TREASON

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.

March 2, 1949

G.R. No. L-433THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.GAUDENCIO ROBLE, defendant-appellant.

Gonzalo D. David for appellant.Assistant Solicitor General Roberto A. Gianzon and Solicitor Jaime de los Angeles for appellee.

, J.:

Charged with treason on three counts, the defendant pleaded guilty and was sentenced to death by the First Division of the People’s Court sitting in Tacloban, Leyte. The correctness of the penalty is the sole question put in issue in this appeal.

The information alleges:

1. On or about March 20, 1944, in the municipality of Dalaguete, province of Cebu, Philippines with the purpose of giving and with the intent to give aid and comfort to the enemy and her military forces said accused being a member of the Philippines Constabulary did then and there wilfully unlawfully, feloniously and treasonably lead guide and accompany 10 other member of the pro-Japanese constabulary all armed like the accused and did apprehend and arrest Paulino Osorio for having helped the guerrillas and of being the Father of two guerrilla men; that the herein accused after maltreating said Paulino Osorio did detain him in the municipal jail of Dalaguete; that in the same date the accused and his companions did apprehend Melchor Campomanes and 7 other person who were also tortured for being guerrillas supporters and sympathizers and the accused herein with his firearm did shoot Melchor Campomanes killing him instantly;

2. Sometime during the month of March 1944 in the municipality of Dalaguete Province of Cebu, Philippines with the purpose of giving and with the intent to give aid and comfort to the enemy and her military forces said accused being a soldier of the Philippines Constabulary did then and there wilfully, feloniously and treasonably lead guide and accompany a patrol of 13 constabulary soldiers and did arrest and apprehend Fortunato Linares for being guerrillas and or guerrilla supporters; that said accused did tie and torture the aforesaid person and cut a portion of their ears, the tortures being so severe especially with respect to Antolin Rodriguez who effectively died as a result of said tortures administered by the accused.

3. On or about May 18, 1944, in Cebu City Philippines with the purpose of giving and with the intent to give aid and comfort to the enemy and her military forces, said accused being a soldier of the Philippines Constabulary did then and there wilfully, unlawfully feloniously and treasonable accompany a group of Constabulary soldiers all armed, to Mambaling and other parts of Cebu City and

did apprehend Eleuterio Padilla, a former USAFFE soldier for being a guerrilla, and there herein accused and his companions did tie and torture said Eleuterio Padilla detain him at the Constabulary Headquarters for several days after which he was taken out and mercilessly killed on May 26, 1944 by said accused.

The court held that the facts alleged in the information is a complex crime of treason with murders with the result that the penalty provided for the most serious offense was to be imposed on its maximum degree. Viewing the case from the standpoint of modifying circumstances the court believed that the same result obtained. It opined that the killing were murders qualified by treachery and aggravated by the circumstances of evident premeditation superior strength cruelty and an armed band.

We think this is error. The torture and murders set forth in the information are merged in and formed part of treason. They were in this case the overt acts which besides traitorous intention supplied a vital ingredient in the crime. Emotional or intellectual attachment and sympathy with the foe unaccompanied by the giving of aid and comfort is not treason. The defendant would not be guilty of treason if he had not committed the atrocities in question.

On the question of the applicability of the aggravating circumstances which impelled the court against its sentiment to give the defendant the extreme penalty we only have to refer to People vs. Racaza (82 Phil. 623) in which this question was discussed and decided. There we said:

The trial court found the aggravating circumstances of evident premeditation superior strength treachery and employment of means for adding ignominy to the natural effects of the crime.

The first three circumstances are by their nature inherent in the offense of treason and may not taken to aggravate the penalty. Adherence and the giving of aid and comfort to the enemy is in many cases as in this a long continued process requiring for the successful consummation of the traitor’s purpose, fixed, reflective and persistent determination and planning.

So are superior strength and treachery included in the crime of treason. Treachery is merged in superior strength; and to overcome the opposition and wipe out resistance movements which was Racaza’s purpose in collaboration with the enemy the use of a large force and equipment was necessary. The enemy to whom the accused adhered was itself the personification of brute superior force and it was this superior force which enabled him to overrun the country and for a time subdue its inhabitants by his brutal rule. The law does not expect the enemy and its adherents to meet their foes only on even terms according to he romantic traditions of chivalry.

But the law does abhor inhumanity and the abuse of strength to commit acts unnecessary to the commission of treason. There is no incompatibility between treason and decent, human treatment of prisoners, Rapes, wanton robbery for personal grain and other forms of cruelties are condemned and the perpetration of these will be regarded as aggravating circumstances of ignominy and of deliberately augmenting unnecessary wrong to the main criminal objective under paragraphs 17 and 21 of Article 14 of the Revised Penal Code. The atrocities above mentioned of which the appellant is beyond doubt guilty fall within the terms of the above paragraphs.

