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Republic of the Philippines

G.R. No. 17958

SUPREME COURT

Manila

EN BANC

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 one-half 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, Avanceña, Villamor, Ostrand, Johns and Romualdez, JJ., concur.

Republic of the Philippines

G.R. No. 111709

SUPREME COURT

Manila

THIRD DIVISION

August 30, 2001

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.

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, accused-appellant 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 accused-appellant 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

as well as the PNOC logo on the chimney of the vessel. The vessel was thenMANAGED 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: " id="pdf-obj-5-25" src="pdf-obj-5-25.jpg">

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, Jr., 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 I. 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 accused-appellants 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 accused-appellants 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:

SECTION 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 accused- appellants 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 accused- appellants, 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 Aplaya, 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 well-coordinated. 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. Accused-appellant 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.

(Italics 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 ofreclusion perpetua shall be inflicted upon any person who, on the high seas, or in Philippine waters, 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.

(Italics ours)

On the other hand, Section 2 of Presidential Decree No. 532 provides:

SECTION 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 (Italics 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 accused- appellant 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:

SECTION 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-settled 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 P150,000.00 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

(for departure) of the "Navi Pride" for its voyage off port of Singapore (Exhibits "HH" andMONEY 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$1,000,000.00 (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. " id="pdf-obj-16-13" src="pdf-obj-16-13.jpg">

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$1,000,000.00 (computed at P30.00 to $1, THE EXCHANGE RATE

(for departure) of the "Navi Pride" for its voyage off port of Singapore (Exhibits "HH" andMONEY 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$1,000,000.00 (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. " id="pdf-obj-16-22" src="pdf-obj-16-22.jpg">

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.

Republic of the Philippines

SUPREME COURT

Manila

FIRST DIVISION

G.R. No. 118075 September 5, 1997

PEOPLE OF THE PHILIPPINES, vs.

WHEREFORE, finding the conviction of accused-appellants justified by the evidence on record, the Court hereby AFFIRMS

plaintiff-appellee,

EMILIANO CATANTAN y TAYONG,

accused-appellant.

BELLOSILLO, J.:

EMILIANO CATANTAN and JOSE MACVEN URSAL

alias

"Bimbo" were charged with violation

of PD No. 532 otherwise known as the Anti-Piracy and Highway Robbery Law of 1974 for having on 27 June 1993, while armed with a firearm and a bladed weapon, acting in conspiracy with one another, by means of violence and intimidation, wilfully and feloniously attacked, assaulted and inflicted physical injuries on Eugene Pilapil and Juan Pilapil Jr. who were then fishing in the seawaters of Tabogon, Cebu, and seized their fishing boat, to their damage and prejudice.

1
1

The Regional Trial Court of Cebu, after trial, found both accused Emiliano Catantan y Tayong

and Jose Macven Ursal

to

2
2

alias

"Bimbo" guilty of the crime charged and sentenced them

reclusion perpetua.

Of the duo only Emiliano Catantan appealed.

In his appeal, accused Catantan contends that the trial court erred in convicting him of piracy as the facts proved only constitute grave coercion defined in Art. 286 of the Revised Penal Code and not piracy under PD No. 532.

The evidence for the prosecution is that at 3:00 o'clock in the morning of 27 June 1993, the Pilapil brothers Eugene, 21, and Juan Jr., 18, were fishing in the sea some 3 kilometers away from the shores of Tabogon, Cebu. Suddenly, another boat caught up with them. One of them, later identified as the accused Emiliano Catantan, bearded the pump boat of the Pilapils and leveled his gun at Eugene. With his gun, Catantan struck Eugene on the left cheekbone and

ordered him and Juan Jr. to "dapa."

3
3

Then Catantan told Ursal to follow him to the pumpboat of

the Pilapils. There they hogtied Eugene, forced him to lie down at the bottom of the boat, covered him with a tarpaulin up to his neck, stepped on him and ordered Juan Jr. to ferry them to Daan Tabogon. They left behind the other pumpboat which the accused had earlier used together with its passengers one of whom was visibly tied.

Noting that they were already far out into the sea, Eugene reminded Catantan that they were now off-course but Catantan told Eugene to keep quiet or he would be killed. Later, the engine conked out and Juan Jr. was directed to row the boat. Eugene asked to be set free so he could help but was not allowed; he was threatened with bodily harm instead.

Meanwhile Juan Jr.

EMILIANO CATANTAN and JOSE MACVEN URSAL alias "Bimbo" were charged with violation of PD No. 532MANAGED to fix the engine, but as they went farther out into the open sea the engine stalled again. This time Eugene was allowed to assist his brother. Eugene's hands were set free but his legs were tied to the outrigger. At the point of a tres cantos 4 held by Ursal, Eugene helped row the boat. As they passed the shoreline of Nipa, they saw another boat. Catantan asked whose boat that was and the Pilapils told him that it was operated by a certain Juanito and that its engine was new. Upon learning this, Catantan ordered the Pilapil brothers to approach the boat cautioning them however not to move or say anything. On the pretext that they were buying fish Catantan boarded the "new" pumpboat. Once aboard he ordered the operator Juanito to take them to Mungaz, another town of Cebu. When Juanito tried to beg-off by saying that he would still pull up his net and harvest his catch, Catantan drew his revolver and said, "You choose between the two, or I will kill " id="pdf-obj-18-49" src="pdf-obj-18-49.jpg">

to fix the engine, but as they went farther out into the open

sea the engine stalled again. This time Eugene was allowed to assist his brother. Eugene's

hands were set free but his legs were tied to the outrigger. At the point of a

tres cantos

4
4

held

by Ursal, Eugene helped row the boat.

As they passed the shoreline of Nipa, they saw another boat. Catantan asked whose boat that was and the Pilapils told him that it was operated by a certain Juanito and that its engine was new. Upon learning this, Catantan ordered the Pilapil brothers to approach the boat cautioning them however not to move or say anything.

On the pretext that they were buying fish Catantan boarded the "new" pumpboat. Once aboard he ordered the operator Juanito to take them to Mungaz, another town of Cebu. When Juanito tried to beg-off by saying that he would still pull up his net and harvest his catch, Catantan drew his revolver and said, "You choose between the two, or I will kill

you."

5
5

Juanito, obviously terrified, immediately obeyed and Ursal hopped in from the other

pumpboat and joined Catantan.

But, as Ursal was transferring to the "new" pumpboat, its outrigger caught the front part of the pumpboat of the Pilapils so he kicked hard its prow; it broke. The jolt threw Eugene into the sea and he landed on the water headlong. Juan Jr. then untied his brother's legs and the two swam together clinging to their boat. Fortunately another pumpboat passed by and towed them safely ashore.

Section 2, par. (d), of PD No. 532, defines piracy as "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 the 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,

you." 5 Juanito, obviously terrified, immediately obeyed and Ursal hopped in from the other pumpboat and

shall be considered as piracy.

The offenders shall be considered as pirates and punished as

hereinafter provided." And a vessel is construed in Sec. 2, par. (b), of the same decree as

"any vessel or watercraft used for transport of passengers and cargo from one place to

you." 5 Juanito, obviously terrified, immediately obeyed and Ursal hopped in from the other pumpboat and

another through Philippine waters.

It shall include all kinds and types of vessels or boats

used in fishing

(emphasis supplied).

On the other hand, grave coercion as defined in Art. 286 of the Revised Penal Code is committed by "any person who, without authority of law, shall, by means of violence, prevent another from doing something not prohibited by law, or compel him to do something against his will, whether it be right or wrong."

Accused-appellant argues that in order that piracy may be committed it is essential that there be an attack on or seizure of a vessel. He claims that he and his companion did not attack or seize the fishing boat of the Pilapil brothers by using force or intimidation but merely boarded the boat, and it was only when they were already on board that they used force to compel the Pilapils to take them to some other place. Appellant also insists that he and Ursal had no intention of permanently taking possession or depriving complainants of their boat. As a matter of fact, when they saw another pumpboat they ordered the brothers right away to approach that boat so they could leave the Pilapils behind in their boat. Accordingly, appellant claims, he simply committed grave coercion and not piracy.

We do not agree. Under the definition of piracy in PD No. 532 as well as grave coercion as penalized in Art. 286 of the Revised Penal Code, this case falls squarely within the purview of piracy. While it may be true that Eugene and Juan Jr. were compelled to go elsewhere other than their place of destination, such compulsion was obviously part of the act of seizing their boat. The testimony of Eugene, one of the victims, shows that the appellant actually seized the vessel through force and intimidation. The direct testimony of Eugene is significant and enlightening —

Q: Now, while you and your younger brother were fishing at the seawaters of Tabogon at that time, was there anything unusual that happened?

A: Yes.

Q: Will you please tell the Court what that was?

A: While we were fishing at Tabogon another pumpboat arrived and the passengers of that pumpboat boarded our pumpboat.

Q: Now, that pumpboat which you said approached you, how many were riding in that pumpboat?

A: Four.

Q: When you said the passengers of that pumpboat boarded your pumpboat, how did they do that?

A: They approached somewhat suddenly and came aboard the pumpboat(emphasis supplied).

Q: How many suddenly came aboard your pumpboat?

A: Only one.

Q: What did that person do when he came aboard your pumpboat?

A: When he boarded our pumpboat he aimed his revolver at

us

(emphasis supplied).

Q: By the way, when he aimed his revolver to you, did he say anything to you?

xxx xxx xxx

A: He said, "dapa," which means lie down

(emphasis supplied).

COURT:

Q: To whom did he aim that revolver?

A: He aimed the revolver on me.

TRIAL PROS. ECHAVEZ:

Q: What else did he do?

A: Then he ordered his companion to come aboard the pumpboat.

Q: What did he do with his revolver?

A: He struck my face with the revolver, hitting the lower portion of my left eye.

Q: Now, after you were struck with the revolver, what did these persons do?

A: We were ordered to take them to a certain place.

Q: To what place did he order you to go?

A: To Daan Tabogon.

6

To sustain the defense and convert this case of

piracy into one of grave coercion would be to

ignore the fact that a fishing vessel cruising in Philippine waters was seized by the accused by means of violence against or intimidation of persons. As Eugene Pilapil testified, the accused suddenly approached them and boarded their pumpboat and Catantan aimed his revolver at them as he ordered complaining witness Eugene Pilapil to "dapa" or lie down with face downwards, and then struck his face with a revolver, hitting the lower portion of his left eye, after which, Catantan told his victims at gun point to take them to Daan Tabogon.

The incident happened at 3:00 o'clock in the morning. The sudden appearance of another pumpboat with four passengers, all strangers to them, easily intimidated the Pilapil brothers that they were impelled to submit in complete surrender to the marauders. The moment Catantan jumped into the other pumpboat he had full control of his victims. The sight of a drawn revolver in his hand drove them to submission. Hence the issuance of PD No. 532 designed to avert situations like the case at bar and discourage and prevent piracy in Philippine waters. Thus we cite the succeeding "whereas" clauses of the decree —

Whereas, reports from law-enforcement agencies reveal that lawless elements are still committing acts of depredations upon the persons and properties of innocent and defenseless inhabitants who travel from one place to another, thereby disturbing the peace, order and tranquility of the nation and stunting the economic and social progress of the people;

Whereas, such acts of depredations constitute either piracy or highway robbery/brigandage which are among the highest forms of lawlessness condemned by the penal statutes of all countries; and,

Whereas,

it is imperative that said lawless elements be discouraged from

perpetrating such acts of depredations by imposing heavy penalty on the

offenders,

offenders , with the end in view of eliminating all obstacle to the social , economic

with the end in view of eliminating all obstacle to the

offenders , with the end in view of eliminating all obstacle to the social , economic

social,

economic,

educational and community progress of the people.

The Pilapil brothers are mere fisherfolk whose only means of livelihood is fishing in sea waters. They brave the natural elements and contend with the unknown forces of the sea to bring home a bountiful harvest. It is on these small fishermen that the townspeople depend for the daily bread. To impede their livelihood would be to deprive them of their very subsistence, and the likes of the accused within the purview of PD No. 532 are the obstacle to the "economic, social, educational and community progress of the people." Had it not been for the chance passing of another pumpboat, the fate of the Pilapil brothers, left alone helpless in a floundering, meandering outrigger with a broken prow and a conked-out engine in open sea, could not be ascertained.

While appellant insists that he and Ursal had no intention of depriving the Pilapils permanently of their boat, proof of which they left behind the brothers with their boat, the truth is, Catantan and Ursal abandoned the Pilapils only because their pumpboat broke down and it was necessary to transfer to another pumpboat that would take them back to their lair. Unfortunately for the pirates their "new" pumpboat ran out of gas so they were apprehended by the police soon after the Pilapils reported the matter to the local authorities.

The fact that the revolver used by the appellant to seize the boat was not produced in evidence cannot exculpate him from the crime. The fact remains, and we state it again, that Catantan and his co-accused Ursal seized through force and intimidation the pumpboat of the Pilapils while the latter were fishing in Philippine waters.

WHEREFORE, finding no reversible error in the decision appealed from, the conviction of accused-appellant EMILIANO CATANTAN y TAYONG for the crime of piracy penalized under

PD No. 532 and sentencing him accordingly to against accused-appellant.

reclusion perpetua, is AFFIRMED. Costs

SO ORDERED.

Vitug, Kapunan and Hermosisima Jr., JJ., concur.

Republic of the Philippines

G.R. No. 154130

SUPREME COURT

Manila

FIRST DIVISION

October 1, 2003

BENITO ASTORGA, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

YNARES-SANTIAGO, J.:

D E C I S I O N

This is a petition for review under Rule 45 of the Rules of Court, seeking the reversal of a Decision of the Sandiganbayan in Criminal Case No. 24986, dated July 5, 2001, 1 as well as its Resolutions dated September 28, 2001 and July 10, 2002.

On October 28, 1998, the Office of the Ombudsman filed the following Information against Benito Astorga, Mayor of Daram, Samar, as well as a number of his men for Arbitrary Detention:

That on or about the 1st day of September, 1997, and for sometime subsequent thereto, at the Municipality of Daram, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being the Municipal Mayor of Daram, Samar, in such capacity and committing the offense in relation to office, conniving, confederating and mutually helping with unidentified persons, who are herein referred to under fictitious names JOHN DOES, who were armed with firearms of different calibers, with deliberate intent, did then and there willfully, unlawfully and feloniously detain Elpidio Simon, Moises dela Cruz, Wenifredo Maniscan, Renato Militante and Crisanto Pelias, DENR Employees, at the Municipality of Daram, by not allowing them to leave the place, without any legal and valid grounds thereby restraining and depriving them of their personal liberty for nine (9) hours, but without exceeding three (3) days.

CONTRARY TO LAW. 2

On September 1, 1997, Regional Special Operations Group (RSOG) of the Department of Environment and Natural Resources (DENR) Office No. 8, Tacloban City sent a team to the island of Daram, Western Samar to conduct intelligence gathering and forest protection operations in line with the government’s campaign against illegal logging. The team was composed of Forester II Moises dela Cruz, Scaler Wenifredo Maniscan, Forest Ranger Renato Militante, and Tree Marker Crisanto

Pelias, with Elpidio E. Simon, Chief of the Forest Protection and Law Enforcement Section, as team leader. The team was escorted by SPO3 Andres B. Cinco, Jr. and SPO1 Rufo Capoquian. 3

The team stopped at Brgy. Bagacay, Daram, Western Samar at 2:00 p.m., where they saw two yacht-like boats being constructed. After consulting with the local barangay officials, the team learned that the boats belonged to a certain Michael Figueroa. However, since Figueroa was not around at the time, the team left Brgy. Bagacay. 4

En route to Brgy. Manungca, Sta. Rita, Samar, the team spotted two more boats being constructed in the vicinity of Brgy. Lucob-Lucob, Daram, Samar, between 4:30-5:00 p.m., prompting them to stop and investigate. Thus, Maniscan and Militante disembarked from the DENR’s service pump boat and proceeded to the site of the boat construction. There, they met Mayor Astorga. After conversing with the mayor, Militante returned to their boat for the purpose of fetching Simon, at the request of Mayor Astorga. 5

When Simon, accompanied by dela Cruz, SPO3 Cinco, and SPO1 Capoquian, approached Mayor Astorga to try and explain the purpose of their mission, Simon was suddenly slapped hard twice on the shoulder by Mayor Astorga, who exclaimed, "Puwede ko kamo papaglanguyon pag-uli ha Tacloban. Ano, di ka maaram nga natupa ako? Natupa baya ako. Diri kamo makauli yana kay puwede kame e charge ha misencounter." (I can make you swim back to Tacloban. Don’t you know that I can box? I can box. Don’t you know that I can declare this a misencounter?) 6 Mayor Astorga then ordered someone to fetch "reinforcements," and forty-five (45) minutes later, or between 5:00- 6:00 p.m., a banca arrived bearing ten (10) men, some of them dressed in fatigue uniforms. The men were armed with M-16 and M14 rifles, and they promptly surrounded the team, guns pointed at the team members. 7 At this, Simon tried to explain to Astorga the purpose of his team’s mission. 8 He then took out his handheld ICOM radio, saying that he was going to contact his people at the DENR in Catbalogan to inform them of the team’s whereabouts. Suddenly, Mayor Astorga forcibly grabbed Simon’s radio, saying, "Maupay nga waray kamo radio bis diri somabut an iyo opisina kon hain kamo, bis diri kamo maka aro hin bulig." (It’s better if you have no radio so that your office would not know your whereabouts and so that you cannot ask for help). 9 Mayor Astorga again slapped the right shoulder of Simon, adding, "Kong siga kamo ha Leyte ayaw pagdad-a dinhi ha Samar kay diri kamo puwede ha akon." (If you are tough guys in Leyte, do not bring it to Samar because I will not tolerate it here.) 10 Simon then asked Mayor Astorga to allow the team to go home, at which Mayor Astorga retorted that they would not be allowed to go home and that they would instead be brought to Daram. 11 Mayor Astorga then addressed the team, saying, "Kon magdakop man la kamo, unahon an mga dagko. Kon madakop niyo an mga dagko, an kan Figueroa dida ha Bagacay puwede ko liwat ipadakop an akon." (If you really want to confiscate anything, you start with the big-time. If you confiscate the boats of Figueroa at Brgy. Bagacay, I will surrender mine.) 12 Simon then tried to reiterate his request for permission to leave, which just succeeded in irking Mayor Astorga, who angrily said, "Diri kamo maka uli yana kay dad on ko kamo ha Daram, para didto kita mag uro istorya." (You cannot go home now because I will bring you to Daram. We will have many things to discuss there.) 13

The team was brought to a house where they were told that they would be served dinner. The team had dinner with Mayor Astorga and several others at a long table, and the meal lasted between 7:00- 8:00 p.m. 14 After dinner, Militante, Maniscan and SPO1 Capoquian were allowed to go down from the

house, but not to leave the barangay. 15 On the other hand, SPO3 Cinco and the rest just sat in the house until 2:00 a.m. when the team was finally allowed to leave. 16

1awphi1.nét

Complainants filed a criminal complaint for arbitrary detention against Mayor Astorga and his men, which led to the filing of the above-quoted Information.

Mayor Astorga was subsequently arraigned on July 3, 2000, wherein he pleaded not guilty to the offenses charged. 17 At the trial, the prosecution presented the testimonies of SPO1 Capoquian and SPO3 Cinco, as well as their Joint Affidavit. 18 However, the presentation of Simon’s testimony was not completed, and none of his fellow team members came forward to testify. Instead, the members of the team sent by the DENR RSOG executed a Joint Affidavit of Desistance. 19

On July 5, 2001, the Sandiganbayan promulgated its Decision, disposing of the case as follows:

WHEREFORE, premises considered, judgment is hereby rendered finding accused BENITO ASTORGA Y BOCATCAT guilty of Arbitrary Detention, and in the absence of any mitigating or aggravating circumstances, applying the Indeterminate Sentence Law, he is hereby sentenced to suffer imprisonment of four (4) months of arresto mayor as minimum to one (1) year and eight (8) months of prision correctional as maximum.

SO ORDERED. 20

The accused filed a Motion for Reconsideration dated July 11, 2001 21 which was denied by the Sandiganabayan in a Resolution dated September 28, 2001. 22 A Second Motion for Reconsideration

dated October 24, 2001 23 was also filed, and this was similarly denied in a Resolution dated July 10,

  • 2002. 24

Hence, the present petition, wherein the petitioner assigns a sole error for review:

5.1. The trial court grievously erred in finding the accused guilty of Arbitrary Detention as defined and penalized under Article 124 of the Revised Penal Code, based on mere speculations, surmises and conjectures and, worse, notwithstanding the Affidavit of Desistance executed by the five (5) complaining witnesses wherein the latter categorically declared petitioner’s innocence of the crime charged. 25

Petitioner contends that the prosecution failed to establish the required quantum of evidence to prove the guilt of the accused, 26 especially in light of the fact that the private complainants executed a Joint Affidavit of Desistance. 27 Petitioner asserts that nowhere in the records of the case is there any competent evidence that could sufficiently establish the fact that restraint was employed upon the persons of the team members. 28 Furthermore, he claims that the mere presence of armed men at the scene does not qualify as competent evidence to prove that fear was in fact instilled in the minds of the team members, to the extent that they would feel compelled to stay in Brgy. Lucob-Lucob. 29

Arbitrary Detention is committed by any public officer or employee who, without legal grounds, detains a person. 30 The elements of the crime are:

1.

That the offender is a public officer or employee.

1. That the offender is a public officer or employee.
  • 2. That he detains a person.

  • 3. That the detention is without legal grounds. 31

That petitioner, at the time he committed the acts assailed herein, was then Mayor of Daram, Samar is not disputed. Hence, the first element of Arbitrary Detention, that the offender is a public officer or employee, is undeniably present.

Also, the records are bereft of any allegation on the part of petitioner that his acts were spurred by some legal purpose. On the contrary, he admitted that his acts were motivated by his "instinct for self-preservation" and the feeling that he was being "singled out." 32 The detention was thus without legal grounds, thereby satisfying the third element enumerated above.

What remains is the determination of whether or not the team was actually detained.

In the case of People v. Acosta, 33 which involved the illegal detention of a child, we found the accused-appellant therein guilty of kidnapping despite the lack of evidence to show that any physical restraint was employed upon the victim. However, because the victim was a boy of tender age and he was warned not to leave until his godmother, the accused-appellant, had returned, he was practically a captive in the sense that he could not leave because of his fear to violate such instruction. 34

In the case of People v. Cortez, 35 we held that, in establishing the intent to deprive the victim of his liberty, it is not necessary that the offended party be kept within an enclosure to restrict her freedom of locomotion. At the time of her rescue, the offended party in said case was found outside talking to the owner of the house where she had been taken. She explained that she did not attempt to leave the premises for fear that the kidnappers would make good their threats to kill her should she do so. We ruled therein that her fear was not baseless as the kidnappers knew where she resided and they had earlier announced that their intention in looking for her cousin was to kill him on sight. Thus, we concluded that fear has been known to render people immobile and that appeals to the fears of an individual, such as by threats to kill or similar threats, are equivalent to the use of actual force or violence. 36

The prevailing jurisprudence on kidnapping and illegal detention is that the curtailment of the victim’s liberty need not involve any physical restraint upon the victim’s person. If the acts and actuations of the accused can produce such fear in the mind of the victim sufficient to paralyze the latter, to the extent that the victim is compelled to limit his own actions and movements in accordance with the wishes of the accused, then the victim is, for all intents and purposes, detained against his will.

In the case at bar, the restraint resulting from fear is evident. Inspite of their pleas, the witnesses and the complainants were not allowed by petitioner to go home. 37 This refusal was quickly followed by the call for and arrival of almost a dozen "reinforcements," all armed with military-issue rifles, who proceeded to encircle the team, weapons pointed at the complainants and the witnesses. 38 Given such circumstances, we give credence to SPO1 Capoquian’s statement that it was not "safe" to

refuse Mayor Astorga’s orders. 39 It was not just the presence of the armed men, but also the evident effect these gunmen had on the actions of the team which proves that fear was indeed instilled in the minds of the team members, to the extent that they felt compelled to stay in Brgy. Lucob-Lucob. The intent to prevent the departure of the complainants and witnesses against their will is thus clear.

