Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. L-31665 August 6, 1975 LEONARDO ALMEDA, petitioner, vs. HON. ONOFRE A. !LLALU", #$ %#s &'('&#t) 's (*+s#,#$g -u,g+ o. t%+ C#*&u#t C*#/#$'0 Cou*t, S+1+$t% 2u,#&#'0 D#st*#&t, P's#g, R#3'0, '$, HON. GREGOR!O P!NEDA, C#t) F#s&'0 o. P's') C#t), respondents. Honorio Makalintal, Jr. for petitioner. Pasay City Fiscal Gregorio Pineda for respondent.

CASTRO, J.: The petitioner eonardo !l"eda #alias Nardon$ Paa% &as char$ed, to$ether &ith five others, &ith the cri"e of 'ualified theft of a "otor vehicle #cri"inal case ()*+Pasa,% in the -ircuit -ri"inal -ourt of Pasi$, Ri.al, presided b, the respondent /ud$e Onofre Villau.. The a"ount of the bond reco""ended for the provisional release of !l"eda &as P0*,111, and this &as approved b, the respondent 2ud$e &ith a direction that it be posted entirel, in cash. !t the hearin$ of Februar, 0), 0341, !l"eda as5ed the trial court to allo& hi" to post a suret, bond in lieu of the cash bond re'uired of hi". This re'uest &as denied, and so &as an oral "otion for reconsideration, on the $round that the a"ended infor"ation i"puted habitual delin'uenc, and recidivis" on the part of !l"eda. !t the sa"e hearin$, the respondent cit, fiscal, thru his assistant, reiterated his oral "otion "ade at a previous hearin$ for a"end"ent of the infor"ation so as to include alle$ations of recidivis" and habitual delin'uenc, in the particular case of !l"eda. The latter vi$orousl, ob2ected, ar$uin$ that #a% such an a"end"ent &as pre"ature since no copies of prior conviction could ,et be presented in court, #b% the "otion to a"end should have been "ade in &ritin$ in order to enable hi" to ob2ect for"all,, and #c% the proposed a"end"ent &ould place hi" in double 2eopard, considerin$ that he had alread, pleaded not $uilt, to the infor"ation. The trial court nevertheless $ranted the respondent fiscal6s "otion in open court. !n oral "otion for reconsideration &as denied. I""ediatel, thereafter, the assistant fiscal too5 hold of the ori$inal infor"ation and, then and there, entered his a"end"ent b, annotatin$ the sa"e on the bac5 of the docu"ent. The petitioner forth&ith "oved for the dis"issal of the char$e on the $round of double 2eopard,, but this "otion and a "otion for reconsideration &ere denied in open court.

7ence, t%+ (*+s+$t s(+&#'0 &#1#0 '&t#o$ for certiorari &ith preli"inar, in2unction. T&o issues are posed to us for resolution8 First, &hether the respondent 2ud$e has the authorit, to re'uire a strictl, cash bond and disallo& the petitioner6s atte"pt to post a suret, bond for his provisional libert,, and second, 4%+t%+* t%+ '/+$,/+$t to t%+ #$.o*/'t#o$, '.t+* ' (0+' o. $ot gu#0t) t%+*+to, 4's (*o(+*0) '00o4+, #$ 5ot% su5st'$&+ '$, (*o&+,u*+. 1. !s defined b, section 0 of Rule 009 of the Rules of -ourt, bail is :the securit, re'uired and $iven for the release of a person &ho is in the custod, of the la&, that he &ill appear before an, court in &hich his appearance "a, be re'uired as stipulated in the bail bond or reco$ni.ance.: The purpose of re'uirin$ bail is to relieve an accused fro" i"prison"ent until his conviction and ,et secure his appearance at the trial. 1 In this 2urisdiction, the accused, as of ri$ht, is entitled to bail prior to conviction e;cept &hen he is char$ed &ith a capital offense and the evidence of $uilt is stron$. This ri$ht is $uaranteed b, the -onstitution, 6 and "a, not be denied even &here the accused has previousl, escaped detention, 3 or b, reason of his prior abscondin$. 7 In order to safe$uard the ri$ht of an accused to bail, the -onstitution further provides that :e;cessive bail shall not be re'uired.: This is lo$ical cause the i"position of an unreasonable bail "a, ne$ate the ver, ri$ht itself. <e have thus held that :&here conditions i"posed upon a defendant see5in$ bail &ould a"ount to a refusal thereof and render nu$ator, the constitutional ri$ht to bail, &e &ould not hesitate to e;ercise our supervisor, po&ers to provide the re'uired re"ed,.: 5 -o"in$ to the issue at hand, the a"ount fi;ed for bail, &hile reasonable if considered in ter"s of suret, or propert, bonds, "a, be e;cessive if de"anded in the for" of cash. ! suret, or propert, bond does not re'uire an actual financial outla, on the part of the bonds"an or the propert, o&ner, and in the case of the bonds"an the bond "a, be obtained b, the accused upon the pa,"ent of a relativel, s"all pre"iu". Onl, the reputation or credit standin$ of the bonds"an or the e;pectanc, of the price at &hich the propert, can be sold, is placed in the hands of the court to $uarantee the production of the bod, of the accused at the various proceedin$s leadin$ to his conviction or ac'uittal. =pon the other hand, the postin$ of a cash bond &ould entail a transfer of assets into the possession of the court, and its procure"ent could &or5 untold hardship on the part of the accused as to have the effect of alto$ether den,in$ hi" his constitutional ri$ht to bail. !side fro" the fore$oin$, the condition that the accused "a, have provisional libert, only upon his postin$ of a cash bond is abhorrent to the nature of bail and trans$resses our la& on the "atter. The sole purpose of bail is to insure the attendance of the accused &hen re'uired b, the court, and there should be no su$$estion of penalt, on the part of the accused nor revenue on the part of the $overn"ent. The allo&ance of a cash bond in lieu of sureties is authori.ed in this 2urisdiction onl, because our rules e;pressl, provide for it. <ere this not the case, the postin$ of bail b, depositin$ cash &ith the court cannot be countenanced because, strictl, spea5in$, the ver, nature of bail presupposes the attendance of sureties to &ho" the bod, of the prisoner can be delivered. 6 !nd even &here cash bail is allo&ed, the option to deposit cash in lieu of a suret, bond pri"aril, belon$s to the accused. This is clearl, deducible fro" the lan$ua$e of section 09 of Rule 009 of the Rules of -ourt8 S>-. 09. Deposit of money as bail. ? !t an, ti"e after the a"ount of bail is fi;ed b, order, the defendant, instead of $ivin$ bail, "a, deposit &ith the nearest collector of internal revenue, or provincial, cit,, or "unicipal treasurer the su"

