THE UNITED STATES, Complainant-Appellee, v. DALMACIO LAGNASON, Defendant-Appellant.

Juan Medina Cue, for Appellant.

Solicitor-General Araneta, for Appellee.

1. CRIMINAL LAW; TREASON; REBELLION; LEVYING WAR. � Engaging in a rebellion and

giving it aid and comfort amounts to a levying of war within the meaning of section
1 of Act No. 292, no matter how vain and futile the attempt.

2. ID.; ID.; ID. � The crime of rebellion and insurrection constitute treason, but
when the treason consists in engaging in an insurrection or rebellion it is to be
punished in accordance with section 3 of Act No. 292.

3. ID.; ID.; ID. � The crimes of rebellion and insurrection are offenses of less
magnitude than that of levying war against the Government, and do not amount to
treason.

4. ID.; REBELLION; WAR. � There may be a state of rebellion not amounting to a

state of war.

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

5. ID.; TREASON; LEVYING WAR. � An organized attempt on the part of the persons
joined together in a band to overthrow and destroy the established government is a
levying of war against the government and constitutes treason.

6. ID.; ID.; ID. � It is not necessary that there be any formal declaration of the
existence of a state of war or that those attempting to overthrow the government by
force of arms should have the apparent power to succeed in their design in whole or
in part to justify the conclusion that those engaged in such an attempt are levying
war and therefore guilty of treason.

7. ID.; ID.; REBELLION. � The crime of treason and the crime of rebellion are
distinct and separate offenses; they are crimes of the same class, but differ in
magnitude and gravity.

8. ID.; TREASON AND REBELLION DEFINED. � Treason may be defined to be an organized

effort on the part of those who owe allegiance to a government to overthrow it and
establish another in its place or to establish a state of lawlessness and rapine,
while insurrection may be defined as resistance, by unlawful means, to the
operation of some particular law or to the constituted authorities.

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

9. CRIMINAL LAW; TREASON; POWER OF CONGRESS; POWER OF PHILIPPINE COMMISSION. �

Treason against the United States is defined by the Constitution itself, and
Congress has no power to restrain, enlarge, construe, or define the offense, its
power being limited to prescribing the punishment; but the Philippine Commission is
not restricted in this respect and has the power to divide the offense of treason
such as is defined in the Constitution of the United States into as many offenses
and to affix such punishment as it may deem proper in each class of cases.

10. ID.; ID.; REBELLION; LEVYING WAR; INTENT. � The difference between the "levying
of war" which constitutes the crime of treason and that of rebellion and
insurrection does not depend upon the magnitude of the movement but rather upon the
intention and purposes of the persons engaged in it; if the intention is to utterly
overthrow the Government the offense is treason, but if it is simply to obstruct
and resist the "authority of the United States or the Government of the Philippine
Islands" the offense is rebellion or insurrection.

11. ID.; ID.; LEVYING OF WAR. � It is not necessary to constitute a levying of war
that the contest shall have assumed such proportions as to entitle those engaged in
it to be treated as belligerents.

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

12. CRIMINAL LAW; TREASON; REBELLION. � If it is treason to levy war upon the
United States or the Government of the Philippine Islands, or adhere to their
enemies, giving them aid and comfort within the Philippine Islands or elsewhere,
then acts which constitute rebellion and insurrection are also treason, for to
rebel against the sovereignty of the United States or against the Government of the
Philippine Islands is to make war upon them.

13. ID.; ID.; ID. � Rebellion bears the same relation to treason as species does to
genus.

14. ID.; ID.; ID.; LEADERS AND SUBORDINATES. � The principal leaders of an armed
uprising against the sovereignty of the United States are guilty of treason, while
their subordinates and those who give them aid and comfort are guilty of the lesser
offense of rebellion or insurrection.

D E C I S I O N

WILLARD, J. :

The defendant was charged under section 1 of Act No. 292 with the crime of treason,
was convicted and sentenced to death. The following facts appeared from the
evidence. From the time of the occupation of the Province of Occidental Negros by
the American troops, there had existed therein a band of men in arms against the
Government of the United States, which band was led by the defendant and which in
October was campaigning through the northern part of the province. In the southern
part was another similar band led by Dionisio Papa. These two parties, though in
communication with each other, had formerly operated independently, but in the
month of September, 1902, the defendant had placed himself and his forces under the
orders of said Dionisio Papa. His band was constantly armed and kept together, and
its object was to establish an independent government.

On October 29, 1902, the defendant with this band made an attack upon the pueblo of
Murcia in said province, but was driven off by the force of Constabulary there
stationed. During that night two inspectors of the Constabulary arrived with
additional forces and early in the morning they left the pueblo in search of the
defendant. He was encountered with his party about three kilometers from the pueblo
and was attacked by the Constabulary. The fight lasted an hour and a half. The
defendant was captured in the battle and about twenty of his men were killed. On
the side of the Constabulary were killed two policemen of the vicinity who were
acting as guides. The defendant�s band consisted of between seventy and eighty men.
They had for arms five or ten rifles, bolos, daggers, and one small cannon. The
defendant when captured was armed with a rifle, a revolver, and a bolo. Most of his
men wore black shirts, white pantaloons, and black caps. They carried no banners,
but did carry two large wooden crosses which were captured, together with the
cannon.
Article 3, section 3, of the Constitution of the United States provides as
follows:jgc:chanrobles.com.ph

"Treason against the United States shall consist only in levying war against them,
or in adhering to their enemies, giving them aid and comfort. No person shall be
convicted of treason unless on the testimony of two witnesses to the same overt act
or on confession in open court."cralaw virtua1aw library

The act of Congress of April 30, 1790 (1 Stat. L., 112), contained the following
provision:jgc:chanrobles.com.ph

"Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled, That if any person or persons, owing allegiance to
the United States of America, shall levy war against them, or shall adhere to their
enemies, giving them aid and comfort within the United States or elsewhere, and
shall be thereof convicted, on confession in open court, or on the testimony of two
witnesses to the same overt act of the treason whereof he or they shall stand
indicted, such person or persons shall be adjudged guilty of treason against the
United States, and shall suffer death."cralaw virtua1aw library

The statute law of the United States stood in that form. so far as we are informed,
until the act of July 17, 1862 (12 Stat. L., 589), was passed. The first and second
sections of that act were as follows:jgc:chanrobles.com.ph

"Be it enacted by the Senate and House of Representatives of the United States of
America in Congress assembled, That every person who shall hereafter commit the
crime of treason against the United States, and shall be adjudged guilty thereof,
shall suffer death, and all his slaves, if any, shall be declared and made free;
or, at the discretion of the court, he shall be imprisoned for not less than five
years and fined not less than ten thousand dollars, and all his slaves, if any,
shall be declared and made free; said fine shall be levied and collected on any or
all of the property, real and personal, excluding slaves, of which the said person
so convicted was the owner at the time of committing the said crime, any sale or
conveyance to the contrary notwithstanding.

"SECTION 2. And be it further enacted, That if any person shall hereafter incite,
set on foot, assist, or engage in any rebellion or insurrection against the
authority of the United States, or the laws thereof, or shall give aid or comfort
thereto, or shall engage in, or give aid and comfort to, any such existing
rebellion or insurrection, and be convicted thereof, such person shall be punished
by imprisonment for a period not exceeding ten years, or by a fine not exceeding
ten thousand dollars, and by the liberation of all his slaves, if any he have; or
by both of said punishments, at the discretion of the court."cralaw virtua1aw
library

In the Revised Statutes of the United States these provisions appear in sections
5331, 5332, and 5334, which are as follows:jgc:chanrobles.com.ph

"SECTION 5331. Every person owing allegiance to the United States, who levies war
against them, or adheres to their enemies, giving them aid and comfort within the
United States or elsewhere, is guilty of treason.

"SECTION 5332. Every person guilty of treason shall suffer death; or, at the
discretion of the court, shall be imprisoned at hard labor for not less than five
years and fined not less than ten thousand dollars, to be levied on and collected
out of any or all of his property, real and personal, of which he was the owner at
the time of committing such treason, any sale or conveyance to the contrary
notwithstanding; and every person so convicted of treason shall, moreover, be
incapable of holding any office under the United States.
"SECTION 5334. Every person who incites, sets on foot, assists, or engages in any
rebellion or insurrection against the authority of the United States, or the laws
thereof, or gives aid or comfort thereto, shall be punished by imprisonment for not
more than ten years, or by a fine of not more than ten thousand dollars, or by both
of such punishments; and shall, moreover, be incapable of holding any office under
the United States."cralaw virtua1aw library

Sections 1 and 3 of Act No. 292 of the Philippine Commission are as

follows:jgc:chanrobles.com.ph

"SECTION 1. Every person, resident in the Philippine Islands, owing allegiance to

the United States, or the Government of the Philippine Islands, who levies war
against them or adheres to their enemies, giving them aid and comfort within the
Philippine Islands or elsewhere, is guilty of treason, and, upon conviction, shall
suffer death or, at the discretion of the court, shall be imprisoned at hard labor
for not less than five years and fined not less than ten thousand dollars."cralaw
virtua1aw library

"SECTION 3. Every person who incites, sets on foot, assists, or engages in any
rebellion or insurrection against the authority of the United States, or of the
Government of the Philippine Islands, or the laws thereof, or who gives aid or
comfort to anyone so engaging in such rebellion or insurrection, shall, upon
conviction, be imprisoned for not more than ten years and be fined not more than
ten thousand dollars."cralaw virtua1aw library

The Spanish Penal Code defines and punishes the crimes of treason, rebellion, and
sedition. Article 236 of that code, relating to sedition, appears as section 5 of
Act No. 292, but that act, as to treason and rebellion, is practically a
reproduction of the sections quoted from the Revised Statutes.

Prior to the act of July 17, 1862, and in the early history of the country, the
question as to what constituted a "levying of war" within the constitutional
definition of treason had been before the Federal courts on several different
occasions.

In ex parte Bollman (4 Cranch., 75) the Supreme Court of the United States quoted
the definitions of the phrase "levying war" which had been given by different
judges of the United States, and declared through the Chief Justice what the latter
afterwards said in Burr�s case (25 Fed. Cases, 13), to wit:jgc:chanrobles.com.ph

"That part of his deposition which bears upon this charge is the plan disclosed by
the prisoner for seizing upon New Orleans and revolutionizing the Western States.
That this plan if consummated by overt acts would amount to treason no man will
controvert."cralaw virtua1aw library

Whatever differences there may have been among the early judges as to whether an
armed resistance to the enforcement of a public law (see Act No. 292, sec. 5, 1)
constituted a levying of war or not, and was or was not treason, yet they were all
unanimous in holding that the acts of violence committed by an armed body of men
with the purpose of overthrowing the Government was "levying war against the United
States," and was therefore treason, whether it was done by ten men or ten thousand.
(See United States v. Hanway, 2 Wall., jr., 139; 26 Fed. Cases, 105.)

No distinction was anywhere made between a foreign enemy and a rebel or insurgent
so far as the act of "levying war" is concerned. All of these cases tried before
the United States courts have grown out of insurrection. The case of Mitchell grew
out of the "whisky rebellion" in western Pennsylvania; the case of fries, out of
the Northampton Rebellion; the case of Bollman out of Burr�s attempt; the case of
Hanway out of resistance to the fugitive slave law; and the case of Greathouse out
of the civil war. Such a distinction has, however, been made under the second
clause of the Constitutional provision, namely giving aid or comfort to an enemy.
It has been said that the word "enemy" means there a foreign enemy and does not
include a rebel.

If it were not for the provisions of the second section of the act of July 17,
1862, now section 5334 of the Revised Statutes, and section 3 of Act No. 292 of the
Commission, the case at bar would present no difficulty. The defendant would be
clearly guilty of treason and punishable under the section of Act No. 292. He was
engaged in an attempt to overthrow the Government and was captured after an armed
contest. It matters not how vain and futile his attempt was and how impossible of
accomplishment. The acts performed by him constituted a levying of war.

Revised Statutes, section 5332, declares that treason shall be punished by death,
or imprisonment for not less than five years. Section 5334 declares that one
engaging in a rebellion or insurrection against the United States shall be punished
by imprisonment for not more than ten years. As the act of engaging in a rebellion
is levying war, and therefore treason, the same act seems to be punished by both
sections and different ways.

This apparent inconsistency was pointed out in the case of United States v.
Greathouse (4 Sawy., 457 S. C.; 26 Fed. Cases, 18) by Mr. Justice Field while
sitting in the circuit court. The defendants in that case were indicted under the
second section of the Act of July 17, 1862 (no Revised Statutes, sec. 5334 and Act
No. 292, sec. 3), for fitting out in the harbor of San Francisco a privateer to aid
the then existing rebellion. Justice Field there said, in charging the
jury:jgc:chanrobles.com.ph

"But we are unable to conceive of any act designated in the second section which
would not constitute treason, except perhaps as suggested by my associate, that of
inciting to a rebellion. If we lay aside the discussion in the Senate, and read the
several sections of the act together, the apparent inconsistency disappears.
Looking at the act alone, we conclude that Congress intended (1) to preserve the
act of 1790, which prescribes the penalty of death, in force for the prosecution
and punishment of offenses committed previous to July 17, 1862, unless the parties
accused are convicted under the act of the latter date for subsequent offenses; (2)
to punish treason thereafter committed with death, or fine and imprisonment, in th
discretion of the court, unless the treason consist in engaging in or assisting a
rebellion or insurrection against the authority of the United States, or the laws
thereof, in which event the death penalty is to be abandoned and a less penalty
inflicted. By this construction the apparent inconsistency in the provisions of the
different sections is avoided and effect given to each clause of the act. The
defendants are, therefore, in fact, on trial for treason, and they have had all the
protection and privileges allowed to parties accused of treason, without being
liable, in case of conviction, to the penalty which all other civilized nations
have awarded to this, the highest of crimes known to the law."cralaw virtua1aw
library

Judge Hoffman, who sat with Justice Field, also said:jgc:chanrobles.com.ph

"If, then, every species of aid and comfort given to the present rebellion
constitutes a levying of war, it follows that in the two sections of the act
referred to, Congress has denounced the same crime; and that a party amenable to
the second section for having engaged in the rebellion and given it aid and
comfort,� must also be guilty of treason by levying war against the United States.

"As, then, the offenses described are substantially the same, though a different
penalty is attached to the their commission by the sections referred to, it was
held by the court, under the first indictment, which was in terms for treason, that
the smaller penalty could alone be inflicted, that the prisoners could not be
capitally punished, and could therefore be admitted to bail. On the same grounds it
was considered that under the present indictment, which pursues the language of the
second section, the offense charged was treason; that both the offense as described
and the overt acts charged amounted to that crime, and that the accused were
entitled to all the privileges secured by the Constitution or allowed by law to
parties on trial for treason; and, this notwithstanding, that in consequence of the
legislation referred to, the penalty for treason could not be inflicted. In
determining, therefore, whether the defendants can be convicted under this
indictment, it will be proper to consider whether their acts constitute in law �a
levying of war,� for �an engaging in a rebellion and giving it aid and comfort�
amounts to a levying of war; while at the same time we may also inquire whether
their acts are such as would, if done with regard to a public enemy, constitute an
adherence to him, �giving him aid and comfort.�"

As said by Justice Grier, in Hanway�s case, "treason against the United States is
defined by the Constitution itself. Congress has no power to enlarge, restrain,
construe, or define the offenses. Its construction is entrusted to the court
alone."cralaw virtua1aw library

Notwithstanding the fact that Congress does have the power to fix the penalty of
this crime and the construction placed upon the act of July 17, 1862, in the case
of Greathouse was that under both sections the offense was treason, but when the
treason consisted of engaging in an insurrection or rebellion, it could be punished
only by imprisonment for not more than ten years, in other cases it could be
punished under section 1 by death, or imprisonment for not less than five years.

That the Commission when it used the phrased "levies war," in the first section of
Act No. 292, intended to give to it the meaning which it then had in the United
States, can not be doubted.

In Burr�s case, Chief Justice Marshall used the following language in speaking of
the phrase "levying war:"

"But the term is not for the first time applied to treason by the Constitution of
the United States. It is a technical term. It is used in a very old statute of that
country whose language is our language, and whose laws form the substratum of our
laws. It is scarcely conceivable that the term was not employed by the framers of
our Constitution in the sense which had been affixed to it by those from whom he
borrowed it."cralaw virtua1aw library

In United States v. Greathouse, Justice Field, speaking of the same phrase,

said:jgc:chanrobles.com.ph

"At the time the Constitution was framed, the language incorporated into it from
the English Statute had received judicial construction and acquired a definite
meaning, and that meaning has been generally adopted by the courts of the United
States."cralaw virtua1aw library

No one can believe that the Commission intended to abandon the well-organized
meaning which the phrase then had and give to it a meaning entirely different. If
that had been their intention they would certainly have used other language, so
that their intent not to adopt the recognized meaning would have been manifest.

That the acts committed by the defendant constituted a "levying of war" as that
phrase was understood at the time the act of the Commission was passed, can not be
doubted. Neither can it be doubted that these same acts constituted a "rebellion or
insurrection" within the meaning of the third section of Act No. 292. The two
sections can only be reconciled in the manner employed in the case against
Greathouse, and that decision should be followed.

However, in respect to the penalty, it makes no difference whether the offense

called rebellion in section 3 of Act No. 292 is considered an offense different
from that of treason defined in section 1, or whether the decision in the case of
Greathouse be followed and the acts punished by section 3 considered as of the same
character as those punished by section 1. In either case the punishment can not
exceed teen years� imprisonment and a fine.

There would be a difference in respect to evidence to prove the two crimes. If

rebellion and insurrection are treason, a defendant can not be convicted under
section 3 except on the testimony of two witnesses to the same overt act or by
confession in open court. (Act of Congress, March 8, 1902, sec. 9.) If they are not
treason he could be convicted upon the testimony required in ordinary cases. In
United States v. Greathouse the court held that the constitutional provision as to
two witnesses applied to prosecutions under the second section of the act of 1892
(our sec. 3). It is not necessary, however, to decide that question in this case,
as the overt act of the defendant was proved by two witnesses; neither is it
necessary to decide whether the omission in section 3 of the phrase "owing
allegiance to the United States," which is found in section 1 taken in connection
with section 17 of the act, makes a difference between the two sections in respect
to the persons who may be covered by them. In the case at bar the defendant was a
native of Cebu and is therefore covered both by section 1 and section 3.

This court has decided two cases in which treason was charged. In the case of
United States v. Antonio de los Reyes, February 23, 1904, 1 the defendant was
acquitted because no overt act of treason was proved. In the case of United States
v. Magtibay (1 Off. Gaz., 932 1) the defendant was acquitted because there were not
two witnesses to the same overt act.

The judgment is affirmed with a change of the penalty, however, from death to ten
yeas and a fine of $10,000, money of the United States, with the costs of this
instance against the defendant.

Separate Opinions

ARELLANO, C.J., with whom concurs MAPA, J. :

I concur in the result of this opinion in accordance with section 3 of Act No. 292,
covering the crime of rebellion.

McDONOUGH, J. :

I am of opinion that the crime committed is that of insurrection and not that of
treason, and that the conviction should be had under section 3 of Act no. 292 for
insurrection.

The case of the United States v. Greathouse Et. Al. (26 Fed. Cases, 18) does not
seem to be in point. The defendants there were charged with taking part in a
rebellion against the Government of the United States. There was no doubt at all
that rebellion did not fall short of actual war and of a state of war, and so Mr.
Justice Field said: "It is not necessary that I should go into any close definition
of the words �levying war,� for it is not sought to apply them to doubtful case . .
. War of gigantic proportions is now waged against the United States . . . and all
who aid in its prosecution are guilty of treason."cralaw virtua1aw library
In the case before us, however, it does not seem necessary to closely define the
words "levying war," for they have been applied in a case that is more than
doubtful.

In the Greathouse case te learned judge met with a difficulty when he undertook to
so construe the section of the act of 1862, relating to the punishment for treason,
and the section following, defining the crime of rebellion or insurrection and
prescribing the penalty for this latter offense different from that prescribed for
treason; and to justify his conclusions he held that all that Congress intended by
the act of 1862 was to preserve the punishment for treason committed prior to 1862
as it was prescribed in the act of 1790 � "unless," as he stated, "the parties are
convicted under the act 1862 for subsequent offenses" � and to punish treason
thereafter committed with death.

It must be confessed that the language used is not clear and the conclusion reached
as to the construction of these two sections seems to have been strained to fit the
case then before the court.

Long after the civil war Congress caused the United States Statutes to be revised,
and the sections of the act of 1862 were changed by omitting that part thereof
relating to the liberation of the slaves of those found guilty of treason,
rebellion, or insurrection. That revision in found in sections 5331 and 5332,
defining and providing for the punishment of treason, and in section 5334, which
defines and provides for the punishment of rebellion or insurrection. No reference
whatever is made in the revision to the act of 1790, nor can these sections be
reasonably construed to mean that treason committed before this revision, or before
1862, is punishable differently from treason committed after the revision of the
statutes. In case of doubt regarding the proper construction of statutes the courts
frequently refer to the debates of the law-making body when the measure was under
discussion. Judge Field in his opinion made reference to the discussion in the
United States Senate when the act of 1862 was being considered.

"It appears," said the learned judge, "from the debates in the Senate of the United
States when the second section was under consideration � that relating to rebellion
or insurrection � that it was the opinion of several Senators that the commission
of the acts which it designates might, under some circumstances, constitute an
offense less than treason." The court, however, gave no consideration and no weight
to this discussion, apparently for the reason that there was no doubt that the
rebellion, in which the defendant was charged with participating, was" a gigantic
war."cralaw virtua1aw library

Since there seems to be now no reason, and since there was no reason at the time
Congress revised the statutes in 1873 and incorporated therein the provisions of
the act of 1862 as sections 5331, 5332, 5333, and 5334, for preserving the penalty
for treason committed prior to 1862 and fixing another penalty for a like crime
committed thereafter, it may be reasonably held that there is no such distinction
now. To hold that the acts described in section 1 of Act No. 292 of these Islands
constitute treason, and the acts described in section 3 of that act also constitute
treason, is to hold that the law provides contradictory punishments for the same
offense; thus the punishment for treason under first section may be death or
imprisonment for not less than five years and a fine of not less than $10,000,
whereas the punishment under the third section can not be death, and maybe
imprisonment for any period not less than ten years and for a fine in any sum less
than $10,000.

It can not be that the law-making body intended such a contradiction and such an
interpretation of this law. It is more reasonable to hold what the plain language
of the sections indicate as the debate in the Senate shows that it was the
intention of the law-making body to create a crime of a less degree and less
magnitude than that of levying war against the Government, which new crime was
designated as rebellion or insurrection.

It is easy to conceive that an insurrection may exist which does not amount to war.
The three tailors of Tooly Street who resolved that they were the people of England
might be emulated here by three natives who might assemble in public, proclaim the
independence of the Islands, carry a cross or a banner, fire their revolvers, or
throw their bolos at the Constabulary, and then take to their heels; but this would
scarcely be held as a levying of war against the United States or against the
Philippine Islands. It may, however, be held, that a movement of that kind is an
insurrectionary movement. In other words, there may be a state of insurrection
without being a state of war � an insurrection of a less degree than war; although
the insurrection may eventually attain such proportions and such magnitude as to
ripen into war.

In the Prize cases (67 U.S., Sup. Ct. Rep., 635) the learned counsel for the
prosecution and the Supreme Court gave clear definitions as to what constituted war
and a state of war.

Mr. Wm. M. Evarts, the distinguished counsel for the Government in those cases,
stated:jgc:chanrobles.com.ph

"War is emphatically a question of actualities. Whenever the situation of opposing

hostilities has assumed the proportions and pursues the methods of war peace is
driven out, the ordinary authority and administration of the laws are superseded,
and war in fact and by necessity is the status of the nation, until peace is
restored and the laws resume their dominion."cralaw virtua1aw library

In the same cases Mr. Justice Grier stated:jgc:chanrobles.com.ph

"A civil war is never solemnly declared; it becomes such by its accidents � the
number, power, and organization of the persons who originate and carry it on. When
the party in rebellion occupy and hold in a hostile manner a certain portion of the
territory, have declared independence, have cast off their allegiance, having
organized armies, have commenced hostilities against their former sovereign, the
world acknowledges them as belligerents and the contest is war."cralaw virtua1aw
library

The proof in the case at bar does not show such conditions or such a state of
affairs as constitute war within these definitions; nor do the acts of the
defendants show that they were levying war. The executive branch of the Government
did not call upon the regular army for help to put down the rising; martial law was
not proclaimed; the privileges of the writ of habeas corpus were not suspended; the
civil power remained supreme; the civil courts were open; and the resistance to law
was not such as to render the civil authorities powerless to cope with it; in fat,
the insurgents were easily put to fight by the Constabulary.

In 1902 the President of the United States proclaiming a state of peace in these
Islands, except in the Moro country. Nothing has since happened of sufficient
importance or magnitude to cause this court to acknowledge or to hold in this case
that a state of war now exists. A few roving bands of brigands, organized primarily
for plunder, but pretending to be patriots and shouting for Philippine independence
in order the more readily to obtain help, immunity, and protection from any
sympathizers are not to be considered as organized armies occupying territory and
levying war, especially when the civil authorities are able, without great
difficulty, to pursue, capture, and punish the robbers or insurgents.

If it be desired to have no division line between treason and insurrection, the

Commission may readily repeal section 3 of Act No. 292. While that section remains
as a part of law, it should be given consideration in a proper case.

I am of opinion, therefore, that section 3 of Act No. 292 was intended to cover the
crime of insurrection as distinguished from treason, and that the defendant should
be punished pursuant to the provisions of section 3 of Act No. 292 for the crime of
insurrection.

JOHNSON, J., dissenting:chanrob1es virtual 1aw library

The defendant was charged with the crime of treason under section 1 of Act No. 292
of the United States Philippine Commission. He was tried in the city of Bacolod on
the 14th of January, 1903, by the judge of the Court of First Instance of the
Province of Occidental Negros, with several others, and was found guilty and
sentenced to the penalty of death. He appealed to this court. The following is the
statement of facts disclosed by the evidence in this cause:chanrob1es virtual 1aw
library

In the month of October of the year 1902, the municipal president of the town of
Murcia, of the Province of Occidental Negros, in the Philippine Islands, received a
letter signed by Dalmacio Lagnason and others who entitled themselves "generals" of
a celebrated band. This band was called "Babaylanes." This band had existed from
time immemorial, and had lived in the mountains in the southern part of the said
province. The band was armed and during the days of the Spanish Government had
frequently attacked the then existing authorities. It had frequently attacked the
provincial government and on the 29th and 30th of October, 1902, made an attack
against the United States Government, as constituted in the said pueblo of Murcia.

This letter was forwarded by the municipal president of Murcia to the senior
inspector of the Philippine Constabulary, Mr. John R. White, and at the same time
information concerning the same was given to a corporal, Bernardo Abasola, of said
Constabulary, commanding the detachment of said Constabulary in the said pueblo,
who, on the said 29th day of October, having information that there was a band of
Babaylanes in the suburbs of said town, numbering from eighty to one hundred and
twenty men, went out to find them and finally located them in a place called
"Iglauaan," near the town of Murcia. Upon being satisfied of the existence of the
said band, he returned to the town of Murcia and informed the senior inspector, Mr.
White. The band, taking note of the fact that the members of the Constabulary had
withdrawn, advanced up to the suburbs of the town of Murcia, deciding to enter the
same, and for this reason the force of the Constabulary detachment were obliged to
attack them, and did then and there have a skirmish with the said band, until it
retired to the place called Iglauaan, where they were first discovered.

The band was armed with Springfield rifles, a small cannon, bolos, and lances, and
was commanded by the defendant, Dalmacio Lagnason, the negro. At 7 o�clock in the
evening of the said 29th day of October, the inspector, Mr. White, arrived at the
town of Murcia with more soldiers, and at 2 o�clock of the following morning
Inspector Smith arrived with more forces. These being combined, with Mr. White in
command, at daybreak on the 30th of October, they went out in pursuit of said band,
following the tracts left by them the previous afternoon.

At 6:30 a.m. of the 30th of October, and in the same place where the party was
located the previous day, it was discovered by the said Constabulary forces. The
band retreated until it crossed the Caliban River, when it opened fire upon the
Constabulary and a fight ensued at close range, which enabled all the members of
the band to be seen. The fight lasted approximately an hour and a half. Two guides
of the Constabulary called Tranquilino Toscano and Lazaro Guibon died in
consequence of wounds received from shots from Springfield rifles. Among the
members of the band Esteban de los Reyes, Rufino Rayo, and twenty other members
were killed. The band then took flight and was pursued by the Constabulary forces,
which succeeded in capturing the general, Dalmacio Lagnason, who, during the action
was discharging a Springfield rifle at the inspector, Mr. White, and later, during
the same fight, attempted to discharge a revolver at Mr. White, which arms were
found upon his person at the time of his capture. There were also found where the
fight took place a small cannon, various talibones, lances, and two large wooded
crosses and various papers. A few days after the fight Simon Perje and Isidro Oyco
were captured in a small shack in the mountains near the place where the fight took
place. One of these was wounded in the thigh and the other in the knee. They
confessed that they were members of the party of Babaylanes under the order of Gen.
Dalmacio Lagnason; that they took a direct part in the action with the Constabulary
forces on the 30th of October, in which action they were wounded. Bernardo
Talontada, Vidal Artegosa, Valeriano Talaman, and Luis and Vicente Dimit testified
before the president that a few days previous to the fight between the said band of
Babaylanes and the Constabulary, they were in a certain house when several armed
men presented themselves and compelled each of them to join the said band of
Babaylanes under the command of Gen. Dalmacio Lagnason and others; that they had
complied with said request against their will under fear of being maltreated or
murdered. They were subsequently conducted to various points, and finally to the
country surrounding the mountains of Murcia, where, on the 30th day of October, an
action took place between the said band and the Government forces, from which band,
during the said fight, they escaped.

The testimony of the senior inspector of the Constabulary, Mr. White, given in open
court in the trial of the cause against the defendant, is as
follows:jgc:chanrobles.com.ph

"Q. Do you know any band in arms against the Government of the United States in
this province?

"A. Yes, sir; I know the band of Dionisio Papa, camped in the southern part of this
province, and that of Dalmacio Lagnason, the negro, who is camped in the northern
part.

"Q. Do you know if any one of these bands, within the last few months, has
attempted to attack any town of this province?

"A. About the end of the month of October last the band of Dalmacio Lagnason,
composed of some eighty men, armed, attempted to attack the town of Murcia and the
Constabulary detachment of the same place.

"Q. Have the Constabulary forces had a fight with this band; and if so, did they
offer any resistance?

"A. Yes.

"The COURT. Can you state the place of the fight?

"A. Two fights were had near the barrio of Iglauaan, on the Caliban River, some
three kilometers from Murcia, the first on the afternoon of the 29th of October,
and the second at the same place at 7 o�clock on the morning of the 30th of said
month.

"Q. What was the result of these engagements?

"A. The result was that in the first fight one of the band that attacked the town
died, and in the second twenty-one Babaylanes died, and Dalmacio Lagnason was
captured. with three Springfield rifles, a revolver, several talibones, lances, and
other effects, among which a small cannon also was found where the fight took
place.

"Q. When Dalmacio was captured did he have any arms?

"A. Dalmacio had a Springfield rifle, a revolver, and a talibon.

"Q. Can you state the names of the men killed among the loyal troops during the
fight to which you have referred?

"A. They were Tanquilino Toscano and Lazaro Quiachon.

"Q. Were Dalmacio and his people uniformed, or did they have any special
distinction?

"A. The greater part of Dalmacio�s men had black shirts and white pants, and some
had black-peak caps.

"Q. Did Dalmacio and his men resist the troops of the Government for some time, or,
on the contrary, did they scatter when the firing commenced?

"A. The fight lasted an hour and a half.

"Q. Among the bodies found in the enemy�s camp, were any recognized?

"A. The bodies of Esteban de los Reyes and Rufino Rayo were seen at the same place
where the fight took place, among the dead of the band.

"Q. Did the guides of the loyal troops die by reason of gunshot wounds, or from
bolos?

"A. They died as the result of wounds caused by shots from Springfield rifles.

"Q. How did you know of the existence of that armed band which attempted to attack
the town of Murcia?

"A. One of the ways by which I knew was by a letter which Dalmacio and other
generals of the band addressed to the president of Murcia, which was forwarded to
me.

"The COURT. Did you have any knowledge through other channels besides the letter
presented that the armed band under the command of Dalmacio Lagnason received
orders from Dionisio Papa, or operated independently?

"A. I know that since the occupation of this province by the American troops,
Dalmacio Lagnason operated independently in the north, although in connection with
Papa, according to information I received from the military guarding this town.
These facts are proven by various documents captured on various expeditions made to
the mountains against said bands.

"The COURT. Did Dalmacio Laganson�s band carry any flags during said fight?

"A. They did not carry a flag, but two large, wooden crosses, which were captured
in the second fight and which were also distinguished in the first fight by the
loyal troops.

"The COURT. Could the Constabulary forces distinguish from their position during
the fight those who formed the enemy�s band?

"A. At the distance at which they were they could only distinguish the group,
although, as I was advancing with my forces, I could distinguish and recognize
Dalmacio, who discharged his gun at me, and tried also his revolver, although the
latter did not work. Dalmacio later drew his talibon, which he flourished against
me. The other members of the band, who numbered seventy or eighty men, acted in a
hostile manner, sometimes advancing and other times retreating, but always
maintaining resistance until the moment of their flight.

"The COURT. When you saw Dalmacio Lagnason, who shot at you, did you already know
that it was the same Dalmacio?

"A. As I had information that Dalmacio was black, I suspected immediately that the
one who pointed his gun at me was the same Dalmacio, because he was black, which
suspicion was confirmed, inasmuch as the party whom I supposed was Dalmacio, being
near me, surrendered himself, falling on his knees and confessing to be Dalmacio.
This fact was also confirmed by the other prisoners captured on the following
day."cralaw virtua1aw library

The testimony of Walter Smith, given at the trial, is as

follows:jgc:chanrobles.com.ph

"Q. As an inspector of Constabulary were you present at the fight which took place
at the pueblo of Murcia on the 30th of October last, and what was the nature of the
enemy who opposed you?

"A. I was present at the said fight with a band of those called Babaylanes, under
the command of Dalmacio.

"Q. Do you know if Dalmacio and his band were constantly organized and where they
located themselves?

"A. According to official data, it is a band located between the towns of Calatrava
and Cadiz Nuevo, which was constantly armed, and assembled with the object of
establishing an independent government, contrary to that established in this
province, and to occasionally devote itself to robbery.

"Q. Are you acquainted with any of those who formed part of this band of the enemy
which fought the Constabulary on the said date?

"A. I am acquainted with Dalmacio Lagnason, who is now present.

"Q. Of how many was the band composed, and with what arms were those who formed the
same provided?

"A. Approximately it was composed of some seventy or eighty men, armed with five or
ten guns, bolos, lances, Springfield rifles with ammunition, a revolver, and a
small cannon.

"Q. Were those who formed Dalmacio�s band armed?

"A. I can not state that all were, but I am sure the greater part were.

"Q. Did Dalmacio�s band offer resistance to the forces of the Government?

"A. Yes; they offered resistance for an hour and a quarter or an hour and a half.

"Q. What was the result of the fight on both sides?

"A. On the enemy�s side I saw five dead, but afterwards official information stated
twenty or twenty-five. On our side there two killed who acted as guides, and whose
names I do not now remember.

"Q. What was the reason of this fight?

"A. Having received information that the said band intended to enter the town of
Murcia, and to continue to this capital, in view of which, to preserve order, it
was decided to go out and meet them, and they were found at a place called
Iglauaan.

"Q. During the fight, or afterwards, were some of the enemy�s band made prisoners?

"A. Immediately after the fight Dalmacio was captured, and I returned to the town
of Murcia, having ordered that some soldiers go out to recover the bodies, and on
their return they brought some prisoners who were captured in the cogon grass near
the place where the fight took place and who were presented to the officer in
charge, Mr. White.

"Q. In connection with the fight and the advance of Dalmacio�s men upon the town of
Murcia, do you know if any injuries were caused to private individuals?

"A. I am not aware of any injury to private individuals. I can say that according
to information, several private persons were invited to join the band of
Dalmacio."cralaw virtua1aw library

The testimony of Rosalio Teflora is as follows:jgc:chanrobles.com.ph

"Q. Were you present in any fight during the last days of the month of October
last?

"A. Yes, sir; on the 30th of October, at the place called Iglauaan, of the town of
Murcia, against the band of Babaylanes commanded by Dalmacio, who desired to enter
the said town. I was under the orders of Senior Inspector White.

"Q. What was the result of said fight?

"A. We lost two guides, whom I saw fall at my side, wounded by a shot; and a little
while after, one of the enemy�s shots smashed the butt of my gun. I do not know the
enemy�s losses, because I returned to Murcia in compliance with the orders of my
chief, to look after wagons. Three guns, a revolver, and many bolos and lances were
captured from the Babaylanes, and the chief of the band, Dalmacio, was captured
personally by Inspector White.

"Q. Besides Dalmacio, were others of said band captured?

"A. Two others were captured in the brush near the place where the fight took
place.

"Q. Do you know the object of Dalmacio�s plans?

"A. All that I know is said band intended to attack and take the town of
Murcia."cralaw virtua1aw library

The foregoing facts, in my judgment are sufficient to indicate that the said
defendant, with his associates, intended to overthrow the Government of the United
States, as constituted in the said town of Murcia, in the Province of Occidental
Negros, in the Philippine Islands. The defendant was a resident in the Philippine
Islands, and owed allegiance to the United States Government in the Philippine
Islands. His acts, as disclosed by the proof in this case, show clearly that it was
not his intention to oppose the constituted authority in these Islands in the
administration of the Government, but to absolutely overthrow the Government.

Any organized attempt, by force of arms, on the part of persons joined together in
a band, who owe allegiance to the Government, to overthrow and destroy the
constituted Government is the levying of war against that Government. The evidence
in this case of the United States v. Lagnason clearly shows that the defendant and
his band intended to destroy the constituted Government of the United States in the
Pueblo of Murcia in these Islands, and is therefore guilty of the crime of treason.
No formal declaration of war is necessary in order that the parties shall be guilty
of levying war against the Government. War may exist without a proclamation to that
effect. Actual hostilities may determine the date of the commencement of war,
though no proclamation may have been issued, no declaration made, and no action of
the executive or legislative branches of the Government had. This is recognized by
the proclamation of the President William McKinley, issued on the 26th day of
April, 1898, which is as follows:jgc:chanrobles.com.ph

"Whereas by an Act of Congress approved April 25, 1898, it is declared that war
exists and that war has existed since the 21st of April, 1898, including said day,
between the United of States of America and the Kingdom of Spain; and whereas it
being desirable that such war should be conducted upon principles in harmony with
the present views of nations and sanctioned by their recent practices, it has
already been announced that the policy of this Government will be not to resort to
privateering, but to adhere to the rules of the Declaration of Paris."
(Buenaventura Et. Al., 87 Fed. Rep., 927.)

Neither is it necessary for the Government to wait until those who are attempting
to overthrow the Government should make a showing of apparent power necessary to
destroy the Government or any part of the same before it may declare that those who
are guilty of such an attempt are guilty of levying war, and therefore guilty of
treason. Neither is it necessary for the authorities of the Government to call upon
the military arm of the Government before such a condition may be recognized on the
part of the Government.

I can not give any consent to the doctrine enunciated in th opinion of Mr. Justice
Willard, filed in this case. I can not subscribe to the doctrine that the crimes
described and defined in sections 1 and 3 of Act No. 292, of the United States
Philippine Commission are the same, and that the only punishment which can be
imposed under either is that provided for in section 3. Mr. Justice Willard
evidently reaches this conclusion upon the theory that treason and rebellion or
insurrection are the same crimes, and that you cannot have two punishments for the
same offense, and that if the statute does provide for two punishments for the same
offense, then the lesser penalty only, under the statute, can be inflicted. This
latter doctrine may or may not be true, but in my judgment the premises assumed
here by which this conclusion is reached is not justifiable. The legislative body
in these Islands clearly created, by Act No. 292, two distinct crimes or two
distinct degrees of the same crime, with separate and distinct punishments.

Neither can I subscribe to the doctrine that this court should make no distinction
between the crime of treason, defined in section 1, and that of rebellion or
insurrection, described in section 3 of said Act No. 292. Th Commission intended to
create separate and distinct crimes by said sections.

No one will contest the statement that rebellion or insurrection is of the nature
of the crime of treason. Neither will the statement b contested that the
manslaughter is of the nature of the crime of murder, but yet no lawyer will
contend that the punishment should be the same nor that the punishment provided for
manslaughter is the only punishment which can be inflicted for murder, and that
those who commit manslaughter should be stigmatized with the allegation that they
have committed murder. At times the courts have great difficulty in distinguishing
murder from manslaughter, but when the distinction is once made, by evidence, then
the courts have no trouble in administering the penalties created by the law for
the respective crimes of murder and manslaughter. So I am also persuaded that it is
a most difficult task, at times, and in particular cases, to make a clear
distinction between treason and insurrection. The crimes are of the same general
class, and only differ in their magnitude and gravity. What may be in its
incipiency a mere insurrection, may come to be, in the final proportions which it
assumes and the extent of its purposes and possible results, high treason. Treason
is the highest crime which a man may commit against his government. This has always
been so regarded. There are many instances of record where men charged with high
treason were tried and convicted, after their death, even, and whose bodies were
quartered by means of horses in the public square. A man who has been found guilty
of treason is never able t outlive the stigma that he has thus brought upon
himself.

Neither can I secure the consent of my mind to agree with the finding of fact
contained in the opinion of Mr. Justice McDonough, that the accused in this case,
under the facts proven, is guilty of the crime of rebellion or insurrection and not
that of treason.

Treason may be defined as an organized effort, on the part of those who owe
allegiance to a government, to overthrow their government, and either to
established another in its place, or to establish a state of lawlessness and
rapine, while insurrection may be defined as a resistance, by unlawful means, to
the operation of some particular law, or to the constituted authorities. This
resistance may grow out of a misunderstanding of the purposes of the Government on
the part of individuals, or in the purposes, or the methods employed in the
enforcement of a particular law. It may be that those who are opposed to the
purpose and operation of a particular law and the wisdom of its enactment are as
loyal, generally, to the existing government as any of the citizens of the
commonwealth, and may be perfectly willing to join with the royal troops against
the enemies of the government and those who desired to totally destroy it. The
Congress of the United States appreciated these facts when it amended the law of
1790 by the act of 1862, and later by the act of 1875. Congress appreciated these
facts when it amended the law of 1790 by the act of 1875. Congress appreciated the
fact that many loyal citizens might, from their own standpoint, oppose, as has been
done by the lawful means, the operation of a single law, and that the stigma cast
upon them by charging them with treason was entirely too severe. Congress,
therefore, provided for a lesser crime in the act of 1862, and called it rebellion
or insurrection. Many obnoxious laws have been repealed and better ones enacted in
their stead, and the condition of the whole people improved thereby by a determined
opposition them. As a result of the interpretation by the courts of the law of
1790, as was given in the case of Mitchell in the whisky rebellion, as well as that
in the case of Frills, Shay & Brown, Congress saw and appreciated that the odium
cast upon such persons and the punishment provided for in said act of 1790 was
entirely too severe, and therefore amended such act as indicated above.

The Commission, in enacting the present law defining treason as rebellion or

insurrection, have not lost sight of these considerations. The fact that the
Commission intended to create two crimes instead of one by sections 1 and 3 of Act
No. 292 is further verified by the provisions of section 17 of said act, which
provisions are as follows:jgc:chanrobles.com.ph

"A foreigner, residing in the Philippine Islands, who shall commit any of the
crimes specified in the preceding sections of this act, except those specified in
sections 1 and 2, shall be punished in the same way and with the same penalty as
that prescribed for the particular crime therein."cralaw virtua1aw library

This court has on more than one occasion found persons guilty of the crime of
rebellion or insurrection by that name, and the decisions in said cases were signed
by all the judges. I see no occasion now for concluding that those crimes should
have been classified as treason.

We have also tried men and sentenced them to life imprisonment and death for
robbery under Act No. 518 of the Civil Commission. Is it possible that any person,
in view of the provisions of section 1 of Act No. 292, can conclude that the
punishment of improvement for ten years only can be inflicted upon those who take
up arms against the Government and by force and violence attempt utterly to destroy
it? We are not of the opinion that the Legislature of these Islands intended to
provide by law that those who are guilty of robbery or brigandage could not be
punished with imprisonment for less than twenty years, while those who are found
guilty of treason could not be punished with imprisonment for more than ten years.
Such a conclusion is unjustifiable.

The decision of the court below was justified by both the evidence adduced in the
trial and by the law, and therefore should be affirmed with costs in both
instances.

COOPER, J., dissenting:chanrob1es virtual 1aw library

The defendant was charged, under section 1 of Act No. 292, with the crime of
treason and was convicted and sentenced to the penalty of death.

The section under which the conviction was made reads as

follows:jgc:chanrobles.com.ph

"Every person, resident in the Philippine Islands, owing allegiance to the United
States or the Government of the Philippine Islands, who levies war against them, or
adheres to their enemies, giving them aid and comfort within the Philippine Islands
or elsewhere, is guilty of treason, and upon conviction, shall suffer death or, at
the discretion of the court, shall be imprisoned at hard labor for not less than
five years and fined not less than ten thousand dollars."cralaw virtua1aw library

In the decision reached in the case by a majority of the court, distinct views were
entertained, the view held in common being that the defendant is guilty and should
be punished with imprisonment for the term of ten years and a fine of ten thousand
dollars.

It is said in the majority opinion, delivered by Justice Willard, that the offense
as defined in section 1 of Act No. 292 denominated treason, and the offense as
defined in section 3 of said act denominated as insurrection or rebellion, are of
the same character and that each offense is treason; but that in fixing the
penalty, though the indictment is under section 1 of said act, and the offense of
treason as defined therein is punishable by death at the discretion of the court,
yet the penalty prescribed under the third section for the offense of rebellion and
insurrection must be applied, which is imprisonment for not more than ten years and
a fine of not more than $10,000.

It is said in the concurring opinion by Justice McDonough that there are separate
and distinct offenses defined and punishable in section 1 and section 3 of Act No.
292, the offense defined in section 1 being that of treason and that defined in
section 3 being that of rebellion or insurrection; that the acts committed by the
defendant constitute the offense of rebellion or insurrection and not that of
treason; and that the penalty to be applied must be that which is prescribed in
section 3 for rebellion or insurrection.

The conclusion reached in the majority opinion seems to result from an adherence to
the case of the United States v. Greathouse (4 Sawyer, 457; 26 Fed. Cases, 18),
decided by Mr. Justice Field in a trial in the circuit court in which he presided.

In that case the defendant was on trial charged with the offense of rebellion or
insurrection under section 2 of the act of Congress of July 17, 1862, and not for
treason under section 1 of said act.

Prior to the act of Congress of July 17, 1862, several cases had arisen involving a
construction of the provision contained in section 3, article 3, Constitution of
the United States, and the act of 1790 made under this provision of the
Constitution.

There had been much discussion in the early cases as to what would constitute a
levying of war within the meaning of the term as used in the constitutional
provisions. This discussion involved both the question as to the acts which amount
to a levying of war and as to the motive or purpose of those engaged in the same.

At the time of the decision in the Greathouse case these questions had been well
settled and the result of the decisions was stated by Justice Field in the
following language:jgc:chanrobles.com.ph

"To constitute a levying of war there must be an assemblage of persons in force, to

overthrow the Government, or to coerce its conduct. The words embrace not only
�those acts by which war is brought into existence, but also those acts by which
war is prosecuted . . . The offense is complete, whether the force be directed to
the entire overthrow of the Government throughout the country, or to defeat the
execution and compel the repeal of one of its public laws."cralaw virtua1aw library

Under the provision of the Constitution defining treason, the offense was complete
whether the force was directed to the entire overthrow of the Government or whether
it was a rebellion or insurrection against the authority of the United States or
the laws thereof; but a distinction was thought to exist, at the time of the
enactment of the law of July 17, 1862, between the offenses defined in the same. As
stated by Justice Field, it was the opinion of several senators that the commission
of the acts which Congress designated in the law might, under some circumstances,
constitute an offense less than treason.

But the judges were of the opinion in the decision of the Greathouse case that
Congress had not created separate and distinct offenses by the enactment of the
first and second sections of the act of July 17, 1862; that by the first section of
the act (secs. 5331 and 5332, U.S. Rev. Stat.) , in which treason is defined and
made punishable by death, and by the second section of said act (sec. 5334, U.S.
Rev. Stat.) in which the offense of rebellion or insurrection is defined and made
punishable by imprisonment for not more than ten years, Congress has not done more
than ten years, Congress has not done more than created the offense of treason.

It must be borne in mind in applying the Greathouse case here, as said by Justice
Field in that case, that treason against the United States is defined by the
Constitution itself and Congress has no power to enlarge, restrain, construe, or
define the offense, its power over the subject being limited to prescribing the
punishment for the offense.

The Philippine Commission was not restricted in this respect and had the power to
divide the offense of treason, such as is defined in the Constitution of the United
States and as it had been construed by the United States courts, into as many
offenses as it saw fit and to affix such punishment as was deemed proper to each
class of cases.

Such considerations as evidently influenced the court in the Greathouse case with
reference to the power of Congress to enlarge, restrain, construe, or define the
offense of treason should have no weight in the determination of the questions
here.

It is hard to conceive that in enacting Act No. 292, the Commission had in view the
decision in the Greathouse case, for, as stated, the Philippine Commission was
unrestricted in its action to define treason.

It is also difficult to understand that the Commission intended to punish the

offense of treason by imprisonment for not more than ten years and a fine of not
more than ten thousand dollars when the punishment for treason has in the first
section, in express language, been fixed at death, or imprisonment for not less
than five years and a fine of not less than $10,000.

Such confusion of ideas and terms can not be attributed to the Commission.

If we leave out of consideration the Greathouse case, the question seems hardly
susceptible of argument or discussion.

Nor can I agree in the views expressed in the concurring majority opinion.

The difference between the "levying of war," which constitutes the crime of treason
under section 1, and that of insurrection and rebellion as provided for in section
3, does not depend upon the magnitude of the movement, but rather upon the
intention and purposes of the persons engaged in it.

If the intention is to utterly overthrow the Government and establish another

independent government in its place, and the person engaged in the act owes
allegiance to the United States or the Government of the Philippine Islands, the
offense is treason and is punishable under section 1; while if the intention and
purpose was simply to obstruct and resist "the authority of the United States or
the Government of the Philippine Islands, or the laws thereof," the offense is
rebellion or insurrection.

To resist the authority of the Government of the United States or the Philippine
Islands, or the laws thereof, by rebellion or insurrection, was regarded by the
Commission as much less culpable and of a less dangerous character to the
Government than where the intention was to entirely overthrow the Government and
substitute an independent government in its stead. This idea is fairly illustrated
by a case recently decided by this court, in which the Government through its
officers was resisted in taking the census of the people in a certain pueblo, on
account of the belief of the people there that the taking of the census was
intended to furnish means to enable the Government to exercise its taxing power on
the property in that particular section of the country. Another illustration was
the opposition made to the sanitary laws during the late cholera epidemic among
certain ignorant people, who believed that the sanitary inspectors were engaged in
poisoning the wells in the country, and opposed them in the performance of their
duties.

While persons engaged in such resistance to the laws and authority of the
Government may be guilty of rebellion or insurrection, they are not guilty of
treason as defined in the first section of Act No. 292.

What constitutes a "levying of war" has been given a definite meaning by the
decision of the Supreme Court of the United States in the case Ex Parte Bollman (4
Cr., 75), and in the elaborate opinion delivered by Chief Justice Marshall on a
motion to introduce certain evidence on the trial of Aaron Burr for treason (found
in Note B, appendix, 4 Cr.) . These decisions have set at rest the question; they
have been referred to in the majority opinion and need not be further considered.
To constitute a levying of war it is not necessary that a state a state of war
should exist in the sense that armies must be organized and placed in the field; or
that the executive branch of the Government should have called upon the Regular
Army for support; or that martial law should have been proclaimed; or that the
courts of the country should be closed and the privileges of the writ of habeas
corpus suspended; or that the civil power should have been rendered powerless to
cope with the uprising; or that hostilities should assume such proportions that the
world acknowledges those engaged in it as belligerents and the contest as that of
war, for if the movement has assumed such proportions as entitle those engaged in
it to the rights of belligerency, in modern times those engaged in it are not
generally punished for treason; to punish them all would be equivalent to
extermination.

I am not inclined to treat with contempt what are termed roving bands of brigands.
In a number of cases this court has had before it proof of the nature and character
of the Katipunan organization and its allied branches, under its various names in
the Philippine Islands. The subject has also been treated of in the reports of the
Chief of Constabulary. The character and extent of its operations is a matter of
public notoriety. From all of which it may be well inferred that it is of a much
more serious character than is indicated in the concurring majority opinion. It is
not for the courts to treat such questions in any other way than from a legal
standpoint. It is our duty to enforce the laws which have been enacted, rather than
to express our individual views upon political questions that belong solely to the
legislative power.

The offense of treason is not only the highest offense known to the law, but is the
one most dangerous to the existence of the government.

The laws enacted by the Philippine Commission against treason are the only means of
protection to the Government. The legislative power has seen fit to inflict severe
punishment upon those engaged in these dangerous undertakings. A sufficient
discretion is given the courts in fixing the penalties. The discretion which has
been left to the court in inflicting the penalties for the infringement of the law
is the only discretion which we can rightfully exercise.

The defendant and his followers constituted not only "a warlike assemblage,
carrying the appearance of force, in a situation to practice hostilities," but
hostilities actually resulted. The paraphernalia of war, even cannon, were in
evidence. The slain and wounded gave further evidence of the character of the
undertaking.

There was a levying of war within the meaning of section 1, Act No. 292, and all of
the elements of the crime of treason exist in the case. The punishment under this
section should be inflicted.

TORRES, J., dissenting:chanrob1es virtual 1aw library

In Act No. 292, passed November, 1901, the crimes of treason and rebellion or
insurrection are not defined with proper separation, as they appear in the Penal
Code, as offenses of a different character, each with a separate classification
under the penal law.

However, as the only law applicable to the offense with which Dalmacio Lagnason is
charged is Act No. 292, it is necessary to disregard the doctrines of the Penal
Code and limit this decision to determining the proper interpretation to be given
to sections 1 and 3 of that act.

If according to section 1 it is treason to levy war upon the Government of the

United States or upon the Government of these Islands, or adhere to their enemies,
giving them aid and comfort within the Philippine Islands or elsewhere, then acts
constituting rebellion or insurrection are also acts of treason, for to rebel
against the sovereignty of the United States or the Government of the Philippine
Islands is to levy war upon them.

Every act of public uprising or of open hostility against the sovereign power and
the government of the country or its agents by a band of rebels, is an act of war,
and therefore, although treason and rebellion are not synonyms in the language of
the act in question, it is to be inferred from the text of sections 1 and 3 that
within the crime of treason that of rebellion or insurrection is included as
species is within genus, and that this crime is also of the nature of treason. The
fact that the death penalty is prescribed in the two sections in question is not an
obstacle to this view of the law, owing to the different degree of guilt presumed
in each one of the two sections of the act.

Upon the supposition that the offense committed by Dalmacio Lagnason is comprised
within section 1 of Act No. 292, and that he was the leader of the armed uprising
and the one who put himself at the head of the band which levied war upon the
agents of the Government, he is the one principally responsible for that overt act
of opposition to the sovereignty of the United States, which, although in
accordance with the legal technology it should be classified as rebellion, is,
nevertheless, treason under the provisions of the act in question, and consequently
the proper penalty, in our opinion, is life imprisonment.

In the application of penalties, the principle which controls is that of proportion

between the offense and corresponding penalty prescribed by the law. It is not
permissible to disregard the rules derived from this principle, for such an error
would be contrary to the dictates of reason.

According to these principles, it is not just that the leader of the band should
suffer only the same penalty as that imposed upon his subordinates, who merely
acted under him in the rebellion and carried out his orders. There is
unquestionably a higher degree of criminality on the part of the leader, and
consequently his criminal responsibility is heavier than that of his subordinates,
who merely carry out his felonious designs. In this case Isidro Oyco and Simeon
Perje, subordinates of Lagnason, were condemned to ten years� imprisonment and to
the payment of a fine of ten thousand dollars by a judgment which, not having been
appealed, has become final with respect to these two accused. This circumstance
corroborates our view as to the propriety of condemning the principal leader of a
rebellion in accordance with section 1 of Act No. 292, his guilt having been proven
by the testimony of more than two credible witnesses.

Apart from the reasons above expressed, the circumstance that section 3 of the act
in question leaves it to the discretion of the court to impose upon a defendant a
penalty of imprisonment of from one day to ten years and a fine of from $1,000 to
$10,000, is worthy of serious consideration.

