G.R. No.

L-9529

August 30, 1958

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PEDRO T. VILLANUEVA, defendant-appellant. Office of the Solicitor General Ambrosia Padilla and Solicitor Jose P. Alejandro for appellee. J. M. Cajucom for appellant. PER CURIAM: Appellant Pedro T. Villanueva was sentenced to death by the Fifth Division of the defunct People's Court for the crime of treason. On March 10, 1948, the case was elevated to us (G. R. No. L-2073) not only by virtue of the appeal duly interposed by the accused but also under the provisions of Section 9 of Rule 118 of the Rules of Court which provides mandatory review by this Tribunal of all decisions or judgments of the lower courts imposing death penalties. Meantime, it was discovered that the transcript of stenographic notes taken down on October 8, 1947, before the People's Court was missing and unavailable, by reason of which and upon recommendation of the Solicitor General, we promulgated a resolution on August 1, 1952, remanding the case to the Court of First Instance of Iloilo for the retaking of the missing testimonies of the four witnesses who testified before the People's Court, namely, Gregorio Gaton, Ambrosio Tuble, Basilia Taborete, and the accused himself. Thus the case was sent to that court. On August 24, 1953, appellant filed a petition with the Court of First Instance of Iloilo praying that he be allowed to withdraw his appeal so as to avail himself of the benefits of the Executive clemency granted to all prisoners convicted of treason, including those whose cases were pending appeal, on condition that such appeals be first withdrawn. Whereupon the Court of First Instance of Iloilo returned the case to us for whatever action we may take in view of the withdrawal requested, for, at all events, the case had to be reviewed by us regardless of defendant's appeal. The case was included in the agenda prepared by the Clerk of Court for September 21, 1953, only on the basis of the motion for withdrawal of appeal by appellant, without calling the attention of the Tribunal that defendant had previously appealed from a decision sentencing him to death, which decision called for an automatic review and judgment by us. Accordingly, and following the practice of this Tribunal of acting favorably on petitions for withdrawal of appeals where briefs had not been filed, as in the present case, said petition for withdrawal was granted by resolution of September 21, 1953. However, at about 3:00 o'clock in the afternoon of the same date, and after the passing of the resolution, appellant filed directly with this Court a petition reiterating his request for withdrawal of appeal previously made with the Court of First Instance of Iloilo, attaching thereto two documents said to be copies of the conditional pardon granted him and of the letter of the Legal Assistant in the office of the President addressed to the Director of Prisons. It was only on considering this second petition when we realized the nature of the case and that the withdrawal of appeal granted on September 21, 1953, was a mistake and contrary to legal precedents. So, in a resolution dated October 19, 1953, this Tribunal reconsidered its resolution of September 21st granting withdrawal of appeal, and again reminded the case to the Court of First Instance of Iloilo for the retaking of the testimonies above referred to, with instructions that a new decision be rendered based on the said testimonies and on the standing evidence adduced before the People's Court. The resolution of October 19th read as follows: By a decision dated November 19, 1947, the Fifth Division of the defunct People's Court after trial of appellant Pedro T. Villanueva on a charge of treason on several counts, found him guilty of treason and murder and sentenced him thus "IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, finding the accused Pedro T. Villanueva guilty of the complex crime of treason and murders as defined in Article 114 of the Revised Penal Code, in connection with Article 48 of the same Code, sentences him to suffer death penalty, with the accessories of the law, to indemnify the heirs of Cosme Calacasan in the amount of P2,000, to indemnify the heirs of Julia Cabilitasan in the amount of P2,000, to indemnify the heirs of Sofia Tambirao in the amount of P2,000, and to pay a fine of Twenty Thousand Pesos (P20,000) and the costs of the proceedings." Villanueva duly appealed to this Court. The records were sent up to us not only by virtue of the appeal but also under the provisions of Rule 118, Section 9, of the Rules of Court which provides for review and judgment by this Tribunal of all cases in which the death penalty shall have been imposed by a court of first instance, whether the defendant shall have appealed or not. It appearing that the stenographic notes taken of the testimony of the witnesses who testified on October 8, 1947, could not be located, and following the recommendation of the Solicitor General, a resolution was promulgated on August 1, 1952, remanding the case to the Court of First Instance of Iloilo for the retaking of the testimony of said witnesses.

Thereafter before said court defendant-appellant Villanueva filed a petition dated August 24, 1953, stating that about July 4, 1953, the Chief Executive granted executive clemency to all prisoners convicted of treason, including those whose cases were pending appeal, on condition that such appeals be first withdrawn, supposedly to give finality to the judgment of the lower court, and asking that he be allowed to withdraw his appeal. Acting upon said petition the Court of First Instance of Iloilo issued an order dated September 10, 1953, directing the return of the case to this Court for whatever action it may take in the premises, in view of the petition for withdrawal of the appeal filed by appellant and because the case had to be reviewed by the Supreme Court anyway regardless of the appeal by the defendant. The case was considered by us on September 21, 1953. The agenda of this Court on that date as regards this was prepared by the Clerk of Court's Office only on the basis of the motion for withdrawal of appeal by the defendant. Our attention was not called to the fact that defendant had previously appealed from a decision sentencing him to death, which decision called for an automatic review and judgment by us. So, following the practice of this Tribunal of acting favorably on petitions for withdrawal of appeals where the briefs have not yet been filed, as in the present case, said petition for withdrawal of appeal was granted by resolution of September 21, 1953. On the same date, however, and presumably after the passing of the resolution, appellant Villanueva filed directly with this Court a petition reiterating the request for withdrawal of his appeal previously made with the Court of First Instance of Iloilo, attaching to his petition Exhibits "A" and "B", said to be copies of the conditional pardon and of the letter of the Legal Assistant in the Office of the President addressed to the Director of Prisons. It was only on considering said petition that we realized the nature of the case and the decision appealed to this Court, the withdrawal of which appeal had been granted by the resolution of September 21, 1953. An accused appealing from a decision sentencing him to death may be allowed to withdraw his appeal like any other appellant in an ordinary criminal case before the briefs are filed, but his withdrawal of the appeal does not remove the case from the jurisdiction of this Court which under the law is authorized and called upon to review the decision though unappealed. Consequently, the withdrawal of the appeal in this case could not serve to render the decision of the People's Court final. In fact, as was said by this Court thru Justice Moreland in the case of U.S. vs. Laguna, 17 Phil. 532, speaking on the matter of review by this Court of a decision imposing the death penalty, the judgment of conviction entered in the trial court is not final, and cannot be executed and is wholly without force or effect until the case has been passed upon by the Supreme Court en consulta; that although a judgment of conviction is entered by the trial court, said decision has none of the attributes of a final judgment and sentence; that until it has been reviewed by the Supreme Court which finally passes upon it, the same is not final and conclusive; and that this automatic review by the Supreme Court of decisions imposing the death penalty is something which neither the court nor the accused could waive or evade. Furthermore, when the case was remanded to the lower court for the purpose of retaking the testimony of those witnesses who testified on October 8, 1947, the case was virtually remanded for new trial. Of course, the evidence and the testimony received during the trial before the People's Court which is still intact and available shall stand and the new trial will be confined to the testimony of the same witnesses who testified on October 8, 1947, the stenographic notes or transcript of which cannot now be found. Under these circumstances, it is necessary for the trial court to render a new decision because the new trial is being held before a new Judge and there is no assurance that the witnesses testifying, altho the very same ones who were on the witness stand on October 8, 1947, would testify to the same facts and in the same manner that they did at the former trial, altho they are supposed to do so. (See Demetria Obien de Almario vs. Fidel Ibaez, et al, 46 O. G. No. 1, p. 390). Going over the record of the case, we find that it would not be too difficult for the trial judge to see to it that the said witnesses as far as possible confine themselves to the same points on which they testified on October 8, 1947, because the testimonies of said witnesses including the defendant are referred to and described in the decision of the People's Court on pages 87, 123, and 124 to 129, and that there are only four witnesses including the accused himself. Examining Exhibits "A" and "B" submitted by appellant in relation to his petition for the withdrawal of his appeal, we find that although his name appears in the list of prisoners convicted by the People's Court and supposed to be pardoned conditionally, the pardon itself refers to the remission of the "unexpired portions of the prison sentence terms and the fines of the prisoners listed below who were convicted by the defunct People's Court of treason and committed to the new Bilibid Prison to serve their sentence." It is highly doubtful that the pardon could have contemplated and included appellant herein because his sentence of death does not merely involve a prison term which expires in time. Besides, a death sentence is not exactlyserved but rather executed. Moreover, Exhibit "B" says that "those prisoners whose cases are still pending on appeal shall be released only after their appeal has been withdrawn." The implication is that the withdrawal of the appeal rendered the decision of the People's Court final, resulting in conviction, this to bring it into harmony with Art. VII, Sec. 10(6) of the Constitution which requires conviction as a condition precedent to the exercise of Executive clemency.

As we have already stated, despite defendant's withdrawal of his appeal from the decision imposing the death sentence, there is no definite conviction or sentence until and after this Tribunal has reviewed the case and rendered its own decision affirming, modifying or reversing that of the lower court, unless of course in the new decision of the trial court based on the new trial a sentence other than death is imposed, in which case there would be no automatic review by us. Let the record of this case be again remanded to the Court of First Instance of Iloilo for new trial and thereafter, for a new decision. At the new trial, only the testimonies of witnesses for the defense, Ambrosio Tuble and Basilio Taborete, were introduced. Appellant also presented documentary evidence relative to the conditional pardon allegedly granted him. The Court of First Instance of Iloilo found nothing in the newly adduced evidence to disturb the decision of the People's Court, and, reproducing said decision, rendered judgment on October 11, 1955, sentencing appellant to capital punishment. The case was again elevated to us for automatic review and judgment and given the present docket number. In the amended information filed before the People's Court, appellant was accused of treason on ten counts, but the prosecution adduced evidence only on seven of them, namely, Counts 1, 2, 6, 7, 8, 9 and 10. The lower court found that Counts 1 and 2 were not proven, and convicted the accused on Counts 6, 7, 8, 9 and 10. The prosecution established that during the Japanese occupation, appellant, who is a Filipino citizen, and owing allegiance to the United States of America and the Commonwealth of the Philippines, gave the enemy aid and comfort by rendering service with the Japanese Imperial Army as secret agent, informer and spy, of its Detective Force in the province of Iloilo, and that in the performance of such service, he participated actively and directly in the punitive expeditions periodically made by the Japanese forces in the guerilla-infested areas of the province of Iloilo, and committed robberies, arson and mass-murders, specifically as follows: Count No. 6. Anent this Count, the amended information recites: 6. That on or about June 10, 1943, at the barrios of Baroc and Atabayan, municipality of Tigbauan, Iloilo, Philippines, and within the jurisdiction of this Court, the above-named accused, Pedro T. Villanueva, with intent to adhere as he did adhere to the enemy, and with treasonable intent to give as he did give said enemy aid and comfort, in his capacity as agent, informer and spy of the Detective Force, Imperial Japanese Army, and in company with other Filipino spies and several Japanese soldiers, did then and there, willfully, unlawfully, feloniously and treasonably arrest Vicente Garrido, Juan Tatlonghari, Clodovio Trieco, Melchor Trieco, Cosme Tobias, Leoncio Tumamudtamud, Quirino Toranto, Napoleon Luceno, Modesto Torremoro and Dionisio Belandrez on the charge that they were guerrilla soldiers and/or sympathizers and did investigate, maltreat and torture them; that subsequently the persons above-mentioned were taken away and were not seen or heard of since then; that on the occasion of the aforementioned patrol, the above-named accused and his companions, with intent of gain and without consent of the owners thereof, did then and there, willfully, unlawfully and feloniously loot the house of Jose T. Belandrez, taking therefrom genuine Philippine currency in the amount of P300; emergency notes in the amount of P1,200; jewelry value at P500; clothing valued at P200; and other personal effects; and from the house of Toribia Taleon, jewelry, watches, clothing and other personal effects with a total value of P160 more or less. Jose T. Belandrez, Salvador Toranto, Toribia Taleon and Maria Mendoza, corroborating one another, testified that at dawn of June 10, 1943, appellant, accompanied by some Filipinos and Japanese soldiers, went to the house of Jose T. Belandrez situated at Tigbauan, Iloilo, and took therefrom P1,200 in cash, jewelry worth P300, and clothing valued at P200; that they also arrested Dionisio Belandrez, Modesto Torremoro and Napoleon Luceno, members of the Bolo Battalion, an auxiliary unit of the guerrillas; that since that fateful day, the said three members of the Bolo Battalion never returned. Count No. 7. The amended information respecting this Count, reads as follows: 7. That on or about the 9th and 10th day of August, 1943, in the municipality of Tigbauan, Iloilo, Philippines, and within the jurisdiction of this Court, the above-named accused, Pedro T. Villanueva, with intent to adhere as he did adhere to the enemy, and with treasonable intent to give, as he did give said enemy, aid and comfort, in his capacity as agent, informer and spy of the Detective Force, Imperial Japanese Army, and in company with other Filipino spies and Japanese soldiers, did then and there wilfully, unlawfully, feloniously and treasonably arrest and apprehend several persons suspected of guerrilla activities, among whom were Federico Tinamisan, Eustaquio Doga, Roque Tiologo, Salvador Tedor, Tomas Trompeta, Agapito Trompeta, Andres Tayo, Victorio Tuante, Manuel Teano, Matias Tirante, Rufo Tolate, Celedonio Tupino, Alfredo Trompeta, Hilarion Toga and several others, who were gathered in the Chapel at barrio Napnapan, where the persons aforesaid were investigated, maltreated and tortured, as a consequence of which Salvador Tedor died of the beating and torture inflicted upon