Regarding the Joint Affidavit of Desistance executed by the private complainants, suffice it to say that the principles governing the use of such instruments in the adjudication of other crimes can be applied here. Thus, in People v. Ballabare, it was held that an affidavit of desistance is merely an additional ground to buttress the defenses of the accused, not the sole consideration that can result in acquittal. There must be other circumstances which, when coupled with the retraction or desistance, create doubts as to the truth of the testimony given by the witnesses at the trial and accepted by the judge. Here, there are no such circumstances. 40 Indeed, the belated claims made in the Joint Affidavit of Desistance, such as the allegations that the incident was the result of a misunderstanding and that the team acceded to Mayor Astorga’s orders "out of respect," are belied by petitioner’s own admissions to the contrary. 41 The Joint Affidavit of Desistance of the private complainants is evidently not a clear repudiation of the material points alleged in the information and proven at the trial, but a mere expression of the lack of interest of private complainants to pursue the case.1awphi1.nét This conclusion is supported by one of its latter paragraphs, which reads:

11. That this affidavit was executed by us if only to prove our sincerity and improving DENR relations with the local Chiefs Executive and other official of Daram, Islands so that DENR programs and project can be effectively implemented through the support of the local officials for the betterment of the residence living conditions who are facing difficulties and are much dependent on government support. 42

Petitioner also assails the weight given by the trial court to the evidence, pointing out that the Sandiganbayan’s reliance on the testimony of SPO1 Capoquian is misplaced, for the reason that SPO1 Capoquian is not one of the private complainants in the case. 43 He also makes much of the fact that prosecution witness SPO1 Capoquian was allegedly "not exactly privy to, and knowledgeable of, what exactly transpired between herein accused and the DENR team leader Mr. Elpidio E. Simon, from their alleged ‘confrontation,’ until they left Barangay Lucob-Lucob in the early morning of 2 September 1997." 44

It is a time-honored doctrine that the trial court’s factual findings are conclusive and binding upon appellate courts unless some facts or circumstances of weight and substance have been overlooked, misapprehended or misinterpreted. 45 Nothing in the case at bar prompts us to deviate from this doctrine. Indeed, the fact that SPO1 Capoquian is not one of the private complainants is completely irrelevant. Neither penal law nor the rules of evidence requires damning testimony to be exclusively supplied by the private complainants in cases of Arbitrary Detention. Furthermore, Mayor Astorga’s claim that SPO1 Capoquian was "not exactly privy" to what transpired between Simon and himself is belied by the evidence. SPO1 Capoquian testified that he accompanied Simon when the latter went to talk to petitioner. 46 He heard all of Mayor Astorga’s threatening remarks. 47 He was with Simon when they were encircled by the men dressed in fatigues and wielding M-16 and M-14 rifles. 48 In sum, SPO1 Capoquian witnessed all the circumstances which led to the Arbitrary Detention of the team at the hands of Mayor Astorga.

Petitioner submits that it is unclear whether the team was in fact prevented from leaving Brgy. Lucob-Lucob or whether they had simply decided to "while away the time" and take advantage of the purported hospitality of the accused. 49 On the contrary, SPO3 Cinco clearly and categorically denied that they were simply "whiling away the time" between their dinner with Mayor Astorga and their departure early the following morning. 50 SPO1 Capoquian gave similar testimony, saying that they did not use the time between their dinner with Mayor Astorga and their departure early the following morning to "enjoy the place" and that, given a choice, they would have gone home. 51

Petitioner argues that he was denied the "cold neutrality of an impartial judge", because the ponente of the assailed decision acted both as magistrate and advocate when he propounded "very extensive clarificatory questions" on the witnesses. Surely, the Sandiganbayan, as a trial court, is not an idle arbiter during a trial. It can propound clarificatory questions to witnesses in order to ferret out the truth. The impartiality of the court cannot be assailed on the ground that clarificatory questions were asked during the trial. 52

Thus, we affirm the judgment of the Sandiganbayan finding petitioner guilty beyond reasonable doubt of Arbitrary Detention. Article 124 (1) of the Revised Penal Code provides that, where the detention has not exceeded three days, the penalty shall be arresto mayor in its maximum period to prision correccional in its minimum period, which has a range of four (4) months and one (1) day to two (2) years and four (4) months. Applying the Indeterminate Sentence Law, petitioner is entitled to a minimum term to be taken from the penalty next lower in degree, or arresto mayor in its minimum and medium periods, which has a range of one (1) month and one (1) day to four (4) months. Hence, the Sandiganbayan was correct in imposing the indeterminate penalty of four (4) months of arresto mayor, as minimum, to one (1) year and eight (8) months of prision correccional, as maximum.

Before closing, it may not be amiss to quote the words of Justice Perfecto in his concurring opinion in Lino v. Fugoso, wherein he decried the impunity enjoyed by public officials in committing arbitrary or illegal detention, and called for the intensification of efforts towards bringing them to justice:

The provisions of law punishing arbitrary or illegal detention committed by government officers form part of our statute books even before the advent of American sovereignty in our country. Those provisions were already in effect during the Spanish regime; they remained in effect under American rule; continued in effect under the Commonwealth. Even under the Japanese regime they were not repealed. The same provisions continue in the statute books of the free and sovereign Republic of the Philippines. This notwithstanding, and the complaints often heard of violations of said provisions, it is very seldom that prosecutions under them have been instituted due to the fact that the erring individuals happened to belong to the same government to which the prosecuting officers belong. It is high time that every one must do his duty, without fear or favor, and that prosecuting officers should not answer with cold shrugging of the shoulders the complaints of the victims of arbitrary or illegal detention.

Only by an earnest enforcement of the provisions of articles 124 and 125 of the Revised Penal Code will it be possible to reduce to its minimum such wanton trampling of personal freedom as depicted in this case. The responsible officials should be prosecuted, without prejudice to the detainees’ right to the indemnity to which they may be entitled for the unjustified violation of their fundamental rights. 53

WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Decision of the Sandiganbayan in Criminal Case No. 24986, dated July 5, 2001 finding petitioner BENITO ASTORGA guilty beyond reasonable doubt of the crime of Arbitrary Detention and sentencing him to suffer the indeterminate penalty of four (4) months of arresto mayor, as minimum, to one (1) year and eight (8) months of prision correccional, as maximum, is AFFIRMED in toto.

Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Vitug, and Carpio, JJ., concur.

Azcuna, J., on leave.

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

A.M. No. MTJ-93-813 September 15, 1993

FERNANDO CAYAO,

complainant,

vs.

JUDGE JUSTINIANO A. DEL MUNDO,

respondent.

PER CURIAM:

 

This is an administrative complaint filed by

Fernando

R. Cayao with the Office of the Court

Administrator charging respondent Judge Justiniano A.

Administrator charging respondent Judge Justiniano A.

Del Mundo, MTC, Indang Cavite with abuse

of authority.

Acting on said complaint, the Office of the Court Administrator directed Judge Enrique M. Almario,

Regional

trial Court

Branch XV,

Naic, Cavite, to conduct an investigation and to submit his report and

recommendation thereon.

Based on the records as well as the report submitted by the investigating Judge, it appears that on or about October 22, 1992 at 9:25 a.m., while traversing the stretch of Mataas na Lupa, Alulod, Indang, Cavite, complainant, as driver of Donny's Transit Bus with Plate No. DWB 315, overtook a Sto. Niño Liner with Body No. 5282 driven by one Arnel Ranes Muloy. As a consequence thereof, the bus driven by complainant almost collided head-on with an oncoming owner-type jeepney with Plate No. PJT 752. It turned out later that the jeepney was registered in the name of respondent Judge Del Mundo who, at the time of the incident, was one of the passengers therein along with his sons Rommel and June and one Edward Rommen. Respondent's son Rommel was behind the wheel.

At 3:30 p.m. of the same day, even before complainant could properly park his bus, he was picked

up by policemen of the

Philippine National Police Station

of Indang, Cavite at the Indang Public

Plaza and was immediately brought before the sala of respondent judge. There, complainant was

confronted by respondent judge and accused by the latter of nearly causing an accident that morning. Without giving complainant any opportunity to explain, respondent judge insisted that complainant be punished for the incident. Whereupon, complainant was compelled by respondent

judge to choose from three (3) alternative punishments none of which is pleasant, to wit: (a) to

face

a

charge of multiple attempted homicide; (b) revocation of his driver's license; or (c) to be put in jail for

three (3) days. Of the three choices, complainant chose the third,

FERNANDO CAYAO, complainant, vs. JUDGE JUSTINIANO A. DEL MUNDO, respondent. PER CURIAM: This is an administrative

i.e., confinement for three (3) days,

as a consequence of which he was forced to sign a "waiver of detention" by respondent judge.

Thereafter, complainant was immediately escorted by policemen to the municipal

jail. Though not

actually incarcerated complainant remained in the premises of the municipal jail for three (3) days, from October 22 up to October 25, 1992, by way of serving his "sentence". On the third day, complainant was released by SPO1 Manolo Dilig to the custody of Geronimo Cayao, complainant's co-driver and cousin.

The fact of detention of complainant in the premises of the municipal jail for three (3) days was confirmed and corroborated by the testimony of the jail warden of Indang, Cavite, SP04 Adelaida Nova. The fact of complainant's release therefrom after three (3) days detention was testified to by SPO1 Manolo Dilig who prepared the corresponding document of release. For his defense, respondent judge merely made general denials.

The actuations of respondent judge herein complained of, constitute abuse of authority. To begin with, respondent's verbal order for the arrest of complainant at the Indang Public Plaza without the requisite complaint having been filed and the corresponding warrant of arrest having been issued in order that complainant may be brought to his sala is characteristic of personal vengeance and the abusive attitude of respondent. Being a judge, respondent above all, should be the first to abide by the law and weave an example for others to follow (Ompoc vs. Torres, 178 SCRA 14 [1989]). Instead, respondent judge opted to avail of his judicial authority in excess of what is allowed by law to gratify his vindictive purposes.

If respondent honestly believes that complainant committed violations of traffic rules and regulations which nearly caused the accident involving their respective vehicles, respondent judge should have caused the filing of the appropriate criminal charges against complainant and left it at that. On the contrary, respondent is not one to let the law run its own course. This is a classic case where respondent took it upon himself to be the accuser, prosecutor, judge and executioner at the same time to condemn complainant for his alleged wrongdoing without the benefit of due process. Without even an opportunity to air his side, complainant was unceremoniously made to choose his own penalty. Left with no other choice but to face his predicament and overpowered by the imposing authority of respondent, complainant picked the lesser evil of the three alternatives given to him. Complainant can hardly be blamed for so doing. A perusal of the two (2) other choices presented to him will illustrate why.

The first choice given to complainant was to face a charge of multiple attempted homicide. To threaten complainant with a criminal case for multiple attempted homicide is indicative of respondent's gross ignorance of the law. As a judge, he should know very well that such at charge

will not hold water in any court of law considering that no accident

per se

ever occurred and hence,

no life threatening injury was even sustained. To a mere bus driver who is not at all familiar with the

intricacies of the law, such a threat spelled not only the possibility of long-term imprisonment and all the hardship it entails but also the onus and shame that will forever attach to his name. Surely, to his mind, a threat of prosecution coming from a municipal trial court judge is alarming enough.

The second alternative punishment offered to complainant to choose from involves his very means of livelihood — revocation of his driver's license. This is tantamount to economic death penalty and just as repulsive as the first alternative.

Faced with these grim prospects complainant voluntarily submitted himself to the jail warden of the Indang Municipal Jail for detention after executing his "waiver of detention," complainant felt that he had no other choice but to serve out the "penalty" forcibly and arbitrarily imposed upon him by respondent.

While it is true that complainant was not put behind bare as respondent had intended, however, complainant was not allowed to leave the premises of the jail house. The idea of confinement is not

synonymous only

with incarceration inside a jail cell. It is enough to qualify as confinement that a

man be restrained, either morally or physically, of his personal liberty (Black's Law Dictionary, 270 [1979]). Under the circumstances, respondent judge was in fact guilty of arbitrary detention when he, as a public officer, ordered the arrest and detention of complainant without legal grounds (Article 124, Revised Penal Code; U.S. vs. Battallones 23 Phil. 46 [1912]). In overtaking another vehicle,

complainant-driver was not committing or had not actually committed a crime in the presence of respondent judge (Section 6, Rule 113, Rules of Court). Such being the case, the warrantless arrest and subsequent detention of complainant were illegal. In the case at bar, no less than the testimony of the jail warden herself confirmed that complainant was indeed deprived of his liberty for three (3) days:

COURT:

  • xxx xxx xxx

Q Alright, did you or did you not in fact detain Fernando Cayao on that premises? On the ground of that premises?

WITNESS (jail warden):

A I did not put him inside the jail, your Honor, but he was inside the police station.

COURT:

  • xxx xxx xxx

Q Alright, as a police officer, I ask you again, did you or did you not detain Fernando Cayao based on the premises that you said under oath before this Court?

A Yes, your Honor, inside the police station.

Q Does it mean that he could not have gone freely of his own volition outside the police station without your authority or permission?

A He can move freely.

COURT:

Q When you said that, you meant he could have gone home, he could have gone eating in restaurant, he could have gone to a theatre or in any public place. Is that what you mean?

WITNESS:

A No, your Honor. Only inside the police station.

Q Why only in the police station? Inside? What is your order? What did you tell him?

A Because he voluntarily went to the police station to be detained.

Q Alright, so, had he told you that he would have gone to other places, you will have no objection? You will have no interpolation or you would not feel that you have a right to have him under your custody. Is that correct?

WITNESS:

  • xxx xxx xxx

A I will still prevent him.

(TSN, November 19, 1992, pp. 9-10)

Of equal importance is the perception of complainant himself as to whether his liberty, was actually restricted or not:

  • xxx xxx xxx

Q So, summarily speaking, you feel that you were detained in the municipal jail of the station of Indang, Cavite?

A Yes, your Honor, because I was not able to get out from the police station from the time that I was detained.

(TSN, November 19, 1992, p. 16)

It would be well to emphasize at this point that the gravity of the misconduct of respondent is not alone centered on his order for the detention of complainant. Rather, it is ingrained in the fact that complainant was so detained without affording him his constitutional rights.

As previously mentioned, complainant was condemned by his own accuser without the benefit of due process. Complainant was not even accorded any of the basic rights to which an accused is entitled. When respondent insisted on punishing hire without a chance to air his side, complainant was deprived of the presumption of innocence, the right to be heard by himself and counsel, the right to be informed of the nature and cause of the accusation against him as well as the right to an impartial and public trial. Moreover, complainant was made to execute a waiver of detention without the assistance of counsel. Worse, the aforesaid waiver was even subscribed by complainant before the very same judge who was his accuser. Certainly, such intentional and blatant violations of one's constitutional rights committed by respondent cannot be tolerated by this Court.

As public servants, judges are appointed to the judiciary to serve as the visible representation of the law, and more importantly, of justice. From them, the people draw their will and awareness to obey the law (De la Paz vs. Inutan, 64 SCRA 540 (1975)). If judges, who swore to obey and uphold the constitution, would conduct themselves in the way that respondent did in wanton disregard and

violation of the rights of complainant, then the people, especially those with whom they come in direct contact, would lose all their respect and high regard for the institution of the judiciary itself, not to mention, cause the breakdown of the moral fiber on which the judiciary is founded.

Undoubtedly, the actuations of respondent judge represent the kind of gross and flaunting misconduct on the part of those who are charged with the responsibility of administering the law and rendering justice that so quickly and severely corrodes the respect for law and the courts without which the government cannot continue and that tears apart the very bonds of our polity (Ompoc vs. Judge Torres, 178 SCRA 14 [1989]).

Furthermore, the reprehensible conduct exhibited by respondent judge in the case at bar exposed his total disregard of, or indifference to, or even ignorance of the procedure prescribed by law. His act of intentionally violating the law and disregarding well-known legal procedures can be characterized as gross misconduct, nay a criminal misconduct on his part (Babatio vs. Tan, 157 SCRA 277 [1988]). He used and abused his position of authority in intimidating the complainant as well as the members of the Indang police force into submitting to his excesses. Likewise, he closed his eyes to the mandates of the Code of Judicial Conduct to always conduct himself as to be beyond reproach and suspicion not only in the performance of his duties but also outside his sala and as a private individual. (Castillo vs. Calanog, Jr. 199 SCRA 75 [1991]).

Clearly, there is not, an iota of doubt that respondent, through his oppressive and vindictive actuations, has committed a disservice to the cause of justice. He has unequivocably demonstrated his unfitness to continue as a member of the judiciary and should accordingly be removed from the service.

WHEREFORE, respondent judge Justiniano A. Del Mundo of the Municipal Trial Court of Indang, Cavite is hereby DISMISSED from the service with forfeiture of all benefits except accrued leave credits with prejudice to reinstatement or reappointment to any public office including government- owned or controlled corporations.

SO ORDERED.

Narvasa, C.J., Cruz, Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo, Quiason, Puno and Vitug, JJ., concur.

Feliciano and Griño-Aquino, JJ., are on leave.

Republic of the Philippines

G.R. No. L-37007

SUPREME COURT

Manila

FIRST DIVISION

July 20, 1987

RAMON S. MILO, in his capacity as Assistant Provincial Fiscal of Pangasinan, and ARMANDO VALDEZ,petitioners, vs.

ANGELITO C. SALANGA, in his capacity as Judge of the Court of First Instance of

Pangasinan (Branch IV), and JUAN TUVERA, SR., respondents.

GANCAYCO, J.:

This is a petition for review on certiorari of an order of the Court of First Instance of Pangasinan, Third Judicial District, in Criminal Case No. D-529 entitled "The People of the Philippines versus Juan Tuvera, Sr., et al.," granting the motion to quash the information filed by accused Juan Tuvera, Sr., herein respondent. The issue is whether a barrio captain can be charged of arbitrary detention.

The facts are as follows:

On October 12, 1972, an information for Arbitrary Detention was filed against Juan Tuvera, Sr., Tomas Mendoza and Rodolfo Mangsat, in the Court of First Instance of Pangasinan, which reads as follows:

The undersigned Assistant Provincial Fiscal accuses Juan Tuvera, Sr., Tomas Mendoza and Rodolfo Mangsat alias Rudy, all of Manaoag, Pangasinan, of the crime of ARBITRARY DETENTION, committed as follows:

That on or about the 21st day of April 1973, at around 10:00 o'clock in the evening, in barrio Baguinay, Manaoag, Pangasinan, Philippines and within the jurisdiction of this Honorable Court, accused Juan Tuvera, Sr., a barrio captain, with the aid of some other private persons,

namely Juan Tuvera, Jr., Bertillo Bataoil and one Dianong, maltreated one Armando Valdez by hitting with butts of their guns and fists blows and immediately thereafter, without legal grounds, with deliberate intent to deprive said Armando Valdez of his constitutional liberty, accused Barrio captain Juan Tuvera, Sr., Cpl. Tomas Mendoza and Pat. Rodolfo Mangsat, members of the police force of Mangsat, Pangasinan conspiring, confederating and helping one another, did, then and there, willfully, unlawfully and feloniously, lodge and lock said Armando Valdez inside the municipal jail of Manaoag, Pangasinan for about eleven (11) hours.(Emphasis supplied.)

CONTRARY TO ARTICLE 124 of the R.P.C.

Dagupan City, October 12, 1972.

(SGD.) VICENTE C. CALDONA Assistant Provincial Fiscal

All the accused, including respondent Juan Tuvera, Sr., were arraigned and pleaded not guilty.

On April 4, 1973, Tuvera filed a motion to quash the information on the ground that the facts charged do not constitute an offense and that the proofs adduced at the investigation are not sufficient to support the filing of the information. Petitioner Assistant Provincial Fiscal Ramon S. Milo filed an opposition thereto.

Finding that respondent Juan Tuvera, Sr. was not a public officer who can be charged with Arbitrary Detention, respondent Judge Angelito C. Salanga granted the motion to quash in an order dated April 25, 1973.

Hence, this petition.

Arbitrary Detention is committed by a public officer who, without legal grounds, detains a person. 1 The elements of this crime are the following:

  • 1. That the offender is a public officer or employee.

  • 2. That he detains a person.

  • 3. That the detention is without legal grounds. 2

The ground relied upon by private respondent Tuvera for his motion to quash the information which was sustained by respondent Judge, is that the facts charged do not constitute an offense, 3 that is, that the facts alleged in the information do not constitute the elements of Arbitrary Detention.

The Information charges Tuvera, a barrio captain, to have conspired with Cpl. Mendoza and Pat. Mangsat, who are members of the police force of Manaoag, Pangasinan in detaining petitioner Valdez for about eleven (11) hours in the municipal jail without legal ground. No doubt the last two elements of the crime are present.

The only question is whether or not Tuvera, Sr., a barrio captain is a public officer who can be liable for the crime of Arbitrary Detention.

The public officers liable for Arbitrary Detention must be vested with authority to detain or order the detention of persons accused of a crime. Such public officers are the policemen and other agents of the law, the judges or mayors. 4

Respondent Judge Salanga did not consider private respondent Tuvera as such public officer when the former made this finding in the questioned order:

Apparently, if Armando Valdez was ever jailed and detained more than six (6) hours, Juan Tuvera, Sr., has nothing to do with the same because he is not in any way connected with the Police Force of Manaoag, Pangasinan. Granting that it was Tuvera, Sr., who ordered Valdez arrested, it was not he who detained and jailed him because he has no such authority vested in him as a mere Barrio Captain of Barrio Baguinay, Manaoag, Pangasinan. 5

In line with the above finding of respondent Judge Salanga, private respondent Tuvera asserts that the motion to quash was properly sustained for the following reasons: (1) That he did not have the authority to make arrest, nor jail and detain petitioner Valdez as a mere barrio captain; 6 (2) That he is neither a peace officer nor a policeman, 7 (3) That he was not a public official; 8 (4) That he had nothing to do with the detention of petitioner Valdez; 9 (5) That he is not connected directly or indirectly in the administration of the Manaoag Police Force; 10 (6) That barrio captains on April 21, 1972 were not yet considered as persons in authority and that it was only upon the promulgation of Presidential Decree No. 299 that Barrio Captain and Heads of Barangays were decreed among those who are persons in authority; 11 and that the proper charge was Illegal Detention and Not Arbitrary Detention. 12

We disagree.

Long before Presidential Decree 299 was signed into law, barrio lieutenants (who were later named barrio captains and now barangay captains) were recognized as persons in authority. In various cases, this Court deemed them as persons in authority, and convicted them of Arbitrary Detention.

In U.S. vs. Braganza, 13 Martin Salibio, a barrio lieutenant, and Hilario Braganza, a municipal councilor, arrested Father Feliciano Gomez while he was in his church. They made him pass through the door of the vestry and afterwards took him to the municipal building. There, they told him that he was under arrest. The priest had not committed any crime. The two public officials were convicted of Arbitrary Detention. 14

In U.S. vs. Gellada, 15 Geronimo Gellada, a barrio lieutenant, with the help of Filoteo Soliman, bound and tied his houseboy Sixto Gentugas with a rope at around 6:00 p.m. and delivered him to the justice of the peace. Sixto was detained during the whole night and until 9:00 a.m. of the next day when he was ordered released by the justice of the peace because he had not committed any crime, Gellada was convicted of Arbitrary Detention. 16

Under Republic Act No. 3590, otherwise known as The Revised Barrio Charter, the powers and duties of a barrio captain include the following: to look after the maintenance of public order in the

barrio and to assist the municipal mayor and the municipal councilor in charge of the district in the performance of their duties in such barrio; 17 to look after the general welfare of the barrio; 18 to enforce all laws and ordinances which are operative within the barrio; 19 and to organize and lead an emergency group whenever the same may be necessary for the maintenance of peace and order within the barrio. 20

In his treatise on Barrio Government Law and Administration, Professor Jose M. Aruego has this to say about the above-mentioned powers and duties of a Barrio Captain, to wit:

"Upon the barrio captain depends in the main the maintenance of public order in the barrio. For public disorder therein, inevitably people blame him.

"In the event that there be a disturbing act to said public order or a threat to disturb public order, what can the barrio captain do? Understandably, he first resorts to peaceful measures. He may take preventive measures like placing the offenders under surveillance and persuading them, where possible, to behave well, but when necessary, he may subject them to the full force of law.

"He is a peace officer in the barrio considered under the law as a person in authority. As such, he may make arrest and detain persons within legal limits. 21 (Emphasis supplied.)

One need not be a police officer to be chargeable with Arbitrary Detention. It is accepted that other public officers like judges and mayors, who act with abuse of their functions, may be guilty of this crime. 22 A perusal of the powers and function vested in mayors would show that they are similar to those of a barrio captain 23 except that in the case of the latter, his territorial jurisdiction is smaller. Having the same duty of maintaining peace and order, both must be and are given the authority to detain or order detention. Noteworthy is the fact that even private respondent Tuvera himself admitted that with the aid of his rural police, he as a barrio captain, could have led the arrest of petitioner Valdez. 24

From the foregoing, there is no doubt that a barrio captain, like private respondent Tuvera, Sr., can be held liable for Arbitrary Detention.

Next, private respondent Tuvera, Sr. contends that the motion to quash was validly granted as the facts and evidence on record show that there was no crime of Arbitrary Detention; 25 that he only sought the aid and assistance of the Manaoag Police Force; 26 and that he only accompanied petitioner Valdez to town for the latter's personal safety. 27

Suffice it to say that the above allegations can only be raised as a defense at the trial as they traverse what is alleged in the Information. We have repeatedly held that Courts, in resolving a motion to quash, cannot consider facts contrary to those alleged in the information or which do not appear on the face of the information. This is because a motion to quash is a hypothetical admission of the facts alleged in the information. 28 Matters of defense cannot be proved during the hearing of such a motion, except where the Rules expressly permit, such as extinction of criminal liability, prescription, and former jeopardy. 29 In the case of U.S. vs. Perez, 30 this Court held that a motion to quash on the ground that the facts charged do not constitute an offense cannot allege new facts not

only different but diametrically opposed to those alleged in the complaint. This rule admits of only one exception and that is when such facts are admitted by the prosecution. 31

lawphi1

Lastly, private respondent claims that by the lower court's granting of the motion to quash jeopardy has already attached in his favor 32 on the ground that here, the case was dismissed or otherwise terminated without his express consent.