In section 1 the penalty is death or, at the discretion of the court, that of
imprisonment at hard labor from five years to life and a fine of not less that
$10,000. Consequently, if the death penalty is not imposed an accused might be
sentenced under section 1 of this act to a period of imprisonment of less duration
than that which might be imposed in accordance with section 3 thereof, according to
the view taken as to the gravity of the crime and of the greater or lesser degree
of the guilt of the defendant. Furthermore, in support of this opinion, the result
of a long and careful study of the article of the Constitution in point, of the
provisions of law, and some of the decisions of the Supreme Court of the United
States, cited in the majority opinion, we must state that section 3 of Act No. 292
� taking it for granted that within the definition of the crime of treason is
included the offense of rebellion � fixes the responsibility of those who incite,
promote, abet, or take a secondary part in an insurrection, or give the insurgents
aid and comfort, and fixes as to them a lesser penalty than that prescribed for
rebels falling within the provisions of section 1 of the act.

Consequently, the act of levying war upon the Government of the United States or
that of these Islands is punished in the two sections in question. The chief and
the leaders of the rebellion and the principal rebels should be punished according
to section 1 of the law, but their subordinates and those who only take a secondary
part in the acts of war or rebellion should be punished in accordance with section
3 of the same act.

In our humble opinion, this is the way the act in question should be applied in
cases of treason or rebellion or in other cases arising under section 3.

In case the eighty men led by Dalmacio Lagnason had been surrounded and forty of
them taken alive as the result of a fight with the Constabulary, could all have
been condemned to death or to life imprisonment in accordance with section 1 of the
act, because each and every one of them was levying war upon and making armed
resistance to the authorities of the Insular Government? It might have been
possible, but reason and good sense would have protested against the unjust
severity of the penalty as compared with the respective guilt of each one of the
rebels. For the same reason, inversely considered, we are of the opinion that the
penalty prescribed by section 3 is inadequate for the offense committed by the
defendant Lagnason, the principal leader of the bad. For that reason the court
below, while condemning his two subordinates to suffer the penalty of ten years�
imprisonment ad a fine of $10,000, condemned this defendant to death.

For the reasons stated in our opinion, the decision of the court below should be
reversed and the defendant sentenced to the penalty of life imprisonment, the
payment of a fine of $10,000, and to the payment of the costs of both instances.

===================

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-409 January 30, 1947

ANASTACIO LAUREL, petitioner,

vs.
ERIBERTO MISA, respondent.

Claro M. Recto and Querube C. Makalintal for petitioner.

First Assistant Solicitor General Reyes and Solicitor Hernandez, Jr., for
respondent.

R E S O L U T I O N

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

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

Considering that the absolute and permanent allegiance of the inhabitants of a

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

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

Considering that even adopting the words "temporarily allegiance," repudiated by

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

Considering that, as a corollary of the suspension of the exercise of the rights of

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

Considering that, although the military occupant is enjoined to respect or continue

in force, unless absolutely prevented by the circumstances, those laws that enforce
public order and regulate the social and commercial life of the country, he has,
nevertheless, all the powers of de facto government and may, at his pleasure,
either change the existing laws or make new ones when the exigencies of the
military service demand such action, that is, when it is necessary for the occupier
to do so for the control of the country and the protection of his army, subject to
the restrictions or limitations imposed by the Hague Regulations, the usages
established by civilized nations, the laws of humanity and the requirements of
public conscience (Peralta vs. Director of Prisons, supra; 1940 United States Rules
of Land Warfare 76, 77); and that, consequently, all acts of the military occupant
dictated within these limitations are obligatory upon the inhabitants of the
territory, who are bound to obey them, and the laws of the legitimate government
which have not been adopted, as well and those which, though continued in force,
are in conflict with such laws and orders of the occupier, shall be considered as
suspended or not in force and binding upon said inhabitants;

Considering that, since the preservation of the allegiance or the obligation of

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

Considering that adoption of the petitioner's theory of suspended allegiance would

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

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

Considering that the Commonwealth of the Philippines was a sovereign government,

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

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

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

Separate Opinions

PERFECTO, J., concurring:

Treason is a war crime. It is not an all-time offense. It cannot be committed in

peace time. While there is peace, there are no traitors. Treason may be incubated
when peace reigns. Treasonable acts may actually be perpetrated during peace, but
there are no traitors until war has started.

As treason is basically a war crime, it is punished by the state as a measure of

self-defense and self-preservation. The law of treason is an emergency measure. It
remains dormant until the emergency arises. But as soon as war starts, it is
relentlessly put into effect. Any lukewarm attitude in its enforcement will only be
consistent with national harakiri. All war efforts would be of no avail if they
should be allowed to be sabotaged by fifth columnists, by citizens who have sold
their country out to the enemy, or any other kind of traitors, and this would
certainly be the case if he law cannot be enforced under the theory of suspension.

Petitioner's thesis that allegiance to our government was suspended during enemy
occupation is advanced in support of the proposition that, since allegiance is
identical with obedience to law, during the enemy occupation, the laws of the
Commonwealth were suspended. Article 114 of the Revised Penal Code, the law
punishing treason, under the theory, was one of the laws obedience to which was
also suspended.

Allegiance has been defined as the obligation for fidelity and obedience which the
individual owes to his government or his sovereign in return for the protection
which he receives.

"Allegiance", as the return is generally used, means fealty or fidelity to the

government of which the person is either a citizen or subject. Murray vs. The
Charming Betsy, 6 U.S. (2 Cranch), 64, 120; 2 Law. ed., 208.

"Allegiance" was said by Mr. Justice Story to be "nothing more than the tie or duty
of obedience of a subject to the sovereign, under whose protection he is." United
States vs. Wong Kim Ark, 18 S. Ct., 461; 169 U.S., 649; 42 Law. ed., 890.

Allegiance is that duty which is due from every citizen to the state, a political
duty binding on him who enjoys the protection of the Commonwealth, to render
service and fealty to the federal government. It is that duty which is reciprocal
to the right of protection, arising from the political relations between the
government and the citizen. Wallace vs. Harmstad, 44 Pa. (8 Wright), 492, 501.

By "allegiance" is meant the obligation to fidelity and obedience which the

individual owes to the government under which he lives, or to his sovereign, in
return for the protection which he receives. It may be an absolute and permanent
obligation, or it may be a qualified and temporary one. A citizen or subject owes
an absolute and permanent allegiance to his government or sovereign, or at least
until, by some open and distinct act, he renounces it and becomes a citizen or
subject of another government or sovereign, and an alien while domiciled in a
country owes it a temporary allegiance, which is continuous during his residence.
Carlisle vs. United States, 83 U.S. (16 Wall.), 147, 154; 21 Law ed., 426.

"Allegiance," as defined by Blackstone, "is the tie or ligament which binds the
subject to the King, in return for that protection which the King affords the
subject. Allegiance, both expressed and implied, is of two sorts, the one natural,
the other local, the former being perpetual, the latter temporary. Natural
allegiance is such as is due from all men born within the King's dominions
immediately upon their birth, for immediately upon their birth they are under the
King's protection. Natural allegiance is perpetual, and for this reason, evidently
founded on the nature of government. Allegiance is a debt due from the subject upon
an implied contract with the prince that so long as the one affords protection the
other will demean himself faithfully. Natural-born subjects have a great variety of
rights which they acquire by being born within the King's liegance, which can never
be forfeited but by their own misbehaviour; but the rights of aliens are much more
circumscribed, being acquired only by residence, and lost whenever they remove. If
an alien could acquire a permanent property in lands, he must owe an allegiance
equally permanent to the King, which would probably be inconsistent with that which
he owes his natural liege lord; besides, that thereby the nation might, in time, be
subject to foreign influence and feel many other inconveniences." Indians within
the state are not aliens, but citizens owing allegiance to the government of a
state, for they receive protection from the government and are subject to its laws.
They are born in allegiance to the government of the state. Jackson vs. Goodell, 20
Johns., 188, 911. (3 Words and Phrases, Permanent ed., 226-227.)

Allegiance. � Fealty or fidelity to the government of which the person is either a

citizen or subject; the duty which is due from every citizen to the state; a
political duty, binding on him who enjoys the protection of the commonwealth, to
render service and fealty to the federal government; the obligation of fidelity and
obedience which the individual owes to the government or to the sovereign under
which he lives in return for the protection he receives; that duty is reciprocal to
the right of protection he receives; that duty which is reciprocal to the right of
protection, arising from the political relations between the government and the
citizen.

Classification. � Allegiance is of four kinds, namely: (1) Natural allegiance �

that which arises by nature and birth; (2) acquired allegiance � that arising
through some circumstance or act other than birth, namely, by denization or
naturalization; (3) local allegiance-- that arising from residence simply within
the country, for however short a time; and (4) legal allegiance � that arising from
oath, taken usually at the town or leet, for, by the common law, the oath of
allegiance might be tendered to every one upon attaining the age of twelve years.
(3 C.J.S., p.885.)

Allegiance. � the obligation of fidelity and obedience which the individual owes to
the government under which he lives, or to his sovereign in return for the
protection he receives. 15 R.C.L., 140. (Ballentine Law Dictionary, p. 68.).

"Allegiance," as its etymology indicates, is the name for the tie which binds the
citizen to his state � the obligation of obedience and support which he owes to it.
The state is the political person to whom this liege fealty is due. Its substance
is the aggregate of persons owing this allegiance. The machinery through which it
operates is its government. The persons who operate this machinery constitute its
magistracy. The rules of conduct which the state utters or enforces are its law,
and manifest its will. This will, viewed as legally supreme, is its sovereignty.
(W.W. Willoughby, Citizenship and Allegiance in Constitutional and International
Law, 1 American Journal of International Law, p. 915.).

The obligations flowing from the relation of a state and its nationals are
reciprocal in character. This principle had been aptly stated by the Supreme Court
of the United States in its opinion in the case of Luria vs. United States:

Citizenship is membership in a political society and implies a duty of allegiance

on the part of the member and a duty protection on the part of the society. These
are reciprocal obligations, one being a compensation for the other. (3 Hackworth,
Digest of International Law, 1942 ed., p.6.)

Allegiance. � The tie which binds the citizen to the government, in return for the
protection which the government affords him. The duty which the subject owes to the
sovereign, correlative with the protection received.

It is a comparatively modern corruption of ligeance (ligeantia), which is derived

from liege (ligius), meaning absolute or unqualified. It signified originally liege
fealty, i. e., absolute and qualified fealty. 18 L. Q. Rev., 47.

x x x x x x x x x

Allegiance may be an absolute and permanent obligation, or it may be a qualified

and temporary one; the citizen or subject owes the former to his government or
sovereign, until by some act he distinctly renounces it, whilst the alien domiciled
in the country owes a temporary and local allegiance continuing during such
residence. (Carlisle vs. United States, 16 Wall. [U.S.], 154; 21 Law. ed., 426. (1
Bouvier's Law Dictionary, p. 179.).

The above quotations express ideas that do not fit exactly into the Philippine
pattern in view of the revolutionary insertion in our Constitution of the
fundamental principle that "sovereignty resides in the people and all government
authority emanates from them." (Section 1, Article II.) The authorities above
quoted, judges and juridical publicists define allegiance with the idea that
sovereignty resides somewhere else, on symbols or subjects other than the people
themselves. Although it is possible that they had already discovered that the
people and only the people are the true sovereign, their minds were not yet free
from the shackles of the tradition that the powers of sovereignty have been
exercised by princes and monarchs, by sultans and emperors, by absolute and
tyrannical rules whose ideology was best expressed in the famous words of one of
the kings of France: "L'etat c'est moi," or such other persons or group of persons
posing as the government, as an entity different and in opposition to the people
themselves. Although democracy has been known ever since old Greece, and modern
democracies in the people, nowhere is such principle more imperative than in the
pronouncement embodied in the fundamental law of our people.

To those who think that sovereignty is an attribute of government, and not of the
people, there may be some plausibility in the proposition that sovereignty was
suspended during the enemy occupation, with the consequence that allegiance must
also have been suspended, because our government stopped to function in the
country. But the idea cannot have any place under our Constitution. If sovereignty
is an essential attribute of our people, according to the basic philosophy of
Philippine democracy, it could not have been suspended during the enemy occupation.
Sovereignty is the very life of our people, and there is no such thing as
"suspended life." There is no possible middle situation between life and death.
Sovereignty is the very essence of the personality and existence of our people. Can
anyone imagine the possibility of "suspended personality" or "suspended existence"
of a people? In no time during enemy occupation have the Filipino people ceased to
be what they are.

The idea of suspended sovereignty or suspended allegiance is incompatible with our

Constitution.

There is similarity in characteristics between allegiance to the sovereign and a

wife's loyalty to her husband. Because some external and insurmountable force
precludes the husband from exercising his marital powers, functions, and duties and
the wife is thereby deprived of the benefits of his protection, may the wife invoke
the theory of suspended loyalty and may she freely share her bed with the assailant
of their home? After giving aid and comfort to the assailant and allowing him to
enjoy her charms during the former's stay in the invaded home, may the wife allege
as defense for her adultery the principle of suspended conjugal fidelity?

Petitioner's thesis on change of sovereignty at the advent of independence on July

4, 1946, is unacceptable. We have already decided in Brodett vs. De la Rosa and
Vda. de Escaler (p. 752, ante) that the Constitution of the Republic is the same as
that of the Commonwealth. The advent of independence had the effect of changing the
name of our Government and the withdrawal by the United States of her power to
exercise functions of sovereignty in the Philippines. Such facts did not change the
sovereignty of the Filipino people. That sovereignty, following our constitutional
philosophy, has existed ever since our people began to exist. It has been
recognized by the United States of America, at least since 1935, when President
Roosevelt approved our Constitution. By such act, President Roosevelt, as spokesman
of the American people, accepted and recognized the principle that sovereignty
resides in the people that is, that Philippine sovereignty resides in the Filipino
people.

The same sovereignty had been internationally recognized long before the
proclamation of independence on July 4, 1946. Since the early part of the Pacific
war, President Quezon had been sitting as representative of a sovereign people in
the Allied War Council, and in June, 1945, the same Filipino people took part �
outstanding and brilliant, it may be added � in the drafting and adoption of the
charter of the United Nations, the unmistakable forerunner of the future democratic
federal constitution of the world government envisioned by all those who adhere to
the principle of unity of all mankind, the early realization of which is anxiously
desired by all who want to be spared the sufferings, misery and disaster of another
war.

Under our Constitution, the power to suspend laws is of legislative nature and is
lodged in Congress. Sometimes it is delegated to the Chief Executive, such as the
power granted by the Election Code to the President to suspend the election in
certain districts and areas for strong reasons, such as when there is rebellion, or
a public calamity, but it has never been exercised by tribunals. The Supreme Court
has the power to declare null and void all laws violative of the Constitution, but
it has no power, authority, or jurisdiction to suspend or declare suspended any
valid law, such as the one on treason which petitioner wants to be included among
the laws of the Commonwealth which, by his theory of suspended allegiance and
suspended sovereignty, he claims have been suspended during the Japanese
occupation.

Suppose President Quezon and his government, instead of going from Corregidor to
Australia, and later to Washington, had fled to the mountains of Luzon, and a group
of Filipino renegades should have killed them to serve the interests of the
Japanese imperial forces. By petitioner's theory, those renegades cannot be
prosecuted for treason or for rebellion or sedition, as the laws punishing them
were suspended. Such absurd result betrays the untenability of the theory.

"The defense of the State is a prime duty of Government, and in the fulfillment of
that duty all citizens may be required by law to render personal, military or civil
service." Thus, section 2 of Article II of the Constitution provides: That duty of
defense becomes more imperative in time of war and when the country is invaded by
an aggressor nation. How can it be fulfilled if the allegiance of the citizens to
the sovereign people is suspended during enemy occupation? The framers of the
Constitution surely did not entertain even for the moment the absurdity that when
the allegiance of the citizens to the sovereign people is more needed in the
defense of the survival of the state, the same should be suspended, and that upon
such suspension those who may be required to render personal, military or civil
service may claim exemption from the indispensable duty of serving their country in
distress.

Petitioner advances the theory that protection in the consideration of allegiance.

He argues that the Commonwealth Government having been incapacitated during enemy
occupation to protect the citizens, the latter were relieved of their allegiance to
said government. The proposition is untenable. Allegiance to the sovereign is an
indispensable bond for the existence of society. If that bond is dissolved, society
has to disintegrate. Whether or not the existence of the latter is the result of
the social compact mentioned by Roseau, there can be no question that organized
society would be dissolved if it is not united by the cohesive power of the
citizen's allegiance. Of course, the citizens are entitled to the protection of
their government, but whether or not that government fulfills that duty, is
immaterial to the need of maintaning the loyalty and fidelity of allegiance, in the
same way that the physical forces of attraction should be kept unhampered if the
life of an individual should continue, irrespective of the ability or inability of
his mind to choose the most effective measures of personal protection.

After declaring that all legislative, executive, and judicial processes had during
and under the Japanese regime, whether executed by the Japanese themselves or by
Filipino officers of the puppet government they had set up, are null and void, as
we have done in our opinions in Co Kim Cham vs. Valdez Tan Keh and Dizon (75 Phil.,
113), in Peralta vs. Director of Prison (75, Phil., 285), and in several other
cases where the same question has been mentioned, we cannot consistently accept
petitioner's theory.

If all laws or legislative acts of the enemy during the occupation were null and
void, and as we cannot imagine the existence of organized society, such as the one
constituted by the Filipino people, without laws of the Commonwealth were the ones
in effect during the occupation and the only ones that could claim obedience from
our citizens.

Petitioner would want us to accept the thesis that during the occupation we owed
allegiance to the enemy. To give way to that paradoxical and disconcerting
allegiance, it is suggested that we accept that our allegiance to our legitimate
government was suspended. Petitioner's proposition has to fall by its own weight,
because of its glaring absurdities. Allegiance, like its synonyms, loyalty and
fidelity, is based on feelings of attraction, love, sympathy, admiration, respect,
veneration, gratitude, amity, understanding, friendliness. These are the feelings
or some of the feelings that bind us to our own people, and are the natural roots
of the duty of allegiance we owe them. The enemy only provokes repelling and
repulsive feelings � hate, anger, vexation, chagrin, mortification, resentment,
contempt, spitefulness. The natural incompatibility of political, social and
ethical ideologies between our people and the Japanese, making impossible the
existence of any feeling of attraction between them, aside from the initial fact
that the Japanese invaded our country as our enemy, was aggravated by the morbid
complexities of haughtiness, braggadocio and beastly brutality of the Nippon
soldiers and officers in their dealings with even the most inoffensive of our
citizens.

Giving bread to our enemy, and, after slapping one side of our face, offer him the
other to be further slapped, may appear to be divinely charitable, but to make them
a reality, it is necessary to change human nature. Political actions, legal rules
and judicial decisions deal with human relations, taking man as he is, not as he
should be. To love the enemy is not natural. As long as human pyschology remains as
it is, the enemy shall always be hated. Is it possible to conceive an allegiance
based on hatred?

The Japanese, having waged against us an illegal war condemned by prevailing

principles of international law, could not have established in our country any
government that can be legally recognized as de facto. They came as bandits and
ruffians, and it is inconceivable that banditry and ruffianism can claim any duty
of allegiance � even a temporary one � from a decent people.

One of the implications of petitioner's theory, as intimated somewhere, is that the

citizens, in case of invasion, are free to do anything not forbidden by the Hague
Conventions. Anybody will notice immediately that the result will be the doom of
small nations and peoples, by whetting the covetousness of strong powers prone on
imperialistic practices. In the imminence of invasion, weak-hearted soldiers of the
smaller nations will readily throw away their arms to rally behind the paladium of
the invaders.

Two of the three great departments of our Government have already rejected
petitioner's theory since September 25, 1945, the day when Commonwealth Act No. 682
took effect. By said act, creating the People's Court to try and decide all cases
of crime against national security "committed between December 8, 1941 and
September 2, 1945," (section 2), the legislative and executive departments have
jointly declared that during the period above mentioned, including the time of
Japanese occupation, all laws punishing crimes against national security, including
article 114 of the Revised Penal Code, punishing treason, had remained in full
effect and should be enforced.

That no one raised a voice in protest against the enactment of said act and that no
one, at the time the act was being considered by the Senate and the House of
Representatives, ever dared to expose the uselessness of creating a People's Court
to try crime which, as claimed by petitioner, could not have been committed as the
laws punishing them have been suspended, is a historical fact of which the Supreme
Court may take judicial notice. This fact shows universal and unanimous agreement
of our people that the laws of the Commonwealth were not suspended and that the
theory of suspended allegiance is just an afterthought provoked by a desperate
effort to help quash the pending treason cases at any cost.

Among the arguments adduced in favor of petitioner's theory is that it is based on

generally accepted principles of international law, although this argument becomes
futile by petitioner's admission that the theory is advantageous to strong powers
but harmful to small and weak nations, thus hinting that the latter cannot accept
it by heart. Suppose we accept at face value the premise that the theories, urged
by petitioner, of suspended allegiance and suspended sovereignty are based on
generally accepted principles of international law. As the latter forms part of our
laws by virtue of the provisions of section 3 of Article II of the Constitution, it
seems that there is no alternative but to accept the theory. But the theory has the
effect of suspending the laws, especially those political in nature. There is no
law more political in nature than the Constitution of the Philippines. The result
is an inverted reproduction of the Greek myth of Saturn devouring his own children.
Here, under petitioner's theory, the offspring devours its parent.

Can we conceive of an instance in which the Constitution was suspended even for a
moment?

There is conclusive evidence that the legislature, as policy-determining agency of

government, even since the Pacific war started on December 7, 1941, intimated that
it would not accept the idea that our laws should be suspended during enemy
occupation. It must be remembered that in the middle of December, 1941, when Manila
and other parts of the archipelago were under constant bombing by Japanese aircraft
and enemy forces had already set foot somewhere in the Philippines, the Second
National Assembly passed Commonwealth Act No. 671, which came into effect on
December 16, 1941. When we approved said act, we started from the premise that all
our laws shall continue in effect during the emergency, and in said act we even
went to the extent of authorizing the President "to continue in force laws and
appropriations which would lapse or otherwise become inoperative," (section 2,
[d]), and also to "promulgate such rules and regulations as he may deem necessary
to carry out the national policy," (section 2), that "the existence of war between
the United States and other countries of Europe and Asia, which involves the
Philippines, makes it necessary to invest the President with extraordinary powers
in order to meet the resulting emergency." (Section 1.) To give emphasis to the
intimation, we provided that the rules and regulations provided "shall be in force
and effect until the Congress of the Philippines shall otherwise provide,"
foreseeing the possibility that Congress may not meet as scheduled as a result of
the emergency, including invasion and occupation by the enemy. Everybody was then
convinced that we did not have available the necessary means of repelling
effectivity the enemy invasion.

Maybe it is not out of place to consider that the acceptance of petitioner's theory
of suspended allegiance will cause a great injustice to those who, although
innocent, are now under indictment for treason and other crimes involving
disloyalty to their country, because their cases will be dismissed without the
opportunity for them to revindicate themselves. Having been acquitted upon a mere
legal technicality which appears to us to be wrong, history will indiscriminality
classify them with the other accused who were really traitors to their country. Our
conscience revolts against the idea of allowing the innocent ones to go down in the
memory of future generations with the infamous stigma of having betrayed their own
people. They should not be deprived of the opportunity to show through the due
process of law that they are free from all blame and that, if they were really
patriots, they acted as such during the critical period of test.
HILADO, J., concurring:

I concur in the result reached in the majority opinion to the effect that during
the so-called Japanese occupation of the Philippines (which was nothing more than
the occupation of Manila and certain other specific regions of the Islands which
constituted the minor area of the Archipelago) the allegiance of the citizens of
this country to their legitimate government and to the United States was not
suspended, as well as the ruling that during the same period there was no change of
sovereignty here; but my reasons are different and I proceed to set them forth:

I. SUSPENDED ALLEGIANCE.

(a) Before the horror and atrocities of World War I, which were multiplied more
than a hundred-fold in World War II, the nations had evolved certain rules and
principles which came to be known as International Law, governing their conduct
with each other and toward their respective citizens and inhabitants, in the armed
forces or civilian life, in time of peace or in time of war. During the ages which
preceded that first world conflict the civilized governments had no realization of
the potential excesses of which "men's inhumanity to man" could be capable. Up to
that time war was, at least under certain conditions, considered as sufficiently
justified, and the nations had not on that account, proscribed nor renounced it as
an instrument of national policy, or as a means of settling international disputes.
It is not for us now to dwell upon the reasons accounting for this historical fact.
Suffice it to recognize its existence in history.

But when in World War I civilized humanity saw that war could be, as it actually
was, employed for entirely different reasons and from entirely different motives,
compared to previous wars, and the instruments and methods of warfare had been so
materially changed as not only to involve the contending armed forces on well
defined battlefields or areas, on land, in the sea, and in the air, but to spread
death and destruction to the innocent civilian populations and to their properties,
not only in the countries engaged in the conflict but also in neutral ones, no less
than 61 civilized nations and governments, among them Japan, had to formulate and
solemnly subscribe to the now famous Briand-Kellogg Pact in the year 1928. As said
by Justice Jackson of the United States Supreme Court, as chief counsel for the
United States in the prosecution of "Axis war criminals," in his report to
President Truman of June 7, 1945:

International law is not capable of development by legislation, for there is no

continuously sitting international legislature. Innovations and revisions in
international law are brought about by the action of governments designed to meet a
change circumstances. It grows, as did the common law, through decisions reached
from time to time in adopting settled principles to new situations.

x x x x x x x x x

After the shock to civilization of the war of 1914-1918, however, a marked

reversion to the earlier and sounder doctrines of international law took place. By
the time the Nazis came to power it was thoroughly established that launching an
aggressive war or the institution of war by treachery was illegal and that the
defense of legitimate warfare was no longer available to those who engaged in such
an enterprise. It is high time that we act on the juridical principle that
aggressive war-making is illegal and criminal.

The re-establishment of the principle of justifiable war is traceable in many

steps. One of the most significant is the Briand-Kellogg Pact of 1928 by which
Germany, Italy, and Japan, in common with the United States and practically all the
nations of the world, renounced war as an instrument of national policy, bound
themselves to seek the settlement of disputes only by pacific means, and condemned
recourse to war for the solution of international controversies.

Unless this Pact altered the legal status of wars of aggression, it has no meaning
at all and comes close to being an act of deception. In 1932 Mr. Henry L. Stimson,
as United States Secretary of State, gave voice to the American concept of its
effect. He said, "war between nations was renounced by the signatories of the
Briand-Kellogg Treaty. This means that it has become illegal throughout practically
the entire world. It is no longer to be the source and subject of rights. It is no
longer to be the principle around which the duties, the conduct, and the rights of
nations revolve. It is an illegal thing. . . . By that very act we have made
obsolete many legal precedents and have given the legal profession the task of re-
examining many of its Codes and treaties.

This Pact constitutes only one reversal of the viewpoint that all war is legal and
has brought international law into harmony with the common sense of mankind � that
unjustifiable war is a crime.

Without attempting an exhaustive catalogue, we may mention the Geneva Protocol of

1924 for the Pacific Settlement of International Disputes, signed by the
representatives of forty-eight governments, which declared that "a war of
aggression constitutes .. an International crime. . . .

The Eight Assembly of the League of Nations in 1927, on unanimous resolution of the
representatives of forty-eight member-nations, including Germany, declared that a
war of aggression constitutes an international crime. At the Sixth Pan-American
Conference of 1928, the twenty-one American Republics unanimously adopted a
resolution stating that "war of aggression constitutes an international crime
against the human species."

x x x x x x x x x

We therefore propose to change that a war of aggression is a crime, and that modern
international law has abolished the defense that those who incite or wage it are
engaged in legitimate business. Thus may the forces of the law be mobilized on the
side of peace. ("U.S.A. � An American Review," published by the United States
Office of War Information, Vol. 2, No. 10; emphasis supplied.).

When Justice Jackson speaks of "a marked reversion to the earlier and sounder
doctrines of international law" and "the re-establishment of the principle of
justifiable war," he has in mind no other than "the doctrine taught by Grotius, the
father of international law, that there is a distinction between the just and the
unjust war � the war of defense and the war of aggression" to which he alludes in
an earlier paragraph of the same report.

In the paragraph of said report immediately preceding the one last above mentioned
Justice Jackson says that "international law as taught in the 19th and the early
part of the 20th century generally declared that war-making was not illegal and no
crime at law." But, as he says in one of the paragraphs hereinabove quoted from
that report, the Briand-Kellogg Pact constitutes a reversal of the view-point that
all war is legal and has brought international law into harmony with the common
sense of mankind � that unjustifiable war is a crime. Then he mentions as other
reversals of the same viewpoint, the Geneva Protocol of 1924 for the Pacific
Settlement of International Disputes, declaring that a war of aggression
constitutes an international crime; the 8th assembly of the League of Nations in
1927, declaring that a war of aggression constitutes an international crime; and
the 6th Pan-American conference of 1928, which unanimously adopted a resolution
stating that war of aggression constitutes an international crime against the human
species: which enumeration, he says, is not an attempt at an exhaustive catalogue.
It is not disputed that the war started by Japan in the Pacific, first, against the
United States, and later, in rapid succession, against other allied nations, was a
war of aggression and utterly unjustifiable. More aggressive still, and more
unjustifiable, as admitted on all sides, was its attack against the Philippines and
its consequent invasion and occupation of certain areas thereof.

Some of the rules and principles of international law which have been cited for
petitioner herein in support of his theory of suspended allegiance, have been
evolved and accepted during those periods of the history of nations when all war
was considered legal, as stated by Justice Jackson, and the others have reference
to military occupation in the course of really justifiable war.

Japan in subscribing the Briand-Kellogg Pact thirteen years before she started the
aggressive war which threw the entire Pacific area into a seething cauldron from
the last month of 1941 of the first week of September, 1945, expressly agreed to
outlaw, proscribe and renounce war as an instrument of national policy, and bound
herself to seek the settlement of her disputes with other nations only by pacific
means. Thus she expressly gave her consent to that modification of the then
existing rules and principles of international law governing the matter. With the
modification, all the signatories to the pact necessarily accepted and bound
themselves to abide by all its implications, among them the outlawing, prescription
and renunciation of military occupation of another nation's territory in the course
of a war thus outlawed, proscribed and renounced. This is only one way of saving
that the rules and principles of international law therefore existing on the
subject of military occupation were automatically abrogated and rendered
ineffective in all future cases of war coming under the ban and condemnation of the
pact.

If an unjustifiable war is a crime; if a war of aggression constitutes an

international crime; if such a war is an international crime against the human
species: a nation which occupies a foreign territory in the course of such a war
cannot possibly, under any principle of natural or positive law, acquire or posses
any legitimate power or right growing out or incident to such occupation.
Concretely, Japan in criminally invading the Philippines and occupying certain
portions of its territory during the Pacific war, could not have nor exercise, in
the legal sense � and only this sense should we speak here � with respect to this
country and its citizens, any more than could a burglar breaking through a man's
house pretends to have or to exercise any legal power or right within that house
with respect either to the person of the owner or to his property. To recognize in
the first instance any legal power or right on the part of the invader, and in the
second any legal power or right on the part of the burglar, the same as in case of
a military occupant in the course of a justifiable war, would be nothing short of
legalizing the crime itself. It would be the most monstrous and unpardonable
contradiction to prosecute, condemn and hang the appropriately called war criminals
of Germany, Italy, and Japan, and at the same time recognize any lawfulness in
their occupation invaded. And let it not be forgotten that the Philippines is a
member of the United Nations who have instituted and conducted the so-called war
crimes trials. Neither should we lose sight of the further fact that this
government has a representative in the international commission currently trying
the Japanese war criminals in Tokyo. These facts leave no room for doubt that this
government is in entire accord with the other United Nations in considering the
Pacific war started by Japan as a crime. Not only this, but this country had six
years before the outbreak of the Pacific war already renounced war as an instrument
of national policy (Constitution, Article II, section 2), thus in consequence
adopting the doctrine of the Briand-Kellogg Pact.

Consequently, it is submitted that it would be absolutely wrong and improper for

this Court to apply to the occupation by Japan of certain areas of the Philippines
during that war the rules and principles of international law which might be
applicable to a military occupation occurring in the course of a justifiable war.
How can this Court recognize any lawfulness or validity in that occupation when our
own government has sent a representative to said international commission in Tokyo
trying the Japanese "war criminals" precisely for the "crimes against humanity and
peace" committed by them during World War II of which said occupation was but part
and parcel? In such circumstances how could such occupation produce no less an
effect than the suspension of the allegiance of our people to their country and
government?

(b) But even in the hypothesis � and not more than a mere hypothesis � that when
Japan occupied the City of Manila and certain other areas of the Philippines she
was engaged in a justifiable war, still the theory of suspended allegiance would
not hold good. The continuance of the allegiance owed to a notion by its citizens
is one of those high privileges of citizenship which the law of nations denies to
the occupant the power to interfere with.

. . . His (of occupant) rights are not, however, commensurate with his power. He is
thus forbidden to take certain measures which he may be able to apply, and that
irrespective of their efficacy. The restrictions imposed upon him are in theory
designed to protect the individual in the enjoyment of some highly important
privileges. These concern his allegiance to the de jure sovereign, his family honor
and domestic relations, religious convictions, personal service, and connection
with or residence in the occupied territory.

The Hague Regulations declare that the occupant is forbidden to compel the
inhabitants to swear allegiance to the hostile power. . . . (III Hyde,
International Law, 2d revised ed., pp. 1898-1899.)

. . . Nor may he (occupant) compel them (inhabitants) to take an oath of

allegiance. Since the authority of the occupant is not sovereignty, the inhabitants
owe no temporary allegiance to him. . . . (II Oppenheim, International Law, pp.
341-344.)

The occupant's lack of the authority to exact an oath of allegiance from the
inhabitants of the occupied territory is but a corollary of the continuance of
their allegiance to their own lawful sovereign. This allegiance does not consist
merely in obedience to the laws of the lawful sovereign, but more essentially
consists in loyalty or fealty to him. In the same volume and pages of Oppenheim's
work above cited, after the passage to the effect that the inhabitants of the
occupied territory owe no temporary allegiance to the occupant it is said that "On
the other hand, he may compel them to take an oath � sometimes called an 'oath of
neutrality' � . . . willingly to submit to his 'legitimate commands.' Since,
naturally, such "legitimate commands" include the occupant's laws, it follows that
said occupant, where the rule is applicable, has the right to compel the
inhabitants to take an oath of obedience to his laws; and since according to the
same rule, he cannot exact from the inhabitants an oath of obedience to his laws;
and since, according to the same rule, he cannot exact from the inhabitants an oath
of allegiance, it follows that obedience to his laws, which he can exact from them,
does not constitute allegiance.

(c) The theory of suspended allegiance is unpatriotic to the last degree. To say
that when the one's country is unable to afford him in its protection, he ceases to
be bound to it by the sacred ties of allegiance, is to advocate the doctrine that
precisely when his country is in such distress, and therefore most needs his
loyalty, he is absolved from the loyalty. Love of country should be something
permanent and lasting, ending only in death; loyalty should be its worth offspring.
The outward manifestation of one or the other may for a time be prevented or
thwarted by the irresistible action of the occupant; but this should not in the
least extinguish nor obliterate the invisible feelings, and promptings of the
spirit. And beyond the unavoidable consequences of the enemy's irresistible
pressure, those invisible feelings and promptings of the spirit of the people
should never allow them to act, to speak, nor even to think a whit contrary to
their love and loyalty to the Fatherland. For them, indicted, to face their country
and say to it that, because when it was overrun and vanquished by the barbarous
invader and, in consequence was disabled from affording them protection, they were
released from their sacred obligation of allegiance and loyalty, and could
therefore freely adhere to its enemy, giving him aid and comfort, incurring no
criminal responsibility therefor, would only tend to aggravate their crime.

II. CHANGE OF SOVEREIGNTY

Article II, section 1, of the Constitution provides that "Sovereignty resides in

the people and all government authority emanates from them." The Filipino people
are the self-same people before and after Philippine Independence, proclaimed on
July 4, 1946. During the life of the Commonwealth sovereignty resided in them under
the Constitution; after the proclamation of independence that sovereignty remained
with them under the very same fundamental law. Article XVIII of the said
Constitution stipulates that the government established thereby shall be known as
the Commonwealth of the Philippines; and that upon the final and complete
withdrawal of the sovereignty of the United States and the proclamation of
Philippine independence, "The Commonwealth of the Philippines shall thenceforth be
known as the Republic of the Philippines." Under this provision the Government of
the Philippines immediately prior to independence was essentially to be the
identical government thereafter � only the name of that government was to be
changed.

Both before and after the adoption of the Philippine Constitution the people of the
Philippines were and are always the plaintiff in all criminal prosecutions, the
case being entitled: "The People of the Philippines vs. (the defendant or
defendants)." This was already true in prosecutions under the Revised Penal Code
containing the law of treason. "The Government of the Philippines" spoken of in
article 114 of said Code merely represents the people of the Philippines. Said code
was continued, along with the other laws, by Article XVI, section 2, of the
Constitution which constitutional provision further directs that "all references in
such laws to the Government or officials of the Philippine Islands shall be
construed, in so far as applicable, to refer to the Government and corresponding
officials under this Constitution" � of course, meaning the Commonwealth of the
Philippines before, and the Republic of the Philippines after, independence
(Article XVIII). Under both governments sovereignty resided and resides in the
people (Article II, section 1). Said sovereignty was never transferred from that
people � they are the same people who preserve it to this day. There has never been
any change in its respect.

If one committed treason againsts the People of the Philippines before July 4,
1946, he continues to be criminally liable for the crime to the same people now.
And if, following the literal wording of the Revised Penal Code, as continued by
the Constitution, that accused owed allegiance upon the commission of the crime to
the "Government of the Philippines," in the textual words of the Constitution
(Article XVI, section 2, and XVIII) that was the same government which after
independence became known as the "Republic of the Philippines." The most that can
be said is that the sovereignty of the people became complete and absolute after
independence � that they became, politically, fully of age, to use a metaphor. But
if the responsibility for a crime against a minor is not extinguished by the mere
fact of his becoming of age, why should the responsibility for the crime of treason
committed against the Filipino people when they were not fully politically
independent be extinguished after they acquire this status? The offended party
continues to be the same � only his status has changed.
PARAS, J., dissenting:

During the long period of Japanese occupation, all the political laws of the
Philippines were suspended. This is full harmony with the generally accepted
principles of the international law adopted by our Constitution(Article II, section
3) as a part of the law of the Nation. Accordingly, we have on more than one
occasion already stated that "laws of a political nature or affecting political
relations, . . . are considered as suspended or in abeyance during the military
occupation" (Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 113, 124), and
that the rule "that laws of political nature or affecting political relations are
considered suspended or in abeyance during the military occupation, is intended for
the governing of the civil inhabitants of the occupied territory." (Ruffy vs. Chief
of Staff, Philippine Army, 75, Phil., 875, 881.)

The principle is recognized by the United States of America, which admits that the
occupant will naturally suspends all laws of a political nature and all laws which
affect the welfare and safety of his command, such action to be made known to the
inhabitants.(United States Rules of Land Welfare, 1940, Article 287.) As allegiance
to the United States is an essential element in the crime of treason under article
114 of the Revised Penal Code, and in view of its position in our political
structure prior to the independence of the Philippines, the rule as interpreted and
practiced in the United States necessarily has a binding force and effect in the
Philippines, to the exclusion of any other construction followed elsewhere, such as
may be inferred, rightly or wrongly, from the isolated cases 1 brought to our
attention, which, moreover, have entirely different factual bases.

Corresponding notice was given by the Japanese occupying army, first, in the
proclamation of its Commander in chief of January 2, 1942, to the effect that as a
"result of the Japanese Military operations, the sovereignty of the United States
of America over the Philippines has completely disappeared and the Army hereby
proclaims the Military Administration under martial law over the district occupied
by the Army;" secondly, in Order No. 3 of the said Commander in Chief of February
20, 1942, providing that "activities of the administrative organs and judicial
courts in the Philippines shall be based upon the existing statutes, orders,
ordinances and customs until further orders provided that they are not inconsistent
with the present circumstances under the Japanese Military Administration;" and,
thirdly, in the explanation to Order No. 3 reminding that "all laws and regulations
of the Philippines has been suspended since Japanese occupation," and excepting the
application of "laws and regulations which are not proper act under the present
situation of the Japanese Military Administration," especially those "provided with
some political purposes."

The suspension of the political law during enemy occupation is logical, wise and
humane. The latter phase outweighs all other aspects of the principle aimed more or
less at promoting the necessarily selfish motives and purposes of a military
occupant. It thus consoling to note that the powers instrumental in the
crystallization of the Hague Conventions of 1907 did not forget to declare that
they were "animated by the desire to serve . . . the interest of the humanity and
the over progressive needs of civilization," and that "in case not included in the
Regulations adopted by them, the inhabitants and the belligerents remain under the
protection and the rule of the principles of international law, as they result from
the usages established among civilized peoples, from the laws of humanity, and the
dictates of the public conscience." These saving statements come to the aid of the
inhabitants in the occupied territory in a situation wherein, even before the
belligerent occupant "takes a further step and by appropriate affirmative action
undertakes to acquire the right of sovereignty for himself, . . . the occupant is
likely to regard to himself as clothed with freedom to endeavor to impregnate the
people who inhabit the area concerned with his own political ideology, and to make
that endeavor successful by various forms of pressure exerted upon enemy officials
who are permitted to retain the exercise of normal governmental functions." (Hyde,
International Law, Vol. III, Second Revised Edition, 1945, p. 1879.)

The inhabitants of the occupied territory should necessarily be bound to the sole
authority of the invading power, whose interest and requirements are naturally in
conflict with those of the displaced government, if it is legitimate for the
military occupant to demand and enforce from the inhabitants such obedience as may
be necessary for the security of his forces, for the maintenance of law and order,
and for the proper administration of the country (United States Rules of Land
Warfare, 1940, article 297), and to demand all kinds of services "of such a nature
as not to involve the population in the obligation of taking part in military
operations against their own country" (Hague Regulations, article 52);and if, as we
have in effect said, by the surrender the inhabitants pass under a temporary
allegiance to the government of the occupant and are bound by such laws, and such
only, as it chooses to recognize and impose, and the belligerent occupant `is
totally independent of the constitution and the laws of the territory, since
occupation is an aim of warfare, and the maintenance and safety of his forces, and
the purpose of war, stand in the foreground of his interest and must be promoted
under all circumstances or conditions." (Peralta vs. Director of Prisons, 75 Phil.,
285, 295), citing United States vs. Rice, 4 Wheaton, 246, and quoting Oppenheim,
International Law, Vol. II. Sixth Edition, Revised, 1944,p. 432.)

He would be a bigot who cannot or would refuse to see the cruel result if the
people in an occupied territory were required to obey two antagonistic and opposite
powers. To emphasize our point, we would adopt the argument, in a reverse order, of
Mr. Justice Hilado in Peralta vs. Director of Prisons (75 Phil., 285, 358),
contained in the following passage:

To have bound those of our people who constituted the great majority who never
submitted to the Japanese oppressors, by the laws, regulations, processes and other
acts of those two puppet governments, would not only have been utterly unjust and
downright illegal, but would have placed them in the absurd and impossible
condition of being simultaneously submitted to two mutually hostile governments,
with their respective constitutional and legislative enactments and institutions �
on the one hand bound to continue owing allegiance to the United States and the
Commonwealth Government, and, on the other, to owe allegiance, if only temporary,
to Japan.

The only sensible purpose of the treason law � which is of political complexion and
taken out of the territorial law and penalized as a new offense committed against
the belligerent occupant, incident to a state of war and necessary for the control
of the occupant (Alcantara vs. Director of Prisons, 75 Phil., 494), � must be the
preservation of the nation, certainly not its destruction or extermination. And yet
the latter is unwittingly wished by those who are fond of the theory that what is
suspended is merely the exercise of sovereignty by the de jure government or the
latter's authority to impose penal sanctions or that, otherwise stated, the
suspension refers only to the military occupant. If this were to be the only
effect, the rule would be a meaningless and superfluous optical illusion, since it
is obvious that the fleeing or displaced government cannot, even if it should want,
physically assert its authority in a territory actually beyond its reach, and that
the occupant, on the other hand, will not take the absurd step of prosecuting and
punishing the inhabitants for adhering to and aiding it. If we were to believe the
opponents of the rule in question, we have to accept the absurd proposition that
the guerrillas can all be prosecuted with illegal possession of firearms. It should
be borne in the mind that "the possession by the belligerent occupant of the right
to control, maintain or modify the laws that are to obtain within the occupied area
is an exclusive one. The territorial sovereign driven therefrom, can not compete
with it on an even plane. Thus, if the latter attempt interference, its action is a
mere manifestation of belligerent effort to weaken the enemy. It has no bearing
upon the legal quality of what the occupant exacts, while it retains control. Thus,
if the absent territorial sovereign, through some quasi-legislative decree, forbids
its nationals to comply with what the occupant has ordained obedience to such
command within the occupied territory would not safeguard the individual from the
prosecution by the occupant." (Hyde, International Law, Vol. III, Second Revised
Edition, 1945, p. 1886.)

As long as we have not outlawed the right of the belligerent occupant to prosecute
and punish the inhabitants for "war treason" or "war crimes," as an incident of the
state of war and necessity for the control of the occupied territory and the
protection of the army of the occupant, against which prosecution and punishment
such inhabitants cannot obviously be protected by their native sovereign, it is
hard to understand how we can justly rule that they may at the same time be
prosecuted and punished for an act penalized by the Revised Penal Code, but already
taken out of the territorial law and penalized as a new offense committed against
the belligerent occupant.

In Peralta vs. Director of Prisons, 75 Phil., 285, 296), we held that "the
Constitution of the Commonwealth Government was suspended during the occupation of
the Philippines by the Japanese forces or the belligerent occupant at regular war
with the United States," and the meaning of the term "suspended" is very plainly
expressed in the following passage (page 298):

No objection can be set up to the legality of its provisions in the light of the
precepts of our Commonwealth Constitution relating to the rights of the accused
under that Constitution, because the latter was not in force during the period of
the Japanese military occupation, as we have already stated. Nor may said
Constitution be applied upon its revival at the time of the re-occupation of the
Philippines by the virtue of the priciple of postliminium, because "a constitution
should operate prospectively only, unless the words employed show a clear intention
that it should have a retrospective effect," (Cooley's Constitutional Limitations,
seventh edition, page 97, and a case quoted and cited in the foot-note), especially
as regards laws of procedure applied to cases already terminated completely.

In much the same way, we should hold that no treason could have been committed
during the Japanese military occupation against the United States or the
Commonwealth Government, because article 114 of the Revised Penal Code was not then
in force. Nor may this penal provision be applied upon its revival at the time of
the reoccupation of the Philippines by virtue of the principle of postliminium,
because of the constitutional inhibition against any ex post facto law and because,
under article 22 of the Revised Penal Code, criminal laws shall have a retroactive
effect only in so far as they favor the accused. Why did we refuse to enforce the
Constitution, more essential to sovereignty than article 114 of the Revised Penal
Code in the aforesaid of Peralta vs. Director of Prisons if, as alleged by the
majority, the suspension was good only as to the military occupant?

The decision in the United States vs. Rice (4 Wheaton, 246), conclusively supports
our position. As analyzed and described in United States vs. Reiter (27 Fed. Cas.,
773), that case "was decided by the Supreme Court of the United States � the court
of highest human authority on that subject � and as the decision was against the
United States, and in favor of the authority of Great Britain, its enemy in the
war, and was made shortly after the occurrence of the war out of which it grew; and
while no department of this Government was inclined to magnify the rights of Great
Britain or disparage those of its own government, there can be no suspicion of bias
in the mind of the court in favor of the conclusion at which it arrived, and no
doubt that the law seemed to the court to warrant and demand such a decision. That
case grew out of the war of 1812, between the United States and Great Britain. It
appeared that in September, 1814, the British forces had taken the port of Castine,
in the State of Maine, and held it in military occupation; and that while it was so
held, foreign goods, by the laws of the United States subject to duty, had been
introduced into that port without paying duties to the United States. At the close
of the war the place by treaty restored to the United States, and after that was
done Government of the United States sought to recover from the persons so
introducing the goods there while in possession of the British, the duties to which
by the laws of the United States, they would have been liable. The claim of the
United States was that its laws were properly in force there, although the place
was at the time held by the British forces in hostility to the United States, and
the laws, therefore, could not at the time be enforced there; and that a court of
the United States (the power of that government there having since been restored)
was bound so to decide. But this illusion of the prosecuting officer there was
dispelled by the court in the most summary manner. Mr. Justice Story, that great
luminary of the American bench, being the organ of the court in delivering its
opinion, said: 'The single question is whether goods imported into Castine during
its occupation by the enemy are liable to the duties imposed by the revenue laws
upon goods imported into the United States.. We are all of opinion that the claim
for duties cannot be sustained. . . . The sovereignty of the United States over the
territory was, of course, suspended, and the laws of the United States could no
longer be rightfully enforced there, or be obligatory upon the inhabitants who
remained and submitted to the conquerors. By the surrender the inhabitants passed
under a temporary allegiance of the British Government, and were bound by such
laws, and such only, as it chose to recognize and impose. From the nature of the
case no other laws could be obligatory upon them. . . . Castine was therefore,
during this period, as far as respected our revenue laws, to be deemed a foreign
port, and goods imported into it by the inhabitants were subjects to such duties
only as the British Government chose to require. Such goods were in no correct
sense imported into the Unites States.' The court then proceeded to say, that the
case is the same as if the port of Castine had been foreign territory, ceded by
treaty to the United States, and the goods had been imported there previous to its
cession. In this case they say there would be no pretense to say that American
duties could be demanded; and upon principles of public or municipal law, the cases
are not distinguishable. They add at the conclusion of the opinion: 'The
authorities cited at the bar would, if there were any doubt, be decisive of the
question. But we think it too clear to require any aid from authority.' Does this
case leave room for a doubt whether a country held as this was in armed
belligerents occupation, is to be governed by him who holds it, and by him alone?
Does it not so decide in terms as plain as can be stated? It is asserted by the
Supreme Court of the United States with entire unanimity, the great and venerated
Marshall presiding, and the erudite and accomplished Story delivering the opinion
of the court, that such is the law, and it is so adjudged in this case. Nay, more:
it is even adjudged that no other laws could be obligatory; that such country, so
held, is for the purpose of the application of the law off its former government to
be deemed foreign territory, and that goods imported there (and by parity of
reasoning other acts done there) are in no correct sense done within the territory
of its former sovereign, the United States."

But it is alleged by the majority that the sovereignty spoken of in the decision of
the United States vs. Rice should be construed to refer to the exercise of
sovereignty, and that, if sovereignty itself was meant, the doctrine has become
obsolete after the adoption of the Hague Regulations in 1907. In answer, we may
state that sovereignty can have any important significance only when it may be
exercised; and, to our way of thinking, it is immaterial whether the thing held in
abeyance is the sovereignty itself or its exercise, because the point cannot
nullify, vary, or otherwise vitiate the plain meaning of the doctrinal words "the
laws of the United States could no longer be rightfully enforced there, or be
obligatory upon the inhabitants who remained and submitted to the conquerors." We
cannot accept the theory of the majority, without in effect violating the rule of
international law, hereinabove adverted to, that the possession by the belligerent
occupant of the right to control, maintain or modify the laws that are to obtain
within the occupied area is an exclusive one, and that the territorial sovereign
driven therefrom cannot compete with it on an even plane. Neither may the doctrine
in the United States vs. Rice be said to have become obsolete, without repudiating
the actual rule prescribed and followed by the United States, allowing the military
occupant to suspend all laws of a political nature and even require public
officials and inhabitants to take an oath of fidelity (United States Rules of Land
Warfare, 1940, article 309). In fact, it is a recognized doctrine of American
Constitutional Law that mere conquest or military occupation of a territory of
another State does not operate to annex such territory to occupying State, but that
the inhabitants of the occupied district, no longer receiving the protection of
their native State, for the time being owe no allegiance to it, and, being under
the control and protection of the victorious power, owe to that power fealty and
obedience. (Willoughby, The Fundamental Concepts of Public Law [1931], p.364.)

The majority have resorted to distinctions, more apparent than real, if not
immaterial, in trying to argue that the law of treason was obligatory on the
Filipinos during the Japanese occupation. Thus it is insisted that a citizen or
subject owes not a qualified and temporary, but an absolute and permanent
allegiance, and that "temporary allegiance" to the military occupant may be likened
to the temporary allegiance which a foreigner owes to the government or sovereign
to the territory wherein he resides in return for the protection he receives
therefrom. The comparison is most unfortunate. Said foreigner is in the territory
of a power not hostile to or in actual war with his own government; he is in the
territory of a power which has not suspended, under the rules of international law,
the laws of political nature of his own government; and the protections received by
him from that friendly or neutral power is real, not the kind of protection which
the inhabitants of an occupied territory can expect from a belligerent army. "It is
but reasonable that States, when they concede to other States the right to exercise
jurisdiction over such of their own nationals as are within the territorial limits
of such other States, should insist that States should provide system of law and of
courts, and in actual practice, so administer them, as to furnish substantial legal
justice to alien residents. This does not mean that a State must or should extend
to aliens within its borders all the civil, or much less, all the political rights
or privileges which it grants to its own citizens; but it does mean that aliens
must or should be given adequate opportunity to have such legal rights as are
granted to them by the local law impartially and judicially determined, and, when
thus determined, protected." (Willoughby, The Fundamental Concepts of Public Law
[1931], p. 360.)

When it is therefore said that a citizen of a sovereign may be prosecuted for and
convicted of treason committed in a foreign country or, in the language of article
114 of the Revised Penal Code, "elsewhere," a territory other than one under
belligerent occupation must have been contemplated. This would make sense, because
treason is a crime "the direct or indirect purpose of which is the delivery, in
whole or in part, of the country to a foreign power, or to pave the way for the
enemy to obtain dominion over the national territory" (Albert, The Revised Penal
Code, citing 3 Groizard, 14); and, very evidently, a territory already under
occupation can no longer be "delivered."

The majority likewise argue that the theory of suspended sovereignty or allegiance
will enable the military occupant to legally recruit the inhabitants to fight
against their own government, without said inhabitants being liable for treason.
This argument is not correct, because the suspension does not exempt the occupant
from complying with the Hague Regulations (article 52) that allows it to demand all
kinds of services provided that they do not involve the population "in the
obligation of taking part military operations against their own country." Neither
does the suspension prevent the inhabitants from assuming a passive attitude, much
less from dying and becoming heroes if compelled by the occupant to fight against
their own country. Any imperfection in the present state of international law
should be corrected by such world agency as the United Nations organizations.

It is of common knowledge that even with the alleged cooperation imputed to the
collaborators, an alarming number of Filipinos were killed or otherwise tortured by
the ruthless, or we may say savage, Japanese Army. Which leads to the conclusion
that if the Filipinos did not obey the Japanese commands and feign cooperation,
there would not be any Filipino nation that could have been liberated. Assuming
that the entire population could go to and live in the mountains, or otherwise
fight as guerrillas � after the formal surrender of our and the American regular
fighting forces, � they would have faced certain annihilation by the Japanese,
considering that the latter's military strength at the time and the long period
during which they were left military unmolested by America. In this connection, we
hate to make reference to the atomic bomb as a possible means of destruction.

If a substantial number of guerrillas were able to survive and ultimately help in

the liberation of the Philippines, it was because the feigned cooperation of their
countrymen enabled them to get food and other aid necessary in the resistance
movement. If they were able to survive, it was because they could camouflage
themselves in the midst of the civilian population in cities and towns. It is easy
to argue now that the people could have merely followed their ordinary pursuits of
life or otherwise be indifferent to the occupant. The fundamental defect of this
line of thought is that the Japanese assumed to be so stupid and dumb as not to
notice any such attitude. During belligerent occupation, "the outstanding fact to
be reckoned with is the sharp opposition between the inhabitants of the occupied
areas and the hostile military force exercising control over them. At heart they
remain at war with each other. Fear for their own safety may not serve to deter the
inhabitants from taking advantage of opportunities to interfere with the safety and
success of the occupant, and in so doing they may arouse its passions and cause to
take vengeance in cruel fashion. Again, even when it is untainted by such conduct,
the occupant as a means of attaining ultimate success in its major conflict may,
under plea of military necessity, and regardless of conventional or customary
prohibitions, proceed to utilize the inhabitants within its grip as a convenient
means of military achievement." (Hyde, International Law, Vol. III, Second Revised
Edition [1945], p. 1912.) It should be stressed that the Japanese occupation was
not a matter of a few months; it extended over a little more than three years. Said
occupation was a fact, in spite of the "presence of guerrilla bands in barrios and
mountains, and even in towns of the Philippines whenever these towns were left by
Japanese garrisons or by the detachments of troops sent on patrol to those places."
(Co Kim Cham vs. Valdez Tan Keh and Dizon, 75 Phil., 371, 373.) The law of nations
accepts belligerent occupation as a fact to be reckoned with, regardless of the
merits of the occupant's cause. (Hyde, International Law, Second Revised Edition
[1945], Vol. III, p. 1879.)

