THE PEOPLE OF THE PHILIPPINES, PLAINTIFF AND APPELLEE, VS. YU GUIOC LAM (ALIAS YU KIM LAM), DEFENDANT. THE VISAYAN SURETY AND INSURANCE CORPORATION, SURETY AND APPELLANT.

This
is an appeal taken by the Visayan Surety and Insurance Corporation from
the order of the Court of First Instance of Manila, denying the motion
filed by said surety corporation that it be relieved of the bail bond
filed by it for the provisional release of the accused Yu Guioc Lam (alias Yu Kim Lam), for having delivered the person of said accused to said court on July 10, 1935.

In support of its appeal, the appellant assigns the following alleged errors as committed by the court a quo in its judgment in question, to wit:

“1.
The lower court, by reason of and after the arrest and delivery unto it
of body of the accused by the appellant herein erred in releasing the
accused without first exacting of him a new and distinct bond for his
temporary liberty pending trial.

“2. The lower court erred
in not finding that the arrest and delivery of the body of the accused
unto it released the bail bond of the surety-appellant herein.

“3.
The lower court erred in not finding that the issuance of an order for
the arrest of the accused and the latter’s custody thereunder, was an
act of the state operating as a discharge of the surety-appellant’s
bond.

“4. The lower court erred in interpreting the
appellant’s petition dated July 10, 1935, praying for the cancellation
of its bond to be conditioned upon the filing and approval of a new
bond then announced by the accused.”

The
only facts which this court may consider in order to decide the
questions of law raised by the appellant in its brief, are those stated
in the appealed order, which are as follows:

“An
examination of the record shows that for failure of the accused in
question to appear on the 19th of June of this year, the date set for
the trial of the case, the court ordered the arrest of said
accused and the confiscation of his bond. Notice of this order was duly
served upon the surety company which, on the 10th of July of the
current year, produced the person of said accused before the court,
and in the motion of even date praying that the order of confiscation
be lifted, it is alleged by the surety company that, as the above-named
accused offered to file another bond through a local surety company,
the bond filed by the Visayan Surety & Insurance Corporation should
be cancelled. The court found the explanations given by the accused
relative to his nonappearance to be satisfactory, for which reason the
order of confiscation issued on June 19th was set aside, but the bond
of the Visayan Surety was not declared cancelled because the new bond,
which the accused had offered to file, had not yet been approved. The
case was again set for trial on the 29th of July of this year and the
accused failed to appear, for which reason the court ordered his arrest
and the confiscation of the bond filed by the Visayan Surety.”

The first question to be decided in the present appeal is that raised
in the first assignment of alleged error, which consists in whether or
not the lower court erred in releasing the accused after the appellant
had turned over his person to said court, without first requiring said
accused to file a new and distinct bond for his provisional release
pending the trial.

In the case of People vs. Lorredo (50 Phil., 209, 217, 213), this court stated as follows:

“As
to the first assignment of error, it will be seen that the only thing
which appears in the record is the minutes of the hearing entered by
the clerk of the Court of First Instance of Tayabas, wherein it
appears, among other things, that at 9.30 a. m., of November 25, 1924,
the following proceedings took place: ‘The accused accompanied by his
attorney was notified of the foregoing judgment, and at the instance of
his attorney Mr. Reyes who offered a guaranty that the accused would
comply with the judgment rendered against him.’ After the said minutes,
there appears attached to the record the motion of November 25, 1924,
subscribed by the sureties, wherein they state that they are delivering
the body of the accused and asking that they be relieved of all
liability in connection with the bond filed by them for the temporary
release of said accused.

“Section 75 of General Orders No.
58 prescribes the different forms and the time for the surrender of the
body of the accused and for the discharge of the bond. The order of
discharge will be entered by the court once the surrender of the person
of the accused is proven, and notification thereof is made to the
prosecuting attorney.

“In the present case it does not
appear that the fiscal had been notified of the petition for the
discharge of the bond, nor had the court issued an order of discharge.
The mere presentation or presence of an accused in an open court is not
sufficient in itself. The attention of the court must be called to his
presence and the intention to surrender the body of the accused must be
clearly and definitely stated and understood by the court (6 C. J.,
page 243, section 313). A surety who desires to produce and surrender
the body of the accused in open court is not relieved from further
liability upon his bond until the court accepts said surrender, and the
only evidence of such act is the record of the court. (Du Lawrence vs. State, 31 Oh. Cir., 418.)

* * * * * *

“From
what has been said it follows that the mere filing of a motion stating
the surrender of the person of the accused and asking for their release
from liability upon the obligation contracted by virtue of a bond for
temporary release, where it does not appear that the attention of the
court had been called to said surrender and that the latter had so
understood it, and without an express order accepting said surrender
and relieving the sureties from all liability, does not relieve them
from the same, notwithstanding the fact that the court granted the
accused the period of ten days within which to comply with the judgment
under a verbal guaranty of his attorney.” (See also Luzon Surety Co. vs. Montemayor, 34 Off. Gaz., 2148.)

According to the above-quoted decision, in order that a surety, who has
filed a bond for the provisional release of an accused in a criminal
case, may be relieved from liability by surrendering the person of the
accused, it is necessary that the fiscal be notified of such surrender
and of the petition for release from the liability contracted by him by
virtue of said bond. The mere presentation or presence of the accused
in court is not sufficient. It is necessary to call the attention of
the court to said presence and to said desire of the sureties to
surrender his person, and the court must understand clearly and
definitely such intention of said sureties to surrender him. Not until
the court has accepted the surrender of the person of the accused and
issued the order of release, is the surety relieved from liability.

In the case under consideration, all that the surety, Visayan Surety
and Insurance Corporation, had done, according to the appealed
judgment, was present the person of the accused to the court on July
10, 1935, and ask for its release as surety and for the lifting of the
order of confiscation of the bond filed by it. It did not notify the
fiscal of said surrender or of the petition for its release from the
liability contracted by it by virtue of the bond. Neither has it called
the attention of the court to the presence of the accused in court and
to its desire to surrender the person bailed by it. Inasmuch as the
surety company’s petition to be relieved from the liability contracted
by it upon its bond was not approved by the Court of First Instance of
Manila, and the bond not having been cancelled, the same continued to
be in force, and when the trial of the case was for the Second time set
for July 29, 1935, and said surety failed to make the accused appear in
court, it violated the conditions of its bond for the second time.

For the foregoing considerations, this court is of the opinion and so
holds, that the mere presentation of the person of an accused before
the court by the surety thereof which asks for the cancellation of the
bond filed by it for the provisional release of said accused, without
notice to the fiscal and without the court having accepted the person
of the accused or cancelled the bond in question, is not sufficient to
relieve the surety from the liability contracted by it by virtue of its
bond.

Wherefore, and not finding any error in the order appealed from, the same is affirmed in toto, with costs to the appellant. So ordered.

Avanceña, C. J., Abad Santos, Imperial, Diaz, Laurel, and Concepcion, JJ., concur.