For the very reason that premeditation treachery and use of superior strength are absorbed inn treason characterized by killings, the killing themselves and other accompanying crime should be taken into consideration for measuring the degree and gravity of criminal responsibility irrespective of the manner in which they were committed. Were not this the rule treason the highest crime known to law would confer on its perpetrator advantage that are denied simple murderer. To avoid such incongruity and injustice the penalty in treason will be adapted within the range provided in the Revised Penal Code to the danger and harm and to which the culprit has exposed his country and his people and to the wrongs and injuries that resulted from his deeds. The letter and pervading spirit of the Revised Penal Code adjust penalties to the perversity of the mind that conceived and carried the crime into execution. Where the system of graduating penalties by the prescribed standards is inapplicable as in the case of homicides connection with treason the method of analogies to fit the punishment with the enormity of the offense may be summoned to the service of justice and consistency and in the furtherance of the law’s aims.

Considering all the facts and circumstances of the case we believe that the appellants spontaneous plea of guilty is sufficient to entitle him to a penalty below the maximum. The appealed decision is therefore modified and the sentence reduced to reclusion perpetua with the legal accessories and costs.

G.R. No. L-985             January 23, 1948

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.DIONISIO AGONCILLO, defendant-appellant.

Macario Nicolas for appellant.Assistant Solicitor General Ruperto Kapunan, Jr., and Solicitor Federico V. Sian for appellee.

PARAS, J.:

This is an appeal from the judgment of the People's Court finding the appellant, Dionisio Agoncillo, guilty of treason and sentencing him to suffer fifteen years of reclusion temporal and to pay a fine of two thousand pesos and the costs.

According to the information, from February, 1944, to March, 1945, in Cebu City and its environs, the appellant (1) "did consistently and continuously traffic in war materials and sold them to the enemy," and (2) "did join and serve the enemy as informer, agent, and spy." The People's Court held that the second count was not proven, and the appealed judgment of conviction is predicated solely on the first count.

Under the theory of the prosecution, appellant's adherence to the enemy is inferable from the following alleged facts: (a) In the afternoon of September 20, 1944, while the appellant was taking a bath in the house of his neighbor Rufina Cepeda, the latter's cousin (Olimpio Do), who knew how to read Chinese, examined appellant's clothes and found therein appellant's identification card written in Japanese and Chinese characters tending to show that the appellant was a Japanese undercover. (b) In January 1945, after a trip to Bohol, Rufina Cepeda told the appellant that there were guerrillas in Bohol and that Japanese notes were no longer accepted in said place. In the evening of the next day, Rufina Cepeda was arrested by the Japanese and their undercovers and asked about things she saw in Bohol. Rufina was detained for three days. After her release, the appellant came to her house and got some chickens for the consumption of the Japanese who arrested her. A Japanese also used to sleep once in a while in appellant's house.

Upon the other hand, appellant's alleged overt acts of giving aid and comfort to the enemy are summarized in the brief for Government as follows: In the middle of April, 1944, the appellant sold about 300 kilos of alum crystals, at three pesos a kilo, to the Keribo, a construction company operated by the Japanese Army. Two or three weeks thereafter, he sold to the same entity some 100 pieces of water pipes, the price of which was not known. About the third week of December, 1944, the appellant was seen

on Jones Avenue helping push a handcart full of truck and auto tires, batteries and spare parts into the intermediate and high school premises then used by the Japanese Army as a motor pool.

Regardless of the writer's view on suspension of political laws and change of sovereignty as heretofore expressed, the Court is of the opinion that the overt acts imputed to the appellant have not been duly proven. With respect to the sale of 300 kilos of alum crystals, the testimony of the prosecution witness Lorenzo Barria to the effect that the price was P3 a kilo, is not corroborated by any other witness. With respect to the alleged sale of 100 pieces of water pipes, counsel for the appellee admits that the price thereof was not known. An essential part of the overt act charged in the information was therefore lacking. No pretense was made that the appellant donated the articles in question. The alleged delivery of truck and auto tires, batteries and spare parts can be disregarded. The only detail that may at most be considered established by the prosecution refers to the fact that the appellant helped in pushing a handcart loaded with such articles, and the evidence is even uncertain in one respect, namely that the cart was brought either to the intermediate school premises or the high school building. Indeed it was acknowledged by the lower court that the witnesses for the Government did not know how the appellant disposed of the articles loaded in the cart.

Even supposing, however, that the appellant had really sold for a definite price alum crystals and water pipes, the same did not per se constitute treason. As said articles or materials were not exclusively for war purposes, their sale did not necessarily carry an intention on the part of the vendor to adhere to the enemy. The theory of the prosecution is that the sale was treasonable in view of the other proven acts showing appellant's adherence to the enemy. It appears, however, that the alleged acts of adherence performed by the appellant took place after the overt act in question. It is not unlikely that at the time the appellant made the sale, his motive was purely personal gain, uninfluenced by any benefit inuring to the enemy. Where two probabilities arise from the evidence, the one compatible with the presumption of innocence will be adopted. (People vs. Agpangan, G.R. No. L-778, October 10, 1947.)

Wherefore, the appealed judgment is reversed and the appellant acquitted with costs de oficio. So ordered.