Those who contend or fear that the doctrine herein adhere to will lead to an over-
production of traitors, have a wrong and low conception of the psychology and
patriotism of their countrymen. Patriots are such after their birth in the first
place, and no amount of laws or judicial decisions can make or unmake them. On the
other hand, the Filipinos are not so base as to be insensitive to the thought that
the real traitor is cursed everywhere and in all ages. Our patriots who fought and
died during the last war, and the brave guerrillas who have survived, were
undoubtedly motivated by their inborn love of country, and not by such a thing as
the treason law. The Filipino people as a whole, passively opposed the Japanese
regime, not out of fear of a treason statute but because they preferred and will
prefer the democratic and civilized way of life and American altruism to Japanese
barbaric and totalitarian designs. Of course, there are those who might at heart
have been pro-Japanese; but they met and will unavoidably meet the necessary
consequences. The regular soldiers faced the risks of warfare; the spies and
informers subjected themselves to the perils of military operations, likely
received summary liquidation or punishments from the guerrillas and the parties
injured by their acts, and may be prosecuted as war spies by the military
authorities of the returning sovereign; those who committed other common crimes,
directly or through the Japanese army, may be prosecuted under the municipal law,
and under this group even the spies and informers, Makapili or otherwise, are
included, for they can be made answerable for any act offensive to person or
property; the buy-and-sell opportunists have the war profits tax to reckon with. We
cannot close our eyes to the conspicuous fact that, in the majority of cases, those
responsible for the death of, or injury to, any Filipino or American at the hands
of the Japanese, were prompted more by personal motives than by a desire to levy
war against the United States or to adhere to the occupant. The alleged spies and
informers found in the Japanese occupation the royal road to vengeance against
personal or political enemies. The recent amnesty granted to the guerrillas for
acts, otherwise criminal, committed in the furtherance of their resistance movement
has in a way legalized the penal sanctions imposed by them upon the real traitors.

It is only from a realistic, practical and common-sense point of view, and by

remembering that the obedience and cooperation of the Filipinos were effected while
the Japanese were in complete control and occupation of the Philippines, when their
mere physical presence implied force and pressure � and not after the American
forces of liberation had restored the Philippine Government � that we will come to
realize that, apart from any rule of international law, it was necessary to release
the Filipinos temporarily from the old political tie in the sense indicated herein.
Otherwise, one is prone to dismiss the reason for such cooperation and obedience.
If there were those who did not in any wise cooperate or obey, they can be counted
by the fingers, and let their names adorn the pages of Philippine history.
Essentially, however, everybody who took advantage, to any extent and degree, of
the peace and order prevailing during the occupation, for the safety and survival
of himself and his family, gave aid and comfort to the enemy.

Our great liberator himself, General Douglas MacArthur, had considered the laws of
the Philippines ineffective during the occupation, and restored to their full vigor
and force only after the liberation. Thus, in his proclamation of October 23, 1944,
he ordained that "the laws now existing on the statute books of the Commonwealth of
the Philippines . . . are in full force and effect and legally binding upon the
people in areas of the Philippines free of enemy occupation and control," and that
"all laws . . . of any other government in the Philippines than that of the said
Commonwealth are null and void and without legal effect in areas of the Philippines
free of enemy occupation and control." Repeating what we have said in Co Kim Cham
vs. Valdez Tan Keh and Dizon (75 Phil., 113, 133), "it is to be presumed that
General Douglas MacArthur, who was acting as an agent or a representative of the
Government and the President of the United States, constitutional Commander-in-
Chief of the United States Army, did not intend to act against the principles of
the law of nations asserted by the Supreme Court of the United States from the
early period of its existence, applied by the President of the United States, and
later embodied in the Hague Conventions of 1907."

The prohibition in the Hague Conventions (Article 45) against "any pressure on the
population to take oath to the hostile power," was inserted for the moral
protection and benefit of the inhabitants, and does not necessarily carry the
implication that the latter continue to be bound to the political laws of the
displaced government. The United States, a signatory to the Hague Conventions, has
made the point clear, by admitting that the military occupant can suspend all the
laws of a political nature and even require public officials and the inhabitants to
take an oath of fidelity (United States Rules of Land Warfare, 1940, article 309),
and as already stated, it is a doctrine of American Constitutional Law that the
inhabitants, no longer receiving the protection of their native state, for the time
being owe no allegiance to it, and, being under the control and protection of the
victorious power, owe to that power fealty and obedience. Indeed, what is
prohibited is the application of force by the occupant, from which it is fair to
deduce that the Conventions do not altogether outlaw voluntary submission by the
population. The only strong reason for this is undoubtedly the desire of the
authors of the Conventions to give as much freedom and allowance to the inhabitants
as are necessary for their survival. This is wise and humane, because the people
should be in a better position to know what will save them during the military
occupation than any exile government.

"Before he was appointed prosecutor, Justice Jackson made a speech in which he

warned against the use of judicial process for non judicial ends, and attacked
cynics who "see no reason why courts, just like other agencies, should not be
policy weapons. If we want to shoot Germans as a matter of policy, let it be done
as such, said he, but don't hide the deed behind a court. If you are determined to
execute a man in any case there is no occasion for a trial; the word yields no
respect for courts that are merely organized to convict." Mussoloni may have got
his just desserts, but nobody supposes he got a fair trial. . . . Let us bear that
in mind as we go about punishing criminals. There are enough laws on the books to
convict guilty Nazis without risking the prestige of our legal system. It is far,
far better that some guilty men escape than that the idea of law be endangered. In
the long run the idea of law is our best defense against Nazism in all its forms."
These passages were taken from the editorial appearing in the Life, May 28, 1945,
page 34, and convey ideas worthy of some reflection.

If the Filipinos in fact committed any errors in feigning cooperation and obedience
during the Japanese military occupation, they were at most � borrowing the famous
and significant words of President Roxas � errors of the mind and not of the heart.
We advisedly said "feigning" not as an admission of the fallacy of the theory of
suspended allegiance or sovereignty, but as an affirmation that the Filipinos,
contrary to their outward attitude, had always remained loyal by feeling and
conscience to their country.

Assuming that article 114 of the Revised Penal Code was in force during the
Japanese military occupation, the present Republic of the Philippines has no right
to prosecute treason committed against the former sovereignty existing during the
Commonwealth Government which was none other than the sovereignty of the United
States. This court has already held that, upon a change of sovereignty, the
provisions of the Penal Code having to do with such subjects as treason, rebellion
and sedition are no longer in force (People vs. Perfecto, 43 Phil., 887). It is
true that, as contended by the majority, section 1 of Article II of the
Constitution of the Philippines provides that "sovereignty resides in the people,"
but this did not make the Commonwealth Government or the Filipino people sovereign,
because said declaration of principle, prior to the independence of the
Philippines, was subervient to and controlled by the Ordinance appended to the
Constitution under which, in addition to its many provisions essentially
destructive of the concept of sovereignty, it is expressly made clear that the
sovereignty of the United States over the Philippines had not then been withdrawn.
The framers of the Constitution had to make said declaration of principle because
the document was ultimately intended for the independent Philippines. Otherwise,
the Preamble should not have announced that one of the purposes of the Constitution
is to secure to the Filipino people and their posterity the "blessings of
independence." No one, we suppose, will dare allege that the Philippines was an
independent country under the Commonwealth Government.

The Commonwealth Government might have been more autonomous than that existing
under the Jones Law, but its non-sovereign status nevertheless remained unaltered;
and what was enjoyed was the exercise of sovereignty over the Philippines continued
to be complete.
The exercise of Sovereignty May be Delegated. � It has already been seen that the
exercise of sovereignty is conceived of as delegated by a State to the various
organs which, collectively, constitute the Government. For practical political
reasons which can be easily appreciated, it is desirable that the public policies
of a State should be formulated and executed by governmental agencies of its own
creation and which are not subject to the control of other States. There is,
however, nothing in a nature of sovereignty or of State life which prevents one
State from entrusting the exercise of certain powers to the governmental agencies
of another State. Theoretically, indeed, a sovereign State may go to any extent in
the delegation of the exercise of its power to the governmental agencies of other
States, those governmental agencies thus becoming quoad hoc parts of the
governmental machinery of the State whose sovereignty is exercised. At the same
time these agencies do not cease to be Instrumentalities for the expression of the
will of the State by which they were originally created.

By this allegation the agent State is authorized to express the will of the
delegating State, and the legal hypothesis is that this State possesses the legal
competence again to draw to itself the exercise, through organs of its own
creation, of the powers it has granted. Thus, States may concede to colonies almost
complete autonomy of government and reserve to themselves a right of control of so
slight and so negative a character as to make its exercise a rare and improbable
occurence; yet, so long as such right of control is recognized to exist, and the
autonomy of the colonies is conceded to be founded upon a grant and the continuing
consent of the mother countries the sovereignty of those mother countries over them
is complete and they are to be considered as possessing only administrative
autonomy and not political independence. Again, as will be more fully discussed in
a later chapter, in the so-called Confederate or Composite State, the cooperating
States may yield to the central Government the exercise of almost all of their
powers of Government and yet retain their several sovereignties. Or, on the other
hand, a State may, without parting with its sovereignty of lessening its
territorial application, yield to the governing organs of particular areas such an
amplitude of powers as to create of them bodies-politic endowed with almost all of
the characteristics of independent States. In all States, indeed, when of any
considerable size, efficiency of administration demands that certain autonomous
powers of local self-government be granted to particular districts. (Willoughby,
The Fundamental Concepts of Public Law [1931], pp. 74, 75.).

The majority have drawn an analogy between the Commonwealth Government and the
States of the American Union which, it is alleged, preserve their own sovereignty
although limited by the United States. This is not true for it has been
authoritatively stated that the Constituent States have no sovereignty of their
own, that such autonomous powers as they now possess are had and exercised by the
express will or by the constitutional forbearance of the national sovereignty, and
that the sovereignty of the United States and the non-sovereign status of the
individual States is no longer contested.

It is therefore plain that the constituent States have no sovereignty of their own,
and that such autonomous powers as they now possess are had and exercised by the
express will or by the constitutional forbearance of the national sovereignty. The
Supreme Court of the United States has held that, even when selecting members for
the national legislature, or electing the President, or ratifying proposed
amendments to the federal constitution, the States act, ad hoc, as agents of the
National Government. (Willoughby, the Fundamental Concepts of Public Law [1931],
p.250.)

This is the situation at the present time. The sovereignty of the United States and
the non-sovereign status of the individual States is no longer contested.
(Willoughby, The Fundamental Concepts of Public Law [1931], pp. 251, 252.)
Article XVIII of the Constitution provides that "The government established by this
Constitution shall be known as the Commonwealth of the Philippines. Upon the final
and complete withdrawal of the sovereignty of the United States and the
proclamation of Philippine independence, the Commonwealth of the Philippines shall
thenceforth be known as the Republic of the Philippines." From this, the deduction
is made that the Government under the Republic of the Philippines and under the
Commonwealth is the same. We cannot agree. While the Commonwealth Government
possessed administrative autonomy and exercised the sovereignty delegated by the
United States and did not cease to be an instrumentality of the latter (Willoughby,
The Fundamental Concepts of Public Law [1931], pp. 74, 75), the Republic of the
Philippines is an independent State not receiving its power or sovereignty from the
United States. Treason committed against the United States or against its
instrumentality, the Commonwealth Government, which exercised, but did not possess,
sovereignty (id., p. 49), is therefore not treason against the sovereign and
independent Republic of the Philippines. Article XVIII was inserted in order,
merely, to make the Constitution applicable to the Republic.

Reliance is also placed on section 2 of the Constitution which provides that all
laws of the Philippines Islands shall remain operative, unless inconsistent
therewith, until amended, altered, modified or repealed by the Congress of the
Philippines, and on section 3 which is to the effect that all cases pending in
courts shall be heard, tried, and determined under the laws then in force, thereby
insinuating that these constitutional provisions authorize the Republic of the
Philippines to enforce article 114 of the Revised Penal Code. The error is obvious.
The latter article can remain operative under the present regime if it is not
inconsistent with the Constitution. The fact remains, however, that said penal
provision is fundamentally incompatible with the Constitution, in that those liable
for treason thereunder should owe allegiance to the United States or the government
of the Philippines, the latter being, as we have already pointed out, a mere
instrumentality of the former, whereas under the Constitution of the present
Republic, the citizens of the Philippines do not and are not required to owe
allegiance to the United States. To contend that article 114 must be deemed to have
been modified in the sense that allegiance to the United States is deleted, and, as
thus modified, should be applied to prior acts, would be to sanction the enactment
and application of an ex post facto law.

In reply to the contention of the respondent that the Supreme Court of the United
States has held in the case of Bradford vs. Chase National Bank (24 Fed. Supp.,
38), that the Philippines had a sovereign status, though with restrictions, it is
sufficient to state that said case must be taken in the light of a subsequent
decision of the same court in Cincinnati Soap Co. vs. United States (301 U.S.,
308), rendered in May, 1937, wherein it was affirmed that the sovereignty of the
United States over the Philippines had not been withdrawn, with the result that the
earlier case only be interpreted to refer to the exercise of sovereignty by the
Philippines as delegated by the mother country, the United States.

No conclusiveness may be conceded to the statement of President Roosevelt on August

12, 1943, that "the United States in practice regards the Philippines as having now
the status as a government of other independent nations--in fact all the attributes
of complete and respected nationhood," since said statement was not meant as having
accelerated the date, much less as a formal proclamation of, the Philippine
Independence as contemplated in the Tydings-McDuffie Law, it appearing that (1) no
less also than the President of the United States had to issue the proclamation of
July 4, 1946, withdrawing the sovereignty of the United States and recognizing
Philippine Independence; (2) it was General MacArthur, and not President Osme�a who
was with him, that proclaimed on October 23, 1944, the restoration of the
Commonwealth Government; (3) the Philippines was not given official participation
in the signing of the Japanese surrender; (4) the United States Congress, and not
the Commonwealth Government, extended the tenure of office of the President and
Vice-President of the Philippines.

The suggestion that as treason may be committed against the Federal as well as
against the State Government, in the same way treason may have been committed
against the sovereignty of the United States as well as against the sovereignty of
the Philippine Commonwealth, is immaterial because, as we have already explained,
treason against either is not and cannot be treason against the new and different
sovereignty of the Republic of the Philippines.

====================

G.R. No. L-369 March 13, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
CARMELITO VICTORIA, defendant-appellant.

Luis Atienza Bijis for appellant.

Assistant Solicitor General Kapunan, Jr. and Solicitor Bautista for appellee.

PERFECTO, J.:

Sentenced to the supreme penalty of death and to pay a fine of twenty thousand
pesos and costs, Carmelito Victoria comes to us to seek for the reversal of the
decision of the People's Court.

He is accused of treason in an information which reads as follows:

The undersigned Special Prosecutor accuses Carmelito Victoria alias Carlito

Victoria, Carling Victoria, Carlos Victoria of the crime of treason under article
114 of the Revised Penal Code committed as follows:

That during the period compromised between March, 1942 to December, 1944, more
specifically on or about the dates hereinbelow mentioned, in the different places
hereunder stated, and within the jurisdiction of this Honorable Court, the said
accussed not being a foreigner but a Filipino citizen owing allegiance to the
United States and the Commonwealth of the Philippines, in violation of his said
duty of allegiance, wilfully, unlawfully, feloniously and treasonably did knowingly
adhere to their enemy, the Empire of Japan and the Imperial Japanese Forces in the
Philippines, with which the United States and the Commonwealth of the Philippines
were then at war, giving to said enemy aid and/or comfort, in the following manner,
to wit:

1. That on or about October 6, 1944, the accused, a member of the Intelligence Unit
attached to the Kempei Tai in Lucena, Tayabas, for the purpose of giving and with
the intent to give said enemy aid and comfort, joined an armed enemy patrol
composed of about eight spies and a Japanese soldier, which went to the house of
Federico Unson in the barrio of Malaking Labak Bocohan, Lucena, Tayabas, and
accused Federico Unson of hiding guerrillas; that said patrol was arresting said
Federico Unson when some guerrillas appeared and killed one of the spies and the
patrol left; that said accused directed several men in the patrol in picking up the
dead spy and carrying him away; and that, in the afternoon of the same day, the
same party of spies, including the accused and eight members of the Japanese
Military Police, went again to the house of Federico Unson and did feloniously,
willfully, unlawfully and treasonably arrest him, together with Isaias Perez and
Ruben Godoy, who happened to be at the house; that with their hands bound, the
three were tortured and then taken along by said patrol after setting fire on the
house of Federico Unson and that of Isaias Perez were found lying nearby with
numerous bayonet wounds; and that Ruben Godoy was taken to the Japanese garrison in
Lucena, Tayabas, and there killed.

2. That on or about December 21, 1944, the accused, accompanied by other Japanese
spies, Pedro Ravi�era, Jose Bondoc, Jacinto Pineda, Alberto Calawit, Bernardo
Santiago, and others who were all armed, for the purpose of giving and with the
intent to give said enemy aid and comfort, went to the house of Jose Unson, in
Lucena, Tayabas, and arrested said Jose Unson and brought him to the Japanese
garrison on the charge that he had a short wave radio; that he was furnishing radio
information to the guerrillas and at the same time supporting them; that said Unson
was released on the same day, but on the next day he was again arrested and brought
to the Japanese garrison at Lucena, Tayabas; that said Jose Unson never returned.

3. That on or about February 10, 1945, the accused, in company with Jacinto Pineda,
Leonardo Coronel, Jose Bondoc, Abelardo Calawit, and Pedro Ravi�era, all members of
the Intelligence Unit of the Kempei Tai, were all armed, for the purpose of giving
and with the intent to give said enemy aid and comfort, went to the house of
Felixberto Romulo in San Pablo, Laguna, placed him under arrest as a guerrilla
suspect, and turned him over to the Japanese Military Police who on that occasion
were concealing themselves near the house of Romulo; and that, since the arrest of
said Romulo, nothing was heard of him.

4. That on or about December 21, 1944, at about 5 o'clock in the morning, the
accused, accompanied by two Japanese Military Police and two undercover operatives,
for the purpose of giving and with the intent to give said enemy aid and comfort,
went to the house of Hermogenes Calauag in Lucena, Tayabas, and apprehended said
Hermogenes Calauag; that said two Japanese Military Police and the accused
conducted a search of the house and afterwards brought Calauag to the Japanese
garrison where he was subjected to inhuman torture on the charge being pro-American
and adviser of the Hunters ROTC Guerrillas.

5. That on or about March 9, 1944, at about 5 o'clock in the morning, the accused
then acting as an informer of the Japanese Kempei Tai, with intent to aid said
enemy, did wilfully, feloniously and treasonably cause the Japanese Military police
to arrest and apprehended Antonio San Agustin, a guerrilla officer, who was
thereupon brought to Fort Santiago and there torture and unlawfully detained up to
September 20, 1944.

6. That on or about June, 1944, the accused accompanied by an armed group of

undercover operatives, for the purpose of giving and with intent to give said enemy
aid and comfort, went to the house of Melecio Labalan, Sr., and arrested and
brought him to the Japanese garrison in Lucena, Tayabas, where he was tortured on
the charge of being a guerrilla.

7. That on or about February, 1945, the accused, a member of the Ganap, a pro-
Japanese party, wilfully, unlawfully, feloniously and treasonably joined the
Makapili organization designed to support the Imperial Japanese Forces in levying
war against their enemies; that he took military training from the Japanese and
bore arms and joined the enemy forces as a Makapili soldier, taking orders from the
Japanese; that he participated in the raid and burning of the barrio of Bautista,
San Pablo, Laguna, upon orders of the Japanese; that he carried ammunitions and
foodstuffs for the Japanese Army from Bautista to the mountains of Susong Dalaga
and Mt. Malipu�o, Laguna; that he performed sentry duty for the Japanese Army in
Mount Malipu�o, where he was stationed with Japanese and other Makapili soldiers.

That the commission of the above-mentioned acts was attended by the aggravating
circumstances of treachery, the aid of armed persons to insure or afford impunity,
and deliberately augmenting the crimes by causing other wrongs not necessary in the
commission thereof.
Upon the testimonies of Mrs. Federico Unson, Jr. and Dolores Kalakasan, the lower
court found that the mutilated corpses of Federico Unson, Jr. and of Isaias Perez
were found rotting in the vicinity of the houses of the victims which were burned
and looted by the same hands, on the day following the arrest, effected by the
accused in the company of a Japanese soldier and several spies of the enemy. The
body of Unson which was still tied to a tree showed that it had been disemboweled
by several bayonet thrusts and the corpse of Perez appeared ankleless and
mutilated. Ruben Godoy, who was arrested at the same times as Unson and Perez,
since he was imprisoned in the garrison of the Japanese kempei, was never heard of.
Appellant's testimony to the fact that, although admitting his presence in the
previous morning raid, he did not come along with party that conducted the
afternoon raid in which the actual arrest of Unson, Perez and Godoy took place, was
not given by the lower court enough weight to prevail over that of the prosecuting
witnesses, thus finding the accused guilty on the first count.

With respect to the second count, the lower court states that the accused admitted
having taken part in the raid of the house of Jose Unson and in the latter's
arrest, but claims that he tried to save Unson, only the latter was accepted by the
lower court, in view of appellant's behaviour as recalled by witnesses Mercedes
Unson, Alejandro Unson, and Eugenio Ramon Unson. The last that was seen of Jose
Unson, was his skull as exhumed in a school yard in Lukban, several months after
the arrest, the exhumation having been effected with the aid of those who claimed
to have seen how his life was ended. These facts relate to the second count.

With respect to the third count, upon the declarations of Elena Romulo and
Enriqueta Alviar, the lower court found that on February 10, 1945, in the company
of Japanese kempei and Filipino spies, the accused raided the house of Felixberto
Romulo in San Pablo and arrested him as alleged guerrilla. The accused simply
alleged in his defense the alibi that on said date he was in Gagala�gin, Manila.

In regard to the fourth count, the accused alleged that he was merely asked by the
Japanese kempei to accompany them in the raid on Hermogenes Caluag's house and
admitted that he was present throughout the investigation and torture of Caluag
who, according to the accused himself, was tied suspended in the air for fully
twenty minutes, but the lower court did not accept this defense, considering it
rather as corroborative of the facts alleged in the information and proved by the
witnesses for the prosecution.

Appellant's participation in the arrest of Melecio Labalan, alleged in the sixth

count, according to the lower court, has been abundantly established, disbelieving
appellant's feigned ignorance of the arrest because appellant himself testified
that he promised to see what he could do about Labalan and accepted three chickens
from the latter's wife which he gave to the interpreter at the kempei office.

Counts five and seven were not proven.

Upon the record, it appears that the lower court's conclusions on the overt acts
alleged in counts one, two, three, four, and six of the information are fully
supported by the evidence. A perusal of appellant's brief alone, in taken. It is
highly significant that, although appellant's brief compromises one hundred thirty
printed pages, it failed completely to point out any specific error in the
conclusions of fact of the lower court, counsel limiting himself into raising legal
questions, maintaining that the penalty imposed is unjustified, and that the acts
committed by the accused do not constitute treason but ordinary crimes against the
victimized persons.

Admitting that appellant's conduct during the Japanese occupation has not been
impeccable, counsel wants us to consider what the accused did in behalf of the
guerrillas in mitigation of his criminal responsibility, and that the purpose of a
penalty, not being to satisfy public vengeance, but to attain the correction of the
guilty person, such purpose will not be attained with appellant's death as decreed
by the lower court.

Appellant tried to show in his testimony that he was not a spy; that he joined the
Japanese in their raids only because he was forced to do so; that in the instances
he had to go to the Japanese garrison he did it either in obedience to a summon of
his friend Captain Yuki or to intercede in behalf of some prisoners; that he
remained in Lucena heeding the advice of Sor Constancia, who appealed to him not to
go to the mountains so he may continue helping those who were detained by the
Japanese; and that in October 1943, he was arrested by the Japanese for aiding the
guerrillas, and that he was released only after he had been made to promise to
indicate who the guerrillas were but, notwithstanding the involuntary promise
exacted from him, he did not cause the arrest of any guerrilla. Even if we accept
this testimony of appellant it cannot overthrow the clear, positive, and
straightforward declarations of the witnesses, for the prosecution. Appellant's
claim that he, too, was a guerrilla, had helped the resistance movement, and in
fact, succeeded in interceding for some Filipino prisoners, does not relieve him
from criminal responsibility for the acts he had committed as alleged in the counts
in the information which were declared proven by the People's Court.

The performance of righteous action, no matter how meritorious they may be, is not,
as correctly stated by the Solicitor General, a justifying, exempting, or
mitigating circumstance in the commission of wrongs, and although appellant had
saved the lives of a thousand and one persons, if he had caused the killing of a
single human being to give aid and comfort to the enemy, he is, nonetheless, a
traitor. It was already said that: "For whosoever shall keep the whole law, and yet
offend in one point, he is guilty of all" (James 2:10).

We do not find any merit in appellant's allegations that the acts committed by him
are not punishable as treason and that the People's Court who tried him had no
jurisdiction, they being merely upshots of the wrong theory of suspended allegiance
and sovereignty.

Although this Court is unanimous in finding appellant guilty of treason as found by

the lower court, there is disagreement as to the penalty that should be imposed,
because, while nine of the ten members taking part in the decision of this case
voted for the affirmance of the death penalty imposed by the lower court, the
writer of this opinion takes the position that the penalty the accused deserves is
that of reclusion perpetua, the medium penalty provided by law.

The Solicitor General recommends the imposition of the supreme penalty of death in
view of the presence of the aggravating circumstances alleged in the information as
follows:

That the commission of the above-mentioned acts was attended by the aggravating
circumstances of treachery, the aid of armed persons to insure or afford impunity,
and deliberately augmenting the crimes by causing other wrongs not necessary in the
commission thereof.

The majority are of the opinion that these circumstances should be considered as
aggravating, while the undersigned maintains that in appellant's case, the
circumstances in question are essential elements of the treason he has committed.
The crime is of such a nature that it may be committed by one single act, by a
series of acts, or by several series thereof, not only in a single time, but in
different times, it being a continuous crimes as was held by this Court in Guinto
vs. Veluz (77 Phil., 801), so much so that there are some accused of treason for
just one count and there are others for several counts, their number not changing
the nature of the offense committed.

For all the foregoing, there being no unanimity of all the members of this Court in
the imposition of the death penalty, the People's Court's decision is modified, and
appellant is sentenced to reclusion perpetua and to pay a fine of P15,000 and
costs.

Moran, C.J., Pablo, Hilado, Bengzon, Briones, Padilla, and Tuason, JJ., concur.

Separate Opinions

FERIA, J., concurring:

I concur with the majority (except Mr. Justice Perfecto) that find the appellant
guilty of the crime of treason as alleged in the information, that is, with two
aggravating circumstances. Among the atrocities committed by the appellant and
companions stand, in bold relief, those testified to by Mrs. Federico Unson, Jr.,
and Dolores Calacasan and related in the same decision of this Court, to the effect
that Federico Unson, Jr., was crucified against and tied to a tree, and then
disemboweled with bayonet thrusts; and that Isaias Perez's body was mutilated with
his ankles severed from the trunk and thrown around the place where the crime was
committed. And I dissent from the dissenting vote of the writer of the decision,
Mr. Justice Perfecto, which prevented the imposition by this Court of the death
penalty imposed upon the appellant by the lower court.

The killing of the victim was unquestionably attended by treachery, that is, by
means, method or forms in the execution thereof which tend directly to insure its
execution without risk to the offender arising from the defense which the offended
party might make, and by a deliberate augment of the wrong done by the offense by
causing other wrongs not necessary for its commission. But the writer of the
opinion says:

The majority are of the opinion that these circumstances should be considered as
aggravating, while the undersigned maintains that in appellant's case, the
circumstances in question are essential elements of the treason he has committed.
The crime is of such a nature that it may be committed by one single act, by a
series of acts, or by several series thereof, not only in a single time, but in
different times, it being a continuous crime as was held by this Court in Guinto
vs. Veluz (77 Phil., 801), so much so that there are some accused of treason for
just one count and there are others for several counts, their number not changing
the nature of the offense committed.

The reason or ground on which the dissenter bases his conclusion that the
aggravating circumstances above specified cannot be taken into consideration in the
present case, is clearly wrong. Said aggravating circumstances have nothing to do
with the integral elements of the crime of treason as charged and committed by the
appellant. The fact that the crime of treason may be committed by a single overt
act or a series of overt acts, committed at one and the same time or at different
times, does not, by any means, make those circumstances essential elements of the
offense committed by the appellant. Said circumstances were not even inherent in or
included by the law in defining the crime of treason. The words "treason" as
defined and penalized in the Revised Penal Code is completely different and
independent from "treachery" as an aggravating circumstance provided for in the
same Code.

The crime of treason is committed by a citizen, not by merely adhering to the enemy
and giving the latter aid and comfort in abstract, but by committing one or more
overt acts which constitute aid and comfort to the enemy to which the traitor
adheres; and evidently, the commission of such overt act as the killing of the
victim in aid of the enemy may be attended by the aggravating circumstances above
specified, for they were not necessary in order to give aid and comfort to the
enemy. Of course, if one of the aggravating circumstances provided by law is
inherent or included in the overt acts charged as in aid or comfort of the enemy,
it cannot be taken into consideration as aggravating circumstance attending the
commission of that particular crime of treason.

PARAS, J., concurring and dissenting:

I concur partly in the result. The information and the evidence sufficiently make
out at least a case of murder, qualified by treachery. Appellant had committed
other atrocities for which he could correspondingly be convicted under the
information and evidence of record. As spy, he may also be tried in a military
tribunal and, if found guilty, sentenced accordingly. While he might be guilty of a
violation of article 114 of the Revised Penal Code, I hold, in conformity with my
dissenting opinion in Laurel vs. Misa (77 Phil., 856), that said legal provisions
was not in force at the time of the commission of the crime. The penalty of
reclusion perpetua is in accordance with the law, but the provision regarding
payment of a fine should be eliminated and the appellant sentenced to indemnify in
the proper amount the heirs of the victim.

==============

G.R. No. L-322 July 28, 1947

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PEDRO MANAYAO, ET AL., defendants.
PEDRO MANAYAO, appellant.

J. Antonio Araneta for appellant.

First Assistant Solicitor General Jose B. L. Reyes and Solicitor Ramon L. Avance�a
for appellee.

HILADO, J.:

Appellant Pedro Manayao and Filomeno Flores and Raymundo Flores were charged with
the high crime of treason with multiple murder in the People's Court. The Floreses
not having been apprehended, only Manayao was tried. Convicted of the offense
charged against him with the aggravating circumstances of (1) the aid of armed men
and (2) the employment or presence of a band in the commission of the crime, he was
sentenced to death, to pay a fine of P20,000, an indemnity of P2,000 to the heirs
of each of the persons named in the third paragraph of the decision, and the costs.
He has appealed from that decision to this Court.

On or about the 27th of January, 1945, the guerrillas raided the Japanese in Sitio
Pulong Tindahan, Municipality of Angat, Province of Bulacan. In reprisal, Japanese
soldiers and a number of Filipinos affiliated with the Makapili, among them the
instant appellant, conceived the diabolical idea of killing the residents of Barrio
Banaban of the same municipality (Exhibits A, C, and C-1). Pursuant to this plan,
said Japanese soldiers and their Filipino companions, armed with rifles and
bayonets, gathered the residents of Banaban behind the barrio chapel on January 29,
1945. Numbering about sixty or seventy, the residents thus assembled included men,
women and children � mostly women (Exhibits A, C, amd C-1; pp. 3-16, 29, 30, 65,
102, t.s.n.).
The children were placed in a separate group from the men and women � the
prosecution star witnesses, Maria Paulino and Clarita Perez, were among the
children (pp. 3, 40, t.s.n. ). Presently, the Japanese and their Filipino comrades
set the surrounding houses on fire (pp. 14, 48, 70, 71, 103, t.s.n.), and proceeded
to butcher all the persons assembled, excepting the small children, thus killing,
among others, those known by the following names: Patricia, Dodi, Banda, Tana,
Uyang, Mina, Marta, Sana, Eufemia, Doroteo, Andres, Perly, Tisiang, Urado, Pisan,
Dorang, Felisa, and Eulalia (pp. 8, 10, 13, 14, 31, 32, 47, 48, 61, 63, t.s.n.).

Appellant alone killed about six women, two of whom were Patricia and Dodi whom he
bayoneted to death in the presence of their daughters, Maria Paulino and Clarita
Perez, respectively (pp. 8, 10, 13, 31, 32, 35, 47, 48, t.s.n.). Patricia and Dodi
pleaded with appellant for mercy, he being their relative, but he gave the callous
answer that no mercy would be given them because they were wives of guerrillas (pp.
10, 42, 43, 49, t.s.n.).

Appellant would also have killed the small children including Clarita Perez and
Maria Paulino if he had been allowed to have his way. For when all but the small
ones had been butchered, he proposed to kill them too, but the Japanese soldiers
interceded, saying that the children knew nothing of the matter (pp. 15, 49, 51,
66, 67, t.s.n.). Appellant insisted in his proposal, arguing that the children
would be wives of guerrillas later when they grew up, but the Japanese decided to
spare them (p. 22, t.s.n.).

The foregoing facts have been clearly established by the testimony of eye-witnesses
� Clarita Paulino, Maria Perez, and Policarpio Tigas � to the ruthless massacre of
Banaban. There is a complete absence of evidence tending to show motive on the part
of these witnesses for falsely testifying against appellant � such a motive is not
even insinuated by the defendant. Indeed, appellant's counsel frankly states (p. 3,
brief) that he "does not dispute the findings of fact of the People's Court."
Speaking of the testimony of Clarita and Maria, both aged ten years, the People's
Court, who heard, observed and saw them testify, had the following to say:

The testimony of the last two in particular is entitled to very great weight. They
are simple barrio girls, only ten years old, whose minds have not yet been tainted
by feelings of hatred or revenge or by any desire to be spectacular or to
exaggerate. They were straight-forward and frank in their testimony and did not
show any intention to appeal to the sentiments of the court. They could not have
been mistaken as to the presence and identity of the accused for they know him so
well that they referred to him by his pet name of "Indong Pintor" or Pedro, the
painter. They could not have erred in the narration of the salient phases of the
tragic events of January 29, 1945, in Banaban, for they were forced eye-witnesses
to and were involved in the whole tragedy, the burning of the houses and the
massacre committed by the accused and his Japanese masters took place in broad
daylight and were not consummated in a fleeting moment but during a time sufficient
for even girls of tender age to retain a trustworthy mental picture of the unusual
event they could not help but witness.

Not only this, but the testimony of Clarita Perez and Maria Paulino is so clear,
positive and convincing that it would be sufficient for conviction without any
further corroboration. Yet, there is ample corroborative proof. Thus, Tomas M.
Pablo declared that he had seen the corpses of the massacred residents of Banaban
shortly after the happening of the heinous crime (p. 136, t.s.n.). And appellant
himself admitted his participation in the massacre in two sworn statements � one
made on August 28, 1945, before Lt. Jesus Cacahit, Detachment Commander of the
Angat 23d MP Command (Exhibit A; pp. 75-77, t.s.n.) and another made on September
5, 1945 before Feliciano F. Torres, Assistant Provincial Fiscal of Bulacan
(Exhibits C, C-1; pp. 150-159, t.s.n.).
In No. 1 of his assignment of errors, appellant's counsel contends that appellant
was a member of the Armed Forces of Japan, was subject to military law, and not
subject to the jurisdiction of the People's Court; and in No. 2 he advances the
theory that appellant had lost his Philippine citizenship and was therefore not
amenable to the Philippine law of treason. We cannot uphold either contention. We
are of the considered opinion that the Makapili, although organized to render
military aid to the Japanese Army in the Philippines during the late war, was not a
part of said army. It was an organization of Filipino traitors, pure and simple. As
to loss of Philippine citizenship by appellant, counsel's theory is absolutely
untenable. He invokes in its support paragraphs 3, 4, and 6 of section 1 of
Commonwealth Act No. 63, providing:

. . . A Filipino citizen may lose his citizenship in any of the following ways
and/or events:

x x x x x x x x x

(3) By subscribing to an oath of allegiance to support the constitution or laws of

a foreign country upon attaining twenty-one years of age or more;

(4) By accepting commission in the military, naval or air service of a foreign

country;

x x x x x x x x x

(6) By having been declared, by competent authority, a deserter of the Philippine

Army, Navy, or Air Corps in time of war, unless subsequently a plenary pardon or
amnesty has been granted.

There is no evidence that appellant has subscribed to an oath of allegiance to

support the constitution or laws of Japan. His counsel cites (Brief, 4) the fact
that in Exhibit A "he subscribed an oath before he was admitted into the Makapili
association, "the aim of which was to help Japan in its fight against the Americans
and her allies.'" And the counsel contends from this that the oath was in fact one
of allegiance to support the constitution and laws of Japan. We cannot uphold such
a far-fetched deduction. The members of the Makapili could have sworn to help Japan
in the war without necessarily swearing to support her constitution and laws. The
famed "Flying Tiger" who so bravely and resolutely aided China in her war with
Japan certainly did not need to swear to support the Chinese constitution and laws,
even if they had to help China fight Japan. During the first World War the
"National Volunteers" were organized in the Philippines, pledged to go to Europe
and fight on the side of the Allies, particularly of the United States. In order to
carry out that mission � although the war ended before this could be done � they
surely did not have to take an oath to support the constitution or laws of the
United States or any of its allies. We do not multiply these examples, for they
illustrate a proposition which seems self-evident.

Neither is there any showing of the acceptance by appellant of a commission "in the
military, naval, or air service" of Japan.

Much less is there a scintilla of evidence that appellant had ever been declared a
deserter in the Philippine Army, Navy or Air Corps � nor even that he was a member
of said Army, Navy, or Air Corps.

Further, appellant's contention is repugnant to the most fundamental and elementary

principles governing the duties of a citizen toward his country under our
Constitution. Article II, section 2, of said constitution ordains:

"SEC. 2. The defense of the State is a prime duty of government, and in the
fulfillment of this duty all citizens may be required by law to render personal,
military or civil service." (Emphasis supplied.).

This constitutional provision covers both time of peace and time of war, but it is
brought more immediately and peremptorily into play when the country is involved in
war. During such a period of stress, under a constitution enshrining such tenets,
the citizen cannot be considered free to cast off his loyalty and obligations
toward the Fatherland. And it cannot be supposed, without reflecting on the
patriotism and intelligence of the Legislature, that in promulgating Commonwealth
Act No. 63, under the aegis of our Constitution, it intended (but did not declare)
that the duties of the citizen solemnly proclaimed in the above-quoted
constitutional precept could be effectively cast off by him even when his country
is at war, by the simple expedient of subscribing to an oath of allegiance to
support the constitution or laws of a foreign country, and an enemy country at
that, or by accepting a commission in the military, naval or air service of such
country, or by deserting from the Philippine Army, Navy, or Air Corps.

It would shock the conscience of any enlightened citizenry to say that this
appellant, by the very fact of committing the treasonous acts charged against him,
the doing of which under the circumstances of record he does not deny, divested
himself of his Philippine citizenship and thereby placed himself beyond the arm of
our treason law. For if this were so, his very crime would be the shield that would
protect him from punishment.

But the laws do no admit that the bare commission of a crime amounts of itself to a
divestment of the character of citizen, and withdraws the criminal from their
coercion. They would never prescribe an illegal act among the legal modes by which
a citizen might disfranchise himself; nor render treason, for instance, innocent,
by giving it the force of a dissolution of the obligation of the criminal to his
country. (Moore, International Law Digest, Vol. III, p. 731.)

696. No person, even when he has renounced or incurred the loss of his nationality,
shall take up arms against his native country; he shall be held guilty of a felony
and treason, if he does not strictly observe this duty. (Fiore's International Law
Codified, translation from Fifth Italian Edition by Borchard.)

As to the third assignment of error, the Solicitor General agrees with counsel that
it is improper to separately take into account against appellant he aggravating
circumstances of (1) the aid of armed men and (2) the employment of a band in
appraising the gravity of the crime. We likewise are of the same opinion,
considering that under paragraph 6 of article 14 of the Revised Penal Code
providing that "whenever more than three armed malefactors shall have acted
together in the commission of an offense it shall be deemed to have been committed
by a band," the employment of more than three armed men is an essential element of
and inherent in a band. So that in appreciating the existence of a band the
employment of more than three armed men is automatically included, there being only
the aggravating circumstance of band to be considered.

As to appellant's fourth assignment of error, the contention is clearly

unacceptable that appellant acted in obedience to an order issued by a superior and
is therefore exempt from criminal liability, because he allegedly acted in the
fulfillment of a duty incidental to his service for Japan as a member of the
Makapili. It is obvious that paragraphs 5 and 6 of article 11 of our Revised Penal
Code compliance with duties to or orders from a foreign sovereign, any more than
obedience to an illegal order. The construction contended for by appellant could
entail in its potentialities even the destruction of this Republic.

The contention that as a member of the Makapili appellant had to obey his Japanese
masters under pain of severe penalty, and that therefore his acts should be
considered as committed under the impulse of an irresistible force or
uncontrollable fear of an equal or greater injury, is no less repulsive. Appellant
voluntarily joined the Makapili with full knowledge of its avowed purpose of
rendering military aid to Japan. He knew the consequences to be expected � if the
alleged irresistible force or uncontrollable fear subsequently arose, he brought
them about himself freely and voluntarily. But this is not all; the truth of the
matter is, as the Solicitor General well remarks, that "the appellant actually
acted with gusto during the butchery of Banaban." He was on that occasion even bent
on more cruelty than the very ruthless Japanese masters � so fate willed it � were
the very ones who saved the little girls, Clarita Perez and Maria Paulino, who were
destined to become the star witnesses against him on the day of reckoning.

Conformably to the recommendation of the Solicitor General, we find appellant

guilty of the crime of treason with multiple murder committed with the attendance
of one aggravating circumstance, that of "armed band," thus discarding the first
aggravating circumstance considered by the trial court. A majority of the Court
voted to affirm the judgment appealed from, imposing the death penalty, convicting
defendant and appellant to pay a fine of P20,000, an indemnity of P2,000 to the
heirs of each of the victims named in the third paragraph of the lower court's
decision, and the costs. But due to the dissent of Mr. Justice Perfecto from the
imposition of the death penalty, in accordance with the applicable legal provisions
we modify the judgment appealed from as regards the punishment to be inflicted, and
sentence defendant and appellant Pedro Manayao to the penalty of reclusion
perpetua, with the accessories of article 41 of the Revised Penal Code, to pay a
fine of P20,000, an indemnity of P2,000 to the heirs of each of the victims named
in the third paragraph of the lower court's decision, and the costs. So ordered.

Moran, C.J., Feria, Pablo, Bengzon, Briones, Hontiveros, Padilla, and Tuason, JJ.,
concur.

PARAS, J.:

I concur in the result because I am convinced that the appellant is guilty of

multiple murder and he even deserves the maximum penalty.

Separate Opinions

PERFECTO, J., concurring and dissenting:

The main facts in this case upon which the prosecution relies are based on the
testimonies of three witnesses, two ten-year-old girls, Clarita Perez and Maria
Paulino, and Policarpio Tigas.

From the testimony of Maria Paulino we quote:

Q. You said that you are ten years old, do you know what is the meaning of telling
a lie? � A. I do not know.

Q. Do you know the difference between falsity and truth? � A. I do not know.

x x x x x x x x x

Q. Do you know how to read? � What, Sir?

Q. How to read. � A. No, Sir.

Q. Do you know how to pray? � A. I forgot how to pray."(Pages 44 and 45, t.s.n.)
From the testimony of Clarita Perez, we quote:

Q. Please state your name and your personal circumstances. � A. Clarita Perez, 10
years of age, and resident of the Sitio of Banaban.

Q. What town? � A. I do not know.

JUDGE NEPOMUCENO:

Q. Is Banaban a sitio in the town of Malolos, or Qui�gua, or Bigaa? � A. I do not

know, sir.

Q. You do not know? � A. I do not know, sir.

JUDGE ABAD SANTOS:

Q. What province? � A. I do not know, sir. (Page 4, t.s.n.)

Witness Policarpio Tigas, municipal policeman, testified that about sixty persons,
including his sister Eufemia, were killed in Banaban, but he was not killed
"because I was with my guerrilla outfit then." He saw the killing "because on the
29th day of January, I came down from the mountains and went to the barrio to see
my family to take them away from the place, but upon arriving there I saw that the
people were being gathered and placed behind the chapel. After placing the people
behind the chapel I saw the massacre of the group begun. In my interest to
ascertain the fate of my sister and so that I would not be seen, I crept to a creek
and stayed there to find out what would be the end of it all. While I was thus
hiding in that creek I saw my sister killed by Pedro Manayao, the painter. After
that, convinced of the fate of my sister and knowing the one who killed her was
Pedro Manayao, and because I was afraid that if I stayed there longer I might be
caught by the people and knowing that if I would be caught I would also be killed,
I left the place." (Page 102, t.s.n.) He was fifty meters away from the place of
the massacre. "The dead bodies were burned. I left to go to the mountains. I first
put my mother in a safe place, and after that I joined my companions and together
we returned to the town." Eufemia "was buried by my father" on the "second day
after the killing". (P. 103, t.s.n.)

The above are the facts testified in the direct testimony of the witness. That he
should come from the mountains and arrive at the place at the very instant when the
massacre was about to be executed; that he should have remained hidden in a creek,
fifty meters away, to find out the final fate of his sister; that, instead of
remaining to witness the gory scene, he did not depart to call his co-guerrilleros
who, according to him, were well armed, in order to attack the mass killers and try
to save those who were gathered to be killed; that he left precisely after he saw
his sister decapitated, notwithstanding which he testified that the corpses were
burned but that the body of his sister was buried by his father the day after the
killing, � these, besides other details, are things that lead us to doubt the
veracity of the testimony of this witness, thus leaving to be considered only the
testimonies of the two girls.

Although we are inclined to believe that the appellant must have been seen by the
two girls at the place of the massacre in the company of the Japanese, we cannot
reconcile ourselves in believing all the details as narrated by them, so as to
justify the inflicting of the supreme penalty upon appellant. Although we are
constrained to believe in the substantial truthfulness of the two grills,
considering their tender age which makes them highly susceptible to suggestions,
and the additional significant fact that Maria Paulino does not know "the meaning
of telling a lie" nor "the difference between falsity and truth," and history and
experience have time and again shown that human fallibility is more pronounced in
children of tender age, we vote for the modification of the appealed decision in
the sense that appellant be sentenced to reclusion perpetua.

==========================

HE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SUSANO PEREZ (alias KID

PEREZ), Defendant-Appellant.

Crispin Oben and Isidro Santiago for Appellant.

Assistant Solicitor General Manuel P. Barcelona and Solicitor Esmeraldo Umali for
Appellee.

SYLLABUS

1. CRIMINAL LAW; TREASON; ADHERENCE TO THE ENEMY, EXTENT AND SCOPE OF. � In a broad
sense, the law of treason does not prescribe all kinds of social, business and
political intercourse between the belligerent occupants of the invaded country and
its inhabitants. In the nature of things, the occupation of a country by the enemy
is bound to create relations of all sorts between the invaders and the natives.
What aid and comfort constitute treason must depend upon their nature, degree and
purpose. To draw a line between treasonable and untreasonable assistance is not
always easy. The scope of adherence to the enemy is comprehensive, its requirement
indeterminate.

2. ID.; ID.; ID. � As a general rule, to be treasonous the extent of the aid and
comfort given to the enemies must be to render assistance to them as enemies and
not merely as individuals and, in addition, be directly in furtherance of the
enemies� hostile designs. To make a simple distinction: To lend or give money to an
enemy as a friend or out of charity to the beneficiary so that he may buy personal
necessities is to assist him as an individual and is not technically traitorous. On
the other hand, to lend or give him money to enable him to buy arms or ammunition
to use in waging war against the giver�s country enhances his strength and by the
same count injuries the interest of the government of the giver. That is treason.

3. ID.; ID.; COMMANDEERING OF WOMAN TO SATISFY THE LUST OF THE ENEMY IS NOT
TREASON. � "Commandeering" of women to satisfy the lust of Japanese officers of men
or to enliven the entertainments held in their honor was not treason even though
the women and the entertainments helped to make life more pleasant for the enemies
and boost their spirit; he was not guilty any more than the women themselves would
have been if they voluntarily and willingly had surrender their bodies or organized
the entertainments. Sexual and social relations with the Japanese did not directly
and materially tend to improve their was efforts or to weaken the power of the
United States. The acts herein charged were not, by fair implication, calculated to
strengthen the Japanese Empire or its army or to cripple the defense and resistance
of the other side. Whatever favorable effect the defendant�s collaboration with the
Japanese might have in their prosecution of the war was trivial, imperceptible, and
unintentional. Intent of disloyalty is a vital ingredient in the crime of treason,
which, in the absence of admission, may be gathered from the nature and
circumstance of each particular case.

4. CRIMINAL LAW AND PROCEDURE; TREASON; CONVICTION OF ACCUSED FOR CRIME OF RAPE
ALLEGED AND INCLUDED IN THE INFORMATION. � Section 2 of Commonwealth Act No. 682
requires that the private crimes of which an accused of treason may be convicted
must be averred in the information and sustained by evidence. In the light of this
enactment, the defendant was warned of the hazard that he might be found guilty of
rapes if he was innocent of treason and thus afforded an opportunity to prepare and
meet them. There is no element of surprise or anomaly involved. In fact, under the
general law of criminal procedure, conviction for a crime different from that
designated in the complaint or information is allowed and practised, provided only
that such crime "is included or described in the body of the information, and is
afterwards justified by the proof presented during the trial."

D E C I S I O N

TUASON, J.:

Susano Perez alias Kid Perez was convicted of treason by the 5th Division of the
People�s Court sitting in Cebu City and sentenced to death by electrocution.

Seven counts were alleged in the information but the prosecution offered evidence
only on counts 1, 2, 4, 5 and 6, all of which, according to the court, were
substantiated. In a unanimous decision, the trial court found as follows.

"As regards count No. 1 �

"Count No. 1 alleges that the accused, together with the other Filipinos,
recruited, apprehended and commandeered numerous girls and women against their will
for the purpose of using them, as in fact they were used, to satisfy the immoral
purpose and sexual desire of Colonel Mini, and among such unfortunate victims, were
Felina Laput, Eriberta Ramo alias Miami Ramo, Eduarda Daohog, Eutiquia Lamay,
Feliciana Bonalos and Flaviana Bonalos.

"It would be unnecessary to recite here the testimonies of all the victims of the
accused; it is sufficient to reproduce here succinctly the testimony of Eriberta
Ramo. She testified that on June 15, 1942, the accused came to her house to get her
and told her that she was wanted in the house of her aunt, but instead, she was
brought to the house of the Puppet Governor Agapito Honta�osas; that she escaped
and returned to Baclayon her hometown that the accused came again and told bar that
Colonel Mini wanted her to be his Information Clerk; that she did not accept the
job that a week later, the accused came to Baclayon to get her, and succeeded in
taking some other girls to Puppet Governor Agapito Honta�osas; that Governor
Honta�osas told her that Colonel Mini wanted her to be his wife; that when she was
brought to Colonel Mini the latter had nothing on but a �G� string; that he,
Colonel Mini threatened her with a sword, tied her to a bed and with force
succeeded in having carnal knowledge with her; that on the following night, again
she was brought to Colonel Mini and again she was raped; that finally she was able
to escape and stayed in hiding for three weeks and only came out from the hiding
when Colonel Mini left Tagbilaran.

"As regards count No. 2 �

"Count No. 2 of the information substantially alleges: That the accused in company
with some Japs and Filipinos took Eriberta Ramo and her sister Cleopatra Ramo from
their home in Baclayon to attend a banquet and a dance organized in honor of
Colonel Mini by the Puppet Governor, Agapito Honta�osas in order that said Japanese
Colonel might select those girls who would later be taken to satisfy his carnal
appetite and that by means of threat, force and intimidation, the above mentioned
two sisters were brought to the headquarters of the Japanese Commander at the
Mission Hospital in Tagbilaran where Eriberta Ramo was forced to live a life of
shame. All these facts alleged in count No. 2 were testified to by said witnesses
Eriberta Ramo and her mother Mercedes de Ramo. It is not necessary here to recite
once more their testimony in support of the allegations in count No. 2; this Court
is fully convinced that the allegations in said count No. 2 were fully
substantiated by the evidence adduced.

"As regards count No. 4 �

"Count No. 4 substantially alleges that on July 16, 1942, the two girls named
Eduarda S. Daohog and Eutiquia Lamay, were taken from their homes in Corella,
Bohol, by the accused and his companion named Vicente Bullecer, and delivered to
the Japanese Officer, Dr. Takibayas to satisfy his carnal appetite, but these two,
the accused Susano Perez and his companion Vicente Bullecer, before delivering them
to said Japanese Officer, satisfied first their lust the accused Susano Perez
raping Eduarda S. Daohog, and his companion, Vicente Bullecer, the other girl
Eutiquia Lamay. Eduarda S. Daohog, testifying, said: that while on the way to
Tagbilaran, the accused through force and intimidation, raped her in an uninhabited
house; that she resisted with all her force against the desire of the accused, but
of no avail; that upon arriving in Tagbilaran, she was delivered to the Japanese
Officer named Takibayas who also raped her. Eutiquia Lamay testified that on July
16, 1942, the accused and his companion, Bullecer, went to her house to take her
and her sister; that her sister was then out of the house; that the accused
threatened her with a revolver if she refuses to go; that she was placed in a car
where Eduarda Daohog was; that while they were in the car, the accused carried
Eduarda out of the car, and their companion Bullecer took the other witness
(Eutiquia Lamay); that when the accused and Eduarda returned to the car, the
latter, Eduarda, covered her face, crying; that later, she and Eduarda were taken
to the Governor�s house; that on arriving and in the presence of the Puppet
Governor Honta�osas, the Governor exclaimed: �I did not call for these girls�; but
the accused replied saying: �These girls talked bad against the Japs, and that is
why we arrested them�; that the said Governor Honta�osas then, said: �Take them to
the Japs�; that the accused and Bullecer brought the two girls to the Japanese
headquarters; that Eduarda was taken to one room by the Japanese Captain called Dr.
Takibayas, and she (Eutiquia Lamay) was taken to another room by another Japanese
living in that house; that she was raped by that Jap while in the room; that she
resisted all she could, but of no avail. "In the light of the testimonies of these
two witnesses, Eduarda S. Daohog and Eutiquia Lamay, all the allegations in Count
No. 4 were fully proven beyond reasonable doubt.

"As regards count No. 5 �

"Count No. 5 alleges: That on or about June 4, 1942, the said accused commandeered
Feliciana Bonalos and her sister Flaviana Bonalos on the pretext that they were to
be taken as witnesses before a Japanese Colonel in the investigation of a case
against a certain Chinese (Insik Eping), and upon arriving at Tagbilaran, Bohol,
the accused brought the aforesaid two girls to the residence of Colonel Mini,
Commander of the Japanese Armed Forces in Bohol and by means of violence, threat
and intimidation, said Japanese Colonel abused and had sexual intercourse with
Flaviana Bonalos; that the accused subsequently brought Flaviana Bonalos to a small
house near the headquarters of Colonel Mini and through violence, threat and
intimidation, succeeded in having carnal knowledge with her against her will; that
about two days, later, upon the pretext of conducting the unfortunate girls to
their home, the said accused brought the other girl Feliciana Bonalos to a secluded
place in Tagbilaran, Bohol, and in the darkness, by means of threat and violence
had carnal knowledge with her against her will.

"Feliciana Bonalos testifying in this count, declared: that the accused came to get
her on the pretext that she was to be used as witness in a case affecting certain
Chinaman before Colonel Mini; that she and her younger sister Flaviana were brought
in a car driven by the accused; that they were brought to the house of Colonel
Mini; that her sister Flaviana was conducted into a room and after remaining in the
same for about an hour, she came out with her hair and her dress in disorder; that
Flaviana told her immediately that she was raped against her will by Colonel Mini;
that she (Feliciana), after leaving the residence of said Jap officer, was taken by
Perez to an uninhabited house and there by threat and intimidation, the accused
succeeded in raping her; that when she returned to her (the witness), Flaviana was
crying; that the following day while conducting the two girls back to their
hometown, she (Feliciana) was also raped by the accused in an uninhabited house,
against her will.

