RULE 114

Bail

Section 1. Bail defined. Bail is the security given for the release of a person in
custody of the law, furnished by him or a bondsman, to guarantee his appearance
before any court as required under the conditions hereinafter specified. Bail may be
given in the form of corporate surety, property bond, cash deposit, or recognizance.
(1a)

Section 2. Conditions of the bail; requirements. All kinds of bail are subject to the
following conditions:

(a) The undertaking shall be effective upon approval, and unless cancelled, shall
remain in force at all stages of the case until promulgation of the judgment of the
Regional Trial Court, irrespective of whether the case was originally filed in or
appealed to it;

(b) The accused shall appear before the proper court whenever required by the court
of these Rules;

(c) The failure of the accused to appear at the trial without justification and despite
due notice shall be deemed a waiver of his right to be present thereat. In such case, the
trial may proceed in absentia; and

(d) The bondsman shall surrender the accused to the court for execution of the final
judgment.

The original papers shall state the full name and address of the accused, the amount of
the undertaking and the conditions herein required. Photographs (passport size) taken
within the last six (6) months showing the face, left and right profiles of the accused
must be attached to the bail. (2a)

Section 3. No release or transfer except on court order or bail. No person under

detention by legal process shall be released or transferred except upon order of the
court or when he is admitted to bail. (3a)

Section 4. Bail, a matter of right; exception. All persons in custody shall be

admitted to bail as a matter of right, with sufficient sureties, or released on recognize
as prescribed by law or this Rule (a) before or after conviction by the Metropolitan
Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal
Circuit Trial Court, and (b) before conviction by the Regional Trial Court of an
offense not punishable by death, reclusion perpetua, or life imprisonment. (4a)

Section 5. Bail, when discretionary. Upon conviction by the Regional Trial Court
of an offense not punishable by death, reclusion perpetua, or life imprisonment,
admission to bail is discretionary. The application for bail may be filed and acted upon
by the trial court despite the filing of a notice of appeal, provided it has not
transmitted the original record to the appellate court. However, if the decision of the
trial court convicting the accused changed the nature of the offense from non-bailable
to bailable, the application for bail can only be filed with and resolved by the
appellate court.

Should the court grant the application, the accused may be allowed to continue on
provisional liberty during the pendency of the appeal under the same bail subject to
the consent of the bondsman.

If the penalty imposed by the trial court is imprisonment exceeding six (6) years, the
accused shall be denied bail, or his bail shall be cancelled upon a showing by the
prosecution, with notice to the accused, of the following or other similar
circumstances:

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed

the crime aggravated by the circumstance of reiteration;

(b) That he has previously escaped from legal confinement, evaded sentence, or
violated the conditions of his bail without valid justification;

(c) That he committed the offense while under probation, parole, or conditional
pardon;

(d) That the circumstances of his case indicate the probability of flight if released on
bail; or

(e) That there is undue risk that he may commit another crime during the pendency of
the appeal.

The appellate court may, motu proprio or on motion of any party, review the
resolution of the Regional Trial Court after notice to the adverse party in either case.
(5a)

Section 6. Capital offense defined. A capital offense is an offense which, under the
law existing at the time of its commission and of the application for admission to bail,
may be punished with death. (6a)

Section 7. Capital offense of an offense punishable by reclusion perpetua or life

imprisonment, not bailable. No person charged with a capital offense, or an
offense punishable by reclusion perpetua or life imprisonment, shall be admitted to
bail when evidence of guilt is strong, regardless of the stage of the criminal
prosecution. (7a)

Section 8. Burden of proof in bail application. At the hearing of an application for

bail filed by a person who is in custody for the commission of an offense punishable
by death, reclusion perpetua, or life imprisonment, the prosecution has the burden of
showing that evidence of guilt is strong. The evidence presented during the bail
hearing shall be considered automatically reproduced at the trial, but upon motion of
either party, the court may recall any witness for additional examination unless the
latter is dead, outside the Philippines, or otherwise unable to testify. (8a)
Section 9. Amount of bail; guidelines. The judge who issued the warrant or
granted the application shall fix a reasonable amount of bail considering primarily, but
not limited to, the following factors:

(a) Financial ability of the accused to give bail;

(b) Nature and circumstances of the offense;

(c) Penalty for the offense charged;

(d) Character and reputation of the accused;

(e) Age and health of the accused;

(f) Weight of the evidence against the accused;

(g) Probability of the accused appearing at the trial;

(h) Forfeiture of other bail;

(i) The fact that accused was a fugitive from justice when arrested; and

(j) Pendency of other cases where the accused is on bail.