Respondent's contention holds no water. An order granting a motion to quash, unlike one of denial, is a final order. It is not merely interlocutory and is therefore immediately appealable. The accused cannot claim double jeopardy as the dismissal was secured not only with his consent but at his instance. 33

WHEREFORE, in view of the foregoing, the Petition for certiorari is GRANTED. The questioned Order of April 25, 1973 in Criminal Case No. D-529 is hereby set aside. Let this case be remanded to the appropriate trial court for further proceedings. No pronouncement as to costs.

SO ORDERED.

Teehankee, C.J., Narvasa, Cruz and Paras, JJ., concur.

[ G. R. Nos. L-6033-35, September 30, 1954 ]

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. LORETO A. OLIVA, ET. AL.,DEFENDANTS-APPELLANTS.

REYES, J.B.L., J.:

D E C I S I O N

This is an appeal in three separate criminal cases tried and decided by the Court of First Instance of Cagayan.

In Case No. 1091-a (now G.R.No. L-6033), for the murder of Fernando Pablo, the accused Cecilio Rol was acquitted, while the res of his co-accused - Loreto Oliva, Jose C. Villanueva, Adriano Quinsay, and Daniel Ulsano - were convicted of the crime, qualified by abuse of superior strength, and aggravated by the circumstance of having taken advantage of their public position as municipal

policemen, offset by the mitigating circumstance of lack of intent to commit so grave a wrong as the one committed; and sentenced to suffer each reclusion perpetua, to indemnify jointly and severally the heirs of the deceased Fernando Pablo in the sum of P6,000 without subsidary imprisonment in case of insolvency, and to pay 1/5 of the costs. From this judgment, the four convicted accused appealed to the Court of Appeals, which forwarded the case to us for decision, considering that all the appellants have been sentenced to reclusion perpetua.

In Cases Nos. 1092-A and 1093-A for arbitrary detention of Eliseo and Sofronio Arreola, with physical injuries (now G.R.No.L-6034 and 6035), accused Angel C. Adap, Alfonso Martinez, Restituto Fronda, Joel Macataig, and Marcelo guillermo were acquitted; while the other defendants Loreto A. Oliva, Jose C. Villanueva, Daniel Ulsano, and Adriano Quinsay were found guilty as charged, and all of them were sentenced in each of the two cases to suffer an indeterminate penalty of from 4 months of arresto mayor as minimum to years and 4 months of prision correccional as maximum; to pay jointly and severally to Elisea Arreola the sum of P75,00 in Case No. 1092-A and to Sofronio Arreola the sum of P50.00 in Case No. 1093-A, with subsidiary imprisonment in case of insolvency but not exceeding 1/3 of the principal penalty; and to pay in each of said cases 1/10 of the costs. From this judgment, the defendants likewise appealed to the Court of Appeals, and the latter again certified the case to us, for decision together with the appeal in the murder case, upon the ground that the three cases arose out of the same acts and occasion.

During the pendency of these cases in this Court, appellant Adriano Quinsay moved to withdraw his appeal in all three cases, which motion was granted. This decision therefore involves only the appeals of Loreto A. Oliva, Jose C. Villanueva, and Daniel Ulsano

Upon a careful review of the records, we find the following facts to be undisputed:

At about 10:00 o'clock in the morning of September 3, 1951 a police patrol composed of ten members of the police force of Aparri, Cagayan composed of Sgt. Jose C. Villanueva, and Policemen Daniel Ulsano, Alfonso Martinez, Joel Macatiag, Marcelo Guillermo, and Angel Adap, at the command of Lieutenant Loreto A. Oliva, headed for barrio Bakiling, Aparri, to investigate the reported murder or suspicious death of one Remegio Marcos. The investigation in Bakiling lasted up to about 4 o'clock in the afternoon; and when the partol was about to return to the poblacion, it was met by a truck of the Panifual Saw Mill, from which one Anacleto Abarriao (alias "Big Boy") alighted and complained to the police that on the previous day, at the cockpit of Binalan, Aparri, he had trouble with and was maltreated by the brothers Eliseo and Sofronio Arreola and their relative Fernando Pablo, all of Fugu, Ballesteros. Wherefore, the patrol rode on the Sawmill truck and

proceeded to Fugu. Upon arrival, Lt. Oliva instructed his men to summon Elisep Arreol, Sofronio Arreola, and Fernando Pablo, for the purpose of settling their trouble with Abarriao. Policemen Ulsano, Macatiag, and Guillermo picked up Eliseo from his house and Sofronio from the ricefield where he was plowing; while Mariano Dancel fetched Fernando Pablo. The three men, who were interested in having their dispute with Abrriao settled, voluntarily went with the police, and when brought before Lt. Oliva were asked be the latter to board the truck and come with the police to Aparri so that they could save the expense of the fare in going to town the following day. At Nagsirucan, the patrol picked up three other persons, who were suspected of being responsible for the death of Remgio Marcos. After crossing the Cagayan River at Camalaniugan ferry, the party boarded a Sambrano passenger bus. Upon reaching the town of Aparri, the bus stopped at the Sambrano garage. Lt. Oliva ordered his men to proceed on foot to the municipal building with the Arreola brothers, Fernando Pablo, and the three murder suspects, while he stayed behind to settle a controversy with the Sambrano inspector.

As to what transpired later in the municipal building, the evidence for the prosecution and of the defense are at variance. After contrasting and weighing the same, we find no error in the lower Court's having taken as proved beyond reasonable doubt that, after arriving at the municipal building, the policemen under the direction of sergeant Villanueva separated Fernando Pablo and the two Arreolas from the suspects of the killing of Remegio Marcos, and then proceeded to maltreat systematically the first three. Sergeant Villanueva slapped and boxed Fernando Pablo first, saying "You rascal, we almost got into trouble because of you"; then assaulted Eliseo Arreola in the same way, and after him, his brother Sofronio. As soon as Villanueva had finished with one suspect, policemen Ulsano and Quinsay took turns in taking up the maltreatment of the detainees. The worst beating was administered to Fernando Pablo who do not only received fist blows, but was repeatedly hit in the abdominal region with the rifle butts until he fell prostate; and when lying thus, Pablo's tormentors tried to make him stand up with blows and kicks, and finally sought to bring him back to consciousness by pouring water on his face.

At this juncture, Lieutenant Oliva came un asking what happend, to which Ulsano replied "Zarzuela, sir", meaning that Pablo was merely feigning injury. Oliva reprimanded the men, instructed them to desist from further maltreatment and led Pablo's companions, the Arreola brothers, outside the room, telling them to report to him if somebody would again maltreat them, and advised them to sleep in the municipal building because it was already late. Oliva then ordered Pablo placed inside one of the jail cells, with other prisoners. The latter noticed that Pablo was already dead and called the guard, Rol, to the cell. Finding the prisoners' statement to be correct, Rol informed Lt. Oliva of Pablo's death, and the two went to the house of Dr. Ricardo Alvarado, President of the 4th Sanitary Division,

woke him up, and informed him of the death of Fernando Pablo in the municipal jail. At about 12:00 p.m. of September 3 and 1:00 a.m. of the next day, Dr. Alvarado came with the policemen to the municipal building, and as he could not perform an examination of Pablo's body because it was dark in the cell, he merely removed the dead man's outer garments. The next morning, at about 8:00 o'clock, Dr. Alvarado conducted an autopsy of Pablo's remains, and the result of his post-mortem examination is stated as follows:

"TO WHOM IT MAY CONCERN:

This is to certify that I have this day performed an autopsy on the person of FERNANDO PABLO, single, resident of Fugu, Balesteros, Cagayan, and found the following:

1.Externally - Ecchymoses around the pelvis and loin below the umbilicus.

2.Internally - On opening the the abdomen below the sternum at the line of the linea alba down to the pelvis and on reaching the peritoneum was found blood serum and hupermia.On reaching the inner part of the abdomen, blood serum and dark clotted blood was found along the sides of the intestines and omentum. The intestines itself were found to be clean and light pale, but the omentum was mostly hyperemic and congested blood forum thru out the greater and lesser omentum. The spleen was well exposed and found that the tail was ecchymotic. Much dark blood was found inside the abdomen of about 2 or 3 liters. The gall bladder was full and light greenish in color. The urinary bladder was found to have been emptied with a tear wound, showing that the urine was extravasated into the abdomen.

I further certify that the cause of death was internal hemorrhage.

(Sgd) RICARDO G. ALVARADO President 4th Sanitary Division" (Exh. A, p.3, Rec. Case No.1091-A)

In the morning of September 4, Sgt. Villanueva took the Arreola brothers to the place where they had their breakfast. He asked them to sign an affidavit to the effect that Pablo fell from the truck and that he was a Huk, but the brothers refused it was not true. In the afternoon, Villanueva ordered the brothers to guard the remains of Fernando Pablo. They stood guard up to the afternoon of September 5, when they helped bury Pablo's remains. After the burial, Sgt. Villanueva still did not permit the Arreola brothers to go home, saying that they must wait for Lt. Oliva. the Arreolas were

actually released only in the afternoon of September 6. The morning after their release, they went to the Ballesteros Emergency Hospital, where they were treated by Dr. Emilio A. Alonso for the injuries inflicted upon them by the policemen Villanueva, Quinsay and Ulsano. According to the medical certificates Exhs. H and J (p.69, Rec Case 1092-A; and p.60, Case 1093-A), Dr. Alonso found on the person of Eliseo Arreola a contusion on the right lower costal region with marked ecchymosis, which took 20 days to heal, and contusions on the right and left arms (dorsal), side, which healed in 10 days; while on the person of Sofronio Arreola, he found swellings on the left arm, right hand, and chest, and also swellings with ecchymosis on the forearm; which lesions healed in 10 days' treatment. Dr. Alonzo charged and received from the brothers P25.00 for medicine used, without collecting from them any professional fees because they were poor.

The maltreatment of the deceased Pablo and of the Arreola brothers by appellants Ulsano and Villanueva, (and by the accused Quinsay who has abandoned his appeal), was amply attested in court not only by Sofronio and Eliseo Arreola and by Eusebio Caculita, a detainee who had been lodged in the prison cells of the municipal building some time before the arrival of Pablo and the Arreolas, but also by the testimonies of doctors Alvarado and Alonzo. Upon the other hand, the attempt of these appellants to attribute Pablo's death to injuries inflicted by "Big Boy" Abarriao the day previous, is belied by the seriousness of the injuries, as disclosed by the autopsy. Were the defense version truthful, the internal hemorrhage and the rupture of the urinary bladder would have caused Pablo to expire the next day, even before reaching the municipal building in the evening of September 3. At least, he would have arrived at Aparri in a condition that would have caused the police to immediately call for a physician or take Pablo to the hospital instead of the jail. Certainly he would not have been able to walk a hundred meters from the Sambrano bus station to the municipal building.

The same reason militate against the alternative defense that Fernando Pablo's death was due to a fall inside the truck where he rode with the policemen when the speeding vehicle at one time was suddenly braked to a stop to avoid hitting a carabao. Such a fall could not have inflicted such extensive injuries as the autopsy has revealed.

We agree with the Solicitor General that the conviction of Lieutenant Loreto oliva of either murder or arbitrary detention is entirely without support. Sofronio and Eliseo Arreola, as prosecution witnesses, testified that Oliva arrived only after Pablo had been tortured by Sgt. Villanueva and policemen Ulsano and Quinsay, and already lay dying on the floor of the police quarters. The Arreolas also asserted that Oliva inquired what happened and angrily upbraided his men for the maltreatment of Pablo (t.s.n. pp. 66 and 112), a clear indication that the torture was done without his knowledge.

Eusebio Cacilitan, testifying for the prosecution stated that Oliva had taken one of the Arreolas out of the police department for a separate investigation and arrived only to order some one to revive Pablo by pouring water on his face he lay sprawling on the floor (t.s.n. pp. 34-36). Oliva therefore took no hand in the death of Pablo, and there is no proof that he ordered or conspired with his men to torture the deceased of that he had any knowledge of it nor opportunity to stop the maltreatment one time. There is no support for the trial Court's finding that Oliva made the maltreatment possible, or that Oliva arrested the offended parties out of complaisance for "Big Boy" Abrriao.

Neither can appellant Oliva be held responsible for the Arreolas' detention until September 6, since Eliseo Arreola himself testified that he and his companions voluntarily went to Aparri with the patrol and that after the death of Pablo, Lt. Oliva permitted the Arreola brothers to sleep in the hall of the municipal building. "A * * * When Milo Tan asked me, I told him that Lt. Oliva released us the previous night and asked whether we had any place wherein to sleep and we told him that we would sleep in the house of Milo Tan and that because it was already late, we slept in the municipal hall."(t.s.n. p. 3)

The extrajudicial statements of Olivia's co-accused are not competent proof against him, not being made in his presence. They are not even admissible in rebuttal because Olivia presented no evidence in his behalf.

The records of the case are thus clear that those really responsible for the death of Fernando Pablo were Sergeant Villanueva and policemen Ulsano and Quinsay. Likewise, despite in his denials, it is abundantly proved that it was the sergeant, Villanueva, who detained the Arreola Brothers and forbade them from leaving the municipal building until Pablo was buried, unsuccessfully attempting in the meantime have them subscribed to an affidavit that Pablo's death was due to accidental injuries, and that the deceased was a Huk. The sergeant would not allow the Arreolas to go home on the 4th of September, when Pablo's relatives arrived, notwithstanding the orders of Lieutenant Oliva, so that the Arreolas were in fact arbitrarily detained by him from the 4th to the 6th of September, when they were finally allowed to depart and tend to their injuries. While the brothers were occasionally permitted to leave the municipal building and eat at the house of one Milo ta, the complainants were evidently too terrorized to take advantage of these occasional sallies and meekly returned to custody even docilely stood guard over the remains of Pablo until it was buried. As pointed out by the Solicitor General in his brief. " * * *. It clearly appears from this testimony that it was Sergeant Villanueva who continuously kept them under guard the remains of Fernando Pablo and to help prepare his coffin, by telling them to come back to the municipal building after taking their meals outside, and making sure that they came

back by conducting them, and by telling them not to go until after the burial of the remains of Pablo (pp. 67, 70, 105, 106, 123, 124, 382, 390, t.s.n.) (Brief of Appellee, p. 25)

The cooperation of appellant Daniel Ulsano toward this arbitrary detention is not satisfactorily shown. The probabilities are that, as a disciplined subordinate, he left everything to his superior, Sergeant Villanueva, and anyway he could not presume to overrule the latter's orders. For this reason, we are not inclined to hold him responsible for this charge. But the record is clear that he must stand equally responsible with the sergeant for the murder of Fernando Pablo, in whose maltreatment this accused actively participated together with his co-accused Quinsay and Villanueva, as well as for the physical injuries inflicted upon the brothers Arreola.

There being no clear evidence that the maltreatment inflicted on the offended parties was for the purpose of extorting confessions or information, Art. 235 of the Revised Penal Code does not aplly.

Wherefore, the conviction of appellants Jose Villanueva and Daniel Ulsano in case No. 1091-A of the Court of First Instance of Cagayan (G.R. No. L-6033) for the murder of Fernando Pablo (with aggravating circumstance of public position utilized by the offender offset by the lack of intent to commit so grave a wrong doing as the one inflicted) is hereby affirmed. Loreto Oliva is, however, acquitted of this charge, with costs de oficio.

In the other two cases (Nos. 1092-A and 1093-A of the Court below, L-6034 and 6035 of this Court),the conviction and sentence of appellant Jose A. Villanueva, for arbitrary detention complexed with physical injuries, is likewise affirmed. But appellant Loreto A. Oliva is acquitted therefrom, with costs de oficio. Appellant Daniel Ulsano is likewise acquitted from this charge and, instead, conviected only of less serious physical injuries, aggravated by the circumstance of having taken advantage of public position (U.S. vs. Yumul, 34 Phil. 169; U.S. vs. Cerdena, 51 Phil. 393), and sentenced to six (6) months of arresto mayor.

The civil liabilities imposed by the trial Court shall be understood as imposed only upon appellants Jose Villanueva and Daniel Ulsano, in solidum with the accused Adriano Quinsay, who abandoned his appeal.

Costs in this instance shall be taxed against appellants Jose Villanueva and Adrian Quinsay. So ordered. Paras, C. J., Pablo, Bengzon, Padilla, Jugo, Bautista, Angelo, and Concepcion, JJ., concur.

Republic of the Philippines

SUPREME COURT

Manila

FIRST DIVISION

G.R. No. 112235 November 29, 1995

PEOPLE OF THE PHILIPPINES,

plaintiff-appellee,

vs.

ELIAS LOVEDIORO y CASTRO,

defendant-appellant.

KAPUNAN, J.:

Off-duty policeman SPO3 Jesus Lucilo was walking along Burgos St., away from the Daraga,

Albay

Public Marketwhen a man suddenly walked beside him, pulled a .45 caliber gun from his

waist, aimed the gun at the policeman's right ear and fired. The man who shot Lucilo had three

other

companions

with him, one of whom shot the fallen policeman four times as he lay on the

ground. After taking the latter's gun, the man and his companions boarded a tricycle and fled.

1
1

The incident was witnessed from a distance of about nine meters by Nestor Armenta, a 25 year old welder from Pilar, Sorsogon, who claimed that he knew both the victim and the man who fired the fatal shot. Armenta identified the man who fired at the deceased as Elias Lovedioro y Castro, his nephew (appellant's father was his first cousin) and alleged that he knew the victim from the fact that the latter was a resident of Bagumbayan.

Lucilo died on the same day of massive

blood loss from multiple gunshot wounds on the face, the

chest, and other parts of the body.

2
2

On autopsy, the municipal health officer established the cause of

death as hypovolemic shock. 3

As a result of the killing, the office of the provincial prosecutor of Albay, on November 6, 1992 filed an Information charging accused-appellant Elias Lovedioro y Castro of the crime of Murder under Article 248 of the RevisedPenal Code. The Information reads:

That on or about the 27th day of July, 1992, at

more

or less 5:30 o'clock in the

afternoon, at Burgos Street, Municipality of Daraga, Province of Albay, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, together with Gilberto Longasa, who is already charged in Crim. Case No. 5931 before RTC, Branch I, and three (3) others whose true identities are at present unknown and remain at large, conniving, conspiring, confederating and helping one another for a common purpose, armed with firearms, with intent to kill and with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously fire and shoot one SPO3 JESUS LUCILO, a member of the Daraga Police Station, inflicting upon the latter multiple gunshot wounds causing his death, to the damage and prejudice of his legal heirs.

After trial, the court

a quo found accused-appellant guilty beyond reasonable doubt of the crime of

Murder. The dispositive portion of said decision, dated September 24, 1993 states:

WHEREFORE, in view of all the foregoing considerations, this Court finds the

accused ELIAS LOVEDIORO guilty beyond reasonable doubt as principal, acting in conspiracy with his co-accused who are still at large, of the crime of murder, defined and penalized under Article 248 of the Revised Penal Code, and hereby sentences

him to suffer the penalty of

Reclusion Perpetua

with all the accessories provided by

law; to pay the heirs of the deceased SPO3 Jesus Lucilo through the widow, Mrs.

Remeline Lucilo, the amount of Fifty Thousand (P50,000.00) Pesos representing the civil indemnity for death; to pay the said widow the sum of Thirty Thousand (P30,000.00) Pesos representing reasonable moral damages; and to pay the said widow the sum of Eighteen Thousand Five Hundred Eighty-Eight (P18,588.00)

Pesos, representing actual damages, without subsidiary imprisonment however, in case of insolvency on the part of the said accused.

With costs against the accused.

SO ORDERED.

Hence, the instant appeal, in which the sole issue interposed is that portion of trial court decision finding him guilty of the crime of murder and not rebellion.

Appellant cites the testimony of the prosecution's principal witness, Nestor Armenta, as supporting

his claim that he should have been charged with the crime of rebellion, not murder. In his Brief, he asseverates that Armenta, a police informer, identified him as a member of the New People's Army. Additionally, he contends that because the killing of Lucilo was "a means to or in furtherance of

subversive ends,"

  • (said killing) should have been deemed absorbed in the crime of rebellion under Arts.

134 and 135 of the Revised Penal Code. Finally, claiming that he did not fire the fatal shot but merely acted as a look-out in the liquidation of Lucilo, he avers that he should have been charged merely as a participant in the commission of the crime of rebellion under paragraph 2 of Article 135 of the Revised

Penal Code and should therefore have been meted only the penalty of

prison mayor by the lower court.

Asserting that the trial court correctly convicted appellant of the crime of murder, the Solicitor General avers that the crime committed by appellant may be considered as rebellion only if the defense itself had conclusively proven that the motive or intent for the killing of the policeman was

for "political and subversive ends."

  • Moreover, the Solicitor General contends that even if appellant were

to be convicted of rebellion, and even if the trial court had found appellant guilty merely of being a

participant in a rebellion, the proper imposable penalty is not prision mayor as appellant contends, but reclusion temporal, because Executive Order No. 187 as amended by Republic Act No. 6968, the Coup D'etat Law, prescribes reclusion temporal as the penalty imposable for individuals

found guilty as participants in a rebellion.

We agree with the Solicitor General that the crime committed was murder and not rebellion.

Under Art. 134 of the Revised Penal Code, as amended by Republic Act No. 6968, rebellion is committed in the following manner:

[B]y rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Republic of the Philippines or any part thereof, of any body of land, naval or other armed forces, or depriving the Chief Executive or the Legislature wholly or partially, of any of their powers or prerogatives.

6
6

The gravamen of the crime of rebellion is an armed public uprising against the government.

  • By its

very nature, rebellion is essentially a crime of masses or multitudes involving crowd action, which cannot

be confined a priori

within predetermined bounds.

  • One aspect noteworthy in the commission of rebellion

is that other acts committed in its pursuance are, by law, absorbed in the crime itself because they

acquire a political character. This peculiarity was underscored in the case of

People v. Hernandez, 9
People v. Hernandez, 9

thus:

In short, political crimes are those directly aimed against the political order, as well as

such common crimes as may be committed to achieve a

In short, political crimes are those directly aimed against the political order, as well as such

political purpose.

The

decisive factor is the intent or motive. If a crime usually regarded as common, like homicide, is perpetrated for the purpose of removing from the allegiance "to the Government the territory of the Philippine Islands or any part thereof," then it becomes stripped of its "common" complexion, inasmuch as, being part and parcel of the crime of rebellion, the former acquires the political character of the latter.

Divested of its common complexion therefore, any ordinary act, however grave, assumes a different color by being absorbed in the crime of rebellion, which carries a lighter penalty than the crime of murder. In deciding if the crime committed is rebellion, not murder, it becomes imperative for our courts to ascertain whether or not the act was done in furtherance of a political end. The political motive of the act should be conclusively demonstrated.

In such cases, the burden of demonstrating political motive falls on the defense, motive, being a

state of mind which the accused, better than any individual, knows. Thus, in

People

In short, political crimes are those directly aimed against the political order, as well as such
  • v. Gempes,

  • 10 this court stressed that:

Since this is a matter that lies peculiarly with (the accused's) knowledge and since moreover this is an affirmative defense, the burden is on them to prove, or at least to state, which they could easily do personally or through witnesses, that they killed the deceased in furtherance of the resistance movement.

From the foregoing, it is plainly obvious that it is not enough that the overt acts of rebellion are duly proven. Both purpose and overt acts are essential components of the crime. With either of these elements wanting, the crime of rebellion legally does not exist. In fact, even in cases where the act complained of were committed simultaneously with or in the course of the rebellion, if the killing, robbing, or etc., were accomplished for private purposes or profit, without any political motivation, it has been held that the crime would be separately punishable as a common crime and would not be absorbed by the crime rebellion.

11

Clearly, political motive should be established before a person charged with a common crime —

alleging rebellion in order to lessen the possible imposable penalty — could benefit from the law's

relatively benign attitude towards political crimes. Instructive in this regard is the case of

In short, political crimes are those directly aimed against the political order, as well as such

Enrile v.

Amin,

12 13
12
13

where the prosecution sought to charge Senator Juan Ponce Enrile with violation of P.D. No.

for allegedly harboring or concealing in his home Col. Gregorio Honasan in spite of the senator's

1829,

knowledge that Honasan might have committed a crime. This Court held, against the prosecution's

contention, that rebellion and violation of P.D 1829 could be tried separately

  • 14 (on the principle that

rebellion is based on the Revised Penal Code while P.D. 1829 is a special law), that the act for which the

senator was being charged, though punishable under a special law, was absorbed in the crime of

rebellion being motivated by, and related to the acts for which he was charged in

In short, political crimes are those directly aimed against the political order, as well as such

Enrile vs.

Salazar

(G.R.

Nos. 92163 and 92164) a case decided on June 5, 1990. Ruling in favor of Senator Enrile and holding

that the prosecution for violation of P.D. No. 1829 cannot prosper because a separate prosecution for rebellion had already been filed and in fact decided, the Court said:

The attendant circumstances in the instant case, however constrain us to rule that the theory of absorption in rebellion cases must not confine itself to common crimes

but also to offenses under special laws which are perpetrated in furtherance of the political offense.

