[ G.R. No.

 1503, March 14, 1905 ]

THE UNITED STATES, COMPLAINANT AND APPELLEE, VS. ALEJO
RAVIDAS ET AL., DEFENDANTS AND APPELLANTS.

DECISION

MAPA, J.:

The complaint in this case charges the defendants with the crime of insurrection. Out of
the twenty-five defendants, five of them, to wit, Alejo Eduria, Francisco Eduria, Bruno
Labnutin, Vicente Abales, and Francisco Nagor, were acquitted in the court below. The
other twenty were found guilty of the said crime and sentenced to two years less one day
of imprisonment, with the exception of Isidoro Nalagum, who was sentenced to one
year's imprisonment, and Alejo Ravidas and Narciso Melliza, who were sentenced to five
and three years' imprisonment, respectively. All of the twenty defendants appealed. The
appeal was granted. Numeriano Aniar, Andres Factura, Florencio Opog, Vicente
.Maambong, Urbano Karros, Isidoro Nalagum, Natalio (alias Julio) Raiz, and Leonardo
Nalagum withdrew from the appeal. In the course of the appeal proceedings Inocencio
Pagaling, Macario Beemen, Fermin Paday, Valentin Leona, Catalino Opog, Iginicio
Opog, Romualdo Tactacon, Jose Macaubos, Victoriano Ello, and Dionisio Jamero
escaped from the provincial jail in Cagayan de Misamis, where they were confined, as
appears from a part of the record in the case. The sentence of the Court of First Instance
with regard to the eight first named was made final as to them by reason of their
withdrawal from the appeal. It has also become final as regards the other eight on account
of their escape. Such escape implies withdrawal within the meaning of the principles
governing the prevailing criminal procedure. The appeal is, therefore, only continued in
this instance as regards Alejo Ravidas and Narciso Melliza.

The counsel for the Government in this case prays for the acquittal of both defendants, as
"it is not proven," he says with respect to Alejo Ravidas, "that he permitted or encouraged
insurrection or engaged in the same by abetting them directly or indirectly." The only fact
disclosed by the evidence adduced in the case is that Alejo Ravidas knew that there were
insurgents in a place called Manila, jurisdiction of the town of Agusan, of which he was
municipal president, and his duty as such president required him to report this fact to the
senior officer of the province, but he did not do so, nor did he take any steps toward
pursuing or denouncing the insurgents or to protect the people from their probable
depredations. However reproachful the silence of the defendant may be, it does not in
itself constitute the crime of insurrection. Act No. 292 defines and specifies the acts
which shall be punished as insurrection, but among those acts the silence of the defendant
is not enumerated. This silence is not an act; it is, rather, an omission. We quite agree
with these suggestions of the counsel for the Government, since nothing more than the
aforesaid facts has been proven against Alejo Ravidas. These facts are not sufficient to
hold him liable for the crime of insurrection.

The same can be said with reference to Narciso Melliza, as there is no evidence showing
that he had promoted, encouraged, or aided any insurrection or that he in any way
participated in the same. From the fact that he sold rice in great or small quantities to
persons who afterwards appeared to be insurgents, and had the rice so sold even been
taken to the insurgents' camp, which is the only fact which can be considered proven with
respect to the defendant Melliza, it is not in itself conducive to criminal liability. It is not
shown that he sold the rice to the insurgents knowing that they were such and with the
deliberate purpose of aiding the insurrection.

In view of the foregoing considerations, we reverse the judgment below with regard to
Alejo Ravidas and Narciso Melliza, both of whom we acquit with costs de oficio. The
former's release shall be ordered immediately, as he is the only one confined in prison.
Narciso Melliza is out on bail.

We decide further that the appeal entered by Dionisio Jamero, Inocencio Pagaling,
Macario Beemen, Fermin Paday, Valentin Leona, Catalino Opog, Ignacio Opog,
Romualdo Tactacon, Jose Macaubos, and Victoriano Ello be dismissed. The judgment of
the court below as regards these latter-named defendants is affirmed and made final, with
the corresponding costs in this instance upon each one of them. So ordered.

SYLLABUS

Per McDONOUGH, J., dissenting: chanrob1es virtual 1aw library

1. CRIMINAL PROCEDURE; BAIL PENDING APPEAL; DISCRETIONARY POWERS OF

SUPREME COURT, HOW EXERCISED. — The Supreme Court has discretionary power to
grant bail, even after conviction, in all noncapital cases pending before it on appeal, and
its discretion is to be exercised regardless of the action of the Court of First Instance.

2. ID.; ID.; EFFECT OF APPEAL ON JUDGMENT OF TRIAL COURT; EFFECT ON PENALTY.

— The fact that the accused is not finally tried, in case of an appeal, until his case is
heard, retried, and determined by the Supreme Court, and that, with few exceptions, in
case of a conviction no credit is given for the time served in prison during the pendency
of the appeal, are weighty reasons for the exercise of the discretion of the court to let
the accused to bail during the pendency of his appeal.