Excessive bail shall not be required. (9a)

Section 10. Corporate surety. Any domestic or foreign corporation, licensed as a

surety in accordance with law and currently authorized to act as such, may provide
bail by a bond subscribed jointly by the accused and an officer of the corporation duly
authorized by its board of directors. (10a)

Section 11. Property bond, how posted. A property bond is an undertaking

constituted as lien on the real property given as security for the amount of the bail.
Within ten (10) days after the approval of the bond, the accused shall cause the
annotation of the lien on the certificate of title on file with the Register of Deeds if the
land is registered, or if unregistered, in the Registration Book on the space provided
therefor, in the Registry of Deeds for the province or city where the land lies, and on
the corresponding tax declaration in the office of the provincial, city and municipal
assessor concerned.

Within the same period, the accused shall submit to the court his compliance and his
failure to do so shall be sufficient cause for the cancellation of the property bond and
his re-arrest and detention. (11a)

Section 12. Qualifications of sureties in property bond. The qualification of

sureties in a property bond shall be as follows:

(a) Each must be a resident owner of real estate within the Philippines;
(b) Where there is only one surety, his real estate must be worth at least the amount of
the undertaking;

(c) If there are two or more sureties, each may justify in an amount less than that
expressed in the undertaking but the aggregate of the justified sums must be
equivalent to the whole amount of bail demanded.

In all cases, every surety must be worth the amount specified in his own undertaking
over and above all just debts, obligations and properties exempt from execution. (12a)

Section 13. Justification of sureties. Every surety shall justify by affidavit taken
before the judge that he possesses the qualifications prescribed in the preceding
section. He shall describe the property given as security, stating the nature of his title,
its encumbrances, the number and amount of other bails entered into by him and still
undischarged, and his other liabilities. The court may examine the sureties upon oath
concerning their sufficiency in such manner as it may deem proper. No bail shall be
approved unless the surety is qualified. (13a)

Section 14. Deposit of cash as bail. The accused or any person acting in his behalf
may deposit in cash with the nearest collector or internal revenue or provincial, city,
or municipal treasurer the amount of bail fixed by the court, or recommended by the
prosecutor who investigated or filed the case. Upon submission of a proper certificate
of deposit and a written undertaking showing compliance with the requirements of
section 2 of this Rule, the accused shall be discharged from custody. The money
deposited shall be considered as bail and applied to the payment of fine and costs
while the excess, if any, shall be returned to the accused or to whoever made the
deposit. (14a)

Section 15. Recognizance. Whenever allowed by law or these Rules, the court
may release a person in custody to his own recognizance or that of a responsible
person. (15a)

Section 16. Bail, when not required; reduced bail or recognizance. No bail shall
be required when the law or these Rules so provide.

When a person has been in custody for a period equal to or more than the possible
maximum imprisonment prescribe for the offense charged, he shall be released
immediately, without prejudice to the continuation of the trial or the proceedings on
appeal. If the maximum penalty to which the accused may be sentenced is destierro,
he shall be released after thirty (30) days of preventive imprisonment.

A person in custody for a period equal to or more than the minimum of the principal
penalty prescribed for the offense charged, without application of the Indeterminate
Sentence Law or any modifying circumstance, shall be released on a reduced bail or
on his own recognizance, at the discretion of the court. (16a)

Section 17. Bail, where filed. (a) Bail in the amount fixed may be filed with the
court where the case is pending, or in the absence or unavailability of the judge
thereof, with any regional trial judge, metropolitan trial judge, municipal trial judge,
or municipal circuit trial judge in the province, city, or municipality. If the accused is
arrested in a province, city, or municipality other than where the case is pending, bail
may also be filed with any regional trial court of said place, or if no judge thereof is
available, with any metropolitan trial judge, municipal trial judge, or municipal circuit
trial judge therein.

(b) Where the grant of bail is a matter of discretion, or the accused seeks to be
released on recognizance, the application may only be filed in the court where the
case is pending, whether on preliminary investigation, trial, or on appeal.

(c) Any person in custody who is not yet charged in court may apply for bail with any
court in the province, city, or municipality where he is held. (17a)

Section 18. Notice of application to prosecutor. In the application for bail under
section 8 of this Rule, the court must give reasonable notice of the hearing to the
prosecutor or require him to submit his recommendation. (18a)

Section 19. Release on bail. The accused must be discharged upon approval of the
bail by the judge with whom it was filed in accordance with section 17 of this Rule.