15

Noting the importance of purpose in cases of rebellion the court in underscored that:

Enrile vs.

but also to offenses under special laws which are perpetrated in furtherance of the political offense.

Amin

further

[I]ntent or motive is a decisive factor. If Senator Ponce Enrile is not charged with rebellion and he harbored or concealed Colonel Honasan simply because the latter is a friend and former associate, the motive for the act is completely different. But if the act is committed with political or social motives, that is in furtherance of rebellion, then it should be deemed to form part of the crime of rebellion instead of being punished separately.

It follows, therefore, that if no political motive is established and proved, the accused should be convicted of the common crime and not of rebellion. In cases of rebellion, motive relates to the act, and mere membership in an organization dedicated to the furtherance of rebellion would not, by and of itself, suffice.

The similarity of some of the factual circumstances of People v. Ompad, Jr., 16 to the
The similarity of some of the factual circumstances of People v. Ompad, Jr., 16 to the instant case is
striking. Two witnesses, both former NPA recruits identified the accused Ompad, alias "Commander

Brando," a known hitman of the NPA, as having led three other members of the NPA in the liquidation of

Dionilo Barlaan, a military informer, also in a rebel infested area. In spite of his notoriety as an NPA hitman, Ompad was merely charged with and convicted of murder, not rebellion because political motive was neither alleged nor proved.

As stated hereinabove, the burden of proof that the act committed was impelled by a political motive

lies on the accused. Political motive must be alleged in the information.

  • 17 It must be established by

clear and satisfactory evidence. In

but also to offenses under special laws which are perpetrated in furtherance of the political offense.

People v.

Paz

and Tica

we held:

That the killing was in pursuance of the Huk rebellion is a matter of mitigation or defense that the accused has the burden of proving clearly and satisfactorily. The lone uncorroborated assertion of appellant that his superiors told him of Dayrit being an informer, and his suspicion that he was one such, is neither sufficient or adequate to establish that the motivation for the killing was political, considering appellant's obvious interest in testifying to that effect.

18

Similarly, in

People v. Buco,
People v. Buco,
  • 19 the Court stressed that accused in that case failed to establish that the

reason for the killing of their victim was to further or carry out rebellion. The evidence adduced by the defense therein simply showed that appellant Francisco Buco was ordered by Tomas

Calma, alias

"Commander Sol" to kill municipal mayor Conrado G. Dizon. However, the evidence likewise

showed that Calma was induced by an acquaintance, a civilian, to order the killing on account of private differences over a ninety (90) hectare piece of land. The court attributed no political motive for the killing, though committed by known members of the Hukbalahap movement.

20

but also to offenses under special laws which are perpetrated in furtherance of the political offense.

People v.

Dasig

  • 21 has a factual milieu almost similar to the instant case. There, the Court held that "the

act of killing a police officer, knowing too well that the victim is a person in authority is a mere component

or ingredient of rebellion or an act done in furtherance of a rebellion." In

Dasig

the Court however noted

that the accused, who was charged with murder, not only admitted his membership with the NPA but also executed an extrajudicial confession to the effect that he was a member of an NPA "sparrow unit," a fact to which even the Solicitor General, in his brief therein was in agreement. The Solicitor General's brief

in Dasig

which this Court favorably quoted, noted that:

[T]he sparrow unit is the liquidation squad of the New People's Army with the objective of overthrowing the duly constituted government. It is therefore not hard to comprehend that the killing of Pfc. Manatad was committed as a means to or in furtherance of the subversive ends of the NPA. 22

By contrast, the Solicitor General vigorously argues for a different result in the case at bench. He states that accused-appellant's belated claims to membership in the NPA were not only insubstantial

but also self serving

23 an averment to which, given a thorough review of the circumstances of the case,

we fully agree. He states:

[In the case cited] the appellants, admittedly members of the NPA, clearly overcame the burden of proving motive or intent. It was shown that the political motivation for the killing of the victim was the fact that Ragaul was suspected as an informer for the PC. The perpetrators even left a letter card, a drawing on the body of Ragaul as a warning to others not to follow his example. It is entirely different in the case at bar where the evidence for the appellant merely contains self-serving assertions and

denials not substantial enough as an victim SPO3 Jesus Lucilo.

24

indicia

of political motivation in the killing of

In the case at bench, the appellant, assisted by counsel, admitted in his extrajudicial confession to having participated in the killing of Lucilo as follows:

Q What was that incident if any, please narrate?

A July 27, 1992 at more or less 12:00 noon. I am at home, three male

person a certainalias

ALWIN, ALIAS

SAMUEL and the other one

unknown to me, fetched me and told me to go with them, so I asked

them where, Alwin handed me a hand gun and same he stopped/call a passenger jeepney and told me board on said jeepney. (sic)

Q Please continue.

A Upon reaching Daraga, Albay fronting Petron Gasoline Station, we alighted on said jeep, so we walk towards Daraga Bakery we stopped walking due to it is raining, when the rain stopped we continue walking by using the road near the bakery. (sic)

Q When you reached Daraga bakery, as you have said in Q. 7 you used the road near the bakery where did you proceed?

A I am not familiar with that place, but I and my companion continue walking, at more less 4:30 P.M. July 27, 1992 one of my companion told us as to quote in Bicol dialect, to wit: "AMO NA YADI AN TINAMPO PALUWAS" (This is the place towards the poblacion), so, I placed myself just ahead of a small store, my three (3) companions continue walking towards poblacion, later on a policeman sporting white T-shirt and a khaki pant was walking towards me, while the said policeman is nearly approaching me, ALWIN shot the said policeman in front of the small store, when the said policeman fell on the asphalted road, ALWIN took the service firearm of the said policeman, then we ran towards the subdivision, then my two (2) companions commanded a tricycle then we fled until we reached a hill wherein there is a small bridge, thereafter Ka Samuel took the handgun that was handed to me by them at Pilar, Sorsogon. (sic)

Q Do you know the policeman that was killed by your companion?

A I just came to know his name when I reached home and heard it radio, that he is JESUS LUCILO. (sic)

Q What is your participation in the group?

A Look-out sir.

Q I have nothing more to asked you what else, if there is any? (sic)

A No more sir.

25

It bears emphasis that nowhere in his entire

extrajudicial confession

did appellant ever mention that

he was a member of the New People's Army. A thorough reading of the same reveals nothing which would suggest that the killing in which he was a participant was motivated by a political purpose. Moreover, the information filed against appellant, based on sworn statements, did not contain any

mention or allusion as to the involvement of the NPA in the death of SPO3 Lucilo.

  • 26 Even prosecution

eyewitness Nestor Armenta did not mention the NPA in his sworn statement of October 19, 1992.

27

As the record would show, allegations relating to appellant's membership in the NPA surfaced almost merely as an afterthought, something which the defense merely picked up and followed through upon prosecution eyewitness Armenta's testimony on cross-examination that he knew appellant to

be a member of the NPA. Interestingly, however, in the same testimony, Armenta admitted that he

was "forced" to pinpoint appellant as an NPA member.

  • 28 The logical result, of course, was that the trial

court did not give any weight and credence to said testimony. The trial court, after all, had the prerogative

of rejecting only a part of a witness' testimony while upholding the rest of it.

  • 29 While disbelieving the

portion of Armenta's testimony on appellant's alleged membership in the NPA, the trial court correctly

gave credence to his unflawed narration about how the crime was committed.

  • 30 Such narration is even

corroborated in its pertinent portions, except as to the identity of the gun wielder, by the testimony of the

appellant himself.

In any case, appellant's claim regarding the political color attending the commission of the crime being a matter of defense, its viability depends on his sole and unsupported testimony. He testified

that, upon the prodding of organization's

aliasAlwin and alias

Samuel, he joined the NPA because of the

goals. 31 He claimed that his two companions shot Lucilo because he "had offended our organization," 32 without, however, specifying what the "offense" was. Appellant claimed that he had been

a member of the NPA for five months before the shooting incident.

33

As correctly observed by the Solicitor General, appellant's contentions are couched in terms so

general and non-specific

  • 34 that they offer no explanation as to what contribution the killing would have

made towards the achievement of the NPA's subversive aims. SPO3 Jesus Lucilo, a mere policeman, was never alleged to be an informer. No acts of his were specifically shown to have offended the NPA. Against appellant's attempts to shade his participation in the killing with a political color, the evidence on record leaves the impression that appellant's bare allegations of membership in the NPA was conveniently

infused to mitigate the penalty imposable upon him. It is of judicial notice that in many NPA infested areas, crimes have been all-too-quickly attributed to the furtherance of an ideology or under the cloak of political color for the purpose of mitigating the imposable penalty when in fact they are no more than ordinary

crimes perpetrated by common criminals. In observed:

In any case, appellant's claim regarding the political color attending the commission of the crime being

Baylosis v.

Chavez, Jr., Chief Justice Narvasa aptly

The existence of rebellious groups in our society today, and of numerous bandits, or irresponsible or deranged individuals, is a reality that cannot be ignored or belittled. Their activities, the killings and acts of destruction and terrorism that they perpetrate, unfortunately continue unabated despite the best efforts that the Government authorities are exerting, although it may be true that the insurrectionist groups of the right or the left no longer pose a genuine threat to the security of the state. The need for more stringent laws and more rigorous law-enforcement, cannot be gainsaid.

35

In the absence of clear and satisfactory evidence pointing to a political motive for the killing of SPO3 Jesus Lucilo, we are satisfied that the trial court correctly convicted appellant of the crime of

murder.

  • 36 It is of no moment that a single eyewitness, Nestor Armenta, sealed his fate, for it is settled that

the testimony of one witness, if credible and positive, is sufficient to convict.

  • 37 Against appellant's claims

that he acted merely as a look-out, the testimony of one witness, his blood relative, free from any signs of

impropriety or falsehood, was sufficient to convict the accused.

38 Moreover, neither may lack of motive be

availing to exculpate the appellant. Lack or absence of motive for committing a crime does not preclude

conviction, there being a reliable eyewitness who fully and satisfactorily identified appellant as the

perpetrator of the felony.

  • 39 In the case at bench, the strength of the prosecution's case was furthermore

bolstered by accused-appellant's admission in open court that he and the eyewitness, his own uncle, bore

no grudges against each other. 40

Finally, treachery was adequately proved in the court below. The attack delivered by appellant was

sudden, and without warning of any kind.

  • 41 The killing having been qualified by treachery, the crime

committed is murder under Art. 248 of the Revised Penal Code. In the absence of any mitigating and

aggravating circumstances, the trial court was correct in imposing the penalty of

reclusion

perpetua

together with all the accessories provided by law.

WHEREFORE, PREMISES CONSIDERED, the trial court's decision dated September 14, 1993,

sentencing the accused of Murder is hereby AFFIRMED,

in toto.

SO ORDERED.

Padilla, Davide, Jr., Bellosillo and Hermosisima, Jr., JJ., concur.

Republic of the Philippines

G.R. No. L-6025

SUPREME COURT

May 30, 1964

Manila

EN BANC

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AMADO V. HERNANDEZ, ET AL., accused, AMADO V. HERNANDEZ, ET AL., defendants-appellants.

-----------------------------

G.R. No. L-6026

May 30, 1964

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. BAYANI ESPIRITU, ET AL., accused, BAYANI ESPIRITU and TEOPISTA VALERIO, defendants-appellants.

LABRADOR, J.:

This is the appeal prosecuted by the defendants from the judgment rendered by the Court of First Instance of Manila, Hon. Agustin P. Montesa, presiding, in its Criminal Case No. 15841, People vs. Amado V. Hernandez, et al., and Criminal Case No. 15479, People vs. Bayani Espiritu, et al. In Criminal Case No. 15841 (G.R. No. L-6026) the charge is for Rebellion with Multiple Murder, Arsons and Robberies; the appellants are Amado V. Hernandez, Juan J. Cruz, Genaro de la Cruz, Amado Racanday, Fermin Rodillas and Julian Lumanog; Aquilino Bunsol, Adriano Samson and Andres Baisa, Jr. were among those sentenced in the judgment appealed from, but they have withdrawn their appeal. In Criminal Case No. 15479 (G.R. No. L-6026) the charge is for rebellion with murders, arsons and kidnappings; the accused are Bayani Espiritu Teopista Valerio and Andres Balsa, Jr.; they all appealed but Andres Balsa, Jr. withdrew his appeal.

The information filed against defendants Hernandez and others in Criminal Case No. 15481 alleged:

I. That on or about March 15, 1945, and for some time before the said date and continuously thereafter, until the present time, in the City of Manila, Philippines, and the place which they had chosen as the nerve center of all their rebellious activities in the different parts of the Philippines, the said accused, conspiring, confederating and cooperating with each other, as well as with the thirty-one (31) defendants charged inCriminal Cases Nos. 19071, 14082, 14270, 14315 and 14344 of the Court of First Instance of Manila (decided May 11, 1951) and also with others whose whereabouts and identities are still unknown, the said accused and their other co-conspirators, being then high ranking officers and/or members of, or otherwise affiliated with the Communist Party of the Philippines (P.K.P.), which is now actively engaged in an armed rebellion against the Government of the Philippines thru act theretofore committed and planned to be further committed in Manila and other places in the Philippines, and of which party the "Hukbong Mapagpalaya Ng Bayan"(H.M.B.) otherwise or formerly known as the "Hukbalahaps" (Huks), unlawfully and did then and there willfully, unlawfully and feloniously help, support, promote, maintain, cause, direct and/or command the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.) or the "Hukbalahaps" (Huks) to rise publicly and take arms against the Republic of the Philippines, or otherwise participate in such armed public uprising, for the purpose of removing the territory of the Philippines from the allegiance to the government and laws thereof as in fact the said "Hukbong Mapagpalaya Ng Bayan" or "Hukbalahaps" have risen publicly and taken arms to attain the said purpose by then and there making armed raids, sorties and ambushes, attacks against police, constabulary and army detachments as well as innocent civilians, and as a necessary means to commit the crime of rebellion, in connection therewith and in furtherance thereof, have then and there committed acts of murder, pillage, looting, plunder, arson, and planned destruction of private and public property to create and spread chaos, disorder, terror, and fear so as to facilitate the accomplishment of the aforesaid purpose, as. follows, to wit:

(Enumeration of thirteen attacks on government forces or civilians by Huks on May 6, 1946, August 6, 1946, April 10, 1947, May 9, 1947, August 19, 1947, June, 1946, April 28, 1949, August 25, 1950, August 26, 1950, August 25, 1950, September 12, 1950, March 28, 1950 and March 29, 1950.)

II. That during the period of time and under the same circumstances herein-above indicated the said accused in the above-entitled case, conspiring among themselves and with several others as aforesaid, willfully, unlawfully and feloniously organized, established, led and/or

maintained the Congress of Labor Organizations (CLO), formerly known as the Committee on Labor Organizations (CLO), with central offices in Manila and chapters and affiliated or associated labor unions and other "mass organizations" in different places in the Philippines, as an active agency, organ, and instrumentality of the Communist Party of the Philippines (P.K.P.) and as such agency, organ, and instrumentality, to fully cooperate in, and synchronize its activities — as the CLO thus organized, established, led and/or maintained by the herein accused and their co-conspirators, has in fact fully cooperated in and synchronized its activities with the activities of the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.) and other organs, agencies, and instrumentalities of the Communist Party of the Philippines (P.K.P.), to thereby assure, facilitate, and effect the complete and permanent success of the above-mentioned armed rebellion against the Government of the Philippines.

The information filed against the defendants in Criminal Case No. 15479, Bayani Espiritu Andres Baisa, Jr. and Teopista Valerio, alleges:

That on or about the 6th day of May, 1946, and for sometime prior and subsequent thereto and continuously up to the present time, in the City of Manila, the seat of the government of the Republic of the Philippines, which the herein accused have intended to overthrow, and the place chosen for that purpose as the nerve center of all their rebellious atrocities in the different parts of the country, the said accused being then high ranking officials and/or members of the Communist Party of the Philippines (P.K.P.) and/or of the "Hukbong Mapagpalaya Ng Bayan" (H.M.B.) otherwise or formerly known as the "Hukbalahaps" (HUKS), the latter being the armed forces of said Communist Party of the Philippines; having come to an agreement with the 29 of the 31 accused in Criminal Cases Nos. 14071, 14082, 14270, 14315, 14344 of the Court of First Instance of Manila and decided to commit the crime of rebellion, and therefore, conspiring and confederating with all of the 29 accused in said criminal cases, acting in accordance with their conspiracy and in furtherance thereof, together with many others whose whereabouts and identities are still unknown up to the filing of this information, and helping one another, did then and there willfully, unlawfully and feloniously promote maintain, cause, direct and/or command the "Hukbong Mapagpalaya Ng Bayan", (HMB) or the Hukbalahaps (HUKS) to rise publicly and take Arms against the Government or otherwise participate therein for the purpose of overthrowing the same, as in fact, the said "Hukbong Mapagpalaya Ng Bayan" or Hukbalahap (HUKS) have risen publicly and taken arms against the Government, by then and there making armed raids, sorties and ambushes, attacks against police, constabulary and army detachment, and as a necessary means to commit the crime of rebellion, in connection therewith and in furtherance thereof, by then and there committing wanton acts of murder, spoilage, looting, arson, kidnappings, planned destruction of private and public buildings, to create and spread terrorism in order to facilitate the accomplishment of the aforesaid purpose, as follows to wit: (Enumeration of thirteen attacks on Government forces or civilians by Huks on May 6, 1946. August 6, 1946, April 10, 1947, May 9, 1947, August 19, 1947, June 1946, April 28, 1949, August 25, 1950, August 26, 1950, August 25, 1950, September 12, 1950, March 28, 1950 and March 29,

1950).

A joint trial of both cases was held, after which the court rendered the decision subject of the present appeals.

APPEAL OF AMADO V. HERNANDEZ

After trial the Court of First Instance found, as against appellant Amado V. Hernandez, the following:

(1) that he is a member of the Communist Party of the Philippines and as such had aliases, namely, Victor or Soliman; (2) that he was furnished copies of "Titis", a Communist publication, as well as other publications of the Party; (3) that he held the position of President of the Congress of Labor Organizations; (4) that he had close connections with the Secretariat of the Communist Party and held continuous communications with its leaders and its members; (5) that he furnished a mimeographing machine used by the Communist Party, as well as clothes and supplies for the military operations of the Huks; (6) that he had contacted well-known Communists coming to the Philippines and had gone abroad to the WFTU conference Brussels, Belgium as a delegate of the CLO, etc. Evidence was also received by the court that Hernandez made various speeches encouraging the people to join in the Huk movement in the provinces.

The court also found that there was a close tie-up between the Communist Party and the Congress of Labor Organizations, of which Hernandez was the President, and that this Congress was organized by Hernandez in conjunction with other Huks, namely: Alfredo Saulo, Mariano Balgos, Guillermo Capadocia, etc.

We will now consider the nature and character of both the testimonial as well as the documentary evidence, independently of each other, to find out if the said evidence supports the findings of the court.

Testimonial Evidence

Amado V. Hernandez took the oath as member of the Communist Party in the month of October, 1947, at the offices of the Congress of Labor Organizations at 2070 Azcarraga in the presence of Guillermo Capadocia, Ramon Espiritu, Pedro Castro, Andres Balsa, etc. As a Communist he was given the pseudonyms of Victor and Soliman, and received copies of the Communist paper "Titis". He made various speeches on the following dates and occasions:

(1) On August 29, 1948 before the Democratic Peace Rally of the CLO at Plaza Miranda, in which he announced that the people will soon meet their dear comrade in the person of Comrade Luis Taruc.

(2) On September 4, 1948 he conferred with Hindu Khomal Goufar at the Escolta, at which occasion Balgos told Goufar that the PKM, CLO and the Huks are in one effort that the PKM are the peasants in the field and the Huks are the armed forces of the Communist Party; and the CLO falls under the TUD of the Communist Party. 1äwphï1.ñët

(3) On October 2, 1948 he went abroad to attend the Second Annual Convention of the World Federation of Trade Unions and after arrival from abroad a dinner was given to him by the people of Gagalangin, at which Hernandez delivered a speech and he said that he preferred to go with the Huks because he felt safer with them than with the authorities of the Government.

(4) In April, 1949, he made a speech before a group of tenants in Malabon attacking the frauds in the 1947 elections, graft and corruption in the elections and that if improvement cannot be made by the ballots, they could be made by bullets; and enjoined the people to go to the hills and join Luis Taruc the head of the dissidents in the Philippines.

(5) On October 2, 1949 he delivered a speech on the occasion of the commemoration of the World Peace at the CLO headquarters at 330 P. Campa. He attacked the city mayor and incited the people to go to Balintawak and see Bonifacio there and thereafter join four comrades under the leadership of Luis Taruc.

(6) On October 16, 1949 he delivered a speech before a convention of the unemployed at 330 P. Campa. He asked the unemployed to approve a resolution urging the Government to give them jobs. In conclusion he said that if the Government fails to give them jobs the only way out was to join the revolutionary forces fighting in the hills. He further said that Mao Tse Tung, leader of the People's Army in China, drove Chiang Kai Shek from his country, and that Luis Taruc was also being chased by Government forces run by puppets like Quirino, etc.

(7) On January 13, 1950 there was another meeting at 330 P. Campa. In his talk Hernandez expressed regret that two foremost leaders of the CLO, Balgos and Capadocia, had gone to the field to join the liberation army of the HMB, justifying their going out and becoming heroes by fighting in the fields against Government forces until the ultimate goal is achieved.

The above evidence was testified to by Florentino Diolata who was the official photographer of the CLO since August, 1948.

On the tie-up between the Communist Party and the CLO Guillermo Calayag, a Communist and a Huk from 1942 to 1950, explained:

(1) The ultimate goal of the Communist Party is to overthrow the president government by force of aims and violence; thru armed revolution and replace it with the so-called dictatorship of the proletariat the Communist Party carries its program of armed overthrow of the present government by organizing the HMB and other forms of organization's such as the CLO, PKM, union organizations, and the professional and intellectual group; the CLO was organized by the Trade Union Division TUD of the Communist Party.

(2) A good majority of the members of the Executive Committee and the Central Committee of the CLO were also top ranking officials of the Communist Party; activities undertaken by the TUD - the vital undertaking of the TUD is to see that the directives coming from the organizational bureau of the Communist Party can be discussed within the CLO especially the Executive Committee. And it is a fact that since a good majority of the members of the Executive Committee are party members, there is no time, there is no single time that those directives and decisions of the organizational department, thru the TUD are being objected to by the Executive Committee of the CLO. These directives refer to how the CLO will conduct its functions. The executive committee is under the chairmanship of accused Amado V. Hernandez.

(3) The CLO played its role in the overall Communist program of armed overthrow of the present government and its replacement by the dictatorship of the proletariat by means of propaganda - by propagating the principles of Communism, by giving monetary aid, clothing, medicine and other forms of material help to the HMB. This role is manifested in the very constitution of the CLO itself which expounded the theory of classless society and the eradication of social classes (par. 5, Sec. 1, Art. 2, page 18 of the CLO Constitution contained in the Fourth Annual Convention Souvenir Program of the CLO Exh. "V-1579"). Thru propaganda, the CLO promoted the aims of Communist Party and disseminated Communist ideas by:

  • (a) The conspicuous display of the portrait or, pictures of Crisanto Evangelista (Exh.

V-1662), founder of Communism in the Philippines, in the session hall of the CLO headquarters at 2070 Azcarraga and then at 330 P. Campa;

  • (b) The distribution of foreign communist reading materials such as the World

Federation of Trade Union Magazine, International Union of Students magazine, Voice magazine of the marine cooks of the CLO, World Committee of the Defenders of the Peace magazine, Free Bulgaria magazine, Soviet Russia Today magazine and World Federation of Democratic Youth magazine (Exhs. V-911, V-907, V-910, V-899,

V-912, V-853, W-996 and V-967);

  • (c) The publication and distribution of some local subversive publications such as the

"Titis", "Bisig", Kidlat", which are Communist Party organs; "The Philippine Labor

Demands Justice" and "Hands Off Korea" authored by accused Amado V. Hernandez;

  • (d) Principles of Communism were also propagated thru lectures, meetings, and by

means of organization of committees in the educational department as well as

researches in the Worker's Institute of the CLO.

(4) The CLO also helped carry out the program of the Communist Party thru infiltration of party members and selected leaders of the HMB within the trade unions under the control of the CLO. The Communist Party thru the CLO assigned Communist Party leaders and organizers to different factories in order to organize unions. After the organization of the union, it will affiliate itself with the CLO thru the Communist leaders and the CLO in turn, will register said union with the Department of Labor; and the orientation and indoctrination of the workers is continued in the line of class struggle. After this orientation and infiltration of the Communist Party members and selected leaders of the HMB with the trade unions under the control of the CLO is already achieved and the group made strong enough to carry out its aims, they will begin the sporadic strikes and the liquidation of anti-labor elements and anti- Communist elements and will create a so-called revolutionary crisis. That revolutionary crisis will be done for the party to give directives to the HMB who are fighting in the countrysides and made them come to the city gates. The entry of the HMB is being paved by the simultaneous and sporadic strikes, by ultimate general strikes thru the management of the CLO.

Important Documents Submitted at Trial

  • 1. Documents which proved that Amado V. Hernandez used the aliases "Victor", or was

referred to as "Victor" or "Soliman".

