THE UNITED STATES, PLAINTIFF AND APPELLANT, VS. A. A. ADDISON AND PASTOR M. GOMEZ, DEFENDANTS AND APPELLEES.

This is an appeal from a judgment of the Court of First Instance of Ilocos
Sur in favor of the defendants in an action on a bond given in a criminal action
to procure the liberty of the accused pending trial.

On the 10th of June, 1912, the prosecuting attorney of the Province of Ilocos
Sur presented a complaint in the justice’s court of Vigan, accusing Walter
Schultz of the crime of malversation of public funds in violation of the
provisions of Act No. 1740. To procure the liberty of the accused pending trial,
A. A. Addison and Pastor M. Gomez became his sureties upon a bail bond, the
important parts of which are the following:

“Whereas a complaint has been filed on the 10th of June, 1912, in the court
of the justice of the peace of Vigan, Ilocos Sur, P. I., charging Walter Schultz
with the offense of ‘malversation of public funds by a public official,’ and he
having been admitted to bail in the sum of two thousand pesos (P2,000)
Philippine currency:

“Now, therefore, we, Pastor Gomez, of Calle Sacristia No. 954, and A. A.
Addison, of Calle Globo de Oro, No. 70, jointly and severally, hereby undertake
that the above-named Walter Schultz will appear and answer the charge above
mentioned 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; or if he fails to
perform any of these conditions that we will pay to the United States the sum of
two thousand pesos (P2,000) Philippine currency.”

The accused having renounced his right to a preliminary investigation before
the justice of the peace, the case, being one over which the latter had no
jurisdiction, was sent to the Court of First Instance for further proceedings.
On the 7th of October, 1912, the Court of First Instance received a petition
signed by A. A. Addison and Pastor M. Gomez, in which, after alleging that they
desired to deliver the accused into the custody of the law and to relieve
themselves from the obligation imposed by the bond, they prayed that said court
issue an order of arrest against said accused for the purpose of his
apprehension. The ground upon which they based this application was that the
accused had absented himself from the city of Manila, where he had been for some
time, and that the bondsmen were unable to ascertain his whereabouts, although
they had made diligent search. On the 8th of October the court denied the
petition. On the 22d of November the bondsmen again applied to the court for the
issuance of an order of arrest against the accused, basing their application
upon the same ground as before. In this application they alleged that the
accused could not be found, although the Information Division of the Bureau of
Constabulary had made diligent search for him. On the 30th of November the court
again denied the application.

“At a session of the Court of First Instance of Ilocos Sur held on the 30th
of November, 1912, the trial of the case was set for the 26th of December of the
same year. At the opening of the court on said 30th of November the bondsmen
applied to the court for a reconsideration of its previous orders denying the
application of the bondsmen to be relieved from their responsibility and for an
order of arrest against the accused, and again prayed that the court issue such
order of arrest, alleging as a ground therefor that the peace authorities did
not believe that they were authorized to arrest the accused without such order.
They further prayed that on the issuance of said order of arrest the bond which
they had signed be canceled and that they be relieved from all responsibility
thereunder.

On the 10th of December the court, acting on the petition of the bondsmen
above referred to, ordered the clerk to issue to said bondsmen.a certified copy
of the bail bond, with an order authorizing said bondsmen to arrest their
principal or require his arrest by any policeman or peace officer, but refused
to relieve the bondsmen from their obligation under the bond. This order was
mailed to the bondsmen on the same day that it was issued.

On the 31st of March, 1913, the prosecuting attorney of Ilocos Sur moved
the court that the said bondsmen be ordered to present the body of the accused
to the court on the 10th day of April, 1913, for trial, with the admonition that
if they failed or neglected to do so, the bond would be declared forfeited. This
order was served on the sureties on the 7th of April. The accused was not served
with a copy for the reason that he could not be found within the Philippine
Islands.

The cause was called for trial on the 10th of April, 1913, and the body of
the accused not having been presented, the judge declared the bond forfeited.
The order of forfeiture gave the sureties thirty days within which to present
the body of the accused and admonished them that if they did not do so within
that time or show cause satisfactory to the court why they did not, judgment
would be rendered and entered against them for the amount of the obligation.

On the 5th of May, 1913, the bondsmen filed their answer, alleging that they
did not appear in Vigan before the Court of First Instance on the 10th of April,
as ordered, for the reason that they did not have time to reach that place from
Manila after they received notice of the order, and that the reason why they
were unable to deliver the body of the accused was that the court had refused to
issue the order of arrest which they had three times prayed for, and praying
that upon the allegations made they be relieved of responsibility.

On the 28th of July, 1913, the prosecuting attorney of Ilocos Sur moved the
court that judgment be entered against Pastor M. Gomez and A, A. Addison,
sureties for Walter Schultz, for the sum of $”2,000, and that the judgment be
executed at once. This motion was notified to the bondsmen and their counsel and
hearing of the same was set for the 3d of September at 8 o’clock in the morning.
On the 19th of August G. E. Campbell, attorney for the bondsmen and for the
accused, asked for a postponement of the hearing of the motion until the 3d of
November. The hearing was finally set for the 26th of December. The bondsmen or
the accused not having appeared at the time set, the 26th of December, the court
found in their favor, absolving them from all responsibility under the bond.

It is against that judgment that this appeal is taken.

We are of the opinion that the judgment must be reversed.