Whenever bail is filed with a court other than where the case is pending, the judge
who accepted the bail shall forward it, together with the order of release and other
supporting papers, to the court where the case is pending, which may, for good reason,
require a different one to be filed. (19a)

Section 20. Increase or reduction of bail. After the accused is admitted to bail, the
court may, upon good cause, either increase or reduce its amount. When increased, the
accused may be committed to custody if he does not give bail in the increased amount
within a reasonable period. An accused held to answer a criminal charge, who is
released without bail upon filing of the complaint or information, may, at any
subsequent stage of the proceedings and whenever a strong showing of guilt appears
to the court, be required to give bail in the amount fixed, or in lieu thereof, committed
to custody. (20a)

Section 21. Forfeiture of bond. When the presence of the accused is required by
the court or these Rules, his bondsmen shall be notified to produce him before the
court on a given date and time. If the accused fails to appear in person as required, his
bail shall be declared forfeited and the bondsmen given thirty (30) days within which
to produce their principal and to show cause why no judgment should be rendered
against them for the amount of their bail. Within the said period, the bondsmen must:

(a) produce the body of their principal or give the reason for his non-production; and

(b) explain why the accused did not appear before the court when first required to do
so.

Failing in these two requisites, a judgment shall be rendered against the bondsmen,
jointly and severally, for the amount of the bail. The court shall not reduce or
otherwise mitigate the liability of the bondsmen, unless the accused has been
surrendered or is acquitted. (21a)
Section 22. Cancellation of bail. Upon application of the bondsmen, with due
notice to the prosecutor, the bail may be cancelled upon surrender of the accused or
proof of his death.

The bail shall be deemed automatically cancelled upon acquittal of the accused,
dismissal of the case, or execution of the judgment of conviction.

In all instances, the cancellation shall be without prejudice to any liability on the
bond. (22a)

Section 23. Arrest of accused out on bail. For the purpose of surrendering the
accused, the bondsmen may arrest him or, upon written authority endorsed on a
certified copy of the undertaking, cause him to be arrested by a police officer or any
other person of suitable age and discretion.

An accused released on bail may be re-arrested without the necessity of a warrant if

he attempts to depart from the Philippines without permission of the court where the
case is pending. (23a)

Section 24. No bail after final judgment; exception. No bail shall be allowed after
the judgment of conviction has become final. If before such finality, the accused has
applies for probation, he may be allowed temporary liberty under his bail. When no
bail was filed or the accused is incapable of filing one, the court may allow his release
on recognizance to the custody of a responsible member of the community. In no case
shall bail be allowed after the accused has commenced to serve sentence. (24a)

Section 25. Court supervision of detainees. The court shall exercise supervision
over all persons in custody for the purpose of eliminating unnecessary detention. The
executive judges of the Regional Trial Courts shall conduct monthly personal
inspections of provincial, city, and municipal jails and their prisoners within their
respective jurisdictions. They shall ascertain the number of detainees, inquire on their
proper accommodation and health and examine the condition of the jail facilities.
They shall order the segregation of sexes and of minors from adults, ensure the
observance of the right of detainees to confer privately with counsel, and strive to
eliminate conditions inimical to the detainees.

In cities and municipalities to be specified by the Supreme Court, the municipal trial
judges or municipal circuit trial judges shall conduct monthly personal inspections of
the municipal jails in their respective municipalities and submit a report to the
executive judge of the Regional Trial Court having jurisdiction therein.

A monthly report of such visitation shall be submitted by the executive judges to the
Court Administrator which shall state the total number of detainees, the names of
those held for more than thirty (30) days, the duration of detention, the crime charged,
the status of the case, the cause for detention, and other pertinent information. (25a)

Section 26. Bail not a bar to objections on illegal arrest, lack of or irregular
preliminary investigation. An application for or admission to bail shall not bar the
accused from challenging the validity of his arrest or the legality of the warrant issued
therefor, or from assailing the regularity or questioning the absence of a preliminary
investigation of the charge against him, provided that he raises them before entering
his plea. The court shall resolve the matter as early as practicable but not later than the
start of the trial of the case. (n)

FIRST DIVISION

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

LEONARDO ALMEDA, Petitioner, v. 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.

SYNOPSIS

Petitioner was charged with qualified theft. Respondent judge approved a bail of P15,000.00 on
condition that it be posted entirely in cash. At the hearing, petitioner asked that he be allowed to post
instead a surety bond, which request, however, was denied. At the same hearing, the city fiscal orally
moved to amend the information so as to include recidivism and habitual delinquency. The motion
was granted and immediately thereafter, the fiscal took hold of the original information and, there and
then, entered the amendment by annotating the same on the back of the document. Petitioner
moved for dismissal on the ground of double jeopardy. This and a motion for reconsideration were
both denied. Hence, this special civil action for certiorari.

The Supreme Court ruled that posting of a cash bond could work untold hardship on the part of the
accused tantamount to a denial of his constitutional right to bail. Thus, the trial court may not reject
otherwise acceptable sureties and insist that the accused obtain his provisional liberty only thru a
such bond. With respect to the amendment of the information charging accused of qualified theft of a
motor vehicle to include the allegations of habitual delinquency and recidivism, said amendment does
not place the accused in double jeopardy although he had already pleaded guilty to the information
since he had not been convicted nor acquitted of the charge contained in the original information,
neither had the case against him been dismissed or terminated.