  • (a) Letter dated April 23, 1950 (signed) by Victor addressed to Julie telling the latter

of his sympathies for other communists, describing his experiences with Communists abroad, telling Julie to dispose of materials that may be sent by Victor. (Exh. D-2001-

2004)

  • (b) "Paano Maisasagawa, etc." — mentions different groups of labor unions of which

Victor heads one group, consisting of the MRRCO, PTLD, PGWU, EMWU and IRWU

(Exh. C-2001-2008) Cadres assigned to different industries. (Exh. V-40-41)

  • (c) Handwritten certificate of Honofre Mangila states that he knew Amado Hernandez

as Victor from co-party members Hugo and Ely. (Exh. LL)

  • (d) Letter of Elias to Ka Eto requesting the latter to deliver attached letter to Victor.

(Exh. 1103)

  • (e) Saulo's letter about his escape, asks Victor why his press statement was not

published in the newspapers. (Exh. C-362) Letter was however published by

Hernandez in the Daily Mirror.

  • (f) Letter of Taruc to Maclang directing the latter to give copy of Huk Story to Victor.

(Exh. D-463-64)

  • (g) Notes of Salome Cruz, Huk courier, stating that she went to Soliman at

Pampanga St. to bring to the latter communications from the Communist Party. (Exh.

D-1203) That Soliman was given copies of "Titis". (Exh. D-1209)

  • (h) SEC directions to Politburo members, Soliman not to be involved with

Nacionalista Rebels. (Exh. F-92-93. SEC)

  • (i) Letter of SEC to Politburo reporting that Saulo be sent out and Soliman has

"tendencies of careerism and tendency to want to deal with leaders of the party"; that

he should be asked to choose to go underground or fight legally. (Exh. F-562)

  • (j) Explanation given by Hernandez why he did not join Saulo in going underground.

(Exh. V-87) (1) His election as councilor until December, 1951. (Exhs. V-42, W-9) (2) His election as President of CLO until August of following year. (Exhs. V-42, W-9)

  • 2. Letters and Messages of Hernandez.

    • (a) To Lyden Henry and Harry Reich, tells Huks still fighting. (Exh. V-80)

(b)

To SOBSI Jakarta — that Filipinos are joining other communist countries of the

East. (Exh. V-82)

(c)

Press release on Saulo's disappearance published by Amado Hernandez. (Exh.

W-116-120)

(d)

To Hugh and Eddie, July 8, 1949 — Extends greetings to National Union of

Marine Cooks and Stewards, states that labor has one common struggle — "the liberation of all the peoples from the chains of tyranny, fascism and imperialism". (Exh. V-259)

(e)

To Kas. Pablo and Estrada - talks of the fight - fight of labor. (Exh. V-85-89)

(f)

Appeal to the Women and Asia. (Exh. V-5-10)

(g)

Letter to Julie (Exh. V-2001-2004)

(h)

Letter to Chan Lieu - states that leaders during the war are being persecuted, like

Taruc. Tells of reward of P100,000.00 on Taruc's head. (Exh. X-85-88)

(i)

Letter to John Gates of the Daily Worker — condemns Wall Street maneuvers;

corruption and graft in Quirino administration, etc. (Exh. V-83)

(j)

Cablegram: CLO join ILWU commends Harry Bridges, US Communist. (Exh. V-79)

(k)

Communication of Hernandez to CLO at MRRCO — Praises Balgos and

Capadocia for joining the Huks. (Exhs. V-12-22, V-289)

(l)

"Philippine labor Demands Justice" — Attacks czars of Wall Street and U.S. Army

and Government. (Exh. V-94) .

(m)

Letter to Taruc — June 28, 1948.-States solidarity among the CLO Huks and

PKM. Attacks North Atlantic Pact. Praises Mao Tse Tung (contained in Exh. V-94)

(n)

"Philippines Is Not A Paradise" — States of a delegation to Roxas attacking

unemployment. (Exh. V-90-93)

(o)

Article "Progressive Philippines" — (Exh. V-287)

(p)

Article "Hands Off Korea" — (Exhs. V-488-494, 495-501, 509-515, W-25-26)

(q)

"Limang Buwang Balak Sa Pagpapalakas Ng Organisasyon". (Exh. X-35-38)

(r)

Press statement of Hernandez — opposes acceptance of decorations from

Greece by Romulo. (Exh. V-72)

3. Other Activities of Hernandez.

  • (a) Hernandez received clothes from Pres. Lines thru P. Campa, which clothes he

sent to the field. Letters show of sending of supplies to Huks. (Exh. S-383)

  • (b) Hernandez was asked to furnish portable typewriter, which he did furnish to Huks.

(Exh. C-364)

  • (c) Hernandez brought Taruc's letter about facts and incidents about Huks to Bulosan

for inclusion in Bulosan's book. (Exh. FF-1)

  • (d) Had conference with Kumar Goshal a Hindu, about the Huks and their armed

forces. (Photographs, Exhs. X-6 RR-54-55A)

  • (e) Supervised taking of pictures of sons of Capadocia and Joven. (Photographs,

Exhs. T-1, RR-136-138A)

  • (f) Had knowledge of the going underground of Capadocia and Balgos and issued

press release about their going underground. (Exh. F-91)

  • (g) Victor mentioned to continue as contact for Chino. (Exh. C-362)

  • (h) Taruc's letter to Maclang shows that Soliman had sent 7 lessons to Taruc. (Exh.

D-451-451-A)

  • (i) Associated with fellow ranking Communist leaders.

The Court upon consideration of the evidence submitted, found (1) that the Communist Party was fully organized as a party and in order to carry out its aims and policies a established a National Congress, a Central Committee (CC), Politburo PB, Secretariat (SEC), Organization Bureau (OB), and National Courier or Communication Division (NCD), each body performing functions indicated in their respective names; (2) that in a meeting held on August 11, 1950 the SEC discussed the creation of a Military Committee of the Party and a new GHQ, under which on September 29, 1950 the SEC organized a special warfare division, with a technological division; (3) that on May 5, 1950 a body known as the National Intelligence Division was created, to gather essential military intelligence and, in general, all information useful for the conduct of the armed struggle (4) that a National Finance Committee was also organized as a part of the Politburo and answerable to it; (5) that the country was divided into 10 Recos, the 10th Reco comprising the Manila and suburbs command; (6) that since November, 1949 the CPP had declared the existence of a revolutionary situation and since then the Party had gone underground and the CPP is leading the armed struggle for national liberation, and called on the people to organize guerrillas and coordinate with the HMB on the decisive struggle and final overthrow of the imperialist government; (7) that in accordance with such plan the CPP prepared plans for expansion and development not only of the Party but also of the HMB; the expansion of the cadres from 3,600 in July 1950 to 56,000 in September 1951, the HMB from 10,800 in July 1950 to 172,000 in September 1951, et seq.

Around the month of January, 1950 it was decided by the CPP to intensify HMB military operations for political purposes. The Politburo sanctioned the attacks made by the Huks on the anniversary of the HMB on March 25, 1950. The HMB attacks that were reported to the PB were those made in May, 1946; June, 1946; April 10, 1947; May 9, 1947; August 19, 1947; August 25, 1950; August 26, 1950; October 15 and 17, 1950; May 6, 1946; August 6, 1946; April 10, 1947; May 9, 1947; August 19, 1947; April 29, 1949; August 25, 1950; August 26, 1950; September 12, 1950; March 26, 1950; March 29, 1950.

The theory of the prosecution, as stated in the lower court's decision, is as follows:

The evidence does not show that the defendants in these cases now before this Court had taken a direct part in those raids and in the commission of the crimes that had been committed. It is not, however, the theory of the prosecution that they in fact had direct participation in the commission of the same but rather that the defendants in these cases have cooperated, conspired and confederated with the Communist Party in the prosecution and successful accomplishment of the aims and purposes of the said Party thru the organization called the CLO (Congress of Labor Organizations).

The Court found that the CLO is independent and separate from the CPP, organized under the same pattern as the CPP, having its own National Congress, a Central Committee (which acts in the absence of and in representation of the National Congress), an Executive Committee (which acts when the National Congress and the Executive Committee are not in session), and seven permanent Committees, namely, of Organization, Unemployment and Public Relations, Different Strikes and Pickets, Finance, Auditing, Legislation and Political Action. Members of the Communist Party dominate the committees of the CLO. The supposed tie-up between CPP and the CLO of which Hernandez was the President, is described by the court below in finding, thus:

Just how the CLO coordinates its functions with the Communist Party organ under which it operates was explained by witness Guillermo S. Calayag, one-time ranking member of the Communist Party and the CLO who typewrites the "Patnubay sa Education" from a handwritten draft of Capadocia, which is one of the texts used in the Worker's institute of the CLO. According to him, the CLO plays its role by means of propaganda, giving monetary aid, clothing, medicine and other material forms of help to the HMB, which constitutes the armed forces of the Communist Party. Propaganda is done by lectures, meetings, and the organization of committees of the educational department as well as researches at the CLO Worker's Institute.

Another way of helping the Communist Party of the Philippines is by allowing the Communist Party leaders to act as organizers in the different factories in forming a union. These Party Members help workers in the factories to agitate for the eradication of social classes and ultimately effect the total emancipation of the working classes thru the establishment of the so-called dictatorship of the proletariat. It is the duty of these Communist Party members to indoctrinate uninitiated workers in the union to become proselytes of the Communist Party ideology. After the right number is secured and a union is formed under a communist leader, this union is affiliated with the CLO and this in turn registers the same with the Department of Labor. The orientation and indoctrination of the masses is continued with the help of the CLO. The primary objective of the CLO is to create what is called a revolutionary crisis. It

seeks to attain this objective by first making demands from the employers for concessions which become more and more unreasonable until the employers would find it difficult to grant the same. Then a strike is declared. But the strikes are only preparation for the ultimate attainment of the Communist goal of armed overthrow of the government. After the workers in the factories have already struck in general at the behest of the Communist Party thru the CLO a critical point is reached when a signal is given for the armed forces of the Communist Party, the HMB, to intervene and carry the revolution now being conducted outside to within the city.

On the basis of the above findings, the court below found Hernandez guilty as principal of the crime charged against him and sentenced him to suffer the penalty of reclusion perpetua with the accessories provided by law, and to pay the proportionate amount of the costs.

Our study of the testimonial and documentary evidence, especially those cited by the Court in its decision and by the Solicitor General in his brief, discloses that defendant-appellant Amado V. Hernandez, as a Communist, was an active advocate of the principles of Communism, frequently exhorting his hearers to follow the footsteps of Taruc and join the uprising of the laboring classes against capitalism and more specifically against America and the Quirino administration, which he dubbed as a regime of puppets of American imperialism. But beyond the open advocacy of Communistic Theory there appears no evidence that he actually participated in the actual conspiracy to overthrow by force the constituted authority.

Hernandez is the founder and head of the CLO. As such, what was his relation to the rebellion? If, as testified to by Guillermo S. Calayag, the CLO plays merely the role of propagation by lectures, meetings and organization of committees of education by Communists; if, as stated, the CLO merely allowed Communist Party leaders to act as organizers in the different factories, to indoctrinate the CLO members into the Communist Party and proselytize them to the Communist ideology; if, as also indicated by Calayag, the CLO purports to attain the ultimate overthrow of the Government first by making demands from employers for concessions until the employers find it difficult to grant the same, at which time a strike is declared; if it is only after the various strikes have been carried out and a crisis is thereby developed among the laboring class, that the Communist forces would intervene and carry the revolution — it is apparent that the CLO was merely a stepping stone in the preparation of the laborers for the Communist' ultimate revolution. In other words, the CLO had no function but that of indoctrination and preparation of the members for the uprising that would come. It was only a preparatory organization prior to revolution, not the revolution itself. The leader of the CLO therefore, namely Hernandez, cannot be considered as a leader in actual rebellion or of the actual uprising subject of the accusation. Hernandez, as President of the CLO therefore, by his presidency and leadership of the CLO cannot be considered as having actually risen up in arms in rebellion against the Government of the Philippines, or taken part in the conspiracy to commit the rebellion as charged against him in the present case; he was merely a propagandist and indoctrinator of Communism, he was not a Communist conspiring to commit the actual rebellion by the mere fact of his presidency of the CLO.

The court below declares that since November 1949 the Communist Party of the Philippines had declared the existence of the revolutionary situation and since then the Party had gone underground, with the CPP leading the struggle for national integration and that in the month of January 1950, it

was decided by the said Party to intensify the HMB military operations for political purposes. The court implicates the appellant Hernandez as a co-conspirator in this resolution or acts of the Communist Party by his mere membership thereto. We find this conclusion unwarranted. The seditious speeches of Hernandez took place before November, 1949 when the CPP went underground. The court below has not been able to point out, nor have We been able to find among all acts attributed to Hernandez, any single fact or act of his from which it may be inferred that he took part in the deliberations declaring the existence of a revolutionary situation, or that he had gone underground. As a matter of fact the prosecution's evidence is to the effect that Hernandez refused to go underground preferring to engage in what they consider the legal battle for the cause.

We have also looked into the different documents which have been presented at the time of the trial and which were confiscated from the office of the Politburo of the Communist Party. The speeches of Hernandez were delivered before the declaration by the Communist Party of a state of revolutionary situation in 1949. Neither was it shown that Hernandez was a member of the Executive Committee, or of the SEC, or of the Politburo of the Communist Party; so NO presumption can arise that he had taken part in the accord or conspiracy declaring a revolution. In short, there has been no evidence, direct or indirect, to relate or connect the appellant Hernandez with the uprising or the resolution to continue or maintain said uprising, his participation in the deliberations leading to the uprising being inferred only from the fact that he was a communist.

The practice among the top Communists, as declared by the trial court appears to have been for important members, if they intend actually to join the rebellion, to go underground, which meant leaving the city, disappearing from sight and/or secretly joining the forces in the field.

The document, Exhibit F-562, which is quoted in the decision, contains the directive of the SEC of September 1, 1950, to Saulo and Hernandez, which reads:

11. In view of the new developments in the city, send out Elias who prefers to work outside. Present problem of fighting legally to Com. Soliman. If Soliman is prepared for martyrdom, retain him to fight legally. If not, send him out with Elias. Same goes with Com. Mino and other relatively exposed mass leaders.

And the lower court itself found that whereas Saulo went underground and joined the underground forces outside the City, Hernandez remained in the City, engaged in the work of propaganda, making speeches and causing the publication of such matters as the Communist Party leaders directed him to publish.

That Hernandez refused to go underground is a fact which is further corroborated by the following reasons (excuses) given by him for not going underground, namely (1) that his term of councilor of the City of Manila was to extend to December, 1951; and (2) that he was elected President of the CLO for a term which was to end the year 1951.

As a matter of fact the SEC gave instructions to Hernandez not to be involved with Nacionalista Rebels, and reported to the Politburo that Hernandez "has tendencies of careerism, and tending to want to deal with leaders of the Nacionalista Party instead of following CPP organizational procedures."

The court below further found that Hernandez had been furnishing supplies for the Huks in the field. But the very document dated December 3, 1949, Exhibit D-420422, cited in the decision (printed, p. 49), is to the effect that clothes and shoes that Hernandez was supposed to have sent have not been received. It is true that some clothes had been sent thru him to the field, but these clothes had come from a crew member of a ship of the American President Lines. He also, upon request, sent a portable typewriter to the SEC or Politburo. Furthermore, a certain Niagara Duplicating machine received by Hernandez from one Rolland Scott Bullard a crew member of the SS President Cleveland, appease later to have been forwarded by him to the officers of the SEC or the Politburo.

Lastly, it further appears that Taruc and other CPP leaders used to send notes to appellant Hernandez, who in turn issued press releases for which he found space in the local papers. His acts in this respect belong to the category of propaganda, to which he appears to have limited his actions as a Communist.

The acts of the appellant as thus explained and analyzed fall under the category of acts of propaganda, but do not prove that he actually and in fact conspired with the leaders of the Communist Party in the uprising or in the actual rebellion, for which acts he is charged in the information. And his refusal to go underground because of his political commitments occasioned by his term of election as president of the CLO and the impressions caused by his acts on the Communist leaders, to the effect that he was in direct communication or understanding with the Nacionalista Party to which he was affiliated, creates in Us the reasonable doubt that it was not his Communistic leanings but his political ambitions, that motivated his speeches sympathizing with the Huks. For which reason We hold that the evidence submitted fails to prove beyond reasonable doubt that he has conspired in the instigation of the rebellion for which he is held to account in this criminal case.

The question that next comes up for resolution is: Does his or anyone's membership in the Communist Party per se render Hernandez or any Communist guilty of conspiracy to commit rebellion under the provisions of Article 136 of the Revised Penal Code? The pertinent provision reads:

ART. 136. Conspiracy and proposal to commit rebellion or insurrection. — The conspiracy and proposal to commit rebellion or insurrection shall be punished, respectively, by prision correccional in its maximum period and a fine which shall not exceed 5,000 pesos, and by prision correccional in its medium period and a fine not exceeding 2,000 pesos.

The advocacy of Communism or Communistic theory and principle is not to be considered as a criminal act of conspiracy unless transformed or converted into an advocacy of action. In the very nature of things, mere advocacy of a theory or principle is insufficient unless the communist advocates action, immediate and positive, the actual agreement to start an uprising or rebellion or an agreement forged to use force and violence in an uprising of the working class to overthrow constituted authority and seize the reins of Government itself. Unless action is actually advocated or intended or contemplated, the Communist is a mere theorist, merely holding belief in the supremacy of the proletariat a Communist does not yet advocate the seizing of the reins of Government by it. As a theorist the Communist is not yet actually considered as engaging in the criminal field subject to punishment. Only when the Communist advocates action and actual uprising, war or otherwise, does

he become guilty of conspiracy to commit rebellion. Borrowing the language of the Supreme Court of the United States:

In our jurisprudence guilt is personal, and when the imposition of punishment on a status or on conduct can only be justified by reference to the relationship of that status or conduct to other concededly criminal activity (here advocacy of violent overthrow), that relationship must be sufficiently substantial to satisfy the concept of personal guilt in order to withstand attack under the Due Process Clause of the Fifth Amendment. Membership, without more, in an organization engaged in illegal advocacy, it is now said, has not heretofore been

recognized by this Court to be such a

relationship. ...

.

What must be met, then, is the argument that membership, even when accompanied by the elements of knowledge and specific intent, affords an insufficient quantum of participation in the organization's alleged criminal activity, that is, an insufficiently significant form of aid and encouragement to permit the imposition of criminal sanctions on that basis. It must indeed be recognized that a person who merely becomes a member of an illegal organization, by that "act" alone need be doing nothing more than signifying his assent to its purposes and activities on one hand, and providing, on the other, only the sort of moral encouragement which comes from the knowledge that others believe in what the organization is doing. It may indeed be argued that such assent and encouragement do fall short of the concrete, practical impetus given to a criminal enterprise which is lent for instance by a commitment on the part of the conspirator to act in furtherance of that enterprise. A member, as distinguished from a conspirator, may indicate his approval of a criminal enterprise by the very fact of his membership without thereby necessarily committing himself to further it by any act or course of conduct whatever. (Scales v. United States, 367 U.S. 203, 6 L. ed. 782)

The most important activity of appellant Hernandez appears to be the propagation of improvement of conditions of labor through his organization, the CLO. While the CLO of which he is the founder and active president, has communistic tendencies, its activity refers to the strengthening of the unity and cooperation between labor elements and preparing them for struggle; they are not yet indoctrinated in the need of an actual war with or against Capitalism. The appellant was a politician and a labor leader and it is not unreasonable to suspect that his labor activities especially in connection with the CLO and other trade unions, were impelled and fostered by the desire to secure the labor vote to support his political ambitions. It is doubtful whether his desire to foster the labor union of which he was the head was impelled by an actual desire to advance the cause of Communism, not merely to advance his political aspirations.

Insofar as the appellant's alleged activities as a Communist are concerned, We have not found, nor has any particular act on his part been pointed to Us, which would indicate that he had advocated action or the use of force in securing the ends of Communism. True it is, he had friends among the leaders of the Communist Party, and especially the heads of the rebellion, but this notwithstanding, evidence is wanting to show that he ever attended their meetings, or collaborated and conspired with said leaders in planning and encouraging the acts of rebellion, or advancing the cause thereof. Insofar as the furnishing of the mimeograph machine and clothes is concerned, it appears that he acted merely as an intermediary, who passed said machine and clothes on to others. It does not

appear that he himself furnished funds or material help of his own to the members of the rebellion or to the forces of the rebellion in the field.

But the very act or conduct of his in refusing to go underground, in spite of the apparent desire of the chief of the rebellion, is clear proof of his non-participation in the conspiracy to engage in or to foster the rebellion or the uprising.

We next consider the question as to whether the fact that Hernandez delivered speeches of propaganda in favor of Communism and in favor of rebellion can be considered as a criminal act of conspiracy to commit rebellion as defined in the law. In this respect, the mere fact of his giving and rendering speeches favoring Communism would not make him guilty of conspiracy, because there was no evidence that the hearers of his speeches of propaganda then and there agreed to rise up in arms for the purpose of obtaining the overthrow of the democratic government as envisaged by the principles of Communism. To this effect is the following comment of Viada:

CUESTION 10. El que hace propaganda entre sus convecinos, induciendoles a que el dia que se anunciara la subasta de consumes se echaran a la calle para conseguir aunque fuera preciso acudir a la fuerza el reparto entre los vecinos ricos solamente, sera responsable de un delito de conspiracion para la sedicion? — El Tribunal Supreme ha resuelto la negative al casar cierta sentencia de la Audiencia de Valencia, que entendio lo contrario: "Considerando que, con areglo a lo que dispone el art. 4. del Codigo Penal, hay conspiracion cuando dos o mas personas se conciertan para la execution de un delito y resuelven cmeterlo; y no constando que existiera ese concierto en cuanto a los hechos que se refieren en la tercera pregunta del veredicto, pues en ella solo se habla de los actos de induccion que el procesado realizo, sin expresar el efecto que la mismo produjo en el animo de las personas a quienes se dirigian, ni si estas aceptaron o no lo que se las propuso, resulta evidence que faltan los clementos integrantes de la conspiracion, etc." (Se. de 5 de Julio de 1907, Gaceta de 7 de Enero de 1909.) (Viada, Tomo I, Codigo Penal, p. 152)

In view of all the above circumstances We find that there is no concrete evidence proving beyond reasonable doubt that the appellant (Hernandez) actually participated in the rebellion or in any act of conspiracy to commit or foster the cause of the rebellion. We are constrained, in view of these circumstances, to absolve, as We hereby absolve, the appellant Amado V. Hernandez from the crime charged, with a proportionate share of the costs de oficio.

APPEAL OF OTHER DEFENDANTS-APPELLANTS

All the other defendants were found guilty as accomplices in the crime of rebellion as charged in the information and were each sentenced to suffer the penalty of 10 years and 1 day of prision mayor, with the accessories provided by law, and to pay their proportionate share of the costs.

Legal Considerations. — Before proceeding to consider the appeals of the other defendants, it is believed useful if not necessary to lay dawn the circumstances or facts that may be determinative of their criminal responsibility or the existence or nature thereof. To begin with, as We have exhaustively discussed in relation to the appeal of Hernandez, we do not believe that mere membership in the Communist Party or in the CLO renders the member liable, either of rebellion or

of conspiracy to commit rebellion, because mere membership and nothing more merely implies advocacy of abstract theory or principle without any action being induced thereby; and that such advocacy becomes criminal only if it is coupled with action or advocacy of action, namely, actual rebellion or conspiracy to commit rebellion, or acts conducive thereto or evincing the same.

On the other hand, membership in the HMB (Hukbalahap) implies participation in an actual uprising or rebellion to secure, as the Huks pretend, the liberation of the peasants and laboring class from thraldom. By membership in the HMB, one already advocates uprising and the use of force, and by such membership he agrees or conspires that force be used to secure the ends of the party. Such membership, therefore, even if there is nothing more, renders the member guilty of conspiracy to commit rebellion punishable by law.

And when a Huk member, not content with his membership, does anything to promote the ends of the rebellion like soliciting contributions, or acting as courier, he thereby becomes guilty of conspiracy, unless he takes to the field and joins in the rebellion or uprising, in which latter case he commits rebellion.

In U.S. v. Vergara, infra, the defendants organized a secret society commonly known as the "Katipunan", the purpose of which was to overthrow the government by force. Each of the defendants on various times solicited funds from the people of Mexico, Pampanga. The Court held that the defendants were guilty of conspiracy and proposal to commit rebellion or insurrection and not of rebellion or insurrection itself. Thus, the Court ruled that:

From the evidence adduced in this case we are of the opinion that the said defendants are guilty, not of inciting, setting or foot, or assisting or engaging in rebellion, but rather of the crime of conspiring to overthrow, put down, and destroy by force the Government of the United States in the Philippine Islands, and therefore we find that said defendants, and each of them, did, together with others, in the months of February and March, 1903, in the Province of Pampanga, Philippine Islands, conspire to overthrow, put down, and to destroy by force the Government of the United States in the Philippine Islands. (U.S. v. Vergara, et al., 3 Phil. 432, 434.)