G.R. No. L-856             April 18, 1949

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.SUSANO PEREZ (alias KID PEREZ), defendant-appellant.

Crispin Oben and Isidro Santiago for appellant.Assistance Solicitor General Manuel P. Barcelona and Solicitor Esmeraldo Umali for appellee.

TUASON, J.:

Susano Perez alias Kid 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 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 Hontanosas; that she escaped and returned to Baclayon her hometown; that the accused came again and told her 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 Puppet Governor Agapito Hontanosas; that Governor Hontanosas 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 accused in company with some Japanese 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 Hontanosas in order that said Japanese Colonel might select those first who would later be taken to satisfy his carnal appetite and that by means of threat, force and intimidation, the above mentioned two sister were brought to the headquarters of the Japanese Commander at the Mission Hospital in Tagbilaran where Eriberta Ramo was forced to lived a life of shame. All these facts alleged in count No. 2 were testified to by said witnesses Eriberta Ramo her mother Mercedes de Ramo. It is not necessary here to recite once more their testimony in support of the allegations in court No. 2; this Court is fully convinced that the allegation 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 Eduardo 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 though 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 revolved 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 Hontanosas, the Governor exclaimed: "I did not call for these girls": but the accused replied saying: "These girls talked bad against the Japanese , and that is why we arrested them"; that the said Governor Hontañosas then, said: "Take them to the Japanese "; 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 Court 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 bee taken as witnesses before a Japanese Colonel in the investigation of a case against a certain Chinese (Insik Eping), and uponarriving 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 of Colonel Mini and through violence, threat and intimidation, succeeded in having carnal knowledge with her against her will; that two days, later, upon the pretext of conducting the unfortunate girls to their home, said accused brought the other girls Feliciana Bonalos to a secluded place in Tagbilaran, Bohol, and in the darkness, by mean 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; they were brought to the house of Colonel Mini; that 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 following: That on June 15, 1942, the accused came and told her that the Japanese needed her daughters to be witnesses; that accordingly, he 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 Japanese and raped them; that her daughter Flaviana told her (the witness) that after the Japanese had raped her the accused also raped her (Flaviana) in an uninhabited house; that the accused did not permit her two daughter 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 daughter 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 give 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 conceived 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 Court 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 companion 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 Japanese high ranking officers, which was held in Tagbilaran market on June 25, 1942; that upon being brought the Puppet Governor, they were severely reprimanded by the latter; that on July 8, 1942, against said nurses were forced to attend another banquet and dance in order that the Jap officers Mini and Takibayas might make a selection which girls 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 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 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.

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 morale of the soldiers has always been, and will always be, a fundamental concern of army authorities, for the efficiency of 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 State 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 manifestation 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 Cramer vs. United States. 89 Law. ed., 1441.

As 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 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 enhance his strength and by same count injures the interest of the government of the giver. That is treason. (See United States vs. 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 entertainment held in their honor was not treason even though the women and the entertainment 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 entertainment. 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 State. 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:

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.

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

Counsel assails the constitutionality of this of his 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 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 founded 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 facts under the general law of criminal procedure convicted for crime different from that

designated in the complaint or information is allowed and practiced, provided only that such crime "is included or described in the body of the information, and afterwards justified by the proof presented during the trial." (People vs. 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 founded 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 year of prision mayor to 17 year 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.

August 30, 1958

G.R. No. L-9529THE 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.

, J.:

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 Ibañez, 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 Tubuñgan, 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 Buluañgan, 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.

May 31, 1949

G.R. No. L-1298THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.PEDRO SANTOS BALINGIT, accused-appellant.

Antonio Barredo for appellant.Office of the First Assistant Solicitor General Roberto A. Gianzon and Solicitor Martiniano P. Vivo for appellee.

Reyes (Jose), J.:

Pedro Santos Balingit was accused of treason on six counts. Count No. 1 was, after trial, declared not proved, while counts Nos. 4, 5, and 6 were previously withdrawn for lack of evidence. The remaining two counts (Nos. 2 and 3) read as follows:

2. That on or December 8, 1944, in the City of Manila, the above named accused, Pedro Santos Balingit, for the purpose of giving and with intent to give aid and/or comfort to the enemy, and with abuse of confidence and of his public position, did then and there wilfully, unlawfully and feloniously point out to the Japanese Military Police Lorenzo Sandoval and Serafin Sandoval and their father, Felipe Sandoval, Urgel Simplicio, Mateo Cruz, and Alfredo Arangel as guerrillas, as a result of which they were all apprehended and taken by the Japanese Military Police, and since then, Serafin Sandoval and Lorenzo Sandoval have never been seen alive again, while Felipe Sandoval tortured and retained for about twelve days; Mateo Cruz tortured and detained for about twelve days; and Alfredo Arangel tortured detained for about twelve days.