Order denying motion of petitioner that he allowed to post surety bond set aside.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO BAIL. In this jurisdiction, the accused, as of
right, is entitled to bail prior to conviction except when he is charged with a capital offense of guilt is
strong. This right is guaranteed by the Constitution, and may not be denied even where the accused
has previously escaped detention or by reason of his prior absconding.

2. ID.; ID.; ID.; BAIL; defined; purpose. 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 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 imprisonment until his conviction and yet secure his
appearance at the trial.

3. ID.; ID.; ID.; FACTOR IN FIXING AMOUNT OF BAIL. In fixing the amount of the bail bond, the trial
court should consider the following factor, 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 accuseds appearance or non-appearance at the trial; (8) forfeiture of previous
bond; (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.

4. ID.; ID.; ID.; SAFEGUARD THEREFOR. In order to safeguard the right of an accused to bail, Art. IV,
Section 18 of the Constitution further provides that "excessive bail shall not be required." This is
logical because the imposition of an unreasonable bail may negate the very right itself.

5. ID.; ID.; ID.; REQUIREMENT OF CASH BOND MAY NEGATE RIGHT. 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 of 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 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.

6. ID.; ID.; ID.; OPTION TO DEPOSIT CASH BOND BELONGS TO ACCUSED. The condition that the
accused may have provisional liberty only upon 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. And 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.

7. ID.; ID.; ID.; TRIAL COURT MAY NOT REJECT ACCEPTABLE SURETIES The trial court may not reject
otherwise acceptable sureties and insist that the accused obtain his provisional liberty only thru a cash
bond.

8. ID.; ID.; ID.; MEASURES TO MEET LIKELIHOOD OF JUMPING BAIL. The measures which a court
may adopt to meet the likelihood of jumping bail are:(1) it could increase the amount of the bail bond
to an appropriate level; (2) 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 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 movement; and (3) the accused might be warned, though this warning is
not essential to the requirement of due process, that under the 1973 Constitution "Trial may proceed
notwithstanding his absence provided that he has been duly notified and his failure to appear is
unjustified."

9. ID.; ID.; ID.; COURT MUST EXERCISE EXTREME CARE AND CAUTION IN SCREENING BONDSMEN AND
SURETIES. Court must exercise extreme care and caution in the screening of bondsmen and sureties
in regard to their reputation, solvency and promptitude. 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.

10. ID.; ID.; RIGHT AGAINST DOUBLE JEOPARDY; REQUISITES. 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.

11. ID.; ID.; ID.; CASE AT BAR. Although accused had already pleaded not guilty to an information
charging him of qualified theft of a motor vehicle, a subsequent amendment of the information to
include allegations of habitual delinquency and recidivism does not place him in double jeopardy since
he has not yet been convicted nor acquitted of the charge contained in the original information, nor
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.

12. PLEADING AND PRACTICE; INFORMATION; AMENDMENT; DISCRETION OF COURT IN ALLOWING

AMENDMENT. 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 defendants 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.

13. ID.; ID.; ID.; ALLEGATION OF HABITUAL DELINQUENCY AND RECIDIVISM DOES NOT ALTER
PROSECUTION THEORY OF THE CASE. The additional allegations of habitual delinquency and
recidivism do not have effect of charging another offense different or distinct from the charge of
qualified theft (of a motor vehicles) 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 prosecutions 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
the due consideration of the petitioners right and did not abuse his discretion.

14. ID.; ID.; MOTION TO AMEND; SAME MUST BE IN WRITING. 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.

15. CRIMINAL LAW; HABITUAL DELINQUENCY; HABITUAL DELINQUENT, DEFINED. 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, estafa, or falsification,
he is found guilty of any of said crimes a third time or oftener." (Article 62, par. 5, Revised Penal Code)

16. ID.; ID.; PENALTY THEREFOR. The law imposes the additional penalty based on the criminal
propensity of the accused, apart from the 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. Article 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 circumstances
and 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 offenses.

17. ID.; RECIDIVISM, RECIDIVIST, DEFINED. A recidivist 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. (Article 14, par. 9, (Revised Penal Code).

DECISION

CASTRO, J.:

The petitioner Leonardo Almeda (alias Nardong 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, 2 and may not be denied even where the
accused has previously escaped detention,3 or by reason of his prior absconding. 4 In
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
liberty only upon 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.6 And 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:
SEC. 14. Deposit of money as bail. 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, or provincial, city, or municipal treasurer 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.

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, 7 the 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, estafa or falsification, he is found guilty of any
of said crimes a third time or oftener." 11 The 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. 12 Article 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
circumstances and 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. 13 A 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. The 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.