G.R. No. 28638. September 21, 1928
ROSARIO ESLER, VDA. DE TAD-Y, PLAINTIFF AND APPELLANT, VS. JOSE B. LEDESMA, PROVINCIAL SHERIFF OF ILOILO, NICOLAS VALENCIA AND MATEO VILLAVERT, CLERK OF COURT OF FIRST INSTANCE …
MALCOLM, J.:
in an authoritative manner of section 74 of the Code of Criminal Procedure,
reading as follows:
“At any time after the amount of bail is fixed by order, the defendant,
instead of giving bail, may deposit with the nearest Collector of Internal
Revenue the sum mentioned in the order, and, upon delivering to the court a
proper certificate of the deposit, must be discharged from custody. Money thus
deposited shall be applied to the payment of the fine and costs for which
judgment may be given, and the surplus, if any, shall be returned to the
defendant.”
On November 23, 1926, Mariano Gotera was charged in the Court of First
Instance of Iloilo with the crime of serious physical injuries committed on the
person of the parish priest of Molo, Iloilo, Father Nicolas Valencia. At the
time Gotera was informed against in court, he was the chauffeur of Mrs. Rosario
Esler, Vda. de Tad-Y. Gotera was found guilty as charged, and was sentenced to
imprisonment, prision correccional, for two years and four months, to indemnify
the offended party in the sum of P2,996, with subsidiary imprisonment, and to
pay the costs. It is understood that Gotera is now serving his sentence in
Bilibid Prison and that the costs have been satisfied. The appeal centers on the
indemnity and the bail offered and accepted to secure the temporary release of
Gotera.
To obtain Gotera’s discharge from custody, two gentlemen by the names of Luis
Davao and Eulogio Aguirre and accompanied by Attorney Tomas Villareal, counsel
for Gotera, presented themselves in the office of the Clerk of the Court of
First Instance and tendered two Liberty bonds of the value of $1,000 as bail.
Thereupon, a bail bond was executed. Also a receipt was made out by pen and ink
by the clerk reading thus:
“COURT OF FIRST INSTANCE
PROVINCE OF ILOILO
ILOILO, P. I.
“He recibido del acusado Mariano Gotera 2 liberty bonds de quinientos dollars
cada uno ($500) como deposito de fianza para su libertad provisional en la causa
crim. No. 7441 (P. I. F. vs. Mariano Gotera por lesiones graves).“Iloilo, Nov. 24, 1926.
(Fdo.) “MATEO VILLAVERT
“Escribano“
At the foot of the receipt, there was appended in typewriting the
following:
“Por la presente declaro de que los dos liberty bonds, a que se refiere el
recibo arriba transcrito, son de la propiedad exclusiva de Da. Rosario Esler,
viuda de Tad-Y, y que no tengo ninguna participation en la cantidad que
representan dichos liberty bonds.“Iloilo, Iloilo, I. F., noviembre 24, 1926.
(Fdo.) “MARIANO GOTERA”
After the reading of the sentence to the accused, a petition was filed and
granted directing the clerk to apply the Liberty bonds to the payment of the.
indemnity. The provincial sheriff converted the Liberty bonds into cash through
the offices of the Philippine National Bank. After deducting the legal fees, the
court directed the balance amounting to P1,923.30 to be handed to Father
Valencia. Mrs. Tad-Y tried unsuccessfully to get the court to set aside its
order with the result that an independent action was eventually begun by her
against the provincial sheriff, the clerk of court, and Father Valencia. The
judgment in this case now on appeal dismissed the complaint.
The appeal can be decided without difficulty if the court keep to the
straight and narrow path and refuses to be led by opposing counsel into
treacherous by-ways. We are thus not impressed with the insinuation to be found
in the memorandum presented by the appellees that this action will not lie on
account of the alleged fact that the orders made in the criminal case are final.
Waiving the point that this argument is not disclosed in any one of the seven
propositions found in the brief for the appellees, it only need be said that the
courts everywhere allow parties to contest the surplus left of the cash bail and
determine who is entitled to the fund. On the other hand, as to the twentytwo
errors assigned by counsel for the appellant, he is in no position to argue many
of them. Thus when counsel says that the trial court was without authority to
accept Liberty bonds in lieu of money; that at any rate the bonds should have
been deposited with the nearest Collector of Internal Revenue instead of with
the clerk of court; that the provisions of the Executive Order of the
Governor-General of May 9, 1918, concerning acceptance of Liberty bonds as
security have not been complied with; and that the provincial sheriff could not
dispose of the Liberty bonds in any other way than that provided by law,—counsel
forgets that all these difficulties came about because his client through her
agents and the accused induced the officers of the court to accept the Liberty
bonds and liberate the accused. If illegal action was taken, the plaintiff was a
party to the wrong. It has been directly held in a recent decision that one who
induces a court to take Liberty bonds as bail for one in custody of the law is
estopped to deny that the court had jurisdiction so to do. (Kirschbaum vs. Mayn
[1926], 76 Mont., 320; 48 A. L. R., 1425; Dufek vs. Harrison County [1926], Tex.