him by the herein accused and his companions; that the following morning about thirty-seven persons were taken to the yard of Valentina Amandoron's house, where Jesus Astrologo, Carlos Palma, Filipino co-spies of the accused, and the Japanese killed by beheading Andres Tai, Victorio Tuante, Roque Tiologo, Manuel Teano, Matias Tirania, Pufo Tulato, Agapito Trompeta, Tomas Trompeta, Celedonio Tupino, Simeon Ledesma, Hermenegildo Taleon, Marcelo Turid, Magdaleno Turid, Enrique Turid, Jose Tamon, Cornelio Taghap, Eustaquio Doga, Eugenio (LNU), Francisco (LNU) Lucio (LNU), Juan (LNU), Casimiro (LNU), Gorteo (LNU), and several others whose names are unknown, while Alfredo Trompeta and Hilarion Toga were struck and wounded on their necks but miraculously escaped death. Six witnesses testified on this Count, namely, Severa Gua, Natividad Duga, Alfredo Trompeta, Hilario Taghap and Valentina Amandoron who, corroborating one another, stated that on August 9 or 10, 1943, which was a Monday, at about six o'clock in the evening, while Eustaquio Duga and his family were at their home in Tigbauan, Iloilo, he saw Japanese soldiers and some Filipinos approaching their house; that Eustaquio Duga notified his wife and they immediately started to flee; that unfortunately, they were overtaken by the Japanese soldiers, and Eustaquio Duga was arrested by herein appellant who was in company with said Japanese soldiers; that Eustaquio Duga was taken to the nearby barrio of Napnapan; that sometime later, Severa Gua found the dead body of Eustaquio Duga, with his head almost severed, among other corpses in the yard of the house of Valentina Amandoron. On the same day, while Alfredo Trompeta and his companion Roque Teologo were walking in a barrio road in Napnapan, Tigbauan, Iloilo, they were arrested by Japanese soldiers who were with the appellant; that Trompeta and Teologo were taken to the barrio of Ermita, of the same municipality, where they were investigated together with about thirty persons who were suspected as guerrillas; thence they were brought to the house of Valentina Amandoron where appellant and his companions killed in cold blood Trompeta's companions as well as these persons who were brought there earlier. Among the twenty-five persons killed on that occasion, were Andres Tayo, Tomas Trompeta, Rufo Tolato, Roque Teologo, Jose Taucon and Matias Tiranea. Count No. 8. The information equally recites: 8. That on or about August 12, 1943, in the municipality of Leon, Iloilo, Philippines, and within the jurisdiction of this Court, the above-named accused, Pedro T. Villanueva, with intent to adhere as he did adhere to the enemy, and with treasonable intent to give as he did give said enemy aid and comfort, in his capacity as agent, informer and spy of the Detective Force, Imperial Japanese Army; and in company with other Filipino spies and Japanese soldiers, did then and there wilfully, unlawfully, feloniously and treasonably arrest Cosme Calacasan, Nazario Calimutan, Alberto Caborique, Nazario Calacasan, Marcos Sobrevega, Jose Canillas, Aurelio Calacasan, Graciano (LNU), Juan (LNU), and three others, names unknown, on the charge that the persons aforesaid were guerrilla soldiers or guerrilla sympathizers; that thereafter these persons were taken to barrio Taal, municipality of San Miguel, where the accused and his companions set fire to and burned several houses in the aforesaid barrio; and later to barrio Baguingin, municipality of Leon, where the above-named accused and his companions investigated, maltreated and tortured them; that the above-named accused further adhering to the enemy did then and there, wilfully, unlawfully, feloniously and treasonably, and with evident premeditation and treachery, bayonetted to death Cosme Calacasan, while tied to a tree with hands tied behind his back; while Nazario Calimutan was bayonetted and killed in the same manner by Jesus Astrologo, Filipino co-spy of the herein accused; while Graciano (LNU) and Juan (LNU) and two others (names unknown) were bayonetted to death by the Filipino and Japanese companions of the accused; that after the killing of the aforesaid persons, the above-named accused and his companions did gather the corpses of their victims in the house of Juan Caya and thereafter did set fire to and burn that house the dead bodies inside. Aurelio Calacasan and Jose Canillas, corroborating each other, testified that at about eight o'clock in the morning of August 12, 1943, while Aurelio Calacasan, Cosme Calacasan, Anazario Calimutan, Alberto Caborique, Nazario Calacasan, Marcos Sobrevieja and Jose Canillas and several others were in the barrio of Anonang, Leon, Iloilo, they were arrested by Japanese soldiers and taken to the barrio of Taal, of the same municipality, where they saw appellant and his companions. After setting afire the houses in said barrio, appellant and his companions brought the prisoners to barrio Agboy, of the same municipality, where they were investigated regarding their guerilla activities or connections; that during the investigations, appellant stabbed to death Cosme Calacasan who was a member of the Bolo Battalion, an auxiliary unit of the guerrillas; that after several prisoners were killed, their corpses were gathered and placed in a house which was set on fire. Count No. 9. Concerning this Count, the amended information recites: 9. That on or about August 12, 1943, in the municipality of Leon, Iloilo, Philippines, and within the jurisdiction of this Court, the above-named accused, Pedro T. Villanueva, with intent to adhere as he did adhere to the enemy and with treasonable intent to give as he did give said enemy aid and comfort,

in his capacity as agent, informer, spy of the Detective Force, Imperial Japanese Army, and in company with other Filipino spies and Japanese soldiers, did then and there, wilfully, unlawfully, feloniously and treasonably conduct and carry out a raid against and mass arrest of persons suspected as guerrilla soldiers and sympathizers, as a consequence of which, about eighty persons, male and female, both young and old were arrested and gathered in a schoolhouse and chapel in the barrio of Buenavista, and thereat investigated, maltreated and tortured by the herein accused and his companions; that subsequently about thirty persons including women and children were taken to the house of Aquilino Sales, where about fourteen persons were bayonetted and killed by Japanese soldiers, namely, Julia Cabilitasan, Mercedes Calopez, Andrea Cahipo, Eustaquia Cabilinga, Isabel Canag, Rosalia Calopez, Luz Caldito, Estelita Camorahan, Roman Cabilinga, Tomas Canag, Luis Cabalfin, Juan Cabalfin, Macario Cabilitasan and Aurelio Caldito; while Paulina Cantara, Alejandro Calsona and Bienvenido Cabankalan received and sustained bayonet wounds but survived and were able to escape after the house of aforesaid Aquilino Sales was set on fire and burned by said patrol of Filipino spies and Japanese soldiers. Aquilina Cabilitasan, Bienvenido Cabankalan, Alejandro Calsena and Perpetua Canag, who testified for the prosecution, corroborating one another, stated that at about eight o'clock in the morning of August 12, 1943, several residents of barrio, Buenavista, Leon, Iloilo, were arrested by the appellant, who was armed with revolver and bayonet, and his companions consisting of Filipinos and Japanese soldiers; that said barrio residents were brought to the barrio schoolhouse where they were investigated. During the investigation, Julia Cabilitasan was singled out by the appellant who tied her hands behind her back and brought her under a "doldol" (kapok) tree, near a chapel, where she was stripped of all her clothings until she was naked. Appellant investigated her regarding the whereabouts of her husband who was a USAFFE soldier. Appellant, after severely beating Julia Cabilitasan, brought her to the house of Aquilino Sales where there were other Filipino prisoners. Shortly thereafter, appellant and his companions started the massacre of the prisoners. Appellant stabbed Julia Cabilitasan three times with a bayonet. In that massacre, fourteen persons including women and children were killed. Among those killed were Julia Cabilitasan, Macario Cabilitasan, Roman Cabelenga, Andrea Cahipos and Julia Calpit. Later, said house was set on fire. Count No. 10. Lastly, the amended information regarding this Count, recites: 10. That on or about March 18, 1944, in the municipalities of Guimbal and Tubugan, Iloilo, Philippines, and within the jurisdiction of this Court, the above-named accused, Pedro T. Villanueva, with intent to adhere as he did adhere to the enemy, and with treasonable intent to give as he did give said enemy aid and comfort, in his capacity as agent, informer and spy of the Detective Force, Imperial Japanese Army, and in company with other Filipino spies, Bureau of Constabulary and Japanese soldiers, did then and there wilfully, unlawfully, feloniously and treasonably arrest Rosalio Tambirao, Joaquin Escorido, Carolina Escorido, Romero Escorido, Edgardo Escorido, Editha Escorido, Sofia Tambiras, Raul Tabanda, Nestor Tabanda, Elena Gierza, Natividad Gersalino, Jovita Gersalino, Ernesto Tambirao, Ruly Tambirao, Jesusa Jimenez, Eustaquio Tortugalete, Paz Tabora, Basilisa Taborete, Gloria Escorido, Ciriaco Gierza and several others with unknown names on the charge that the persons aforesaid were either guerrilla soldiers, sympathizers and supporters; that the aforesaid persons were then taken to the house of Jacinto Toborete, where the herein accused, did then and their investigate, maltreat, or otherwise torture Basilisa Taborete, Gloria Escorido and Eustaquia Tortugalete in an effort to make them confess as to their connection with the guerrilla movement and the whereabouts of the guerrilla soldiers; that subsequently the herein accused further adhering to the enemy did deliver to a Japanese executioner Juan Gelario, Felipe Tanato, David Garnica, Juana Tabacoran, Jesusa Jimenez and Luz Tabiana, who were all executed and kill one after another; that the killing of Juana Tabacoran, Jesusa Jimenez and Luz Tabiana took place shortly after they were abused and raped by the Japanese and BC soldiers in the house of Jacinto Taborete; that while this was going on, Jovita Gersalino and Lourdes Tabanda were taken to another house by the herein accused, Filemon Palacios, Jr., Vicente Tolosa and a Japanese soldier, where they were abused and raped; that subsequently the persons gathered were asked who of them were relatives of Tranquilino Geonanga for they would be released and when an old woman answered that they were all relatives of Tranquilino Geonanga, the Japanese soldiers at once started to inflict and deliver bayonet thrusts on the persons gathered and as a consequence of which about thirty of them were killed and several were wounded: that subsequently, the herein accused and his companions proceeded to barrio Buluagan, where one Saturnino (LNU) was arrested, investigated, maltreated and tortured by the herein accused and later killed by the Japanese. Gloria Escorido, Basilisa Gierza and Ciriaco Gierza, testifying in support of this Count, and corroborating one another, stated that at about seven o'clock in the morning of March 16, 1944, while the appellant and several Japanese soldiers were on a punitive expedition in the barrio of Miadan, Guimbal, Iloilo, they arrested the barrio residents who fled to the Dalihi creek in Tubongan, Iloilo; that the barrio residents, who were about fifty persons, were brought to the barrio of Laguna, Tubongan, Iloilo, were they were investigated and maltreated; that during the investigation, appellant tied the feet of Gloria Escorido, hanged her with her head downward and beat her with the branch of an "aguho" tree; that appellant likewise brought to the house of Jacinto