"entioned in the order, and upon deliverin$ to the court a proper certificate of the deposit, "ust be dischar$ed fro" custod,. Mone, thus deposited, shall be applied to the pa,"ent of the fine and costs for &hich 2ud$"ent "a, be $iven@ and the surplus, if an,, shall be returned to the defendant. Thus, the trial court "a, not re2ect other&ise acceptable sureties and insist that the accused obtain his provisional libert, onl, thru a cash bond. Aut &hile &e repudiate the particular "easure adopted b, the respondent 2ud$e, &e cannot fault the "otive that caused hi" to de"ur to the petitioner6s offer of a suret, bond. Aased on the petitioner6s past record, 7 the ran$e of his career in cri"e &ei$hs heavil, a$ainst lettin$ hi" off easil, on a "iddlin$ a"ount of bail. The li5elihood of his 2u"pin$ bail or co""ittin$ other har" to the citi.enr, &hile on provisional libert, is a consideration that si"pl, cannot be i$nored. Fortunatel,, the court is not &ithout devices &ith &hich to "eet the situation. First, it could increase the a"ount of the bail bond to an appropriate level. Second, as part of the po&er of the court over the person of the accused and for the purpose of discoura$in$ li5el, co""ission of other cri"es b, a notorious defendant &hile on provisional libert,, the latter could be re'uired, as one of the conditions of his bail bond, to report in person periodicall, to the court and "a5e an accountin$ of his "ove"ents. !nd third, the accused "i$ht be &arned, thou$h this &arnin$ is not essential to the re'uire"ents of due process, that under the 034B -onstitution 8 :Trial "a, proceed not&ithstandin$ his absence provided that he has been dul, notified and his failure to appear is un2ustified.: <ith respect to the a"ount of the bail bond, the trial court is &ell advised to consider, inter alia, the follo&in$ factors, &here applicable8 #0% the abilit, of the accused to $ive bail8 #(% the nature of the offense@ #B% the penalt, for the offense char$ed@ #9% the character and reputation of the accused #*% the health of the accused@ #C% the character and stren$th of the evidence@ #4% the probabilit, of the accused6s appearance or non+appearance at the trial@ #)% forfeiture of previous bonds@ #3% &hether the accused &as a fu$itive fro" 2ustice &hen arrested@ and #01% &hether the accused is under bond for appearance at trial in other cases. 9 It is not a"iss, at this point, to re"ind all courts to e;ercise e;tre"e care and caution in the screenin$ of bonds"en and sureties in re$ard to their reputation, solvenc, and pro"ptitude. !side fro" the other precautions hitherto considered useful courts should see to it that all suret, bonds are acco"panied b, correspondin$ clearances fro" the Office of the Insurance -o""issioner. Aonds"en &ho cannot "a5e $ood their underta5in$ render inutile all efforts at "a5in$ the bail s,ste" &or5 in this 2urisdiction. 2. !nent the second issue posed b, the petitioner, t e amendment of t e information to incl!de allegations of abit!al delin"!ency and recidi#ism, after a pre#io!s plea t ereto by t e acc!sed, is #alid and in no $ay #iolates is rig t to be f!lly apprised before trial of t e c arges against im. =nder section 0B of Rule 001 of the Rules of -ourt, the trial court has discretion to allo& a"end"ents to the infor"ation on all "atters of .o*/ after the defendant has pleaded and durin$ the trial &hen the sa"e can be done &ithout pre2udice to the ri$hts of the defendant. <hat are prohibited at this sta$e of the proceedin$s are a"end"ents in su5st'$&+. !nd the substantial "atter in a co"plaint or infor"ation is the recital of facts constitutin$ the offense char$ed and deter"inative of the 2urisdiction of the court. !ll other "atters are "erel, of for". 19

