G.R. No. L-31665 - AUGUST 1975 - PHILIPPINE JURISPRUDENCE CASE NUMBERCASE TITLE G.R. No. L-31665August 6, 1975 Leonardo Almeda vs. Onofre A. Villaluz G.R. No. L-38745August 6, 1975 Lucia Tan vs. Arador Valdehueza, et al. A.M. No. 449-MJAugust 7, 1975 Pedro H. Yaranon vs. Antonio Rubio G.R. No. L-21161August 7, 1975 Pacifica Evangelista vs. Government Service Insurance System G.R. No. L-26428August 7, 1975 Amadeo H. Cruz, et al. vs. Pedro C. Navarro G.R. No. L-27762August 7, 1975 Aquilino C. Mauleon vs. Court of Appeals, et al. G.R. No. L-35946August 7, 1975 People of the Philippines vs. Primitivo Salas, et al. G.R. No. L-20085August 8, 1975 Phil. Tobacco Flue Curing and Redrying Corp. vs. Rizalino Pablo G.R. No. L-29130August 8, 1975 Development Bank of the Philippines vs. Dionisio Mirang G.R. No. L-32495August 13, 1975 People of the Philippines vs. Florentino S. Moises, et al. G.R. No. L-27813August 15, 1975 Atlas Fertilizer Corp. vs. Commissioner of Internal Revenue G.R. No. L-28329August 17, 1975 Commissioner of Customs vs. Esso Standard Eastern, Inc. G.R. No. L-26321August 19, 1975 City of Cebu, et al. vs. Jose M. Mendoza, et al. G.R. No. L-32387August 19, 1975 National Development Company vs. Ndc Employees and Workers' Union, et al. G.R. No. L-40552August 20, 1975 Diosdado T. Abugotal vs. Meynardo A. Tiro G.R. No. L-27916August 21, 1975 Jovencio A. Reyes vs. Abelardo Subido, et al. G.R. No. L-28566August 21, 1975 People of the Philippines vs. Maximo Ogapay, et al. G.R. No. L-40970August 21, 1975 In Re: Florentino Cayaga. Florentino Cayaga vs. Teotimo Tangonan G.R. No. L-29776August 27, 1975 People of the Philippines vs. Jose Echaluce, et al. A.M. No. P-165August 28, 1975 Daniel Gutierrez, et al. vs. Virginia G. Fernandez G.R. No. L-20869August 28, 1975 Alicia O. Arcega vs. Court of Appeals, et al. G.R. No. L-27410August 28, 1975 Dina Tuzon vs. Cesar C. Cruz, et al. A.M. No. 1162August 29, 1975 In Re: Victorio D. Lanuevo A.M. No. P-147August 29, 1975 Andres Suck vs. Rolando Diaz G.R. No. L-19620August 29, 1975 In Re: Tirso Lorenzo. Tirso Lorenzo vs. Luzon Surety Company, Inc. G.R. No. L-22554August 29, 1975 Delfin Lim, et al. vs. Francisco Ponce De Leon, et al. G.R. No. L-22782August 29, 1975 Ignacio Gone, et al. vs. District Engineer, et al. G.R. No. L-26762August 29, 1975 Phil. Long Distance Telephone Co. vs. Public Service Commission G.R. No. L-27204August 29, 1975 Casimiro V. Arkoncel vs. Court of First Instance of Basilan City, et al. G.R. No. L-27771August 29, 1975 Maximo Calalang, et al. vs. Juan De Borja, et al. G.R. No. L-29724August 29, 1975 People of the Philippines vs. Mauro Tizon, et al. G.R. No. L-32534August 29, 1975 Associated Labor Union-Afl-Vimcontu vs. Antonio D. Cinco, et al. G.R. No. L-326421August 29, 1975 People of the Philippines vs. Datu Laguia Undong, et