Batorete three females, namely, Luz Tabiana, Jesusa Jimenez and Juana Tabiana where the said girls were abused by the appellant and his companions; that appellant also bayoneted to death Sofia Tambirao for the simple reason that she was the cousin of Tranquilino Geonanga, an officer of the guerrillas; that appellant and his companions massacred on that occasion around thirty persons, among whom were Jovita Gersalino, Carolina Escorido, Romero Escorido, Sofia Tambirao, and Edgardo Escorido. We have, therefore, that appellant not only participated actively in the punitive raids made by the Japanese soldiers and in arresting and killing Filipino Guerrillas, but personally manhandled Gloria Escorido, a girl barely 16 years of age at the time (Count 10), and killed in cold blood Cosme Calacasan by bayoneting him three times (Count 8), Julia Cabilitasan by likewise bayoneting her three times, with the added ignominy of stripping her stark naked moments before killing her (Count 9), and Sofia Tambirao (Count 10.) These specific overt acts of appellant as testified to by eyewitnesses who have survived the harrowing massacres, speak eloquently that his adherence to the enemy in giving it aid and comfort, was accompanied by cruelty and ruthlessness, in wanton disregard of the feelings and decency of his fellow citizens. The foregoing facts were not impugned by any evidence for appellant, his defense in the lower court merely consisting of (1) his denial of the overt acts imputed upon him, and (2) that if he ever served in the detective force of the Japanese Army since January 1st, 1944, it was because he was made to accept the position under duress, and that his acceptance of such position was for the good of the people, he having saved many Filipino lives from Japanese atrocities. We have carefully analyzed the evidence on record because of the seriousness of the charges against appellant, and we find that the evidence for the prosecution is overwhelming, such that appellant's counsel de officioinstead of filing a brief, made a manifestation dated November 29, 1955, stating that "after a thorough study of the records of the case, he finds nothing therein sufficient to disturb the decisions of the People's Court and of the Court of First Instance of Iloilo imposing capital punishment on the accused." Said counsel further stated that "The accused's only evidence which directly attacked the government's proofs was his denial of what several witnesses testified to." This manifestation was considered by this Tribunal as appellant's brief, in its resolution of December 6, 1955. Certainly mere denial by appellant cannot prevail upon the positive assertion of the witnesses for the government establishing incriminating facts, for it is a well settled rule of evidence that as between positive and negative testimony, the former deserves more weight and credit. Anent the defense of duress allegedly exerted by the Japanese upon appellant for which he had to serve in the detective force of the Japanese Army, we agree with the Solicitor General that "except the lone and selfserving testimony of the appellant that he was coerced to cooperate with and serve the Japanese soldiers, there is not an iota of proof that he was in fact compelled or coerced by the Japanese. Much less is there any evidence showing that the alleged compulsion or coercion was grave and imminent." Duress, force, fear or intimidation to be available as a defense, must be present, imminent and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. A threat of future injury is not enough. (16 C. J., 91). To be available as a defense, the fear must be well-founded, an immediate and actual danger of death or great bodily harm must be present and the compulsion must be of such a character as to leave no opportunity to accused for escape or self-defense in equal combat. It would be a most dangerous rule if a defendant could shield himself from prosecution for crime by merely setting up a fear from or because of a threat of a third person. (Wharton's Criminal Law, Vol. 1, Sec. 384). Fear as an excuse for crime has never been received by the law. No man, from fear or circumstances to himself has the right to make himself a party to committing mischief upon mankind (Lord Denman in Reg. vs. Tyler, 8 Car. and P. (Eng.) 616, vs. Duddely, L. R. 14, Q. B. Div. (Eng.) 273). When the case was remanded to the Court of First Instance of Iloilo for the retaking of lost testimonies, appellant attempted to give the case a new twist by filing a motion to quash on the ground that the pardon extended him has already extinguished his criminal liability and that his conviction by the People's Court had placed him in jeopardy. This motion was denied, but during the trial appellant was allowed to present documentary evidence relative to the clemency extended him, consisting of Exhibit 1 which is a certified copy of his conditional pardon; Exhibit 2, a certified copy of the letter of the Legal Assistant of the President dated June 30, 1953, addressed to the Director of Prisons; Exhibit 3 the motion to withdraw appeal filed before the Court of First Instance of Iloilo; and Exhibit 4, the Tribunal's resolution of September 21, 1953, granting said withdrawal. In addition, appellant presented an Exhibit 5 the decision of the People's Court in the case of People vs. Jesus Astrologo, dated December 11, 1947, sentencing him to death; Exhibit 6 the conditional pardon extended to said accused dated June 27, 1953; and Exhibit 7 the letter of the Legal Assistant of the Office of the President to the Director of Prisons, to show that said Jesus Astrologo who is now enjoying his freedom by reason of the pardon extended, has been allowed by this Tribunal to withdraw his appeal pending review of his death sentence.

Regarding the alleged pardon granted to appellant, we reiterate our ruling in our resolution of October 19, 1953, hereinbefore quoted. As to appellant's contention respecting the applicability of the Astrologo case, we find it untenable, for the Astrologo case (88 Phil., 423) was elevated to us for review on March 4, 1948; he filed his brief on October 21, 1949, and we rendered judgment on March 30, 1951, commuting the sentence to life imprisonment for lack of sufficient vote. The pardon granted him on June 27, 1953, or more than two years after the final judgment, was therefore in order, and cannot be invoked by herein appellant as a precedent. As to the payment of indemnity in the amount of P2,000 to the respective heirs of each of the victims of appellant, the Solicitor-General recommends that this amount imposed by the lower court be increased to P6,000. We find this recommendation to be correct, as it is in consonance with the repeated decisions of this Tribunal on the matter; hence the decision of the lower court should be amended accordingly. Furthermore, although the facts of the case verily justify the imposition of death penalty, yet, for lack of sufficient votes said penalty should be, as it is hereby commuted to reclusion perpetua, in accordance with law. Wherefore, and with the modifications above indicated, the decision appealed from is hereby affirmed, with costs. Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Reyes, J. B. L. and Endencia, JJ., concur.

G.R. No. L-409

January 30, 1947

ANASTACIO LAUREL, petitioner, vs. ERIBERTO MISA, respondent.

Claro M. Recto and Querube C. Makalintal for petitioner. First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for respondent.

RESOLUTION

In G.R. No. L-409, Anastacio Laurel vs. Eriberto Misa, etc., the Court, acting on the petition for habeas corpus filed by Anastacio Laurel and based on a theory that a Filipino citizen who adhered to the enemy giving the latter aid and comfort during the Japanese occupation cannot be prosecuted for the crime of treason defined and penalized by article 114 of the Revised Penal Code, for the reason (1) that the sovereignty of the legitimate government in the Philippines and, consequently, the correlative allegiance of Filipino citizens thereto was then suspended; and (2) that there was a change of sovereignty over these Islands upon the proclamation of the Philippine Republic:

(1) Considering that a citizen or subject owes, not a qualified and temporary, but an absolute and permanent allegiance, which consists in the obligation of fidelity and obedience to his government or sovereign; and that this absolute and permanent allegiance should not be confused with the qualified and temporary allegiance which a foreigner owes to the government or sovereign of the territory wherein he resides, so long as he remains there, in return for the protection he receives, and which consists in the obedience to the laws of the government or sovereign. (Carlisle vs. Unite States, 21 Law. ed., 429; Secretary of State Webster Report to the President of the United States in the case of Thraser, 6 Web. Works, 526);

Considering that the absolute and permanent allegiance of the inhabitants of a territory occupied by the enemy of their legitimate government or sovereign is not abrogated or severed by the enemy occupation, because the sovereignty of the government or sovereign de jure is not transferred thereby to the occupier, as we have held in the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil., 113) and of Peralta vs. Director of Prisons (75 Phil., 285), and if it is not transferred to the occupant it must necessarily remain vested in the legitimate government; that the sovereignty vested in the titular government (which is the supreme power which governs a body politic or society which constitute the state) must be distinguished from the exercise of the rights inherent thereto, and may be destroyed, or severed and transferred to another, but it cannot be suspended because the existence of sovereignty cannot be suspended without putting it out of existence or divesting the possessor thereof at least during the so-called period of suspension; that what may be suspended is the exercise of the rights of sovereignty with the control and government of the territory occupied by the enemy passes temporarily to the occupant; that the subsistence of the sovereignty of the legitimate government in a territory occupied by the military forces of the enemy during the war, "although the former is in fact prevented from exercising the supremacy over them" is one of the "rules of international law of our times"; (II Oppenheim, 6th Lauterpacht ed., 1944, p. 482), recognized, by necessary implication, in articles 23, 44, 45, and 52 of Hague Regulation; and that, as a corollary of the conclusion that the sovereignty itself is not suspended and subsists during the enemy occupation, the allegiance of the inhabitants to their legitimate government or sovereign subsists, and therefore there is no such thing as suspended allegiance, the basic theory on which the whole fabric of the petitioner's contention rests;

Considering that the conclusion that the sovereignty of the United State was suspended in Castine, set forth in the decision in the case of United States vs. Rice, 4 Wheaton, 246, 253, decided in 1819, and quoted in our decision in the cases of Co Kim Cham vs. Valdez Tan Keh and Dizon and Peralta vs. Director of Prisons, supra, in connection with the question, not of sovereignty, but of the existence of a government de facto therein and its power to promulgate rules and laws in the occupied territory, must have been based, either on the theory adopted subsequently in the Hague Convention of 1907, that the military occupation of an enemy territory does not transfer the sovereignty to the occupant; that, in the first case, the word "sovereignty" used therein should be construed to mean the exercise of the rights of sovereignty, because as this remains vested in the legitimate government and is not transferred to the occupier, it cannot be suspended without putting it out of existence or divesting said government thereof; and that in the second case, that is, if the said conclusion or doctrine refers to the suspension of the sovereignty itself, it has become obsolete after the adoption of the Hague Regulations in 1907, and therefore it can not be applied to the present case;