"Victoriana Arayan (mother of Feliciana and Flaviana Bonalos) testified as follows:

That on June 15, 1942, the accused came and told her that the Japs needed her
daughters to be witnesses; that accordingly, her daughters, under that
understanding, started for Tagbilaran, that later, she went to Tagbilaran to look
for her daughters and she found them in the office of the Puppet Governor; that on
seeing her, both daughters wept and told her that they were turned over to the Japs
and raped them; that her daughter Flaviana told her (the witness) that after the
Japs had raped her the accused also raped her (Flaviana) in an uninhabited house;
that the accused did not permit her two daughters to return home on the pretext
that the Puppet Governor was then absent and in the meanwhile they stayed in the
house of the accused Perez; that when her daughters returned to her house
ultimately, they related to her (mother) what happened; that both daughters told
her they would have preferred death rather than to have gone to Tagbilaran; that
Feliciana told her (the mother) that the accused had raped her.

"The information given by Feliciana to her mother is admitted in evidence as a part

of the res gestae regardless of the time that had elapsed between the occurrence
and the time of the information. In the manner these two witnesses testified in
Court, there could be no doubt that they were telling the absolute truth. It is
hard to conceive that these girls would assume and admit the ignominy they have
gone through if they were not true. The Court is fully convinced that all the
allegations contained in Count No. 5 have been proven by the testimonies of these
two witnesses beyond reasonable doubt.

"As regards count No. 6 �

"Count No. 6, alleges: That the accused, together with his Filipino companions,
apprehended Natividad Barcinas, Nicanora Ralameda and Teotima Barcinas, nurses of
the provincial hospital, for not having attended a dance and reception organized by
the Puppet Governor in honor of Colonel Mini and other Japs high ranking officers,
which was held in Tagbilaran market on June 25, 1942; that upon being brought
before the Puppet Governor, they were severely reprimanded by the latter; that on
July 8, 1942, again said nurses were forced to attend another banquet and dance in
order that the Jap officers Mini and Takibayas might make a selection which girl
would suit best their fancy; that the real purpose behind those forcible
invitations was to lure them to the residence of said Japanese Officer Mini for
immoral purposes.

"Natividad Barcinas, a Lieutenant of the P. A., testified at length. She declared:

That on June 29, 1942, she and companion nurses, saw the accused coming to the
hospital with a revolver and took them on a car to the office of the Puppet
Governor where they were severely reprimanded by the latter for not attending the
dance held on June 25, 1942; that the real purpose in compelling them to attend
said dances and receptions was to select from among them the best girl that would
suit the fancy of Colonel Mini for immoral purposes; that she and her companions
were always afraid of the accused Perez whenever he came to said hospital; that on
one occasion, one of the nurses on perceiving the approach of the accused, ran up
into her room, laid down on her bed and simulated to be sick; that said accused,
not satisfied, went up into the room of that particular nurse and pulled out the
blanket which covered her and telling her that it was only her pretext that she was
sick.
"The testimony of Lt. Natividad Barcinas is fully corroborated by that of Nicanora
Ralameda. Said testimony need not be reproduced here."cralaw virtua1aw library

In a carefully written brief for the appellant, these findings are not questioned,
but it is contended that the deeds committed by the accused do not constitute
treason. The Solicitor General submits the opposite view, and argues that "to
maintain and preserve the morals of the soldiers has always been, and will always
be, a fundamental concern of army authorities, for the efficiency of an army rests
not only on its physical attributes but also, mainly, on the morale of its
soldiers" (citing the annual report of the Chief of Staff, United States Army, for
the fiscal year ending June 30, 1933).

If furnishing women for immoral purposes to the enemies was treason because women�s
company kept up their morale, so fraternizing with them, entertaining them at
parties, selling them food and drinks, and kindred acts, would be treason. For any
act of hospitality without doubt produces the same general result. Yet by common
agreement those and similar manifestations of sympathy and attachment are not the
kind of disloyalty that are punished as treason.

In a broad sense, the law of treason does not prescribe all kinds of social,
business and political intercourse between the belligerent occupants of the invaded
country and its inhabitants. In the nature of things, the occupation of a country
by the enemy is bound to create relations of all sorts between the invaders and the
natives. What aid and comfort constitute treason must depend upon their nature,
degree and purpose. To draw a line between treasonable and untreasonable assistance
is not always easy. The scope of adherence to the enemy is comprehensive, its
requirement indeterminate, as was said in Cramer v. United States, 89 Law. ed.,
1441.

As a general rule, to be treasonous the extent of the aid and comfort given to the
enemies must be to render assistance to them as enemies and not merely as
individuals and, in addition, be directly in furtherance of the enemies� hostile
designs. To make a simple distinction: To lend or give money to an enemy as a
friend or out of charity to the beneficiary so that he may buy personal necessities
is to assist him as an individual and is not technically traitorous. On the other
hand, to lend or give him money to enable him to buy arms or ammunition to use in
waging war against the giver�s country enhances his strength and by the same count
injures the interest of the government of the giver. That is treason. (See United
States v. Fricke, 259 F., 673; 63 C. J., 816, 817.)

Applying these principles to the case at bar, appellant�s first assignment of error
is correct. His "commandeering" of women to satisfy the lust of Japanese officers
or men or to enliven the entertainments held in their honor was not treason even
though the women and the entertainments helped to make life more pleasant for the
enemies and boost their spirit; he was not guilty any more than the women
themselves would have been if they voluntarily and willingly had surrendered their
bodies or organized the entertainments. Sexual and social relations with the
Japanese did not directly and materially tend to improve their war efforts or to
weaken the power of the United States. The acts herein charged were not, by fair
implication, calculated to strengthen the Japanese Empire or its army or to cripple
the defense and resistance of the other side. Whatever favorable effect the
defendant�s collaboration with the Japanese might have in their prosecution of the
war was trivial, imperceptible, and unintentional. Intent of disloyalty is a vital
ingredient in the crime of treason, which, in the absence of admission, may be
gathered from the nature and circumstances of each particular case.

But the accused may be punished for the rape of Eriberta Ramo, Eduarda Daohog,
Eutiquia Lamay and Flaviana Bonalos as principal by direct participation. Without
his cooperation in the manner above stated, these rapes could not have been
committed.

Conviction of the accused of rapes instead of treason finds express sanction in

section 2 of Commonwealth Act No. 682, which says:jgc:chanrobles.com.ph

"Provided further, That where, in its opinion, the evidence is not sufficient to
support the offense (treason) charged, the People�s Court may, nevertheless,
convict and sentence the accused for any crime included in the acts alleged in the
information and established by the evidence."cralaw virtua1aw library

All the above mentioned rapes are alleged in the information and substantiated by
the evidence.

Counsel assails the constitutionality of this provision as violative of section 1,

paragraph 17, Article III of the Constitution, which guarantees to an accused the
right "to be informed of the nature and cause of the accusation against him." The
contention is not well taken. The provision in question requires that the private
crimes of which an accused of treason may be convicted must be averred in the
information and sustained by evidence. In the light of this enactment, the
defendant was warned of the hazard that he might be found guilty of rapes if he was
innocent of treason and thus afforded an opportunity to prepare and meet them.
There is no element of surprise or anomaly involved. In fact, under the general law
of criminal procedure, conviction for a crime different from that designated in the
complaint or information is allowed and practised, provided only that such crime
"is included or described in the body of the information, and is afterwards
justified by the proof presented during the trial." (People v. Perez, 45 Phil.,
599.)

The defendant personally assaulted and abused two of the offended girls but these
assaults are not charged against him and should be ruled out. The crime of coercion
alleged and found on count No. 6 need not be noticed in view of the severity of the
penalty for the other crimes which he must suffer.

We find the defendant guilty of four separate crimes of rape and sentence him for
each of them to an indeterminate penalty of from 10 years of prision mayor to 17
years and 4 months of reclusion temporal, with the accessories of law, to indemnify
each of the offended women in the sum of P3,000, and to pay the costs; it being
understood that the total duration of these penalties shall not exceed forty years.

Moran, C.J., Feria, Perfecto, Bengzon, Briones and Reyes, JJ., concur.

Separate Opinions

PARAS, J.:

==================

G.R. No. L-711 January 28, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
AMADO PA�GANIBAN, accused-appellant.

Tomas P. Pa�ganiban and Nicolas Suanes for appellant.

Acting First Assistant Solicitor General Roberto A. Gianzon and Solicitor Felix V.
Makasiar for appellee.
TORRES, J.:

Amado Pa�ganiban was prosecuted before the People's Court for treason under article
114 of the Revised Penal Code. The information embodies six counts, but after trial
the People's Court found him guilty of the first four counts, dismissed the fifth
and the sixth counts. Holding him guilty of treason, the court sentenced him to
death and to pay a fine in the sum of P15,000 and the costs. This case is before us
for review of, and by virtue of appeal taken by Panganiban from, the judgment of
conviction rendered against him by the People's Court.

When in the early part of 1942, the Japanese invading forces occupied the
municipality of Lobo, Province of Batangas, the mayor and other town officials and
a great portion of the population left the town. The defendant, however, who was
chief of police, remained in his post and met the Japanese forces, thus initiating
a close contact of collaboration with the enemy.

A resume of the evidence is as follows:

First count. � To substantiate the charge made in this count, the prosecution,
proved that at 9 o'clock in the evening of December 27, 1943 in Lobo, Batangas,
defendant shot Feliciano Godoy and as a result thereof the victim died at 2 o'clock
the following day, without any help to save his life, because defendant prohibited
members of the family of the victim from taking his son to the municipality of
Batangas, because according to him Godoy should die because he was "a bad and a
guerilla."

On that night, Godoy was trying to enter a gambling den conducted by Gerardo
Marasigan and when a policeman, at the request of Marasigan, was going to search
him for firearm Godoy ran away. According to Marasigan, Godoy was making trouble in
the gambling place and when Godoy was shot by the accused the former was sitting on
a culvert near the intersection of Regidor and Burgos Streets of said town. The
evidence shows that the defendant fired at Godoy at a distance of about two meters
while Godoy was standing with the body inclined forward. The bullet entered the
body just above the heart and came out near the waistline. Although appellant
admits the shooting, he alleges self-defense. But it has been shown that Godoy who
was unarmed, was only starting to rise from his sitting position when the
defendant, who was standing in front of his victim, suddenly fired at the latter,
who exclaimed: "Mayor, why did you shoot me? What have I done?"

Defendant knew that Godoy was engaged in guerilla activities since April, 1943, and
prior to this there was an attempt against his life on June 30, 1943 in Batangas,
Batangas. Defendant suspected as authors thereof, a group of guerrilla leaders
composed of Colonel Espina, Major Aguirre, Captain Boruel, the De Chaves brothers
and Godoy. Before shooting Godoy he made the latter admit that he was a member of
the guerrillas.

Upon consideration of the evidence submitted by the prosecution in connection, with

the killing of Godoy it may not be amiss to state that, aside from the fact that
appellant with the chief of police and four policemen brought Godoy in a very
serious condition to the latter's house and left almost immediately, it has been
shown that upon hearing that Godoy's father and other relatives were making
arrangements to take the injured man to Batangas, the provincial capital, in a last
and desperate effort to save his life, this appellant came back with two armed
Japanese soldiers and told the relatives of his victim that they should not take
him to Batangas, but should let him die "because he is a bad man, he being a
guerilla." It is thus that out of sheer fear of defendant, who was all-powerful in
the town, and not withstanding his unsupported contention that he had used some
iodine on the wound of his victim, Godoy was let to die at about 2 o'clock in the
afternoon of the following day, without adequate medical assistance.

As to appellant's allegation that the acted in self-defense, the evidence plainly

shows that it was a last effort made by the accused to distort the facts and
justify his criminal act of shooting Godoy at the time when the latter had not
given any cause for the sudden attack made upon him and which resulted in his
death. Moreover, it has been also proven that, during the exchange of words between
appellant and his victim, the latter finally admitted to the former that he was a
member of the guerrillas. Under those circumstances, we can safely conclude that as
an active demonstration of appellant's adherence to the enemy, Godoy was killed by
him because of his connection with the guerrillas and, also, because he could not
forget the attempt against his life by some members of the guerrillas.

Second count. � Emilio Boruel was a guerrilla captain attached to the Fil-American
guerrilla forces and then latter to the PQOG (President Quezon's Own Guerrillas).
On April 29, he was arrested by the municipal police of Lobo, locked in the
municipal jail and later taken to the Japanese garrison and executed on the same
day.

It appears that a bout 11 o'clock of April 29, there was a fight in the Lobo
cockpit between Emilio Boruel and Eugenio Gonzalvo, a barrio lieutenant when the
former tried to collected a debt from the latter. The defendant was in the cockpit
and ordered a policeman to arrest Boruel and to lock him in the municipal jail.
After the policeman had left the cockpit with Boruel, the defendant addressed the
crowd in the cockpit and told them these words: "The end of Emilio is at hand." The
defendant then went to the Japanese garrison where he talked briefly with a
Japanese soldier who was then carrying a saber. Following an exchange of a few
words with the soldier, defendant went inside the garrison and came out with six
soldiers who accompanied the defendant to the municipal building. After tying
Boruel, the Japanese soldiers took him to the Japanese garrison and after about
thirty minutes he was again taken out of the garrison and conducted to the river
where he was killed with bayonet thrusts and then buried. It should be remembered
that Boruel was one of those suspected by the defendant as being connected with the
attempt against his life when he was in a restaurant one morning before the
incident at the cockpit.

The defendant admitted that Boruel and Gonzalvo had a fight in the cockpit, but
denied that he was present at that place when a policeman arrested Boruel and took
the latter to the municipal jail. The appellant said that he went to the municipal
jail to look for Boruel the latter was no longer there because he was taken by
Japanese soldiers, and that when he went to the Japanese garrison to save Boruel
from punishment or death, the Japanese commander informed him that Boruel has been
liquidated for being a bad man, and that it was the second time that Boruel has
been locked in the garrison following his fight with Gonzalvo who was friendly to
the Japanese.

It appears, however, that although councilor Gonzalvo was one of the participants
in the row in the cockpit, he was not arrested. Notwithstanding all the
protestations of appellant, we are satisfied that his one testimony in this regard
cannot prevail upon the affirmative statements made by several witnesses for the
prosecution to the effect that appellant was present in the cockpit when the fight
took place, and that he was instrumental in the arrest of Boruel and his final
disposition as already stated. Although in this particular instance it cannot be
affirmed that he was directly responsible for the liquidation of Boruel, yet the
arrest of the latter by a policeman upon orders of this appellant led to the
killing of said victim by the members of the Japanese garrison.

Third count. � Frank O. Bacon and three other American, who turned out to be former
employees of Marsman and Company, were in hiding in the barrio of Sawang, Lobo,
about the month of April, 1942 while trying to contact Mindoro guerrillas. Those
four Americans refused to be concentrated at the beginning of the war and preferred
to cast their lot with the guerrillas. They often visited the town of Lobo and the
defendant knew of their whereabouts. the defendants, fearing that the Japanese
would know sooner or later about their pressure in the town, advised them to
surrendered to the Japanese, but the Americans refused to do so. Then he advised
them to move to Lahia, another barrio of Lobo, but only two of them � Johnson and
Meyer � seemed to have followed the suggestion, while the other two, Bacon and
Ralph, remained in barrio Sawang, or, according to defendant, moved to Malabrigo.
To both groups, defendant sent word to leave their places because the Japanese were
coming, but the American simply replied: "Let them come."

One day, defendant, his chief of police and several were policemen, surrounded the
hiding place of the Americans. And in order to avoid a clash with the Americans, he
sent a messenger to tell them that Tomas Villanueva, the mayor who refused to serve
under the Japanese, was waiting for them there in the seashore. The Americans in
good faith believed the truth of the message. As soon as they left, the defendant
and his men ransacked their house and other personal belongings. Defendant admits
that he himself confiscated the arms of the Americans.

Gabriel Gutierrez, testifying for the prosecution, said that, at about eleven in
the morning of May 25, 1943, while he was in the office of the commander of the
Japanese garrison in Batangas, the accused arrived and reported to the Japanese
officer that he had confiscated the firearms and other personal belongings of the
four Americans, who were hiding in the barrio of Sawang, and that the defendant
turned over the confiscated firearms to the Japanese commander. This fact, was
corroborated by Francisco Boruel, brother of the deceased Emilio Boruel, who was in
a nearby store when the defendant and his policemen arrived, followed by a big
crowd, in front of the municipal building of Lobo carrying the rifles, ammunition,
blankets and other personal belongings of the Americans who were biding in Sawang.
On the particular occasion the defendant explained to the crowd how he had enticed
those four Americans to these seashore and by means of a ruse took possession of
their belongings. The testimony of the two above-named witnesses is strengthened by
that of Frank O. Bacon, one of the Americans in question.

In his defense, appellant said that his attitude in the premises was due to the
fact that he wanted to protect himself and the townspeople from the Japanese; that
previously he had informed the Japanese that there were no Americans nor guerrillas
in the municipality of Lobo, and that, should the Japanese learn that his
information was not true, he would have been liableto punishment by the Japanese.

The fourth and last count on which this defendant was found guilty is based on the
testimony of witnesses who stated that the on March 25, 1945 the appellant sent
foodstuffs, consisting of vegetables, chickens, eggs, one pig and so forth to
Japanese soldiers who had retreated to the hills in the barrio of Calo, Lobo,
Batangas. Those foodstuffs were collected by defendant from the townspeople who
were compelled to give what they could to feed those Japanese soldiers formerly
stationed in the poblacion of Lobo. A group of fifty men, like beasts of burden,
were compelled by appellant to take the foodstuffs on their shoulders to Mount
Calo.

Explaining his conduct, the defendant said that in the afternoon of May 27 he
received a note from Captain Terada, the officer in command of those Japanese
soldiers, demanding that food be sent to his command quickly, otherwise they will
kill the people and come down from the mountain to burn the town and massacre its
inhabitants.

The People's Court remarks that no reliable evidence regarding the supposed message
of the Japanese was presented to support this contention. An acting barrio
lieutenant of Calo, who was supposed to have been the one through whom the Japanese
sent the message to t he town, could not assert that he had read the contents of
such note. And even assuming that there was such request from the Japanese
commander of the garrison to supply him and his soldiers with food, the fact is
that at that time the American forces had already landed in the Province of
Batangas, and according to the evidence they were already in Lobo the day before
appellant sent those foodstuffs to the Japanese .

Appellant further knew that there were guerrilla units operating in and around the
territory of the municipality of Lobo, to whom he could have asked for help in case
the Japanese carried out their threat to kill the population and burn the town, if
the foodstuffs were not sent to them in Mount Calo, but evidently his adherence to
the Japanese made him disregard the actual conditions then obtaining in the
municipality, and induced him to come to the help of his friends, the former
Japanese occupants of the municipality, over and above the changed situation
resulting from the arrival of the forces of liberation.

In the face of the facts proven in this case, the conclusion is inevitable that the
appellant is guilty of treasonable acts in violation of the provisions of article
114 of the Revised Penal Code as amended. Even if we should consider that he cannot
be held responsible for the death of Emilio Boruel, a guerrilla captain, and regard
that the killing of Felicisimo Godoy was caused by this appellant to avenge an
alleged attempt against his life, yet the record contains abundant proof that,
during the three years of occupation of the municipality of Lobo by the Japanese
garrison, he had done his best to further the war effort of the enemy to the
prejudice of the interest of his countrymen, because notwithstanding the fact that
he, as a Filipino citizen, owed allegiance to the United States of American and the
Government of the Commonwealth of the Philippines, he had made up his mind that the
American sovereignty would not be restored in the Philippines. In fact on the third
Sunday of June, 1943, a few days before the alleged attempt to assassinate him, in
a speech he delivered in the cockpit of Lobo, he admonished those who had relatives
among the guerrillas, to tell them to surrender to the Japanese because Japan was
bound to win the war and the Americans could not be expected to return until after
many years.

As above stated, the People's Court sentenced the appellant to the penalty of
death, but, upon careful consideration of the treasonable acts committed by this
appellant, we are satisfied that the ends of justice will be served if the penalty
of reclusion perpetua is imposed herein. Amado Panganiban is therefore sentenced to
reclusion perpetua with the accessories of the law. Thus modified, the judgment
under review is otherwise affirmed, with judgment under review is otherwise
affirmed, with costs.

Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Padilla, Tuason, Montemayor and Reyes,
JJ., concur.

===================

G.R. No. L-2237 January 31, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
AMADO MENOR, defendant-appellant.

Florentino M. Guanlao for appellant.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Lucas Lacson for
appellee.

TORRES, J.:
Amado Menor was charged before the People's Court with the crime of treason on five
accounts set forth in the information. He entered a plea of not guilty and the
prosecution, having abandoned counts Nos. 1, 3, 5. submitted evidence in support of
counts Nos. 2 and 4 by the testimony of at least two witnesses for each count. The
People's Court found him guilty of treason under those counts and, taking into
consideration the attendance of the mitigating circumstance of lack of education,
sentenced him to 14 years, 8 months and 1 day of reclusion temporal, with the
accessory penalties of the law, to pay a fine of P7,000 and the costs. Amado Menor
was likewise credited with one-half of the preventive imprisonment he has
undergone.

He appealed from said judgment and, in this instance, his counsel de oficio assails
the correctness of the judgment of the People's Court by alleging that the evidence
adduced by the prosecution does not justify the conviction of the accused of the
crime of treason charged in counts Nos. 2 and 4 of the information, and that the
conclusion that all the elements of the crime of treason under article 114 of the
Revised Penal Code exist in this case, is unfounded, because "only one was even
doubtfully proven."

Upon perusal of the record of this case we gather that this appellant, a Filipino
citizen, has, according to the prosecution, committed the following acts.

As regards count 2. On December 1, 1944, with the active cooperation of a group of

Filipinos, among whom was Amado Menor, the Japanese established a "military cordon"
in the barrio of Tipas, municipality of Taguig, Province of Rizal, in order to
prevent the inhabitants from leaving the place. They gathered all the inhabitants,
particularly the men, and caused them to parade before a group of hooded persons,
known as "magic eye." As each person was caused to pass before "magic eye," the
latter, by a nod of the head, indicated to the Japanese whether or not a particular
individual was a guerrilla or connected therewith. Those who were not pointed out
as guerrillas were sent to the Catholic church and later released, while those who
were designated to have connections with the guerrillas were sent to the Aglipayan
church, maturated, loaded in trucks and them to Fort Santiago in Manila or to other
unknown destinations. After this, the group of persons who were classified as
guerrillas were never seen or heard from thereafter.

The above facts were testified to by Rosa Salazar, Conrado Bonifacio, Anselmo
Eustaquio, Cirila Cruz, Lucila Ma�osca, Mateo Gregorio, Avencinia Sumulong, Julia
Gregorio Rosario Nazario, Aluwina Trinidad, Patricia Dingdingbayan, Margarita
Bunye, Luis Eustaquio, Antonio Rodriguez, Maria Umali, Rafael Sa�ga, Felicisimo
Santos, Felisa Ocampo, Maximo Cruz, and Ricardo Angel. By their testimonies the
prosecution has thus overwhelmingly established the charge made by the prosecution
in count No. 2 that this defendant, by actively cooperating with and executing the
unlawful designs of his Japanese masters, not only adhered to the enemy but with
positive acts gave the Japanese aid and comfort in carrying out their plans of
destroying the underground resistance movement and thus consolidate their
occupation of the country.

The evidence submitted by the prosecution in support of count No. 4 shows that
Ernesto Buenviaje, then a guerrilla, on December 30, 1944, came from his mountain
hideout to visit his family in the barrio Sagad, Pasig, Rizal. His wife Mercedes
Mendiola warned him that he was being hunted on account of his guerrilla
activities, whereupon Buenviaje and his wife hurriedly left their house and took
refuge in the house of their cousin Zacarias, in the barrio of Caniogan, Maybunga,
Pasig, Rizal. They had been in that place only a few minutes when the accused Amado
Menor, accompanied by Brigido Cruz, Agaton Martin, Santiago Damian, Modesto Ferrer,
Leonardo Marquez, and a Japanese military police, arrived in search for Ernesto
Buenviaje. The accused Amado Menor pointed his gun at Buenviaje, while his
companions dragged their victim downstairs, and there tied and thereafter taken
away. Since then nothing was heard of Ernesto Buenviaje.

Mercedes Mendiola, wife of Ernesto Buenviaje, said that on December 30, 1944, her
husband came to visit her. She told him to go away because he was wanted; she
accompanied him to the hose of his cousin and soon after they arrived at the place
in barrio Caniogan, Maybunga, Pasig, Amado Menor, appellant herein, accompanied by
Brigido Cruz, Agaton Martin, Santiago Damian, Modesto Ferrer, and Leonardo Menor
pointed his gun at Ernesto Buenviaje, while his companions dragged her husband
downstairs and tied him. She could not exactly remember the number of Japanese
military police accompanying Amado Menor and his Filipino companions, but the
Japanese surrounded the house while the Filipinos went upstairs to get her husband.
When Mercedes Mendiola was asked by the prosecution to identify and point out his
appellant, she, without hesitation, pointed her fingers at Amado Menor among the
various other accused whose cases were also being tried.

In corroboration of the testimony of Mercedes Mendiola, the prosecution also placed

on the stand Alfonso Benito and Patricio Benio who saw Ernesto Buenviaje pass by
their house in Sagad, Pasig, Rizal, with his hands tied and escorted by the accused
and his above-named companions.

In an effort to explain his conduct in the premises, appellant alleged that when
the Japanese conducted the zoning in question, he was forced by them to row their
banca which took them to the place of the zoning. While he claims that the Japanese
compelled him to row for their banca, he says nothing, however, regarding his
active participation in the zoning in question. The fact is that, according to the
evidence, this appellant not only rowed the banca for the Japanese, but also took
active part in establishing the military cordon and in gathering the inhabitants of
the barrio of Tipas, Taguig, Rizal in front of the Catholic churchyard. Moreover,
the evidence further shows that the stood guard over the persons who were detained
at the seashore in Tipas, Taguig, Rizal and actually intruded in the house of
Buenaventura Cruz, also in Tipas, Taguig, Rizal and herded away therefrom the many
inhabitants of the house. It is therefore obvious that, in spite of his alleged
forced participation in the execution of the crime charged against him, it is very
clear that he voluntarily took part in the conduct of the zoning, and irrespective
of whether he took active part in all the over acts described above, he "assumed
full responsibility for all that the party did." (People vs. Beato, 44 Off. Gaz.,
4838.)

There is no dispute as to facts which support count No. 4. It has been clearly
proven that he took part in the arrest of Ernesto Buenviaje, a guerrillero. It is
very significant that Flavio Bernauro, testifying for this appellant stated that
Ernesto Buenviaje was arrested by the gang of which Amado Menor was a member on
December 30, 1944. As regards appellant's participation in the arrest of Buenviaje
the testimonies of Patricio Benito, Mercedes Mendiola and Alfonso Benito are
positive that appellant clearly took part in the arrest of Buenviaje.

The active participation of this appellant in the zoning in question and the
subsequent arrest of Ernesto Buenviaje and his disappearance and possible death by
killing, undoubtedly constitutes the adherence and giving aid and comfort to the
enemy, which constitutes the element of treason under article 114 of the Revised
Penal Code. It cannot be denied that the two counts under which this appellant has
been convicted have been sufficiently proven and that the two-witness requirement
of the law has been more than sufficiently complied with by the prosecution.

The People's Court, in finding him guilty of having violated article 114 of the
Revised Penal Code, took into consideration the attendance of the mitigating
circumstance of lack of instruction of this defendant, with no aggravating
circumstance to offset the same, and therefore imposed the penalty prescribed by
said article 114 in its minimum period, that is, reclusion temporal. We are not
unmindful of the long-established doctrine of this Court that in the consideration
of the circumstance of lack of education of the culprit, under article 11 of the
old Penal Code (now article 15 of the Revised Penal code), the trial court has
ample, opportunity to estimate the degree of intelligence, instruction, appearance
and demeanor of the accused and this court will not interfere in the exercise of
such discretion by the trial court (U. S. vs. Bundal, 3 Phil., 89; U. S. vs.
Montecillo, 11 Phil., 190; People vs. Pado, 19 Phil., 111; People vs. Lampacan, 19
Phil., 185; People vs. Bangug, 52 Phil., 87; U. S. vs. Elicanal, 35 Phil., 209).

However, in People vs. Capitania (49 Phil., 475), this court, departing from said
rule, stated that in that particular case the accused had shown sufficient
intelligence to be entrusted with the possession of a revolver, indicating a degree
of intelligence and instruction beyond that of persons who are entitled to the
benefit of said circumstance. In the case at bar, the acts executed by this
appellant show that he is in possession of that degree of intelligence to have
capacitated him to act as an able and efficient informer of the Japanese who were
bent on disrupting and destroying the guerrilla underground movement which was the
main obstacle to the accomplishment of the occupation of these Islands. The
subservience of this defendant, and his co-members of the Makapili, and those of
his ilk, no doubt greatly enhanced the chances of the Japanese to carry out their
plan of domain of the Philippines through the aid and cooperation of Filipinos who
played traitors to their country. The trial court did not state the reason for the
consideration of the circumstance in question, and we are more inclined to think
that in this particular instance the mitigating circumstance of lack of instruction
should not be entertained.

In view of the above considerations, and for lack of any modifying circumstance,
the penalty that should be and is hereby imposed upon this appellant is the medium
period of the penalty of reclusion temporal to death prescribed by the law, which
is reclusion perpetua.

With such modification, the judgment appealed from is otherwise affirmed, with
costs.

Moran, C.J., Ozaeta, Paras, Pablo, Bengzon, Padilla, Tuason, Montemayor and Reyes,
JJ., concur.

================

G.R. No. L-820 April 11, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
AURELIO ALVERO (alias RELI), defendant-appellant.

The accused in his own behalf.

First Assistant Solicitor General Roberto A. Gianzon and Solicitor Felix V.
Makasiar for appellee.

MONTEMAYOR, J.:

Aurelio Sevilla Alvero alias Reli was charged with treason on twenty-two(22) counts
(Annex A) before the People's Court. After trial, said Court in a 45-page decision
penned by Judge Jose S. Bautista, Associate Judge of said Court, concurred in by
Associate Judges Dizon and Tancinco, and found the defendant guilty on all counts
except the 10th relative to his interview with Leonardo Garcia, and the 18th which
refers to his alleged ordering, helping in and causing the burning of the buildings
west of Taft Avenue and south of Libertad Street in Pasay, and sentenced him to
reclusion perpetua with the accessories of the law, to pay a fine of P10,000 plus
costs, crediting him with one-half of the preventive imprisonment he has already
suffered.

Appealing from that decision of conviction, Alvero in a 112-page brief, assails the
decision, assigning forty-two (42) errors said to have been committed by the trial
court, asking that the judgment of conviction be totally reversed and that he be
acquitted. The Solicitor General in a103-page brief examines and reviews the
voluminous record of the evidence, analyzes and discusses it in detail in
connection with the information, count by count, endeavors to refute the
allegations andarguments of appellant in support of his assignment of errors and
recommends that the judgment be affirmed. Considering the gravity of the offense
charged, the time spent and the efforts made by both appellant and the appellee in
analyzing the evidence and later embodying their views and contentions in their
briefs, we have devoted considerable time and accorded much attention and care in
studying this case, scrutinizing the extensive and voluminous evidence both oral
and documentary, and given careful consideration of the questions of fact and law
raised before us. In our decisions, we shall try to follow the order and sequence
adopted by the trial court in the consideration and determination of the different
counts.

The People's Court grouped the 22 counts under three main classifications �
economic, political, and military collaboration. Under economic collaboration, come
counts 2 and 3 referring to appellant's business or trading activities, buying war
materials and selling them to the enemy, under his company called ASA TRADING which
trade-name stands for his name Aurelio Sevilla Alvero. In political collaboration
are included three groups, namely: the letter of congratulations to President
Laurel relative to his declaration of war against the United States and Great
Britain (count 4); defendant's membership in the KALIBAPI (count 1); and the
formation and organization of the New Leader's Association (counts 6, 7, 8, 9, 12,
19, 21, and 22). Under military collaboration, come five groups, which are:
defendant's relations with and membership in the MAKAPILI (count 5 and 20); his
organization of the "Bisig Bakal Ng Tagala" (counts 13, 14, 15, 16, and 17); the
meeting at the Ayuntamiento de Manila ([City Hall], count 17);organization of OUR
PEOPLE'S OWN GUERRILLA ([O.P.P.G.], count 11); and the burning of buildings in
Pasay (count 18). The last seven pages of the decision of the trial court are
devoted to discussion and findings on the appellant's adherence to the enemy.

After the submission of the briefs by both parties, Amnesty Proclamation No. 51
dated January 28, 1948, was promulgated. Invoking the benefits of said Amnesty
Proclamation, appellant filed a motion for dismissal of the cultural, political and
economical counts of the information. The Solicitor General appears to be agreeable
to said motion, having signed at the bottom of said motion under the word
"conforme". In a resolution dated March 17, 1948, this Court advised the parties
that said motion for dismissal will be acted upon when the case is considered on
the merit. Said motion will be passed upon and considered later in this decision.

The appellant admitted in open court that he is a Filipino citizen.

ECONOMIC COLLABORATION

Under this heading, count 2 and 3, the People's Court found that in the month of
August, 1943, Alvero established a business in the "buy and sell" of automobile
spare parts, considered as war materials, at the corner of Dasmari�as and Marikina
Streets, Manila under the name ASA TRADING. He began with a capital of P15,000 and
when he closed his business about the end of the year 1944, he had accumulated a
net profit of P2,000,000. With this he bought a house in July 1944, costing
P300,000 and he allegedly subsidized or undertook to subsidize his New Leader's
Association from these profits.

While appellant claims that he did not want to deal in war materials and bought and
sold only clocks, hinges, hasps, books, clothing, and small auto and truck spare
parts, the evidence which consists mostly of the testimonies of his own officials
and employees of the ASA shows that he sold mostly automobile spare parts, rotors,
brake arms, carburetors, pumps, diaphragms, tires, batteries, automobile bulbs,
lamps, spark plugs, electric wires, bolts, compressors, chain blocks, locks,
hinges, and other electrical equipment and hardware, bought and acquired from
agents. Defendant in his testimony admitted that his stock consisted of automobile
parts which were needed for transportation and that no car will run without any of
said parts. The appellant insists that in his business he did not want to deal with
the Japanese and that he had instructed his employees not to sell any of his stock
to them, but there is abundant evidence to prove and the People's Court rightly
found that the only purchasers of materials from his stocks were the Japanese, and
on a big scale, and that it was he who in most cases, personally closed the deals
with the Japanese purchasers and collected the sales price. For instance, he made
several sales to Captain Ohasi of the Japanese Navy which is all amounted to
P2,000,000. Takatori of the Philippine Commodities Purchasing Association, which
was the procurement agency of the Japanese Imperial Forces bought from the
defendant during the latter part of 1944 materials valued at half a million pesos
(P500,000). An entry in his diary (Exhibit ZZ) dated November 16, 1944, at 9:35 a.
m. states:

I arrived in the office with Sato Koyzo and his soldiers preparing for the report
of half of my bodega stock. I am thankful to Major ......................... and
Mr. Takatori for their kindness and cooperation, which will enable me to
concentrate on my work for my country.

Koyzo was an agent of the Kobe Marine. On December 11, 1944, he noted down in his
own diary (Exhibit ZZ) at 3:30 p. m. the following:

After completing the itemization of the remaining stock for Mr. Wasizuka I went
with Mr. Kawa to Kobe Marine, the buying house of Akatsu Kubatai. Mr. Uta informed
us that we need the signature of Captain Ukamoto at the Kumiyan (?).

On November 15, 1944, at 10:35 a.m., he noted down in his diary Exhibit X the
following:

Virgy (Virginia Floro Claudio) informed me at the Nippon Bunka Kaikan that Maj.
Yorisiko Moriyama and Mr. Takatori were in my office to buy up my remaining
stock.... As I was walking to the office, I felt gratified by the thought of the
spirit of cooperation of Major Moriyama and Mr. Takatori. Very incidentally I had
told Mr. Takatori the reasons for my absence from my office and my attendance to my
business, namely, my activities in the "League of Patriotic Filipinos" and in the
"New Leaders Association". Interested in my endeavors he communicated the matter to
Major Moriyama, who, without losing time, ordered that my entire stock be bought up
so as to give me the freedom which is needed for my patriotic work.

It will be seen later that for lack of identification, we held Exhibit X to have
been improperly admitted: however, during the bail hearing, appellant admitted that
the portion of the diary reproduced regarding the coming of Takatori to his office
and waiting to buy his remaining stock, was correct, and he told the court that for
that remaining stock he demanded P850,000 based on his inventory and the current
prices.

Then on November 16, 1944, at 3:45 p.m. we find this entry in his diary Exhibit ZZ:

Proceed to the Kobe Marine for business. Met Mr. Takatori who offered me once again
his assistance in order to close my business.

This refers to and confirms the contents of the next preceding entry.

POLITICAL COLLABORATION

Under this heading, count 4, the evidence shows and the People's Court found that
the day following the declaration of war or state of war made by President Laurel
of the Puppet Republic, the appellant addressed the following letter in Tagalog
which translated into English reads as follows:

22 P. Manahan, Pasay
City of Manila
24 September 1944

To His Excellency
President Jose P. Laurel
Republic of the Philippines
Malaca�an, Manila

His Excellency:

Permit this humble servant to extend to His Excellency his wholehearted

congratulations for the brave, just and proper declaration of war against the
United States of America and Great Britain, and permit further to offer to Him and
to His Government the services of this one that now implores, without pay or
compensation and in any capacity that He may desire to designate to him.

During these very dangerous moments when even the independence and nationhood of
the Philippines are at stake, doubt and reverence for the relationship of one
another to the enemy nations should not reign, but rather all the citizens should
dedicate not only their properties but their entire wealth including blood and
life.

For this reason, this humble offer of service is sent to His Excellency together
with this small contribution of P10,000 in order to start a campaign to raise funds
for the national defense.

He can always command,

His servant,

AURELIO ALVERO

The corresponding check of P10,000 was inclosed in the letter, all of which he
delivered to Arsenio N. Luz, then Chairman of the Board of Information of Malaca�an
asking him to deliver it to President Laurel and later to publish it in the papers.
The letter with the check was eventually delivered to the addressee and was
published in the Tribune, then owned and controlled by the Japanese. On September
30, 1944, he wrote to Pio Duran thus:

22 P. Manahan, Pasay
30 September 1944

Hon. PIO DURAN

National Assembly
Manila

My dear Mr. Duran:

By means of this letter, I am letting you know that I have not been able to recruit
the young men you need to study at Tagaytay.

Most of those I talked to have already evacuated to the provinces as a result of

the raids that our city has suffered. Of the few that remained I was made to
understand their reason that at the present critical situation they no longer have
the desire to study.

Because of this fact, I have no face to meet you because I consider my shortcomings
the reason for their failure to respond, because if I was truly noble they would
have not rejected.

Perhaps this is the fruit of the utter failure of my heart and soul, a thing I
endured because of the difference in spirit of our times. I have not yet told you
that I voluntarily offered my services to President Laurel relative to the war
against the United States of America and Great Britain, and at the same time
contributed a little amount within my means in order that I could add to the
strength of our war efforts. However, up to the present instant I have not yet
received any response whatsoever and perhaps criticism will be my reward.

My spirit is indeed completely estranged from those of my contemporaries, and

because of this and also because of my failure in my present venture, besides being
prostrate, I have no longer the strength of heart in order to face you.

However, please command again,

Your servant,

Aurelio Alvero

On September 25, 1944, the defendant wrote his mother Rosa Sevilla the following:

Through this I am letting you know as I told you on the afternoon of the day before
yesterday that I have already sent to President Jose P. Laurel my voluntary offer
of service.

I don't know if you will consider the steps I chose as right and I don't know what
response the President will give me ... from the moment the declaration of a state
of war with the United States of America and Great Britain is proclaimed, it is but
right for every citizen to cut his relations with the enemy, not only because it is
right but also because it is the dictate of the spirit. And whoever takes side with
the enemy is not only against Japan but it can also be said that he is a traitor to
our dear Philippines.

So don't regret the steps I took because it may endanger my life, you should rather
rejoice because your son has learned to comply with his duties. (Exhibit XXX, pp.
139-140; Exhibit J, pp. 29-30, Rec. of exhibits.)

Under count No. 1 the evidence reveals and the trial court found that Alvero joined
the KALIBAPI (Kapisanan sa Paglilinkod sa Bagong Pilipinas), on December 20, 1942,
first acting as supervisor of the Educational and Scientific Sections of said
association and later on acting as head of its Cultural Division of the Bureau of
Political Affairs. One of the main objectives of said association was to assist the
Filipinos in comprehending the significance of the principles of the Greater East
Asia Co-Prosperity Sphere, strengthen their adherence thereto secure to the New
Philippines its rightful place in said sphere, adhere strictly to the policies of
the Imperial Japanese Forces in the Philippines in their administration, render
service in the establishment of the Greater East Asia Co-Prosperity Sphere, and
contribute to its advancement. As a high official of the KALIBAPI the appellant
lectured before its Labor Institute about three times a week, urging and preaching
that the Filipino culture can be saved from the destruction by the Occidentals only
through joining hands with other Orientals to establish a new order under the
Greater East Asia Co-Prosperity Sphere. He said that the new order demanded the
dissolution of the institutions which in their nature and in their organization
recall the past regime. He proposed the creation of an Institute of Spiritual
Training to carry out the purposes of the KALIBAPI stating that "342 years of
indoctrination towards things and thoughts Occidental and the 42 years of the
inculcation of blind confidence in America make of spiritual regeneration a task
that demands doing immediately and within the shortest possible time." He urged
that the said institution should take charge of the orientation of the members of
the USAFFE who were released without such training in internment camps and the
destruction of the pernicious influence of thoughts occidental. He suggested as
subjects for lectures before said institution topics like "Retreat of America," the
"Fallacy of Educational Policies of the American Regime," the "Fallacy Philippine-
American Political Relations," "Betrayal of a Promise," "The Philippines and the
Co-Prosperity Sphere" and "Eyes to the Rising Sun." However, on July 30, 1943, he
wrote a letter of resignation to Pio Duran, resigning from the KALIBAPI stating his
disappointment and disgust with the manner the KALIBAPI was being run and because
he was not given the opportunity to further promote and develop the policies of
said association. After stating his opinion that "the KALIBAPI stands and will
stand always as far as I am concerned, the symbol, the dream that must some day be
realized" he said among other things:

Before the Institute of Labor, I delivered speeches for the New Order, and
immediately after those speeches, I have heard my immediate 'bosses' applaud my
oratory but dispute my arguments for the Co-Prosperity Sphere. Quo vadis? Under
such circumstances, I really can not continue.

... I was so isolated by Anti-New Philippines elements that I found myself face to
face with a desk with nothing to do and nothing to be responsible for.

Under counts 6, 7, 8, 9, 12, 19, 21, and 22, the record shows and the People's
Court found that about November, 1944, the appellant together with Pio Duran,
Kawamoto, and Saburo Yoshida who was connected with the Political Bureau of the
Japanese Army and at the same time Director of the Nippon Bunka Kaikan, an
organization in charge of dissemination of Japanese Propaganda, unit of the Hodobu
of the Department of Information of the Japanese Army, later attached to the
Japanese Embassy in Manila, organized the New Leader's Association among whose
objectives according to its Articles of Association were: to unify and encourage
the ideals and aspirations of young people who are taking an active part in the
noble task of nation building in close collaboration with the various Japanese
organization in other East Asia countries so that the people of Asia may actually
participate in all out efforts to win the present war and therefore establish the
Co-Prosperity Sphere. The appellant redrafted the Articles of Association which
were later approved, and then signed by him, Duran, Yoshida and others. Alvero was
first designated and acted as a member of the Board of Directors of the
Association, but later on the Board passed a resolution prompting him to the post
of Assistant Director General, next to Yoshida who gave him full authority to
organize the offices of the association and to make appointments according to his
best judgment. The appellant according to himself became the factotum of the
association. To show the close relation between this New Leaders' Association and
the Japanese Armed Forces, the evidence shows that the offices of the association
were furnished by the Nippon Bunka Kaikan next to its offices in the Heacock
Building and during the period of organization its expenses were subsidized by the
Nippon Bunka Kaikan. The funds of the association came from contributions of
Japanese individuals and Japanese commercial houses and were then paid out by
Kawamoto, the cashier of the Nippon Bunka Kaikan. The budget of the association was
submitted to said cashier for auditing and approval. Next to the offices of the New
Leaders' Association were housed the different propaganda agencies of the Japanese
Armed Forces such as the Nippon Bunka Kaikan, the broadcasting radio station PIAM,
and the Eiga Haikusha, a Japanese motion picture company.

Among other things the by-laws of the New Leaders' Association prepared by the
accused himself provided that the Board of Advisers shall be composed of three
representatives of the Imperial Japanese Army, a representative of the Imperial
Navy, the Director of the Department of Information, three representatives of the
Japanese Embassy, a representative of the Japanese Military Police and nine
prominent Filipinos popularly known for their pro-oriental attitude. According to
his diary (Exh. ZZ) he entered into negotiations with Yoshida and the Japanese
Embassy regarding the transfer of the office and activities of the Nippon Bunka
Kaikan, which was the Japanese entity in charge of Japanese propaganda, to the New
Leaders' Association.

The following entries in the appellant's diary (Exhibit ZZ) show the intimate
relations maintained by the appellant with the Japanese high officials and the
interest taken by the latter in the organization of the New Leaders' Association:

Went to Director General Yoshida's apartment where I had the pleasure of meeting
very encouraging men like.................. Nakashima, director of the New
Philippine Cultural Institute, Mr. Uno of the PIAM, Mr. Togo of the Army and a
Mr. ................ of the Navy. I took up with Director General Yoshida the
question of appointment as also my plan of gradation in membership. I find working
with Director Yoshida a great pleasure for he is a very encouraging man. (Exh. ZZ,
p. 24, entry at 5:05 p.m., Nov. 25, 1944.)

I could not leave immediately though because I was having a conference with
Mr. ................. Uno of the Hodobu. He turned over to me the broadcasting
material of the Patriotic Guerrilla Association. (Id., p. 1, entry at 2:10 p.m.
Nov. 16, 1944.)

Went to Nippon Bunka Kaikan and conferred with Mr. Kawamoto. Introduced me to a Mr.
................. of Manila Simbunsya and the Mr.................
of .................... they told me that they would be good collaborators with us
in our works. (Id., p. 7, entry at 2:00 p.m., Nov. 18, 1944.)

Before we parted, Director General Yoshida took me to his room to discuss important
secret matters. (Id., p. 9, entry at 3:30 p.m., Nov. 19, 1944.) (Emphasis ours.)

After dinner I had a conference with Director General Yoshida and Mr. Kawamoto, and
Director General Yoshida in that parley supported my views and pledged me his
backing in the activity of the NLA. (Id., p. 19, entry at 5:30 p.m., Nov. 23,
1944.)

At the Manila Hotel I met Mr. ........ Taka, the only new man to me in the
gathering as the others were already known to me. Mr. Yasta, Director General
Yoshida and Mr. Kawa. We discussed many points. ... They inquired much about my
plans and my philosophy.... (Id., p 27, entry at 6:35 p.m., Nov. 27, 1944.)

Mr. Okahashi arrived and he was a nice humored man and we talked about a lot of
things, our plans, our aims, etc." (Id., p. 35, entry at 10:20 p.m., Dec. 2, 1944.)
(Emphasis ours.)

Mr. Mori dropped in so we could go out together ... and I exchanged views on
activities for the youth movement. (Id., p. 39, entry at 11:25 a.m., Dec. 8, 1944.)

I had a closed door conference with Director General Yoshida, Mr. Kawa, Mr. Yasta
and Mr. Kobayashi regarding the financial and underground work of the Assn. (Id.,
p. 41, entry at 6:05 p.m., Dec. 10, 1944.) (Emphasis ours.)

Punctually, I was fetched by the Navy car to go to Col. Aoyama's home for a parley.
I explained my philosophy, my ideology for the NLA, as also my plan of
objectives.... Mr ............................. and Mr. ................. as also
Col. Aoyama were very appreciative of my plans. (Id., p. 42, entry at 6 p.m., Dec.
11, 1944.)

I was further delayed by discussing with Mr. Fuzi and Mr. Kawa as they were
insistent on expanding immediately and I was adamant on central organization first.
(Id., p. 45 entry at 7:45 p.m., Dec. 15, 1944.)

Appellant prepared the 5-point program of objectives for the New Leaders'
Association (Exhibit I) which was submitted to and approved by Director General
Yoshida on December 3, 1944 (Exhibit L). One of the objectives in that 5-point
program was "collaboration with the Government, the Imperial Japanese Army and Navy
in the safeguarding of Public Works and Communication facilities." Other objectives
were "pacification efforts", establishment of a rejuvenation center, propagation of
Nippongo (which he himself had been teaching), and a movement for the changing of
the names of all the people for the obliteration of Western Dominance (Exhibit I).

In this connection, one may pause and observe, as the People's Court also well
points out, that while President Osme�a at the time was urging the Filipinos to
"strike when the tide of battle reaches your town or barrios. On that day, strike
hard against the enemy � wherever you find him � and fight � fight as did Lapulapu
and Dagohoy and Gregorio del Pilar � without counting the cost," the appellant
through his New Leaders' Association, was preaching and trying to secure
pacification; and while General MacArthur was urging the people to "avoid any
assistance to the enemy, but on the contrary, harass him incessantly, disrupting
his means of communication and his essential lines," one of the objectives of
defendant's New Leaders' Association was to collaborate with the Japanese Army and
Navy in the safeguarding of their public works and communication facilities.

Under count No. 19, the evidence shows and the People's Court found that on
December 1, 1944, Alvero granted an interview with a Japanese named Kobayashi, and
answering questions already prepared referring to the position of the Philippines
in the Pacific War, he said:

The Philippines, as a vital part of Asia, can not maintain herself apart from the
East Asian Nations in their struggle in the Greater East Asia War. On the contrary,
the Philippines, considering the fact that she achieved her liberation as an early
fruit of the Greater East Asia War, is honor bound to make her cause one with the
other nations of the East. (Exh. U.)

Under counts Nos. 21 and 22, the People's Court found and the evidence supports the
finding that on December 4, 1944, appellant prepared a resolution which he had the
New Leaders' Association adopt and which he in the company of Pio Duran, Artemio
Ricarte, Benigno Ramos and other leaders of the Association presented to a
commander of a certain unit of the Japanese Navy, presumably of the Air branch. We
quote the resolution as follows:.

WHEREAS, the war of Greater East Asia is a war being waged by all Great Asian
Nations for the liberty and happiness of their peoples..

WHEREAS, every triumph and every sacrifice for the ultimate victory of the East
becomes part of the great tradition of glory of every nation in the East.

WHEREAS, the Kamikaze Special Attack Squadron of the Imperial Japanese Forces in
Tagala is blazing glory for the entire East in defense of the rights of the East in
general and of the liberty and independence of Tagala in particular.

WHEREAS, on the 25th day of October, 1944, the Sikisima Unit of the Kamikaze
Special Attack Squadron, in oblivion of all personal considerations, sacrificed
life and all by crash-diving against the vessels of the American task force in a
sublime offering for the greatness of the East and for the freedom and independence
of Tagala.

WHEREAS, such gallantry and spirit of self-sacrifice is worthy of emulation by the

youth of all the nations of the East,

WHEREAS, be it resolved, as it is hereby resolved, that the congratulations and

admiration of the New Leaders' Association be conveyed to the proper authorities of
the Imperial Japanese Forces in Tagala so that the gratitude of Tagalan youth may
be made patent for the great sacrifice of the Kamikaze Special Attack Squadron.
(Exhibit M-1.)

The presentation, including the resolution was duly published in the December 7,
1944 issue of the Tribune under the following heading and item:

NEW LEADERS GROUP INSPIRED BY KAMIKAZE SQUADRON'S EXPLOITS

Reflecting the Filipinos' admiration for the gallant attack carried out by the
death-defying members of the Kamikaze Special Attack Squadron, the New Leaders'
Association yesterday adopted a resolution expressing gratitude and admiration. The
resolution was presented to the naval authorities.

On December 15th the defendant prepared another copy of the resolution in tagalog
and delivered it to General Tominaga, Chief of the Japanese Air Forces in the
presence of a delegation of the New Leaders' Association. Pictures of the
presentation of the resolution to the Navy leader were taken and published in the
Tribune. In this connection, the People's Court referring to the diary of the
appellant himself said:

Coincidio ademas, que, en la misma manana de dicho dia 15 de Diciembre hubo un

bombardeo aereo en esta ciudad, y segun dijo el General Tominaga al acusado y sus
companeros, el se iba en aquel dia a Leyte para dirigir personalmente la contra-
ofensiva aerea contra los americanos (vease testimonio de Rosendo Aterrado y el
diario Exhibit ZZ, pags. 44 y 45.) Fue tan grata, tan oportuna, tan alentadora la
presentacion de dicha resolucion, que el General japones estrecho efusivamente la
mano de todos y cada uno de los miembros de la delegacion (Exhibit ZZ, pags. 44 y
45.) Decision of People's Court, p. 14.)

To shield himself from responsibility for the preparation and presentation of this
resolution of congratulations, appellant claims that he acted under pressure and
was compelled to make the presentation of the resolution by a Japanese Kawamoto who
had previously prepared it. The People's Court however, rejected this defense,
saying that the text of the resolution shows the presence and use of the word
tagala, a name by which the accused alone designated this country; whereas even the
Japanese still knew and considered our home land as Filipinas and would,
undoubtedly, have used said word Filipinas instead of tagala if the resolution had
really been drafted by a Japanese. Furthermore, the very diary of the defendant
(Exhibit ZZ) which we quote below disproves his assertion and on the contrary shows
that it was he who prepared the resolution and voluntarily and even with enthusiasm
delivered it to the Japanese High Command:

After dinner, I immediately proceeded to the preparation of the resolution of

gratitude and admiration for the exploits of the Kaori Unit. (Defendant's diary of
December 14, 1944, at 8:30 p.m.)
6:20 a.m.� Woke up early to the droning of airplanes and the booming of anti-
aircraft guns. Dressed up in haste as there was the presentation of the Kaori
resolution to be done.

7:20 � Mr. Maniya came to the house for a copy of the resolution.

8:30 � After a breakfast amidst the booming and noise of air-raids, Pat and I
started on my bike for the meeting place of the NLA. The air-raid was in full
blast, but we had to go on as we had agreed to meet in spite of the air-raid.

9:20 � I was the first at our meeting place at the corner of Daitoa and Padre
Faura. While waiting for the others I met a dark beauty by the name of Aurora
Zablan. After a minute of conversation with her my companions arrived.

9:35 � We proceeded to the Villamor Hall which was the headquarters of the High
Commanding Officer of the Air Corps, General ..............Tominaga. He received us
with affability and after counter-reading (?) of the resolution of gratitude and
admiration for the exploits of the Kaori Unit, Japanese Special Attack Squadron, he
even shook the hands of each and every member of the delegation. The presentation
was solemn and particularly significant because of the fact that there was an air-
raid when the presentation was being made. (Exhibit ZZ, pp. 44-45, December 15,
1944.)

MILITARY COLLABORATION

Under counts 5 and 20, it has been duly established by the evidence and found by
the People's Court that in November, 1944, the appellant helped found and organize
the MAKAPILI (Makabayan Kalipunan Ng Mga Pilipino) Patriotic League of Filipinos at
the New Philippine Cultural Institute in San Juan, Rizal. Pio Duran invited
appellant to this meeting of the organization. Among those present at the were
Benigno Ramos, Artemio Ricarte and several officials of the Political Division of
the Japanese Army, such as Kagiyama, Hayashida, and Kodama. Alvero acted as
secretary and took down the minutes. Besides acting as secretary Alvero took an
active and important part in the discussion. One of the objectives of the
association was to replace the Constabulary reorganized by the Japanese regime
after the surrender of Bataan, which presumably, because of its pro-guerrilla
leanings and because of many desertions to the resistance forces, was being
disarmed by the Japanese. Among the aims of the MAKAPILI were to accomplish the
fulfillment of the obligation assumed by the pact of alliance with the Empire of
Japan, to shed the blood and sacrifice the lives its people with the lives of other
East Asian nations in order to eradicate Anglo-Saxon influence in East Asia; to
mobilize the population for the purpose of attaining self-sufficiency in food and
other vital materials necessary for the victory in the Asiatic War (Pacific War);
to collaborate unreservedly and unstintedly with the Imperial Japanese Army and
Navy in the Philippines, in such ways and means as may in the joint judgment of the
Imperial Japanese Forces and the Association be deemed necessary and fruitful; and
to propagate throughout the country the principles for which the Empire of Japan
and the other Asiatic nations are now fighting in that great Pacific War. Because
of the non-arrival of a high ranking Japanese official scheduled to supervise the
meeting, the same was adjourned. The name of the association was first agreed to be
"Kalipunan Ng Mga Makabayang Pilipino." At the second meeting at Christ the King
Convent in Espa�a Extension about ten days later and attended by the same persons
with the addition of Maj. Sato, it was agreed to have President Laurel head the
organization but Kagiyama insisted that the intervention of or information to
Laurel was not necessary because the Japanese Army will go ahead with the
organization whether Laurel liked it or not. Alvero signed the Articles of
Association as well as the by-laws. After the signatures, the signers including the
appellant went to the house of Representative Pedro Vera in San Juan, Rizal where
Gen. Nishimura, assistant chief of staff of Gen. Yamashita was waiting for them.
Pio Duran told Nishimura that they were going to advise Laurel of the existence of
the association. Nishimura answered that they may do so but he said that whether
Laurel liked it or not the Japanese Army will support them. Later the name of the
association was changed to Makabayang Kalipunan Ng Mga Pilipino (MAKAPILI).