3. ID.; ID.; EXERCISE OF DISCRETION. — The court should exercise its discretion in
favor of bail, even after conviction in noncapital cases, unless some great urgency
exists which would make it manifestly improper to grant the petition.

DECISION
The defendants Alejo Ravidas and Narciso Melliza, together with several other
defendants, were tried in the Court of First Instance of Misamis on a charge of
insurrection. Both were convicted, and Ravidas was sentenced to
imprisonment for a term of five years and Melliza to three years. Both
appealed to the Supreme Court from the judgment of the conviction. After the
case was lodged in the Supreme Court the attorneys for the two defendants
named made a motion that they be allowed bail pending appeal, no such
motion having been made in the trial court. This motion was heard on
November 16, 1903, and was opposed by the representative of the Attorney-
General who appeared on behalf of the Government.

On November 30, 1903, the court directed the entry of the following order on
its minutes: jgc:chanrobles.com.ph

"Acting upon the motion of Messrs. Palma, Gerona, & Mercado, Attorneys for

Alejo Ravidas and Narciso Melliza, defendants in the case of the United States
vs Ravidas Et. Al., that the said defendants be granted bail during the
pendency of the appeal in this case before the court, after deliberation: jgc:chanrobles.com.ph

"Resolved, by a majority vote, That the motion to admit the said defendants to
bail be denied. The Hon. C. S. Arellano, Chief Justice, and Justices Torres,
Willard, and Johnson voted to deny the motion." cralaw virtua1aw library

From the order so entered and the refusal to grant bail Justices McDonough,
Mapa, and Cooper dissented.

Separate Opinions

McDONOUGH, J., with whom concur COOPER and MAPA, JJ., dissenting: chanrob1es virtual 1aw library

This is a motion to admit the defendants to bail pending the trial of their
appeal in this court.

Bail is usually favored. Before conviction, except in capital cases, it is allowed

as a matter of right. After conviction, however, it is discretionary with the
Court of First Instance and also with this court to grant or refuse bail in
noncapital cases pending on appeal. (See sec. 53, G. O., 58.)

In several of the States the courts have refused to exercised this discretions
unless there exist special circumstances which call for the intervention of the
court in behalf of the prisoner. In those States the question has often been
raised as to what is a special circumstance which justifies the courts in letting
to bail after conviction and pending an appeal. The answers have been
numerous, various, and many of them vague.

1. In California it was said in the case of Ex parte Smallman Et. Al. (54 Cal.,
35), that it might be a special circumstance warranting the granting of bail
when, for example, after a conviction for the crime of felonious homicide and
appeal "the deceased" was produced alive.
 2. The same court gave as another instance: Where the defendant had been
convicted of stealing goods and it turned out afterwards that the goods of
which he was convicted of stealing were at the time of the alleged theft in the
hands of the owner.

With all due respect to the learned judge who gave these instances, it may be
remarked that these were special circumstances warranting speedy pardon
rather than bail.

3. It was held in Nebraska (42 Neb., 48) that, after conviction and pending
appeal, this discretion of the court may be exercised upon the showing of
probable error calling for a reversal of the judgment.

New York State follows this view and, pending appeal and an application for a
stay and for bail, the court will look into the record for the purpose of
ascertaining whether or not there is probable cause for reversal.

In Indiana it has been held, on an appeal from the refusal of a judge to admit
to bail, the supreme court will weigh the evidence and determine the facts, as
if trying the case originally. (Ex parte Heffernan, 27 Ind., 87; Ex parte Kendall,
100 Ind., 599, and cases cited.)

4. In 3 American and English Encyclopedia of Law, 667, it is said that a special

circumstance justifying bail, after conviction, is where the defendant
voluntarily surrendered; or

5. Where he is a man of large means; or

6. Where he refused an opportunity to escape; or

7. When the defendant is seriously ill; or

8. When the hearing on the appeal has been unnecessary delayed.

Thus it appears that the exceptions are so numerous that they almost
constitute the rule.

The discretion to let to bail conferred on this court is to be exercised

regardless of the action of the Court of First Instance. Even in California,
where it frequently happened that the trial court refused to exercise the
discretion vested in it to let to bail, the supreme court, in the case of Smith (89
Cal., 80), rebuked th court below for failure to act. "The fact," said the learned
judge of the supreme court who wrote the opinion, "that the trial court
adopted an inflexible rule not to admit a defendant to bail who has been
convicted of a felony, can have no weight with us, however inconsistent such
rule is with section 1272 of the Penal Code" (allowing the court to exercise
discretion). "This court passes upon the merits of the petition presented to it
regardless of any action or rule the trial court may have adopted." cralaw virtua1aw library
 In the case of Hodge (48 Cal., 3) the chief justice of the supreme court
allowed bail after it have been refused by the court below. There the
defendant had been convicted of assault with a deadly weapon with intent to
do bodily injury. The punishment for that offense was a fine or imprisonment,
and the defendant had been sentenced to serve a term of imprisonment of
eighteen months in the State prison.