JUAN J. CRUZ

The court found him to be a Communist with various aliases, a member of the Central Committee of the CLO member of the Central Committee of the CPP and as such committed to the establishment of the dictatorship of the proletariat To the same effect is the testimony of Guillermo Calayag.

There is no evidence to connect him with the rebellion or to the conspiracy to commit rebellion. He should therefore be absolved of the charges contained in the information.

AMADO RACANDAY

The trial court found him guilty as a Communist, a Secretary and Executive Committee member of the CLO a communications center of the Communist Party, having been found in possession of letters from Federico Maclang to Salome Cruz, and solicitor of contributions for the Huks.

Racanday admits being a member of the Executive Committee of the CLO Editor of the Kidlat of the Government Workers Union, receiving copies of the Titis. Calayag testified that he was a member of the Central Committee of the Communist Party entrusted with the duty of receiving directives of the Regional Committee of the Communist Party.

The letters found in his possession are dated February 14, 1950, before the Communist Party went underground. We have been unable to find the evidence upon which the court bases its conclusion that he received contributions for the Huks. With these circumstances in mind, We are not convinced beyond reasonable doubt that as a Communist he took part in the conspiracy among the officials of the Communist Party to take part and support the rebellion of the Huks.

We are, therefore, constrained to absolve him of the charges filed against him.

GENARO DE LA CRUZ

The court found him to be a Communist since 1945, an officer of an organized Communist branch in Pasay City, a member of the Central Committee and Treasurer of the CLO. He admitted his membership and his position as member of the executive committee and treasurer of the CLO these facts being corroborated by the witness Guillermo Calayag.

His membership in the Communist Party dates as far back as the year 1945. As a communist, Genaro de la Cruz received quotas and monetary contributions coming from the areas under his jurisdiction, and one time he made a receipt from a member from Caloocan at the CLO headquarters at Azcarraga signing the receipt as "Gonzalo" which is one of his aliases. He also distributed copies of the "Titis" magazine. `

While his membership in the Communist Party plus his having received contributions for the party indicate that he is an active member, it was not shown that the contributions that he received from Communist Party members were received around the year 1950 when the Central Committee of the Communist Party had already agreed to conspire and go underground and support the Huk rebellion. Under these circumstances We cannot find him guilty of conspiracy to commit rebellion because of the lack of evidence to prove his guilt beyond reasonable doubt.

JULIAN LUMANOG

The court found him to be an organizer of HMB among the mill workers, solicited contributions for the HMB and Central Committee member of the CLO as per Testimony of Guillermo Calayag.

He admitted that he joined the Communist Party because he was made to believe that the Party is for the welfare of the laborers. He also admitted being a member of the Central Committee of the CLO Calayag testified that Lumanog organized the HMB units of the Communist Party in the Lumber Unions and attended a Communist meeting held by Maclang.

Domingo Clarin testified that he (Julian Lumanog) used to give the money collected by him to one Nicasio Pamintuan, one of the members of the HMB Special Unit Trigger Squad) in Manila for the use of the said unit.

Considering that the HMB was engaged in a rebellion to overthrow the government, it is evident that by giving his contributions he actually participated in the conspiracy to overthrow the government and should, therefore, be held liable for such conspiracy, and should be sentenced accordingly.

FERMIN RODILLAS

The trial court found that Fermin Rodillas was a member of the CPP and the CLO that his activities consisted in soliciting contributions, in cash and in kind, from city residents for the use of the HMB, turning over said collections to the Party; that he has given asylum to a wanted Hukbalahap at his house at Juan Luna St., Gagalangin, which house was used as Military post. The above findings of the court are fully supported by the testimony of Domingo Clarin.

Considering that while he has not actually taken part in the rebellion, he has shown sympathy with the cause by soliciting contributions for it and had given shelter to the Huks. We feel that the court was fully justified in finding him guilty, but We hold that he should be declared liable merely as a co- conspirator in the crime of conspiracy to commit rebellion, and should be sentenced accordingly.

BAYANI ESPIRITU

This appellant was found by the court to be a Communist, he having admitted membership in the

Communist Party since 1945; that his duties as a Communist was to help in the office of the

National FINANCE

Considering that the HMB was engaged in a rebellion to overthrow the government, it is evidentFINANCE Committee, assorting papers and written documents; that sometimes he accompanied the purchaser of medicines, shoes, papers, foodstuffs and clothing to be given to the Huks; that he is a member of the Communication Division of the CPP in Manila, in charge of distribution of letters or communications; that he admits having written to Salome Cruz, courier of the Communist Party, when he asked for his necessities, such as money and shoes, etc. The facts found by the court are sufficiently supported by the communications and evidence submitted by the prosecution. The exhibits show that he was in constant communication with the communists; serving them as courier. His oath as a member of the Communist Party was submitted in court and in it he admits obedience to all orders of the Party and to propagate the stability of the PKP. Considering that the PKP was engaged in an actual uprising against the constituted Government and that Bayani Espiritu was in constant communication with the Communist Party and served it as courier, We believe that the court was fully justified in finding him guilty. However, We believe that not having actually taken up arms in the uprising he may only be declared guilty of conspiracy to commit rebellion. TEOPISTA VALERIO The court below found that this appellant joined the Communists in 1938 in San Luis, Pampanga, under Casto Alejandrino, who later became her common-law husband; that her aliases are "Estrella" and "Star"; that she was found in possession of various documents written to top Communists like Alejandrino, Lava and Romy, as well as a letter from Taruc congratulating her for the delivers, of a son. " id="pdf-obj-71-19" src="pdf-obj-71-19.jpg">

Committee, assorting papers and written documents; that sometimes he

accompanied the purchaser of medicines, shoes, papers, foodstuffs and clothing to be given to the Huks; that he is a member of the Communication Division of the CPP in Manila, in charge of distribution of letters or communications; that he admits having written to Salome Cruz, courier of the Communist Party, when he asked for his necessities, such as money and shoes, etc.

The facts found by the court are sufficiently supported by the communications and evidence submitted by the prosecution. The exhibits show that he was in constant communication with the communists; serving them as courier. His oath as a member of the Communist Party was submitted in court and in it he admits obedience to all orders of the Party and to propagate the stability of the PKP.

Considering that the PKP was engaged in an actual uprising against the constituted Government and that Bayani Espiritu was in constant communication with the Communist Party and served it as courier, We believe that the court was fully justified in finding him guilty. However, We believe that not having actually taken up arms in the uprising he may only be declared guilty of conspiracy to commit rebellion.

TEOPISTA VALERIO

The court below found that this appellant joined the Communists in 1938 in San Luis, Pampanga, under Casto Alejandrino, who later became her common-law husband; that her aliases are "Estrella" and "Star"; that she was found in possession of various documents written to top Communists like Alejandrino, Lava and Romy, as well as a letter from Taruc congratulating her for the delivers, of a son.

Jose Taguiang testified that she was a member of the Provincial Committee of the CPP in Nueva

Ecija, later Chairman of the FINANCE

Jose Taguiang testified that she was a member of the Provincial Committee of the CPP inFINANCE Department, and then promoted to Finance Officer of the Central Luzon Committee. Alicia Vergara, a Huk courier, testified that she delivered letter from the mountains to Teopista Valerie, who was in turn also a courier. Without considering the close relationship that she had with top Communist Casto Alejandrino, We are satisfied that she herself was, aside from being a Huk courier, also a Huk, a member of the HMB from 1942 to 1951. As she was a Communist and at the same time a member of the HMB, and considering that the HMB was engaged in an uprising to uproot the legitimate government, there cannot be any question that she was in conspiracy with the other members of her Party against the constituted government. We hold, therefore, that the evidence proves beyond reasonable doubt that she is guilty of conspiracy to commit rebellion. DEFENDANTS NOT INCLUDED IN DECISION In Crim. Case No. 15841 (G.R. No. L-6025) the charge against Guillermo Capadocia, Mariano P. Balgos, Alfredo B. Saulo and Jacobo Espino was dismissed because they have not been apprehended at the time of the trial. PEOPLE VS. EVANGELISTA, 57 PHIL. 354 AND REPUBLIC ACT NO. 1700, DISTINGUISHED In the case at bar the prosecution is for actual rebellion which consists in rising publicly and taking aims against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippines, or any part thereof, etc., a crime defined in Article 134 of the Revised Penal Code; whereas Evangelista was charged and convicted for inciting to rebellion under Art. 138, Revised Penal Code (formerly Sec. 2, Act No. 292). As the specific charge against appellants is that of rising up in arms in actual rebellion against the Government, they cannot be held guilty of inciting the people to arms under Article 138, which is a different offense. On the other hand, Rep. Act 1700, known as the Anti-subversion Act, which penalizes membership in any organization or association committed to subvert the Government, cannot be applied to the appellants because said Act was approved on June 20, 1957 and was not in force at the time of the commission of the acts charged against appellants (committed 1945-1950) ; the Anti-Subversion Act punishes participation or membership in an organization committed to overthrow the duly constituted Government, a crime district from that of actual rebellion with which appellants are charged. CONCLUSION WHEREFORE, in Criminal Case No. 15841 (G.R. No. L-6025) defendants-appellants Amado V. Hernandez, Juan J. Cruz, Amado Racanday and Genaro de la Cruz are absolved from the charges contained in the information, with their proportionate share of the costs de oficio. The defendants- appellants Julian Lumanog and Fermin Rodillas in Criminal Case No. 15841 (G.R. No. L-6025) and the defendants-appellants Bayani Espiritu and Teopista Valerio in Criminal Case No. 15479 (G.R. No. L-6026) are hereby found guilty of the crime of conspiracy to commit rebellion, as defined and punished in Article 136 of the Revised Penal Code, and each and everyone of them is hereby " id="pdf-obj-72-7" src="pdf-obj-72-7.jpg">

Department, and then promoted to Finance Officer of the

Central Luzon Committee. Alicia Vergara, a Huk courier, testified that she delivered letter from the mountains to Teopista Valerie, who was in turn also a courier.

Without considering the close relationship that she had with top Communist Casto Alejandrino, We are satisfied that she herself was, aside from being a Huk courier, also a Huk, a member of the HMB from 1942 to 1951. As she was a Communist and at the same time a member of the HMB, and considering that the HMB was engaged in an uprising to uproot the legitimate government, there cannot be any question that she was in conspiracy with the other members of her Party against the constituted government. We hold, therefore, that the evidence proves beyond reasonable doubt that she is guilty of conspiracy to commit rebellion.

DEFENDANTS NOT INCLUDED IN DECISION

In Crim. Case No. 15841 (G.R. No. L-6025) the charge against Guillermo Capadocia, Mariano P. Balgos, Alfredo B. Saulo and Jacobo Espino was dismissed because they have not been apprehended at the time of the trial.

PEOPLE VS. EVANGELISTA, 57 PHIL. 354 AND REPUBLIC ACT NO. 1700, DISTINGUISHED

In the case at bar the prosecution is for actual rebellion which consists in rising publicly and taking aims against the Government for the purpose of removing from the allegiance to said Government or its laws, the territory of the Philippines, or any part thereof, etc., a crime defined in Article 134 of the Revised Penal Code; whereas Evangelista was charged and convicted for inciting to rebellion under Art. 138, Revised Penal Code (formerly Sec. 2, Act No. 292). As the specific charge against appellants is that of rising up in arms in actual rebellion against the Government, they cannot be held guilty of inciting the people to arms under Article 138, which is a different offense.

On the other hand, Rep. Act 1700, known as the Anti-subversion Act, which penalizes membership in any organization or association committed to subvert the Government, cannot be applied to the appellants because said Act was approved on June 20, 1957 and was not in force at the time of the commission of the acts charged against appellants (committed 1945-1950) ; the Anti-Subversion Act punishes participation or membership in an organization committed to overthrow the duly constituted Government, a crime district from that of actual rebellion with which appellants are charged.

CONCLUSION

WHEREFORE, in Criminal Case No. 15841 (G.R. No. L-6025) defendants-appellants Amado V. Hernandez, Juan J. Cruz, Amado Racanday and Genaro de la Cruz are absolved from the charges contained in the information, with their proportionate share of the costs de oficio. The defendants- appellants Julian Lumanog and Fermin Rodillas in Criminal Case No. 15841 (G.R. No. L-6025) and the defendants-appellants Bayani Espiritu and Teopista Valerio in Criminal Case No. 15479 (G.R. No. L-6026) are hereby found guilty of the crime of conspiracy to commit rebellion, as defined and punished in Article 136 of the Revised Penal Code, and each and everyone of them is hereby

sentenced to suffer imprisonment for five years, four months and twenty-one days of prision correccional, and to pay a fine of P5,000.00, with subsidiary imprisonment in case of insolvency and to pay their proportional share of the costs. So ordered.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes, Dizon and Makalintal, JJ., concur. Padilla, Barrera and Regala, JJ., took no part.

Republic of the Philippines

SUPREME COURT

Manila

SECOND DIVISION

G.R. No. 100231. April 28, 1993.

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RODRIGO DASIG @ KA RUBIN DAKU @ ARMAND; EDWIN NUÑEZ Y TABANAS @ MABI; ALVIN DOE @ AL @ KA ALVIN; ROGER DOE @ KA JAMES @ KA PEPE; TUDING ANDRINO @ KA ERMI @ KA ROEL @ KA GRINGO MONTAYRE; RUBEN DOE @ KA RUBEN @ KA JOJI @ INO ECHAVEZ; ANASTACIO BANGKAL @ KA JUNIOR; AND CARLITO MAGASIN @ BOBBY, accused, RODRIGO DASIG, accused-appellant.

The Solicitor General for plaintiff-appellee.

Kinaadman and Archival for accused-appellant.

SYLLABUS

1.

REMEDIAL LAW; EVIDENCE; CONFESSION, AS A RULE, ADMISSIBLE; EXCEPTION; NOT

APPLICABLE IN CASE AT BAR. — The settled jurisprudence on the matter is that a confession is admissible until the accused successfully proves that it was given as a result of violence, intimidation, threat or promise of reward or leniency. Appellant relies on the much abused claim that his extra-judicial confession was legally defective and hence, should not have been admitted and considered by the trial judge. This accusation is whimsical and obviously a mere refuge for appellant's turnabout. In an attempt to avoid criminal liability, he now questions the integrity of the police authorities and the reputation of the lawyer who stood by him during the investigation. Indubitably established and now a matter of record is the fact that appellant was assisted by Atty. Parawan who even signed the former's sworn declarations. It is likewise a matter of record that before appellant made his extra-judicial confession, he was first asked if he was amenable to the services of Atty. Parawan to which query he answered affirmatively. Finally, the alleged use of force and intimidation has not been substantiated by evidence other than his self-serving testimony. as has been pointed out, such allegation is another naive effort of appellant to back track from his prior voluntary admission of guilt. Evidently, the taking of his extra-judicial confession was done with regularity and legality.

  • 2. CRIMINAL LAW; REBELLION; ABSORBS THE CRIME OF DIRECT ASSAULT WHEN DONE IN

FURTHERANCE THEREOF. — The crime of rebellion consists of may acts. It is a vast movement of men and a complex net of intrigues and plots. Acts committed in furtherance of rebellion though crimes in themselves are deemed absorbed in one single crime of rebellion. The act of killing a police officer, knowing too well that the victim is a person in authority is a mere component or ingredient of rebellion or an act done in furtherance of the rebellion. It cannot be made a basis of a separate charge.

  • 3. ID.; ID.; NOT COVERED BY INDETERMINATE SENTENCE LAW (R.A. 4203). — The

Indeterminate Sentence Law is not applicable to persons convicted of rebellion (Sec. 2, R.A. 4203), contrary to the insinuation of the Solicitor General. Article 135 of the Revised Penal Code imposes the penalty of prision mayor and a fine not exceeding P20,000.00 to any person who promotes, maintains, or heads a rebellion.

D E C I S I O N

NOCON, J p:

Appellant, Rodrigo Dasig is now before Us to plead the reversal of his conviction by the Regional Trial Court, Branch 28, Mandaue City finding him guilty of Murder with Direct Assault.

He was charged together with Edwin Nuñez and 6 others who are still at large, in an information which reads:

"That on or about the 4th day of August, 1987, in the city of Mandaue, of this Honorable Court, the aforenamed accused, conspiring and confederating together and helping one another, with intent to kill, treachery, evident premeditation, abuse of superior strength and use of motor vehicle, all armed with unlicensed firearms, did then and there wilfully, unlawfully and feloniously attack, assault and shoot one Redempto Manatad, a police officer on traffic duty, at his vital portion which caused his death soon thereafter, knowing beforehand that the victim was a policeman who was then in the performance of his official duties."

Upon arraignment, appellant and Edwin Nuñes entered a plea of "not guilty." However, after the prosecution had presented its first witness, accused Nuñes changed his plea of "not guilty" to "guilty." Hence, the lower court held in abeyance the promulgation of a judgment against said

accused until the prosecution had finished presenting its evidence. While trial was still ongoing, Nuñez died on March 10, 1989, thereby extinguishing his criminal liability.

The facts surrounding this case show that in the afternoon of August 4, 1987, Pfc. Redempto

Manatad, Pfc. Ninah Tizon and Pfc. Rene Catamora were tasked by their commanding officer to assist in canning the traffic at M.N. Briones and Bonifacio Streets in Mandaue City. Pfc. Tizon controlled the traffic lighting facility; Pfc. Manatad manned the traffic; while Pfc. Catamora acted as

back-up and posted himself at Norkis TRADING

accused until the prosecution had finished presenting its evidence. While trial was still ongoing, Nuñez diedTRADING building. At about 4:00 o'clock in the afternoon, Pfc. Catamora noticed eight (8) persons, one of whom he identified as Edwin Nuñez, acting suspiciously. He noticed one of them giving instructions to two of the men to approach Pfc. Manatad. He followed the two, but sensing that they were being followed, they immediately proceeded to the middle of the road and engaged Pfc. Catamora to a gun battle. At that instant, Pfc. Catamora heard a series of shots from the other group and thereafter saw Pfc. Manatad sprawled on the ground. Being out-numbered and to save his own life, Pat. Catamora sought refuge at the nearby BIR Office from where he saw two (2) persons take Pfc. Manatad's gun and again fired at him to make sure that he is dead while the rest of the group including Nuñes acted as back up. Thereafter, the Nuñes group commandeered a vehicle and fled from the scene of the shooting. Pfc. Rene Catamora testified that he can identify accused-appellant Nuñes because of a mole at the bridge of his nose near the left eye which he noticed when the accused passed 2 or 3 meters in front of him together with his companions. On August 16, 1987, two teams of police officers were tasked to conduct surveillance on a suspected safehouse of members of the sparrow unit located in Peace Valley, Cebu City. Upon reaching the place, the group saw Rodrigo Dasig and Edwin Nuñes trying to escape. The team of Capt. Antonio Gorre captured Nuñes and confiscated a .45 caliber revolver with 3 magazines and ammunitions, while the group of Sgt. Ronald Arnejo pursued Dasig, who threw a grenade at his pursuers, but was shot on his left upper arm and subsequently apprehended. A .38 caliber revolver with 17 live ammunitions were confiscated from him. Thereafter, Dasig was brought to the hospital for treatment, while Nuñes was turned over to the Metrodiscom for investigation. Meanwhile, Dasig was interrogated by M/Sgt. Ariston Ira of the PC Criminal Investigation Service on August 19, 1987 at his hospital bed at the Lapulapu Army Hospital in Cebu City. Assisting Dasig during the interrogation was Atty. Fortunato Parawan of the Creer Law Office, who was requested by the military to represent appellant who did not have a lawyer. Before the start of the interrogation, Atty. Parawan asked appellant whether he was willing to avail of his services, to which appellant agreed. M/Sgt. Ira then appraised Dasig of his constitutional rights. The interrogation was conducted in Cebuano upon appellant's request. Dasig confessed that he and the group of Edwin Nuñes killed Pfc. Manatad. He likewise admitted that he and Nuñes were members of the sparrow unit and the their aliases were "Armand" and "Mabi," respectively. The extra-judicial confession of appellant marked as Exhibit "J" 2 was signed by him on every page thereof with the first page containing a certification likewise signed by him, which states: "I hereby certify that the herein statement is free and voluntary, and that I am assisted by my counsel in the course of this investigation" followed by the signed conformity of Atty. Parawan. The extra-judicial confession was subscribed and sworn to before Cebu City Asst. Fiscal Salvador Solima. In the present appeal, Dasig contends that the procedure by which his extra-judicial confession was taken was legally defective, and contrary to his Constitutional rights. He further contends that assuming he conspired in the killing of Pfc. Manatad, he should be convicted at most of simple rebellion and not murder with direct assault. " id="pdf-obj-75-11" src="pdf-obj-75-11.jpg">

building.

At about 4:00 o'clock in the afternoon, Pfc. Catamora noticed eight (8) persons, one of whom he identified as Edwin Nuñez, acting suspiciously. He noticed one of them giving instructions to two of the men to approach Pfc. Manatad. He followed the two, but sensing that they were being followed, they immediately proceeded to the middle of the road and engaged Pfc. Catamora to a gun battle. At that instant, Pfc. Catamora heard a series of shots from the other group and thereafter saw Pfc. Manatad sprawled on the ground. Being out-numbered and to save his own life, Pat. Catamora sought refuge at the nearby BIR Office from where he saw two (2) persons take Pfc. Manatad's gun and again fired at him to make sure that he is dead while the rest of the group including Nuñes acted as back up. Thereafter, the Nuñes group commandeered a vehicle and fled from the scene of the shooting. Pfc. Rene Catamora testified that he can identify accused-appellant Nuñes because of a mole at the bridge of his nose near the left eye which he noticed when the accused passed 2 or 3 meters in front of him together with his companions.

On August 16, 1987, two teams of police officers were tasked to conduct surveillance on a suspected safehouse of members of the sparrow unit located in Peace Valley, Cebu City. Upon reaching the place, the group saw Rodrigo Dasig and Edwin Nuñes trying to escape. The team of Capt. Antonio Gorre captured Nuñes and confiscated a .45 caliber revolver with 3 magazines and ammunitions, while the group of Sgt. Ronald Arnejo pursued Dasig, who threw a grenade at his pursuers, but was shot on his left upper arm and subsequently apprehended. A .38 caliber revolver with 17 live ammunitions were confiscated from him.

Thereafter, Dasig was brought to the hospital for treatment, while Nuñes was turned over to the Metrodiscom for investigation. Meanwhile, Dasig was interrogated by M/Sgt. Ariston Ira of the PC Criminal Investigation Service on August 19, 1987 at his hospital bed at the Lapulapu Army Hospital in Cebu City. Assisting Dasig during the interrogation was Atty. Fortunato Parawan of the Creer Law Office, who was requested by the military to represent appellant who did not have a lawyer. Before the start of the interrogation, Atty. Parawan asked appellant whether he was willing to avail of his services, to which appellant agreed. M/Sgt. Ira then appraised Dasig of his constitutional rights. The interrogation was conducted in Cebuano upon appellant's request.

Dasig confessed that he and the group of Edwin Nuñes killed Pfc. Manatad. He likewise admitted that he and Nuñes were members of the sparrow unit and the their aliases were "Armand" and "Mabi," respectively. The extra-judicial confession of appellant marked as Exhibit "J" 2 was signed by him on every page thereof with the first page containing a certification likewise signed by him, which states: "I hereby certify that the herein statement is free and voluntary, and that I am assisted by my counsel in the course of this investigation" followed by the signed conformity of Atty. Parawan. The extra-judicial confession was subscribed and sworn to before Cebu City Asst. Fiscal Salvador Solima.

In the present appeal, Dasig contends that the procedure by which his extra-judicial confession was taken was legally defective, and contrary to his Constitutional rights. He further contends that assuming he conspired in the killing of Pfc. Manatad, he should be convicted at most of simple rebellion and not murder with direct assault.

Appellant also claims that the custodial interrogation was done while he was still very sick and consequently, he could not have fully appreciated the wisdom of admitting such a serious offense. That even with the presence of counsel, his extra-judicial confession is inadmissible in evidence as said counsel did not actively assist him and advise him of his rights. In effect, his presence was merely to give a semblance of legality to the proceedings and not to protect appellant against possible abuses of the investigator. Dasig, likewise questions the sincerity of Atty. Parawan in protecting his rights considering that the latter is a known anti-Communist advocate and that the law firm to which he belongs has represented high ranking officers of the Armed Forces of the Philippines.

We find the argument specious. Fiscal Salvador Solima in his certification, Exhibit "J-7-B," stated that he had personally examined the affiant and that he is convinced that the latter's statement was free and voluntary and that the affiant signed the same in his presence and swore under oath as to the veracity of everything therein. Atty. Fortunato L. Parawan also testified that he assisted the affiant from the start of the investigation up to its termination. Atty. Parawan testified thus:

"Q Who introduced Rodrigo Dasig to you?

A I inquired from the personnel of the hospital the whereabout of Rodrigo Dasig and I introduced myself as a lawyer. So they informed me the room of Rodrigo Dasig. At that time I introduced myself as a lawyer who came to assist the person of Rodrigo Dasig. Once we had a confrontation with Rodrigo Dasig, I asked him whether he was willing to get me as his lawyer in that investigation. Then he told me yes.

Q Did he tell you whether he as a counsel of his own choice?