Paragraph 10 of the minutes taken down by the appellant at the first meeting reads
as follows:

The Chair opened the period for discussion after the motions had been considered,
and the important problem about the feeding of the soldiers of the `League' was
discussed. Mr. Ruperto Santiago, Jose I. Baluyot, Paulo Capa and others gave their
views.

The number of high Japanese army officers attending the meeting of organization and
the determination of the said Army expressed through its officials to back the
organization whether Laurel liked it or not shows the intimate connection and
relation between the MAKAPILI (League of Patriotic Filipinos) and the Japanese
Armed Forces. Paragraph 10 of the minutes above-quoted shows that the MAKAPILI was
to be composed of soldiers, and the Articles of Association clearly shows that it
was to be a military or semi-military organization purposely organized to fight
side by side with Japan against the American forces and the members of the Filipino
resistance movement.

The appellant insists that he joined the MAKAPILI against his will and was forced
to sign the Articles of Association, and that after signing the same he abstained
completely from taking part in its activities. The evidence, however, completely
refutes this claim and as the People's Court well asserts, appellant took quite an
active part in the organization of the association, participated in its activities
after the organization and he even had plans and aspirations of occupying a high
and important position in it. During the first meeting of the association, where he
acted as secretary and took down the minutes, of seven motions, 5 of them were
fathered by him and he seconded another one. He voluntarily signed by-laws and in
compliance with orders of Benigno Ramos he prepared identification cards for
members of the MAKAPILI. It was first planned to give him the rank of colonel and
chief of the Department of Enlightenment but when this same post was given to
another Mr. Lumbre, he (defendant) was keenly disappointed. The following entry in
his diary (Exhibit ZZ) is enlightening.

On my way to the office, I met Major Sato who was introduced to me by Mr. Pio Duran
at the first parley of the League of Patriotic Filipinos. He was asking me to go
with him to the headquarters of the league (MAKAPILI), but I could not go because
of my appointment with Saito Koyzo in the office of the Kobe Marine. (Exhibit ZZ,
entry at 1:25 p.m., Nov 17, 1944.)

Proceeded to the Kobe Marine to keep my appointment. There I met Major......and

Captain..............The Major inquired about our league activities and he asked me
what my rank would be in the newly organized league army. I answered him that
according to plans I was to be designated colonel and he jokingly answered that in
that event I would be two ranks his senior officer.... (Id., p. 4, entry at 2:20
p.m.).

The meeting of the Directors of the PL of F (Patriotic League of Filipinos �

Makapili) was opened with the announcement of the Plantilla of the association. I
was disappointed by the men of Mr. Ramos in the plantilla, as many of them were
green and incapable ones. To top this the headship of the Department of
Enlightenment which was reserved for me by the agreement between General Ricarte,
President Duran and Executive General Ramos had been handed over to Mr. Lumbre by
the Executive General Ramos. I was hurt by this action inspite of the reason that
they gave that I was not in the office for some time. I knew that it was only a
reason being given by Mr. Ramos in order to put in his men for the reason could not
hold water as I was in position to go because of my activities in the NLA (New
Leader's Association) which fact was known to him. I did not express my
disappointment in an effort to hide my emotions, but General Ricarte objected to my
being deprived of the position. He however replied that it was not a very important
matter as I could render services without being head of any department. Executive
General Ramos sensing objections against the injustice from any quarters,
immediately replied that if I could attend to the work, then I should be retained
as head of the Department of Enlightenment while Mr. Lumbre was to be transferred
to the Secretariat. Various reports were read and finally the question of manner of
address was brought up and General Ricarte proposed that the Tagalog title `Tandis'
be used in addressing Executive General Ramos. On the other hand I proposed that
General Ricarte, as `Tayog' and Vice General Duran should be addressed as
`Tayuyog'. The manner of address were unanimously approved. It was already dark and
the moon was already up when the meeting was adjourned. President Duran took me
home in his car. (Id., p. 25, entry at 5:40 p.m., Nov. 26, 1944.).

Debated with myself whether I should resign or not as Director of the Department of
Enlightenment of the Patriotic League of Filipinos. Finally decided to leave the
matter for the next day. (Id., p. 30, entry at 10:30 p.m., Nov. 28, 1944.)

Rejecting the claim of the appellant as to his alleged involuntary joining the
MAKAPILI and of his abstaining from participating in its activities the People's
Court ironically gives us this picture:

He aqui un hombre, que despues de haber sido forzado a firmar la Escritura Social
de una asociacion, acepta de la misma, de buen gana, rangos, honores y
distinciones, y hasta se resiente cuando le postergan.

2. La activa y valiosa participacion del acusado para el mayor lustre de la

inauguracion de la MAKAPILI, no se compagina con la alegada coaccion. Dice el
diario:

Back at the NLA headquarters I gave instructions regarding the MAKAPILI inaugural
to those who were attending. (Exhibit ZZ, p. 38, entry at 3:30 p.m., Dec. 8,
1944.).

Arrived in front of the Legislative Building where the ceremonies of the MAKAPILI
were to be held. We helped out as much as we could, helped arrange the chairs and
divided the work of ushering. (Id., entry at 4:10 p.m., of the same day.)

The speech of General Yamashita was short and forceful and I tried my best to give
the translation which I did as much power as I could. I was rather surprised by my
voice which was at that moment very powerful instead of being hoarse as I expected
it to be. (Id., entry at 5:10 p.m., of the same day.)

Finally, appellant tries to create a distinction between the Kalipunan Ng

Makabayang Pilipino, the first name agreed upon at the first meeting, and
Makabayang Kalipunan Ng Mga Pilipino to which it was later changed and from which
the word MAKAPILI was derived. The People's Court found that there was no
distinction or difference between the two for they mean the same thing. This aside
from the fact that at the hearing of his application for bail appellant admitted
that the organization Kalipunan Ng Makabayang Pilipino was the same one inaugurated
on December 8, 1944, which in point of fact was the Makabayang Kalipunan Ng Mga
Pilipino (MAKAPILI).

Continuing with the appellant's military collaboration under counts 13, 14, 15, 16,
and 17, regarding the organization of the Bisig Bakal Ng Tagala, the record shows
and the trial court found that the appellant organized said Bisig Bakal Ng Tagala
as a military unit or body whose members were recruited from those of the New
Leaders' Association. Its main objectives were to maintain peace and order and to
procure foodstuffs for distribution to the public. The objectives of that
organization as planned by the defendant were embodied in his memorandum (Exh. HH)
dated December 30, 1944, and addressed and delivered to Colonel Zusuki of the
Manila Defense Corps from which memorandum, we are making the following quotations:

We, therefore, approach you in all humility to offer the assistance of the New
Leaders' Association in these difficult times in accordance with our plans which we
herein take the liberty to set forth.

x x x x x x x x x

In the struggle against the Americans, it would be rather a stretch of fancy to

expect the bulk of the "Filipino" nation to fight them beside the Japanese
soldiers. The truth must be faced: the "Filipino" is not ready for that. At best,
there will be some loyal unto death to the ideals of the East, but one who says
that all will rally as a body against the Americans is really trying "to pull
somebody's leg".

x x x x x x x x x

The most that the Japanese, therefore, should ask is this: That the "Filipinos"
maintain their equanimity and keep peace and order. With this achieved, a great
assistance will have been given to the Japanese forces, for, instead of training
guns against the riotous people in distraction of the arms of defense, peace and
order in Manila will mean full liberty for defense, concentration towards defense
by all the forces of Japan.

x x x x x x x x x

"A satisfied stomach is not anxious to revolt." Conscious of this physiological-

psychological truth, the second problem that must be met is the maintenance of food
supply for the people.

x x x x x x x x x

If the people had been trained in the past along that discipline of the spirit
which brings great glory to the men of the Imperial Japanese Army and Navy, then
perhaps there would be no need for our fears nor for this memorandum. It is rather
the misfortune of this Country to have had three hundred and more years of Spanish
mis-education and forty more years of American mis-education, the consequence of
which is the unhappy corrosion of that moral fiber vital for the maintenance of
nations in times of storm and stress.

TOO LATE TO MARSHALL THE PEOPLE

Were there sufficient time, the re-education of the people by means of a

nationalistic and Asiatic philosophy would solve the whole mess. But now �
education is too long a process in the face of the short time left for
preparations.

x x x x x x x x x

It is for this reason that the New Leaders' Association, through the undersigned,
petitions for an opportunity to prove their worth in the face of the impending
crisis.
x x x x x x x x x

For the past month and a half, we have been training a few young men towards that
lofty idealism which is the most important fiber of character. Our original group
of young men was bolstered by the adhesion, voluntary and upon knowledge of our
principles, by graduates of the New Philippine Cultural Institute. With this group,
compact and unified, as the nucleus, we propose the organization of the "Bisig
Bakal Ng Tagala" (Iron Arms of Tagala).

We propose the concentrated training for a period of two weeks of all the graduates
of the New Philippines Cultural Institute and the best elements of the New Leaders'
Association.

x x x x x x x x x

These men shall undergo training in a barracks to be established at a centric place

in the City, and immediately after the training period, the men shall be assigned
to assume leadership in four other training barracks at strategic points in the
City.

With an initial body of fifty men as the nucleus, there would be a standing body of
five hundred men at the end of the short one-month period of preparation.

In one month time, the Imperial Japanese Army may count on the support for the
maintenance of peace and order by the five hundred bisigbakal of the New Leaders'
Association.

Simultaneous with the training of these bisigbakal, fifty other men of the New
Leaders' Association will undertake a campaign for the instruction of the people
and their organization into civic assistance bodies." (Emphasis ours.)

This memorandum Exhibit HH was supplemented by another memorandum (Exh. II) the
following day, December 31, 1944, from which we quote:

Having reached an agreement regarding the basic and general plan for the
organization of the Bisigbakal Ng Tagala, we are now concerned with the delineation
of details.

BASIC PRINCIPLES REITERATED

It is, however, proper that we should briefly state the basic principles.

The problems to be coped with are:

First : Maintenance of peace and order;

Second : Food Procurement and Distribution.

We shall organize:

To solve the first : The Bisigbakal Ng Tagala, a nationalistic military body;

To solve the second : A Civilian Assistance Corps as support of the Bisigbakal.

x x x x x x x x x

Salaries for the bisigbakal shall be according to rank, to be fixed later. We are
asking the Imperial Japanese Army to entrust us with an initial capital of one
million pesos (P1,000,000), disbursements to be duly accounted for and subject to
the approval of the Military Advisers.

In this second memorandum (Exh. II) the defendant goes in two details such as the
uniforms and insignias to be worn by the soldiers and officers of the Bisigbakal,
their arms, their food, salaries, means of transportation, etc.

On January 1, 1945, the appellant called the members of the New Leaders'
Association to a meeting and announced to them that the association was being
converted into a military organization to be called Bisig Bakal Ng Tagala, and
urged them to join it. Some of the members like Celso Ilagan and Rosendo Aterrado
refused to join the new organization, because they felt that eventually, as members
thereof, they would be called upon and compelled to fight against their own people.
The Bisigbakal was actually organized. It received a limited amount of arms and
ammunitions including uniforms and food from the Japanese Army and was drilled by
Japanese military instructor. Members of the force were quartered at Espa�a Street
and at the Union Theological Seminary at Tennessee Street and were inspected
regularly by Yoshida. The appellant had the rank of a major.

About the middle of January and in the month of February, 1945, the Japanese Army
left the La Salle College and the Legarda Elementary School buildings where they
left a considerable amount of supplies and equipment. The appellant and his
soldiers of the Bisigbakal, armed and in uniform took over these buildings, guarded
the same and began to distribute some of the food and supplies therein to the
public. In the course of the distribution, particularly in the Legarda Elementary
School the appellant told the beneficiaries of the distribution that "he was not a
pro-Japanese, neither was he a pro-American, but he was a pro-Filipino" and he
urged and enjoined them "to fight anybody that will take their country." It must be
borne in mind that at that time the American Forces of Liberation had already
landed on the coasts of Lingayen Gulf and were on their way to occupy central Luzon
with Manila as their main objective. So, the appellant could not have had in mind
or referred to any one taking the country except the Americans and the Filipino
Guerrillas guiding and helping them in the act of liberation. As the People's Court
well said, the appellant could not have referred to Japan and its forces because
they were already in the Philippines, well entrenched in the same. As a matter of
fact, the appellant and his Bisigbakal forces were closely cooperating with the
Japanese in defending Manila.

Under count No. 17, there is evidence to show and the People's Court correctly
found that during the last half of January, 1945, Colonel Hashimoto of the Japanese
Armed Forces, charged with the defense of Manila, called a meeting at the City
Hall, presided over by Military Governor Leon Guinto. Attending that meeting were
Pio Duran representing the Makapili, Manuel de la Fuente representing the Home
Guards, Eduardo Quintos and Gregorio Lugtu representing the Manila City Police, and
appellant Alvero representing the Bisigbakal. Alvero and the members of his staff
who accompanied him were all in uniform and were armed. Officers of the Japanese
Army, Navy and the Military Police also attended. Hashimoto proposed to those
present the fusion of the different organizations they were representing into one
body in order to cope with the problem of peace and order, and asked them to
express their opinions. Alvero, the first to speak fully supported the proposed
fusion in order, according to him, to better maintain peace and order and suppress
the subversive elements like the guerrillas inasmuch as the City Police did not
seem to be doing anything then to suppress them. De la Fuente, Quintos, and Lugtu
testified that maintenance of peace and order in the City of Manila was, at that
time, understood to include the suppression of the guerrillas because these were
considered subversive elements who disturbed peace and order by killing Japanese
soldiers and Japanese spies.

Under count No. 11, there is evidence to show and the People's Court found,
although we find said evidence to be short of the two-witness rule, that the
appellant about the latter part of November, 1944, prepared the pamphlet (Exhibit
T) with a drawing on the front page prepared by Pablo Amorsolo, a member of the New
Leaders' Association, and had about 800 copies mimeographed and distributed. The
pamphlet was supposed to be the official organ or OUR PEOPLE'S OWN GUERRILLA (O. P.
O. G.), and gave the reader thereof to understand that the Articles therein were
written by Filipino guerrillas. It severely and bitterly attacked and censured
Japan, America, the new Republic under President Laurel, the Makapilis and even
Alvero himself. The attack against America and the guerrillas contain among other
things the following:

In 1941 to 1942, our youth were sacrificed on Bataan. The young soldiers of our
Country, thinking that they were fighting for freedom in their stand against Japan,
sacrificed their young lives. But really for what? That America may have time to
prepare in Australia. (Liberty, Exhibit T, p. 1.)

We had been in the past the dupes of imperialistic peoples, and now we refuse to
continue to be their dupes. As Lincoln said, you can fool some of the people all of
the time, all of the people some of the time, but not all of the people all of the
time. (Id., p. 2.)

The people of this country are now divided into three:

x x x x x x x x x

Second � America's hirelings, consisting of so-called guerrillas who are only

awaiting America's return for their soldier's pay, people who sell their country
for paltriness! (Id., p. 5.)

AMERICA AS LIBERATOR

Forty-six years ago, America came to the Philippines as her liberator. Because of
this role, because of America's promises to the Philippines, the Filipinos under
Gen. Emilio Aguinaldo fought the Spaniards until the latter were cornered in
Intramuros.

With Spain down � America, the liberator, changed her attitude and she assumed the
role of conqueror. Through a mock Treaty of Paris where the small Philippines was
sacrificed to pacify America on the one hand and to white-wash the name of Spain on
the other, the Philippines was literally "sold down the river".

Now, America asks the Filipinos to have faith on her. This time she comes again as
the liberator. This time she is asking the Filipinos to fight Japan. She is asking
the Filipinos to suffer, to starve, to die as did the young men in the wilderness
of Bataan. (Id., p. 6.)

x x x x x x x x x

The O. P. O. G. warns the people: Do not be fooled by promises! Remember Dewey!

(Id., p. 6.)

He does not even spare Pio Duran, Benigno Ramos, and Artemio Ricarte as may be
gleaned from the following:

And now we ask: Who are the few being favored?

First in the list, though not the Tayog, is the TANDIS of the GANAPS � Se�or Don
Excelentisimo Benigno Ramos, newspaperman, poet, pseudo-Tagalist, pseudo-patriot,
expert politician and first-class HEEL. He will sell the Philippines to the
Japanese for "a mess of pottage". He utilizes his Ganaps to fawn with the Japanese.
PATRIOTS! WATCH THIS MAN!

Second in the list, the Taguyod, � Vice Minister Pio Duran, lawyer, politician,
assemblyman and eel. He is so squeamish he can circulate among Japanese as also
among Filipinos. He is loved by pro-Japanese like Benigno Ramos and loved by
Filipinos like Laurel. Not only this, he plays poker with guerrilla chieftains like
Recto and Alunan, and manages to be acceptable even to diehards like Osias and
Roxas. PATRIOTS! WATCH THIS MAN!

Third in the list, the Tayog, � General Artemio Ricarte, an innocent tool because
of his age, an unfortunate patriot. Whereas Ramos is a heel and Duran is an eel,
the old man Ricarte sadly does not know an eel. Because of his dreams of grandeur,
he is used by Ramos and Duran for their ends. PATRIOTS! WATCH THIS MAN! (Id., p.
11.)

As to the Puppet Republic under Laurel he has the following to say:

Time and again, President Jose "Pula-Puti" Laurel has delivered high-sounding
speeches about the need of the Republic of the support of all patriotic Filipinos.
He passionately asks the people to rally under the flag of the Republic.

The Flag is all right! The idea of the Republic is also good! But the men who
administer the Republic are mainly racketeers! They have done everything to fatten
their selves!

But what have they done for the People? What can the Republic claim that the
Republic has done for the people? (Id., p. 7.)

As for himself (Alvero), the pamphlet LIBERTY prepared by himself, has the
following:

Aurelio Alvero, politician, lawyer, professor, poet, writer, historian, linguist,

youth leader and Cassanova, is not the head of the "NEW LEADERS ASSOCIATION".

He preaches patriotism ... "Nationalism above all else" is his cry. To prove this,
he distributes coconuts at cost to the public ... he even pushes push-carts ... and
is willing, according to reports, even to sweep the streets of Manila to prove his
patriotism.

Of all patriots, pseudo-patriots and professional patriots, he has a most different

approach. He blah-blahs in Tagalog in spite of his English and Spanish Education.
He even signs his name in ancient Tagalog writing. He claims interest in the
Tagalog language, Tagalog arts, Tagalog culture and Tagalog history. He goes to the
extreme of changing our beloved Philippines to TAGALA.

Of course, all that is very nice ... but it is too, too nice... Perhaps Aurelio
Alvero, the eternal "Young man", in spite of his "impotence", has learned
everything from his mentor Pio Duran, and is fast developing the technique of the
EEL!

What Young Man Alvero is up to, we really do not know. But we are suspicious ...
very suspicious. ... We knew him in the past for his Young Philippines game and
also for his Kalturop tricks.

But Young Man Alvero should stop playing games ... it is high time he outgrew the
nursery. ... This is not peace time; but WAR TIMES!

SO WE SAY: YOUNG MAN, BEWARE! (Id., p. 12.)

Now, as regards Japan and the Japanese Armed Forces the same pamphlet LIBERTY among
other things contains the following:

On the other hand, now Japan wants us to fight avowedly for our independence
against America. But really for what? To save Japan proper from being the
battlefield of this war. (Liberty, p. 2.)

JAPAN AS THE LIBERATOR

What has Japan done to the Philippines in the last three years that she was here?

NOTHING for the Philippines; EVERYTHING for Japan!

Japan won prestige for her Flag and added wealth to Japan by buying out economic
and industrial strength with bond paper money!

In exchange, Japan gave the Philippines untold sufferings. The present critical
almost starvation conditions were caused by Japan's acts to control the free life
of the people. These acts, abetted by the Puppet Republic, are killing the
Philippines inch by inch.

It is not to be denied that Japan granted the Philippines independence, but only
paper independence! The Philippines, it is true, gained one thing, the recognition
of the world to her right to be free. Up to this point, Japan gets a merit, but her
interference in the affairs of the Republic score more demerits that easily drown
out the lone merit that she has!

Instances? There are plenty. Japan with the aid of the Puppet Republic deprives the
Filipinos of their homes. Japan with the aid of the Puppet Republic deprives the
Filipinos of their food, rice particularly. Japan with the aid of the Puppet
Republic compels the Filipinos to render service for military purposes. (Id., p.
4.)

x x x x x x x x x

The people of this country are now divided into three:

First � Japan's stooges consisting of government parasites, Makapili's traitors,

newspaper quislings, buy-and-sell-their-country people! (Id., p. 5.)

At first it is hard to understand how the appellant could have dared and taken the
risk to publish the said pamphlet LIBERTY under the very nose of the Japanese Armed
Forces, especially the Military Police. One phrase, sentence or paragraph of the
article against Japan as above reproduced would have been sufficient pass or ticket
to the garrison and torture chambers of the Japanese Military Police or to Fort
Santiago. The only reasonable explanation for this immunity of the appellant to
arrest and torture by the Japanese is that he made the publication with the
knowledge and consent of the Japanese. This may be gathered from an entry in his
diary (Exhibit ZZ) on November 19, 1944, at 3:30 p.m. as follows:

Before we parted, Director General Yoshida took me to his room to discuss important
secret matters. He wanted me to organize an organization. I suggested that the O.
P. O. G. was the answer. I explained to him my concept of the coup to fortify out
state: on the left hand, the O. P. O. G. doing the destructive work; on the right
hand, (the N. L. A. New Leaders' Association) doing the constructive work; and on
the center, the League of Patriotic Filipinos (MAKAPILI) making a frontal attack.
He saw my point and we parted in agreement.(Inclusion and Emphasis supplied.)

Considering all the circumstances surrounding this case of the OUR PEOPLE'S OWN
GUERRILLA (O. P. O. G.) and the pamphlet LIBERTY supposed to be its official organ
prepared and published by the appellant, there would appear to be reason and logic
in the opinion and finding of the People's Court that the act of Alvero was a mere
act of deceit and pretense, calculated and designed to sow confusion and dissension
in the ranks of the guerrillas and to persuade them not to fight with and help the
American Forces of Liberation. We quote with favor that part of the People's Court
decision on this point as follows:

De esto se infiere que la O. P. O. G. fue� creada para servir al Japon y que el

enemigo estaba al tanto del plan..

Era, pues, pura enganifa la censura del acusado contra el Japon y su ejercito,
contra los Makapilis y contra si mismo. Con que objetose preparo el Exhibito T?
America estaba viniendo entonces y no habia tiempo que perder. Criticando y
censurando al Japon y al Japonofilo Alvero, criticando y censurando a los fanaticos
Makapilisy a la Republica de Laurel, presentandose como guerrillero, se captala
simpatia y la confianze de la genuina guerrilla y el folleto serialeido con el
animo propicio y benevolo. Nadie hubiera hecho casoentonces de las predicas pro-
japonesas del acusado, pero con el disfrazde guerrillero y apelando al patriotismo
y al filipinismo, podria seducira algunos y sembrar la division y la confusion en
el seno mismo de la guerrilla. "Divide y venceras." Muy insidiosamente decia enel
articulo, "American as Liberator" (Exhibit T, pag. 6):

Under such impending possibilities, the O. P. O. G. counsels the People to refuse

to be the instruments of any of the contending nations, but asks the Filipinos to
get arms from both sides so that we may be in a position to make a bid for our
Freedom in the only honorable way: Fight for it against all.

The O. P. O. G. warns the People: Do not be fooled by promises. Remember Dewey!'.

Nuestro pueblo y su guerrilla iban contra el Japon, y peleaban por America. El

aconsejar entoces "to refuse to be the instruments of any of the contending
nations" no significa otra cosa mas que no sean instrumentos de America, que se
nieguen a pelear con los americanos. (Decision of trial court, pp. 35-36.)

PETITION FOR DISMISSAL

Now, for a little digression. Considering the motion for dismissal of the cultural,
political and economic counts of the information, filed by appellant and agreed to
by the Solicitor General, based on Amnesty Proclamation No. 51, of January 28,
1948, we have to give due course to said proclamation and accord its benefits to
those invoking them like the appellant herein. The Amnesty on economic
collaboration may include the trading and business activities of Alvero in
connection with his ASA TRADING. One may contend that the economic collaboration
contemplated by the Amnesty Proclamation was trading with the enemy in general �
buying from and selling to it, whether said business dealings indirectly benefited
and aided the enemy. In the case of appellant, it has been proven that he dealt
mainly in war materials which he bought from his agents and sold almost invariably
and exclusively to the Japanese Army and Navy, especially for their transportation
facilities. We all know that one of the vital things that Japan lacked in the
prosecution of the war was motor transportation. She confiscated almost all the
motor vehicles she found in the Philippines, used some of them here and the rest
she dismantled, shipping the engines and other important parts to Japan.

Some one has said, perhaps with some exaggeration that the lowly and ubiquitous
jeep now flooding and crowding our streets and highways won the war for America and
her allies. The statement may not have been seriously made, and may not be wholly
true, but at least it conveys the idea of the vital importance of transportation
facilities in war. It requires no stretch of the imagination to see that the
automobile spare parts sold by the appellant to the enemy materially aided said
enemy in the war in the servicing and maintenance of its war motor vehicles, at
least here, if not in Japan proper, so that defendant may in a sense be regarded as
having given aid to the enemy. However, inasmuch as the Amnesty Proclamation speaks
in general terms and makes no distinction as to the kind and nature of the economic
collaboration rendered, we are not prepared to make such distinction in this case,
and giving appellant the benefit of the doubt, we are willing to apply as we hereby
apply the benefits of the Amnesty Proclamation to him and consider as dismissed the
counts in the information relative to economic collaboration, particularly his
commercial activities through his ASA TRADING.

As regards cultural and political collaboration, that portion of the Amnesty

Proclamation may also be held to extend to and cover his congratulations given to
President Laurel for his declaration of war or state of war against the United
States of America and Great Britain, his offer of services in any capacity and even
to his contribution of P10,000 intended according to his letter, for national
defense although according to his letter to Pio Duran, to "add to the strength of
our war efforts." Equally included in this political collaboration in his
membership in the KALIBAPI, even if his participation in that organization was not
as a mere indifferent or involuntary member as was the case with many Filipinos,
but as an active member and important official who did all within his power and
capacity to propagate the idea of the Greater East Asia Co-Prosperity Sphere and
slander and ridicule America and deprecate and assail its institutions and work in
these Islands. Also coming under political collaboration to be covered by the
Amnesty Proclamation is the appellant's organization of and activities with the New
Leaders' Association, even when the objectives of said association as conceived and
prepared by him, included collaboration with the various Japanese organization,
pacification efforts, and collaboration with the Imperial Japanese Army and Navy in
the safe-guarding of its public works and communication facilities, this, under a
liberal interpretation and application of the Amnesty Proclamation. Besides, in
this respect there is no concrete evidence that the appellant through the members
of the New Leaders' Association actually helped in the pacification campaign of the
Japanese Armed Forces or helped in guarding their transportation facilities.

The defendant's interview with a Japanese named Kobayashi under count No. 19, will
also be included in political collaboration, to be covered by the Amnesty
Proclamation. So is his interview with guerrilla leader Leonardo Garcia as
described in his diary, under count No. 10.

Appellant's preparation of the resolution congratulating the Kamikaze Special

Attack Squadron and its presentation to the Navy officials, may equally be classed
under political collaboration and as coming within the scope of the Amnesty
Proclamation. The air unit of said Navy must have appreciated and been encouraged
by said resolution and found comfort in the thought and knowledge that an
association composed of young, intelligent, active and more or less influential
Filipinos, were, at least in spirit, on their side, and applauded their war efforts
and achievements. This might be regarded as psychological aid and comfort. But by
taking a liberal view of the case, we can as we do hereby regard it as included in
the Amnesty.

Acting upon this petition for dismissal, above referred to, we hereby grant the
same and consider dismissed those counts of the information referring to economic
and political collaboration as above enumerated and discussed. Now whether by
reason of the application and extension of the Amnesty Proclamation to appellant's
acts of economic and political collaboration his acts of adherence alone and proof
thereof have also been wiped out, or whether they may still be considered in
connection with the acts of military collaboration, quaere. Anyway, there is no
need of so considering them for there is more than sufficient proof of adherence in
the other counts.
ADHERENCE

As to the other acts of appellant showing his adherence to the enemy we find from
the evidence, as was also found by the People's Court that he used to speak by
radio over the Radio Broadcasting Station, the PIAM, then controlled by the enemy.
On one occasion about the middle of January, 1945, when the American Forces had
already landed in Lingayen, the appellant in a radio talk, hailed and praised as
heroes "the Makapilis fighting side by side with the Japanese in the beaches of
Pangasinan" and he urged the Filipinos to emulate and follow their example. This
may well be considered in connection with his membership in the MAKAPILI, and not
covered by the Amnesty Proclamation.

As proof of the esteem and regard in which the appellant was held by the Japanese
during the occupation, and as compensation or reward for his services and
collaboration, he was issued special passes by the Japanese Manila Garrison
Commanding Officer Hashimoto. In connection with the propaganda of the Japanese
Army, he had a special car and two Japanese bodyguards, one of whom told him that
he volunteered to be a bodyguard to defend appellant's life as he considered
appellant vital not only to his country's future but also to the Co-Prosperity
Sphere.

According to Rosendo Aterrado, the appellant proposed to Yoshida the installation

of a secret radio broadcasting station in his (appellant's) house as propaganda to
win the confidence of the people by exposing the abuses of the guerillas as well as
the Japanese soldiers. According to witness Socorro Laguio, in January, 1945, the
defendant, carrying a revolver in his hand accompanied by three Japanese civilians
also armed, searched her house for rice, telling her that if she had plenty of rice
it can be taken away from her because according to him the rice was exclusively for
the use of the Japanese Army. Alvero at the time wore short pants and blue denim
shirt, evidently, the uniform of the Bisig Bakal �g Tagala.

Let us now consider the assignment of errors made by the appellant. Of the forty-
two errors assigned we shall only discuss and pass upon the important ones, and
those necessary for the determination of this case. Error No. 1 sets up to the
theory of suspended sovereignty. Error No. 2 asserts that the treason law being
political in character was equally suspended during the enemy occupation, and Error
No. 3 is based on the contention that due to the change in government from the
Commonwealth to Republic of the Philippines, treason against the former is not now
punishable. These same theories had already been advanced in previous treason
cases. They have been overruled and rejected by this Court in the case of Laurel
vs. Misa (G.R. No. L-409, 44 Off. Gaz., 1176 1) and reaffirmed in the case of
People vs. Carlos (44 Off. Gaz., 42812). We therefore see no necessity in
discussing and determining this point or points again.

Under the 4th error assigned, the appellant claims that the People'sCourt erred in
considering adherence as constituting by itself treason and of treating it as an
independent charge. The defendant labors under a misapprehension. In its decision
the People's Court grouped the counts under three main classifications, namely:
economic, political, and military. Adherence was never considered as a count or
included in any of those three groups. It was merely added in the latter part of
the decision, not as a separate count but to show the treasonous intent which
impelled and characterized his overt acts of treason.

Under error No. 25 appellant claims that the People's Court erred in finding him as
one of the organizers of the Makapili and that he voluntarily joined it, and in not
holding that he was compelled to sign the Articles of Association and the by-laws
of the same, and that on this point the two-witness rule was not complied with. We
find that the trial court did not commit the alleged error. The testimony of Jose
I. Baluyot as well as the testimony of the accused himself during the trial and
during the hearing of his petition for bail, and the entries in his diary show that
the accused was present at the meeting of organization, acted as secretary of the
same, took very active part in its deliberations, presented five of the seven
motions as shown by his own minutes of the first meeting, voluntarily signed the
Articles of Association and the By-laws of the association, occupied an important
department of the association, looked up the rooms which were to be the
headquarters of the organization, instructed the members of the New Leaders'
Association of which he was a co-founder and an important official to be present at
the inauguration of the Makapili, helped in making the chair arrangements and the
work of ushering in said inauguration and felt enthusiasm in translating the speech
of General Yamashita into Tagalog and exaltation over the power and true of his own
voice while making the translation.

Appellant also urges that the People's Court erred in holding that the Bisig Bakal
�g Tagala was organized for treasonous activities or that it engaged in such
treasonous activities. The very objectives of the Bisig Bakal �g Tagala, its
organization into a military unit with arms, uniforms, and military discipline, its
activities in taking over and guarding the barracks and installations and equipment
left by the Japanese Army in the City of Manila and the offer made by the appellant
of this Bisigbakal organization to help in the maintenance of peace and order which
at the time included the suppression of the activities of the guerrillas which was
then regarded as subversive by the Japanese, abundantly show that this organization
which the appellant helped to found and to organize, was of a military character
intended to and actually used to help the Japanese Armed Forces in their work of
maintaining peace and order, suppressing the resistance movement and defending the
City of Manila against the American Liberation Forces and their guerilla
colleagues.

According to Rosendo Aterrado, on January 1, 1945, the appellant announced a

meeting of the New Leaders' Association that afternoon at the Heacock building and
at the meeting, he urged the members to join the Bisig Bakal �g Tagala because it
was the wish of the Japanese Commander of the Manila Defense Corps that it help in
the maintenance of the peace and order. Aterrado declined to join the Bisig Bakal
�g Tagala on the ground that he was unable to carry a gun and because he did not
like the prospect of shooting his own people; that in his opinion the best way to
maintain peace and order was to get food from the Japanese Army and distribute it
among the people so that they may not participate in the fight between the Japanese
and the Americans. Because of this attitude and stand, Aterrado was summoned to a
mock court martial presided over by Alvero, with Yoshida at his right side, and
without any trial Aterrado was summarily and dishonorably discharged.

Under his 32d assigned error, appellant maintains that the People's Court erred in
finding and holding that his desire and efforts to maintain peace and order
constituted treason and in support thereof, he cites article 297 of the United
States Rules of Land Warfare as regards the right of a military occupant to demand
and enforce from the inhibitants of occupied territory such obedience as may be
necessary for the security of its forces, and for the maintenance of law and order,
citing Birkhimer on Military Government and Martial Law. It is to be borne in mind
however, that according to international law (Hague Conventions of 1907, Art. 43),
the duty to maintain peace and order is imposed upon the military occupant and not
upon the inhabitants of the occupied territory. In the present case, the appellant
through his Bisig Bakal Ng Tagala not only offered to assist but actually assisted
in the maintenance of peace and order through his military organization. In so
doing, his purpose according to himself was to relieve the Japanese Armed Forces of
the necessity of detailing and assigning a portion of their forces for the
maintenance of peace and order, so that they could concentrate on defending the
City of Manila against those trying to enter it, who we all know were none other
than the American Forces and their guerilla colleagues. Furthermore, as already
stated, the maintenance of peace and order at that time meant the suppression of
the guerillas who were regarded as subversive elements because they were killing
Japanese soldiers and spies.

Under error No. 33 regarding the meeting at the City Hall in January, 1945, he
maintains that the trial court erred in holding that meeting was for a treasonous
purpose or that the utterances made therein by him constituted treason. Through the
testimony of Leon Guinto, then Mayor of Manila, he claims that nothing was said in
that meeting about the defense of Manila nor the suppression of guerrilla
activities, and that he (appellant) merely complained against the confiscation of
foodstuffs. Examining other portions of the testimony of witness Leon Guinto,
however, it will be found that previous to that meeting the appellant accompanied
by two Japanese civilians had already done to his office offering the services of
his New Leaders' Association to help distribute cloth to the people and to maintain
peace and order, and that Mayor Guinto had answered him that he already had an
adequate system for the distribution of cloth, but that he (Guinto) had accepted
the offer as to the maintenance of peace and order. Furthermore, Guinto admitted
that at the meeting at the City Hall, representatives of the Japanese Army and Navy
and Military Police were present. It is therefore more reasonable to accept the
testimonies of De la Fuente, Quintos, and Lugtu, who were also present at that
meeting who said that the appellant spoke on and urged the intensification of the
maintenance of peace and order and the urgency of uniting all peace organizations
for a more effective decimation or suppression of the subversive elements which
were the guerrillas.

In further support of his claim, appellant also pointed to the testimony of Gerardo
Cabo Chan to show that at that meeting he only complained of the abuses of the
Japanese sentries and soldiers. It should be remembered however, that at that time
Leon Guinto was a treason indictee, and that consequently, he may not be regarded
as an absolutely impartial witness; and as to Gerardo Cabo Chan, his father named
Justo Cabo Chan was also present at that meeting, representing the Chinese
Community and that his presence and participation in that meeting was one of the
charges brought against him when he was arrested by the CIC (Counter Intelligence
Corps) for collaborating with the enemy. Naturally, witness Gerardo Cabo Chan could
not well be expected as a witness to give or attach any treasonous color or intent
to that meeting for it may prejudice the case of his own father as a treason
suspect or indictee.

The 34th assigned error concerns count No. 11 which charges that the appellant with
intent to give aid and comfort to the enemy and to counteract the activities of the
guerillas and other pro-American elements, proposed to Director General Yoshida of
the New Leaders' Association the organization of a military body to be known as the
O.P.O.G. (Our People's Own Guerilla). The People's Court found the defendant guilty
on this count mainly on his admission as to his preparation and publication of the
pamphlet LIBERTY (Exhibit T) supposed official organ of the O.P.O.G., and his diary
(Exhibit ZZ) as well as the testimony of Rosendo Aterrado as to the statements made
by Alvero when he gave him a copy of the pamphlet. This admission by the appellant
may not be considered as the confession in open court contemplated by the law on
treason as a basis for conviction. It is therefore believed that the requirement of
the law as to the sufficiency of evidence to convict has not been filled;
consequently, we uphold this assignment of error and we rule that the People's
Court erred in convicting appellant on count No. 11. However, the evidence
submitted on this count is sufficient to prove adherence of the appellant to the
enemy.

Under the 38th assigned error, appellant maintains that the trial court erred in
considering as evidence against him a number of pages of stenographic notes
allegedly of his diary and ignored his two real diaries. From what we can gather
from the record, appellant's theory seems to be kept two diaries, one for the
public eye and consumption, including the Japanese, which diary did not reflect his
will and true sentiments; neither did it record correctly the events therein
narrated, so that even if examined by the Japanese he would not be molested, much
less, accused of being anti-Japanese, and that this diary was Exhibit ZZ; and that
there was another, real diary in his handwriting for his private files, so that his
private life would not be exposed to the public view. But this supposed real diary
was never presented by him in court. If it were true as intimated by him that it
was included among the papers seized by the CIC (Counter Intelligence Corps), then
he should have proved in court the existence of said alleged real diary; that it
was in the possession of the prosecution who refused to present it in evidence and
thereby have the benefit of the legal presumption that evidence will fully
suppressed by the prosecution will be adverse to it if produced. On the other hand,
Exhibit ZZ could not possibly be the fake and false diary he claims, supposedly
intended for public consumption and to mislead the public particularly the Japanese
because it contains entries regarding his private life, his relations with the
opposite sex, and statements not exactly pleasing to the Japanese such as that his
brother Jesus Alvero was pro-American and wanted to join the guerillas. There is
therefore every reason to believe and to find that Exhibit ZZ is his real diary,
and that the sentiments and events therein noted and narrated were entered in good
faith and were more or less a faithful record of what he felt and what had occured
at the time.

In this connection and inasmuch as this diary (Exhibit ZZ) has been continually
referred to and quoted not only by the People's Court but also by this tribunal, it
is deemed advisable to say a few words on its admissibility and competence. Exhibit
ZZ was duly identified by Patricia Fermin, one of the secretaries of the appellant
to whom it was dictated by him and who (Patricia) later transcribed it. It was
offered and admitted in evidence without objection. As a rule, diaries are
inadmissible because they are self-serving in nature, unless they have the nature
of books of account (51 L. R. A. [N.S], 813-815); but it has also been held that an
entry in a diary being in the nature of a declaration, if it was against interest
when made, is admissible.(Muller vs. Mclean, 31 Ohio Cir. Ct. Rep. 64, cited in
Ann. Cas. 1916C, p. 718.)

Exhibit X and KK, alleged diaries dictated to Romana Bautista, another secretary,
are a little different. Exhibit X was objected to by the defense on the ground that
it was among the papers illegally seized from appellant's house; and Exhibit KK was
objected on the ground that its authenticity was not properly established although
in the course of the hearing of the appellant's petition for bail he admitted the
correctness of his material statements in Exhibit X. However, inasmuch as Romana
Bautista who took down and transcribed Exhibits X and KK refused to identify them
during the trial, it is doubtful whether their authenticity has been duly proven.
Consequently, they are not admissible.

Under 42d and last assigned error appellant claims that the People's Court erred in
disregarding and not considering as evidence of his intention and his explanation
of his activities, the tangible and valuable services which he rendered to
Filipinos, friends and strangers alike. He maintains that in aid of the resistance
movement, among other things he offered all his money and all that he could earn
for the unification of the guerrillas and he cites the testimonies of Col.
Centenera and Major Ross. It appears, however, that his proposition to Centenera on
the basis of which he made the offer of aid was set up a guerilla organization
armed and supplied by the Japanese to overthrow the Laurel government or Republic
and set himself (Alvero) in power, which government was to be later recognized by
the Japanese. This proposition was rejected by Centenera and Ross and several days
later, they were being sought by the Japanese Military Police. As to his alleged
offer of a radio transmitter, P30,000 in cash, radio shortwave, foods, medicines,
rifles, etc. to the resistance movement, it was testified to only by his own
brother Jesus Alvero for whose natural bias, allowance should be made; and Col.
Barrrion of the resistance movement to whom they were allegedly delivered was never
presented in court to corroborate and fortify this claim.

Appellant's having saved the life of Buenejeres Cascante a guerrilla, who was
caught and was being investigated by the Japanese, bears explanation. At that time,
the guerrillas were gaining the upperhand. In fact, the Americans and their
guerrilla colleagues were nearing Manila. It was but natural that the appellant
should do something for the guerrillas to gain their good-will and be in their good
graces, for his own safety later on. What happened was that Cascante was taken to
the appellant and the latter told the Japanese the prisoner was his man, whereupon
Cascante was released. If at all, the incident shows the great influence the
appellant had with the enemy, undoubtedly, for services rendered to them. And, as
to his assistance to the City population by distributing food at prices lower than
the black market and in some cases giving them free, as we have already stated
earlier, the distribution was part of the propaganda for his New Leader's
Association, and later of his Bisigbakal. What is more, in making such distribution
we said that he had some ulterior motive, as revealed by his trying, during such
distribution of commodities at the Legarda Elementary School Building, to persuade
the population to resist the Americans and guerrilla forces that were coming to the
City of Manila to liberate it. Moreover, the performance of righteous actions, no
matter how meritorious they may be is not a justifying or exempting, not even a
mitigating circumstance in the commission of a wrong. Even service as a guerrilla
does not exempt one from criminal responsibility for treason (People vs. Victoria,
44 Off. Gaz., 22303 People vs. Garcia 46, Off. Gaz., 24974.

The last portion of appellant's brief, particularly the conclusion, which he

himself prepared and signed, begins with a paragraph which reads thus:

The decision appealed from tried to point the accused-appellant as an all-out

traitor, a monster devoid of any good or noble traits. The judge who wrote it,
caught in the post-war hysteria of his time, dipped his pen in the bloody wave of
bias and hatreds of that collaborator-bathing era and shutting his eyes to the
truth, produced a masterpiece of distortion equal only to the mind that conceived
it. So colored with prejudice was the point of view of the judge, that he saw even
in such good acts of the accused-appellant as distributing food to the people, he
saw even in such good acts the taints of treason. No small shred of evidence
capable of misinterpretation escaped his genius in conjuring the horrible picture
of treason which he wanted portrayed.

In conscience and in justice to Judge Jose S. Bautista who penned the decision
appealed from, we can not allow this personal attack to pass unnoticed or
uncensured. Said invective is uncalled for, unwarranted as it is unfair. We have
liberally quoted with favor portions of the decision appealed from thereby showing
our conformity with and approval of said decision, learned and well written. We can
well appreciate and imagine the position of the appellant and his natural reaction
to a judgment of conviction but being a highly intelligent and educated man and a
lawyer at that, he should have been more discreet and have had more self-control
and not allowed himself to be dominated and carried away by his feelings and
expressed them in such a passionate, ruthless and unfair manner, especially in
brief filed before this Tribunal.

It is hard to imagine a Filipino so completely sold on the Japanese, their way of

life, their ideals and their institutions, a Filipino so utterly won over to the
enemy, as Alvero. The entries in his diaries make mention of his countless Japanese
friends in high officialdom, not only among the Japanese civilian entities attached
to or collaborating with the Japanese Armed Forces, but also in the Army and the
Navy itself. His diary records almost daily conferences, interviews, dinners,
luncheons, rides, etc. with such Japanese officials. Some of his conferences and
parleys were by himself described as secret.
To fully understand the pro-Japanese leanings, sentiments and adherence of the
appellant to Japan, which later took the form of overt acts of treason, it may be
stated that far back in 1939, he went to Japan to attend the Japanese sponsored
International Asiatic Anti-Communistic Convention in Tokyo where he made known his
friendship with Japan through his poem "TOMADACHI TO NARO" meaning "let us be
friends", punished in the Japan Times on October 30, 1939 (Exhibit OO). This
gesture met with a flattering reception from the Japanese, particularly the press.
Complimentary and favorable comment and editorials were written as shown by
defendant's own clippings from these Japanese newspapers (Exhibits OO to OO-16). On
his return from the conference the appellant published a pamphlet entitled "WHO ARE
THE FRIENDS OF THE PHILIPPINES?" After answering that question he concludes thus:

Were there more neighbors like Japan, were there more guests like the Japanese,
there would be no need of territorial barriers and divisions of nations and race,
but in the contrary, there would be a universal union of men fighting towards the
greatest ambition of the world, the happiness of humanity. (Exhibit 00-2, p. 118,
rec.)

Evidence of appellant's adherence to the enemy to be gathered not only from his
overt acts of treason but from many other acts during the occupation as testified
to by his own countrymen and from the entries in his own diary, is abundant and
overwhelming. Judge Dizon, one of the three Judges of the People's Court who signed
the decision of conviction, in his concurring opinion has the following to say on
the adherence of the appellant:

La Adhesion del Acusado al Enemigo

La ponencia apunta con acierto diferentes actos del acusado que no dejan duda
alguna en cuanto a su adhesion a la causa del Japon dirimida y resuelta por las
armas en la segunda guerra mundial. Su actividad febril e inusitada en el escenario
de la vida publica durante la ocupacion de nuestro pais por el invasor � cuando la
mayoria de los de su sangre o se unian abiertamente al movimiento deresistencia
activa o procuraban pasar desapercibidos y ponerse almargen de los sucesos, huyendo
de toda actividad que, directa oremotamente pudiera demostrar simpatia por el
enemigo o constituir ayuda material, moral o espiritual a sus esfuerzos de guerra �
constituye, en mi opinion, la prueba mas categorica y fehaciente de su adhesion a
la causa del Japon. En realidad, si nos fuera dable exprimir, los autos, cual se
hace con una jugosa fruta, el liquido que destilarian seria no la adhesion inocente
e irreflexiva del automata sino la adhesion consciente, deliberada y resuelta de un
hombre sano y libre; el acusado que habia puesto al servicio del Azotede su pais
todo el idealismo y vigo de su sangre joven, dignos, ciertamente, de mejor causa.

Regarding this same adherence, had appellant confined himself within the realm of
mere adherence � disloyal state of mind and treasonous thoughts, intentions, and
sympathies, however great may have been the disappointment, disapproval, and even
hatred of his countrymen for such disloyalty to them and to their country, the law
and prosecuting officials could not have taken action against him. Adherence alone
is not indictable. In a free and democratic country like the Philippines, there is
freedom of thought and free and unhampered discussion and expression of sentiment.
But when he translated such treasonous sympathies and intentions into overt acts of
treason such as joining the Makapili, establishing his military organization Bisig
Bakal Ng Tagala and offering its services to take charge of the maintenance of
peace and order, which included the suppression of the guerrillas, so that the
Japanese could concentrate their forces in defending the City of Manila by fighting
against the American and guerrilla forces trying to enter and liberate it, then he
(appellant) breached as it were the walls of allegiance and loyalty which the
treason law has erected to surround and protect the security and integrity of the
nation, and he may then be held criminally liable.
In several cases already decided by this Court we have convicted persons of treason
for mere membership in the Makapili organization, on the theory that one joining
such military body organized to actively help the Japanese Armed Forces was
"placing himself at the enemy's call to fight side by side with him when the
opportune time came altho an opportunity never presented itself, because such
membership by its very nature gave the enemy aid and comfort." (People vs. Adriano,
44 Off. Gaz., 43005 People vs. Alitagtag, 45 Off. Gaz., 715 6. Here, the appellant
not only joined the Makapili as a member but greatly helped organize and later
inaugurate it. He was assigned the high and important post of colonel in it. Later,
in a radio speech he hailed as heroes to be emulated the Makapilis who, side by
side with the Japanese, were fighting the American landing forces in Lingayen. That
appellant Alvero is guilty of the charge of treason, is clear.

In conclusion we find the appellant guilty of treason. Although we agree to the

prison sentence of reclusion perpetua meted out by the People's Court, all the
members of this high Tribunal taking part believe that the fine should be
increased. We hereby increase it from P10,000 to P20,000. With this modification as
to the sentence and as to those portions of the decision of the People's Court
discussed and ruled upon by us, the said decision appealed from is hereby affirmed,
with costs.

==================================

JUAN D. CRISOLOGO, Petitioner, v. PEOPLE OF THE PHILIPPINES and HON. PABLO

VILLALOBOS, Respondents.

Antonio V. Raquiza, Floro Crisologo and Carlos Horrilleno for Petitioner.

First Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor Felix V.
Makasiar for Respondents.

Pablo Villalobos in his own behalf.

SYLLABUS

1. MILITARY AND CIVIL COURTS, POWERS OF; CONCURRENT JURISDICTION OVER TREASON
CASES; DECISION OF MILITARY COURT CONSTITUTES A BAR TO FURTHER PROSECUTION FOR THE
SAME OFFENSE IN CIVIL COURTS. � Where it appears that the offense charged in the
military court and in the civil court is the same, that the military court had
jurisdiction to try the case and that both courts derive their powers from one
sovereignty, the sentence meted out by the military court to the defendant should
be a bar to defendant�s further prosecution for the same offense in the Court of
First Instance.

2. ID.; ID.; OFFENSE CHARGED IN MILITARY COURT DIFFERENT FROM THAT CHARGED IN CIVIL
COURT; EFFECT OF ENUMERATION OF ADDITIONAL OVERT ACTS. � Where the offense charged
in the amended information in the Court of First Instance is treason, the fact that
the said information contains an enumeration of additional overt acts not
specifically mentioned in the indictment before the military courts is immaterial
where the new alleged overt acts do not in themselves constitute a new and distinct
offense from that of treason but constitute ingredients thereof.

3. ID.; ID.; REQUISITES TO ACQUIRE JURISDICTION. � Where the record of the case
shows that the information for treason in the People�s Court was filed on March 12,
1946, but defendant had not yet been arrested or brought into the custody of the
court � the warrant of arrest had not even been issued � when the indictment for
the same offense was filed in the military court on January 13, 1947, the mere
priority in the filing of the information in the People�s Court does not give that
court priority to take cognizance of the offense, it being necessary in addition
that the court where the information was filed should have custody or jurisdiction
over the person of defendant.

D E C I S I O N

REYES, J.:

The petitioner Juan D. Crisologo, a captain in the USAFFE during the last world war
and at the time of the filing of the present petition a lieutenant colonel in the
Armed Forces of the Philippines, was on March 12, 1946, Accused of treason under
article 114 of the Revised Penal Code in an information filed in the People�s
Court. But before the accused could be brought under the jurisdiction of the court,
he was on January 13, 1947, indicted for violation of Commonwealth Act No. 408,
otherwise known as the Articles of War, before a military court created by
authority of the Army Chief of Staff, the indictment containing three charges, two
of which, the first and third, were those of treason consisting in giving
information and aid to the enemy leading to the capture of USAFFE officers and men
and other persons with anti-Japanese reputation and in urging members of the USAFFE
to surrender and cooperate with the enemy, while the second was that of having
certain civilians killed in time of war. Found innocent of the first and third
charges but guilty of the second, he was on May 8, 1947, sentenced by the military
court to life imprisonment.

With the approval on June 17, 1948, of Republic Act No. 311 abolishing the People�s
Court, the criminal case in that court against the petitioner was, pursuant to the
provisions of said Act, transferred to the Court of First Instance of Zamboanga and
there the charges of treason were amplified. Arraigned in that court upon the
amended information, petitioner presented a motion to quash, challenging the
jurisdiction of the court and pleading double jeopardy because of his previous
sentence in the military court. But the court denied the motion and, after
petitioner had pleaded not guilty, proceeded to trial, whereupon, the present
petition for certiorari and prohibition was filed in this court to have the trial
judge desist from proceeding with the trial and dismiss the case.

The petition is opposed by the Solicitor General who, in upholding the jurisdiction
of the trial judge, denies that petitioner is being subjected to double jeopardy.

As we see it, the case hinges on whether the decision of the military court
constitutes a bar to further prosecution for the same offense in the civil courts.

The question is not of first impression in this jurisdiction. In the case of U. S.

v. Tubig, 3 Phil., 244, a soldier of the United States Army in the Philippines was
charged in the Court of First Instance of Pampanga with having assassinated one
Antonio Alivia. Upon arraignment, he pleaded double jeopardy in that he had already
been previously convicted and sentenced by a court-martial for the same offense and
had already served his sentence. The trial court overruled the plea on the grounds
that as the province where the offense was committed was under civil jurisdiction,
the military court had no jurisdiction to try the offense. But on appeal, this
court held that "one who has been tried and convicted by a court martial under
circumstances giving that tribunal jurisdiction of the defendant and of the
offense, has been once in jeopardy and cannot for the same offense be again
prosecuted in another court of the same sovereignty." In a later case, Grafton v.
U. S. 11 Phil., 776, a private in the United States Army in the Philippines was
tried by a general court martial for homicide under the Articles of War. Having
been acquitted in that court, he was prosecuted in the Court of First Instance of
Iloilo for murder under the general laws of the Philippines. Invoking his previous
acquittal in the military court, he pleaded it in bar of proceedings against him in
the civil court, but the latter court overruled the plea and after trial found him
guilty of homicide and sentenced him to prison. The sentence was affirmed by this
Supreme Court, but on appeal to the Supreme Court of the United States, the
sentence was reversed and defendant acquitted, that court holding that "defendant,
having been acquitted of the crime of homicide alleged to have been committed by
him by a court martial of competent jurisdiction proceeding under the authority of
the United States, cannot be subsequently tried for the same offense in a civil
court exercising authority in the Philippines."cralaw virtua1aw library

There is, for sure, a rule that where an act transgresses both civil and military
law and subjects the offender to punishment by both civil and military authority, a
conviction or an acquittal in a civil court cannot be pleaded as a bar to a
prosecution in the military court, and vice versa. But the rule "is strictly
limited to the case of a single act which infringes both the civil and the military
law in such a manner as to constitute two distinct offenses, one of which is within
the cognizance of the military courts and the other a subject of civil
jurisdiction" (15 Am. Jur., 72), and it does not apply where both courts derive
their powers from the same sovereignty. (22 C. J. S., 449.) It therefore, has no
application to the present case where the military court that convicted the
petitioner and the civil court which proposes to try him again derive their powers
from one sovereignty and it is not disputed that the charges of treason tried in
the court martial were punishable under the Articles of War, it being as a matter
of fact impliedly admitted by the Solicitor General that the two courts have
concurrent jurisdiction over the offense charged.

