSMEN AND APPELLANTS.

In a complaint signed by Lt. Fernando G. Regino, P. A., with the
heading “In the Justice of the Peace Court of Tinambac, Camarines Sur,”
Mamerto Abner was charged, with others, with robbery in band with rape
committed in the municipality of Tinambac, province of Camarines Sur.
Upon motion of the assistant provincial fiscal of September 6, 1946,
alleging that the justice of the peace of Tinambac was absent and the
municipal mayor refused to receive the complaint, the Court of First
Instance of Camarines Sur directed the justice of the peace of Naga,
the capital, to conduct the necessary preliminary investigation.
Mamerto Abner was thereafter admitted to bail and the herein
appellants, Roberto Soler and Domingo Abella, executed the necessary
bail bond for P15,000 dated October 4, 1946, and approved by the
justice of the peace of Naga on the same date. Notwithstanding notice,
the accused Abner and his bondsmen failed to appear at the preliminary
investigation set for March 26, 1947. On April 2, 1947, Abner, through
counsel, filed a petition waiving the right to a preliminary
investigation. By order of April 5, 1947, the justice of the peace of
Naga forwarded the case in respect to Abner to the Court of First
Instance of Camarines Sur. Gn May 8, 1947, the provincial fiscal filed
the corresponding information in the Court of First Instance of
Camarines Sur. The trial originally set for November 25, 1947, was
postponed to January 16, 1948, but upon motion of appellants, the
trial was set for March 2, 1948. On February 28, 1948, the appellants
filed a motion for another extension of thirty days within which to
produce the body of Abner, which was granted, and the trial was again
postponed to March 29, 1948. On this date, Abner and the appellants
failed to appear. The provincial fiscal accordingly filed a petition
for the confiscation of the bail bond executed by the herein
appellants, and the same was granted by the Court of First Instance of
Camarines Sur in its order of March 31, 1948. From this order the
bondsmen have appealed.

Appellants contend that the Court of First Instance did not acquire
jurisdiction, because no complaint was filed in the justice of the
peace court of Tinambac, and reliance is placed on the allegation of
the fiscal, in his motion of September 6, 1946, that the complaint
signed by Lieutenant Regino was not so filed in view of the absence of
the justice of the peace and the refusal of the municipal mayor of
Tinambac to receive said complaint. It appears, however, that the bond
executed by the appellants on October 4, 1946, contained the following
recital: “A complaint having been filed on September 17, 1946 in the
justice of the Peace Court of Tinambac, Camarines Sur * * *.” This
admission, which is subsequent to the motion of the fiscal of September
6, 1946, is inconsistent with appellants’ contention. Moreover, the
proceedings had before the justice of the peace of Naga and the Court
of First Instance of Camarines Sur, in relation to the measures taken
by the appellants prior to the confiscation of their bond, carry the
implication that the complaint was duly filed. The presumption that
official duty was performed has not been destroyed. Although the
justice of the peace has jurisdiction to conduct preliminary
investigations only of offenses committed within his municipality, the
justice of the peace of the provincial capital, when, as in the case at
bar, directed by the Court of First Instance, may conduct such
preliminary investigation of any offense committed anywhere within his
province. (Sec. 2, Rule 108, Rules of Court.)

It appears that the bond in question was not signed by the accused
Abner as principal; and it is contended by the appellants that it is
accordingly void. Section 1, Rule 110, of the Rules of Court, provides
that “bail is the security required and given for the release of a
person who is in the custody of the law, that he will appear before any
court in which his appearance may be required as stipulated in the bail
bond or recognizance.” Under this there are two methods of taking bail:
(1) by bail bond and (2) by recognizance. A bail bond is an obligation
given by the accused with one or more sureties, with the condition to
be void upon the performance by the accused of such sets as he may
legally be required to perform. A recognizance is an obligation of
record, entered into before some court or magistrate duly authorized to
take it, with the condition to do some particular act, the most usual
condition in criminal eases being the appearance of the accused for
trial. (Moran, Comments on the Rules of Court, 2nd Ed., Vol. II, page
592.) In U.S. vs. Sunico et al., 48 Phil. 826, 834, this Court, citing Lamphire vs.
State, 73 N. H., 462; 62 Atl., 786; 6 Am. & Eng. Ann. Cas., 615,
defined a recognizance as “a contract between the sureties and the
State for the production of the principal at the required time.” The
bail bond executed by the appellants, though so denominated, is
essentially a recognizance, an “obligation” contracted with the State
by the appellants, not requiring as an indispensable condition for its
validity, the signature of the accused. In addition, under the
circumstances of this case, the appellants are estopped from assailing
the effectiveness of their bail contract. If, as contended by
appellants, it would be difficult, without the accused Abner having
signed as principal, for them to obtain indemnity from or to have power
and control over him, they are solely to blame. Neither is there merit
in the argument that the obligation of appellants under the bond is
merely to pay P15,000 in case the accused should fail to pay that
amount, because the latter, who has not signed it, is of course not
bound thereby.

Appellants allege that the Government had launched a campaign for
the capture of Abner, dead or alive, as a result of which he is forced
to remain in hiding. Thus the appellants are allegedly unable to
produce him in court, due to an act of the Government, In the order of
the trial court denying appellants’ motion for reconsideration,
however, it is recited that “if the government launched the campaign
against Abner and his followers in Tinambac and Partido during the
months of July up to December, 1947, it was because Mamerto Abner and
his gang have turned out brigands who threatened to disturb the peace
and tranquility of the people in that part of the province of Camarines
Sur.” Hence the alleged search for Abner was motivated by his own
voluntary act and cannot, therefore, be invoked by appellants, (U.S. vs. Sunico, supra.)

The appealed order is affirmed -with costs against the appellants. So ordered.

Moran, C.J., Pablo, Bengzon, Tuason, Montemayor, and Reyes, JJ., concur.

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FERIA, J., concurring:

I concur in the decision with the following modification in
connection with the necessity of defendant’s signature in his bail bond.

A bail bond in criminal cases is an obligation subscribed, not by
the accused, but by two or more sureties for the release of the
defendant who is in the custody of the law, conditioned upon that the
latter will appear before any court in which his appearance may be
required. It is not different from recognizance, and for that reason
Rule 110 of the Rules of Court uses the word bail bond and recognizance
interchangeably. That the law does not require that the bail be
subscribed or signed by the accused is shown by the provisions of Sec.
9 which require that in ease there are only two sureties, each must be
worth the amount specified in the undertaking above all just debts
etc.”; by Sec. 15 which provides that, when the appearance of the
defendant is required by the court, his sureties, and not the accused,
shall be notified to produce him or a given date in compliance with
their obligation stipulated in the bail bond. And if the defendant
fails to appear as required, the bond is declared forfeited and the
bondsmen are given thirty days within which to produce the accused, and
to show cause why a judgment shall not be rendered against them for the
amount of their bond; and “failing in these two requisites, a judgment
shall be rendered against the bondsmen” (not against the accused); by
See. 17 which provides that “for the purpose of surrendering the
defendant, the bailors may arrest him, or on a written authority
endorsed on a certified copy of the undertaking may cause him to be
arrested”; and specially by the form of bail bond found in General
Order No. 58, which has not been modified or repealed by the Rules of
Court. (Bandoy vs. Judge of First Instance of Laguna, 14 Phil., 620, 625.)