A No.

xxx xxx xxx

Q In other words he accepted your services as counsel in connection with that investigation which was about to be made?

A Yes.

Q Who are the persons present at that time?

A There were guards outside and inside. There was a man from the CIS in the person of Sgt. Ira, myself and Dasig.

Q What happened after that?

A The CIS started the investigation.

Q You mean this Ariston Ira?

A Yes.

Q Before Ariston Ira conducted the investigation was Dasig informed of his constitutional rights to remain silent, to counsel and if he chooses to testify or say something, that statement of his will be used against or in his favor in the court of justice?

A Yes. He was willing to get me as counsel in that investigation.

Q After he was informed of his constitutional rights what transpired next?

A The investigation started.

Q Were you present at the very start of that investigation?

A Yes. I was present from the start until it was finished.

Q Was that reduced to writing?

A Yes.

xxx xxx xxx

Q You said you were present during the entire investigation. Were the answers of the accused, Rodrigo Dasig, to the questions propounded by the investigator voluntary?

A Yes, they voluntary.

Q After the investigation was finished what transpired next?

A After the investigation, I think that was already past 3:00 or 4:00, we proceeded to the office of the City Fiscal at F. Ramos St., Cebu City and then we proceeded to the Office of Fiscal Solema (sic) and then it was subscribed there before Fiscal Solema (sic).

Q Were you present during the proceeding?

A I was also present."

We do not find any reason to doubt the factual findings and conclusions of the trial court that the extra-judicial confession of the appellant was voluntarily made. Said the trial court:

"The prosecution's evidence clearly shows that herein accused during his investigation was properly informed and appraised of his constitutional right to remain silent and to have a competent and independent counsel preferably of his own choice but since at that time he did not signify his intention to retain a lawyer of his own choice, so he was provided with a lawyer in the person of Atty. Fortunato Parawan of the Creer Law Office who was available at that time, to assist him during the custodial investigation conducted by T/Sgt. Ariston L. Ira at his hospital bed at Camp Lapulapu Army Station Hospital, Cebu City where he was confined after being hit on his upper left arm and in fact, Atty. Parawan only consented to assist herein accused after the latter has answered in the affirmative to his question as to whether he would be amenable to be assisted by him as his counsel of his own choice.

"The prosecution's evidence further show that Atty. Fortunato Parawan after consenting to be his counsel was with him when his extra-judicial confession or sworn statement was subscribed and sworn to by him before Assistant City Fiscal Salvador O. Solima of the Cebu City Fiscal's Office who, before accused has actually affixed his signature on each and every pages of his extra-judicial confession, has informed him (accused) of his constitutional rights and has explained the contents of his extra-judicial confession.

"Moreover, per certification made by Assistant City Fiscal Salvador O. Solima of the Cebu City Fiscal's Office, clearly shows that accused in executing the same has done so voluntarily and after having understood the contents thereof which is in the visayan language, a language known to him, found on the last page thereof now marked as Exhibit "J-7-B."

"Furthermore, this sworn statement of accused Dasig is collaborated by the sworn statement of his co-accused Edwin Nuñes dated August 18, 1987 which is sworn and subscribed to before City Fiscal Jopelinito Pareja of the city Fiscal's Office of Cebu City."

The settled jurisprudence on the matter is that a confession is admissible until the accused successfully proves that it was given as a result of violence, intimidation, threat or promise of reward or leniency. 5 The case of People of the Philippines v. Parojinog is four square to the case at bar. In Parojinog this court had this to say:

"Anent his claim that Atty. Fuentes was not his choice, Section 12 (1) of Article III of the 1987 Constitution provides:

'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 provided with one. These rights cannot be waived except in writing and in the presence of counsel.'

"It is very clear from the aforequoted provision that a person under investigation for the commission of an offense may choose his own counsel but if he cannot afford the services of counsel, he must be provided with one. While the initial choice of the lawyer in the latter case is naturally lodged in the police investigators, the accused really has the final choice as he may reject the counsel chosen for him and ask for another one. In the instant case, the records show that no objection was voiced by the accused throughout the entire proceedings of the investigation and afterwards when he subscribed to its veracity before City Prosecutor Luzminda V. Uy. Thus, he apparently acquiesced to the choice of the investigators. He complained for the first time that Atty. Fuentes was not his choice only during trial. Thus it was too late."

Appellant relies on the much abused claim that his extra-judicial confession was legally defective and hence, should not have been admitted and considered by the trial judge. This accusation is whimsical and obviously a mere refuge for appellant's turnabout. In an attempt to avoid criminal liability, he now questions the integrity of the police authorities and the reputation of the lawyer who stood by him during the investigation. Indubitably established and now a matter of record is the fact that appellant was assisted by Atty. Parawan who even signed the former's sworn declarations. It is likewise a matter of record that before appellant made his extra-judicial confession, he was first asked if he was amenable to the services of Atty. Parawan to which query he answered affirmatively. Finally, the alleged use of fore and intimidation has not been substantiated by evidence other than his self-serving testimony. As has been pointed out, such allegation is another naive effort of appellant to back track from his prior voluntary admission of guilt. Evidently, the taking of his extra- judicial confession was done with regularity and legality.

Nevertheless, there is merit in appellant's argument that granting he is guilty, what he committed was a political crime of simple rebellion, and hence he should not be convicted of murder with direct assault.

The Solicitor General agrees with the accused-appellant on this point as manifested in the People's brief, which We quote:

"However, as correctly pointed by appellant, the lower court erroneously convicted him of Murder with Assault Upon a Person in Authority, instead of Rebellion.

"Rebellion is committed by taking up arms against the government, among other means. (Article 135, Revised Penal Code). In this case, appellant not only confessed voluntarily his membership with the sparrow unit but also his participation and that of his group in the killing of Pfc. Manatad while manning the traffic in Mandaue City in the afternoon of August 4, 1987. It is of judicial notice that the sparrow unit is the liquidation squad of the New People's Army with the objective of overthrowing the duly constituted government. It is therefore not hard to comprehend that the killing of Pfc. Manatad was committed as a means to or in furtherance of the subversive ends of the NPA. Consequently, appellant is liable for the crime of rebellion, not murder with direct assault upon a person in authority."

The crime of rebellion consists of many acts. It is a vast movement of men and a complex net of intrigues and plots. Acts committed in furtherance of rebellion though crimes in themselves are deemed absorbed in one single crime of rebellion. 9 The act of killing a police officer, knowing too well that the victim is a person in authority is a mere component or ingredient of rebellion or an act done in furtherance of the rebellion. It cannot be made a basis of a separate charge.

Moreover, in the case of People v. Mangallan 10 We held that where the accused who was charged with murder admitted his membership with the NPA and the killing of a suspected PC informer, the crime committed is not murder but rebellion punishable under Articles 134 and 135 of the Revised Penal Code.

As to the proper imposable penalty, the Indeterminate Sentence Law is not applicable to persons convicted of rebellion (Sec. 2, R.A. 4203), contrary to the insinuation of the Solicitor General. Article 135 of the Revised Penal Code imposes the penalty of prision mayor and a fine not exceeding P20,000.00 to any person who promotes, maintains, or heads a rebellion. However, in the case at bar, there is no evidence to prove that appellant Dasig headed the crime committed. As a matter of fact he was not specifically pinpointed by Pfc. Catamora as the person giving instructions to the group which attacked Pfc. Manatad.

Appellant merely participated in committing the act, or just executed the command of an unknown leader. Hence, he should be made to suffer the penalty of imprisonment of eight (8) years of prision mayor. For the resulting death, appellant is likewise ordered to pay the heirs of Pfc. Manatad FIFTY THOUSAND PESOS (P50,000.00) as civil indemnity.

Premises considered, We uphold the findings of the trial court that the extra-judicial confession was legally obtained. However, appellant being a confessed member of the sparrow unit, the liquidation squad of the New People's Army whose objective is to overthrow the duly constituted government, the crime committed is simple rebellion and not murder with direct assault.

WHEREFORE, accused Rogelio Dasig is found guilty of participating in an act of rebellion beyond reasonable doubt and is hereby sentenced to suffer the penalty of imprisonment of eight (8) years of prision mayor, and to pay the heirs of Pfc. Redempto Manatad, P50,000.00 as civil indemnity.

SO ORDERED.

Republic of the Philippines

G.R. No. 1755

SUPREME COURT

March 4, 1922

Manila

EN BANC

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee, vs. GRACIANO L. CABRERA, ET AL., defendants-appellants.

Vicente Sotto for appellants. Acting Attorney-General Tuason for appelle.

MALCOLM, J.:

No more serious violation of the criminal law of these Island and nor more wanton defiance of the law by the very men whose sworn duty it was to enforce the law, has ever been brought before this court than is now presented for consideration in this case. To avenge a fancied wrong, member of the Philippine Constabulary murdered six member of the police force of the City of Manila, among them the respected Captain William E. Wichman, assistant chief of police, and two private citizens, and gravely wounded three other civilians.

To the task of reviewing the facts, of preparing an opinion on the pertinent issues, and of rendering judgement, if no reversible error be found, regarding the appropriate penalty, we no propose to address ourselves.

STATEMENT OF THE CASE AND OF THE FACTS

On December 13, 1920, policemen of the city of Manila arrested a woman who was a member of the household of a Constabulary soldier stationed at the Santa Lucia Barracks in this city. The arrest of the woman was considered by some of the Constabulary soldiers at Santa Lucia Barracks as an outrage committed by the policemen, and it instantly gave rise to friction between members of the Manila police department and members of the Philippine Constabulary.

The next day, December 14, at about sunset, a policeman named Artemio Mojica, posted on Calle Real, in the District of Intramuros, city of Manila, had an encounter with various Constabulary soldiers which resulted in the shooting of private Macasinag of the Constabulary. Private Macasinag was seriously, and as afterwards appeared, mortally wounded.

The encounter between policeman Mojica and other companions of the Manila force and private Macasinag and other companions of the Constabulary, with its grave consequences for the Constabulary soldier, engendered a deep feeling of resentment on the part of the soldiers at Santa Lucia Barracks. This resentment was soon converted into a desire for revenge against the police force of the city of Manila. The officers of the Constabulary appear to have been aware of the state of excitement among the soldiers at Santa Lucia Barracks because almost immediately after the shooting of private Macasinag, Captain Page, the commanding officer of the barracks, increased the number of guards, and confined all the soldiers in the barracks.

During the afternoon of the next day, December 15, 1920, a rumor spread among the soldiers in San Lucia Barracks to the effect that policeman Mojica was allowed to continue on duty on the streets of Intramuros and that private Macasinag had died as a consequence of the shot he received the night before. This rumor contributed in no small degree in precipitating a movement for reprisal by the Constabulary soldiers against the policeman.

At about 7 o'clock in the evening of the same day, December 15, 1920, corporal Ingles of the Fourth Company approached private Nicolas Torio who was then the man in charge of quarters, and asked him to let then the man in charge of quarters of the Fourth Company. Private Torio was easily persuaded to permit private Francisco Garcia of the Second Company to saw out the window bars of the quarters in his charge, and to allow soldiers to escape through the window with rifles and ammunition under the command of their sergeants and corporals. When outside of the quarters, these soldiers divided into groups for attack upon the city police force.

On platoon of Constabulary soldiers apparently numbering about ten or twelve, on Calle Real, Intramuros, fired in the direction of the intersection of Calles Real and Cabildo where an American policeman named Driskill was stationed, and was talking with a friend named Jacumin, a field clerk in the United States Army. These two men were shot and died soon afterwards. To the credit of policeman Driskill be it said, that although a dying conditions and in the face of overwhelming odds, he valiantly returned the fire with his revolver. Jacumin was killed notwithstanding that in response to the command of the Constabulary, "Hands up!." he elevated both arms.

A street car happened to stop at this time at the corner of Calles Real and Cabildo. Without considering that the passengers in the car were innocent passersby, the Constabulary squad fired a

volley into the car, killing instantly the passenger named Victor Torres and gravely wounding three other civilian passengers, Gregorio Cailles, Vicente Antonio, and Mariano Cortes. Father Jose Tahon, a priest of the Cathedral of Manila, proved himself a hero on this occasion for, against the command of the Constabulary, he persisted in persuading them to cease firing and advanced in order the he might administer spiritual aid to who had been wounded.

The firing on Calle Real did not end at that time. Some minutes later, Captain William E. Wichman, assistant chief of police of the city of Manila, riding in a motorcycle driven by policeman Saplala, arrived at the corner of Calles Real and Magallanes in Intramuros, and a volley of shots by Constabulary soldiers resulted in the instantaneous death of Captain Wichman and the death shortly afterwards of patrolman Saplala.

About the same time, a police patrol came from the Meisic police station. When it was on Calle Real near Cabildo, in Intramuros, it was fired upon by Constabulary soldiers who had stationed themselves in the courtyard of the San Agustin Church. This attack resulted in the death of patrolmen Trogue and Sixon.

Another platoon of the Constabulary, between thirty and forty in number, had, in the meantime, arranged themselves in a firing line on the Sunken Gardens on the east side of Calle General Luna opposite the Aquarium. From this advantageous position the Constabulary fired upon the motorcycle occupied by sergeant Armada and given by policeman Policarpio who with companions were passing along Calle General Luna in front of the Aquarium going in the direction of Calle Real, Intramuros. As a result of the shooting, the driver of the motorcycle, policeman Policarpio, was mortally wounded. This same platoon of Constabulary soldiers fired several volleys indiscriminately into the Luneta police station, and the office of the secret service of the city of Manila across Calles General Luna and Padre Burgos, but fortunately no one was injured.

General Rafael Crame, Chief of the Constabulary, and Captain Page, commanding officer of the Santa Lucia Barracks, rounded up some of the soldiers one after another returned to the Barracks where they were disarmed. No list of the names of these soldiers was, however, made.

In the morning of the next day, December 16, 1920, Colonel Lucien R. Sweet of the Constabulary in compliance with order from General Crame, and assisted by other Constabulary officers and later by the fiscals of the city of Manila, commenced an investigation of the events of the night before. He first ordered that all the soldiers in Santa Lucia Barracks, at that time numbering some one hundred and eighty, be assembled on the parade ground, and when this was done, the soldiers were separated into their respective companies. Then Colonel Sweet, speaking English, with assistance of Captain Silvino Gallardo, who interpreted his remarks into Tagalog, made two brief statements. The first was, in effect: "Those of you who for one reason or another left the Barracks last night, may step forward." Responding to this order, nearly one hundred moved to the front. Thereupon, Colonel Sweet said to these: "For the good of the body to which you belong, of your companions, and of yourselves, those who participated in the riot last night may take another step forward." Seventy- three soldiers then advance a step. The names of four other who took part but who were not present were taken down by Captain Gallardo.

What occurred on the occasion above described can best be told in the exact language of Colonel Sweet:

After conferring or speaking among themselves, for probably two minutes, I inferred or observed from their attitude that they were waiting for a call to order. Accordingly, I called

them to order and some eight-five took one step forward. After that I called them to attention;

  • I advised them that for the good of themselves and their companions who did not participate

in the shooting of the night before, for the good of the body and also of all parties interested,

those who took part in the shooting of the night before should take another step forward. I spoke so rapidly that it is impossible for me to repeat exactly what I told them that morning. I spoke them that morning approving the decision of those of them who took one step forward.

  • I believe that some seventy-two (72) took one step forward as admitting that they took part in

the shooting on the night before. I then asked if they brought with the, ammunition or arms not belonging to them. They answered viva voce that each one of them carried their own arms and ammunition. I asked them if there was any one who was with them the night before but who was not present that morning; whereupon, one or two soldiers mentioned the names of some who were not then present. That is how the total number of those who left and who were not in the Barracks reached seventy-seven (77).

The statements of the seventy-seven soldiers were taken in writing during the afternoon of the same day, December 16. The questionnaire prepared by the fiscal of the City of Manila was the same for each soldier, and was filled out either in English or Spanish. The questions and answers were, however, when requested by the soldiers, translated into their dialects Each statement was signed by the soldier making it in the presence of either two or three witnesses.

Although the answers to the questions contained in these statements vary in phraseology, in substance they are the same. One of them, the first in numerical order, that of sergeant Graciano L. Cabrera, taken in Spanish and interpreted into Tagalog, may be selected as typical of the rest, and is here literally transcribed:

  • 1. Give your name, age, status, occupation, and residence. — Graciano L. Cabrera, 24

years old, single, sergeant of the first company of the General Service, of the Constabulary, residing in Santa Lucia Barracks.

  • 2. To what company of the Philippine Constabulary do you belong? — First company,

General Service of the Constabulary.

  • 3. Where were you garrisoned yesterday afternoon, December 15, 1920? — In the Santa

Lucia Barracks.

  • 4. Did you leave the barracks at about 7 o'clock yesterday evening? — Yes, sir.

  • 5. For what reason, and where did you go? — We went in search of the policemen and

secret service men of Manila. It has been sometime now since we have been having standing grudge against the police of Manila. The wife of one of our comrades was first arrested by the policemen and then abused by the same; and not content with having

abused her, they gave this woman to an American; after this incident, they arrested two soldiers of the Constabulary, falsely accusing them of keeping women of bad reputation; after this incident, came the shooting of Macasinag, a shooting not justified, because we have come to know that Macasinag did nothing and the policemen could have arrested him if they desired. Moreover, the rumor spread among us that the police department of Manila had given orders to the policemen to fire upon any constabulary soldier they found in the streets, and we believe that the rumor was not without foundation since we noticed that after the Macasinag affair, the policemen of Manila, contrary to the usual practice, were armed with carbines or shot-guns. For this reason we believed that if we did not put an end to these abuses of the policemen and secret service men, they would continue abusing the Constabulary. And as an act of vengeance we did what we had done last night.

  • 6. How did you come to join your companions who rioted last night? — I saw that almost all

the soldiers were jumping through the window and I was to be left along in the barracks and so I followed.

  • 7. Who asked you to join it? — Nobody.

  • 8. Do you know private Crispin Macasinag, the one who was shot by the Manila police the

night before last on Calle Real? — Yes, sir, I know him because he was our comrade.

  • 9. Were you offended at the aggression made on the person of said soldier? — Indeed, yes,

not only was I offended, but my companions also were.

  • 10. State how many shots you fired, if any, during the riot last night. — I cannot tell precisely

the number of shots I fired because I was somewhat obfuscated; all I can assure you is that I

fired more than once.

  • 11. Do you know if you hit any policemen or any other person? — If so, state whether the

victim was a policemen or any civilian.

  • 12. State the streets of the city where you fired shots. — I cannot give an exact ACCOUNT

abused her, they gave this woman to an American; after this incident, they arrested two soldiersACCOUNT of the streets where I fired my gun. I had full possession of my faculties until I reached Calle Victoria; afterwards , I became aware that I was bathed with perspiration only upon reaching the barracks. 13. What arms were you carrying and how much ammunition or how many cartridges did you use? — I carried a carbine; I cannot tell precisely the number of cartridges I used; however, I placed in my pocket the twenty cartridges belonging to me and I must have lost some on the way. 14. How did you MANAGE to leave the barracks? — By the, window of the quarters of the Fourth Company, through the grating which I found cut off. 15. Are you above statements made by you, voluntarily freely, and spontaneously given? — Yes, sir. " id="pdf-obj-84-31" src="pdf-obj-84-31.jpg">

of the streets where I fired my gun. I had full possession of my faculties until I reached Calle

Victoria; afterwards , I became aware that I was bathed with perspiration only upon reaching the barracks.

  • 13. What arms were you carrying and how much ammunition or how many cartridges did you

use? — I carried a carbine; I cannot tell precisely the number of cartridges I used; however, I

placed in my pocket the twenty cartridges belonging to me and I must have lost some on the way.

abused her, they gave this woman to an American; after this incident, they arrested two soldiersACCOUNT of the streets where I fired my gun. I had full possession of my faculties until I reached Calle Victoria; afterwards , I became aware that I was bathed with perspiration only upon reaching the barracks. 13. What arms were you carrying and how much ammunition or how many cartridges did you use? — I carried a carbine; I cannot tell precisely the number of cartridges I used; however, I placed in my pocket the twenty cartridges belonging to me and I must have lost some on the way. 14. How did you MANAGE to leave the barracks? — By the, window of the quarters of the Fourth Company, through the grating which I found cut off. 15. Are you above statements made by you, voluntarily freely, and spontaneously given? — Yes, sir. " id="pdf-obj-84-46" src="pdf-obj-84-46.jpg">

to leave the barracks? — By the, window of the quarters of the

Fourth Company, through the grating which I found cut off.

  • 15. Are you above statements made by you, voluntarily freely, and spontaneously given? —

Yes, sir.

16. Do you swear to said statements although no promise of immunity is made to you? — Yes, sir; I confirm them, being true.

(Sgd.) G. L. CABRERA

Witnesses:

(Sgd.) S. GALLARDO LAURO C. MARQUEZ.

The defendants were charged in one information filed in the Court of First Instance of the city of Manila with the crime of sedition, and in another information filed in the same court, with the crimes of murder and serious physical injuries. The two cases were tried separately before different judges of first instance. In the sedition case, which came on for trial first, all of the accused, with the exception of eight, namely, Francisco Ingles, Juan Noromor, P. E. Vallado, Dionisio Verdadero, Francisco Garcia, Benigno Tagavilla, Felix Lamsing and Paciano Caña pleaded guilty, but later, after the first witness for the prosecution had testified, the accused who had pleaded guilty were permitted, with the consent of the court, to substitute therefor the plea of not guilty. In the murder case, all entered a plea of not guilty. On petition of the defense, two assessors were chosen to sit with the judge.

The prosecution presented, in the making of its case, the seventy-seven confession of the defendants introduced in evidence as Exhibits C to C-76, inclusive, and all were identified by the respective constabulary officers, interpreters, and typists who intervened in taking them. The prosecution further relied on oral testimony, including eyewitness to the homicides.

The attorneys for the accused presented three defenses. The first defense was that of jeopardy; the second was based on the contention that the written statements Exhibits C to C-076 were not freely and voluntarily made by the defendants; and the third defense, in favor of the defendants Vicente Casimiro, Juan Noromor, Salvador Gregorio, Paciano Caña, Juan Abarquez, Mariano Garcia, Felix Liron, Bonifacio Eugenio, Patricio Bello, Baldomero Rodriguez, Roberto Palabay, Roque Ebol, Ildefonso de la Cruz, Cipriano Lizardo, Francisco Garcia, Genaro Elayda, Hilario Hibalar, Primitivo E. Vallado, Maximo Perlas, and Benigno Tagavilla, was to the effect that they not take part in the riot. The court overruled the special defenses and found that the guilt of the accused had been proved beyond a reasonable doubt. Thereupon, the court rendered judgement finding all of the defendants guilty of the crimes charged in the information and sentenced the three sergeants Graciano L Cabrera, Pascual Magno, And Bonifacio Eugenio, and the eight corporals, E. E. Agbulos, Francisco Ingles, Clemente Manigdeg, Hilario Hibalar, Juan Abarques, Pecro V. Mateo, Juan Regalado and Genaro Elayda, to cadena perpetua (life imprisonment), and each of the remaining defendants to seventeen years, four months and one day of cadena temporal, all with the accessory penalties provided by the Penal Code and all to indemnify jointly and severally the heirs of each deceased in the sum of P500, and to pay a proportional part of the costs.

For the statement of the cases and the facts which has just been made, we are indebted in large measure to the conspicuously fair and thoughtful decisions of the Hon. Carlos Imperial who presided in the murder case, and of the Hon. George R. Harvey who presided in the sedition case. As

stipulated by the Attorney-General and counsel for the defendants, the proof is substantially the same in both cases.

In all materials respects, we agree with the findings of fact as made by the trial court in this case. The rule is again applied that the Supreme Court will not interfere with the judgement of the trial court in passing upon the credibility of the opposing witnesses, unless there appears in the record some fact or circumstances of weight and influence which as been overlooked or significance of which has been, interpreted. (U. S. vs. Ambrosio and Falsario [1910], 17 Phil., 295; U. S. Remegio [1918], 37 Phil., 599.) In the record of the case at bar, no such fact or circumstance appears.

OPINION

An assignment of six errors is made by the counsel for the defendants and appellants. Two of the assignments of error merit little or no consideration. Assignments of error 5 and 6 (finding their counterpart in assignment of error No. 2 in the sedition case), in which it is attempted to establish that Vicente Casimiro, Juan Noromor, Salvador Gregorio, Paciano Caña, Juan Abarquez, Mariano Garcia, Felix Liron, Bonifacio Eugenio, Patricio Bello, Baldomero Rodriguez, Roberto Palabay, Roque Ebol, Ildefonso dela Cruz, Cipriano Lizardo, Primitivo E. Vallado, Maximo Perlas and Benigno Tagavilla did not leave the Santa Lucia Barracks on the night of the tragedy, is predicated on the special defense raised in the lower court for these defendants and which was found untenable by the trial court. Any further discussion of this question falls more appropriately under our consideration of assignment of error No. 3, relating to the conspiracy between the accused.

Assignment error No. 4 relating to the judge deciding the case without taking into consideration the transcript of the stenographic notes in the case for sedition does not constitute reversible error. Counsel for the defendants is the first to admit by stipulation that the facts in the two case are substantially the same.