al. G.R. No. L-37034August 29, 1975 Jacqueline Industries, et al. vs. National Labor Relations Commission, et al. G.R. No. L-38076-80August 29, 1975 People of the Philippines vs. Rodolfo Venzon G.R. No. L-39087August 29, 1975 People of the Philippines vs. Rogelio Q. De Jesus G.R. No. L-40018August 29, 1975 Northern Motors, Inc. vs. Jorge R. Coquia, et al. G.R. No. L-40098August 29, 1975 Antonio Lim Tanhu, et al. vs. Jose R. Ramolete, et al. G.R. No. L40474August 29, 1975 Cebu Oxygen & Acetylene Co., Inc. vs. Pascual A. Bercilles, et al. G.R. No. L-40486August 29, 1975 Paulino Padua, et al. vs. Gregorio N. Robles, et al. The Lawphil Project - Arellano Law Foundation, Inc. Leonardo Almeda vs. Onofre A. Villaluz Lucia Tan vs. Arador Valdehueza, et al. Pedro H. Yaranon vs. Antonio Rubio Pacifica Evangelista vs. Government Service Insurance System Amadeo H. Cruz, et al. vs. Pedro C. Navarro Aquilino C. Mauleon vs. Court of Appeals, et al. People of the Philippines vs. Primitivo Salas, et al. Phil. Tobacco Flue Curing and Redrying Corp. vs. Rizalino Pablo Development Bank of the Philippines vs. Dionisio Mirang People of the Philippines vs. Florentino S. Moises, et al. Atlas Fertilizer Corp. vs. Commissioner of Internal Revenue Commissioner of Customs vs. Esso Standard Eastern, Inc. City of Cebu, et al. vs. Jose M. Mendoza, et al. National Development Company vs. Ndc Employees and Workers' Union, et al. Diosdado T. Abugotal vs. Meynardo A. Tiro Jovencio A. Reyes vs. Abelardo Subido, et al. People of the Philippines vs. Maximo Ogapay, et al. In Re: Florentino Cayaga. Florentino Cayaga vs. Teotimo Tangonan People of the Philippines vs. Jose Echaluce, et al. Daniel Gutierrez, et al. vs. Virginia G. Fernandez Alicia O. Arcega vs. Court of Appeals, et al. Dina Tuzon vs. Cesar C. Cruz, et al. In Re: Victorio D. Lanuevo Andres Suck vs. Rolando Diaz In Re: Tirso Lorenzo. Tirso Lorenzo vs. Luzon Surety Company, Inc. Delfin Lim, et al. vs. Francisco Ponce De Leon, et al. Ignacio Gone, et al. vs. District Engineer, et al. Phil. Long Distance Telephone Co. vs. Public Service Commission Casimiro V. Arkoncel vs. Court of First Instance of Basilan City, et al. Maximo Calalang, et al. vs. Juan De Borja, et al. People of the Philippines vs. Mauro Tizon, et al. Associated Labor Union-Afl-Vimcontu vs. Antonio D. Cinco, et al. People of the Philippines vs. Datu Laguia Undong, et al. Jacqueline Industries, et al. vs. National Labor Relations Commission, et al. People of the Philippines vs. Rodolfo Venzon People of the Philippines vs. Rogelio Q. De Jesus Northern Motors, Inc. vs. Jorge R. Coquia, et al. Antonio Lim Tanhu, et al. vs. Jose R. Ramolete, et al. Cebu Oxygen & Acetylene Co., Inc. vs. Pascual A. Bercilles, et al. Paulino Padua, et al. vs. Gregorio N. Robles, et al. The Lawphil Project - Arellano Law Foundation, Inc.