3. That on or about December 16, 1942, in the City of Manila, for the

purpose of giving and with intent to give aid and/or comfort to the enemy, the above named accused, Pedro Santos Balingit, did then and there wilfully, unlawfully and feloniously, with abuse of his public position, form part of a squad under Inspector Charles Strebel of the Intelligence Unit, Secret Service Division, Metropolitan, Constabulary, which arrested and apprehended Leoncio Gonzales, Tomas Lapus, Eugenio Acosta, Luis San Agustin, Pedro Soriano, Leoncio Crespo and Realino Bartido, all members of the Metropolitan Constabulary, on suspicion of being guerillas, and did bring and accompany them to Fort Santiago where they were investigated, maltreated, tortured and detained for a period of about one week.

The accused is a Filipino citizen. Before the war he was a member of the warrant unit of the secret service division of the Manila Police Department. Early in 1942 he joined the secret service division of the Metropolitan Constabulary and was assigned to the intelligence unit under Charles Strebel and later under Teofilo Alcantara. This unit operated directly under the supervision of the Japanese military police and was then also called the “Radical Unit” because it was charged with the arrest and investigation of guerillas and guerilla activities, but the Strebel and Alcantara were killed by the guerillas, but the accused continued working with the “Radical Unit” and was seen not infrequently with agents of the Japanese military police.

With reference to count No. 2, the evidence for the prosecution shows that the accused was a cousin of the brothers Lorenzo Sandoval and Serafin Sandoval, a lieutenant and prospective member, respectively, of the guerilla forces. As a close relative, he frequented the Sandoval home at No. 131 M. H. del Pilar Street in Manila and was able to learn from Lorenzo Sandoval that the latter was in the resistance movement and was leaving for the mountains on December 10, 1944. Before that date came, however, that is, in the evening of December 8, 1944, Japanese soldiers, accompanied by the accused, raided the house of the Sandovals. The accused had his eyes covered with a piece of cloth. After rounding up all the males in the house, namely, Simplicion Urgel, Alejandro Guiao, Sofronio Parinas, Alfredo Arangel, Mateo Cruz, Florencio Tolda and Felipe Sandoval, the Japanese proceeded to the their hands, and once the hands of Felipe Sandoval had been tied, the accused pointed him out to the Japanese as the father of Lorenzo Sandoval. The Japanese then began asking Felipe where his son Lorenzo was, whereupon Felipe’s wife, Basilia Carlos, fearing that her husband might be tortured, entreated him to reveal the whereabouts of their son. Having obtained the desired information, the Japanese, in company with accused, took Felipe Sandoval with them and proceeded to the house of Perpetua Marigondon on A. Flores Street in Manila where the Sandoval brothers were then hiding. Breaking into the house, they seized Serafin Sandoval and Lorenzo for his gun and guerilla papers, and as he would not make any admission, he

was tortured. Thereafter, Perpetua Marigondon, her brother, the Sandoval brothers and Felipe Sandoval were loaded on a truck and, together with the men who had been left tied at the Sandoval home, were taken to the house of Dr. Baldomero Roxas on Cortabitarte Street where they were confined. They were, however, later released with the exception of Lorenzo Sandoval and Serafin Sandoval, who were never seen alive again.

The above facts were established by the combined testimony of Basilia Carlos, Corazon Teruel, Felipe Sandoval and Perpetua Marigondon and substantially corroborated by the testimony of the accused himself. The latter admitted having accompanied the Japanese soldiers in making the raid and arrest in the above-mentioned houses but denied that he had his eyes covered. He declared that, on the night in question, the Japanese soldiers woke him up in his house and made him accompany them to the Sandoval home, presumably on the supposition that he knew where the Sandoval were because he was then investigating a shooting incident in which Lorenzo Sandoval was implicated.

As to count No. 3, the evidence for the prosecution shows that in the afternoon of December 16, 1942, the policemen Tomas Lapus, Leoncio Gonzales, Leoncio Crespo, Realino Bartido, Luis San Agustin, Eugenio Acosta and Pedro B. Soriano were in the detention cell on the fourth floor of the City Hall, having been previously arrested by the “Radical Unit” for their guerilla activities. Going there at about 4 p.m. on that day, the accused ordered them out of their cells, lined them up and tied them in pairs. While trying the hands of Leocio Gonzales, the latter begged him to loosen the string, only to receive the reply: “You sons of a b . ., you are guerillas anyway; you deserve to die.” Thereafter, they were loaded on a truck and taken to Fort Santiago by the accused, a Japanese named Cato and a police escort. In Fort Santiago they were tortured and investigated about their guerilla activities but they were released several days afterward.

The above facts were established by the testimony of Leocio Gonzales, Leoncio Crespo, Eugenio Acosta and Pedro B. Soriano. The accused admitted having been the one who tied the hands of the prisoners, but alleged that he had been ordered to do so by Charles Strebel, who was then present, and that it was also Strebel who uttered the offensive words attributed to him by the witnesses for the prosecution. He also denied having been the one who delivered the prisoners to Fort Santiago.