Considering that even adopting the words "temporarily allegiance," repudiated by Oppenheim and other publicists, as descriptive of the relations borne by the inhabitants of the territory occupied by the enemy toward the military government established over them, such allegiance may, at most, be considered similar to the temporary allegiance which a foreigner owes to the government or sovereign of the territory wherein he resides in return for the protection he receives as above described, and does not do away with the absolute and permanent allegiance which the citizen residing in a foreign country owes to his own government or sovereign; that just as a citizen or subject of a government or sovereign may be prosecuted for and convicted of treason committed in a foreign country, in the same way an inhabitant of a territory occupied by the military forces of the enemy may commit treason against his own legitimate government or sovereign if he adheres to the enemies of the latter by giving them aid and comfort; and that if the allegiance of a citizen or subject to his government or sovereign is nothing more than obedience to its laws in return for the protection he receives, it would necessarily follow that a citizen who resides in a foreign country or state would, on one hand, ipso facto acquire the citizenship thereof since he has enforce public order and regulate the social and commercial life, in return for the protection he receives, and would, on the other hand, lose his original citizenship, because he would not be bound to obey most of the laws of his own government or sovereign, and would not receive, while in a foreign country, the protection he is entitled to in his own;

Considering that, as a corollary of the suspension of the exercise of the rights of sovereignty by the legitimate government in the territory occupied by the enemy military forces, because the authority of the legitimate power to govern has passed into the hands of the occupant (Article 43, Hague Regulations), the political laws which prescribe the reciprocal rights, duties and obligation of government and citizens, are suspended or in abeyance during military occupation (Co Kim cham vs. Valdez Tan Keh and dizon, supra), for the only reason that as they exclusively bear relation to the ousted legitimate government, they are inoperative or not applicable to the government established by the occupant; that the crimes against national security, such as treason and espionage; inciting to war, correspondence with hostile country, flight to enemy's country, as well as those against public order, such as rebellion, sedition, and disloyalty, illegal possession of firearms, which are of political complexion because they bear relation to, and are penalized by our Revised Penal Code as crimes against the legitimate government, are also suspended or become inapplicable as against the occupant, because they can not be committed against the latter (Peralta vs. Director of Prisons, supra); and that, while the offenses against public order to be preserved by the legitimate government were inapplicable as offenses against the invader for the reason above stated, unless adopted by him, were also inoperative as against the ousted government for the latter was not responsible for the preservation of the public order in the occupied territory, yet article 114 of the said Revised Penal Code, was applicable to treason committed against the national security of the legitimate government, because the inhabitants of the occupied territory were still bound by their allegiance to the latter during the enemy occupation;

Considering that, although the military occupant is enjoined to respect or continue in force, unless absolutely prevented by the circumstances, those laws that enforce public order and regulate the social and commercial life of the country, he has, nevertheless, all the powers of de facto government and may, at his pleasure, either change the existing laws or make new ones when the exigencies of the military service demand such action, that is, when it is necessary for the occupier to do so for the control of the country and the protection of his army, subject to the restrictions or limitations

imposed by the Hague Regulations, the usages established by civilized nations, the laws of humanity and the requirements of public conscience (Peralta vs. Director of Prisons, supra; 1940 United States Rules of Land Warfare 76, 77); and that, consequently, all acts of the military occupant dictated within these limitations are obligatory upon the inhabitants of the territory, who are bound to obey them, and the laws of the legitimate government which have not been adopted, as well and those which, though continued in force, are in conflict with such laws and orders of the occupier, shall be considered as suspended or not in force and binding upon said inhabitants;

Considering that, since the preservation of the allegiance or the obligation of fidelity and obedience of a citizen or subject to his government or sovereign does not demand from him a positive action, but only passive attitude or forbearance from adhering to the enemy by giving the latter aid and comfort, the occupant has no power, as a corollary of the preceding consideration, to repeal or suspend the operation of the law of treason, essential for the preservation of the allegiance owed by the inhabitants to their legitimate government, or compel them to adhere and give aid and comfort to him; because it is evident that such action is not demanded by the exigencies of the military service or not necessary for the control of the inhabitants and the safety and protection of his army, and because it is tantamount to practically transfer temporarily to the occupant their allegiance to the titular government or sovereign; and that, therefore, if an inhabitant of the occupied territory were compelled illegally by the military occupant, through force, threat or intimidation, to give him aid and comfort, the former may lawfully resist and die if necessary as a hero, or submit thereto without becoming a traitor;

Considering that adoption of the petitioner's theory of suspended allegiance would lead to disastrous consequences for small and weak nations or states, and would be repugnant to the laws of humanity and requirements of public conscience, for it would allow invaders to legally recruit or enlist the Quisling inhabitants of the occupied territory to fight against their own government without the latter incurring the risk of being prosecuted for treason, and even compel those who are not aid them in their military operation against the resisting enemy forces in order to completely subdue and conquer the whole nation, and thus deprive them all of their own independence or sovereignty such theory would sanction the action of invaders in forcing the people of a free and sovereign country to be a party in the nefarious task of depriving themselves of their own freedom and independence and repressing the exercise by them of their own sovereignty; in other words, to commit a political suicide;

(2) Considering that the crime of treason against the government of the Philippines defined and penalized in article 114 of the Penal Code, though originally intended to be a crime against said government as then organized by authority of the sovereign people of the United States, exercised through their authorized representative, the Congress and the President of the United States, was made, upon the establishment of the Commonwealth Government in 1935, a crime against the Government of the Philippines established by authority of the people of the Philippines, in whom the sovereignty resides according to section 1, Article II, of the Constitution of the Philippines, by virtue of the provision of section 2, Article XVI thereof, which provides that "All laws of the Philippine Islands . . . shall remain operative, unless inconsistent with this Constitution . . . and all references in such laws to the Government or officials of the Philippine Islands, shall be construed, in so far as applicable, to refer to the Government and corresponding officials under this constitution;

Considering that the Commonwealth of the Philippines was a sovereign government, though not absolute but subject to certain limitations imposed in the Independence Act and incorporated as Ordinance appended to our Constitution, was recognized not only by the Legislative Department or Congress of the United States in approving the Independence Law above quoted and the Constitution of the Philippines, which contains the declaration that "Sovereignty resides in the people and all government authority emanates from them" (section 1, Article II), but also by the Executive Department of the United States; that the late President Roosevelt in one of his messages to Congress said, among others, "As I stated on August 12, 1943, the United States in practice regards the Philippines as having now the status as a government of other independent nations in fact all the attributes of complete and respected nationhood" (Congressional Record, Vol. 29, part 6, page 8173); and that it is a principle upheld by the Supreme Court of the United States in many cases, among them in the case of Jones vs. United States (137 U.S., 202; 34 Law. ed., 691, 696) that the

question of sovereignty is "a purely political question, the determination of which by the legislative and executive departments of any government conclusively binds the judges, as well as all other officers, citizens and subjects of the country.

Considering that section I (1) of the Ordinance appended to the Constitution which provides that pending the final and complete withdrawal of the sovereignty of the United States "All citizens of the Philippines shall owe allegiance to the United States", was one of the few limitations of the sovereignty of the Filipino people retained by the United States, but these limitations do not away or are not inconsistent with said sovereignty, in the same way that the people of each State of the Union preserves its own sovereignty although limited by that of the United States conferred upon the latter by the States; that just as to reason may be committed against the Federal as well as against the State Government, in the same way treason may have been committed during the Japanese occupation against the sovereignty of the United States as well as against the sovereignty of the Philippine Commonwealth; and that the change of our form of government from Commonwealth to Republic does not affect the prosecution of those charged with the crime of treason committed during the Commonwealth, because it is an offense against the same government and the same sovereign people, for Article XVIII of our Constitution provides that "The government established by this constitution shall be known as the Commonwealth of the Philippines. Upon the final and complete withdrawal of the sovereignty of the United States and the proclamation of Philippine independence, the Commonwealth of the Philippines shall thenceforth be known as the Republic of the Philippines";

This Court resolves, without prejudice to write later on a more extended opinion, to deny the petitioner's petition, as it is hereby denied, for the reasons above set forth and for others to be stated in the said opinion, without prejudice to concurring opinion therein, if any. Messrs. Justices Paras and Hontiveros dissent in a separate opinion. Mr. justice Perfecto concurs in a separate opinion.

G.R. No. 17958

February 27, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. LOL-LO and SARAW, defendants-appellants.

Thos. D. Aitken for appellants. Acting Attorney-General Tuason for appellee.

MALCOLM, J.:

The days when pirates roamed the seas, when picturesque buccaneers like Captain Avery and Captain Kidd and Bartholomew Roberts gripped the imagination, when grostesque brutes like Blackbeard flourished, seem far away in the pages of history and romance. Nevertheless, the record before us tells a tale of twentieth century piracy in the south seas, but stripped of all touches of chivalry or of generosity, so as to present a horrible case of rapine and near murder.

On or about June 30, 1920, two boats left matuta, a Dutch possession, for Peta, another Dutch possession. In one of the boats was one individual, a Dutch subject, and in the other boat eleven men, women, and children, likewise subjects of Holland. After a number of days of navigation, at about 7 o'clock in the evening, the second boat arrived between the Islands of Buang and Bukid in the Dutch East Indies. There the boat was surrounded by six vintas manned by twenty-four Moros all armed. The Moros first asked for food, but once on the Dutch boat, too for themselves all of the cargo, attacked some of the men, and brutally violated two of the women by methods too horrible to the described. All of the persons on the Dutch boat, with the exception of the two young women, were again placed on it and holes were made in it, the idea that it would submerge, although as a matter of fact, these people, after eleven days of hardship and privation, were succored violating them, the Moros finally arrived at Maruro, a Dutch possession. Two of the Moro marauder were Lol-lo, who also raped one of the women, and Saraw. At Maruro the two women were able to escape.

Lol-lo and Saraw later returned to their home in South Ubian, Tawi-Tawi, Sulu, Philippine Islands. There they were arrested and were charged in the Court of First Instance of Sulu with the crime of piracy. A demurrer was interposed by counsel de officio for the Moros, based on the grounds that the offense charged was not within the jurisdiction of the Court of First Instance, nor of any court of the Philippine Islands, and that the facts did not constitute a public offense, under the laws in force in the Philippine Islands. After the demurrer was overruled by the trial judge, trial was had, and a judgment was rendered finding the two defendants guilty and sentencing each of them to life imprisonment (cadena perpetua), to return together with Kinawalang and Maulanis, defendants in another case, to the offended parties, the thirty-nine sacks of copras which had been robbed, or to indemnify them in the amount of 924 rupees, and to pay a onehalf part of the costs.

A very learned and exhaustive brief has been filed in this court by the attorney de officio. By a process of elimination, however, certain questions can be quickly disposed of.

The proven facts are not disputed. All of the elements of the crime of piracy are present. Piracy is robbery or forcible depredation on the high seas, without lawful authority and done animo furandi, and in the spirit and intention of

universal hostility.