Manila

FIRST DIVISION

G.R. No. L-31665 August 6, 1975

LEONARDO ALMEDA,petitioner,
vs.
HON. ONOFRE A. VILLALUZ, in his capacity as presiding judge of the Circuit Criminal Court, Seventh Judicial District, Pasig, Rizal, and HON. GREGORIO PINEDA, City Fiscal of Pasay City,respondents.

Honorio Makalintal, Jr. for petitioner.

Pasay City Fiscal Gregorio Pineda for respondent.

CASTRO,J.:

The petitioner Leonardo Almeda (aliasNardong Paa) was charged, together with five others, with the crime of qualified theft of a motor vehicle (criminal case 285-Pasay) in the Circuit Criminal Court of Pasig, Rizal, presided by the respondent Judge Onofre Villauz. The amount of the bond recommended for the provisional release of Almeda was P15,000, and this was approved by the respondent judge with a direction that it be posted entirely in cash.

At the hearing of February 18, 1970, Almeda asked the trial court to allow him to post a surety bond in lieu of the cash bond required of him. This request was denied, and so was an oral motion for reconsideration, on the ground that the amended information imputed habitual delinquency and recidivism on the part of Almeda.

At the same hearing, the respondent city fiscal, thru his assistant, reiterated his oral motion made at a previous hearing for amendment of the information so as to include allegations of recidivism and habitual delinquency in the particular case of Almeda. The latter vigorously objected, arguing that (a) such an amendment was premature since no copies of prior conviction could yet be presented in court, (b) the motion to amend should have been made in writing in order to enable him to object formally, and (c) the proposed amendment would place him in double jeopardy considering that he had already pleaded not guilty to the information. The trial court nevertheless granted the respondent fiscal's motion in open court. An oral motion for reconsideration was denied.

Immediately thereafter, the assistant fiscal took hold of the original information and, then and there, entered his amendment by annotating the same on the back of the document. The petitioner forthwith moved for the dismissal of the charge on the ground of double jeopardy, but this motion and a motion for reconsideration were denied in open court.

Hence, the present special civil action for certiorari with preliminary injunction.

Two issues are posed to us for resolution: First, whether the respondent judge has the authority to require a strictly cash bond and disallow the petitioner's attempt to post a surety bond for his provisional liberty, and second, whether the amendment to the information, after a plea of not guilty thereto, was properly allowed in both substance and procedure.

1.As defined by section 1 of Rule 114 of the Rules of Court, 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." The purpose of requiring bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial.1

In this jurisdiction, the accused, as of right, is entitled to bail prior to conviction except when he is charged with a capital offense and the evidence of guilt is strong. This right is guaranteed by the Constitution,2and may not be denied even where the accused has previously escaped detention,3or by reason of his prior absconding.4In order to safeguard the right of an accused to bail, the Constitution further provides that "excessive bail shall not be required." This is logical cause the imposition of an unreasonable bail may negate the very right itself. We have thus held that "where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we would not hesitate to exercise our supervisory powers to provide the required remedy."5

Coming to the issue at hand, the amount fixed for bail, while reasonable if considered in terms of surety or property bonds, may be excessive if demanded in the form of cash. A surety or property bond does not require an actual financial outlay on the part of the bondsman or the property owner, and in the case of the bondsman the bond may be obtained by the accused upon the payment of a relatively small premium. Only the reputation or credit standing of the bondsman or the expectancy of the price at which the property can be sold, is placed in the hands of the court to guarantee the production of the body of the accused at the various proceedings leading to his conviction or acquittal. Upon the other hand, the posting of a cash bond would entail a transfer of assets into the possession of the court, and its procurement could work untold hardship on the part of the accused as to have the effect of altogether denying him his constitutional right to bail.

Aside from the foregoing, the condition that the accused may have provisional libertyonlyupon his posting of a cash bond is abhorrent to the nature of bail and transgresses our law on the matter. The sole purpose of bail is to insure the attendance of the accused when required by the court, and there should be no suggestion of penalty on the part of the accused nor revenue on the part of the government. The allowance of a cash bond in lieu of sureties is authorized in this jurisdiction only because our rules expressly provide for it. Were this not the case, the posting of bail by depositing cash with the court cannot be countenanced because, strictly speaking, the very nature of bail presupposes the attendance of sureties to whom the body of the prisoner can be delivered.6And even where cash bail is allowed, the option to deposit cash in lieu of a surety bond primarily belongs to the accused. This is clearly deducible from the language of section 14 of Rule 114 of the Rules of Court:

Thus, the trial court may not reject otherwise acceptable sureties and insist that the accused obtain his provisional liberty only thru a cash bond.

But while we repudiate the particular measure adopted by the respondent judge, we cannot fault the motive that caused him to demur to the petitioner's offer of a surety bond. Based on the petitioner's past record,7the range of his career in crime weighs heavily against letting him off easily on a middling amount of bail. The likelihood of his jumping bail or committing other harm to the citizenry while on provisional liberty is a consideration that simply cannot be ignored.

Fortunately, the court is not without devices with which to meet the situation.First,it could increase the amount of the bail bond to an appropriate level. Second, as part of the power of the court over the person of the accused and for the purpose of discouraging likely commission of other crimes by a notorious defendant while on provisional liberty, the latter could be required, as one of the conditions of his bail bond, to report in person periodically to the court and make an accounting of his movements. And third, the accused might be warned, though this warning is not essential to the requirements of due process, that under the 1973 Constitution8"Trial may proceed notwithstanding his absence provided that he has been duly notified and his failure to appear is unjustified."