=nder our la&, a person is considered a habitual delin'uent :if &ithin a period of ten ,ears fro" the date of his release or last conviction of the cri"es of serious or less serious ph,sical in2uries, robo, !rto, estafa orfalsification, he is found $uilt, of an, of said cri"es a third ti"e or oftener.: 11 The la& i"poses an additional penalt, based on the cri"inal propensit, of the accused apart fro" that provided b, la& for the last cri"e of &hich he is found $uilt,. 7abitual delin'uenc, is not ho&ever, a cri"e in itself, it is onl, a factor in deter"inin$ a total penalt,. 16 !rticle C( of the Revised Penal -ode &hich treats of habitual delin'uenc, does not establish a ne& cri"e, but onl, re$ulates the :effect of the attendance of "iti$atin$ or a$$ravatin$ circu"stances and of abit!al delin"!ency.: as its caption indicates. In fact, the provision on habitual delin'uenc, is found in a section of the -ode prescribin$ rules for the application of penalties, not in a section definin$ offense. 13 ! recidivist, upon the other hand, is one &ho, at the ti"e of his trial for one cri"e, shall have been previousl, convicted b, final 2ud$"ent of another cri"e e"braced in the sa"e title of the Revised Penal -ode. Recidivis" is li5e&ise not a cri"inal offense@ it is but one of the a$$ravatin$ circu"stances enu"erated b, the said -ode. 17 % e additional allegations of abit!al delin"!ency and recidi#ism do not a#e t e effect of c arging anot er offense different or distinct from t e c arge of "!alified t eft &of a motor #e icle' contained in t e information. (eit er do t ey tend to correct any defect in t e )!risdiction of t e trial co!rt o#er t e s!b)ect*matter of t e case. % e said ne$ allegations relate only to t e range of t e penalty t at t e co!rt mig t impose in t e e#ent of con#iction. % ey do not alter t e prosec!tion+s t eory of t e case nor possibly pre)!dice t e form of defense t e acc!sed as or $ill ass!me. Conse"!ently, in a!t ori,ing t e amendments, t e respondent )!dge acted $it d!e consideration of t e petitioner+s rig ts and did not ab!se is discretion. !nent t%+ (+t#t#o$+*:s &0'#/ t%'t t%+ '/+$,/+$t o. t%+ #$.o*/'t#o$ 5) t%+ St't+ (0'&+s %#/ #$ ,ou50+ -+o('*,), it should be re"e"bered that there is double 2eopard, onl, &hen all the follo&in$ re'uisites obtain in the ori$inal prosecution@ #a% a valid co"plaint or infor"ation@ #b% a co"petent court@ #c% the defendant had pleaded to the char$e@ and #d% the defendant &as ac'uitted, or convicted, or the case a$ainst hi" &as dis"issed or other&ise ter"inated &ithout his consent. 15 -t is clear t at t e petitioner .lmeda as not yet been con#icted nor ac"!itted of t e c arge of "!alified t eft of a motor #e icle contained in t e original information. (eit er as t e case against im been dismissed or ot er$ise terminated. % e mere amendment of t e information to incl!de allegations of abit!al delin"!ency and recidi#ism does not a#e t e effect of a dismissal of t e criminal action for "!alified t eft alleged in t e original information.16 It cannot li5e&ise be said that the accused is bein$ placed in 2eopard, a second ti"e for the past cri"es of &hich he had been convicted. The constitutional ob2ection, on the $round of double 2eopard,, to the statute providin$ an additional penalt, to be "eted out to habitual delin'uents, has lon$ been re2ected. 17 The procedure ta5en b, the respondent fiscal and allo&ed b, the respondent 2ud$e in the a"end"ent of the infor"ation does not, ho&ever, "erit our approbation. =nder section ( of Rule 0* of the Rules of -ourt, :all "otions shall be "ade in &ritin$ e;cept "otions for continuance "ade in the presence of the adverse part,, or those "ade in the course of a hearin$ or trial.: ! "otion to a"end the infor"ation, after the accused has pleaded thereto, is certainl, one that should be placed in &ritin$ and properl, set for hearin$. <e are loath to $ive our i"pri"atur to the 5ind of shortcut devised b, the respondents, especiall, as it relates to an

alteration in the infor"ation. -onsiderin$, ho&ever, that the petitioner &as not deprived of his da, in court and &as in fact $iven advance &arnin$ of the proposed a"end"ent, althou$h orall,, &e refrain fro" disturbin$ the said a"end"ent.