Upon the above evidence, the people’s Court, with one member dissenting, found the accused guilty of treason and sentenced him to reclusion perpetua with the accessory penalties prescribed by the law and to pay a fine of P10,000.00 and the costs. From this sentence the accused appealed to this Court.

There is not much dispute as to the facts. The accused admitted having accompanied the Japanese in the arrest of the Sandoval brothers, who were identified with the resistance movement, and although he claimed it was not true that he had his eyes covered at the time, the important fact is that, of his own accord, he informed the Japanese that Felipe Sandoval was the father of Lorenzo, which information enabled them to get to the hiding place of the Sandovals. Connecting this with the other facts that, shortly before that incident, he was able, because of his relationship to Lorenzo sandoval, to obtain the information that the latter was about to take to the mountains to join the guerrillas, it is hard to believe that the accused had an innocent part in the timely arrest of the Sandoval brothers. His testimony as to how the Japanese came to know that he had information about Lorenzo Sandoval is vague and unconvincing.

The incident in the City Hall where, while tying the hands of the detained policemen, he insulted them for being guerrillas, is very clearly proven and is an eloquent proof of the accused’s adherence to the enemy.

The argument is made that the accused was, at the most, merely obeying superior orders in the suppression of guerrillas activities, which in the opinion of his counsel, are outlawed by the rules of war. But the evidence is clear that he identified himself with the enemy’s cause by acting as a spy and causing the arrest of even his close relatives to prevent them from taking part in the resistance movement, and while guerrillas warfare may be unlawful from the standpoint of the conqueror, it cannot be so regarded by those who, by natural right, are trying to drive him out of their invaded territory.

We find no merit in the appeal. We therefore affirm the judgment below, with costs against the appellant.

June 30, 1947

G.R. No. L-477THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.APOLINARIO ADRIANO, defendant-appellant.

Remedios P. Nufable for appellant.Assistant Solicitor General Kapunan, Jr., and Solicitor Lacson for appellee.

, J.:

This is an appeal from a judgment of conviction for treason by the People’s Court sentencing the accused to life imprisonment, P10,000 fine, and the costs.

The information charged:

That between January and April, 1945 or thereabout, during the occupation of the Philippines by the Japanese Imperial Forces, in the Province of Nueva Ecija and in the mountains in the Island of Luzon, Philippines, and within the jurisdiction of this Court, the above-named accused, Apolinario Adriano, who is not a foreigner, but a Filipino citizen owing allegiance to the United States and the Commonwealth of the Philippines, in violation of said allegiance, did then and there willfully, criminally and treasonably adhere to the Military Forces of Japan in the Philippines, against which the Philippines and the United States were then at war, giving the said enemy aid and comfort in the manner as follows:

That as a member of the Makapili, a military organization established and designed to assist and aid militarily the Japanese Imperial forces in the Philippines in the said enemy’s war efforts and operations against the United States and the Philippines, the herein accused bore arm and joined and assisted the Japanese Military Forces and the Makapili Army in armed conflicts and engagements against the United States armed forces and the Guerrillas of the Philippine Commonwealth in the Municipalities of San Leonardo and Gapan, Province of Nueva Ecija, and in the mountains of Luzon, Philippines, sometime between January and April, 1945. Contrary to

Law.

The prosecution did not introduce any evidence to substantiate any of the facts alleged except that of defendant’s having joined the Makapili organization. What the People’s Court found is that the accused participated with Japanese soldiers in certain raids and in confiscation of personal property. The court below, however, said these acts had not been established by the testimony of two witnesses, and so regarded them merely as evidence of adherence to the enemy. But the court did find established under the two-witness rule, so we infer, “that the accused and other Makapilis had their headquarters in the enemy garrison at Gapan, Nueva Ecija; that the accused was in Makapili military uniform; that he was armed with rifle; and that he drilled with other Makapilis under a Japanese instructor; . . . that during the same period, the accused in Makapili military uniform and with a rifle, performed duties as sentry at the Japanese garrison and Makapili headquarters in Gapan, Nueva Ecija;” “that upon the liberation of Gapan, Nueva Ecija, by the American forces, the accused and other Makapilis retreated to the mountains with the enemy;” and that “the accused, rifle in hand, later surrendered to the Americans.”

Even the findings of the court recited above in quotations are not borne out by the proof of two witnesses. No two of the prosecution witnesses testified to a single one of the various acts of treason imputed by them to the appellant. Those who gave evidence that the accused took part in raids and seizure of personal property, and performed sentry duties and military drills, referred to acts allegedly committed on different dates without any two witnesses coinciding in any one specified deed. There is only one item on which the witnesses agree: it is that the defendant was a Makapili and was seen by them in Makapili uniform carrying arms. Yet, again, on this point it cannot be said that one witness is corroborated by another if corroboration means that two witnesses have seen the accused doing at least one particular thing, it a routine military chore, or just walking or eating.