With respect to the amount of the bail bond, the trial court is well advised to consider,inter alia,the following factors, where applicable: (1) the ability of the accused to give bail: (2) the nature of the offense; (3) the penalty for the offense charged; (4) the character and reputation of the accused (5) the health of the accused; (6) the character and strength of the evidence; (7) the probability of the accused's appearance or non-appearance at the trial; (8) forfeiture of previous bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) whether the accused is under bond for appearance at trial in other cases.9

It is not amiss, at this point, to remind all courts to exercise extreme care and caution in the screening of bondsmen and sureties in regard to their reputation, solvency and promptitude. Aside from the other precautions hitherto considered useful courts should see to it that all surety bonds are accompanied by corresponding clearances from the Office of the Insurance Commissioner. Bondsmen who cannot make good their undertaking render inutile all efforts at making the bail system work in this jurisdiction.

2.Anent the second issue posed by the petitioner, the amendment of the information to include allegations of habitual delinquency and recidivism, after a previous plea thereto by the accused, is valid and in no way violates his right to be fully apprised before trial of the charges against him.

Under section 13 of Rule 110 of the Rules of Court, the trial court has discretion to allow amendments to the information on all matters of form after the defendant has pleaded and during the trial when the same can be done without prejudice to the rights of the defendant. What are prohibited at this stage of the proceedings are amendments in substance. And the substantial matter in a complaint or information is the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form.10

Under our law, a person is considered a habitual delinquent "if within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries,robo, hurto, estafaorfalsification,he is found guilty of any of said crimes a third time or oftener."11The law imposes an additional penalty based on the criminal propensity of the accused apart from that provided by law for the last crime of which he is found guilty. Habitual delinquency is not however, a crime in itself, it is only a factor in determining a total penalty.12Article 62 of the Revised Penal Code which treats of habitual delinquency does not establish a new crime, but only regulates the "effect of the attendance of mitigating or aggravating circumstancesand of habitual delinquency." as its caption indicates. In fact, the provision on habitual delinquency is found in a section of the Code prescribing rules for the application of penalties, not in a section defining offense.13A recidivist, upon the other hand, is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the Revised Penal Code. Recidivism is likewise not a criminal offense; it is but one of the aggravating circumstances enumerated by the said Code.14

The additional allegations of habitual delinquency and recidivism do not have the effect of charging another offense different or distinct from the charge of qualified theft (of a motor vehicle) contained in the information. Neither do they tend to correct any defect in the jurisdiction of the trial court over the subject-matter of the case. The said new allegations relate only to the range of the penalty that the court might impose in the event of conviction. They do not alter the prosecution's theory of the case nor possibly prejudice the form of defense the accused has or will assume. Consequently, in authorizing the amendments, the respondent judge acted with due consideration of the petitioner's rights and did not abuse his discretion.

Anent the petitioner's claim that the amendment of the information by the State places him in double jeopardy, it should be remembered that there is double jeopardy only when all the following requisites obtain in the original prosecution; (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his consent.15

It is clear that the petitioner Almeda has not yet been convicted nor acquitted of the charge of qualified theft of a motor vehicle contained in the original information. Neither has the case against him been dismissed or otherwise terminated. The mere amendment of the information to include allegations of habitual delinquency and recidivism does not have the effect of a dismissal of the criminal action for qualified theft alleged in the original information.16

It cannot likewise be said that the accused is being placed in jeopardy a second time for the past crimes of which he had been convicted.ℒαwρhi৷The constitutional objection, on the ground of double jeopardy, to the statute providing an additional penalty to be meted out to habitual delinquents, has long been rejected.17

The procedure taken by the respondent fiscal and allowed by the respondent judge in the amendment of the information does not, however, merit our approbation. Under section 2 of Rule 15 of the Rules of Court, "all motions shall be made in writing except motions for continuance made in the presence of the adverse party, or those made in the course of a hearing or trial." A motion to amend the information, after the accused has pleaded thereto, is certainly one that should be placed in writing and properly set for hearing. We are loath to give our imprimatur to the kind of shortcut devised by the respondents, especially as it relates to an alteration in the information. Considering, however, that the petitioner was not deprived of his day in court and was in fact given advance warning of the proposed amendment, although orally, we refrain from disturbing the said amendment.

ACCORDINGLY,the order of the respondent judge of February 18, 1970 denying the motion of the petitioner Almeda that he be allowed to post a surety bond instead of a cash bond is hereby set aside, without prejudice, however, to increasing the amount of the bail bond and/or the imposition of such conditions as the respondent judge might consider desirable and proper for the purpose of insuring the attendance of the petitioner at the trial, provided they are consistent with the views herein expressed. No costs.

Makasiar, Esguerra, Muñoz Palma and Martin, JJ., concur.

Teehankee, J., is on leave.

Footnotes