It cannot be contended with any degree of force as was done in the lover court and as is again done in this court, that the Court of First Instance was without jurisdiction of the case. Pirates are in law hostes humani generis. Piracy is a crime not against any particular state but against all mankind. It may be punished in the competent tribunal of any country where the offender may be found or into which he may be carried. The jurisdiction of piracy unlike all other crimes has no territorial limits. As it is against all so may it be punished by all. Nor does it matter that the crime was committed within the jurisdictional 3-mile limit of a foreign state, "for those limits, though neutral to war, are not neutral to crimes." (U.S. vs. Furlong [1820], 5 Wheat., 184.)

The most serious question which is squarely presented to this court for decision for the first time is whether or not the provisions of the Penal Code dealing with the crime of piracy are still in force. Article 153 to 156 of the Penal Code reads as follows:

ART. 153. The crime of piracy committed against Spaniards, or the subjects of another nation not at war with Spain, shall be punished with a penalty ranging from cadena temporal to cadena perpetua.

If the crime be committed against nonbelligerent subjects of another nation at war with Spain, it shall be punished with the penalty of presidio mayor.

ART. 154. Those who commit the crimes referred to in the first paragraph of the next preceding article shall suffer the penalty of cadena perpetua or death, and those who commit the crimes referred to in the second paragraph of the same article, from cadena temporal to cadena perpetua:

1. Whenever they have seized some vessel by boarding or firing upon the same.

2. Whenever the crime is accompanied by murder, homicide, or by any of the physical injuries specified in articles four hundred and fourteen and four hundred and fifteen and in paragraphs one and two of article four hundred and sixteen.

3. Whenever it is accompanied by any of the offenses against chastity specified in Chapter II, Title IX, of this book.

4. Whenever the pirates have abandoned any persons without means of saving themselves.

5. In every case, the captain or skipper of the pirates.

ART. 155. With respect to the provisions of this title, as well as all others of this code, when Spain is mentioned it shall be understood as including any part of the national territory.

ART. 156. For the purpose of applying the provisions of this code, every person, who, according to the Constitution of the Monarchy, has the status of a Spaniard shall be considered as such.

The general rules of public law recognized and acted on by the United States relating to the effect of a transfer of territory from another State to the United States are well-known. The political law of the former sovereignty is necessarily changed. The municipal law in so far as it is consistent with the Constitution, the laws of the United States, or the characteristics and institutions of the government, remains in force. As a corollary to the main rules, laws subsisting at the time of transfer, designed to secure good order and peace in the community, which are strictly of a municipal character, continue until by direct action of the new government they are altered or repealed. (Chicago, Rock Islands, etc., R. Co. vs. McGlinn [1885], 114 U.S., 542.)

These principles of the public law were given specific application to the Philippines by the Instructions of President McKinley of May 19, 1898, to General Wesley Meritt, the Commanding General of the Army of Occupation in the Philippines, when he said:

Though the powers of the military occupant are absolute and supreme, and immediately operate upon the political condition of the inhabitants, the municipal laws of the conquered territory, such as affect private rights of person and property, and provide for the punishment of crime, are considered as continuing in force, so far as they are compatible with the new order of things, until they are suspended or superseded by the occupying belligerent; and practice they are not usually abrogated, but are allowed to remain in force, and to be administered by the ordinary tribunals, substantially as they were before the occupations. This enlightened practice is so far as possible, to be adhered to on the present occasion. (Official Gazette, Preliminary Number, Jan. 1, 1903, p. 1. See also General Merritt Proclamation of August 14, 1898.)

It cannot admit of doubt that the articles of the Spanish Penal Code dealing with piracy were meant to include the Philippine Islands. Article 156 of the Penal Code in relation to article 1 of the Constitution of the Spanish Monarchy, would also make the provisions of the Code applicable not only to Spaniards but to Filipinos.

The opinion of Grotius was that piracy by the law of nations is the same thing as piracy by the civil law, and he has never been disputed. The specific provisions of the Penal Code are similar in tenor to statutory provisions elsewhere and to the concepts of the public law. This must necessarily be so, considering that the Penal Code finds its inspiration in this respect in the Novelas, the Partidas, and the Novisima Recopilacion.

The Constitution of the United States declares that the Congress shall have the power to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations. (U.S. Const. Art. I, sec. 8, cl. 10.) The Congress, in putting on the statute books the necessary ancillary legislation, provided that whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life. (U.S. Crim. Code, sec. 290; penalty formerly death: U.S. Rev. Stat., sec. 5368.) The framers of the Constitution and the members of Congress were content to let a definition of piracy rest on its universal conception under the law of nations.

It is evident that the provisions of the Penal Code now in force in the Philippines relating to piracy are not inconsistent with the corresponding provisions in force in the United States.

By the Treaty of Paris, Spain ceded the Philippine Islands to the United States. A logical construction of articles of the Penal Code, like the articles dealing with the crime of piracy, would be that wherever "Spain" is mentioned, it should be substituted by the words "United States" and wherever "Spaniards" are mentioned, the word should be substituted by the expression "citizens of the United States and citizens of the Philippine Islands." somewhat similar reasoning led this court in the case of United States vs. Smith ([1919], 39 Phil., 533) to give to the word "authority" as found in the Penal Code a limited meaning, which would no longer comprehend all religious, military, and civil officers, but only public officers in the Government of the Philippine Islands.

Under the construction above indicated, article 153 of the Penal Code would read as follows:

The crime of piracy committed against citizens of the United States and citizens of the Philippine Islands, or the subjects of another nation not at war with the United States, shall be punished with a penalty ranging from cadena temporal to cadena perpetua.

If the crime be committed against nonbelligerent subjects of another nation at war with the United States, it shall be punished with the penalty of presidio mayor.

We hold those provisions of the Penal code dealing with the crime of piracy, notably articles 153 and 154, to be still in force in the Philippines.

The crime falls under the first paragraph of article 153 of the Penal Code in relation to article 154. There are present at least two of the circumstances named in the last cited article as authorizing either cadena perpetua or death. The crime of piracy was accompanied by (1) an offense against chastity and (2) the abandonment of persons without apparent means of saving themselves. It is, therefore, only necessary for us to determine as to whether the penalty of cadena perpetua or death should be imposed. In this connection, the trial court, finding present the one aggravating circumstance of nocturnity, and compensating the same by the one mitigating circumstance of lack of instruction provided by article 11, as amended, of the Penal Code, sentenced the accused to life imprisonment. At least three aggravating circumstances, that the wrong done in the commission of the crime was deliberately augmented by causing other wrongs not necessary for its commission, that advantage was taken of superior strength, and that means were employed which added ignominy to the natural effects of the act, must also be taken into consideration in fixing the penalty. Considering, therefore, the number and importance of the qualifying and aggravating circumstances here present, which cannot be offset by the sole mitigating circumstance of lack of instruction, and the horrible nature of the crime committed, it becomes our duty to impose capital punishment.

The vote upon the sentence is unanimous with regard to the propriety of the imposition of the death penalty upon the defendant and appellant Lo-lo (the accused who raped on of the women), but is not unanimous with regard to the court, Mr. Justice Romualdez, registers his nonconformity. In accordance with provisions of Act No. 2726, it results, therefore, that the judgment of the trial court as to the defendant and appellant Saraw is affirmed, and is reversed as to the defendant and appellant Lol-lo, who is found guilty of the crime of piracy and is sentenced therefor to be hung until dead, at such time and place as shall be fixed by the judge of first instance of the Twenty-sixth Judicial District. The two appellants together with Kinawalang and Maulanis, defendants in another case, shall indemnify jointly and severally the offended parties in the equivalent of 924 rupees, and shall pay a one-half part of the costs of both instances. So ordered.

Araullo, C.J., Johnson, Avancea, Villamor, Ostrand, Johns and Romualdez, JJ., concur.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, ANDRES C. INFANTE, CHEONG SAN HIONG, and JOHN DOES, accused-appellants. DECISION
MELO, J.:

This is one of the older cases which unfortunately has remained in docket of the Court for sometime. It was reassigned, together with other similar cases, to undersigned ponente in pursuance of A.M. No. 00-9-03-SC dated February 27, 2001. In the evening of March 2, 1991, M/T Tabangao, a cargo vessel owned by the PNOC Shipping and Transport Corporation, loaded with 2,000 barrels of kerosene, 2,600 barrels of regular gasoline, and 40,000 barrels of diesel oil, with a total value of P40,426,793,87. was sailing off the coast of Mindoro near Silonay Island. The vessel, manned by 21 crew members, including Captain Edilberto Libo-on, Second Mate Christian Torralba, and Operator Isaias Ervas, was suddenly boarded, with the use of an aluminum ladder, by seven fully armed pirates led by Emilio Changco, older brother of accused-appellant Cecilio Changco. The pirates, including accused-appellants Tulin, Loyola, and Infante, Jr. were armed with M-16 rifles, .45 and .38 caliber handguns, and bolos. They detained the crew and took complete control of the vessel. Thereafter, accusedappellant Loyola ordered three crew members to paint over, using black paint, the name "M/T Tabangao" on the front and rear portions of the vessel, as well as the PNOC logo on the chimney of the vessel. The vessel was then painted with the name "Galilee," with registry at San Lorenzo, Honduras. The crew was forced to sail to Singapore, all the while sending misleading radio messages to PNOC that the ship was undergoing repairs. PNOC, after losing radio contact with the vessel, reported the disappearance of the vessel to the Philippine Coast Guard and secured the assistance of the Philippine Air Force and the Philippine Navy. However, search and rescue operations yielded negative results. On March 9, 1991, the ship arrived in the vicinity of Singapore and cruised around the area presumably to await another vessel which, however, failed to arrive. The pirates were thus forced to return to the Philippines on March 14, 1991, arriving at Calatagan, Batangas on March 20, 1991 where it remained at sea. On March 28, 1991, the "M/T Tabangao" again sailed to and anchored about 10 to 18 nautical miles from Singapore's shoreline where another vessel called "Navi Pride" anchored beside it. Emilio Changco ordered the crew of "M/T Tabangao" to transfer the vessel's cargo to the hold of "Navi Pride". Accused-appellant Cheong San Hiong supervised the crew of "Navi Pride" in receiving the cargo. The transfer, after an interruption, with both vessels leaving the area, was completed on March 30,1991. On March 30, 1991, "M/T Tabangao" returned to the same area and completed the transfer of cargo to "Navi Pride." On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas, but the vessel remained at sea. On April 10, 1991, the members of the crew were released in three batches with the stern warning not to report the incident to government authorities for a period of two days or until April 12, 1991, otherwise they would be killed. The first batch was fetched from the shoreline by a newly painted passenger jeep driven by accusedappellant Cecilio Changco, brother of Emilio Changco, who brought them to Imus, Cavite and gave P20,000.00 to Captain Libo-on for fare of the crew in proceeding to their respective homes. The second batch was fetched by accused-appellant Changco at midnight of April 10, 1991 and were brought to different places in Metro Manila. On April 12, 1991, the Chief Engineer, accompanied by the members of the crew, called the PNOC Shipping and Transport Corporation office to report the incident. The crew members were brought to the Coast Guard Office for investigation. The incident was also reported to the National Bureau of Investigation where the officers and members of the crew executed sworn statements regarding the incident. A series of arrests was thereafter effected as follows: a. On May 19, 1991, the NBI received verified information that the pirates were present at U.K. Beach, Balibago, Calatagan, Batangas. After three days of surveillance, accused-appellant Tulin was arrested and brought to the NBI headquarters in Manila. b. Accused-appellants Infante, Jr. and Loyola were arrested by chance at Aguinaldo Hi-way by NBI agents as the latter were pursuing the mastermind, who managed to evade arrest.