Civ. App.; 289 S. W., 741; Mundell vs. Wells [1919], Cal., 7 A. L. R., 383; Moss
vs. Summit County [1922], Utah, 26 A. L. R., 206; Bryant vs. City of Bisbee
[1925], Ariz., 44 A. L. R., 1495.)
The first important question to decide is one of fact and relates to the
ownership of the two Liberty bonds. The trial judge found that they were the
property of the accused and not the property of Mrs. Tad-Y. This finding in our
opinion does not conform to the weight of the proof as disclosed by the record.
Mrs. Tad-Y testified clearly that the two Liberty bonds belonged to her. She was
corroborated in her testimony to a certain extent by the testimony of the
witnesses Luis Davao and Eulogio Aguirre. More important still is the fact that
in the partition of the estate of the deceased Vicente Tad-Y, Liberty bonds of
the fourth issue valued at P2,192, were set aside for the widow. The bail bond
mentions bonds of the Fourth Liberty Loan, which corresponds exactly with the
issue of the bonds accruing to the widow on the division of the estate of her
deceased husband. Finally, effect must certainly be given to the statement on
the receipt signed by the accused that the two Liberty bonds were of the
exclusive ownership of Mrs. Tad-Y. Error was undoubtedly committed in not
allowing the deposition of Mariano Gotera to be taken in Bilibid Prison and the
deposition of Udefonso Villareal to be taken in Manila, but probably these
depositions would merely have corroborated the statement found on the receipt
for the bonds. Accordingly, we must find as a fact that the two Liberty bonds
presented as cash bail for the release of the prisoner Mariano Gotera were the
property of Dona Rosario Esler, Vda. de Tad-Y.
With the preliminary question of,fact out of the way, we then have presented
a case where Liberty bonds were deposited with the clerk of court by a friendly
third person, the object being to secure the release from custody of a defendant
held to answer to an information. Similar cases have frequently gained the
attention of the courts in the United States in jurisdictions where statutes
permit a deposit of money to be made in lieu of bail in criminal cases. The
decisions are unanimous in holding that a fine imposed on the accused may be
satisfied from the cash deposit; and this is true although the money has been
furnished by a third person. This is so because the law contemplates that the
deposit shall be made by the defendant. The money, or in this instance the
Liberty bonds, must accordingly be treated as the property of the accused. As a
result, the money could be applied in payment of any fine imposed and of the
costs. (People vs. Laidlaw [1886], Ct. of App. of New York, 7 N. E., 910, a case
frequently cited approvingly in other jurisdictions; State of Iowa vs. Owens
[1900], 112 Iowa, 403; Mundell vs. Wells, supra.) But while as between the state
and the accused the money deposited by a third person for the release of the
accused is regarded as the money of the accused, it is not so regarded for any
other purpose. As between the accused and a third person, the residue of the
cash bail is not subject to the claim of a creditor of the accused. In the
latter case, the ordinary rules of property obtain. (Wright & Taylor vs.
Dougherty [1908], 138 Iowa, 195; People vs. Gould [1902], 78 N. Y. Sup., 279;
Mundell vs. Wells, supra.)
The precise question determining the appeal can fairly be said to be this:
Where Liberty bonds are deposited in lieu of money with the clerk of court by a
friendly third person to gain the discharge of a defendant, may the Liberty
bonds be applied not only to the payment of the fine and costs but to the
indemnity? In other words, restricting the field of inquiry even further, within
the meaning of section 74 of the Code of Criminal Procedure, may indemnity be
considered as coming within the meaning of the word “fine.” It is a subject not
entirely free from doubt, which merits our close attention.
The law says “fine and costs.” It does not say “fine, costs, and indemnity.”