It is, however, claimed that the offense charged in the military court is different
from that charged in the civil court and that even granting that the offense was
identical the military court had no jurisdiction to take cognizance of the same
because the People�s Court had previously acquired jurisdiction over the case with
the result that the conviction in the court martial was void. In support of the
first point, it is urged that the amended information filed in the Court of First
Instance of Zamboanga contains overt acts distinct from those charged in the
military court. But we note that while certain overt acts specified in the amended
information in the Zamboanga court were not specified in the indictment in the
court martial, they all are embraced in the general charge of treason, which is a
continuous offense and one who commits it is not criminally liable for as many
crimes as there are overt acts, because all overt acts "he has done or might have
done for that purpose constitute but a single offense." (Guinto v. Veluz, 1 44 Off.
Gaz., 909; People v. Pacheco, L-4570, 2 promulgated July 31, 1953.) In other words,
since the offense charged in the amended information in the Court of First Instance
of Zamboanga is treason, the fact that the said information contains an enumeration
of additional overt acts not specifically mentioned in the indictment before the
military court is immaterial since the new alleged overt acts do not in themselves
constitute a new and distinct offense from that of treason, and this Court has
repeatedly held that a person cannot be found guilty of treason and at the same
time also guilty of overt acts specified in the information for treason even if
those overt acts, considered separately, are punishable by law, for the simple
reason that those overt acts are not separate offense distinct from that of treason
but constitutes ingredients thereof. Respondents cite the cases of Melo v. People,
3 47 Off. Gaz., 4631, and People v. Manolong, 4 47 Off. Gaz., 5104, where this
court held:jgc:chanrobles.com.ph

"Where after the first prosecution a new fact supervenes for which the defendant is
responsible, which changes the character of the offense and, together with the
facts existing at the time, constitutes a new and distinct offense, the accused
cannot be said to be second jeopardy if indicted for the new offense."cralaw
virtua1aw library

But respondents overlook that in the present case no new facts have supervened that
would change the nature of the offense for which petitioner was tried in the
military court, the alleged additional overt acts specified in the amended
information in the civil court having already taken place when petitioner was
indicted in the former court. Of more pertinent application is the following from
15 American Jurisprudence, 56-57:jgc:chanrobles.com.ph

"Subject to statutory provisions and the interpretation thereof for the purpose of
arriving at the intent of the legislature enacting them, it may be said that as a
rule only one prosecution may be had for a continuing crime, and that where an
offense charged consists of a series of acts extending over a period of time, a
conviction or acquittal for a crime based an a portion of that period will bar a
prosecution covering the whole period. In such case the offense is single and
indivisible; and whether the time alleged is longer or shorter, the commission of
the acts which constitute it within any portion of the time alleged, is a bar to
the conviction for other acts committed within the same time . . ."cralaw virtua1aw
library

As to the claim that the military court had no jurisdiction over the case, well
known is the rule that when several courts have concurrent jurisdiction of the same
offense, the court first acquiring jurisdiction of the prosecution retains it to
the exclusion of the others. This rule, however, requires that jurisdiction over
the person of the defendant shall have first been obtained by the court in which
the first charge was filed. (22 C.J.S., pp. 186-187.) The record in the present
case shows that the information for treason in the People�s Court was filed on
March 12, 1946, but petitioner had not yet been arrested or brought into the
custody of the court � the warrant of arrest had not even been issued - when the
indictment for the same offense was filed in the military court on January 13,
1947. Under the rule cited, mere priority in the filing of the complaint in one
court does not give that court priority to take cognizance of the offense, it being
necessary in addition that the court where the information is filed has custody or
jurisdiction of the person of defendant.

It appearing that the offense charged in the military court and in the civil court
is the same, that the military court had jurisdiction to try the case and that both
courts derive their powers from one sovereignty, the sentence meted out by the
military court to the petitioner should, in accordance with the precedents above
cited, be a bar to petitioner�s further prosecution for the same offense in the
Court of First Instance of Zambales.

Wherefore, the petition for certiorari and prohibition is granted and the criminal
case for treason against the petitioner pending in that court ordered dismissed.
Without costs.

Paras, C.J., Pablo, Bengzon, Padilla, Montemayor, Jugo, Bautista Angelo, Labrador
and Concepcion, JJ., concur.

====================

G.R. No. L-6025 May 30, 1964

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 in Criminal 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.
1�wph�1.��t

(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 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 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.
============================

G.R. No. L-9529 August 30, 1958

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PEDRO T. VILLANUEVA, defendant-appellant.

Office of the Solicitor General Ambrosia Padilla and Solicitor Jose P. Alejandro
for appellee.
J. M. Cajucom for appellant.

PER CURIAM:

Appellant Pedro T. Villanueva was sentenced to death by the Fifth Division of the
defunct People's Court for the crime of treason. On March 10, 1948, the case was
elevated to us (G. R. No. L-2073) not only by virtue of the appeal duly interposed
by the accused but also under the provisions of Section 9 of Rule 118 of the Rules
of Court which provides mandatory review by this Tribunal of all decisions or
judgments of the lower courts imposing death penalties. Meantime, it was discovered
that the transcript of stenographic notes taken down on October 8, 1947, before the
People's Court was missing and unavailable, by reason of which and upon
recommendation of the Solicitor General, we promulgated a resolution on August 1,
1952, remanding the case to the Court of First Instance of Iloilo for the retaking
of the missing testimonies of the four witnesses who testified before the People's
Court, namely, Gregorio Gaton, Ambrosio Tuble, Basilia Taborete, and the accused
himself. Thus the case was sent to that court.

On August 24, 1953, appellant filed a petition with the Court of First Instance of
Iloilo praying that he be allowed to withdraw his appeal so as to avail himself of
the benefits of the Executive clemency granted to all prisoners convicted of
treason, including those whose cases were pending appeal, on condition that such
appeals be first withdrawn. Whereupon the Court of First Instance of Iloilo
returned the case to us for whatever action we may take in view of the withdrawal
requested, for, at all events, the case had to be reviewed by us regardless of
defendant's appeal. The case was included in the agenda prepared by the Clerk of
Court for September 21, 1953, only on the basis of the motion for withdrawal of
appeal by appellant, without calling the attention of the Tribunal that defendant
had previously appealed from a decision sentencing him to death, which decision
called for an automatic review and judgment by us. Accordingly, and following the
practice of this Tribunal of acting favorably on petitions for withdrawal of
appeals where briefs had not been filed, as in the present case, said petition for
withdrawal was granted by resolution of September 21, 1953. However, at about 3:00
o'clock in the afternoon of the same date, and after the passing of the resolution,
appellant filed directly with this Court a petition reiterating his request for
withdrawal of appeal previously made with the Court of First Instance of Iloilo,
attaching thereto two documents said to be copies of the conditional pardon granted
him and of the letter of the Legal Assistant in the office of the President
addressed to the Director of Prisons. It was only on considering this second
petition when we realized the nature of the case and that the withdrawal of appeal
granted on September 21, 1953, was a mistake and contrary to legal precedents. So,
in a resolution dated October 19, 1953, this Tribunal reconsidered its resolution
of September 21st granting withdrawal of appeal, and again reminded the case to the
Court of First Instance of Iloilo for the retaking of the testimonies above
referred to, with instructions that a new decision be rendered based on the said
testimonies and on the standing evidence adduced before the People's Court. The
resolution of October 19th read as follows:
By a decision dated November 19, 1947, the Fifth Division of the defunct People's
Court after trial of appellant Pedro T. Villanueva on a charge of treason on
several counts, found him guilty of treason and murder and sentenced him thus �

"IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court, finding the accused Pedro T.
Villanueva guilty of the complex crime of treason and murders as defined in Article
114 of the Revised Penal Code, in connection with Article 48 of the same Code,
sentences him to suffer death penalty, with the accessories of the law, to
indemnify the heirs of Cosme Calacasan in the amount of P2,000, to indemnify the
heirs of Julia Cabilitasan in the amount of P2,000, to indemnify the heirs of Sofia
Tambirao in the amount of P2,000, and to pay a fine of Twenty Thousand Pesos
(P20,000) and the costs of the proceedings."

Villanueva duly appealed to this Court. The records were sent up to us not only by
virtue of the appeal but also under the provisions of Rule 118, Section 9, of the
Rules of Court which provides for review and judgment by this Tribunal of all cases
in which the death penalty shall have been imposed by a court of first instance,
whether the defendant shall have appealed or not.

It appearing that the stenographic notes taken of the testimony of the witnesses
who testified on October 8, 1947, could not be located, and following the
recommendation of the Solicitor General, a resolution was promulgated on August 1,
1952, remanding the case to the Court of First Instance of Iloilo for the retaking
of the testimony of said witnesses.

Thereafter before said court defendant-appellant Villanueva filed a petition dated

August 24, 1953, stating that about July 4, 1953, the Chief Executive granted
executive clemency to all prisoners convicted of treason, including those whose
cases were pending appeal, on condition that such appeals be first withdrawn,
supposedly to give finality to the judgment of the lower court, and asking that he
be allowed to withdraw his appeal. Acting upon said petition the Court of First
Instance of Iloilo issued an order dated September 10, 1953, directing the return
of the case to this Court for whatever action it may take in the premises, in view
of the petition for withdrawal of the appeal filed by appellant and because the
case had to be reviewed by the Supreme Court anyway regardless of the appeal by the
defendant.

The case was considered by us on September 21, 1953. The agenda of this Court on
that date as regards this was prepared by the Clerk of Court's Office only on the
basis of the motion for withdrawal of appeal by the defendant. Our attention was
not called to the fact that defendant had previously appealed from a decision
sentencing him to death, which decision called for an automatic review and judgment
by us. So, following the practice of this Tribunal of acting favorably on petitions
for withdrawal of appeals where the briefs have not yet been filed, as in the
present case, said petition for withdrawal of appeal was granted by resolution of
September 21, 1953. On the same date, however, and presumably after the passing of
the resolution, appellant Villanueva filed directly with this Court a petition
reiterating the request for withdrawal of his appeal previously made with the Court
of First Instance of Iloilo, attaching to his petition Exhibits "A" and "B", said
to be copies of the conditional pardon and of the letter of the Legal Assistant in
the Office of the President addressed to the Director of Prisons. It was only on
considering said petition that we realized the nature of the case and the decision
appealed to this Court, the withdrawal of which appeal had been granted by the
resolution of September 21, 1953.

An accused appealing from a decision sentencing him to death may be allowed to

withdraw his appeal like any other appellant in an ordinary criminal case before
the briefs are filed, but his withdrawal of the appeal does not remove the case
from the jurisdiction of this Court which under the law is authorized and called
upon to review the decision though unappealed. Consequently, the withdrawal of the
appeal in this case could not serve to render the decision of the People's Court
final. In fact, as was said by this Court thru Justice Moreland in the case of U.S.
vs. Laguna, 17 Phil. 532, speaking on the matter of review by this Court of a
decision imposing the death penalty, the judgment of conviction entered in the
trial court is not final, and cannot be executed and is wholly without force or
effect until the case has been passed upon by the Supreme Court en consulta; that
although a judgment of conviction is entered by the trial court, said decision has
none of the attributes of a final judgment and sentence; that until it has been
reviewed by the Supreme Court which finally passes upon it, the same is not final
and conclusive; and that this automatic review by the Supreme Court of decisions
imposing the death penalty is something which neither the court nor the accused
could waive or evade.

Furthermore, when the case was remanded to the lower court for the purpose of
retaking the testimony of those witnesses who testified on October 8, 1947, the
case was virtually remanded for new trial. Of course, the evidence and the
testimony received during the trial before the People's Court which is still intact
and available shall stand and the new trial will be confined to the testimony of
the same witnesses who testified on October 8, 1947, the stenographic notes or
transcript of which cannot now be found. Under these circumstances, it is necessary
for the trial court to render a new decision because the new trial is being held
before a new Judge and there is no assurance that the witnesses testifying, altho
the very same ones who were on the witness stand on October 8, 1947, would testify
to the same facts and in the same manner that they did at the former trial, altho
they are supposed to do so. (See Demetria Obien de Almario vs. Fidel Iba�ez, et al,
46 O. G. No. 1, p. 390). Going over the record of the case, we find that it would
not be too difficult for the trial judge to see to it that the said witnesses as
far as possible confine themselves to the same points on which they testified on
October 8, 1947, because the testimonies of said witnesses including the defendant
are referred to and described in the decision of the People's Court on pages 87,
123, and 124 to 129, and that there are only four witnesses including the accused
himself.

Examining Exhibits "A" and "B" submitted by appellant in relation to his petition
for the withdrawal of his appeal, we find that although his name appears in the
list of prisoners convicted by the People's Court and supposed to be pardoned
conditionally, the pardon itself refers to the remission of the "unexpired portions
of the prison sentence terms and the fines of the prisoners listed below who were
convicted by the defunct People's Court of treason and committed to the new Bilibid
Prison to serve their sentence." It is highly doubtful that the pardon could have
contemplated and included appellant herein because his sentence of death does not
merely involve a prison term which expires in time. Besides, a death sentence is
not exactly served but rather executed. Moreover, Exhibit "B" says that "those
prisoners whose cases are still pending on appeal shall be released only after
their appeal has been withdrawn." The implication is that the withdrawal of the
appeal rendered the decision of the People's Court final, resulting in conviction,
this to bring it into harmony with Art. VII, Sec. 10(6) of the Constitution which
requires conviction as a condition precedent to the exercise of Executive clemency.
As we have already stated, despite defendant's withdrawal of his appeal from the
decision imposing the death sentence, there is no definite conviction or sentence
until and after this Tribunal has reviewed the case and rendered its own decision
affirming, modifying or reversing that of the lower court, unless of course in the
new decision of the trial court based on the new trial a sentence other than death
is imposed, in which case there would be no automatic review by us.

Let the record of this case be again remanded to the Court of First Instance of
Iloilo for new trial and thereafter, for a new decision.
At the new trial, only the testimonies of witnesses for the defense, Ambrosio Tuble
and Basilio Taborete, were introduced. Appellant also presented documentary
evidence relative to the conditional pardon allegedly granted him. The Court of
First Instance of Iloilo found nothing in the newly adduced evidence to disturb the
decision of the People's Court, and, reproducing said decision, rendered judgment
on October 11, 1955, sentencing appellant to capital punishment. The case was again
elevated to us for automatic review and judgment and given the present docket
number.

In the amended information filed before the People's Court, appellant was accused
of treason on ten counts, but the prosecution adduced evidence only on seven of
them, namely, Counts 1, 2, 6, 7, 8, 9 and 10. The lower court found that Counts 1
and 2 were not proven, and convicted the accused on Counts 6, 7, 8, 9 and 10.

The prosecution established that during the Japanese occupation, appellant, who is
a Filipino citizen, and owing allegiance to the United States of America and the
Commonwealth of the Philippines, gave the enemy aid and comfort by rendering
service with the Japanese Imperial Army as secret agent, informer and spy, of its
Detective Force in the province of Iloilo, and that in the performance of such
service, he participated actively and directly in the punitive expeditions
periodically made by the Japanese forces in the guerilla-infested areas of the
province of Iloilo, and committed robberies, arson and mass-murders, specifically
as follows:

Count No. 6. Anent this Count, the amended information recites:

6. That on or about June 10, 1943, at the barrios of Baroc and Atabayan,
municipality of Tigbauan, Iloilo, Philippines, and within the jurisdiction of this
Court, the above-named accused, Pedro T. Villanueva, with intent to adhere as he
did adhere to the enemy, and with treasonable intent to give as he did give said
enemy aid and comfort, in his capacity as agent, informer and spy of the Detective
Force, Imperial Japanese Army, and in company with other Filipino spies and several
Japanese soldiers, did then and there, willfully, unlawfully, feloniously and
treasonably arrest Vicente Garrido, Juan Tatlonghari, Clodovio Trieco, Melchor
Trieco, Cosme Tobias, Leoncio Tumamudtamud, Quirino Toranto, Napoleon Luceno,
Modesto Torremoro and Dionisio Belandrez on the charge that they were guerrilla
soldiers and/or sympathizers and did investigate, maltreat and torture them; that
subsequently the persons above-mentioned were taken away and were not seen or heard
of since then; that on the occasion of the aforementioned patrol, the above-named
accused and his companions, with intent of gain and without consent of the owners
thereof, did then and there, willfully, unlawfully and feloniously loot the house
of Jose T. Belandrez, taking therefrom genuine Philippine currency in the amount of
P300; emergency notes in the amount of P1,200; jewelry value at P500; clothing
valued at P200; and other personal effects; and from the house of Toribia Taleon,
jewelry, watches, clothing and other personal effects with a total value of P160
more or less.

Jose T. Belandrez, Salvador Toranto, Toribia Taleon and Maria Mendoza,

corroborating one another, testified that at dawn of June 10, 1943, appellant,
accompanied by some Filipinos and Japanese soldiers, went to the house of Jose T.
Belandrez situated at Tigbauan, Iloilo, and took therefrom P1,200 in cash, jewelry
worth P300, and clothing valued at P200; that they also arrested Dionisio
Belandrez, Modesto Torremoro and Napoleon Luceno, members of the Bolo Battalion, an
auxiliary unit of the guerrillas; that since that fateful day, the said three
members of the Bolo Battalion never returned.

Count No. 7. The amended information respecting this Count, reads as follows:
7. That on or about the 9th and 10th day of August, 1943, in the municipality of
Tigbauan, Iloilo, Philippines, and within the jurisdiction of this Court, the
above-named accused, Pedro T. Villanueva, with intent to adhere as he did adhere to
the enemy, and with treasonable intent to give, as he did give said enemy, aid and
comfort, in his capacity as agent, informer and spy of the Detective Force,
Imperial Japanese Army, and in company with other Filipino spies and Japanese
soldiers, did then and there wilfully, unlawfully, feloniously and treasonably
arrest and apprehend several persons suspected of guerrilla activities, among whom
were Federico Tinamisan, Eustaquio Doga, Roque Tiologo, Salvador Tedor, Tomas
Trompeta, Agapito Trompeta, Andres Tayo, Victorio Tuante, Manuel Teano, Matias
Tirante, Rufo Tolate, Celedonio Tupino, Alfredo Trompeta, Hilarion Toga and several
others, who were gathered in the Chapel at barrio Napnapan, where the persons
aforesaid were investigated, maltreated and tortured, as a consequence of which
Salvador Tedor died of the beating and torture inflicted upon him by the herein
accused and his companions; that the following morning about thirty-seven persons
were taken to the yard of Valentina Amandoron's house, where Jesus Astrologo,
Carlos Palma, Filipino co-spies of the accused, and the Japanese killed by
beheading Andres Tai, Victorio Tuante, Roque Tiologo, Manuel Teano, Matias Tirania,
Pufo Tulato, Agapito Trompeta, Tomas Trompeta, Celedonio Tupino, Simeon Ledesma,
Hermenegildo Taleon, Marcelo Turid, Magdaleno Turid, Enrique Turid, Jose Tamon,
Cornelio Taghap, Eustaquio Doga, Eugenio (LNU), Francisco (LNU) Lucio (LNU), Juan
(LNU), Casimiro (LNU), Gorteo (LNU), and several others whose names are unknown,
while Alfredo Trompeta and Hilarion Toga were struck and wounded on their necks but
miraculously escaped death.

Six witnesses testified on this Count, namely, Severa Gua, Natividad Duga, Alfredo
Trompeta, Hilario Taghap and Valentina Amandoron who, corroborating one another,
stated that on August 9 or 10, 1943, which was a Monday, at about six o'clock in
the evening, while Eustaquio Duga and his family were at their home in Tigbauan,
Iloilo, he saw Japanese soldiers and some Filipinos approaching their house; that
Eustaquio Duga notified his wife and they immediately started to flee; that
unfortunately, they were overtaken by the Japanese soldiers, and Eustaquio Duga was
arrested by herein appellant who was in company with said Japanese soldiers; that
Eustaquio Duga was taken to the nearby barrio of Napnapan; that sometime later,
Severa Gua found the dead body of Eustaquio Duga, with his head almost severed,
among other corpses in the yard of the house of Valentina Amandoron.

On the same day, while Alfredo Trompeta and his companion Roque Teologo were
walking in a barrio road in Napnapan, Tigbauan, Iloilo, they were arrested by
Japanese soldiers who were with the appellant; that Trompeta and Teologo were taken
to the barrio of Ermita, of the same municipality, where they were investigated
together with about thirty persons who were suspected as guerrillas; thence they
were brought to the house of Valentina Amandoron where appellant and his companions
killed in cold blood Trompeta's companions as well as these persons who were
brought there earlier. Among the twenty-five persons killed on that occasion, were
Andres Tayo, Tomas Trompeta, Rufo Tolato, Roque Teologo, Jose Taucon and Matias
Tiranea.

Count No. 8. The information equally recites:

8. That on or about August 12, 1943, in the municipality of Leon, Iloilo,

Philippines, and within the jurisdiction of this Court, the above-named accused,
Pedro T. Villanueva, with intent to adhere as he did adhere to the enemy, and with
treasonable intent to give as he did give said enemy aid and comfort, in his
capacity as agent, informer and spy of the Detective Force, Imperial Japanese Army;
and in company with other Filipino spies and Japanese soldiers, did then and there
wilfully, unlawfully, feloniously and treasonably arrest Cosme Calacasan, Nazario
Calimutan, Alberto Caborique, Nazario Calacasan, Marcos Sobrevega, Jose Canillas,
Aurelio Calacasan, Graciano (LNU), Juan (LNU), and three others, names unknown, on
the charge that the persons aforesaid were guerrilla soldiers or guerrilla
sympathizers; that thereafter these persons were taken to barrio Taal, municipality
of San Miguel, where the accused and his companions set fire to and burned several
houses in the aforesaid barrio; and later to barrio Baguingin, municipality of
Leon, where the above-named accused and his companions investigated, maltreated and
tortured them; that the above-named accused further adhering to the enemy did then
and there, wilfully, unlawfully, feloniously and treasonably, and with evident
premeditation and treachery, bayonetted to death Cosme Calacasan, while tied to a
tree with hands tied behind his back; while Nazario Calimutan was bayonetted and
killed in the same manner by Jesus Astrologo, Filipino co-spy of the herein
accused; while Graciano (LNU) and Juan (LNU) and two others (names unknown) were
bayonetted to death by the Filipino and Japanese companions of the accused; that
after the killing of the aforesaid persons, the above-named accused and his
companions did gather the corpses of their victims in the house of Juan Caya and
thereafter did set fire to and burn that house the dead bodies inside.

Aurelio Calacasan and Jose Canillas, corroborating each other, testified that at
about eight o'clock in the morning of August 12, 1943, while Aurelio Calacasan,
Cosme Calacasan, Anazario Calimutan, Alberto Caborique, Nazario Calacasan, Marcos
Sobrevieja and Jose Canillas and several others were in the barrio of Anonang,
Leon, Iloilo, they were arrested by Japanese soldiers and taken to the barrio of
Taal, of the same municipality, where they saw appellant and his companions. After
setting afire the houses in said barrio, appellant and his companions brought the
prisoners to barrio Agboy, of the same municipality, where they were investigated
regarding their guerilla activities or connections; that during the investigations,
appellant stabbed to death Cosme Calacasan who was a member of the Bolo Battalion,
an auxiliary unit of the guerrillas; that after several prisoners were killed,
their corpses were gathered and placed in a house which was set on fire.

Count No. 9. Concerning this Count, the amended information recites:

9. That on or about August 12, 1943, in the municipality of Leon, Iloilo,

Philippines, and within the jurisdiction of this Court, the above-named accused,
Pedro T. Villanueva, with intent to adhere as he did adhere to the enemy and with
treasonable intent to give as he did give said enemy aid and comfort, in his
capacity as agent, informer, spy of the Detective Force, Imperial Japanese Army,
and in company with other Filipino spies and Japanese soldiers, did then and there,
wilfully, unlawfully, feloniously and treasonably conduct and carry out a raid
against and mass arrest of persons suspected as guerrilla soldiers and
sympathizers, as a consequence of which, about eighty persons, male and female,
both young and old were arrested and gathered in a schoolhouse and chapel in the
barrio of Buenavista, and thereat investigated, maltreated and tortured by the
herein accused and his companions; that subsequently about thirty persons including
women and children were taken to the house of Aquilino Sales, where about fourteen
persons were bayonetted and killed by Japanese soldiers, namely, Julia Cabilitasan,
Mercedes Calopez, Andrea Cahipo, Eustaquia Cabilinga, Isabel Canag, Rosalia
Calopez, Luz Caldito, Estelita Camorahan, Roman Cabilinga, Tomas Canag, Luis
Cabalfin, Juan Cabalfin, Macario Cabilitasan and Aurelio Caldito; while Paulina
Cantara, Alejandro Calsona and Bienvenido Cabankalan received and sustained bayonet
wounds but survived and were able to escape after the house of aforesaid Aquilino
Sales was set on fire and burned by said patrol of Filipino spies and Japanese
soldiers.

Aquilina Cabilitasan, Bienvenido Cabankalan, Alejandro Calsena and Perpetua Canag,

who testified for the prosecution, corroborating one another, stated that at about
eight o'clock in the morning of August 12, 1943, several residents of barrio,
Buenavista, Leon, Iloilo, were arrested by the appellant, who was armed with
revolver and bayonet, and his companions consisting of Filipinos and Japanese
soldiers; that said barrio residents were brought to the barrio schoolhouse where
they were investigated. During the investigation, Julia Cabilitasan was singled out
by the appellant who tied her hands behind her back and brought her under a
"doldol" (kapok) tree, near a chapel, where she was stripped of all her clothings
until she was naked. Appellant investigated her regarding the whereabouts of her
husband who was a USAFFE soldier. Appellant, after severely beating Julia
Cabilitasan, brought her to the house of Aquilino Sales where there were other
Filipino prisoners. Shortly thereafter, appellant and his companions started the
massacre of the prisoners. Appellant stabbed Julia Cabilitasan three times with a
bayonet. In that massacre, fourteen persons including women and children were
killed. Among those killed were Julia Cabilitasan, Macario Cabilitasan, Roman
Cabelenga, Andrea Cahipos and Julia Calpit. Later, said house was set on fire.

Count No. 10. Lastly, the amended information regarding this Count, recites:

10. That on or about March 18, 1944, in the municipalities of Guimbal and Tubu�gan,
Iloilo, Philippines, and within the jurisdiction of this Court, the above-named
accused, Pedro T. Villanueva, with intent to adhere as he did adhere to the enemy,
and with treasonable intent to give as he did give said enemy aid and comfort, in
his capacity as agent, informer and spy of the Detective Force, Imperial Japanese
Army, and in company with other Filipino spies, Bureau of Constabulary and Japanese
soldiers, did then and there wilfully, unlawfully, feloniously and treasonably
arrest Rosalio Tambirao, Joaquin Escorido, Carolina Escorido, Romero Escorido,
Edgardo Escorido, Editha Escorido, Sofia Tambiras, Raul Tabanda, Nestor Tabanda,
Elena Gierza, Natividad Gersalino, Jovita Gersalino, Ernesto Tambirao, Ruly
Tambirao, Jesusa Jimenez, Eustaquio Tortugalete, Paz Tabora, Basilisa Taborete,
Gloria Escorido, Ciriaco Gierza and several others with unknown names on the charge
that the persons aforesaid were either guerrilla soldiers, sympathizers and
supporters; that the aforesaid persons were then taken to the house of Jacinto
Toborete, where the herein accused, did then and their investigate, maltreat, or
otherwise torture Basilisa Taborete, Gloria Escorido and Eustaquia Tortugalete in
an effort to make them confess as to their connection with the guerrilla movement
and the whereabouts of the guerrilla soldiers; that subsequently the herein accused
further adhering to the enemy did deliver to a Japanese executioner Juan Gelario,
Felipe Tanato, David Garnica, Juana Tabacoran, Jesusa Jimenez and Luz Tabiana, who
were all executed and kill one after another; that the killing of Juana Tabacoran,
Jesusa Jimenez and Luz Tabiana took place shortly after they were abused and raped
by the Japanese and BC soldiers in the house of Jacinto Taborete; that while this
was going on, Jovita Gersalino and Lourdes Tabanda were taken to another house by
the herein accused, Filemon Palacios, Jr., Vicente Tolosa and a Japanese soldier,
where they were abused and raped; that subsequently the persons gathered were asked
who of them were relatives of Tranquilino Geonanga for they would be released and
when an old woman answered that they were all relatives of Tranquilino Geonanga,
the Japanese soldiers at once started to inflict and deliver bayonet thrusts on the
persons gathered and as a consequence of which about thirty of them were killed and
several were wounded: that subsequently, the herein accused and his companions
proceeded to barrio Bulua�gan, where one Saturnino (LNU) was arrested,
investigated, maltreated and tortured by the herein accused and later killed by the
Japanese.

Gloria Escorido, Basilisa Gierza and Ciriaco Gierza, testifying in support of this
Count, and corroborating one another, stated that at about seven o'clock in the
morning of March 16, 1944, while the appellant and several Japanese soldiers were
on a punitive expedition in the barrio of Miadan, Guimbal, Iloilo, they arrested
the barrio residents who fled to the Dalihi creek in Tubongan, Iloilo; that the
barrio residents, who were about fifty persons, were brought to the barrio of
Laguna, Tubongan, Iloilo, were they were investigated and maltreated; that during
the investigation, appellant tied the feet of Gloria Escorido, hanged her with her
head downward and beat her with the branch of an "aguho" tree; that appellant
likewise brought to the house of Jacinto Batorete three females, namely, Luz
Tabiana, Jesusa Jimenez and Juana Tabiana where the said girls were abused by the
appellant and his companions; that appellant also bayoneted to death Sofia Tambirao
for the simple reason that she was the cousin of Tranquilino Geonanga, an officer
of the guerrillas; that appellant and his companions massacred on that occasion
around thirty persons, among whom were Jovita Gersalino, Carolina Escorido, Romero
Escorido, Sofia Tambirao, and Edgardo Escorido.

We have, therefore, that appellant not only participated actively in the punitive
raids made by the Japanese soldiers and in arresting and killing Filipino
Guerrillas, but personally manhandled Gloria Escorido, a girl barely 16 years of
age at the time (Count 10), and killed in cold blood Cosme Calacasan by bayoneting
him three times (Count 8), Julia Cabilitasan by likewise bayoneting her three
times, with the added ignominy of stripping her stark naked moments before killing
her (Count 9), and Sofia Tambirao (Count 10.) These specific overt acts of
appellant as testified to by eyewitnesses who have survived the harrowing
massacres, speak eloquently that his adherence to the enemy in giving it aid and
comfort, was accompanied by cruelty and ruthlessness, in wanton disregard of the
feelings and decency of his fellow citizens.

The foregoing facts were not impugned by any evidence for appellant, his defense in
the lower court merely consisting of (1) his denial of the overt acts imputed upon
him, and (2) that if he ever served in the detective force of the Japanese Army
since January 1st, 1944, it was because he was made to accept the position under
duress, and that his acceptance of such position was for the good of the people, he
having saved many Filipino lives from Japanese atrocities.

We have carefully analyzed the evidence on record because of the seriousness of the
charges against appellant, and we find that the evidence for the prosecution is
overwhelming, such that appellant's counsel de officio instead of filing a brief,
made a manifestation dated November 29, 1955, stating that "after a thorough study
of the records of the case, he finds nothing therein sufficient to disturb the
decisions of the People's Court and of the Court of First Instance of Iloilo
imposing capital punishment on the accused." Said counsel further stated that "The
accused's only evidence which directly attacked the government's proofs was his
denial of what several witnesses testified to." This manifestation was considered
by this Tribunal as appellant's brief, in its resolution of December 6, 1955.
Certainly mere denial by appellant cannot prevail upon the positive assertion of
the witnesses for the government establishing incriminating facts, for it is a well
settled rule of evidence that as between positive and negative testimony, the
former deserves more weight and credit.

Anent the defense of duress allegedly exerted by the Japanese upon appellant for
which he had to serve in the detective force of the Japanese Army, we agree with
the Solicitor General that "except the lone and self-serving testimony of the
appellant that he was coerced to cooperate with and serve the Japanese soldiers,
there is not an iota of proof that he was in fact compelled or coerced by the
Japanese. Much less is there any evidence showing that the alleged compulsion or
coercion was grave and imminent."

Duress, force, fear or intimidation to be available as a defense, must be present,

imminent and impending, and of such a nature as to induce a well-grounded
apprehension of death or serious bodily harm if the act is not done. A threat of
future injury is not enough. (16 C. J., 91).

To be available as a defense, the fear must be well-founded, an immediate and

actual danger of death or great bodily harm must be present and the compulsion must
be of such a character as to leave no opportunity to accused for escape or self-
defense in equal combat. It would be a most dangerous rule if a defendant could
shield himself from prosecution for crime by merely setting up a fear from or
because of a threat of a third person. (Wharton's Criminal Law, Vol. 1, Sec. 384).

Fear as an excuse for crime has never been received by the law. No man, from fear
or circumstances to himself has the right to make himself a party to committing
mischief upon mankind (Lord Denman in Reg. vs. Tyler, 8 Car. and P. (Eng.) 616, vs.
Duddely, L. R. 14, Q. B. Div. (Eng.) 273).

When the case was remanded to the Court of First Instance of Iloilo for the
retaking of lost testimonies, appellant attempted to give the case a new twist by
filing a motion to quash on the ground that the pardon extended him has already
extinguished his criminal liability and that his conviction by the People's Court
had placed him in jeopardy. This motion was denied, but during the trial appellant
was allowed to present documentary evidence relative to the clemency extended him,
consisting of Exhibit 1 which is a certified copy of his conditional pardon;
Exhibit 2, a certified copy of the letter of the Legal Assistant of the President
dated June 30, 1953, addressed to the Director of Prisons; Exhibit 3 the motion to
withdraw appeal filed before the Court of First Instance of Iloilo; and Exhibit 4,
the Tribunal's resolution of September 21, 1953, granting said withdrawal. In
addition, appellant presented an Exhibit 5 the decision of the People's Court in
the case of People vs. Jesus Astrologo, dated December 11, 1947, sentencing him to
death; Exhibit 6 the conditional pardon extended to said accused dated June 27,
1953; and Exhibit 7 the letter of the Legal Assistant of the Office of the
President to the Director of Prisons, to show that said Jesus Astrologo who is now
enjoying his freedom by reason of the pardon extended, has been allowed by this
Tribunal to withdraw his appeal pending review of his death sentence.

Regarding the alleged pardon granted to appellant, we reiterate our ruling in our
resolution of October 19, 1953, hereinbefore quoted. As to appellant's contention
respecting the applicability of the Astrologo case, we find it untenable, for the
Astrologo case (88 Phil., 423) was elevated to us for review on March 4, 1948; he
filed his brief on October 21, 1949, and we rendered judgment on March 30, 1951,
commuting the sentence to life imprisonment for lack of sufficient vote. The pardon
granted him on June 27, 1953, or more than two years after the final judgment, was
therefore in order, and cannot be invoked by herein appellant as a precedent.

As to the payment of indemnity in the amount of P2,000 to the respective heirs of

each of the victims of appellant, the Solicitor-General recommends that this amount
imposed by the lower court be increased to P6,000. We find this recommendation to
be correct, as it is in consonance with the repeated decisions of this Tribunal on
the matter; hence the decision of the lower court should be amended accordingly.
Furthermore, although the facts of the case verily justify the imposition of death
penalty, yet, for lack of sufficient votes said penalty should be, as it is hereby
commuted to reclusion perpetua, in accordance with law.

Wherefore, and with the modifications above indicated, the decision appealed from
is hereby affirmed, with costs.

Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion,
Reyes, J. B. L. and Endencia, JJ., concur.

=======================

G.R. No. L-2189 November 3, 1906

THE UNITED STATES, plaintiff-appellee,

vs.
FRANCISCO BAUTISTA, ET AL., defendants-appellants.
Aguedo Velarde and Pineda and Escueta, for appellants.
Office of the Solicitor-General Araneta, for appellee.

CARSON, J.:

The appellants in this case was convicted in the Court of First Instance of Manila
of the crime of conspiracy to overthrow, put down, and destroy by force the
Government of the United States in the Philippine Islands and the Government of the
Philippine Islands, as defined and penalized in section 4 of Act No. 292 of the
Philippine Commission.

The appellant Francisco Bautista was sentenced to four years' imprisonment, with
hard labor, and $3,000 fine, and Aniceto de Guzman and Tomas Puzon, and each of
them, to three years' imprisonment, with hard labor, and a fine of $2,000, and all
and each of the said appellants to pay their proportionate share of the costs of
the trial and to undergo subsidiary imprisonment in the event of insolvency and
failure to pay their respective fines.

The evidence of record conclusively establishes that during the latter part of the
year 1903 a junta was organized and a conspiracy entered into by a number of
Filipinos, resident in the city of Hongkong, for the purpose of overthrowing the
Government of the United States in the Philippine Islands by force of arms and
establishing in its stead a government to be known as the Republica Universal
Democratica Filipina; that one Prim Ruiz was recognized as the titular head of this
conspiracy and one Artemio Ricarte as chief of the military forces to the organized
in the Philippines in the furtherance of the plans of the conspirators; that toward
the end of December, 1903 the said Ricarte came to Manila from Hongkong in hidding
on board the steamship Yuensang; that after his arrival in the Philippines he held
a number of meetings in the city of Manila and the adjoining provinces whereat was
perfected the above-mentioned conspiracy hatched in Hongkong that at these meetings
new members were taken into the conspiracy and plans made for the enlistment of an
army of revolution and the raising of money by national and private loans to carry
on the campaign; that to this end bonds were issued and commissions as officers in
the revolutionary army were granted to a number of conspirators, empowering the
officers thus appointed to raise troops and take command thereof; and that the
conspirators did in fact take the field and offered armed resistance to the
constituted authorities in the Philippines, only failing in their design of
overthrowing the Government because of their failure to combat successfully with
the officers of the law who were sent against them and of the failure of the people
to rise en masse in response to their propaganda.

It further appears from the evidence that the appellant Francisco Bautista, a
resident of the city of Manila, was an intimate friend of the said Ricarte; that
Ricarte wrote and notified Bautista of his coming to Manila and that, to aid him in
his journey, Bautista forwarded to him secretly 200 pesos; that after the arrival
of Ricarte, Bautista was present, taking part in several of the above-mentioned
meetings whereat the plans of the conspirators were discussed and perfected, and
that at one of these meetings Bautista, in answer to a question of Ricarte, assured
him that the necessary preparations had been made and that he "held the people in
readiness."

It further appears that the appellant, Tomas Puzon, united with the conspirators
through the agency of one Jose R. Mu�oz, who was proven to have been a prime leader
of the movement, in the intimate confidence of Ricarte, and by him authorized to
distribute bonds and nominate and appoint certain officials, including a brigadier-
general of the signal corps of the proposed revolutionary forces; that at the time
when the conspiracy was being brought to a head in the city of Manila, Puzon held
several conferences with the said Mu�oz whereat plans were made for the coming
insurrection; that at one of these conferences Mu�oz offered Puzon a commission as
brigadier-general of the signal corps and undertook to do his part in organizing
the troops; and that at a later conference he assured the said Mu�oz that he had
things in readiness, meaning thereby that he had duly organized in accordance with
the terms of his commission.

Puzon at the trial declared that he had never united himself with the conspirators;
that he had accepted the appointment as brigadier-general of the signal corps of
the revolutionary forces with no intention of ever taking any further action in the
matter, and merely because he did not wish to vex his friend Mu�oz by refusing to
do so, and that when Mu�oz offered him the appointment as brigadier-general he did
so in "a joking tone," and that he, Puzon, did not know that Ricarte was in Manila
organizing the conspiracy at that time.

These statements, however (except in so far as they corroborate the testimony of

Mu�oz as to the fact that he had several interviews with Puzon at which plans were
entered into for the advancement of the cause of the conspirators), can not be
accepted as true in the light of a written statement signed by Puzon himself at the
time when he was first arrested, part of which is as follows:

Q. What is your name and what is your age, residence, and occupation? � A. My name
is Tomas Puzon; born in Binondo in the Province of Manila; 37 years of age;
married; by profession a teacher of primary and secondary schools, and residing in
Calle Concepcion, No. 195, district of Quiapo.

Q. Do you know Artemio Ricarte? � A. Personally I do not know him, but by name,
yes.1�wphil.net

Q. Did you have any information that Ricarte was in these Islands and with what
object he came here? And if you know it to be true, through whom did you get such
information? � A. In the first place I had notice of his coming to the Islands as
well as his object by reading the newspapers of Manila, and secondly because J. R.
Mu�oz told me the same on one occasion when I was in his house to visit him.

Q. Did you acquire this information through any other person? � A. No, sir; I have
no more information than that which I have mentioned.

Q. Are you a part of his new revolution presided over by Ricarte? � A. Yes, sir.

Q. What is the employment (empleo) which you have in this organization, and who is
it who invited you to join it? � A. J. R. Mu�oz, who is general of division of this
new organization, spoke to me with much instance, asking me to accept employment as
brigadier-general, chief of signal corps, to which I, on account of his request and
in view of the fact that the said Mu�oz is a friend of mine from my youth, acceded;
nevertheless I have organized absolutely nothing in respect to this matter.

Q. Did you accept the employment and did they give you any commission for it? � A.
Yes, sir; I accepted said employment and although they gave me an order to organize
in my brigade I did not do it, because I had neither the confidence nor the will.

Q. If you didn't have faith in the said authorization nor the will to carry out
what was intrusted to you, why did you accept employment as general of the brigade?
� A. I accepted it on account of friendship and not to vex a friend, but I never
have the intention of fulfilling the obligations.

Puzon, when on the stand in his own behalf, did not deny that he made this
statement, but he attempted to explain it away by saying that when he made it he
was so exited that he did not know just what he was saying. He does not allege that
improper means were taken to procure the confession, and it was proven at the trial
that it was freely and voluntarily made and not the result of violence,
intimidation, threat, menace, or promise of reward or leniency. The accused appears
to be an intelligent man and was for eighteen years a school-teacher and later a
telegraph operator under the Spanish Government, and during the insurrection he
held a commission as an officer in the signal corps of the revolutionary army. His
confession is clear and intelligible and in no way supports his pretense that he
was so excited as not to know what he was saying when he made it, and its truth and
accuracy in so far it inculpates him is sustained by other evidence of record in
this case.

It is contended that the acceptance or possession of an appointment as an officer

of the military forces of the conspiracy should not be considered as evidence
against him in the light of the decisions of this court in the cases of the United
States vs. Antonio de los Reyes 1 (2 Off. Gaz., 364), United States vs. Silverio
Nu�ez et al.2 (3 Off. Gaz., 408), the United States vs. Eusebio de la Serna et al.
3 (3 Off. Gaz., 528), and United States vs. Bernardo Manalo et al. 4 (4 Off. Gaz.,
570). But the case at bar is to be distinguished from these and like cases by the
fact that the record clearly disclose that the accused actually and voluntarily
accepted the apppointment in question and in doing so assumed all the obligations
implied by such acceptance, and that the charge in this case is that of conspiracy,
and the fact that the accused accepted the appointment is taken into consideration
merely as evidence of his criminal relations with the conspirators. In the first of
these cases � the United States vs. De los Reyes � the accused was charged with
treason, and the court found that the mere acceptance of a commission by the
defendant, nothing else being done either by himself or by his companions, was not
an "overt act" of treason within the meaning of the law, but the court further
expressly held that �

That state of affairs disclosed body of evidence, . . . the playing of the game of
government like children, the secretaries, colonels, and captains, the pictures of
flags and seals and commission, all on proper, for the purpose of duping and
misleading the ignorant and the visionary . . . should not be dignified by the name
of treason.

In the second case � the United States vs. Nu�ez et al. -- wherein the accused were
charged with brigandage, the court held that, aside from the possession of
commissions in an insurgent band, there was no evidence to show that it they had
committed the crime and, "moreover, that it appeared that they had never united
with any party of brigands and never had been in any way connected with such
parties unless the physical possession of these appointments proved such relation,"
and that it appeared that each one of the defendants "were separately approached at
different times by armed men while working in the field and were virtually
compelled to accept the commissions."

In the case of the United States vs. de la Serna et al. it was contended that de la
Serna had confessed that "he was one of the members of the pulajanes, with a
commission as colonel," but the court was of opinion that the evidence did not
sustain a finding that such confession had in fact been made, hence the doctrine
laid down in that decision, "that the mere possession of such an appointment, when
it is not shown that the possessor executed some external act by the virtue of the
same, does not constitute sufficient proof of the guilt of the defendant," applies
only the case of Enrique Camonas, against whom the only evidence of record was "the
fact that a so-called appointment of sergeant was found at his house."

In the case of the United States vs. Bernardo Manalo et al. there was testimony
that four appointments of officials in a revolutionary army were found in a trunk
in the house of one Valentin Colorado, and the court in said case reaffirmed the
doctrine that "the mere possession of the documents of this kind is not sufficient
to convict," and held, furthermore, that there was "evidence in the case that at
the time these papers were received by the appellant, Valentin Colorado, he went to
one of the assistant councilmen of the barrio in which lived, a witness for the
Government, showed him the envelope, and stated to him he had received these
papers; that he didn't know what they were and requested this councilman to open
them. The coucilman did not wish to do that but took the envelope and sent it to
the councilman Jose Millora. We are satisfied that this envelope contained the
appointments in question and that the appellant did not act under the appointment
but immediately reported the receipt of them to the authorities."

It is quite conceivable that a group of conspirators might appoint a person in no

wise connected with them to some high office in the conspiracy, in the hope that
such person would afterwards accept the commission and thus unite himself with
them, and it is even possible that such an appointment might be forwarded in the
mail or otherwise, and thus come into the possession of the person thus nominated,
and that such appointment might be found in his possession, and, notwithstanding
all this, the person in whose possession the appointment was found might be
entirely innocent of all intention to join the conspiracy, never having authorized
the conspirators to use his name in this manner nor to send such a commission to
him. Indeed, cases are not unknown in the annals of criminal prosecutions wherein
it has been proven that such appointments have been concealed in the baggage or
among the papers of the accused persons, so that when later discovered by the
officers of the law they might be used as evidence against the accused. But where a
genuine conspiracy is shown to have existed as in this case, and it is proven that
the accused voluntarily accepted an appointment as an officer in that conspiracy,
we think that this fact may properly be taken into consideration as evidence of his
relations with the conspirators.

Counsel for appellants contend that the constitutional provision requiring the
testimony of at least two witnesses to the same overt act, or confession in open
court, to support a conviction for the crime of treason should be applied in this
case, but this court has always held, in conformance with the decisions of the
Federal courts of the United States, that the crime of conspiring to commit treason
is a separate and distinct offense from the crime of treason, and that this
constitutional provision is not applicable in such cases. (In re Bollman, 4 Cranch,
74; U. S. vs. Mitchell, 2 Dall., 348.)

The evidence of record does not sustain the conviction of Aniceto de Guzman. The
finding of his guilt rest substantially upon his acceptance of a number of bonds
from one of the conspirators, such bonds having been prepared by the conspirators
for the purpose of raising funds for carrying out the plans of the conspiracy, but
it does not affirmatively appear that he knew anything of the existence of the
conspiracy or that, when he received the bonds wrapped in a bundle, he knew what
the contents of the bundle was, nor that ever, on any occasion, assumed any
obligation with respect to these bonds. He, himself, states that when he opened the
bundle and discovered the nature of the contents he destroyed them with fire, and
that he never had any dealings with the conspirators in relation to the conspiracy
or the object for which it was organized.

We are of opinion, therefore, that the judgment and sentence before us, in so far
as it affects the said Aniceto de Guzman, should be reversed, with his
proportionate share of the costs of both instances de oficio, and that the said
Anecito de Guzman should be acquitted of the crime with which he is charged and set
a liberty forthwith, and that the judgment and sentence of the trial court, in so
far as it applies to Francisco Bautista and Tomas Puzon, should be, and is hereby,
affirmed, except so far as it imposes subsidiary imprisonment in the event of
insolvency and failure to pay their respective fines, and, there being no authority
in law of such provision, so much of the sentence as undertakes to impose
subsidiary imprisonment is hereby reversed.
After ten days let judgment be entered in accordance herewith, when the record will
be returned to the trial court for execution. So ordered.

Arellano, C.J., Torres, Johnson and Tracey, JJ., concur.

Mapa, and Willard, JJ., concur as to the penalty imposed upon Bautista and dissent
as to that imposed upon Puzon.

====================

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROMEO SAAVEDRA y PADUA, defendant-appellant.

The Solicitor General for plaintiff-appellee.

Amadeo D. Seno for defendant-appellant.

SARMIENTO, J.:

On June 23, 1978, the then Circuit Criminal Court sitting in Cebu City rendered a
decision 1 sentencing Romeo Saavedra y Padua, born on February 24, 1958 in Cebu
City, to the supreme penalty of death for the murder of Ernesto Pulmares. The
decision is before us on automatic review,

The facts established by the evidence on record are as follows:

On January 14, 1977, the deceased, a foreman 2 at Cummins Diesel Philippines,

Mandaue City branch, joined Alfredo Pavon, Cummins Diesel quality control manager,
3 at the guest house of the company compound at San Jose de la Monta�a in Mabolo,
Cebu City, 4 where Pavon dropped two secretaries. 5 According to Pavon, it was
"after office hours" 6 when he met the deceased. Thereupon, he asked the deceased
to accompany him to Kan-Irag hotel, a local inn located at uptown Cebu City, 7
where he (Pavon) had instructed another employee, Eleazar Asuncion, to make a long
distance telephone call regarding a company matter. 8

As he prepared to drive to the hotel, he noticed a red taxi cab parked at the
Cummins Diesel guest house gate. 9 Three persons � Romeo Saavedra, the herein
accused-appellant, Henry Fernandez, and Reynaldo Quilala � occupied the cab,
although Pavon neither knew them nor noticed that they were on board. 10

It was around 9:00 p.m. when they reached the hotel. 11 After parking his car,
Pavon proceeded to the lobby where Pulmares followed him. Upon entering the hotel,
he heard a commotion behind him. 12 He turned and saw two men running toward a
waiting taxi cab outside. 13 According to him, one "looked at me and smiled and
made a thumbs-up sign." 14 He later Identified the first as Henry Fernandez and the
one who gave the thumbs-up sign as Romeo Saavedra. 15

Subsequently, he saw Ernesto Pulmares holding on to his abdomen. 16 "[Mlay tama

ako, 17 Pulmares uttered. He had just been stabbed.

Pavon rushed Pulmares to the Chong Hua Hospital in Cebu City, 18 It was about 9:15
p.m. when they reached the hospital. 19

Dr. Jesus Lim, company physician at Cummins Diesel, was shortly sununoned to attend
to Pulmares. 20 He forthwith prepared him for operation. 21
From the record of operation, 22 Pulmares suffered a stab wound in the right
"hypochondriac region" 23 and an inch-long laceration at the left "distal forearm."
24 The victim survived the operation 25 but developed uremia later. 26 He was then
sent to the Cebu Doctor's Hospital where he was placed in peretonial dialysis. 27
But that notwithstanding, he died. He was pronounced dead on January 18, 1977. 28

Eleazar Asuncion, a Cummins manager, corroborated substantially Pavon's testimony.

He testified that he met the deceasW at the Kan-Irag Hotel, but when he saw him he
was clutching at his abdomen, wounded. 29 Like Pavon, he heard him declare "I'm
wounded, 30 after which they rushed him to the Chong Hua Hospital. 31

Elenita Diores, a housemaid cum cook at the Cummins Diesel guest house, 32 claimed
on the other hand that Reynaldo Quilala and Romeo Saavedra had been shadowing the
guest house premises as early at 5:00 p. m. on January 14, 1977. 33 She testified
that at about the time Pavon and Pulmares arrived at 9:00 p.m., a red taxi cab had
been parked at the gate. 34 She pointed to Quilala, Saavedra, and an unnamed person
as the occupants of the cab. 35 And when Pavon and Pulmares left, the three
followed them. 36

She further testified that while at the guest house, Saavedra and his unnamed
companion entered the premises and inquired for "Ernie," 37 whom she Identified as
the deceased Emesto Pulmares. 38 She admitted that she did not know, at that time,
the companion of Saavedra and Quilala, but claimed having remembered his face. 39
She later pointed to Henry Fernandez as the third man. 40

The prosecution presented Exhibits "C," 41 "C-1," 42 and "G," 43 consisting of an

alleged communication sent by Romeo Saavedra to Henry Fernandez advising him not to
"make any confession" 44 and assuring him that "we win not also mention you." 45

The prosecution likewise presented Exhibits "D," 46 D-1, 47 and "E" to "E-4," 48
Fernandez!s alleged extra-judicial confession, as wen as Exhibits "H" 49 and "H-1,"
50 an alleged statement given by Saavedra admitting being in Fernandez's company on
the night of the tragedy, but claiming that they were there to "face Emesto whom he
[Fernandez] will challenge to a fist fight." 51

On August 12, 1977, Remigio Arzadon, District State Prosecutor, filed an

information 52 to wit:

xxx xxx xxx

The undersigned, District State Prosecutor, accuses Reynaldo Quilala y Fernandez,

Romeo Saavedra y Padua and Henry Fernandez y Dakay of the crime of Murder,
conunitted as follows:

That on or about the 14th day of January, 1977, in the City of Cebu, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, armed
with a deadly sharp pointed weapon known as Samurai, taking advantage of nighttime
and superior strength, with known premeditation and treachery, and with the use of
a motor vehicle, conspiring, confederating and mutually helping one another, did
then and there willfully, unlawfully, feloniously, and suddenly attack, assault and
stab Emesto Pulmares y Pinga, inflicting upon him a stab wound at his abdomen as a
consequence thereof, the said Emesto Pulmarbs died three days thereafter.

That the commisqion of the offense was attended by the following aggravating
circumstance, first that it was committed by means of treachery and/or evident
premeditation; wond, the accused took advantage of nighttime to commit the offense;
third, that the accused took advantage of their superior strength; and fourth, that
a motor vehicle was used by the accused to accomplish their murderous act.
CONTRARY TO LAW. 53

xxx xxx xxx

The three accused were subsequently arrested and held without bail. They were
arraigned on August 18, 1977. 54 Reynaldo Quilala and Romeo Saavedra entered
separate pleas of "not guilty. 55 Henry Fernandez, on the other hand, pleaded
"guilty." 56

Unknown to the court, however, the three were released by the Philippine
Constabulary. 57 The court thereafter ordered their arrest and recommitment, but
only Saavedra and Fernandez were apprehended. Quilala has remained at large since
then. 58

On November 12, 1977, the trial court rendered a separate decision against
Fernandez, 59 the dispositive portion of which reads as follows:

xxx xxx xxx

WHEREFORE, the Court finds the accused Henry Fernandez y Dakay GUILTY beyond
reasonable doubt of the crime of Murder, qualified by treachery, as defined and
penalized under Article 248 of the Revise Penal Code, as principal by direct
participation, upon his plea of guilty made freely, voluntarily and spontaneously
in open court with the assistance of counsel, and favorably appreciating the
mitigating circumstances of intoxication, plea of guilty and voluntary surrender,
two of which are offset by the aggravating circumstances of use of a motor vehicle
and known premeditation andafter applying the Indeterminate Sentence Law, finds the
proper imposable penalty to be TEN (10) YEARS and ONE (1) day of prision mayor as
the minimum, to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of reclusion
temporal as the maximum, to indemnify the heirs of the deceased Ernesto Pulmares y
Pinga in the amount of P12,000.00, plus P18,000.00 for moral and exemplary damages,
and to pay the costs of this suit.

However, in view of the fact that the accused is a youthful offender under the
provisions of Presidential Decree No. 603, the Court suspends the sentence upon him
and orders his commitment temporarily to the care and custody of Inspector Antonio
Paguia of the PC-CIS, Ill PC Jose, until further orders and until he shall have
reached the age of majority or for such shorter period as the Court may determine
and deem proper under the circumstances, subject to the visitation, control and
supervision of the Department of Social Services and Development Region No. VI I,
Cebu City, which office is required to submit quarterly reports of his progress,
conduct and/or behavior while under commitment, until otherwise ordered by this
Court.

SO ORDERED. 60

Fernandez did not appeal, and the decision has since become final. That
notwithstanding, Fernandez took the stand for the prosecution in the trial against
Saavedra.