c. On May 20, 1991, accused-appellants Hiong and Changco were arrested at the lobby of Alpha Hotel in Batangas City. On October 24 1991, an Information charging qualified piracy or violation of Presidential Decree No. 532 (piracy in Philippine Waters) was filed against accused-appellants, as follows:

The undersigned State Prosecutor accuses ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, ANDRES C. INFANTE, and CHEONG SAN HIONG, and nine (9) other JOHN DOES of qualified piracy (Violation of P.D. No. 532), committed as follows: That on or about and during the period from March 2 to April 10, 1991, both dates inclusive, and for sometime prior and subsequent thereto, and within the jurisdiction of this Honorable Court, the said accused, then manning a motor launch and armed with high powered guns, conspiring and confederating together and mutually helping one another, did then and there, wilfully, unlawfully and feloniously fire upon, board and seize while in the Philippine waters M/T PNOC TABANGCO loaded with petroleum products, together with the complement and crew members, employing violence against or intimidation of persons or force upon things, then direct the vessel to proceed to Singapore where the cargoes were unloaded and thereafter returned to the Philippines on April 10, 1991, in violation of the aforesaid law. CONTRARY TO LAW. (pp. 119-20, Rollo.)
This was docketed as Criminal Case No. 91-94896 before Branch 49 of the Regional Trial Court of the National Capital Judicial Region stationed in Manila. Upon arraignment, accused-appellants pleaded not guilty to the charge. Trial thereupon ensued. Accused-appellants Tulin, Infante, Jr., and Loyola, notwithstanding some inconsistencies in their testimony as to where they were on March 1, 1991, maintained the defense of denial, and disputed the charge, as well as the transfer of any cargo from "M/T Tabangao" to the "Navi Pride." All of them claimed having their own respective sources of livelihood. Their story is to the effect that on March 2, 1991, while they were conversing by the beach, a red speedboat with Captain Edilberto Liboon and Second Mate Christian Torralba on board, approached the seashore. Captain Liboon inquired from the three if they wanted to work in a vessel. They were told that the work was light and that each worker was to be paid P3,000.00 a month with additional compensation if they worked beyond that period. They agreed even though they had no sea-going experience. On board, they cooked, cleaned the vessel, prepared coffee, and ran errands for the officers. They denied having gone to Singapore, claiming that the vessel only went to Batangas. Upon arrival thereat in the morning of March 21, 1991, they were paid P1,000.00 each as salary for nineteen days of work, and were told that the balance would be remitted to their addresses. There was neither receipt nor contracts of employment signed by the parties. Accused-appellant Changco categorically denied the charge, averring that he was at home sleeping on April 10, 1991. He testified that he is the younger brother of Emilio Changco, Jr. Accused-appellant Cheong San Hiong, also known as Ramzan Ali, adduced evidence that he studied in Sydney, Australia, obtaining the "Certificate" as Chief Officer, and later completed the course as a "Master" of a vessel, working as such for two years on board a vessel. He was employed at Navi Marine Services, Pte., Ltd. as Port Captain. The company was engaged in the business of trading petroleum, including shipoil, bunker lube oil, and petroleum to domestic and international markets. It owned four vessels, one of which was "Navi Pride." On March 2, 1991, the day before "M/T Tabangao" was seized by Emilio Changco and his cohorts, Hiong's name was listed in the company's letter to the Mercantile Section of the Maritime Department of the Singapore government as the radio telephone operator on board the vessel "Ching Ma." The company was then dealing for the first time with Paul Gan, a Singaporean broker, who offered to sell to the former bunker oil for the amount of 300,000.00 Singapore dollars. After the company paid over one-half of the aforesaid amount to Paul Gan, the latter, together with Joseph Ng, Operations Superintendent of the firm, proceeded to the high seas on board "Navi Pride" but failed to locate the contact vessel. The transaction with Paul Gan finally pushed through on March 27, 1991. Hiong, upon his return on board the vessel "Ching Ma," was assigned to supervise a ship-to-ship transfer of diesel oil off the port of Singapore, the contact vessel to be designated by Paul Gan. Hiong was ordered to ascertain the quantity and quality of the

oil and was given the amount of 300,000.00 Singapore Dollars for the purchase. Hiong, together with Paul Gan, and the surveyor William Yao, on board "Navi Pride" sailed toward a vessel called "M/T Galilee". Hiong was told that "M/T Galilee" would be making the transfer. Although no inspection of "Navi Pride" was made by the port authorities before departure, Navi Marine Services, Pte., Ltd. was able to procure a port clearance upon submission of General Declaration and crew list. Hiong, Paul Gan, and the brokers were not in the crew list submitted and did not pass through the immigration. The General Declaration falsely reflected that the vessel carried 11,900 tons. On March 28, 1991, "Navi Pride" reached the location of "M/T Galilee". The brokers then told the Captain of the vessel to ship-side with "M/T Galilee" and then transfer of the oil transpired. Hiong and the surveyor William Yao met the Captain of "M/T Galilee," called "Captain Bobby" (who later turned out to be Emilio Changco). Hiong claimed that he did not ask for the full name of Changco nor did he ask for the latter's personal card. Upon completion of the transfer, Hiong took the soundings of the tanks in the "Navi Pride" and took samples of the cargo. The surveyor prepared the survey report which "Captain Bobby" signed under the name "Roberto Castillo." Hiong then handed the payment to Paul Gan and William Yao. Upon arrival at Singapore in the morning of March 29, 1991, Hiong reported the quantity and quality of the cargo to the company. Thereafter, Hiong was again asked to supervise another transfer of oil purchased by the firm " from "M/T Galilee" to "Navi Pride." The same procedure as in the first transfer was observed. This time, Hiong was told that that there were food and drinks, including beer, purchased by the company for the crew of "M/T Galilee. The transfer took ten hours and was completed on March 30, 1991. Paul Gan was paid in full for the transfer. On April 29 or 30, 1991, Emilio Changco intimated to Hiong that he had four vessels and wanted to offer its cargo to cargo operators. Hiong was asked to act as a broker or ship agent for the sale of the cargo in Singapore. Hiong went to the Philippines to discuss the matter with Emilio Changco, who laid out the details of the new transfer, this time with "M/T Polaris" as contact vessel. Hiong was told that the vessel was scheduled to arrive at the port of Batangas that weekend. After being billeted at Alpha Hotel in Batangas City, where Hiong checked in under the name "SONNY CSH." A person by the name of "KEVIN OCAMPO," who later turned out to be Emilio Changco himself, also checked in at Alpha Hotel. From accused-appellant Cecilio Changco, Hiong found out that the vessel was not arriving. Hiong was thereafter arrested by NBI agents. After trial, a 95-page decision was rendered convicting accused-appellants of the crime charged. The dispositive portion of said decision reads:

WHEREFORE, in the light of the foregoing considerations, judgment is hereby rendered by this Court finding the accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio Changco guilty beyond reasonable doubt, as principals, of the crime of piracy in Philippine Waters defined in Section 2(d) of Presidential Decree No. 532 and the accused Cheong San Hiong, as accomplice, to said crime. Under Section 3(a) of the said law, the penalty for the principals of said crime is mandatory death. However, considering that, under the 1987 Constitution, the Court cannot impose the death penalty, the accused Roger Tulin, Virgilio Loyola, Andres Infante, ]r., and Cecilio Changco are hereby each meted the penalty of RECLUSION PERPETUA, with all the accessory penalties of the law. The accused Cheong San Hiong is hereby meted the penalty of RECLUSION PERPETUA, pursuant to Article 52 of the Revised Penal Code in relation to Section 5 of PD 532. The accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio Changco are hereby ordered to return to the PNOC Shipping and Transport Corporation the "M/T Tabangao" or if the accused can no longer return the same, the said accused are hereby ordered to remit, jointly and severally, to said corporation the value thereof in the amount of P11,240,000.00 Philippine Currency, with interests thereon, at the rate of 6% per annum from March 2, 1991 until the said amount is paid in full. All the accused including Cheong San Hiong are hereby ordered to return to the Caltex Philippines, Inc. the cargo of the "M/T Tabangao", or if the accused can no longer return the said cargo to said corporation, all the accused are hereby condemned to pay, jointly and severally, to the Caltex Refinery, Inc., the value of said cargo in the amount of P40,426,793.87, Philippine Currency plus interests until said amount is paid in full. After the accused Cheong San Hiong has served his sentence, he shall be deported to Singapore. All the accused shall be credited for the full period of their detention at the National Bureau of Investigation and the City Jail of Manila during the pendency of this case provided that they agreed

in writing to abide by and comply strictly with the rules and regulations of the City Jail of Manila and the National Bureau of Investigation. With costs against all the accused. SO ORDERED. (pp. 149-150, Rollo.)
The matter was then elevated to this Court. The arguments of accused-appellants may be summarized as follows:

Roger P. Tulin Virgilio Loyola Andres C. Infante Jr., and Cecilio O. Changco Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco assert that the trial court erred in allowing them to adopt the proceedings taken during the time they were being represented by Mr. Tomas Posadas, a non-lawyer, thereby depriving them of their constitutional right to procedural due process. In this regard, said accused-appellants narrate that Mr. Posadas entered his appearance as counsel for all of them. However, in the course of the proceedings, or on February 11, 1992, the trial court discovered that Mr. Posadas was not a member of the Philippine Bar. This was after Mr. Posadas had presented and examined seven witnesses for the accused. Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco uniformly contend that during the custodial investigation, they were subjected to physical violence; were forced to sign statements without being given the opportunity to read the contents of the same; were denied assistance of counsel, and were not informed of their rights, in violation of their constitutional rights, Said accused-appellants also argue that the trial court erred in finding that the prosecution proved beyond reasonable doubt that they committed the crime of qualified piracy. They allege that the pirates were outnumbered by the crew who totaled 22 and who were not guarded at all times. The crew, so these accusedappellants conclude, could have overpowered the alleged pirates.