We take it that the mere fact of having joined a Makapili organization is evidence of both adherence to the enemy and giving him aid and comfort. Unless forced upon one against his will, membership in the Makapili organization imports treasonable intent, considering the purposes for which the organization was created, which, according to the evidence, were “to accomplish the fulfillment of the obligations assumed by the Philippines in the Pact of Alliance with the Empire of Japan;” “to shed blood and sacrifice the lives of our people in order to eradicate Anglo-Saxon influence in East Asia;” “to collaborate unreservedly and unstintedly with the Imperial Japanese Army and Navy in the Philippines;” and “to fight the common enemies.” Adherence, unlike overt acts, need not be proved by the oaths of two witnesses. Criminal intent and

knowledge may be gather from the testimony of one witness, or from the nature of the act itself, or from the circumstances surrounding the act. (Cramer vs. U.S. 65 Sup. Ct., 918.)

At the same time, being a Makapili is in itself constitutive of an overt act. It is not necessary, except for the purpose of increasing the punishment, that the defendant actually went to battle or committed nefarious acts against his country or countrymen. The crime of treason was committed if he placed himself at the enemy’s call to fight side by side with him when the opportune time came even though an opportunity never presented itself. Such membership by its very nature gave the enemy aid and comfort. The enemy derived psychological comfort in the knowledge that he had on his side nationals of the country with which his was at war. It furnished the enemy aid in that his cause was advanced, his forces augmented, and his courage was enhanced by the knowledge that he could count on men such as the accused and his kind who were ready to strike at their own people. The principal effect of it was no difference from that of enlisting in the invader’s army.

But membership as a Makapili, as an overt act, must be established by the deposition of two witnesses. Does the evidence in the present case meet this statutory test? Is two-witness requirement fulfilled by the testimony of one witness who saw the appellant in Makapili uniform bearing a gun one day, another witness another day, and so forth?

The Philippine law on treason is of Anglo-American origin and so we have to look for guidance from American sources on its meaning and scope. Judicial interpretation has been placed on the two-witness principle by American courts, and authoritative text writers have commented on it. We cull from American materials the following excerpts which appear to carry the stamp of authority.

Wharton’s Criminal Evidence, Vol. 3, section 1396, p. 2282, says:

In England the original Statute of Edward, although requiring both witnesses to be to the same overt act, was held to mean that there might be one witness to an overt act and another witness to another overt act of the same species of treason; and, in one case it has been intimated that the same construction might apply in this country. But, as Mr. Wigmore so succinctly observes: “The opportunity of detecting the falsity of the testimony, by sequestering the two witnesses and exposing their variance in details, is wholly destroyed by permitting them to speak to different acts.” The rule as adopted in this country by all the constitutional provisions, both state and Federal, properly requires that two witnesses shall testify to the same overt act. This also is now the rule in England.

More to the point is this statement from VII Wigmore on Evidence,

3d ed., section 2038, p. 271:

Each of the witnesses must testify to the whole of the overt act; or, if it is separable, there must be two witnesses to each part of the overt act.

Learned Hand, J., in United States vs. Robinson (D.C.S.D., N.Y., 259 Fed., 685), expressed the same idea: “It is necessary to produce two direct witnesses to the whole overt act. It may be possible to piece bits together of the overt act; but, if so, each bit must have the support of two oaths; . . ..” (Copied as footnote in Wigmore on Evidence, ante.) And in the recent case of Cramer vs. United States (65 Sup. Ct., 918), decide during the recent World War, the Federal Supreme Court lays down this doctrine: “The very minimum function that an overt act must perform in a treason prosecution is that it shows sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy. Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses.”

In the light of these decisions and opinions we have to set aside the judgment of the trial court. To the possible objection that the reasoning by which we have reached this conclusion savors of sophism, we have only to say that the authors of the constitutional provision of which our treason law is a copy purposely made conviction for treason difficult, the rule “severely restrictive.” This provision is so exacting and so uncompromising in regard to the amount of evidence that where two or more witnesses give oaths to an overt act and only one of them is believed by the court or jury, the defendant, it has been said and held, is entitled to discharge, regardless of any moral conviction of the culprit’s guilt as gauged and tested by the ordinary and natural methods, with which we are familiar, of finding the truth. Natural inferences, however strong or conclusive, flowing from other testimony of a most trustworthy witness or from other sources are unavailing as a substitute for the needed corroboration in the form of direct testimony of another eyewitness to the same overt act.

The United States Supreme Court saw the obstacles placed in the path of the prosecution by a literal interpretation of the rule of two witnesses but said that the founders of the American government fully realized the difficulties and went ahead not merely in spite but because of the objections. (Cramer vs. United States, ante.) More, the rule, it is said, attracted the members of the Constitutional Convention “as one of the few doctrines of Evidence entitled to be guaranteed against legislative change.” (Wigmore on Evidence, ante, section 2039, p. 272, citing Madison’s Journal of the Federal Convention, Scott’s ed., II, 564, 566.) Mr. Justice Jackson, who delivered the majority opinion in the celebrated Cramer case, said: “It is not difficult to find grounds upon which to quarrel with this

Constitutional provision. Perhaps the farmers placed rather more reliance on direct testimony than modern researchers in psychology warrant. Or it may be considered that such a quantitative measure of proof, such a mechanical calibration of evidence is a crude device at best or that its protection of innocence is too fortuitous to warrant so unselective an obstacle to conviction. Certainly the treason rule, whether wisely or not, is severely restrictive.” It must be remembered, however, that the Constitutional Convention was warned by James Wilson that “‘Treason may sometimes be practiced in such a manner, as to render proof extremely difficult – as in a traitorous correspondence with an enemy.’ The provision was adopted not merely in spite of the difficulties it put in the way of prosecution but because of them. And it was not by whim or by accident, but because one of the most venerated of that venerated group considered that “prosecutions for treason were generally virulent.’”