Nevertheless, counsel for the appellees would have us construe the word “fine”
to include indemnity. He relies on the definition of “fine” found in Bouvier’s
Law Dictionary, volume 2, page 1225, where, after giving the customary
definition of “fine,” it is said that “It may include a forfeiture or penalty
recoverable in a civil action.” There is also brought to our attention on behalf
of the appellees the decision of the United States Supreme Court in the case of
Freeman vs. United States ([1910], 217 U. S., 539) where the high court, taking
under view the provisions of the Penal Code in connection with the
constitutional inhibition against imprisonment for debt, in one place in the
decision observed: “An examination of the statutes of the Philippines and the
judgment of the Supreme Court shows that the imposition of the money penalty was
by way of punishment for the offense committed, and not a requirement, to
satisfy a debt contractual in its nature or be imprisoned in default of
payment.” As against these authorities is the usual definition of fine as a
pecuniary punishment imposed by a lawful tribunal upon a person convicted of
crime or misdemeanor. Strictly speaking, it is said the term does not embrace
those pecuniary penalties or forfeitures provided by statute that a civil action
may.be brought to recover (25 C. J., 1148; Southern Express Co. w. Walker
[1895], 92 Va., 59). After all, no one of these authorities is exactly
controlling, and a better method is to forget them for the moment, and
independently thereof, to concentrate on the meaning of the law.
The Code of Criminal Procedure is a penal statute. As such, it should be
construed strictly. Moreover, the Code of Criminal Procedure is a penal statute
of American origin. No case can be found where in the United States cash bail
has been applied to anything else than the payment of the fine and costs as
these terms are there known. This is so because criminal actions and civil
actions are tried separate and apart. Damages are not assessed in a criminal
action as they are in the Philippines where the Spanish Penal Code is in force.
The Code of Criminal Procedure recognizes the distinction in section 107 by
safeguarding the civil rights of the person injured by the offense. This is in
line with the provisions of the Penal Code, which clearly recognizes as distinct
one from the other, imprisonment, fine, and indemnity.
The civil liability for reparation of damages and for indemnification for the
harm done is purely statutory (Albert, The Law on Crimes, p. 161). In special
acts enacted by the Philippine Legislature analogous in nature to the Code of
Criminal Procedure, it has invariably been found necessary to make particular
mention of indemnity if it be recoverable. For instance, as Act No. 518 failed
to provide for an indemnity, this court, speaking through Mr. Justice Mapa and
Mr. Chief Justice Arellano, held it error to impose upon the defendants the
obligation to pay indemnification (U. S. vs. Patiño [1905], 4 Phil., 160; U. S.
vs. De Ocampo [1905], 5 Phil., 324). Subsidiary imprisonment, according to Act
No. 1732, can only be imposed when a fine is meted out as any part of the
punishment for a criminal offense made punishable by any act or acts of the
Philippine Commission. Even in a conviction for a violation of an article of the
Penal Code, when there is no provision in the law authorizing the payment of an
indemnity, it cannot legally be imposed (U. S. vs. Noriega and Tobias [1916], 31
Phil., 310).
Sweeping the mind clear of cumulative authority pro and con, and of all
extraneous considerations, and focusing attention directly on the law, the
reason for the law presents itself clearly. It is this. When the cash bail is
allowed, the two parties to the transaction are the state and the defendant.
Unlike other bail bonds, the money may then be used in the payment of that in
which the state is concerned the fine and costs. The right of the government is
in the nature of a lien on the money deposited. But as regards the indemnity,
this, while permitted to be fixed in a criminal action, is primarily of interest
to the offended party and the accused. That the distinction exists seems to us
evident, and existing, the court would not be justified in amending the law by
judicial pronouncement so as to include indemnity.
Agreeable to the foregoing, the judgment appealed from shall be reversed, and
in the trial court a new judgment shall issue in favor of the plaintiff and
against the defendant Nicolas Valencia for the sum of P1,923.30, without costs
in either instance. So ordered.
Johnson, Villamor, and Ostrand, JJ., concur.
CONCURRING
STREET, J.:
I am of the opinion that the plaintiff’s bonds cannot
be applied to the payment of the indemnity and wish to be understood as
reserving my views upon the point whether they could be applied to the payment
of a fine, if a fine had been assessed against the accused.
DISSENTING
ROMUALDEZ, J.:
On the one hand, I believe that since it appears that the plaintiff did not
intend to deliver her bonds as bail for the then accused, Mariano Gotera, they
could not be forfeited nor applied to satisfy the judgment against said accused.
On the other hand, I am of the opinion that the word “fine” used in section 74
of General Orders No. 58 refers not only to the fine but also to the indemnity
to the offended party imposed by the judgment in the criminal case.
Section 74 just cited refers to the deposit made in lieu of bail for the
provisional release of the defendant. The deposit thus made takes the place of
bail and answers for what the bail would answer; and, according to section 67 of
said General Orders, the bail ariswers for the defendant’s appearance for
judgment, and that he will deliver himself for the execution thereof, without
excluding the indemnity to the offended party. Furthermore, said word “fine”
has, among others, the following definition:
“In Criminal Law. Pecuniary’punishment imposed by a lawful Tribunal upon a
person convicted of crime or misdemeanor, * * *. It may include a forfeiture or penalty
recoverable in a civil action.” (2 Bouvier’s Law Dictionary, 1925.)