Fernandez, a pier worker at Trans Asia Shipping, 61 testified that on January. 14,
1977, Saavedra and Quilala went to see him in his house. 62 According to him,
Saavedra was an old friend, 63 while that was the first time that he saw Quilala.
64 Saavedra invited him for a drink, which he initially declined since he did not
have money. 65 Saavedra, however, offered to pay for the drinks. 66 They then
repaired to the Sable store, located at Magsaysay Street, Cebu City. 67 Saavedra
and Quilala, at that time, had already a few drinks. 68
He further admitted that after drinking (he claimed to have consumed 14 bottles of
beer), 69 they proceeded to San Jose de la Montana aboard a red taxi cab. 70 It was
the first time he went there, 71 and he did not know why they were going there. 72

Quilala instructed him to enter the Cummins Diesel guest house compound, 73 which
he did. Later, Pavon's red car arrived. Pavon dropped two women, after which he
drove to KanIrag Hotel 74 where they tailed him 75

While on their way, Quilala handed him a four-inch samurai, the murder weapon. 76
He did not inquire what it was for, and was only told, "you just hold it there." 77

Upon reaching Kan-Irag hotel, Pavon and the victim alighted. The tandem of
Fernandez and Saavedra likewise alighted one after the other. 78 Quilala allegedly
instructed Fernandez: "Go ahead Rey that's my enemy, you stab him." 79 Fernandez
was supposed to have expressed initial hesitation ("No Bay, I will not do it, we
will commit sin"), 80 but Quilala threatened him: "Okay, if you will not stab him,
I will shoot you with this Indian pana, Indian target." 81 It was a threat Saavedra
himself allegedly seconded: "[Y]ou just go ahead, Rey, so that you will not meet an
accident." 82

Fernandez thereafter approach Puhnares at the hotel doorway. 83 He lunged the

samurai at him twice, once at the abdomen and again at the midsection. 84 He then
dashed toward the cab outside wherein Quilala was waiting for them. 85 Saavedra
followed him. 86

They headed toward the Cebu City Colleges where they alighted. 87 They boarded a
tartanilla and disembarked at the Pasil Parochial Church. 88 They agreed to drink
again. 89

Fernandez further averred that upon learning that Pulmares died three days later,
he left for Manila where he stayed for about one month. 90 When he returned to Cebu
City, he was apprehended by elements of the Cebu police. 91

He likewise Identified Exhibit "C," the letter in which Saavedra advised him not to
"make any confession." 92

On cross-examination, he added that Saavedra subsequently admitted to him that he

(Saavedra) gesticulated with a "thumbs-up" sign after he (Femandez) had infficted
the fatal wounds upon Pulmares. 93 He likewise stressed that he had not seen
Pulmares before and that he took his life "on orders" 94 of Quilala, who was
allegedly then aiming an Indian pana at him. 95

For his part, the herein accused-appellant, Romeo Saavedra, testified that both
Quilala and Fernandez were old friends. 96 Quilala saw him (Saavedra) in the
afternoon of January 14, 1977 at a basketball court, who asked to be accompanied to
the

Cummins Diesel plant. 97 He met, on the other hand, Fernandez in the same
basketball court in the evening. 98 Both were but chance meetings. 99

Quilala then invited them for a drink at Sable store. 100 After a few drinks,
Saavedra went home for dinner but retumed shortly. 101 Quilala and Fernandez were
then set to leave ("[t]hey are going somewhere") 102 and he went along. 103

They proceeded to San Jose dela Montafla aboard a red taxi cab. 104 It was already
about 9:00 o'clock at night. Quilala instructed both Saavedra and Fernandez to look
for the deceased. 105 Saavedra testified that he did not know the deceased. 106

A red automobile soon arrived, driven by Pavon, 107 beside whom sat the victim. Two
women alighted after which the car proceeded toward Ramos Street. Saavedra averred
that he did not know Pavon. Thereafter, they pursued Pavon's car until Kan-Irag
Hotel. 108 Pavon and the deceased then got off the car and entered the hotel. He
testified that Quilala ordered Fernandez "to go to the deceased and tell him that
Rene [Qtiilala] wants to say something" 109 to him. Quilala likewise ordered him to
accompany Femandez. 110

Saavedra declared that he was about seven meters away from Fernandez at the time of
the fatal stabbing. 111 He then ran back toward the car. 112 He denied that they
had plotted todo away with the victim and insisted that he "happened only [to be]
with them during the drinking." 113 He likewise denied having threatened Fernandez
with bodily harm. He also denied having seen Quilala aiming an Indian pana at
Fernandez at the time of the killing. 114 He denied finally having gestured
"thumbs-up" during or after the stabbing as both Fernandez and Pavon claimed 115

He further stated that after the stabbing, they proceeded to the Cebu Central
Colleges where they hailed a rig on their way home. 116 Quilala and Fernandez
resumed drinking but he went straight home. 117

He admitted that he did not inform the authorities of the incident. He disclosed
that Quilala saw him the following day and threatened to kill him if he squealed.
118 Further, according to him, "he [Quilala] has lots of tough guys." 119 Neither
did he inform his parents nor brothers or sisters for the same reason. 120

And while he knew Quilala, he denied having known that he was a Cummins Diesel
employee, or, inferentially, that he maintained a grudge against the victim. 121 It
seems that the victim had earlier recommended Quilala's dismissal from the firm.
122

On cross-examination, he reiterated that he did not know why they were going to San
Jose de la Monta�a, 123 and that he was just told to go along. 124 He added that he
did not know the victim and, most of all, the purpose for which Quilala wished to
see him. 125

He likewise admitted that Exhibits "G" and "H" were his handwritten statements. 126

The defense thereafter rested, and the case was submitted for decision.

On June 23, 1978, the court rendered judgment 127 against Saavedra, the dispositive
portion of which reads as follows:

xxx xxx xxx

WHEREFORE, the Court finds, after trial on the merits, the accused Romeo Saavedra y
Padua GUILTY beyond reasonable doubt of the crime of Murder, qualified by
treachery, as defined and penalized under Article 248 of the Revised Penal Code, as
co-principal thereof, and there being present and proven the generic aggravating
circumstances of use of a motor vehicle and drunkenness which was intentional
without any mitigating circumstances to offset them, hereby sentences said to
suffer the extreme penalty of DEATH, with the accessory penalties provided by law,
to indemnify jointly and severally with his co-accused, the heirs of the deceased
Emesto Palmares in the amount of P12,000.00 plus P18,000.00 for moral and exemplary
damages, and to pay the costs of this action.

It appearing that accused Reynaldo Quilala y Fernandez is still at-large up to this

date, let alias warrants be issued for his arrest to be coursed through the III
CIS, PC District, Cebu City, the National Bureau of Investigation, Manila, and the
METROCOM, PC-INP, Metro Manila.
SO ORDERED. 128

xxx xxx xxx

Neither the corpus delicti nor the Identity of the kwer is in issue in this case.
There is no doubt that the deceased, Emesto Pulmares, died as a consequence of a
stabbing, a crime to which Henry Fernandez pleaded guilty, and for which he was
tried and accordingly sentenced. It has been our constant and invariable holding
that, unless improvidently made, a plea of guilty is equivalent to a confession of
the charges for which the court may duly pass sentence against the accused. 129
What is in controversy is whether or not the accused-appellant, Romeo Saavedra,
may, based on the evidence, be held liable as a coconspirator in the killing in
question.

While Fernandez and Saavedra both pointed to Reynaldo Quilala as the brains behind
the slay, we are not concerned here with Quialala's guilt or innocence since he has
not been brought within our jurisdiction. Accordingly, our concern is the verdict
alone against Saavedra.

We hold that upon the evidence on record, Romeo Saavedra's complicity has not been
established beyond reasonable doubt.

A conspiracy exists when two or more persons come to an agreement concerning the
commission of a felony and decide to Commit it. 130 Proof of the agreement need not
rest on direct evidence and may be inferred from the conduct of the accused
disclosing a common understanding among them with respect to the conunission of the
offense 131 But hke the offense itself, conspiracy must be shown beyond reasonable
doubt. 132

We find nothing in the records that would satisfactorily established Saavedra's

involvement in the plot, if there was one, to liquidate the victim. As we stated,
it is not necessary that the actual agreement be proven in court, yet, there must
be some proof of it.

The trial court, in deciding against the accused-appellant, pointed to certain acts
he was supposed to have conunitted, acts that are allegedly consistent with a
conspiracy. We quote, in part:

xxx xxx xxx

First of all, accused Saavedra has not explained satisfactorily or convincingly his
companionship and togetherness with his two-accused Quilala and Fernandez that
fateful evening of January 14, 1977. All indications point unerringly and
inescapably to the conclusions that it was he and Quilala who originally hatched
the plan to kill the victim earlier that same afternoon due to Quilala's desire to
avenge his being fired from his employment at Cummins at the instance of the victim
who was his foreman. This conclusion is supported not only by his admission that he
went to collect the latter's salary at around 4:00 o'clock in thp afternoon, but by
the unrebutted testimony of prosecution witness Elenita Diores that she had seen
Saavedra and Quilala at the Cummins guest house in San Jose de la Montafia Street
loitering near the gate around four times earlier that afternoon.

Secondly, while Saavedra claims that it was he who was approached by Quilala and
the latter invited him and Fernandez to a drinking spree, yet there is the
testimony of Fernandez, which the Court finds to be more credible, that Quilala and
Saavedra had jointly invited him. It was also Saavedra who accompanied Fernandez in
alighting from the taxi and looking for the victim at the Cummins guest house
earlier that evening, and was also with Fernandez when they alighted at Kan-Irag
Hotel and Fernandez stabbed the victim.
Thirdly, even after Saavedra saw Fernandez stab the victim, he did not separate
from Fernandez and Quilala. He did not run away to report the incident to any
authority or to his own father who was a policeman of Cebu City. Instead, he still
joined Fernandez and Quill& inside the same getaway vehicle and, after making a
thumbsup gesture which was seen by prosecution witness Alfredo Pavon, went with
them to resume their drinking spree. He also did not tell anyone in his family
about what had happened when he went home that evening and for twelve (12) days
thereafter. Despite his claims or pretensions of innocence, he did not give any
statement to the CIS, PC upon his arrest narrating his version of the incident the
way he described it in Court.

Fourthly, Saavedra not only failed or refused to give a correct version of the
incident to the CIS while under detention but even tried to mislead the
investigators by giving a statement (Exhibit "H") which tried to shift the blame
for the killing on a certain "Jessie," which he said he made upon the instructions
of Quilala. Furthermore, Saavedra admitted that he wrote the letter to Fernandez
(Exhibit "4C") wherein he cautioned the latter not to make any confession about the
killing or to implicate them therein as there was no evidence against all of them,
and promising Fernandez that he will not also be implicated by him and Quilala.

Fifthly, there is on the record the plea of guilty of Fernandez to the crime
charged against him in conspiring with Saavedra and Quilala, as well as his
testimony as a prosecution witness against Saavedra, which all constitute judicial
admissions which are admissible against Saavedra as proof of conspiracy. There is
also the extrajudicial confessional statements of Fernandez (Exhibits "D" and "D-
1," "E " to "E-4 ") which were given voluntarily and dovetail with his judicial
testimony. These statements are admissible, likewise, to show and prove that other
persons participated in the perpetration of the crime charged and proved (People v.
Aquino, 57 SCRA 43). They are also admissible and may be taken into account and
consideration as circumstances in assessing and passing upon the weight and
credibility of the testimony of an accomplice as well as those of the witnesses or
the opposing parties (People v. Domondon, 43 SCRA 486). 133

xxx xxx xxx

We shall take these up ad seriatim.

The fact that the trio of Fernandez, Saavedra, and Quilala had earlier, met,
engaged in a drinking session, and proceeded to the Kan-Irag hotel � the chain of
events prefacing the tragedy-is not enough indication that they had conspired to
kill Puhnares. Conspiracy is more than that. It transcends mere companionship. So
we said in People v. Custodia. 134

xxx xxx xxx

It is well to recall the settled rule that conspiracy presupposes the existence of
a preconceived plan or agreement and in order to establish the existence of such a
circumstance, it is not enough that the persons supposedly engaged or connected
with the same be present when the crime was perpetrated. There must be a logical
relationship between the commission of the crime and the supposed conspirators,
evidencing a clear and more intimate connection between and among the latter, such
as by their overt acts committed in pursuance of a common design ... 135

xxx xxx xxx

Moreover, presence at the scene of the crime, without more, does not imply
conspiracy. That has been our consistent ruling. 136
Saavedra's failure to explain "his companionship and togetherness with his two co-
accused Quilala and Fernandez" 137 is therefore of no moment. Saavedra is not bound
to account for the company he keeps. The burden remains upon the state to
demonstrate the existence of conspiracy arising from that companionship. But more
important, and as a rule, relationship or association alone is not a badge of
conspiracy. 138 To borrow from Custodio, the accused "may have accompanied [the
assassin] only out of sense of good fellowship." 139

The circumstances alone that the accused-appellant had earlier been seen within the
vicinity of San Jose de la Montana Street and may have collected Quilala's salary
earlier on the same day is no proof that he was part of the cabal alleged. The fact
that the accused-appellant had earlier been trailing the deceased or had curried
favors for Quilala does not suggest that he had been in fact out to kill the
deceased pursuant to a conspiracy.

Conspiracy, indeed, presupposes a prior knowledge of the criminal design. The

particular circumstances mentioned by the lower court do not, to us, evince such
advance knowledge.

On the other hand, both Fernandez and Saavedra vehemently denied any intimation of
the tragedy that was about to happen." 140 This does not make Saavedra a part of
the scheme, assuming there was one, to execute the deceased. 141

The reliance of the trial court upon Fernandez's testimony that it was Saavedra,
along with Quilala, who summoned him (Fernandez) for a drinking session and who
acco..rnpanied him to the Cummins Diesel guest house to inquire for the whereabouts
of the victim is not quite well-taken. Fernandez's claims of innocence are to begin
with, impressed with serious doubts. As the actual assassin, he is a polluted
source. And as such, he was obviously trying to minimize as much as possible
further liability, by pinning lone authorship of the offense upon Saavedra and
Quilala.

For the same reason, we cannot rely on Fernandez's claim that Saavedra admitted to
him having signalled "thumbs-up" after the fatal stabbing, or that he (Saavedra)
ordered him (Fernandez) to "go ahead Tsoy so nothing will happen to you," 142 or
"you just go ahead, Rey, so that you wifl not meet an accident," 143 which Saavedra
denied having made.

But even then, these alleged acts and utterances are not necessarily inculpatory as
far as Saavedra is concerned. The fact that Saavedra may have motioned "thumbs up"
is not sufficient an indicium that he was in on the murder plot. It does not
establish the "logical relationship" between such an overt act and Fernandez's
deadly plan referred to in Custodio. Conspiracy, as we said, depends on positive
and convincing proof. It is nota matter of speculation.

Saavedra's alleged warnings ("go ahead Tsoy so nothing will happen to you;" 144
"you just go ahead, Rey, so that you will not meet an accident" 145) are equally
indecisive. For Saavedra may have been in fact voicing a concern for Fernandez's
personal safety.

Indeed, Fernandez could not categorically pinpoint Saavedra as a party to the

alleged conspiracy, thus:

xxx xxx xxx

Q Did Romeo Saavedra utter anything as you were conversing with Quilala,.?

ATTY. MATHEW:
Objection, leading, your Honor.

Q What was Romeo Saavedra doing when Quilala told you to do?

A He said, "you just go ahead, Rey, so that you will not meet an accident." 146

xxx xxx xxx

Q From the Khan Irag Hotel up to the place where you reached Cebu Central College
or CCC, was there any conversation that transpired between you and Quilala and
Saavedra?

A No sir, but upon arriving CCC we disembarked and boarded the tartanilla. 147

Q When you were on board the tartanilla, was there a conversation among you?

A Yes, sir, and quilal said, he will surely die and that time, I was scared. 148

xxx xxx xxx

Q Before you left for Manila, did you have a conversation with Quilala and
Saavedra?

ATTY. MATHEW:

Leading.

COURT:

May answer.

A Not anymore, sir. 149

xxx xxx xxx

Q How did Saavedra participated in inducing you to kill the victim?

A He was the one who said, when we will be at Kanirag you go ahead Tsoy so nothing
will happen to you. 150

xxx xxx xxx

Q How did Quilala come to know you when before that time you did not know each
other?

A Because the two of them were together.

Q And they went to you?

A Yes they fetched me.

Q Who actually fetched you?

A Romeo Saavedra.

Q Did Romeo Saavedra tell you what was the reason why he fetched you?

A No, he just said let's have a drink. 151

xxx xxx xxx

Q When did you come to know that you are going to kill somebody?

A It was during the time when I was aimed at.

Q How did you come to know that you were hired to kin?

A He (referring to Quilala) told me that he has some animosities with that man.

FISCAL:

Q Was that in San Jose dela Montafia or in Kan-irag?

A In Kan-irag already.

Q When Quilala told you that where was Romeo Saavedra?

A Behind.

Q Did you hear anything from Romeo Saavedra by way of comment to the statement
given by Quilala to you?

A He said you go ahead so you will not meet an accident. 152

xxx xxx xxx

FISCAL:

Q Where was Romeo Saavedra when the samurai was given to you?

A He was present.

Q Was there any statement given by Saavedra to you when that samurai was given to
you?

WITNESS � (Fernandez)

A There was nothing.

FISCAL:

Q After you stabbed the victim and you and Saavedra returned to the taxi was there
any statement uttered by Romeo Saavedra?

ATTY. MATHEW:

Leading and improper your Honor.

COURT:

Witness may answer.

WITNESS:

A He said he wiu surely die. 153

xxx xxx xxx

COURT:

Q While drinking at Sable's store and before,going to San Jose dela Montana when
you said that the two were conversing most of the time, did you hear anything in
that conversation which would give you an indication regarding the intention of
Quilala towards that man whom you stabbed at Kan-irag Hotel?

A I heard from them that the two of them have already gone to San Jose dela
Montana.

Q I heard it from whom?

A From the two of them who were talking about it.

Q That was ALL you heard that right before you went to Kan-irag?

A Yes sir.

COURT:

Q After the stabbing in the hotel and you went back to the taxi and you took a
tartanilla to Sable's store to resume drinking was any information related to you
by either Quilala or Saavedra as to what prompted Quilala to have you kill that
man?

A Nothing, they were happy about it. 154

xxx xxx xxx

While Fernandez was straightforward in condemning Quilala as the mastermind, he was

not as unequivocal with respect to Saavedra. From his testimony, all Saavedra did
was to invite him for a drink and thereafter, to accompany them in what would turn
out to be a deadly expedition to Kan-Irag hotel. Aside from Saavedra's alleged
orders to "go ahead," 155 which Saavedra denied, Fernandez did not indeed say for
certain that Saavedra knew, or was a part of, the murder plot. We cannot suppose
conspiracy from these circumstances alone.

We do not likewise see how Saavedra's failure to separate from Fernandez and
Quilala after the incident can make Saavedra a co-conspirator. As we stated, it is
possible that he joined Fernandez and Quilala, admittedly two old friends of his,
156 out of camaraderie � not conspiracy � and it is not remote that he went with
them to San Jose dela Montafia out of the same sense of comradeship.

This court is further hard put to accept the argument that Saavedra should have
given a statement to the police authorities upon his arrest if he were truly
innocent of the charges. An accused has the right to remain silent. 157 Saavedra's
silence should not be therefore construed as an admission of guilt. 158

The trial court next makes capital of Exhibit "H," 159 a letter in which Saavedra
implicated a certain "Jessie" as the mastermind. According to the court, it was an
attempt by Saavedra "to mislead the investigation." 160 According, however, to
Saavedra, he executed Exhibit "H" upon instructions of Quilala. 161

Be that as it may, we do not believe that Exhibit "H" establishes Saavedra's

complicity in the murder under review. It is at best, an effort by Saavedra to
shield Quilala from the law, arising presumably from a distorted sense of loyalty,
or if he is to be believed, out of fear of Quilala indeed.

Suffice it to state that Exhibit "H" was executed without the assistance of
counsel, and there is no showing that he waived his right to counsel, with the
assistance of counsel. 162

With respect to Exhibit "C," 163 still another letter in which Saavedra counselled
Fernandez to desist from making any confession, we find nothing incriminatory in
the same. We hereinbelow reproduce the same:

Too Henry

Henry una sa tanan ako mangumusta kanimo nga maayo ba imong pagkahimutang diha.
Henry ayaw kasuko kanamo ni Rene ang imong ngalan wala namo banggit ug nahimo ayaw
pag-amen niining kaso kay u,a silay ibedensiya. Henry duna diay informer diha sa
ato nga si Loklok umagad ni Pedro Sepe nga tigbantay sa Don Bosco. Henry balikon ko
sa pagsulti ayaw gyod pagamen kay ligtas ka niining kaso kay kami sa ni Rene din
usab mo amen niini. Henry ug mosulat ka kanamo ipadala lang sek to ngahan sa tao
nga tigpala ug pagkaon nganha kang Ben Villarin. Henry ayaw gyog sultihi si Ben
niining nahitabo kay informer usab kana nganha, Kami usab ni Rene maayo ?nan ang
among pagkabutang nganhi sa Lahug Detent'on Center. Henry bantayi ang imong mga
baba sa Pagsulti nganha sa Investigator nga si Paguia ka wise kana, Henry ayaw
banggita ang among ngalan ni Rene nga ikaw naka-ila kanamo kay kami usab din mo
banggit kanimo sama ra sa dita kaila

ImongAmigo

Iyok

ABRIL 12, 1977 164

Exhibit "C" is not in the nature of an extrajudicial confession. Saavedra is not

admitting liability there and neither is he therein demanding that Fernandez
conceal the "truth." He is merely appealing to him, in what may in fact be
considered a brotherly advice, to take precautions ("Henry bantayi ang imong mga
baba sa pagsulti nganha sa Investigador nga si Paguia ka wise kana" 165) and in a
manner of speaking, to keep his mouth shut, a Constitutional right in fact of
Fernandez.

It is true that Saavedra, in the same exhibit, urged Fernandez not to admit knowing
him (Saavedra), yet, that is but a natural behavior. It is not necessarily
indicative of guilt. It is consistent with human tendency of self-protection,
whether one be truly guilty or innocent.

The accused-appellant's neglect in informing the authorities of the incident except

some twelve days thereafter cannot be taken-against him. Failure to report
violations of the law, save in certain cases � misprision of treason 166 for one,
concealing "evil practices" in the course of a sedition 167 for another � is not a
crime. 168 But what should not be lost sight of is the fact that Saavedra, as he
claims 169 feared reprisals from Quilala. It is a natural reaction, to our mind,
and does not of necessity suggest Saavedra's guilt, let alone, his participation in
a common criminal design.

It should be noted that Saavedra had no motive to take the life of the victim. The
records show that he did not know him at all. 170

In rejecting the court a quo's finding of conspiracy, we are not foreclosing the
possibility that Reynaldo Quilala, indeed, had a hand in the killing of Ernesto
Pulmares, whether as a coconspirator or a principal by induction. 171 Until Quilala
is brought to the bar of justice, however, this court is powerless to rule on his
culpability. But as far as the evidence in this case is concerned, we are not
persuaded that conspiracy has been proven. It is an evidence that does not
accordingly pass the legal test. It has not demonstrated conspiracy beyond
reasonable doubt.

It is not important that the accused-apperant's evidence consists of bare denials

and generalizations. For the rule is that the prosecution must rely on the strength
of its evidence and not on the weakness of the defense evidence. 172 Moreover:

xxx xxx xxx

If the inculpatory facts and circumstances are capable of two or more explanations,
one of which is consistent with the innocence of the accused of the crime charged
and the other consistent with their guilt, then the evidence does not fulfill the
test of moral certainty and is not sufficient to support a conviction. (U.S. v&
Maafto [1903], 2 Phil. 718.) ... 173

xxx xxx xxx

As a consequence, the parties' liabilities should be considered individually. 174

Fernandez should thus be held liable in the light of his actual participation. In
the instant case, although the trial court found him guilty of murder by direct
participation upon his plea of guilty 175 he was sentenced to a relatively fight
penalty. 176

On the other hand, may the accused-appellant be considered an accomplice? An

accomplice is defined by statute 177 as one who, not being a principal, cooperates
in the execution of the offense by previous or simultaneous acts. 178

We hold in the negative.

Saavedra's presence at the locus criminis, we earlier said, is not enough to make
him a conspirator. Neither is it sufficient to hold him liable in the character of
an accomplice. 179

What should be stressed is the fact that an accomplice, to be such, must have had
previous knowledge of the principal's criminal intent, and must have performed an
overt act that contributed to the death of the victim or, in any event, helped in
the consummation of the offense, either by way of,material or moral aid, but short
of direct participation. 180 In People v. Tatlonghari, 181 we found the accused
guilty for such compucity in "casting stones at the victim, and distracting his
attention," 182 although such acts were not indispensable to the consummation of
the crime of murder (of which we convicted the actual killer).

Here, Saavedra did not perform such act that would suggest cooperation on his part
in the killing of the deceased. And as we have stated, the prosecution has not
shown that a mutual design existed between Saavedra and Fernandez at the time of
that killing.

Neither can it be argued that Saavedra, by his presence, provided moral aid to
Fernandez in liquidating the victim, In People v. Tamayo, 183 we held the accused,
who shouted oral encouragements ("go ahead!" 184 "strike them;"185 "this is the
time, " 186) to the principal, hable as a complice. Unlike Tamayo, however,
Saavedra here merely stood behind Fernandez. In fact, Fernandez testified that he
was "conversing with somebody" at that time. 187 That does not amount to the moral
assistance contemplated by law.

While Saavedra is said to have made a "thumbs up" signal, that is by itself an
ambiguous act. Furthermore, it came after Fernandez had inflicted the lethal wounds
upon the victim. It could not have therefore served Fernandez any more purpose, the
crime having been completed.
There is further no showing that Saavedra was aware that Fernandez was armed with
the miniature samurai when they entered Kan-Irag hotel or when they were aboard the
cab. While Fernandez testified that Saavedra and Quilala were seated beside each
other at the rear of the automobile, 188 it is not far-fetched for Quilala to have
slipped the murder weapon from behind unnoticed. With a four-inch knife, 189 this
is not at all impossible. For the same reason, Fernandez could have easily
concealed the same in his person when he entered the hotel without Saavedra (who
tagged along from behind) knowing about it. In fact, he must have hidden it to
avoid detection by possible eyewitnesses in the hotel.

In the light of our findings, the accused-appellant Romeo Saavedra is entitled to

an acquittal.

But may we dwell on certain final observations. In his brief, 190 the appellant
accuses the trial judge of bills. He alleges that while the prosecution propounded
but 83 questions upon the accused, the judge asked a total of 111 questions.

The intervention of the judge in the conduct of the proceedings is not per se
improper, and the number of his questions is immaterial. In Domanico v. Court of
Appeals, 191 we held that a judge may intervene in the trial to expedite the same
or to clarify an obscurity.

But this is not an iron-clad rule. Judges are nonetheless admonished to observe
proper decorum, especially when interrogating witnesses. This is to avoid
subsequent charges of oppression or, as in this case, partiality. A judge is,
needless to state, a neutral arbiter of controversies. He is called upon not only
to act ixnpartiaby, but also to appear impartial. 192

From a reading of the records, it appears that His Honor deviated from this norm.
Thus:

xxx xxx xxx

Q Why what is, what has he done or he has shown to you that you have to be afraid
to him and you did not even ask help from your own father?

A I'm afraid of him because he has lots of tough guys.

Q You did not think before that may be the Court win not believe in you, so that
you win also suffer the same fate as Rene Quilala?

A No, sir.

Q Now, was your fear of telling the truth because of the fact that according to the
evidence of the prosecution it is possible that you, Rene Quilala and Henry
Fernandez according to the prosecution that you connived in Sable Store to kin that
man?

A No sir, we did not plan it there.

Q You still want to stick to your story despite the testimony of Henry Fernandez
and Alfredo Pabon?

A Yes, sir. 192a

xxx xxx xxx

This is likewise quite apparent from the challenged decision 193 itself thus:
xxx xxx xxx

Finally, the Court notes from Saavedra's behavior and manner of testifying while on
the witness stand to be indicative of lack of repentance or remorse for his
participation in the savage and heinous assault upon a fellow human being who was
not even known to him and had not done him any harm. On the contrary, up to the
trial of his case, he has tried to mislead the Court by giving incredible,
implausible and illogical reasons for his behavior during the incident in question,
and had even tried to dissuade or induce Fernandez while under detention to cover-
up and camouflage the actual happenings of that fateful night to prevent the
solution of the crime. Such actuations on his part deserve severe censure and
condemnation ff only to serve as a warning to future transgressors. 194

xxx xxx xxx

In any event, this reversal cures whatever impropriety may have attended the case
below.

WHEREFORE, the sentence appealed from is REVERSED and the accused-appeUant, Romeo
Saavedra y Padua, is hereby ACQUITTED. His release from confinement is hereby
ordered, unless he is held for another legal cause. With costs de oficio.

SO ORDERED.

=============================

G.R. No. L-319 March 28, 1946

GO TIAN SEK SANTOS, petitioner,

vs.
ERIBERTO MISA, Director of Prisons, respondent.

Mariano Trinidad for petitioner.

First Assistant Solicitor General Reyes and Solicitor De los Angeles for
respondent.

BENGZON, J.:

The petitioner avers he is a Chinese citizen apprehended in February, 1945, by the

Counter Intelligence Corps of the United States Army, turned over last September,
to the Commonwealth Government, and since then detained by the respondent as a
political prisoner. Such detention, he claims, is illegal, because he has not been
charge before, nor convicted by, the judge of a competent court, and because he may
not be confined under Act. No. 682, as he owes allegiance neither to the United
States nor to the Commonwealth of the Philippines.

The Solicitor-General, for the respondent, admits the detention, for active
collaboration with the Japanese, doubts the allegation of citizenship, and
maintains that, conceding arguendo petitioner's alienage, he may be charged for
espionage, a crime against national security wherein allegiance is immaterial, and
may, therefore, be held in custody under Commonwealth Act No. 682.

As the record stands, the petitioner must be deemed a Chinese subject. The
commitment order No. 291 issued by the United States Army authorities describes him
as such. But it does not follow that he is entitled to liberty now. He is included
among those contemplated by section 19 of Commonwealth Act No. 682, which reads
partly:
Upon delivery the Commander-in-Chief of the Armed Forces of the United States in
the Philippines of the persons detained by him as political prisoners, to the
Commonwealth Government, the Office of Special Prosecutors shall receive all
records, documents, exhibits and such other things as the Government of the United
States may have turned over in connection with and/or affecting said political
prisoners, examine the aforesaid records, documents, exhibits, etc., and take, as
speedily as possible, such action as may be proper: Provided, however, . . .. And,
provided, further, That, in the interest of public security, the provisions of
article one hundred twenty-five of the Revised Penal Code, as amended, shall be
deemed, as they are hereby suspended, insofar as the aforesaid political prisoners
are concerned, until the filing of the corresponding information with the People's
Court, but the period of suspension shall not be than six (6) months from the
formal delivery of said political prisoners by the Commander-in-Chief of the Armed
Forces of the United States in the Philippines to the Commonwealth Government.

His foreign status does not exclude him ipso facto from the scope of the above
provisions. As stated by the Solicitor-General, he might be prosecuted for
espionage, (Commonwealth Act No. 616) a crime not conditioned by the citizenship of
the offender, and considered as an offense against national security.

The contentions advanced during the oral argument, challenging the validity of the
said section 19, Commonwealth Act. No. 682, upon constitutional grounds must be
overruled, in view of our decision in Laurel vs. Director of Prisons (p. 372,
ante), copy of which will be furnished to petitioner by the clerk of this court.
The petition is denied, with costs.

Moran, C.J., Ozaeta, Jaranilla, Feria, De Joya, Pablo, Hilado, and Briones, JJ.,
concur.
Paras, J., concurs in the result.

Separate Opinions

PERFECTO, J., concurring and dissenting:

We concur with the majority pronouncement to the effect that petitioner is not
excluded from the group of persons contemplated by section 19 of Commonwealth Act
No. 682, notwithstanding his foreign status as a Chinese subject. We also agreed
that, if there are facts and evidence to justify it, he might be prosecuted for
espionage, or any other crime not conditioned by the citizenship of the offender.
But we disagree as to the denial of the petition, it appearing that petitioner is
being deprived of his personal liberty without any due and legal process of law,
and as to this question, we refer to the stand we have been taken in our dissenting
opinion in case G.R. No. L-200, Laurel vs. Director of Prisons (p. 372, ante), the
contentions therein we reiterate here.

========================

G.R. No. 17958 February 27, 1922

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-appellee,

vs.
LOL-LO and SARAW, defendants-appellants.

Thos. D. Aitken for appellants.

Acting Attorney-General Tuason for appellee.

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

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

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

=======================
G.R. No. L-66945 July 9, 1986

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
EDUARDO BANDOJO and MAMERTO ARTUZ, accused-appellants.

The Solicitor General for plaintiff-appellee.

Angara, Concepcion, Regala & Cruz Law Office for accused-appellants.

CRUZ, J.:

The charge in this case was piracy in violation of P.D. 532. The sentence imposed,
on the basis of guilty pleas, was death. 1 The issue is whether or not the guilty
pleas were valid and had been validly accepted.

According to the information, Eduardo Bandojo and Mamerto Artuz, in conspiracy with
each other, while on board a pumpboat on the seawaters of Bantayan, Cebu, on June
15, 1983, fatally shot Consolacion Alfar and then took her money in the sum of
P5,000.00. Thereafter, they threw the dead body into the sea and forced the other
passengers to jump overboard (although they were fortunately saved by another
pumpboat). 2
The accused-appellants admitted the above charge in extrajudicial confessions taken
from them without observance of their rights under Article IV, Section 20, of the
Constitution on June 17, 1983. 3 We flatly and at the outset reject these
documents. Later, however, at their formal arraignment, they entered separate pleas
of guilty. 4

The trial judge, upon the pleas being made, did not immediately impose sentence. On
the contrary, he asked both of the accused many searching questions to satisfy
himself that they understood the nature and consequences of their confessions. 5
Not content with his first examination on February 3, 1984, he questioned them
again at still another hearing on February 10, 1984.6 Only after he had assured
himself that the accused-appellants knew what they were doing did he finally
pronounce his judgment of death.

The defense now asks us to annul that judgment. It is claimed that the trial judge
should have received independent testimony to determine the liability of the
accused-appellants, considering that, first, they were charged with a capital
offense, and, second, their testimony belied and in effect nullified their pleas of
guilty.

We note that, on questioning by the trial court, Bandojo denied the allegation of
conspiracy between him and Artuz and put the blame on the latter for killing the
victim. He said he could not control Artuz.7 He claimed he was only a companion of
Artuz and that it was Artuz who did the killing and stole the money. He explained
that he entered the plea of guilty "so that the case will not be dragged. 8

For his part, Artuz, while affirming his plea of guilty, maintained that he was
forced by Bandojo to go with him "because he had a long weapon" and "I cannot do
anything." 9 Inconsistently, he said the gun he was holding exploded because it was
windy 10 and then again that it was pointed at the victim and it exploded upon his
(Bandojo's) order. 11 He affirmed he would not have killed for "if it was not for
his order." 12 He also said the money was received by Bandojo. 13

Recalled to the stand after he had asked for a recess because he was nervous,
Bandojo denied having ordered Artuz to shoot the victim and said the latter had
fired because he was "rattled."14 He also said his purpose in going to Bantayan was
merely to sell the firearm he was carrying. 15

In People vs. Balisacan, 16 this Court, after observing that "the accused had first
entered a plea of guilty" but later "testified, in the course of being allowed to
prove mitigating circumstances, that he acted in complete self-defense," declared
through Justice Bengzon:

Said testimony therefore�as the court a quo recognized in its decision-had the
effect of vacating his plea of guilty and the court a quo should have required him
to plead anew on the charge or at least direct that a new plea of not guilty be
entered for him.

It is also settled that�

Where a plea of guilty is entered by the defendant, in cases where the capital
penalty may be imposed, the court should make certain that defendant fully
understands the nature of the charge preferred against him and the character of the
punishment provided by law before it is imposed. The trial court should therefore
call witnesses for the purposes of establishing the guilt and degree of culpability
of the defendant, not only to satisfy the trial judge, but also to aid the Supreme
Court in determining whether the accused really and truly understood and
comprehended the meaning, full significance and consequences of his plea. 17
Conformably to the above doctrines, we should remand this case to the lower court
and direct it to conduct a regular trial at which more evidence should be received,
both from the prosecution and the defense, to determine the nature and extent of
the involvement, if any, of the accused-appellants in the offense charged. That is
the rule.

We shall deviate from this rule, however, because the guilt of the herein accused-
appellants has not only been acknowledged by them but also adequately verified by
the trial judge.

Indeed, his painstaking efforts in this regard are
case and demonstrate his anxiety to insure against
manifest that he tried his best not only to get to
happened but also to see to it that the defendants
by their pleas of guilty.
evident in the records of this
a precipitate conviction. It is
the truth of what actually
understood what they were facing

The exception to the rule was recently applied by this Court in People vs. Samiano,
18 where it was reiterated that:

It is not always de rigueur or mandatory upon the trial court to receive evidence
when a plea of guilty is entered in capital cases. The court has discretion to
dispense with the reception of evidence (People vs. Duaban, L-31912, August 24,
1979, 92 SCRA 743). 19

Probing without badgering, the trial judge was as thorough as he was considerate,
even giving defendant Bandojo a chance to relax before resuming his testimony. With
the other accused, the younger Artuz, who was only 25 years old at that time, he
was also fair but searching. And not only that. What is especially noteworthy is
that after interrogating them at the time of their arraignment, he questioned them
again at another hearing he found it necessary to schedule, to be doubly sure that
the accused-appellants understood the consequences of their confessions. 20

It is significant that although the accused-appellants disagreed on the details of

the offense and in fact blamed each other therefor, both of them insisted on
pleading guilty. They were consistent in this stance while at the same time trying
to minimize their responsibility. Obviously, they had been advised that such a plea
would mitigate their penalty, and perhaps they were also hoping it was possible to
avoid it altogether. We are satisfied, though, that the trial judge made it clear
to them that they could not eat their cake and have it too.

Their denials would normally have invalidated their guilty pleas under the
Balisacan rule, but this would not apply here because both of them later retracted
these denials. Thus, on the allegation of conspiracy, Bandojo had the following to
say at the second hearing:

Q Then on page 7 of the transcript of stenographic notes, you were asked by the
court whether you and your co-accused Mamerto Artuz had a plan to commit that crime
of Piracy and you said, "We did not plan it, Your Honor, it happened so suddenly."
Will you please elaborate on this statement when you say, "We did not plan it, it
happened so suddenly. " Why did it happen so suddenly?

A When we were already riding on the pumpboat and the pumpboat had already
travelled for two hours, that was the time we planned to rob.

Q So, there was really an agreement between you and Mamerto Artuz, your co-accused,
to rob the owner of the pumpboat which in this case is Concepcion Alfar.

FISCAL
Consolacion, Your Honor . . . Consolacion Alfar, is that right?

A When we were already riding on the pumpboat.

Q So, in answer to the question of the court on page 27, when you said that was
agreed upon, your agreement therefore was to rob the owner of the pumpboat, is that
right?

A Our plan was just to get the money but if somebody will resist or challenge us,
we will fight back. 21

As for Artuz, this is how the questioning went:

Q Do I understand from your statement now that you said you are no longer rattled;
that you really conspired or planned with Bandojo in robbing Consolacion Alfar that
noon of June 15, 1983?

A Yes, sir while we were already in the pumpboat. 22

While Bandojo had earlier disclaimed complicity in the killing, he declared later
that "if they will resist, we are going to fight back" adding that "Consolacion
Alfar rushed at Mamerto Artuz, that's why she was shot, because Consolacion was a
big woman. " 23

The robbery was, of course, never seriously denied by either of the accused-
appellants, and the money stolen, less only P100.00, was found in their possession
at the time of their arrest. 24

Finally, when asked in open court what they felt over the offense imputed to them,
they had the following to say:

Court: Do you want to say something else about your plea of guilty in this case?

Bandojo: I plead to you, Your Honor, that you win have pity on us. 25

xxx xxx xxx

Court: What do you want to say now to the court? Do you want to say something?

Artuz: I only plead to you, Your Honor, that we will be given the lesser penalty
that you can impose upon us. 26

We are convinced that the accused-appellants committed the crime of piracy under
the circumstances alleged in the information. Their guilt, which they repeatedly
confessed in court, has been established beyond the shadow of a doubt. The trial
judge did not err in convicting them notwithstanding the absence of the usual
reception of evidence in cases involving capital offenses. Considering the trial
judge's earnest questioning of the accused-appellants, one of whom, incidentally,
was even a college student,27 we hold that their pleas of guilty were knowingly
made and not improvidently accepted.

Nevertheless, for lack of the necessary votes. the death penalty is hereby reduced
to reclusion perpetua

The trial judge, the Hon. Francis T. Militante, recommends executive clemency for
the accused-appellants and says of them: "They are not hardened criminals. They are
still capable of reforming themselves. They are still young. They should be given a
chance to live and reform themselves so that they can be assimilated back to
society and above all with their families. 28 We refer this recommendation to the
President of the Philippines for such action as she may deem appropriate in the
premises.

WHEREFORE, the appealed judgment is AFFIRMED but with the modification that the
death penalty is reduced t
o reclusion perpetua and the civil Idemnity is increased to P30,000.00. Costs
against the accused-appellants.

SO ORDERED

==========================

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MAURICIO PETALCORIN alias

JUNIO BUDLAT and BERTOLDO ABAIS alias TOLDONG, Defendants-Appellants.

The Solicitor General for Plaintiff-Appellee.

Citizens Legal Assistance Office, for Defendants-Appellants.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARRAIGNMENT; PLEA OF GUILTY; COURT MUST

CONDUCT SEARCHING INQUIRY INTO THE VOLUNTARINESS AND FULL CONSEQUENCES OF THE PLEA.
� It is observed that the proceeding undertaken during the arraignment leaves much
to be desired. The court did not impress on the appellant the consequences of his
plea of guilty and the probable penalty that may be imposed on them. Its duty is to
conduct a searching inquiry into the voluntariness and full consequences of the
plea. Although it may be assumed that the counsel de oficio of the appellant may
have duly warned him of the effect of his plea when he conferred with him, one
cannot dispel the possibility that said counsel may have advised the appellant that
due to the mitigating circumstance of voluntary plea of guilt, he may be imposed
only the lesser penalty of reclusion perpetua and not death. Such assumption of
course is erroneous as brought out in the sentence imposed by the trial court as
the circumstances of the case warrant that regardless of the attending
circumstances the imposable penalty was death. Thus, there was the need for the
trial court to take the necessary measures to see that the accused really and truly
comprehended the meaning, full significance, and consequence of his plea.

2. ID.; ID.; ID.; ID.; VALIDITY THEREOF IMMATERIAL WHEN CONVICTION WAS PREDICATED
UPON EVIDENCE THE COMMISSION BY THE ACCUSED OF THE OFFENSES CHARGED. � Even without
considering said plea of guilty on the part of the appellant, as above discussed
there is adequate evidence on the record on which to predicate the conviction of
the appellant. In People v. Nismal, this Court under similar circumstances held as
follows: "As a rule, this Court has set aside convictions based on pleas of guilty
in capital offenses because of improvidence of the plea only when such plea is the
sole basis of the judgment of the condemnatory judgment. When, as in this case, the
trial court in obedience to this Court�s injunction in Apduhan and similar cases,
receives evidence to determine precisely whether or not the accused has erred in
admitting guilt, the manner in which the plea of guilty is made loses legal
significance, for the simple reason that the conviction is, as in this case,
predicated not on the plea but on the evidence proving the commission by the
accused of the offense charged. In the instant case, ten witnesses testified for
the prosecution, all of them cross examined by the defense counsel. More than that,
the accused submitted the case without presenting any evidence. He did not dare to
testify to deny the inculpatory testimonies and documents and real evidence
presented against him. Verily, under these circumstances, to insist on the
invalidity of the plea of the accused can serve no more effect than to deprive the
accused of the credit of the mitigating circumstance that such plea connotes."

D E C I S I O N

GANCAYCO, J.:

It was about 2:00 o�clock in the afternoon of April 18, 1979 when Joemarico
Porcadilla and Bonifacio Paden were riding on a pumpboat called LOU JR from Cebu
City bound for Banacan Island in the Municipality of Jetafe, Province of Bohol. The
pumpboat was owned by Luis Miasco and was at that time loaded with assorted
cargoes.

While negotiating the seawaters at Pandanon Island said pumpboat was bumped by
another pumpboat piloted by Bertoldo Abais. Aboard said pumpboat were Mauricio
Petalcorin and Paul Sagarino. Immediately thereafter, Petalcorin fired at Paden
three times who was hit at the back and as a consequence thereof, he fell into the
sea. Petalcorin then boarded the pumpboat of Paden and pointed and fired his gun at
Porcadilla who was hit on the right arm. When Petalcorin attempted to fire for the
second time, Porcadilla rushed at him and grappled for the possession of the gun.
Petalcorin shouted for help.chanrobles virtual lawlibrary

Sagarino boarded the pumpboat where Petalcorin and Porcadilla were and fired his
gun at Porcadilla. However, the gun jammed so Sagarino picked up an empty liter
size soft drink bottle and struck Porcadilla on the head which made him dizzy. Upon
the latter�s recovery, Sagarino tried to hit Porcadilla again with the same bottle
but the latter parried the same and fought back. Petalcorin and Sagarino ganged up
on Porcadilla so he fell into the sea. The two sped away in the pumpboat of Paden.
Paden was able to hold on to the outrigger of the pumpboat and was dragged along.
Abais operated the other pumpboat and left.

Porcadilla who floated on the water for sometime
which happened to pass by. He was brought to the
Nasingin Island. He was later brought to Banasan
treatment for his injuries. Bonifacio Paden died
suffered.chanrobles virtual lawlibrary
was later rescued by a pumpboat
house of the barangay captain in
Island where he received medical
due to the wounds he

The commission of this offense was discovered only in January, 1983 when Vicente
Evardo, Station Police Commander of Jetafe Police Station, Jetafe, Bohol,
apprehended Abais in the Island of Cotoban, Talibon, Bohol as one of the suspects
in a series of buglaries committed in Jetafe and Talibon. In the course of the
investigation Abais revealed the commission of piracy in the island of Pandanon,
Jetafe, Bohol sometime on April 18, 1979. Accompanied by the policemen they were
able to recover the engine block and fuel tank of the pumpboat from Felix Estillore
at St. Bernard, Southern Leyte. 1 Estillore gave a statement that was sworn to
before Judge Gervasio. 2 Similarly, Abais was investigated and he gave a written
statement that was sworn to before Judge Romualdo Buno. 3

In due course, an information was filed in the Regional Trial Court of the City of
Tagbilaran against Mauricio Petalcorin and Bertoldo Abais alias Toldong, which
reads as follows:jgc:chanrobles.com.ph

"The undersigned, Acting Third Asst. Provincial Fiscal, hereby accuses Mauricio
Petalcorin alias Junior Budlat and Bertoldo Abais alias Toldong of the crime of
PIRACY, committed as follows:chanrob1es virtual 1aw library
That on or about the 18th day of April, 1979, in the seawaters of Pandanon and
Nasingin Islands, municipality of Jetafe, province of Bohol, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, together
with Paul Sagarino alias Polan and Felix Estillore who are still at large and whose
case is still pending preliminary investigation before the Municipal Circuit Trial
Court of Talibon-Jetafe, Bohol, conspiring, confederating and mutually helping with
each other, with intent to gain, with the use of firearms, not being members of the
crew nor passengers of the pumpboat named LOU JR owned by and belonging to Luis
Miasco, by means of violence against or intimidation, attacked, shot and hit
Joemarico C. Porcadilla and Bonifacio Paden who, on the occasion thereof, were
seriously injured and killed, respectively; and, thereafter, the abovenamed accused
did then and there willfully, unlawfully and feloniously seize said pumpboat, and,
without the consent of the owner, forcibly take and carry away the following
properties, viz.:chanrob1es virtual 1aw library

One (1) pumpboat valued at P7,000.00;

One (1) engine brand Briggs & Strattion 10 H.P. P3,000.00;

One (1) canvass yellow green in color P500.00;

Five (5) containers of ordinary gasoline containing 100 liters P400.00;

Three (3) sacks of corn grits P270.00;

Cash money belonging to Bonifacio Paden P220.00;

Nine (9) cases of Pepsi Cola and Coca Cola (family size) P216.00;

Two (2) cartons of vino Kulafu P84.00;

One (1) carton of candies P50.00; One (1) box of bread P30.00;

in the total amount of ELEVEN THOUSAND SEVEN HUNDRED AND SEVENTY PESOS
(P11,770.00), Philippine Currency; to the damage and prejudice of Luis Miasco,
Joemarico Porcadilla and the heirs of Bonifacio Paden; with the special qualifying
aggravating circumstances of (1) abandoning the victims without means of saving
themselves and (2) seizure of the pumpboat accomplished by firing upon or boarding
the same.

Acts committed contrary to Presidential Decree No. 532." 4

Upon arraignment each of the accused assisted by a counsel de oficio entered a plea
of guilty to the information. Nevertheless, the trial court directed the
prosecution to present its evidence in order to establish the guilt and degree of
culpability of the accused.

Witnesses Vicente Evardo and Joemarico Porcadilla testified for the prosecution
while the accused did not present any evidence in their defense. On September 15,
1983, the trial court rendered a decision finding both accused guilty of the crime
of piracy as follows:jgc:chanrobles.com.ph

"After due deliberation of the evidence presented during the trial, the Court is
convinced that the prosecution was able to prove the guilt of the herein accused
beyond reasonable doubt thru the following findings:chanrob1es virtual 1aw library

1. That in the commission of the offense as charged in the Information, conspiracy

among the accused existed which was clearly shown and proven thru the acts and
conducts of the accused:chanrob1es virtual 1aw library
(a) That accused Petalcorin and Abais together with Paul Sagarino were riding on
one (1) pumpboat when they chased and overtook the pumpboat named LOU JR of Paden
and Porcadilla;

(b) That accused Abais did not do anything to prevent accused Petalcorin in
inflicting injuries on Porcadilla and/or killing Bonifacio Paden;

(c) That accused Petalcorin and Abais were the ones who left the engine block,
plywheel cover and the fuel tank with Felix Estillore (Exhs. F and F-1) and as a
matter of fact, it was accused Abais who accompanied the police authorities in
recovering some of the stolen articles, now marked as Exhs. F and F-1;

(d) That there was an active cooperation by all the accused in the perpetration of
the crime of piracy.

and since conspiracy existed, the principle of the �act of one is the act of all,�
is applicable in this case.

2. That the accused, after wounding Porcadilla, operated the latter�s pumpboat
named LOU JR and brought it with them, leaving behind Porcadilla in the seawater,
wounded and without any means of saving himself while the deceased Bonifacio Paden
who was wounded was hanging on the outrigger of the pumpboat and that was the last
time that Paden was seen alive.

3. That when accused Petalcorin boarded the pumpboat named LOU JR of Paden and
Porcadilla, he immediately fired at Paden and Porcadilla without any reason at all
thus, hitting Paden resulting in his falling into the seawater and later on, his
death.

The crime of piracy carries the penalty of death under PD 532, Section 3, par. (a)
last sentence, which provides:chanrob1es virtual 1aw library

SEC. 3. . . .

�a) . . .

�If rape, murder or homicide is committed as a result or on the occasion of piracy,

or when the offenders abandoned the victim without means of saving themselves, or
when the seizure is accomplished by firing upon or boarding a vessel, the mandatory
penalty of death shall be imposed.�

even without the presence of the mitigating circumstance of plea of guilty, the
penalty prescribed by law that is death, being a single penalty, must be applied
regardless of the presence of any mitigating or aggravating circumstance that may
have attended the commission of the deed (Article 63, Revised Penal Code).

WHEREFORE, finding both accused Mauricio Petalcorin and Bertoldo Abais GUILTY
beyond reasonable doubt of the crime of Piracy, they are hereby sentenced to the
penalty of DEATH and to pay severally and jointly the following damages, to
wit:chanrob1es virtual 1aw library

1. Twelve Thousand (P12,000.00) Pesos by reason of the death of Bonifacio Paden, to

be paid to his legal heirs;

2. One Thousand (P1,000.00) Pesos in concept of actual damages, to be paid to

offended party, Joemarico Porcadilla;

3. Eleven Thousand Seven Hundred Seventy (P11,770.00) Pesos for the value of the
stolen goods including the pumpboat, to be paid to offended party Luis Miasco; and

4. To pay the Costs.

The engine block and the fuel tank marked as Exhibits F and F-1 are hereby ordered
return(ed) to the offended party Luis Miasco after signing a receipt of the same
with the Officer-in-Charge of this Court.

SO ORDERED." 5

The case was elevated to this Court for automatic review. As the death penalty may
no longer be imposed under the 1987 Constitution there is no more automatic review
hence this case is now considered to be brought by ordinary appeal interposed by
the accused.

In the brief of appellants, it is alleged that the trial court committed the
following assigned errors:chanrob1es virtual 1aw library

1. The court erred in imposing the death penalty on the accused notwithstanding the
fact that they did not comprehend the consequence of their plea.

2. The court erred in giving weight and credence to the sworn statements of Felix
Estillore and accused appellant Bertoldo Abais.

3. The court erred in convicting accused-appellants notwithstanding that their

guilt had not been not proved beyond reasonable doubt.

However, appellant Mauricio Petalcorin manifested the withdrawal of his appeal and
his willingness to serve the sentence of reclusion perpetua. This was approved by
this Court on September 8, 1987. Thus, only the appeal of Bertoldo Abais shall be
determined.

The appeal is devoid of merit.

Upon the arraignment of the appellant the court appointed a counsel de oficio who
conferred with him. During the arraignment the information was translated to the
appellant in the Visayan dialect which is the language he understood, after which
the following proceedings took place:jgc:chanrobles.com.ph

"Court:chanrob1es virtual 1aw library

Mauricio Petalcorin, what is your plea guilty or not guilty?

Mauricio Petalcorin:chanrob1es virtual 1aw library

Guilty.

Court:chanrob1es virtual 1aw library

Bertuldo Abais, what is your plea guilty or not guilty?

Bertuldo Abais:chanrob1es virtual 1aw library

Guilty Your Honor.

Court.

Do you know the implication of your plea of guilty to the offense as charged in the
information Mauricio?.
Mauricio Petalcorin:chanrob1es virtual 1aw library

Yes Your Honor.

Court:chanrob1es virtual 1aw library

What would be the consequence of your plea of guilty?

A We will wait for the decision Your Honor.

Court:chanrob1es virtual 1aw library

Being guilty to the offense as charged, do you admit that you have committed such
crime, Mauricio?

Mauricio Petalcorin:chanrob1es virtual 1aw library

Yes Your Honor.

Court:chanrob1es virtual 1aw library

How about you Bertuldo Abais, do you admit that you have committed such crime?

Bertuldo Abais:chanrob1es virtual 1aw library

Yes, Your Honor.

Atty. Magallano:chanrob1es virtual 1aw library

Your Honor please, with the spontaneous plea of guilty entered by both accused, we
pray that this mitigating circumstance of plea of guilty be considered.

Fiscal Vestal:chanrob1es virtual 1aw library

Your Honor please, considering that the penalty imposed on the accused is serious,
I ask the Court that the accused in the interest of justice be given another day(s)
to reflect on their respective plea.

Atty. Magallano:chanrob1es virtual 1aw library

I have already conferred with both accused and they have no second thoughts and
they said they would plead guilty.

Court:chanrob1es virtual 1aw library

I think it is better to set this case to another day for the reception of the
evidence for the prosecution.

Fiscal Vestal:chanrob1es virtual 1aw library

Yes Your Honor" 6

The case was reset for the reception of the evidence for the prosecution and to
enable the appellant to ponder on the consequences of his plea. As above related,
the prosecution presented two witnesses. Porcadilla who was present during the
incident gave a blow by blow account of what happened and as to the participation
of the appellant. His account is corroborated by Eduardo who investigated appellant
and who executed an extrajudicial statement admitting his complicity after he was
informed of his constitutional rights.chanrobles.com:cralaw:red

It is observed that the proceeding undertaken during the arraignment leaves much to
be desired. The court did not impress on the appellant the consequences of his plea
of guilty and the probable penalty that may be imposed on them. Its duty is to
conduct a searching inquiry into the voluntariness and full consequences of the
plea. 7 Although it may be assumed that the counsel de oficio of the appellant may
have duly warned him of the effect of his plea when he conferred with him, one
cannot dispel the possibility that said counsel may have advised the appellant that
due to the mitigating circumstance of voluntary plea of guilt, he may be imposed
only the lesser penalty of reclusion perpetua and not death. Such assumption of
course is erroneous as brought out in the sentence imposed by the trial court as
the circumstances of the case warrant that regardless of the attending
circumstances the imposable penalty was death. Thus, there was the need for the
trial court to take the necessary measures to see that the accused really and truly
comprehended the meaning, full significance, and consequence of his plea.chanrobles
virtual lawlibrary

Nevertheless, even without considering said plea of guilty on the part of the
appellant, as above discussed there is adequate evidence on the record on which to
predicate the conviction of the appellant. In People v. Nismal, 8 this Court under
similar circumstances held as follows:jgc:chanrobles.com.ph

"As a rule, this Court has set aside convictions based on pleas of guilty in
capital offenses because of improvidence of the plea only when such plea is the
sole basis of the judgment of the condemnatory judgment. When, as in this case, the
trial court in obedience to this Court�s injunction in Apduhan and similar cases,
receives evidence to determine precisely whether or not the accused has erred in
admitting guilt, the manner in which the plea of guilty is made loses legal
significance, for the simple reason that the conviction is, as in this case,
predicated not on the plea but on the evidence proving the commission by the
accused of the offense charged. In the instant case, ten witnesses testified for
the prosecution, all of them cross examined by the defense counsel. More than that,
the accused submitted the case without presenting any evidence. He did not dare to
testify to deny the inculpatory testimonies and documents and real evidence
presented against him. Verily, under these circumstances, to insist on the
invalidity of the plea of the accused can serve no more effect than to deprive the
accused of the credit of the mitigating circumstance that such plea
connotes."cralaw virtua1aw library

WHEREFORE, with the modification that the penalty imposed is reduced to reclusion
perpetua and the indemnity to be paid by appellant to the heirs of victim is
increased to P30,000.00, the decision appealed from is AFFIRMED in all other
respects, with costs against the Appellant.