The three pertinent issues in this case relate to: (1) The admission of Exhibits C to C-76 of the prosecution (assignment error No. 2, murder case; assignment of error No. 1, sedition case); (2) the conspiracy between the accused (assignment of error No. 3, murder case; assignment of error No. 4, sedition case); and (3) the defense of double jeopardy (assignment of error No. 1, murder case).

1. THE ADMISSION OF EXHIBITS C TO C-76

Appellants claim that fraud and decit marked the preparation of the seventy-seven confession. It is alleged that some of the defendants signed the confessions under the impression that those who had taken part in the affray would be transferred to Mindanao, and that although they did not in fact so participate, affirmed that they did because of a desire to leave Manila; that others stepped forward "for the good of the service"; while still other simply didn't understand what they were doing, for the remarks of Colonel Sweet were made in English and only translated into Tagalog, and their declarations were sometimes taken in a language which was unintelligible to them. Counsel evidence of Exhibits C to C-76, and the Attorney-General is wrong in stating otherwise.

Section 4 of Act No. 619 entitled "An Act to promote good order and discipline in the Philippines Constabulary" and reading: "No confession of any person charged with crime shall be received as

evidence against him by any court of justice unless it be first shown to the satisfaction of the court that it was freely and voluntarily made and not the result of violence, intimidation, threat, menace, or of promises or offers of reward or leniency," was repealed by the first Administrative Code. But the same rule of jurisprudence continues without the law. As has been repeatedly announced by this and other courts, "the true test of admissibility is that the confession is made freely, voluntarily, and without compulsion or inducement of any sort." If the confession is freely and voluntarily made, it constitutes one of the most effectual proofs in the law against the party making it. (Wilson vs. U. S. [1895], 162 U. S., 613.) The burden of proof that the confession was not voluntarily made or was obtained by undue pressure is on the accused. (U. S. vs. Zara [1921], 42 Phil., 308.)

What actually occurred when the confessions were prepared is clearly explained in the record. The source of the rumor that the defendants would be transferred to Mindanao if they signed the confessions, is not established. On the contrary it is established that before the declarations were taken, Lieutenant Gatuslao in response to a query had shown the improbability of such a transfer. With Military where the dialect is Tagalog, all of the defendants must have understood the substantial part of Colonel Sweet's remarks. What is more important, there could be no misunderstanding as to the contents of the confessions as written down. In open court, sixty-nine of the defendants reiterated their guilt. The officers who assisted in the investigation were of the same service as the defendants and would naturally not be inclined to prejudice the rights of their own men.

I must also be remembered that each and every one of the defendants was a member of the Insular police force. Because of the very nature of their duties and because of their practical experience, these Constabulary soldiers must have been aware of the penalties meted out for criminal offenses. Every man on such a momentous occasion would be more careful of his actions than ordinarily and whatever of credulity there is in him, would for the moment be laid aside. Over and above all desire for a more exciting life, over and above the so-called espiritu de corps, is the instinct of self- preservation which could not but be fully aroused by such stirring incidents too recent to be forgotten as had occurred in this case, and which would counsel prudence rather than rashness; secretiveness rather than garrulity.

These confessions contain the statements that they were made freely and voluntarily without any promise of immunity. That such was the case was corroborated by the attesting witnesses whose credibility has not been successfully impeached.

We rule the trial court did not err in admitting Exhibits C to C-76 of the prosecution.

2. THE CONSPIRACY BETWEEN THE ACCUSED

The contention of the appellants is that evidence is lacking of any supposed connivance between the accused. Counsel emphasizes that in answer to the question in the confession, "Who asked you to join in the riot?," each of the accused answered, "Nobody." The argument is then advanced that the appellants cannot be held criminally responsible because of the so-called psychology of crowds theory. In other words, it is claimed that at the time of the commission of the crime the accused were mere automatons obeying the insistent call of their failure of evidence and the positive evidence, counsel would deduce the absence of conspiracy between the accused.

It is a primary rule that if two or more persons combine to perform a criminal act, each is responsible for all the acts of the others done in furtherance of the common design; and "the results is the same if the act is divided into parts and each person proceeds with his part unaided." (U. S. vs. Maza [1905], 5 Phil., 346; U. S. vs. Remigio [1918], 37 Phil., 599; decision of the supreme court of Spain of September 29, 1883; People vs. Mather [1830], 4 Wendell, 299.)

Conspiracies are generally proved by a number of indefinite acts, conditions, and circumstances which vary according to the purposes to be accomplished. If it be proved that the defendants pursued by their acts the same object, one performing one part and another part of the same, so as to complete it, with a view to the attainment of that same object, one will be justified in the conclusion that they were engaged in a conspiracy to effect that object. (5 R. C. L., 1088.) Applied to the facts before is, it is incontestable that all of the defendants were imbued with the same purpose, which was to avenge themselves on the police force of the city of Manila. A common feeling of resentment animated all. A common plan evolved from their military training was followed.

The effort to lead the court into the realm of psychology and metaphysics is unavailing in the face of actualities. The existence of a joint assent may be reasonably inferred from the facts proved. Not alone are the men who fired the fatal shots responsible, not alone are the men who admit firing their carbines responsible, but all, having united to further a common design of hate and vengeance, are responsible for the legal consequences therefor.

We rule that the trial court did not err in declaring that there was a conspiracy between the accused.

3. THE DEFENSE OF DOUBLE JEOPARDY

The constitutional inhibition in the Philippine Bill of Rights is "that no person for same offense shall twice be put in jeopardy of punishment.," Somewhat in application thereof, the code of Criminal Procedure provides that "When a defendant shall have been convicted or acquitted or once placed in jeopardy upon an information or complaint, the conviction, acquittal or jeopardy shall be a bar to another information or indictment for the offense charged, or for an attempt to commit the same, or for a frustration thereof, or for any offense necessarily therein included of which he might been convicted under such complaint or information." (Sec. 26.) The guaranty in Philippine organic and statutory law relating to double jeopardy has received controlling interpretation both by the Supreme Court of the Philippines and the Supreme Court of the United States.

The prohibition is against a second jeopardy for the same offense. To entitle a defendant to plead successfully former jeopardy, the offense charge in the two prosecutions must be the same in law and in fact. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. The same acts may violate two or more provisions of the criminal law. When they do, a prosecution under one will not bar a prosecution under another.

In corroboration and in exemplification of the rules pertaining to the subject of double jeopardy, we have only to turn to leading decisions of the United States Supreme Court on Philippine appeals. In Flemister vs. United States ([1907], 207 U. S., 372), 1 it was held that treating as two different offenses assaults on two different individuals does not place the accused twice in jeopardy for the

same offense, even if these assaults occurred very near each other, in one continuing attempt to defy the law. In Garcia Gavieres vs. United States ([1911], 220 U. S. 338), 2 it was held that the offenses of behaving an indecent manner in a public place, open of insulting a public officer by deed or word in his presence, contrary to the Penal Code, are not identical, so that a conviction of the first will bar a prosecution for the other, although the acts and words of the accused set forth in both charges are the same. The court said that "It is true that the acts and words of the accused set forth in both charges are the same; but in the second case it was charged, as was essential to conviction, that the misbehavior in deed and words was addressed to a public official In this view we are of opinion that while the transaction charged is the same in each case, the offenses are different." In Diaz vs. United States ([1912], 223 E. S., 442), it was held that the prosecution for homicide of a person previously convicted of an assault and battery from which the death afterwards ensued does not place the accused twice in jeopardy for the same offense. The court said that "The Instance and the assault and a battery for which he was tried before the justice of the peace, although identical in some of their elements, were distinct offenses both in law and in fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery."

Appellants rely principally on the decision of this Court in the case of United States vs. Gustillo ([1911], 19 Phil., 208). It was there only held that the possession of a shotgun and a revolver by the same person at the same time and the in the same place, is but one act of possession, one violation of the law, and that a conviction and punishment for the possession of the one arm is a bar to the prosecution for the possession of the other. (Compare with the U. S. vs. Capurro and Weems [1906], 7 Phils., 24, and other Philippine Cases).

The nearest analogy to the two crimes of murder and sedition growing out of practically the same facts, which can be found in the American authorities, relate to the crimes of assault and riot or unlawful assembly. A majority of the American courts have held that the offense of unlawful assembly and riot and the offense of assault and battery are distinct offenses; and that a conviction or an acquittal for either does not bar a prosecution for the other offense, even though based on the same facts. ([1835], 27 Fed. Cas., State vs. Vazquez [1905], 9 Porto Rico, 488; contra, State vs. Lindsay [1868] 61, N. C., 458.)

It is merely stating the obvious to say that sedition is not the same offense as murder. Sedition is a crime not the same offense as murder. Sedition is a crime against a crime directed against the existence of the State, the authority of the government, and the general public tranquillity; murder is a crime directed against the lives of individuals. (U. S. vs. Abad [1902], 1 Phil., 437.) Sedition in its more general sense is the raising of commotions or disturbances in the state' murder at common law is where a person of sound mind and discretion unlawfully kills any human being, in the peace of the sovereign, with malice aforethought, express or implied.

The offenses charged in the two informations for sedition and murder are perfectly distinct in point of law however nearly they may be connected in point of act. Not alone are the offense eo nomine different, but the allegations in the body of the informations are different. The gist of the information for sedition is the public and tumultuous uprising of the constabulary in order to attain by force and outside of legal methods the object of inflicting an act of hate and revenge upon the persons of the police force of the city of Manila by firing at them in several places in the city of Manila; the gist of the information in the murder case is that the Constabulary, conspiring together,

illegally and criminally killed eight persons and gravely wounded three others. The crimes of murder and serious physical injuries were not necessarily included in the information for sedition; and the defendants could not have been convicted of these crimes under the first information.

The evidence required to convict under the first information would not have been sufficient to convict under the second. Proof of an additional and essential fact; namely, the death of one or more human beings, was necessary to constitute the offense charged in the second information. The defendants may have been tried for the same act or acts; they have not been put in jeopardy for the same offense.

We rule that the trial court did not err in not allowing the defense of double jeopardy.

JUDGMENT

The persistent effort of counsel to protect the interest of his client cannot be permitted to becloud the prominent facts of the record. This is as clear a case of cold-blooded murder as ever came to our attention. The judicial archives of the Supreme Court of the Philippines Islands, for the full extent of its existence extending over more than two decades, can be searched in vain for another case which compares with the instant one either in certainty as to guilt or in an unwavering necessity for a severe sentence. Not the learned briefs of the counsel for the accused and for the people, not the eloquent pleas on the hand for mercy and on the other for conviction, not the application of various legal authorities, not even the voluminous transcript of the oral testimony, either separately or all combined, constitute the sole elements which irresistibly move us toward a stern judgment, but the most eloquent pleaders for justice top the dead and safety for the living come from the silent photographs of the dead and safety for the living come from the silent photographs of the dead introduced in evidence under the prosaic denomination of Exhibits J, K, LL, M, N, Ñ, and O. The bloody spot on the escutcheon of an otherwise great organization must be removed.

It is a disagreeable duty, therefore, which the members of this court are called upon to perform. But that it is disagreeable should not of course swerve us from its performance. Were cases of this nature allowed to pass without condemnation, the lives of mankind would constantly be imperilled and there would be no security in the State, for its peace and tranquility would be upset and the authority of the Government would be put at naught by the very agents of law and order who have sworn to protect it. The courts were instituted precisely to function in times of peril to the State, to protect the rights of the people, to mete out punishment to those who have rendered it unsafe for individuals to live at peace with their fellowmen.

With the determination of the trial court as to the circumstances which fix the degree of the penalty, we are, generally speaking, in accord. The circumstance of evident premeditation was found to exist, thus qualifying the crime as that of murder. All the actions of the accused demonstrate that their purpose was to kill any members of the city police whom they should meet. A considerable number of the accused in their confessions gave as the reason for the affray the desire to revenge themselves on the city police. One of them while marching through the streets was heard to exclaim "They killed one of us; we will kill ten (policemen) for one." Another was heard to exclaim, "Al cuartel!" and this was repeated by his companions, "Al cuartel!"

The trial judge found present as circumstances which aggravate criminal liability, that the crime was committed in the nighttime and that advantage was taken of superior strength, but, resolving the doubt in favor of the accused, was unable to find that the act was committed with treachery. We concur with His Honor, Judge Imperial. Advantage was taken of the shades of night in order to better serve the unlawful purpose. Seventy-seven armed Constabulary soldiers in military formation were vastly superior in number and equipment to the policemen whom they happened to meet.

The trial judge found present no circumstance which would mitigate the criminal liability of the sergeants and corporals, but did estimate as a mitigating circumstance, in the cases of the privates, that provided by article 11 of the Penal Code, as amended, relating to the degree of instruction and education of the offenders. Certain members of the Court entertain an identical opinion, while other members take a contrary view. However, the result will be the same, since there is not a unanimous vote with regard to the propriety of the imposition of the death penalty on the private soldiers.

Both the trial judge in the sedition case and the trial judge in the murder case found a difference between the situation of the non-commissioned officers and of the common soldiers. The opinion was expressed by the two judges that the sergeants and corporals among the defendants deserved a larger measure experience of the non-commissioned officers and their more responsible positions, we feel that this is a proper appreciation of the facts.

The trial judge found the crimes as falling within the provisions of article 89 of the Penal Code. Certain members of the court agree. Other members disagree and would make use of the provisions of articles 87 and 88 of the Code. At least such doubt as exists should be resolved in favor of the accused, and this means that, in conformity with the provisions of article 87, they are guilty of the crimes of multiple murder with grave injuries. The penalty is then death for the eleven sergeants and corporals, and cadena perpetua, imprisonment for a maximum period of forty years, for the sixty-six private soldiers. (See U. S. vs. Balaba [1917], 37 Phil., 260.)

The result is to modify the judgement appealed from by sentencing each of the Constabulary soldiers Patricio Rubio, Mariano Aragon, Silvino Ayangco, Guillermo Inis, Julian Andaya, Crispin Mesaluche, Prudencio Tasis, Silvino Bacani, Salvador Gregorio, Juan Noromor, Petronilo Antonio, Patricio Bello, Nemesio Decena, Baldomero Rodriquez, P. E. Vallado, Pedro Layola, Felix Cenon (Liron), Dionisio Verdadero, Francisco Garcia, Domingo Peroche, Florentino Jacob, Lorenzo Tumboc, Paciano Caña, Domingo Canape, Arcadio San Pedro, Daniel Coralde, Vicente Casimiro, Casiano Guinto, Nemesio Gamus, Luis Borja, Severino Elefane, Vicente Tabien, Victor Atuel, Venancio Mira, Benigno Tagavilla, Masaway, Marcos Marquez, Quinto Desierto, Teofilo Llana, Felix Lamsing, Victorino Merto, Timoteo Opermaria, Bernabe Sison, Eusebio Cerrudo, Julia Acantilado, Maximo Perlas, Ignacio Lechoncito, Pascual Dionio, Marcial Pelicia, Rafael Nafrada, Cornelio Ilizaga, Zacarias Baile, Roberto Palabay, Roque Ebol, Benito Garcia, Cipriano Lizardo, Ildefonso de la Cruz, Juan Miranda, Honorio Bautista, Crisanto Salgo, Francisco Luzano, Marcelino Silos, Graciano Zapata, Felizardo Favinal, Nicanor Perlas, and Gaspar Andrada, to suffer cadena perpetua, computed as imprisonment for forty years, and by sentencing each of the sergeants and corporals Graciano L. Cabrera, Pascual Magno, Bonifacio Eugenio, E. E. Agbulos, Francisco Ingles, Clemente Manigdeg, Juan Abarquez, Pedro V. Mateo, Juan Regalado, Hilario, and Genaro Elayda, to suffer the death penalty as provided by law at Bilibid Prison, at such time as shall be fixed by the

Judge of First Instance sitting in Sala No. 4 in the city of Manila, and as thus modified, judgment is affirmed with a proportional part of the costs of this instance against each appellant. So ordered.

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

Republic of the Philippines

SUPREME COURT

Manila

FIRST DIVISION

G.R. No. 84450 February 4, 1991

PEOPLE OF THE PHILIPPINES,

plaintiff-appellee,

vs.

GLORIA UMALI y AMADO AND SUZETH UMALI y AMADO,

defendants-appellants.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for defendants-appellants.

MEDIALDEA, J.:p

In Criminal Case No. 85-473 of the Regional

Trial Court, Branch 53, Lucena City, Gloria Umali and

Suzeth Umali were charged for violation of Section 4, Article 1 of the Dangerous Drugs Act of 1972

under an information which reads:

That on or about the 22nd day of April, 1985, at Recto Street, Poblacion, Municipality of Tiaong, Province of Quezon, Philippines, and within the jurisdiction of this

Honorable

Court, the abovenamed accused, conspiring and confederating together

and mutually helping each other, did then and there willfully, unlawfully and

feloniously sell, deliver and give

marijuana

or Indian Hemp, a prohibited drug to one

Francisco Manalo y Arellano, without authority of law.

Contrary to law. (Rollo, pp. 7-8)

Upon arraignment,

Gloria

Umali entered a plea of "not, guilty" as accused Suzeth Umali remained at

large. After trial, the lower court rendered a decision on September 9, 1987, the dispositive portion

thereof states:

WHEREFORE, premises considered, this Court finds accused Gloria Umali guilty

beyond reasonable doubt of violating Sec. 4,

Art. 1 (sic) of RA 6425 as amended,

otherwise known as the Dangerous Drugs Act of 1972, and is hereby sentenced to

suffer the penalty of

Reclusion

Perpetua. Accused being a detention prisoner is

entitled to enjoy the privileges of her preventive imprisonment. The case against

Suzeth Umali, her co-accused in this case is hereby ordered ARCHIVED to be

revived until the arrest

of said accused is effected. The warrant of arrest issued

against her is hereby ordered reiterated.

SO ORDERED. (Rollo, p. 30)

Hence, this appeal from the lower court's decision with the following assignment of errors:

I

THE COURT A QUO

GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO

THE BIASED TESTIMONY OF FRANCISCO MANALO

II

THE COURT A QUO

GRAVELY ERRED IN ADMITTING THE PROSECUTION'S

EVIDENCE WHICH WERE OBTAINED IN VIOLATION OF ACCUSED'S

CONSTITUTIONAL RIGHTS AGAINST ILLEGAL SEARCH AND SEIZURE

III

THE COURT A QUO

GRAVELY ERRED IN DECLARING THAT ACCUSED NEVER

DISPUTED THE CLAIM THAT SHE WAS THE SOURCE OF MARIJUANA LEAVES FOUND IN THE POSSESSION OF FRANCISCO MANALO ON APRIL 5, 1985 AND THAT WHICH WAS USED BY PIERRE PANGAN RESULTING TO THE LATTER'S DRUG DEPENDENCY

IV

THE COURT A QUO

GRAVELY ERRED IN FINDING ACCUSED GLORIA 1, GUILTY

OF VIOLATION OF DANGEROUS DRUGS ACT OF 1972 ON THE BASIS OF MERE CONJECTURES AND NOT ON FACTS AND CIRCUMSTANCES PROVEN

V

THE COURT A QUO

GRAVELY ERRED IN NOT FINDING THAT THE GUILT OF

THE ACCUSED DID NOT PASS THE TEST OF MORAL CERTAINTY. (Rollo, p. 49)

The antecedent facts of this case as recounted by the trial court are as follows:

On April 27, 1985 Pierre Pangan a minor was investigated by Pat. Felino Noguerra for drug dependency and for an alleged crime of robbery. In the course of the investigation, the policemen discovered that Pierre Pangan was capable of committing crime against property, only if under the influence of drug (sic). As Pierre Pangan is a minor, the police investigators sought the presence of his parents. Leopoldo Pangan, father of the minor was invited to the police headquarters and was informed about the problem of his son. Mr. Pangan asked the police investigators if something could be done to determine the source of the marijuana which has not only socially affected his son, but other minors in the community. Previous to the case of Pierre Pangan was the case of Francisco Manalo, who was likewise investigated by operatives of the Tiaong, Quezon Police Department and for which a case for violation of the Dangerous Drug Act was filed against him, covered by Criminal Case No. 85-516 before Branch 60 of the Regional Trial Court of Lucena City. Aside from said case, accused Francisco Manalo was likewise facing other charges such as concealment of deadly weapon and other crimes against property. Pat. Felino Noguerra went to the Tiaong Municipal Jail, and sought the help of Francisco Manalo and told him the social and pernicious effect of prohibited drugs like marijuana being peddled to minors of Tiaong, Quezon. Manalo although a detention prisoner was touched by the appeal made to him by the policeman and agreed to help in the identification of the source of the marijuana. In return he asked the policeman to help him in some cases pending against him. He did not negotiate his case for violating the dangerous drug act, as he has entered a plea of guilty to the charged (sic) before the sala of Judge Eriberto Rosario.

With the consent of Francisco Manalo, Pfc. Sarmiento, Chief of the Investigation Division gave him four (4) marked P5.00 bills to buy marijuana from sources known to him. The serial numbers of the money was entered in the police blotter. The

instruction was (sic) for Manalo to bring back the prohibited drug purchased by him to the police headquarters. Few minutes there after (sic), Manalo returned with two (2) foils of dried marijuana which lie allegedly bought from the accused Gloria Umali. Thereafter, he was asked by the police investigators to give a statement on the manner and circumstances of how he was able to purchase two (2) marijuana foils from accused Gloria Umali. With the affidavit of Francisco Manalo, supported by the two (2) foils of marijuana. the Chief of the Investigation Division petitioned the Court for the issuance of a search warrant as a justification for them to search the house of Gloria Umali located at Rector (sic) Street. Poblacion, Tiaong, Quezon. After securing the same, the police operatives, went to the house of Gloria Umali and served the search warrant on her. Confiscated from the person of Gloria Umali were the four P5.00 bills with serial numbers BA26943, DT388005, CC582000 and EW69873, respectively as reflected in the police blotter. Likewise, present in the four (4) P5.00 bills were the letters T which were placed by the police investigators to further identify the marked four (4) P5.00 bills. The searched (sic) in the house was made in the presence of Brgy. Capt. Punzalan. The search resulted in the confiscation of a can of milo, containing sixteen (16) foils of dried marijuana leaves which were placed in a tupperware and kept in the kitchen where rice was being stored. The return of the search warrant reads as follows:

DATE: 22 April 1985

WHAT: "RAID"

WHO: MBRS. OF TIAONG INP

WHERE: Residence of Dr. Emiliano Umali

Poblacion, Tiaong, Quezon

TIME STARTED/ARRIVED AT SAID PLACE:

221410H Apr '85

SERVED TO: MRS. GLORIA UMALI

MR. EMILIANO UMALI

PERSON APPREHENDED/PROPERTY SEIZED/RECOVERED

Mrs. Gloria Umali 16 Aluminum Foils of

Mr. Emiliano Umali Suspected Marijuana leaves

TIME/DATE LEFT SAID PLACE: 221450H Apr '85

WITNESSES (sic) BY:

  • 1. (Sgd) Reynaldo S. Pasumbal

  • 2. (Sgd) Luisabel P. Punzalan

  • 3. (Sgd) Arnulfo C. Veneracion

  • 4. (Sgd) Isidro C. Capino

Samples of the marijuana leaves confiscated were submitted to the PC Came Laboratory for examination. Capt. Rosalinda Royales of the PC crime Laboratory took the witness stand, testified and identified the marijuana submitted to her and in a written report which was marked as Exhibit "G" she gave the following findings:

Qualitative examination conducted on the specimen mentioned above gave POSITIVE result to the tests fur marijuana.

In Criminal Case No. 85-516, Francisco Manalo was charged of having in his possession Indian Hemp on April 5, 1985, in violation of Section 8, Article 11 of Republic Act 6425 as amended, otherwise as the Dangerous Drugs Act of 1972. The Court in rendering against him disposed the case as follows:

In view of the foregoing, the Court hereby finds the accused Guilty beyond reasonable doubt of the crime of illegal possession of "Indian Hemp" penalized under Sec. 8 of Article 6425 (sic); as amended otherwise known as the Dangerous Drugs Act of 1972 and the Court hereby sentences him to suffer an imprisonment of two (2) years and

four (4) months of prision correccional to six (6) years and one (1)

day of Prision Mayor

and to pay a fine of Six Thousand Pesos

(P6,000.00). Let the period of detention of the accused be credited to his sentence.

Accused never disputed the claim of Francisco Manalo that the marijuana found in his possession on April 5, 1985 in the municipality of Tiaong, Quezon was sold to him by the accused Gloria Umali. The defense also did not dispute the claim of the prosecution that in the investigation of Pierre Pangan, the police investigator came to know that Gloria Umali was the source of the marijuana leaves which he used and smoked resulting in his present drug dependency. (Rollo, pp. 22-27)

The appellant vehemently denied the findings of the lower court and insisted that said court committed reversible errors in convicting her. She alleged that witness Francisco Manalo is not reputed to be trustworthy and reliable and that his words should not be taken on its face value. Furthermore, he stressed that said witness has several charges in court and because of his desire to have some of his cases dismissed, he was likely to tell falsehood.

However, the plaintiff-appellee through the Solicitor General said that even if Francisco Manalo was then facing several criminal charges when he testified, such fact did not in any way disqualify him as a witness. "His testimony is not only