Such is the clear meaning of the two-witness provision of the American Constitution. By extension, the lawmakers who introduced that provision into the Philippine statute books must be understood to have intended that the law should operate with the same inflexibility and rigidity as the American forefathers meant.

The judgment is reversed and the appellant acquitted with costs charged de oficio.

December 2, 1948

G.R. No. L-1622THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.JUAN LANSANAS, defendant-appellant.

Manuel A. Concordia for appellant.First Assistant Solicitor General Roberto A. Gianzon and Solicitor Antonio A. Torres for appellee.

Paras (Edgardo), J.:

This is an appeal from a judgment of the People’s Court (Second Division), finding the appellant guilty of treason and sentencing him to reclusion perpetua and its accessory penalties and to pay a fine of ten thousand pesos, plus the costs. Appellant’s conviction was based only on counts V and VI of the information. The first charged the appellant with having enlisted, joined and served in the organization commonly known as Makapili. The second accused the appellant of having led and accompanied a patrol of Japanese soldiers and Makapilis to a raid in barrio Parian, municipality of Calamba, Province of Laguna, resulting in the arrest of all the male inhabitants of the barrio and their confinement in the Japanese garrison in Calamba for three days and two nights without food, in retaliation for the killing of one of appellant’s companions. .

We will concede, following appellant’s argument, that count V was not established in accordance with the two-witness rule, since only one witness (Marcial Flores) was specific in testifying that he knew the appellant to be a Makapili because he used to persuade people, in meetings held by him with others in different barrios, to join the Makapili organization. This is, however, sufficient to prove appellant’s adherence to the enemy, considering the purposes for which the organization was created, namely, “to accomplish the fulfillment of the obligations assumed by the Philippines in the Pact of Alliance with the Empire of Japan”; “to shed blood and sacrifice the lives of our people in order to eradicate Anglo-Saxon influence in East Asia”; “to collaborate unreservedly and unstintedly with the Imperial Japanese Army and Navy in the Philippines”; and “to fight the common enemies.” (People vs. Adriano, L-477, June 30, 1947, 44 O.G. 4300.) 1

The appellant, with such proof adherence, has to be found guilty of treason under count VI, because at least two witnesses (Marcial Flores and Tereso Villar) had testified that the appellant played an active role in bringing about the mass arrest and confinement of the people of barrio Parian, a punitive measure that took place in December, 1944, in reprisal for the killing of a Makapili. The fact

that said witnesses were not uniform on the points whether or not there were Japanese soldiers in the raiding party, or whether or not the person arrested and confined included not only the males but some women and children, is not sufficient to entirely discredit their testimony, as the deficiency refers merely to minor details. Neither may the negative testimony of Elpidio Elasigue, an alleged victim of the raid, to the effect that he did not see the appellant among the raiders prevail over the positive testimony of Marcial Flores and Tereso Villar who, moreover, were not shown to have had any improper motive in testifying against the appellant. For obvious reasons, also, appellant’s mere denials and the exculpatory testimony of his wife deserve little or no weight. At any rate, the latter has even strengthened the theory of the prosecution as to appellant’s Makapili membership, when she admitted that the appellant was a Sakdal before the war.

Counsel for the appellant contends that, assuming the truth of count VI, no treason was committed because the raid against the people of barrio Parian was motivated by the slaying of a Makapili, and not by a desire to betray one’s country. This contention, however, ignores the fact that the appellant had shown his adherence to the enemy by his Makapili membership and that, by retaliating for the violent death of a fellow member, he had defended the Makapili organization and had thereby committed a positive act in the furtherance of its aims and purposes.

Lack of instruction or education cannot be considered a mitigating circumstance in favor of the appellant, because love of country should be a natural feeling of every citizen however unlettered or cultured he may be.

The appealed judgment is therefore affirmed, with costs against the appellant. So ordered.

CONSPIRACY TO COMMIT TREASON

G.R. No. L-2189    November 3, 1906

THE UNITED STATES, Plaintiff-Appellee , vs. FRANCISCO BAUTISTA, ET AL., Defendants-Appellants.