Section 75 of the Code of Criminal Procedure provides:

“The sureties of the bail bond may surrender the defendant at any time prior
to forfeiture, or he may surrender himself and the bail be thus exonerated. An
order of exoneration may be made by the court upon proof of surrender and after
due notice to the promoter fiscal of the proposed issuance of the order. For the
purpose of surrendering the defendant the bail may arrest him, or on written
authority indorsed on a certified copy of the undertaking may cause him to be
arrested by any police officer or any other person of suitable age and
discretion.”

As stated by the attorney for the appellees:

“From the wording of this section it is clear that there are two methods that
may be pursued by the bail in order to surrender the accused, * * * they may
arrest him themselves or they may cause his arrest through certain
channels.”

In order words, the bail may arrest the principal and deliver him to the
proper authorities, or they may cause his arrest to be made by any police
officer or other person of suitable age and discretion by indorsing the
authority to arrest upon a certified copy of the undertaking and delivering it
to such officer or person. These are the only methods, in a general way, by
which the sureties may relieve themselves from responsibility relative to the
recognizance.

The bondsmen did not do either of these things. Instead of delivering the
principal to the court having jurisdiction over him or to the sheriff thereof or
his deputy, or of procuring his arrest by a peace officer authorized by
indorsement upon a certified copy of the undertaking, they permitted the accused
to escape and then sought to induce the court in which the action against the
principal was pending to issue an order of arrest that the principal might be
apprehended and they absolved. The court to which the application was presented
did not consider itself authorized under the showing made to issue the order
prayed for. Its position evidently was that the principal was at liberty under a
bond which had not been revoked or withdrawn in the manner prescribed by law;
and that, until the moment of cancellation or revocation of the bail bond in
pursuance of law, the accused was entitled to his liberty. The court, therefore,
refused to issue the order of arrest. We do not regard this position as
altogether tenable. While the contention of the sureties, in their application
for the order of arrest, that they be relieved from obligation when the order
was issued, cannot be sustained, the Court of First Instance, under the facts
presented, should have lent the sureties, in such manner as the law permits, all
the aid that it reasonably could in the apprehension of the principal. While the
Code of Criminal Procedure sets out the methods by which the sureties may
release themselves from their obligation, it does not say that the court may not
assist them to release themselves; and we think that the court in this case
should have assisted them in their endeavor to apprehend and deliver the
principal and thereby to relieve themselves from responsibility. We have no
doubt about the power of the court, with or without the application of the
sureties, to order the arrest of a principal if it is shown or appears that he
is attempting or planning his escape or is in hiding for the purpose of
defeating the ends of justice.

We do not now decide to what court or other official it is necessary for
sureties to present their principal in order to be relieved from responsibility
under the bond. That question is not before us. The sureties never delivered or
attempted to deliver the body of their principal to any court or peace officer.
They simply asked the cooperation of certain peace officials for the capture of
the principal whose whereabouts was, at the time, admittedly unknown.

When the obligation of bail is assumed, the sureties become in law the
jailers of their principal. Their custody of him is the continuance of the
original imprisonment, and though they cannot actually confine him, they are
subrogated to all the other rights and means which the Government possesses to
make their control of him effective. The responsibility assumed by the bail,
being purely gratuitous, may be terminated by them at any time, and, to effect
this end, they may arrest the principal at pleasure and surrender him into the
hands of the law. Even though there were no statute to that effect, the right of
the bail to arrest the principal for the purpose of surrendering him is
incidental to the engagement, and the issuing of process is not necessary to its
exercise. The arrest may be made by the bail, either in person or by agent, in
the manner prescribed by statute. They may pursue him; may seize him at any time
of the day or night, and may enter his house for that purpose. If resistance be
apprehended, they may at all times command the assistance of the peace officers
upon complying with the terms of the statute. (Reese vs. U. S., 9
Wall., 13; U. S. vs. Ryder, 110 U. S., 729; State vs.
Lingerfelt, 109 N. C., 775; Taylor vs. Taintor, 16 Wall., 366; Bearden
vs. State, 89 Ala., 21; Norfolk vs. People, 43 111., 9;
Kellogg vs. State, 43 Miss., 57; Hughes vs. State, 28 Tex.
App., 499; State vs. Rosseau, 39 Tex., 614; State vs.
Cunningham, 10 La. Ann., 393; U. S. vs. Keiver, 56 Fed. Rep., 422; Read
vs. Case, 4 Conn., 166; Sternberg vs. State, 42 Ark.,
127.)

To the sureties the state gives every facility for the apprehension and
surrender of the principal and there is, therefore, very little excuse for their
failure to protect themselves. While we do not determine whether or not a peace
officer has the right to arrest the principal on the request of the sureties if
they do not present a certified copy of the bond properly indorsed, there is no
evidence that any peace officer had an opportunity to arrest the principal after
having received notice to do so from the sureties, or that the refusal of such
an officer, if any, had any influence on the result. Nor do we hold, either,
that a court may not issue an order of arrest for the accused upon the
representation of the bondsmen upon the proper showing. We simply say that, upon
the facts before us, we are not prepared to hold that the Court of First
Instance of Ilocos Sur erred in refusing to issue the order of arrest under the
showing made—at least no error was made sufficient to relieve the sureties. It
does riot appear from the record that the action of the court had any effect on
the outcome as it is fairly clear that the sureties permitted the principal to
escape before any attempt was made to apprehend him.

The judgment absolving the sureties is reversed and the case is remanded to
the Court of First Instance of Ilocos Sur, with instructions to enter judgment
against the sureties in accordance with this opinion.

Arellano, C. J., Torres, Johnson, Carson, and Araullo, JJ.,
concur.