Cheong San Hiong In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect obliterated the crime committed by him; (2) the trial court erred in declaring that the burden is lodged on him to prove by clear and convincing evidence that he had no knowledge that Emilio Changco and his cohorts attacked and seized the "M/T Tabangao" and/or that the cargo of the vessel was stolen or the subject of theft or robbery or piracy; (3) the trial court erred in finding him guilty as an accomplice to the crime of qualified piracy under Section 4 of Presidential Decree No. 532 (Anti-Piracy and Anti-Robbery Law of 1974); (4) the trial court erred in convicting and punishing him as an accomplice when the acts allegedly committed by him were done or executed outside of Philippine waters and territory, stripping the Philippine courts of jurisdiction to hold him for trial, to convict, and sentence; (5) the trial court erred in making factual conclusions without evidence on record to prove the same and which in fact are contrary to the evidence adduced during trial; (6) the trial court erred in convicting him as an accomplice under Section 4 of Presidential Decree No. 532 when he was charged as a principal by direct participation under said decree, thus violating his constitutional right to be informed of the nature and cause of the accusation against him. Cheong also posits that the evidence against the other accused-appellants do not prove any participation on his part in the commission of the crime of qualified piracy. He further argues that he had not in any way participated in the seajacking of "M/T Tabangao" and in committing the crime of qualified piracy, and that he was not aware that the vessel and its cargo were pirated. As legal basis for his appeal, he explains that he was charged under the information with qualified piracy as principal under Section 2 of Presidential Decree No. 532 which refers to Philippine waters. In the case at bar, he argues that he was convicted for acts done outside Philippine waters or territory. For the State to have criminal jurisdiction, the act must have been committed within its territory. We affirm the conviction of all the accused-appellants. The issues of the instant case may be summarized as follows: (1) what are the legal effects and implications of the fact that a non-lawyer represented accused-appellants during the trial?; (2) what are the legal effects and implications of the absence of counsel during the custodial investigation?; (3) did the trial court err in finding

that the prosecution was able to prove beyond reasonable doubt that accused-appellants committed the crime of qualified piracy?; (4) did Republic Act No. 7659 obliterate the crime committed by accused-appellant Cheong?; and (5) can accused-appellant Cheong be convicted as accomplice when he was not charged as such and when the acts allegedly committed by him were done or executed outside Philippine waters and territory? On the first issue, the record reveals that a manifestation (Exhibit "20", Record) was executed by accusedappellants Tulin, Loyola, Changco, and Infante, Jr. on February 11, 1991, stating that they were adopting the evidence adduced when they were represented by a non-lawyer. Such waiver of the right to sufficient representation during the trial as covered by the due process clause shall only be valid if made with the full assistance of a bona fide lawyer. During the trial, accused-appellants, as represented by Atty. Abdul Basar, made a categorical manifestation that said accused-appellants were apprised of the nature and legal consequences of the subject manifestation, and that they voluntarily and intelligently executed the same. They also affirmed the truthfulness of its contents when asked in open court (tsn, February 11, 1992, pp. 7-59). It is true that an accused person shall be entitled to be present and to defend himself in person and by counsel at every stage of the proceedings, from arraignment to promulgation of judgment (Section 1, Rule 115, Revised Rules of Criminal Procedure). This is hinged on the fact that a layman is not versed on the technicalities of trial. However, it is also provided by law that "[r]ights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs or prejudicial to a third person with right recognized by law." (Article 6, Civil Code of the Philippines). Thus, the same section of Rule 115 adds that "[u]pon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel." By analogy , but without prejudice to the sanctions imposed by law for the illegal practice of law, it is amply shown that the rights of accused-appellants were sufficiently and properly protected by the appearance of Mr. Tomas Posadas. An examination of the record will show that he knew the technical rules of procedure. Hence, we rule that there was a valid waiver of the right to sufficient representation during the trial, considering that it was unequivocally, knowingly, and intelligently made and with the full assistance of a bona fide lawyer, Atty. Abdul Basar. Accordingly, denial of due process cannot be successfully invoked where a valid waiver of rights has been made (People vs. Serzo, 274 SCRA 553 [1997]; Sayson vs. People, 166 SCRA 680 [1988]). However, we must quickly add that the right to counsel during custodial investigation may not be waived except in writing and in the presence of counsel. Section 12, Article III of the Constitution reads:

SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and rehabilitation of victims of torture or similar practices, and their families.
Such rights originated from Miranda v. Arizona (384 U. S. 436 [1966]) which gave birth to the so-called Miranda doctrine which is to the effect that prior to any questioning during custodial investigation, the person must be warned that he has a right to remain silent, that any statement he gives may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently. The Constitution even adds the more stringent requirement that the waiver must be in writing and made in the presence of counsel. Saliently, the absence of counsel during the execution of the so-called confessions of the accusedappellants make them invalid. In fact, the very basic reading of the Miranda rights was not even shown in the case at bar. Paragraph [3] of the aforestated Section 12 sets forth the so-called "fruit from the poisonous tree doctrine," a phrase minted by Mr. Justice Felix Frankfurter in the celebrated case of Nardone vs. United States (308 U.S. 388 [1939]). According to this rule, once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary or derivative evidence (the "fruit") derived from it is also inadmissible. The

rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence because the originally illegally obtained evidence taints all evidence subsequently obtained (People vs. Alicando, 251 SCRA 293 [1995]). Thus, in this case, the uncounselled extrajudicial confessions of accusedappellants, without a valid waiver of the right to counsel, are inadmissible and whatever information is derived therefrom shall be regarded as likewise inadmissible in evidence against them. However, regardless of the inadmissibility of the subject confessions, there is sufficient evidence to convict accused-appellants with moral certainty. We agree with the sound deduction of the trial court that indeed, Emilio Changco (Exhibits "U" and "UU") and accused-appellants Tulin, Loyola, .and Infante, Jr. did conspire and confederate to commit the crime charged. In the words of then trial judge, now Justice Romeo J. Callejo of the Court of Appeals -

...The Prosecution presented to the Court an array of witnesses, officers and members of the crew of the "M/T Tabangao" no less, who identified and pointed to the said Accused as among those who attacked and seized, the "M/T Tabangao" on March 2, 1991, at about 6:30 o'clock in the afternoon, off Lubang Island, Mindoro, with its cargo, and brought the said vessel, with its cargo, and the officers and crew of the vessel, in the vicinity of Horsebough Lighthouse, about sixty-six nautical miles off the shoreline of Singapore and sold its cargo to the Accused Cheong San Hiong upon which the cargo was discharged from the "M/T Tabangao" to the "Navi Pride" for the price of about $500,000.00 (American Dollars) on March 29, and 30, 1991... xxx xxx xxx The Master, the officers and members of the crew of the "M/T Tabangao" were on board the vessel with the Accused and their cohorts from March 2, 1991 up to April 10, 1991 or for more than one (1) month. There can be no scintilla of doubt in the mind of the Court that the officers and crew of the vessel could and did see and identify the seajackers and their leader. In fact, immediately after the Accused were taken into custody by the operatives of the National Bureau of Investigation, Benjamin Suyo, Norberto Senosa, Christian Torralba and Isaias Wervas executed their "Joint Affidavit" (Exhibit "B") and pointed to and identified the said Accused as some of the pirates. xxx xxx xxx Indeed, when they testified before this Court on their defense, the three (3) Accused admitted to the Court that they, in fact, boarded the said vessel in the evening of March 2 1991 and remained on board when the vessel sailed to its, destination, which turned out to be off the port of Singapore. (pp. 106-112, Rollo.)
We also agree with the trial court's finding that accused-appellants' defense of denial is not supported by any hard evidence but their bare testimony. Greater weight is given to the categorical identification of the accused by the prosecution witnesses than to the accused's plain denial of participation in the commission of the crime (People v. Baccay, 284 SCRA 296 [1998]). Instead, accused-appellants Tulin, Loyola, and Infante, Jr. narrated a patently desperate tale that they were hired by three complete strangers (allegedly Captain Edilberto Liboon, Second Mate Christian Torralba, and their companion) while said accused-appellants were conversing with one another along the seashore at Apkaya, Balibago, Calatagan, Batangas, to work on board the "M/T Tabangao" which was then anchored off-shore. And readily, said accused-appellants agreed to work as cooks and handymen for an indefinite period of time without even saying goodbye to their families, without even knowing their destination or the details of their voyage, without the personal effects needed for a long voyage at sea. Such evidence is incredible and clearly not in accord with human experience. As pointed out by the trial court, it is incredible that Captain Liboon, Second Mate Torralba, and their companion "had to leave the vessel

at 9:30 o'clock in the evening and venture in a completely unfamiliar place merely to recruit five (5) cooks or handymen (p. 113, Rollo)." Anent accused-appellant Changco's defense of denial with the alibi that on May 14 and 17, he was at his place of work and that on April 10, 1991, he was in his house in Bacoor, Cavite, sleeping, suffice it to state that alibi is fundamentally and inherently a weak defense, much more so when uncorroborated by other witnesses (People v. Adora, 275 SCRA 441 [1997]) considering that it is easy to fabricate and concoct, and difficult to disprove. Accused-appellant must adduce clear and convincing evidence that, at about midnight on April 10, 1991, it was physically impossible for him to have been in Calatagan, Batangas. Changco not only failed to do this, he was likewise unable to prove that he was in his place of work on the dates aforestated. It is doctrinal that the trial court's evaluation of the credibility of a testimony is accorded the highest respect, for trial courts have an untrammeled opportunity to observe directly the demeanor of witnesses and, thus, to determine whether a certain witness is telling the truth (People v. Obello, 284 SCRA 79 [1998]). We likewise uphold the trial court's finding of conspiracy. A conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it (Article 8, Revised Penal Code). To be a conspirator, one need not participate in every detail of execution; he need not even take part in every act or need not even know the exact part to be performed by the others in the execution of the conspiracy. As noted by the trial court, there are times when conspirators are assigned separate and different tasks which may appear unrelated to one another, but in fact, constitute a whole and collective effort to achieve a common criminal design. We affirm the trial court's finding that Emilio Changco, accused- appellants Tulin, Loyola, and Infante, Jr. and others, were the ones assigned to attack and seize the "M/T Tabangao" off Lubang, Mindoro, while accused-appellant Cecilio Changco was to fetch the master and the members of the crew from the shoreline of Calatagan, Batangas after the transfer, and bring them to Imus, Cavite, and to provide the crew and the officers of the vessel with money for their fare and food provisions on their way home. These acts had to be wellcoordinated. Accused-appellant Cecilio Changco need not be present at the time of the attack and seizure of "M/T Tabangao" since he performed his task in view of an objective common to all other accused- appellants. Of notable importance is the connection of accused-appellants to one another. Accused-appellant Cecilio Changco is the younger brother of Emilio Changco (aka Captain Bobby/Captain Roberto Castillo/Kevin Ocampo), owner of Phil-Asia Shipping Lines. Cecilio worked for his brother in said corporation. Their residences are approximately six or seven kilometers away from each other. Their families are close. Accusedappellant Tulin, on the other hand, has known Cecilio since their parents were neighbors in Aplaya, Balibago, Calatagan, Batangas. Accused-appellant Loyola's wife is a relative of the Changco brothers by affinity .Besides, Loyola and Emilio Changco had both been accused in a seajacking case regarding "M/T Isla Luzon" and its cargo of steel coils and plates off Cebu and Bohol in 1989. Emilio Changco (aka Kevin Ocampo) was convicted of the crime while Loyola at that time remained at large. As for accused-appellant Hiong, he ratiocinates that he can no longer be convicted of piracy in Philippine waters as defined and penalized in Sections 2[d] and 3[a], respectively of Presidential Decree No. 532 because Republic Act No. 7659 (effective January 1, 1994) which amended Article 122 of the Revised Penal Code, has impliedly superseded Presidential Decree No. 532. He reasons out that Presidential Decree No. 532 has been rendered "superfluous or duplicitous" because both Article 122 of the Revised Penal Code, as amended, and Presidential Decree No. 532 punish piracy committed in Philippine waters. He maintains that in order to reconcile the two laws, the word "any person" mentioned in Section 1 [d] of Presidential Decree No. 532 must be omitted such that Presidential Decree No. 532 shall only apply to offenders who are members of the complement or to passengers of the vessel, whereas Republic Act No. 7659 shall apply to offenders who are neither members of the complement or passengers of the vessel, hence, excluding him from the coverage of the law. Article 122 of the Revised Penal Code, used to provide:

Article 122. Piracy in general and mutiny on the high seas. -The penalty of reclusion temporal shall be inflicted upon any person who, on the high seas, shall attack or seize a vessel or, not being a member of its complement nor a passenger, shall seize the whole or part of the cargo of said vessel, its equipment, or personal belongings of its complement or passengers. (Underscoring supplied.)
Article 122, as amended by Republic Act No. 7659 January 1, 1994), reads:

Article 122. Piracy in general and mutiny on the high seas or in Philippine waters. -The penalty of reclusion perpetua shall be inflicted upon any person who, on the high seas, or in Philippine waters, shall attack or seize a vessel or, being a member of its complement nor a passenger, shall seize the whole or part of the cargo of said vessel, its equipment, or personal belongings of its complement or passengers. (Underscoring ours)
On the other hand, Section 2 of Presidential Decree No. 532 provides:

SEC. 2. Definition of Terms. - The following shall mean and be understood, as follows: d. Piracy. -Any attack upon or seizure of any vessel, or the taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of its complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things, committed by any person. including a passenger or member of the complement of said vessel in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided (underscoring supplied).
To summarize, Article 122 of the Revised Penal Code, before its amendment, provided that piracy must be committed on the high seas by any person not a member of its complement nor a passenger thereof. Upon its amendment by Republic Act No. 7659, the coverage of the pertinent provision was widened to include offenses committed "in Philippine waters." On the other hand, under Presidential Decree No. 532 (issued in 1974), the coverage of the law on piracy embraces any person including "a passenger or member of the complement of said vessel in Philippine waters." Hence, passenger or not, a member of the complement or not, any person is covered by the law. Republic Act No. 7659 neither superseded nor amended the provisions on piracy under Presidential Decree No. 532. There is no contradiction between the two laws. There is likewise no ambiguity and hence, there is no need to construe or interpret the law. All the presidential decree did was to widen the coverage of the law, in keeping with the intent to protect the citizenry as well as neighboring states from crimes against the law of nations. As expressed in one of the "whereas" clauses of Presidential Decree No. 532, piracy is "among the highest forms of lawlessness condemned by the penal statutes of all countries." For this reason, piracy under the Article 122, as amended, and piracy under Presidential Decree No. 532 exist harmoniously as separate laws. As regards the contention that the trial court did not acquire jurisdiction over the person of accusedappellant Hiong since the crime was committed outside Philippine waters, suffice it to state that unquestionably, the attack on and seizure of "M/T Tabangao" (renamed "M/T Galilee" by the pirates) and its cargo were committed in Philippine waters, although the captive vessel was later brought by the pirates to Singapore where its cargo was off-loaded, transferred, and sold. And such transfer was done under accused-appellant Hiong's direct supervision. Although Presidential Decree No. 532 requires that the attack and seizure of the vessel and its cargo be committed in Philippine waters, the disposition by the pirates of the vessel and its cargo is still deemed part of the act of piracy, hence, the same need not be committed in Philippine waters. Moreover, piracy falls under Title One of Book Two of the Revised Penal Code. As such, it is an exception to the rule on territoriality in criminal law. The same principle applies even if Hiong, in the instant case, were charged, not with a violation of qualified piracy under the penal code but under a special law, Presidential Decree No. 532 which penalizes piracy in Philippine waters. Verily, Presidential Decree No. 532 should be applied with more force here since its purpose is precisely to discourage and prevent piracy in Philippine waters (People v. Catantan, 278 SCRA 761 [1997]). It is likewise, well-settled that regardless of the law penalizing the same, piracy is a reprehensible crime against the whole world (People v. Lol-lo, 43 Phil. 19 [1922]). However, does this constitute a violation of accused-appellant's constitutional right to be informed of the nature and cause of the accusation against him on the ground that he was convicted as an accomplice under Section 4 of Presidential Decree No. 532 even though he was charged as a principal by direct participation under Section 2 of said law? The trial court found that there was insufficiency of evidence showing: (a) that accused-appellant Hiong directly participated in the attack and seizure of "M/T Tabangao" and its cargo; (b) that he induced Emilio Changco and his group in the attack and seizure of "M/T Tabangao" and its cargo; ( c) and that his act was indispensable in the attack on and seizure of "M/T Tabangao" and its cargo. Nevertheless, the trial court found that accused-appellant Hiong's participation was indisputably one which

aided or abetted Emilio Changco and his band of pirates in the disposition of the stolen cargo under Section 4 of Presidential Decree No. 532 which provides:

SEC. 4. Aiding pirates or highway robbers/brigands or abetting piracy or highway robbery brigandage. -Any person who knowingly and in any manner aids or protects pirates or highway robbers/brigands, such as giving them information about the movement of police or other peace officers of the government, or acquires or receives property taken by such pirates or brigands or in any manner derives any benefit therefrom; or any person who directly or indirectly abets the commission of piracy or highway robbery or brigandage, shall be considered as an accomplice of the principal officers and be punished in accordance with Rules prescribed by the Revised Penal Code. It shall be presumed that any person who does any of the acts provided in this Section has performed them knowingly, unless the contrary is proven.
The ruling of the trial court is Within well-settle jurisprudence that if there is lack of complete evidence of conspiracy, the liability is that of an accomplice and not as principal (People v. Tolentino, 40 SCRA 514 [1971]). Any doubt as to the participation of an individual in the commission of the crime is always resolved in favor of lesser responsibility (People v. Corbes, 270 SCRA 465 [1997]; People vs. Elfano, Jr., 125 SCRA 792 [1983]; People v. Pastores, 40 SCRA 498 [1971]). Emphasis must also be placed on the last paragraph of Section 4 of Presidential Decree No 532 which presumes that any person who does any of the acts provided in said section has performed them knowingly, unless the contrary is proven. In the case at bar, accused-appellant Hiong had failed to overcome the legal presumption that he knowingly abetted or aided in the commission of piracy, received property taken by such pirates and derived benefit therefrom. The record discloses that accused-appellant Hiong aided the pirates in disposing of the stolen cargo by personally directing its transfer from "M/T Galilee" to "M/T Navi Pride". He profited therefrom by buying the hijacked cargo for Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992, pp. 15-23). He even tested the quality and verified the quantity of the petroleum products, connived with Navi Marine Services personnel in falsifying the General Declarations and Crew List to ensure that the illegal transfer went through, undetected by Singapore Port Authorities, and supplied the pirates with food, beer, and other provisions for their maintenance while in port (tsn, June 3, 1992, pp. 133-134). We believe that the falsification of the General Declaration (Arrival and Departure) and Crew List was accomplished and utilized by accused-appellant Hiong and Navi Marine Services personnel in the execution of their scheme to avert detection by Singapore Port Authorities. Hence, had accused-appellant Hiong not falsified said entries, the Singapore Port Authorities could have easily discovered the illegal activities that took place and this would have resulted in his arrest and prosecution in Singapore. Moreover, the transfer of the stolen cargo from "M/T Galilee" to "Navi Pride" could not have been effected. We completely uphold the factual findings of the trial court showing in detail accused-appellant Hiong's role in the disposition of the pirated goods summarized as follows: that on March 27, 1991, Hiong with Captain Biddy Santos boarded the "Navi Pride," one of the vessels of the Navi Marine, to rendezvous with the "M/T Galilee"; that the firm submitted the crew list of the vessel (Exhibit "8-CSH", Record) to the port authorities, excluding the name of Hiong; that the "General Declaration" (for departure) of the "Navi Pride" for its voyage off port of Singapore (Exhibits "HH" and "8-A CSH", Record) falsely stated that the vessel was scheduled to depart at 2200 (10 o'clock in the evening), that there were no passengers on board, and the purpose of the voyage was for "cargo operation" and that the vessel was to unload and transfer 1,900 tons of cargo; that after the transfer of the fuel from "M/T Galilee" with' Emilio Changco a. k. a. Captain Bobby a. k. a. Roberto Castillo at the helm, the surveyor prepared the "Quantity Certificate" (Exhibit "11-C CSH, Record) stating that the cargo transferred to the "Navi Pride" was 2,406 gross cubic meters; that although Hiong was not the Master of the vessel, he affixed his signature on the "Certificate" above the word "Master" (Exhibit "11-C-2 CSH", Record); that he then paid $150,000.00 but did not require any receipt for the amount; that Emilio Changco also did not issue one; and that in the requisite "General Declaration" upon its arrival at Singapore on March 29, 1991, at 7 o'clock in the evening, (Exhibits "JJ" and "13-A CSH", Record), it was made to falsely appear that the "Navi Pride" unloaded 1,700 tons of cargo on the high seas during said voyage when in fact it acquired from the "M/T Galilee" 2,000 metric tons of diesel oil. The second transfer transpired with the same irregularities as discussed above. It was likewise supervised by accused- appellant Cheong from his end while Emilio Changco supervised the transfer from his end.

Accused-appellant Hiong maintains that he was merely following the orders of his superiors and that he has no knowledge of the illegality of the source of the cargo. First and foremost, accused-appellant Hiong cannot deny knowledge of the source and nature of the cargo since he himself received the same from "M/T Tabangao". Second, considering that he is a highly educated mariner, he should have avoided any participation in the cargo transfer given the very suspicious circumstances under which it was acquired. He failed to show a single piece of deed or bill of sale or even a purchase order or any contract of sale for the purchase by the firm; he never bothered to ask for and scrutinize the papers and documentation relative to the "M/T Galilee"; he did not even verify the identity of Captain Robert Castillo whom he met for the first time nor did he check the source of the cargo; he knew that the transfer took place 66 nautical miles off Singapore in the dead of the night which a marine vessel of his firm did not ordinarily do; it was also the first time Navi Marine transacted with Paul Gan involving a large sum of money without any receipt issued therefor; he was not even aware if Paul Gan was a Singaporean national and thus safe to deal with. It should also be noted that the value of the cargo was P40,426,793.87 or roughly more than US$l,000,000.00 (computed at P30.00 to $1, the exchange rate at that time). Manifestly, the cargo was sold for less than one-half of its value. Accused-appellant Hiong should have been aware of this irregularity. Nobody in his right mind would go to far away Singapore, spend much time and money for transportation -only to sell at the aforestated price if it were legitimate sale involved. This, in addition to the act of falsifying records, clearly shows that accused-appellant Hiong was well aware that the cargo that his firm was acquiring was purloined. Lastly, it cannot be correctly said that accused-appellant was "merely following the orders of his superiors." An individual is justified in performing an act in obedience to an order issued by a superior if such order, is for some lawful purpose and that the means used by the subordinate to carry out said order is lawful (Reyes, Revised Penal Code, Vol. 1, 1981 ed., p. 212). Notably, the alleged order of Hiong's superior Chua Kim Leng Timothy, is a patent violation not only of Philippine, but of international law. Such violation was committed on board a Philippine-operated vessel. Moreover, the means used by Hiong in carrying out said order was equally unlawful. He misled port and immigration authorities, falsified records, using a mere clerk, Frankie Loh, to consummate said acts. During the trial, Hiong presented himself, and the trial court was convinced, that he was an intelligent and articulate Port Captain. These circumstances show that he must have realized the nature and the implications of the order of Chua Kim Leng Timothy. Thereafter, he could have refused to follow orders to conclude the deal and to effect the transfer of the cargo to the Navi Pride. He did not do so, for which reason, he must now suffer the consequences of his actions. WHEREFORE, finding the conviction of accused-appellants justified by the evidence on record, the Court hereby AFFIRMS the judgment of the trial court in toto. SO ORDERED. Vitug, Panganiban, Gonzaga-Reyes, and Sandoval-Gutierrez, JJ., concur.