On the argument, the attention of Chief Justice Wallace was called to the
record, and he evidently examined the record and the rulings of the court
below and the charge to the jury, for he said: jgc:chanrobles.com.ph

"It is not proper that I should intimate an opinion as to the ultimate

determination of the points which it is the purpose of this appeal to present
for the judgment of the supreme court.

"They are sufficient in my judgment to show that the appeal is bona fide and
that the case made is not to be characterized as frivolous or unsubstantial.

"I think that should I, under the circumstance, refuse to admit the prisoner to
bail, it would be a misapplication of the discretion conferred by the statute.

"The right to appeal to the supreme court is guaranteed by the Constitution to

the prisoner and is as secure as the right of trial by jury. It is one of the means
the law has provided to determine the question of his guilt or innocence. Upon
such an appeal the ultimate question is nearly always as to the validity of the
judgment under which the prisoner is to suffer, and it is certainly not
consonant to our ideas of justice, if it can be prevented by legal means, that,
even while the question of guilt or innocence is yet being agitated in the form
of an appeal, the prisoner should be undergoing the very punishment and
suffering the very infamy which it was the lawful purpose of the appeal to
avert. It would be somewhat skin to a practice of punishing the accused for his
alleged offense while the jury was yet deliberating upon a verdict." cralaw virtua1aw library

These are sensible and weighty reasons for the exercise of the discretion of
the court to let a prisoner out on bail pending his appeal, but weighty and just
as they may be in California, there is much more reason for following them in
these Islands, because here the accused is not finally tried until his case is
heard, retried, and determined by this court, which, in case of conviction,
sentences the accused for the full term prescribed by law; and he is obliged to
serve the full term of imprisonment imposed upon him by this court, without
being credited with the time served in prison, between the time of determining
his guilt below and the time of conviction here, except where convicted of
certain minor offenses in which the convict is credited with half the time
served pending the appeal. So that this may result, especially if delay occurs in
bringing the case to trial in this court, and in deciding the same, that an
accused may have to serve a longer term in prison than is prescribed by the
Code.

Moreover, in the State courts, the accused is allowed bail as matter of right
before conviction by a jury in noncapital cases. The conviction, under our
 system, in a Court of First Instance, where an appeal has been taken, is very
like an examination and a holiday for trial by a committing magistrate in the
States, if the holding of this court in the case of the United States v. Kepner (1
Off. Gaz., 353) be good law. 1 In the opinion of this court in that case, it is
stated, under the Spanish rule in these Islands: "There never was any finality
to the judgment of the trial court, in felony cases, after it has been ratified and
confirmed by the court of last resort. Such a judgment was merely advisory to
the appellate tribunal . . . That was the law of the land when the change of
sovereignty took place, and it has only been modified since to the extent of
making the judgment of the Court of First Instance, in a felony cases (except
capital offenses) final, unless an appeal has been taken either by the Attorney-
General or the accused. So then, so now." cralaw virtua1aw library

Inasmuch as there has been an appeal taken in the case at bar, the judgment
below, therefore, is not final; it is not such a judgment as is entered in the
States upon the verdict of a jury; it is in its nature "merely advisory," and,
therefore, it, together with the double punishment mentioned above,
constitutes a special circumstance entitling the defendants to the exercise of
the discretion of the court in their favor.

It seems to me that this court ought to follow the practice of the Federal
courts and that of the Supreme Court of the United States, and not deny bail
after conviction unless some special circumstance exists which appeals
especially to the discretion of the court, but rather to allow bail, unless some
great urgency exists which would make it manifestly improper to grant the
petition.

Thus in the case of McKnight (113 Fed. Rep., 451), decided by the circuit court
of appeals of the sixth circuit, 1902, it was held that the United States Court of
Appeals, pending a writ of error, had power, and that it was generally its duty
to admit the bail, after conviction of a crime not capital; that where the trial
court refused to admit to bail pending a writ of error, in the absence of some
great urgency, a further application should be made to the appellate court, and
that the fact that the defendant had been three times convicted on the same
indictment, for embezzling funds of national bank, was not sufficient ground
for denying bail pending a writ of error.

In the case of Hudson v. Parker (156 U. S., 227) it appeared that Hudson had
been convicted in the United States district court for the western district of
Arkansas, of assault with intent to kill, and was sentenced for imprisonment
for a term of years.

A writ of error was granted by one of the justices of the supreme court (not
assigned to that circuit) and an order made for supersedeas and bill, in a sum
named, pending the writ, the bond to be approved by Judge Parker, the
district judge. He, however, refused to approve the bond, holding that the
supreme court judge was without authority to let the prisoner to bail.

In the opinion of the supreme court it was said that: "The statues of the
United States have been framed upon the theory that a person accused of a
crime shall not, until he is finally adjudged guilty in the court of last resort, be
absolutely compelled to undergo imprisonment or punishment, but may be
admitted to bail not only after arrest and before trial, but after conviction and
pending a writ of error," and so the court ordered a mandamus to be issued
commanding Judge Parker to take action regarding the approval of the bond.

For the foregoing reasons I am of opinion that the defendants should be let to
bail pending the disposal of their appeal in this court.