SO ORDERED.

========================

G.R. No. 111709 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 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 of reclusion perpetua shall be inflicted upon any person who, on the
high seas, or in Philippine waters, shall attack or seize a vessel or, 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
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.

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.

=================

G.R. No. 178552 October 5, 2010

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South Network

(SSN) for Non-State Armed Group Engagement, and ATTY. SOLIMAN M. SANTOS, JR.,
Petitioners,
vs.
ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL DEFENSE, THE SECRETARY OF
THE INTERIOR AND LOCAL GOVERNMENT, THE SECRETARY OF FINANCE, THE NATIONAL SECURITY
ADVISER, THE CHIEF OF STAFF OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF
OF THE PHILIPPINE NATIONAL POLICE, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 178554

KILUSANG MAYO UNO (KMU), represented by its Chairperson Elmer Labog, NATIONAL
FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO (NAFLU-KMU), represented by its
National President Joselito V. Ustarez and Secretary General Antonio C. Pascual,
and CENTER FOR TRADE UNION AND HUMAN RIGHTS, represented by its Executive Director
Daisy Arago, Petitioners,
vs.
HON. EDUARDO ERMITA, in his capacity as Executive Secretary, NORBERTO GONZALES, in
his capacity as Acting Secretary of National Defense, HON. RAUL GONZALES, in his
capacity as Secretary of Justice, HON. RONALDO PUNO, in his capacity as Secretary
of the Interior and Local Government, GEN. HERMOGENES ESPERON, in his capacity as
AFP Chief of Staff, and DIRECTOR GENERAL OSCAR CALDERON, in his capacity as PNP
Chief of Staff, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 178581

BAGONG ALYANSANG MAKABAYAN (BAYAN), GENERAL ALLIANCE BINDING WOMEN FOR REFORMS,
INTEGRITY, EQUALITY, LEADERSHIP AND ACTION (GABRIELA), KILUSANG MAGBUBUKID NG
PILIPINAS (KMP), MOVEMENT OF CONCERNED CITIZENS FOR CIVIL LIBERTIES (MCCCL),
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES
(COURAGE), KALIPUNAN NG DAMAYANG MAHIHIRAP (KADAMAY), SOLIDARITY OF CAVITE WORKERS,
LEAGUE OF FILIPINO STUDENTS (LFS), ANAKBAYAN, PAMBANSANG LAKAS NG KILUSANG
MAMAMALAKAYA (PAMALAKAYA), ALLIANCE OF CONCERNED TEACHERS (ACT), MIGRANTE, HEALTH
ALLIANCE FOR DEMOCRACY (HEAD), AGHAM, TEOFISTO GUINGONA, JR., DR. BIENVENIDO
LUMBERA, RENATO CONSTANTINO, JR., SISTER MARY JOHN MANANSAN OSB, DEAN CONSUELO PAZ,
ATTY. JOSEFINA LICHAUCO, COL. GERRY CUNANAN (ret.), CARLITOS SIGUION-REYNA, DR.
CAROLINA PAGADUAN-ARAULLO, RENATO REYES, DANILO RAMOS, EMERENCIANA DE LESUS, RITA
BAUA, REY CLARO CASAMBRE, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief,
EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALES,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL
DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO. DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES,
NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING
AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED
FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE
PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative
elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 178890

KARAPATAN, ALLIANCE FOR THE ADVANCEMENT OF PEOPLE'S RIGHTS, represented herein by

Dr. Edelina de la Paz, and representing the following organizations: HUSTISYA,
represented by Evangeline Hernandez and also on her own behalf; DESAPARECIDOS,
represented by Mary Guy Portajada and also on her own behalf, SAMAHAN NG MGA EX-
DETAINEES LABAN SA DETENSYON AT PARA SA AMNESTIYA (SELDA), represented by Donato
Continente and also on his own behalf, ECUMENICAL MOVEMENT FOR JUSTICE AND PEACE
(EMJP), represented by Bishop Elmer M. Bolocon, UCCP, and PROMOTION OF CHURCH
PEOPLE'S RESPONSE, represented by Fr. Gilbert Sabado, OCARM, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief,
EXECUTIVE SECRETARTY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL
DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT SECRETARY RONALDO PUNO, DEPARTMENT OF FINANCE SECRETARY MARGARITO TEVES,
NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE COORDINATING
AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU OF
IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED
FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE
PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative
elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 179157

THE INTEGRATED BAR OF THE PHILIPPINES (IBP), represented by Atty. Feliciano M.

Bautista, COUNSELS FOR THE DEFENSE OF LIBERTY (CODAL), SEN. MA. ANA CONSUELO A.S.
MADRIGAL and FORMER SENATORS SERGIO OSME�A III and WIGBERTO E. TA�ADA, Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO ERMITA AND THE MEMBERS OF THE ANTI-TERRORISM COUNCIL
(ATC), Respondents.

x - - - - - - - - - - - - - - - - - - - - - - -x

G.R. No. 179461

BAGONG ALYANSANG MAKABAYAN-SOUTHERN TAGALOG (BAYAN-ST), GABRIELA-ST, KATIPUNAN NG
MGA SAMAHYANG MAGSASAKA-TIMOG KATAGALUGAN (KASAMA-TK), MOVEMENT OF CONCERNED
CITIZENS FOR CIVIL LIBERTIES (MCCCL), PEOPLES MARTYRS, ANAKBAYAN-ST, PAMALAKAYA-ST,
CONFEDERATION FOR UNITY, RECOGNITION AND ADVANCEMENT OF GOVERNMENT EMPLOYEES
(COURAGE-ST), PAGKAKAISA'T UGNAYAN NG MGA MAGBUBUKID SA LAGUNA (PUMALAG), SAMAHAN
NG MGA MAMAMAYAN SA TABING RILES (SMTR-ST), LEAGUE OF FILIPINO STUDENTS (LFS),
BAYAN MUNA-ST, KONGRESO NG MGA MAGBUBUKID PARA SA REPORMANG AGRARYO KOMPRA, BIGKIS
AT LAKAS NG MGA KATUTUBO SA TIMOG KATAGALUGAN (BALATIK), SAMAHAN AT UGNAYAN NG MGA
MAGSASAKANG KABABAIHAN SA TIMOG KATAGALUGAN (SUMAMAKA-TK), STARTER, LOS�OS RURAL
POOR ORGANIZATION FOR PROGRESS & EQUALITY, CHRISTIAN NI�O LAJARA, TEODORO REYES,
FRANCESCA B. TOLENTINO, JANNETTE E. BARRIENTOS, OSCAR T. LAPIDA, JR., DELFIN DE
CLARO, SALLY P. ASTRERA, ARNEL SEGUNE BELTRAN, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, in her capacity as President and Commander-in-Chief,
EXECUTIVE SECRETARY EDUARDO ERMITA, DEPARTMENT OF JUSTICE SECRETARY RAUL GONZALEZ,
DEPARTMENT OF FOREIGN AFFAIRS SECRETARY ALBERTO ROMULO, DEPARTMENT OF NATIONAL
DEFENSE ACTING SECRETARY NORBERTO GONZALES, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMEN T SECRETARY RONALDO PUNO, DEPARTMENT OF FINCANCE SECRETARY MARGARITO
TEVES, NATIONAL SECURITY ADVISER NORBERTO GONZALES, THE NATIONAL INTELLIGENCE
COORDINATING AGENCY (NICA), THE NATIONAL BUREAU OF INVESTIGATION (NBI), THE BUREAU
OF IMMIGRATION, THE OFFICE OF CIVIL DEFENSE, THE INTELLIGENCE SERVICE OF THE ARMED
FORCES OF THE PHILIPPINES (ISAFP), THE ANTI-MONEY LAUNDERING COUNCIL (AMLC), THE
PHILIPPINE CENTER ON TRANSNATIONAL CRIME, THE CHIEF OF THE PHILIPPINE NATIONAL
POLICE GEN. OSCAR CALDERON, THE PNP, including its intelligence and investigative
elements, AFP CHIEF GEN. HERMOGENES ESPERON, Respondents.

D E C I S I O N

CARPIO MORALES, J.:

Before the Court are six petitions challenging the constitutionality of Republic
Act No. 9372 (RA 9372), "An Act to Secure the State and Protect our People from
Terrorism," otherwise known as the Human Security Act of 2007,1 signed into law on
March 6, 2007.

Following the effectivity of RA 9372 on July 15, 2007,2 petitioner Southern

Hemisphere Engagement Network, Inc., a non-government organization, and Atty.
Soliman Santos, Jr., a concerned citizen, taxpayer and lawyer, filed a petition for
certiorari and prohibition on July 16, 2007 docketed as G.R. No. 178552. On even
date, petitioners Kilusang Mayo Uno (KMU), National Federation of Labor Unions-
Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade Union and Human Rights (CTUHR),
represented by their respective officers3 who are also bringing the action in their
capacity as citizens, filed a petition for certiorari and prohibition docketed as
G.R. No. 178554.

The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN),
General Alliance Binding Women for Reforms, Integrity, Equality, Leadership and
Action (GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned
Citizens for Civil Liberties (MCCCL), Confederation for Unity, Recognition and
Advancement of Government Employees (COURAGE), Kalipunan ng Damayang Mahihirap
(KADAMAY), Solidarity of Cavite Workers (SCW), League of Filipino Students (LFS),
Anakbayan, Pambansang Lakas ng Kilusang Mamamalakaya (PAMALAKAYA), Alliance of
Concerned Teachers (ACT), Migrante, Health Alliance for Democracy (HEAD), and
Agham, represented by their respective officers,4 and joined by concerned citizens
and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato Constantino,
Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco,
Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo,
Renato Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre
filed a petition for certiorari and prohibition docketed as G.R. No. 178581.

On August 6, 2007, Karapatan and its alliance member organizations Hustisya,

Desaparecidos, Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya
(SELDA), Ecumenical Movement for Justice and Peace (EMJP), and Promotion of Church
People�s Response (PCPR), which were represented by their respective officers5 who
are also bringing action on their own behalf, filed a petition for certiorari and
prohibition docketed as G.R. No. 178890.

On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the
Defense of Liberty (CODAL),6 Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osme�a
III, and Wigberto E. Ta�ada filed a petition for certiorari and prohibition
docketed as G.R. No. 179157.

Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and

organizations mostly based in the Southern Tagalog Region,7 and individuals8
followed suit by filing on September 19, 2007 a petition for certiorari and
prohibition docketed as G.R. No. 179461 that replicates the allegations raised in
the BAYAN petition in G.R. No. 178581.

Impleaded as respondents in the various petitions are the Anti-Terrorism Council9

composed of, at the time of the filing of the petitions, Executive Secretary
Eduardo Ermita as Chairperson, Justice Secretary Raul Gonzales as Vice Chairperson,
and Foreign Affairs Secretary Alberto Romulo, Acting Defense Secretary and National
Security Adviser Norberto Gonzales, Interior and Local Government Secretary Ronaldo
Puno, and Finance Secretary Margarito Teves as members. All the petitions, except
that of the IBP, also impleaded Armed Forces of the Philippines (AFP) Chief of
Staff Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief Gen. Oscar
Calderon.

The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria
Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the
National Intelligence Coordinating Agency, National Bureau of Investigation, Bureau
of Immigration, Office of Civil Defense, Intelligence Service of the AFP, Anti-
Money Laundering Center, Philippine Center on Transnational Crime, and the PNP
intelligence and investigative elements.

The petitions fail.

Petitioners� resort to certiorari is improper

Preliminarily, certiorari does not lie against respondents who do not exercise
judicial or quasi-judicial functions. Section 1, Rule 65 of the Rules of Court is
clear:

Section 1. Petition for certiorari.�When any tribunal, board or officer exercising

judicial or quasi-judicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in
the ordinary course of law, a person aggrieved thereby may file a verified petition
in the proper court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board or officer,
and granting such incidental reliefs as law and justice may require. (Emphasis and
underscoring supplied)

Parenthetically, petitioners do not even allege with any modicum of particularity

how respondents acted without or in excess of their respective jurisdictions, or
with grave abuse of discretion amounting to lack or excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail just the same.

In constitutional litigations, the power of judicial review is limited by four

exacting requisites, viz: (a) there must be an actual case or controversy; (b)
petitioners must possess locus standi; (c) the question of constitutionality must
be raised at the earliest opportunity; and (d) the issue of constitutionality must
be the lis mota of the case.10

In the present case, the dismal absence of the first two requisites, which are the
most essential, renders the discussion of the last two superfluous.

Petitioners lack locus standi

Locus standi or legal standing requires a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court so largely depends for illumination of difficult
constitutional questions.11

Anak Mindanao Party-List Group v. The Executive Secretary12 summarized the rule on
locus standi, thus:

Locus standi or legal standing has been defined as a personal and substantial
interest in a case such that the party has sustained or will sustain direct injury
as a result of the governmental act that is being challenged. The gist of the
question on standing is whether a party alleges such personal stake in the outcome
of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult
constitutional questions.

[A] party who assails the constitutionality of a statute must have a direct and
personal interest. It must show not only that the law or any governmental act is
invalid, but also that it sustained or is in immediate danger of sustaining some
direct injury as a result of its enforcement, and not merely that it suffers
thereby in some indefinite way. It must show that it has been or is about to be
denied some right or privilege to which it is lawfully entitled or that it is about
to be subjected to some burdens or penalties by reason of the statute or act
complained of.

For a concerned party to be allowed to raise a constitutional question, it must

show that (1) it has personally suffered some actual or threatened injury as a
result of the allegedly illegal conduct of the government, (2) the injury is fairly
traceable to the challenged action, and (3) the injury is likely to be redressed by
a favorable action. (emphasis and underscoring supplied.)

Petitioner-organizations assert locus standi on the basis of being suspected

"communist fronts" by the government, especially the military; whereas individual
petitioners invariably invoke the "transcendental importance" doctrine and their
status as citizens and taxpayers.

While Chavez v. PCGG13 holds that transcendental public importance dispenses with
the requirement that petitioner has experienced or is in actual danger of suffering
direct and personal injury, cases involving the constitutionality of penal
legislation belong to an altogether different genus of constitutional litigation.
Compelling State and societal interests in the proscription of harmful conduct, as
will later be elucidated, necessitate a closer judicial scrutiny of locus standi.

Petitioners have not presented any personal stake in the outcome of the
controversy. None of them faces any charge under RA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No.
178890, allege that they have been subjected to "close security surveillance by
state security forces," their members followed by "suspicious persons" and
"vehicles with dark windshields," and their offices monitored by "men with military
build." They likewise claim that they have been branded as "enemies of the
[S]tate."14

Even conceding such gratuitous allegations, the Office of the Solicitor General
(OSG) correctly points out that petitioners have yet to show any connection between
the purported "surveillance" and the implementation of RA 9372.

BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan, PAMALAKAYA,
ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581, would
like the Court to take judicial notice of respondents� alleged action of tagging
them as militant organizations fronting for the Communist Party of the Philippines
(CPP) and its armed wing, the National People�s Army (NPA). The tagging, according
to petitioners, is tantamount to the effects of proscription without following the
procedure under the law.15 The petition of BAYAN-ST, et al. in G.R. No. 179461
pleads the same allegations.

The Court cannot take judicial notice of the alleged "tagging" of petitioners.

Generally speaking, matters of judicial notice have three material requisites: (1)
the matter must be one of common and general knowledge; (2) it must be well and
authoritatively settled and not doubtful or uncertain; and (3) it must be known to
be within the limits of the jurisdiction of the court. The principal guide in
determining what facts may be assumed to be judicially known is that of notoriety.
Hence, it can be said that judicial notice is limited to facts evidenced by public
records and facts of general notoriety. Moreover, a judicially noticed fact must be
one not subject to a reasonable dispute in that it is either: (1) generally known
within the territorial jurisdiction of the trial court; or (2) capable of accurate
and ready determination by resorting to sources whose accuracy cannot reasonably be
questionable.

Things of "common knowledge," of which courts take judicial matters coming to the
knowledge of men generally in the course of the ordinary experiences of life, or
they may be matters which are generally accepted by mankind as true and are capable
of ready and unquestioned demonstration. Thus, facts which are universally known,
and which may be found in encyclopedias, dictionaries or other publications, are
judicially noticed, provided, they are of such universal notoriety and so generally
understood that they may be regarded as forming part of the common knowledge of
every person. As the common knowledge of man ranges far and wide, a wide variety of
particular facts have been judicially noticed as being matters of common knowledge.
But a court cannot take judicial notice of any fact which, in part, is dependent on
the existence or non-existence of a fact of which the court has no constructive
knowledge.16 (emphasis and underscoring supplied.)

No ground was properly established by petitioners for the taking of judicial

notice. Petitioners� apprehension is insufficient to substantiate their plea. That
no specific charge or proscription under RA 9372 has been filed against them, three
years after its effectivity, belies any claim of imminence of their perceived
threat emanating from the so-called tagging.

The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who
merely harp as well on their supposed "link" to the CPP and NPA. They fail to
particularize how the implementation of specific provisions of RA 9372 would result
in direct injury to their organization and members.

While in our jurisdiction there is still no judicially declared terrorist

organization, the United States of America17 (US) and the European Union18 (EU)
have both classified the CPP, NPA and Abu Sayyaf Group as foreign terrorist
organizations. The Court takes note of the joint statement of Executive Secretary
Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo Administration
would adopt the US and EU classification of the CPP and NPA as terrorist
organizations.19 Such statement notwithstanding, there is yet to be filed before
the courts an application to declare the CPP and NPA organizations as domestic
terrorist or outlawed organizations under RA 9372. Again, RA 9372 has been in
effect for three years now. From July 2007 up to the present, petitioner-
organizations have conducted their activities fully and freely without any threat
of, much less an actual, prosecution or proscription under RA 9372.

Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list

Representatives Saturnino Ocampo, Teodoro Casi�o, Rafael Mariano and Luzviminda
Ilagan,20 urged the government to resume peace negotiations with the NDF by
removing the impediments thereto, one of which is the adoption of designation of
the CPP and NPA by the US and EU as foreign terrorist organizations. Considering
the policy statement of the Aquino Administration21 of resuming peace talks with
the NDF, the government is not imminently disposed to ask for the judicial
proscription of the CPP-NPA consortium and its allied organizations.

More important, there are other parties not before the Court with direct and
specific interests in the questions being raised.22 Of recent development is the
filing of the first case for proscription under Section 1723 of RA 9372 by the
Department of Justice before the Basilan Regional Trial Court against the Abu
Sayyaf Group.24 Petitioner-organizations do not in the least allege any link to the
Abu Sayyaf Group.

Some petitioners attempt, in vain though, to show the imminence of a prosecution

under RA 9372 by alluding to past rebellion charges against them.

In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed
in 2006 against then Party-List Representatives Crispin Beltran and Rafael Mariano
of Anakpawis, Liza Maza of GABRIELA, and Joel Virador, Teodoro Casi�o and Saturnino
Ocampo of Bayan Muna. Also named in the dismissed rebellion charges were
petitioners Rey Claro Casambre, Carolina Pagaduan-Araullo, Renato Reyes, Rita Baua,
Emerencia de Jesus and Danilo Ramos; and accused of being front organizations for
the Communist movement were petitioner-organizations KMU, BAYAN, GABRIELA,
PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE.26

The dismissed rebellion charges, however, do not save the day for petitioners. For
one, those charges were filed in 2006, prior to the enactment of RA 9372, and
dismissed by this Court. For another, rebellion is defined and punished under the
Revised Penal Code. Prosecution for rebellion is not made more imminent by the
enactment of RA 9372, nor does the enactment thereof make it easier to charge a
person with rebellion, its elements not having been altered.

Conversely, previously filed but dismissed rebellion charges bear no relation to

prospective charges under RA 9372. It cannot be overemphasized that three years
after the enactment of RA 9372, none of petitioners has been charged.

Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on
their sworn duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA
9372 directing it to render assistance to those arrested or detained under the law.

The mere invocation of the duty to preserve the rule of law does not, however,
suffice to clothe the IBP or any of its members with standing.27 The IBP failed to
sufficiently demonstrate how its mandate under the assailed statute revolts against
its constitutional rights and duties. Moreover, both the IBP and CODAL have not
pointed to even a single arrest or detention effected under RA 9372.

Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of
"political surveillance," also lacks locus standi. Prescinding from the veracity,
let alone legal basis, of the claim of "political surveillance," the Court finds
that she has not shown even the slightest threat of being charged under RA 9372.
Similarly lacking in locus standi are former Senator Wigberto Ta�ada and Senator
Sergio Osme�a III, who cite their being respectively a human rights advocate and an
oppositor to the passage of RA 9372. Outside these gratuitous statements, no
concrete injury to them has been pinpointed.

Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in
G.R. No. 178552 also conveniently state that the issues they raise are of
transcendental importance, "which must be settled early" and are of "far-reaching
implications," without mention of any specific provision of RA 9372 under which
they have been charged, or may be charged. Mere invocation of human rights advocacy
has nowhere been held sufficient to clothe litigants with locus standi. Petitioners
must show an actual, or immediate danger of sustaining, direct injury as a result
of the law�s enforcement. To rule otherwise would be to corrupt the settled
doctrine of locus standi, as every worthy cause is an interest shared by the
general public.

Neither can locus standi be conferred upon individual petitioners as taxpayers and
citizens. A taxpayer suit is proper only when there is an exercise of the spending
or taxing power of Congress,28 whereas citizen standing must rest on direct and
personal interest in the proceeding.29

RA 9372 is a penal statute and does not even provide for any appropriation from
Congress for its implementation, while none of the individual petitioner-citizens
has alleged any direct and personal interest in the implementation of the law.

It bears to stress that generalized interests, albeit accompanied by the assertion

of a public right, do not establish locus standi. Evidence of a direct and personal
interest is key.

Petitioners fail to present an actual case or controversy

By constitutional fiat, judicial power operates only when there is an actual case
or controversy.

Section 1. The judicial power shall be vested in one Supreme Court and in such
lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable, and to
determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government.30 (emphasis and underscoring supplied.)

As early as Angara v. Electoral Commission,31 the Court ruled that the power of
judicial review is limited to actual cases or controversies to be exercised after
full opportunity of argument by the parties. Any attempt at abstraction could only
lead to dialectics and barren legal questions and to sterile conclusions unrelated
to actualities.

An actual case or controversy means an existing case or controversy that is

appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.32
Information Technology Foundation of the Philippines v. COMELEC33 cannot be more
emphatic:

[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly

interest, however intellectually challenging. The controversy must be
justiciable�definite and concrete, touching on the legal relations of parties
having adverse legal interests. In other words, the pleadings must show an active
antagonistic assertion of a legal right, on the one hand, and a denial thereof on
the other hand; that is, it must concern a real and not merely a theoretical
question or issue. There ought to be an actual and substantial controversy
admitting of specific relief through a decree conclusive in nature, as
distinguished from an opinion advising what the law would be upon a hypothetical
state of facts. (Emphasis and underscoring supplied)

Thus, a petition to declare unconstitutional a law converting the Municipality of

Makati into a Highly Urbanized City was held to be premature as it was tacked on
uncertain, contingent events.34 Similarly, a petition that fails to allege that an
application for a license to operate a radio or television station has been denied
or granted by the authorities does not present a justiciable controversy, and
merely wheedles the Court to rule on a hypothetical problem.35

The Court dismissed the petition in Philippine Press Institute v. Commission on

Elections36 for failure to cite any specific affirmative action of the Commission
on Elections to implement the assailed resolution. It refused, in Abbas v.
Commission on Elections,37 to rule on the religious freedom claim of the therein
petitioners based merely on a perceived potential conflict between the provisions
of the Muslim Code and those of the national law, there being no actual controversy
between real litigants.

The list of cases denying claims resting on purely hypothetical or anticipatory

grounds goes on ad infinitum.

The Court is not unaware that a reasonable certainty of the occurrence of a

perceived threat to any constitutional interest suffices to provide a basis for
mounting a constitutional challenge. This, however, is qualified by the requirement
that there must be sufficient facts to enable the Court to intelligently adjudicate
the issues.38

Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,39

allowed the pre-enforcement review of a criminal statute, challenged on vagueness
grounds, since plaintiffs faced a "credible threat of prosecution" and "should not
be required to await and undergo a criminal prosecution as the sole means of
seeking relief."40 The plaintiffs therein filed an action before a federal court to
assail the constitutionality of the material support statute, 18 U.S.C. �2339B (a)
(1),41 proscribing the provision of material support to organizations declared by
the Secretary of State as foreign terrorist organizations. They claimed that they
intended to provide support for the humanitarian and political activities of two
such organizations.

Prevailing American jurisprudence allows an adjudication on the merits when an

anticipatory petition clearly shows that the challenged prohibition forbids the
conduct or activity that a petitioner seeks to do, as there would then be a
justiciable controversy.42

Unlike the plaintiffs in Holder, however, herein petitioners have failed to show
that the challenged provisions of RA 9372 forbid constitutionally protected conduct
or activity that they seek to do. No demonstrable threat has been established, much
less a real and existing one.
Petitioners� obscure allegations of sporadic "surveillance" and supposedly being
tagged as "communist fronts" in no way approximate a credible threat of
prosecution. From these allegations, the Court is being lured to render an advisory
opinion, which is not its function.43

Without any justiciable controversy, the petitions have become pleas for
declaratory relief, over which the Court has no original jurisdiction. Then again,
declaratory actions characterized by "double contingency," where both the activity
the petitioners intend to undertake and the anticipated reaction to it of a public
official are merely theorized, lie beyond judicial review for lack of ripeness.44

The possibility of abuse in the implementation of RA 9372 does not avail to take
the present petitions out of the realm of the surreal and merely imagined. Such
possibility is not peculiar to RA 9372 since the exercise of any power granted by
law may be abused.45 Allegations of abuse must be anchored on real events before
courts may step in to settle actual controversies involving rights which are
legally demandable and enforceable.

A facial invalidation of a statute is allowed only in free speech cases, wherein

certain rules of constitutional litigation are rightly excepted

Petitioners assail for being intrinsically vague and
definition of the crime of terrorism46 under RA 9372
and extraordinary fear and panic among the populace"
give in to an unlawful demand" are nebulous, leaving
no standard to measure the prohibited acts.
impermissibly broad the
in that terms like "widespread
and "coerce the government to
law enforcement agencies with

Respondents, through the OSG, counter that the doctrines of void-for-vagueness and
overbreadth find no application in the present case since these doctrines apply
only to free speech cases; and that RA 9372 regulates conduct, not speech.

For a jurisprudentially guided understanding of these doctrines, it is imperative

to outline the schools of thought on whether the void-for-vagueness and overbreadth
doctrines are equally applicable grounds to assail a penal statute.

Respondents interpret recent jurisprudence as slanting toward the idea of limiting

the application of the two doctrines to free speech cases. They particularly cite
Romualdez v. Hon. Sandiganbayan47 and Estrada v. Sandiganbayan.48

The Court clarifies.

At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section

549 of the Anti-Graft and Corrupt Practices Act was intrinsically vague and
impermissibly broad. The Court stated that "the overbreadth and the vagueness
doctrines have special application only to free-speech cases," and are "not
appropriate for testing the validity of penal statutes."50 It added that, at any
rate, the challenged provision, under which the therein petitioner was charged, is
not vague.51

While in the subsequent case of Romualdez v. Commission on Elections,52 the Court

stated that a facial invalidation of criminal statutes is not appropriate, it
nonetheless proceeded to conduct a vagueness analysis, and concluded that the
therein subject election offense53 under the Voter�s Registration Act of 1996, with
which the therein petitioners were charged, is couched in precise language.54

The two Romualdez cases rely heavily on the Separate Opinion55 of Justice Vicente
V. Mendoza in the Estrada case, where the Court found the Anti-Plunder Law
(Republic Act No. 7080) clear and free from ambiguity respecting the definition of
the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two doctrines to the
concept of a "facial" invalidation as opposed to an "as-applied" challenge. He
basically postulated that allegations that a penal statute is vague and overbroad
do not justify a facial review of its validity. The pertinent portion of the
Concurring Opinion of Justice Mendoza, which was quoted at length in the main
Estrada decision, reads:

A facial challenge is allowed to be made to a vague statute and to one which is

overbroad because of possible "chilling effect" upon protected speech. The theory
is that "[w]hen statutes regulate or proscribe speech and no readily apparent
construction suggests itself as a vehicle for rehabilitating the statutes in a
single prosecution, the transcendent value to all society of constitutionally
protected expression is deemed to justify allowing attacks on overly broad statutes
with no requirement that the person making the attack demonstrate that his own
conduct could not be regulated by a statute drawn with narrow specificity." The
possible harm to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may be deterred
and perceived grievances left to fester because of possible inhibitory effects of
overly broad statutes.

This rationale does not apply to penal statutes. Criminal statutes have general in
terrorem effect resulting from their very existence, and, if facial challenge is
allowed for this reason alone, the State may well be prevented from enacting laws
against socially harmful conduct. In the area of criminal law, the law cannot take
chances as in the area of free speech.

The overbreadth and vagueness doctrines then have special application only to free
speech cases. They are inapt for testing the validity of penal statutes. As the
U.S. Supreme Court put it, in an opinion by Chief Justice Rehnquist, "we have not
recognized an 'overbreadth' doctrine outside the limited context of the First
Amendment." In Broadrick v. Oklahoma, the Court ruled that "claims of facial
overbreadth have been entertained in cases involving statutes which, by their
terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if
entertained at all, have been curtailed when invoked against ordinary criminal laws
that are sought to be applied to protected conduct." For this reason, it has been
held that "a facial challenge to a legislative act is the most difficult challenge
to mount successfully, since the challenger must establish that no set of
circumstances exists under which the Act would be valid." As for the vagueness
doctrine, it is said that a litigant may challenge a statute on its face only if it
is vague in all its possible applications. "A plaintiff who engages in some conduct
that is clearly proscribed cannot complain of the vagueness of the law as applied
to the conduct of others."

In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical
tools developed for testing "on their faces" statutes in free speech cases or, as
they are called in American law, First Amendment cases. They cannot be made to do
service when what is involved is a criminal statute. With respect to such statute,
the established rule is that "one to whom application of a statute is
constitutional will not be heard to attack the statute on the ground that impliedly
it might also be taken as applying to other persons or other situations in which
its application might be unconstitutional." As has been pointed out, "vagueness
challenges in the First Amendment context, like overbreadth challenges typically
produce facial invalidation, while statutes found vague as a matter of due process
typically are invalidated [only] 'as applied' to a particular defendant."
Consequently, there is no basis for petitioner's claim that this Court review the
Anti-Plunder Law on its face and in its entirety.

Indeed, "on its face" invalidation of statutes results in striking them down
entirely on the ground that they might be applied to parties not before the Court
whose activities are constitutionally protected. It constitutes a departure from
the case and controversy requirement of the Constitution and permits decisions to
be made without concrete factual settings and in sterile abstract contexts. But, as
the U.S. Supreme Court pointed out in Younger v. Harris

[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and

requiring correction of these deficiencies before the statute is put into effect,
is rarely if ever an appropriate task for the judiciary. The combination of the
relative remoteness of the controversy, the impact on the legislative process of
the relief sought, and above all the speculative and amorphous nature of the
required line-by-line analysis of detailed statutes, . . . ordinarily results in a
kind of case that is wholly unsatisfactory for deciding constitutional questions,
whichever way they might be decided.

For these reasons, "on its face" invalidation of statutes has been described as
"manifestly strong medicine," to be employed "sparingly and only as a last resort,"
and is generally disfavored. In determining the constitutionality of a statute,
therefore, its provisions which are alleged to have been violated in a case must be
examined in the light of the conduct with which the defendant is charged.56
(Underscoring supplied.)

The confusion apparently stems from the interlocking relation of the overbreadth
and vagueness doctrines as grounds for a facial or as-applied challenge against a
penal statute (under a claim of violation of due process of law) or a speech
regulation (under a claim of abridgement of the freedom of speech and cognate
rights).

To be sure, the doctrine of vagueness and the doctrine of overbreadth do not

operate on the same plane.

A statute or act suffers from the defect of vagueness when it lacks comprehensible
standards that men of common intelligence must necessarily guess at its meaning and
differ as to its application. It is repugnant to the Constitution in two respects:
(1) it violates due process for failure to accord persons, especially the parties
targeted by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an
arbitrary flexing of the Government muscle.57 The overbreadth doctrine, meanwhile,
decrees that a governmental purpose to control or prevent activities
constitutionally subject to state regulations may not be achieved by means which
sweep unnecessarily broadly and thereby invade the area of protected freedoms.58

As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that
individuals will understand what a statute prohibits and will accordingly refrain
from that behavior, even though some of it is protected.59

A "facial" challenge is likewise different from an "as-applied" challenge.

Distinguished from an as-applied challenge which considers only extant facts

affecting real litigants, a facial invalidation is an examination of the entire
law, pinpointing its flaws and defects, not only on the basis of its actual
operation to the parties, but also on the assumption or prediction that its very
existence may cause others not before the court to refrain from constitutionally
protected speech or activities.60

Justice Mendoza accurately phrased the subtitle61 in his concurring opinion that
the vagueness and overbreadth doctrines, as grounds for a facial challenge, are not
applicable to penal laws. A litigant cannot thus successfully mount a facial
challenge against a criminal statute on either vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by the aim to
avert the "chilling effect" on protected speech, the exercise of which should not
at all times be abridged.62 As reflected earlier, this rationale is inapplicable to
plain penal statutes that generally bear an "in terrorem effect" in deterring
socially harmful conduct. In fact, the legislature may even forbid and penalize
acts formerly considered innocent and lawful, so long as it refrains from
diminishing or dissuading the exercise of constitutionally protected rights.63

The Court reiterated that there are "critical limitations by which a criminal
statute may be challenged" and "underscored that an �on-its-face� invalidation of
penal statutes x x x may not be allowed."64

[T]he rule established in our jurisdiction is, only statutes on free speech,
religious freedom, and other fundamental rights may be facially challenged. Under
no case may ordinary penal statutes be subjected to a facial challenge. The
rationale is obvious. If a facial challenge to a penal statute is permitted, the
prosecution of crimes may be hampered. No prosecution would be possible. A strong
criticism against employing a facial challenge in the case of penal statutes, if
the same is allowed, would effectively go against the grain of the doctrinal
requirement of an existing and concrete controversy before judicial power may be
appropriately exercised. A facial challenge against a penal statute is, at best,
amorphous and speculative. It would, essentially, force the court to consider third
parties who are not before it. As I have said in my opposition to the allowance of
a facial challenge to attack penal statutes, such a test will impair the State�s
ability to deal with crime. If warranted, there would be nothing that can hinder an
accused from defeating the State�s power to prosecute on a mere showing that, as
applied to third parties, the penal statute is vague or overbroad, notwithstanding
that the law is clear as applied to him.65 (Emphasis and underscoring supplied)

It is settled, on the other hand, that the application of the overbreadth doctrine
is limited to a facial kind of challenge and, owing to the given rationale of a
facial challenge, applicable only to free speech cases.

By its nature, the overbreadth doctrine has to necessarily apply a facial type of
invalidation in order to plot areas of protected speech, inevitably almost always
under situations not before the court, that are impermissibly swept by the
substantially overbroad regulation. Otherwise stated, a statute cannot be properly
analyzed for being substantially overbroad if the court confines itself only to
facts as applied to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an

exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or
her; if the litigant prevails, the courts carve away the unconstitutional aspects
of the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third
parties and can only assert their own interests. In overbreadth analysis, those
rules give way; challenges are permitted to raise the rights of third parties; and
the court invalidates the entire statute "on its face," not merely "as applied for"
so that the overbroad law becomes unenforceable until a properly authorized court
construes it more narrowly. The factor that motivates courts to depart from the
normal adjudicatory rules is the concern with the "chilling;" deterrent effect of
the overbroad statute on third parties not courageous enough to bring suit. The
Court assumes that an overbroad law�s "very existence may cause others not before
the court to refrain from constitutionally protected speech or expression." An
overbreadth ruling is designed to remove that deterrent effect on the speech of
those third parties.66 (Emphasis in the original omitted; underscoring supplied.)
In restricting the overbreadth doctrine to free speech claims, the Court, in at
least two cases,67 observed that the US Supreme Court has not recognized an
overbreadth doctrine outside the limited context of the First Amendment,68 and that
claims of facial overbreadth have been entertained in cases involving statutes
which, by their terms, seek to regulate only spoken words.69 In Virginia v.
Hicks,70 it was held that rarely, if ever, will an overbreadth challenge succeed
against a law or regulation that is not specifically addressed to speech or speech-
related conduct. Attacks on overly broad statutes are justified by the
"transcendent value to all society of constitutionally protected expression."71

Since a penal statute may only be assailed for being vague as applied to
petitioners, a limited vagueness analysis of the definition of "terrorism" in RA
9372 is legally impermissible absent an actual or imminent charge against them

While Estrada did not apply the overbreadth doctrine, it did not preclude the
operation of the vagueness test on the Anti-Plunder Law as applied to the therein
petitioner, finding, however, that there was no basis to review the law "on its
face and in its entirety."72 It stressed that "statutes found vague as a matter of
due process typically are invalidated only 'as applied' to a particular
defendant."73

American jurisprudence74 instructs that "vagueness challenges that do not involve

the First Amendment must be examined in light of the specific facts of the case at
hand and not with regard to the statute's facial validity."

For more than 125 years, the US Supreme Court has evaluated defendants� claims that
criminal statutes are unconstitutionally vague, developing a doctrine hailed as
"among the most important guarantees of liberty under law."75

In this jurisdiction, the void-for-vagueness doctrine asserted under the due

process clause has been utilized in examining the constitutionality of criminal
statutes. In at least three cases,76 the Court brought the doctrine into play in
analyzing an ordinance penalizing the non-payment of municipal tax on fishponds,
the crime of illegal recruitment punishable under Article 132(b) of the Labor Code,
and the vagrancy provision under Article 202 (2) of the Revised Penal Code.
Notably, the petitioners in these three cases, similar to those in the two
Romualdez and Estrada cases, were actually charged with the therein assailed penal
statute, unlike in the present case.

There is no merit in the claim that RA 9372 regulates speech so as to permit a

facial analysis of its validity

From the definition of the crime of terrorism in the earlier cited Section 3 of RA
9372, the following elements may be culled: (1) the offender commits an act
punishable under any of the cited provisions of the Revised Penal Code, or under
any of the enumerated special penal laws; (2) the commission of the predicate crime
sows and creates a condition of widespread and extraordinary fear and panic among
the populace; and (3) the offender is actuated by the desire to coerce the
government to give in to an unlawful demand.

In insisting on a facial challenge on the invocation that the law penalizes speech,
petitioners contend that the element of "unlawful demand" in the definition of
terrorism77 must necessarily be transmitted through some form of expression
protected by the free speech clause.

The argument does not persuade. What the law seeks to penalize is conduct, not
speech.

Before a charge for terrorism may be filed under RA 9372, there must first be a
predicate crime actually committed to trigger the operation of the key qualifying
phrases in the other elements of the crime, including the coercion of the
government to accede to an "unlawful demand." Given the presence of the first
element, any attempt at singling out or highlighting the communicative component of
the prohibition cannot recategorize the unprotected conduct into a protected
speech.

Petitioners� notion on the transmission of message is entirely inaccurate, as it

unduly focuses on just one particle of an element of the crime. Almost every
commission of a crime entails some mincing of words on the part of the offender
like in declaring to launch overt criminal acts against a victim, in haggling on
the amount of ransom or conditions, or in negotiating a deceitful transaction. An
analogy in one U.S. case78 illustrated that the fact that the prohibition on
discrimination in hiring on the basis of race will require an employer to take down
a sign reading "White Applicants Only" hardly means that the law should be analyzed
as one regulating speech rather than conduct.

Utterances not elemental but inevitably incidental to the doing of the criminal
conduct alter neither the intent of the law to punish socially harmful conduct nor
the essence of the whole act as conduct and not speech. This holds true a fortiori
in the present case where the expression figures only as an inevitable incident of
making the element of coercion perceptible.

[I]t is true that the agreements and course of conduct here were as in most
instances brought about through speaking or writing. But it has never been deemed
an abridgement of freedom of speech or press to make a course of conduct illegal
merely because the conduct was, in part, initiated, evidenced, or carried out by
means of language, either spoken, written, or printed. Such an expansive
interpretation of the constitutional guaranties of speech and press would make it
practically impossible ever to enforce laws against agreements in restraint of
trade as well as many other agreements and conspiracies deemed injurious to
society.79 (italics and underscoring supplied)

Certain kinds of speech have been treated as unprotected conduct, because they
merely evidence a prohibited conduct.80 Since speech is not involved here, the
Court cannot heed the call for a facial analysis.1avvphi1

IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of
the therein subject penal statute as applied to the therein petitioners inasmuch as
they were actually charged with the pertinent crimes challenged on vagueness
grounds. The Court in said cases, however, found no basis to review the assailed
penal statute on its face and in its entirety.

In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement
review of a criminal statute, challenged on vagueness grounds, since the therein
plaintiffs faced a "credible threat of prosecution" and "should not be required to
await and undergo a criminal prosecution as the sole means of seeking relief."

As earlier reflected, petitioners have established neither an actual charge nor a

credible threat of prosecution under RA 9372. Even a limited vagueness analysis of
the assailed definition of "terrorism" is thus legally impermissible. The Court
reminds litigants that judicial power neither contemplates speculative counseling
on a statute�s future effect on hypothetical scenarios nor allows the courts to be
used as an extension of a failed legislative lobbying in Congress.

WHEREFORE, the petitions are DISMISSED.

SO ORDERED.
========================

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JULAIDE SIYOH, OMAR-KAYAM

KIRAM, NAMLI INDANAN and ANDAW JAMAHALI, Accused-Appellants.

D E C I S I O N

ABAD SANTOS, J.:

This is an automatic review of the decision of the defunct Court of First Instance
of Basilan, Judge Jainal D. Rasul as ponente, imposing the death penalty.

In Criminal Case No. 318 of the aforesaid court, JULAIDE SIYOH, OMARKAYAM KIRAM,
NAMLI INDANAN and ANDAW JAMAHALI were accused of qualified piracy with triple
murder and frustrated murder said to have been committed according to the
information as follows:jgc:chanrobles.com.ph

"That on or about the 14th day of July, 1979, and within the jurisdiction of this
Honorable Court, viz., at Mataja Is., Municipality of Lantawan, Province of
Basilan, Philippines, the above named accused, being strangers and without lawful
authority, armed with firearms and taking advantage of their superior strength,
conspiring and confederating together, aiding and assisting one with the other,
with intent to gain and by the use of violence or intimidation against persons and
force upon things, did then and there willfully, unlawfully and feloniously, fire
their guns into the air and stop the pumpboat wherein Rodolfo de Castro, Danilo
Hiolen, Anastacio de Guzman and Antonio de Guzman were riding, traveling at that
time from the island of Baluk-Baluk towards Pilas, boarded the said pumpboat and
take, steal and carry away all their cash money, wrist watches, stereo sets,
merchandise and other personal belongings amounting to the total amount of
P18,342.00, Philippine Currency; that the said accused, on the occasion of the
crime herein above-described, taking advantage that the said victims were at their
mercy, did then and there willfully, unlawfully and feloniously, with intent to
kill, ordered them to jump into the water, whereupon, the said accused, fired their
guns at them which caused the death of Rodolfo de Castro, Danilo Hiolen, Anastacio
de Guzman and wounding one Antonio de Guzman; thus the accused have performed all
the acts of execution which would have produced the crime of Qualified Piracy with
Quadruple Murder, but which nevertheless, did not produce it by reasons of causes
in dependent of their will, that is, said Antonio de Guzman was able to swim to the
shore and hid himself, and due to the timely medical assistance rendered to said
victim, Antonio de Guzman, which prevented his death." (Expediente, pp. 1-2.)

An order of arrest was issued against all of the accused but only Julaide Siyoh and
Omarkayam Kiram were apprehended. (Id., p.8.)

After trial, the court a quo rendered a decision with the following dispositive
portion.

"WHEREFORE, in view of the foregoing considerations, this Court finds the accused
Omarkayam Kiram and Julaide Siyoh guilty beyond reasonable doubt of the crime of
Qualified Piracy with Triple Murder and Frustrated Murder as defined and penalized
under the provision of Presidential Decree No. 532, and hereby sentences each one
of them to suffer the supreme penalty of DEATH. However, considering the provision
of Section 106 of the Code of Mindanao and Sulu, the illiteracy or ignorance or
extreme poverty of the accused who are members of the cultural minorities, under a
regime of so-called compassionate society, a commutation to life imprisonment is
recommended." (Id., p. 130.)
In their appeal, Siyoh and Kiram make only one assignment of
error:jgc:chanrobles.com.ph

"THE LOWER COURT ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANTS
OMARKAYAM KIRAM AND JULAIDE SIYOH HAS BEEN PROVED BEYOND REASONABLE DOUBT." (Brief,
p. 8.)

The People�s version of the facts is as follows:chanrobles law library

"Alberto Aurea was a businessman engaged in selling dry goods at the Lamitan Public
Market, in the province of Basilan (pp. 2-3, tsn). On July 7, 1979 and on July 10,
1979, Antonio de Guzman, Danilo Hiolen, Rodolfo de Castro and Anastacio de Guzman
received goods from his store consisting of mosquito nets, blankets, wrist watch
sets and stereophono with total value of P15,000 more or less (pp. 4-6, tsn). The
goods were received under an agreement that they would be sold by the above-named
persons and thereafter they would pay the value of said goods to Aurea and keep
part of the profits for themselves. However these people neither paid the value of
the goods to Aurea nor returned the goods to him (pp. 6-7, tsn). On July 15, 1979,
Aurea was informed by Antonio de Guzman that his group was heldup near Baluk-Baluk
Island and that his companions were hacked (p. 8, tsn). On July 16, 1979, the
bodies of Rodolfo de Castro, Danilo Hiolen and Anastacio de Guzman were brought by
the PC seaborne patrol to Isabela, Basilan (pp. 17-18, 29, tsn). Only Antonio de
Guzman survived the incident that caused the death of his companions.

"It appears that on July 10, 1979, Antonio de Guzman together with his friends who
were also travelling merchants like him, were on their way to Pilas Island,
Province of Basilan, to sell the goods they received from Alberto Aurea. The goods
they brought with them had a total value of P18,000.00 (pp. 36-37, tsn). They left
for Pilas Island at 2:00 p.m. of July 10, 1979 on a pumpboat. They took their
dinner and slept that night in the house of Omarkayam Kiram at Pilas Island (pp.
87-38, tsn).

"The following day, July 11, 1979, de Guzman�s group, together with Kiram and
Julaide Siyoh, started selling their goods. They were able to sell goods worth
P3,500.00. On July 12, 1979, the group, again accompanied by Kiram and Siyoh, went
to sell their goods at another place, Sangbay, where they sold goods worth
P12,000.00 (pp. 40-42, tsn). They returned to Pilas Island at 5:00 o�clock in the
afternoon and again slept at Kiram�s house. However that night Kiram did not sleep
in his house, and upon inquiry the following day when Antonio de Guzman saw him,
Kiram told the former that he slept at the house of Siyoh.

"On that day, July 13, 1979, the group of Antonio de Guzman went to Baluk-Baluk, a
place suggested by Kiram. They were able to sell goods worth P3,000.00 (pp. 43-46,
tsn). They returned to Pilas Island for the night but Kiram did not sleep with them
(p. 47, tsn).

"The following day, July 14, 1979, the group again went to Baluk-Baluk accompanied
by Kiram and Siyoh (pp 48, 50 tsn). They used the pumpboat of Kiram. Kiram and
Siyoh were at that time armed with �barongs�. They arrived at Baluk-Baluk at about
10:00 o�clock in the morning and upon arrival at the place Kiram and Siyoh going
ahead of the group went to a house about 15 meters away from the place where the
group was selling its goods (pp. 50-53, tsn). Kiram and Siyoh were seen by the
group talking with two persons whose faces the group saw but could not recognize
(pp. 53-54, tsn). After selling their goods, the members of the group, together
with Kiram and Siyoh, prepared to return to Pilas Island. They rode on a pumpboat
where Siyoh positioned himself at the front while Kiram operated the engine. On the
way to Pilas Island, Antonio de Guzman saw another pumpboat painted red and green
about 200 meters away from their pumpboat (pp. 55, tsn). Shortly after, Kiram
turned off the engine of their pumpboat. Thereafter two shots were fired from the
other pumpboat as it moved towards them (pp. 57-58, tsn). There were two persons on
the other pumpboat who were armed with armalites. De Guzman recognized them to be
the same persons he saw Kiram conversing with in a house at Baluk-Baluk Island.
When the boat came close to them, Kiram threw a rope to the other pumpboat which
towed de Guzman�s pumpboat towards Mataja Island. On the way to Mataja Island,
Antonio de Guzman and his companions were divested of their money and their goods
by Kiram (pp. 59-61, tsn). Thereafter Kiram and his companions ordered the group of
de Guzman to undress. Taking fancy on the pants of Antonio de Guzman, Kiram put it
on. With everybody undressed, Kiram said, �It was good to kill all of you�. After
that remark, Siyoh hacked Danilo Hiolen while Kiram hacked Rodolfo de Castro.
Antonio de Guzman jumped into the water. As he was swimming away from the pumpboat,
the two companions of Kiram fired at him, injuring his back (pp. 62-65, tsn), But
he was able to reach a mangrove where he stayed till nightfall. When he left the
mangrove, he saw the dead bodies of Anastacio de Guzman, Danilo Hiolen and Rodolfo
de Castro. He was picked up by a fishing boat and brought to the Philippine Army
station at Maluso where he received first aid treatment. Later he was brought to
the J.S. Alano Memorial Hospital at Isabela, Basilan province (pp. 66-68, tsn).

"On July 15 1979, while waiting for the dead bodies of his companions at the wharf,
de Guzman saw Siyoh and Kiram. He pointed them out to the PC and the two were
arrested before they could run. When arrested, Kiram was wearing the pants he took
from de Guzman and de Guzman had to ask Pat. Bayabas at the Provincial Jail to get
back his pants from Kiram (pp. 69-72, tsn).

"Antonio de Guzman was physically examined at the J.S. Alano Memorial Hospital at
Isabela, Basilan and findings showed: �gunshot wound, scapular area, bilateral,
tangenital" (Exh. C, prosecution). (pp. 134-136, tsn). Dr. Jaime M. Junio,
Provincial Health Officer of Basilan, examined the dead bodies of Rodolfo de Castro
and Danilo Hiolen and issued the corresponding death certificates (Exhs. D and E,
prosecution). (pp, 137-138: 140-141, tsn)." (Brief, pp. 5-11.)

As can be seen from the lone assignment of error, the issue is the credibility of
witnesses. Who should be believed � Antonio de Guzman who was the lone prosecution
eye-witness or Siyoh and Kiram the accused-appellants who claims that they were
also the victims of the crime? The trial court which had the opportunity of
observing the demeanor of the witnesses and how they testified assigned credibility
to the former and an examination of the record does not reveal any fact or
circumstance of weight and influence which was overlooked or the significance of
which was misinterpreted as would justify a reversal of the trial court�s
determination. Additionally, the following claims of the appellants are not
convincing:chanrob1es virtual 1aw library

1. That if they were the culprits they could have easily robbed their victims at
the Kiram house or on any of the occasions when they were travelling together,
Suffice it to say that robbing the victims at Kiram�s house would make Kiram and
his family immediately suspect and robbing the victims before they had sold all
their goods would be premature. However, robbing and killing the victims while at
sea and after they had sold all their goods was both timely and provided safety
from prying eyes.

2. That the accused immediately reported the incident to the PC. The record does
not support this assertion. For as the prosecution stated: "It is of important
consequence to mention that the witness presented by the defense are all from Pilas
Island and friends of the accused. They claimed to be members of retrieving team
for the dead bodies but no PC soldiers were ever presented to attest this fact. The
defense may counter why the prosecution also failed to present the Maluso Police
Daily Event book? This matter has been brought by Antonio not to the attention of
the PC or Police but to an army detachment. The Army is known to have no docket
book, so why take the pain in locating the army soldiers with whom the report was
made? (Memorandum, p. 7.) And Judge Rasul also makes this observation: ". . ., this
Court is puzzled, assuming the version of the defense to be true, why the lone
survivor Antonio de Guzman as having been allegedly helped by the accused testified
against them. Indeed, no evidence was presented and nothing can be inferred from
the evidence of the defense so far presented showing reason why the lone survivor
should pervert the truth or fabricate or manufacture such heinous crime as
qualified piracy with triple murders and frustrated murder? The point which makes
us doubt the version of the defense is the role taken by the PC to whom the report
was allegedly made by the accused immediately after the commission of the offense.
Instead of helping the accused, the PC law enforcement agency in Isabela, perhaps
not crediting the report of the accused or believing in the version of the report
made by the lone survivor Antonio de Guzman, acted consistently with the latter�s
report and placed the accused under detention for investigation." (Expediente, pp.
127-128.)

3. That the affidavits of Dolores de Guzman, wife of the deceased Anastacio de

Guzman, and Primitiva de Castro, wife of the deceased Rodolfo de Castro, state that
Antonio de Guzman informed them shortly after the incident that their husbands were
killed by the companions of Siyoh and Kiram. The thrust of the appellants� claim,
therefore, is that Namli Indanan and Andaw Jamahali were the killers and not the
former. But this claim is baseless in the face of the proven conspiracy among the
accused for as Judge Rasul has stated:jgc:chanrobles.com.ph

"It is believed that conspiracy as alleged in the information is sufficiently

proved in this case. In fact the following facts appear to have been established to
show clearly conspiracy: A) On July 14, 1979, while peddling, the survivor witness
Tony de Guzman noticed that near the window of a dilapidated house, both accused
were talking to two (2) armed strange-looking men at Baluk-Baluk Island: B) When
the pumpboat was chased and overtaken, the survivor-witness Tony de Guzman
recognized their captors to be the same two (2) armed strangers to whom the two
accused talked in Baluk-Baluk Island near the dilapidated house: C) The two
accused, without order from the two armed strangers transferred the unsold goods to
the captors banca: D) That Tony de Guzman and companion peddlers were divested of
their jewelries and cash and undressed while the two accused remained unharmed or
not molested. These concerted actions on their part prove conspiracy and make them
equally liable for the same crime (People v. Pedro. 16 SCRA 67: People v. Indic, 10
SCRA 130). The convergence of the will of the conspirators in the scheming and
execution of the crime amply justifies the imputation of all of them the act of any
of them (People v. Peralta. 25 SCRA, 759)." (Id., pp. 128-129.)

4. That there is no evidence Anastacio de Guzman was killed together with Rodolfo
de Castro and Danilo Hiolen because his remains were never recovered. There is no
reason to suppose that Anastacio de Guzman is still alive or that he died in a
manner different from his companions. The incident took place on July 14, 1979 and
when the trial court decided the case on June 8, 1981 Anastacio de Guzman was still
missing. But the number of persons killed on the occasion of piracy is not
material. P.D. No. 532 considers qualified piracy, i.e. rape, murder or homicide is
committed as a result or on the occasion of piracy, as a special complex crime
punishable by death regardless of the number of victims.

5. That the death certificates are vague as to the nature of the injuries sustained
by the victims; were they hacked wounds or gunshot wounds? The cause of death
stated for Rodolfo de Castro and Danilo Hiolen is: "Hemorrhage due to hacked
wounds, possible gunshot wounds." (Exhs. D and E.) The cause is consistent with the
testimony of Antonio de Guzman that the victims were hacked: that the appellants
were armed with �barongs� while Indanan and Jamahali were armed with armalites.

WHEREFORE, finding the decision under review to be in accord with both the facts
and the law, it is affirmed with the following modifications: (a) for lack of
necessary votes the penalty imposed shall be reclusion perpetua; and (b) each of
the appellants shall pay in solidum to the heirs of each of the deceased indemnity
in the amount of P30,000.00. No special pronouncement as to costs.

SO ORDERED.

Concepcion, Jr, Melencio-Herrera, Plana, Escolin, Gutierrez, Jr., De la Fuente,

Alampay and Patajo, JJ., concur.

Aquino, C.J., took no part.

Teehankee, J., for affirmance of death sentence.

Separate Opinions

CUEVAS, J., concurring:chanrob1es virtual 1aw library

I concur, considering the gravamen of the offense charged the manner by which it
was committed, I vote to affirm the death penalty imposed by the trial court.

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