 

CARSON, J.: chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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. chanroblesvirtualawlibrary chanrobles virtual law library

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. chanroblesvirtualawlibrary chanrobles virtual law library

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." chanrobles virtual law library

It further appears that the appellant, Tomas Puzon, united with the conspirators through the agency of one Jose R. Muñoz, 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 Muñoz whereat plans were made for the coming insurrection; that at one of these conferences Muñoz 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 Muñoz that he had things in readiness, meaning thereby that he had duly organized in accordance with the terms of his commission.chanroblesvirtualawlibrary chanrobles virtual law library

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 Muñoz by refusing to do so, and that when Muñoz 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.chanroblesvirtualawlibrary chanrobles virtual law library

These statements, however (except in so far as they corroborate the testimony of Muñoz 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. chanroblesvirtualawlibrary chanrobles virtual law library

Q. Do you know Artemio Ricarte? - A. Personally I do not know him, but by name, yes.chanroblesvirtualawlibrary chanrobles virtual law library

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. Muñoz told me the same on one occasion when I was in his house to visit him.chanroblesvirtualawlibrary chanrobles virtual law library

Q. Did you acquire this information through any other person? - A. No, sir; I have no more information than that which I have mentioned.chanroblesvirtualawlibrary chanrobles virtual law library

Q. Are you a part of his new revolution presided over by Ricarte? - A. Yes, sir.chanroblesvirtualawlibrary chanrobles virtual law library

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. Muñoz, 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 Muñoz is a friend of mine from my youth, acceded; nevertheless I have organized absolutely nothing in respect to this matter. chanroblesvirtualawlibrary chanrobles virtual law library

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. chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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 Nuñez 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. Nuñez 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." chanrobles virtual law library

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."chanrobles virtual law library

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." chanrobles virtual law library

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. chanroblesvirtualawlibrary chanrobles virtual law library

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.) chanrobles virtual law library

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. chanroblesvirtualawlibrary chanrobles virtual law library

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. chanroblesvirtualawlibrary chanrobles virtual law library

After ten days let judgment be entered in accordance herewith, when the record will be returned to the trial court for execution. So ordered.chanroblesvirtualawlibrary chanroble

G.R. No. 118075 September 5, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.EMILIANO CATANTAN y TAYONG, accused-appellant.

 

BELLOSILLO, J.:

EMILIANO CATANTAN and JOSE MACVEN URSAL alias "Bimbo"

were charged with violation of PD No. 532 otherwise known as the Anti-Piracy and Highway Robbery Law of 1974 for having on 27 June 1993, while armed with a firearm and a bladed weapon, acting in conspiracy with one another, by means of violence and intimidation, wilfully and feloniously attacked, assaulted and inflicted physical injuries on Eugene Pilapil and Juan Pilapil Jr. who were then fishing in the seawaters of Tabogon, Cebu, and seized their fishing boat, to their damage and prejudice. 1

The Regional Trial Court of Cebu, after trial, found both accused Emiliano Catantan y Tayong and Jose Macven Ursal alias "Bimbo" guilty of the crime charged and sentenced them to reclusion perpetua. 2 Of the duo only Emiliano Catantan appealed.

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

The evidence for the prosecution is that at 3:00 o'clock in the morning of 27 June 1993, the Pilapil brothers Eugene, 21, and Juan Jr., 18, were fishing in the sea some 3 kilometers away from the shores of Tabogon, Cebu. Suddenly, another boat caught up with them. One of them, later identified as the accused Emiliano Catantan, bearded the pump boat of the Pilapils and leveled his gun at Eugene. With his gun, Catantan struck Eugene on the left cheekbone and ordered him and Juan Jr. to "dapa." 3 Then Catantan told Ursal to follow him to the pumpboat of the Pilapils. There they hogtied Eugene, forced him to lie down at the bottom of the boat, covered him with a tarpaulin up to his neck, stepped on him and ordered Juan Jr. to ferry them to Daan Tabogon. They left behind the other pumpboat which the accused had earlier used together with its passengers one of whom was visibly tied.

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

Meanwhile Juan Jr. managed to fix the engine, but as they went farther out into the open sea the engine stalled again. This time Eugene was allowed to assist his brother. Eugene's hands were

set free but his legs were tied to the outrigger. At the point of a tres cantos 4 held by Ursal, Eugene helped row the boat.

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

On the pretext that they were buying fish Catantan boarded the "new" pumpboat. Once aboard he ordered the operator Juanito to take them to Mungaz, another town of Cebu. When Juanito tried to beg-off by saying that he would still pull up his net and harvest his catch, Catantan drew his revolver and said, "You choose between the two, or I will kill you." 5 Juanito, obviously terrified, immediately obeyed and Ursal hopped in from the other pumpboat and joined Catantan.

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

Section 2, par. (d), of PD No. 532, defines piracy as "any attack upon or seizure of any vessel, or the taking away of the whole or part thereof or its cargo, equipment, or the personal belongings of the complement or passengers, irrespective of the value thereof, by means of violence against or intimidation of persons or force upon things, committed by any person, including a passenger or member of the complement of said vessel, in Philippine waters, shall be considered as piracy. The offenders shall be considered as pirates and punished as hereinafter provided." And a vessel is construed in Sec. 2, par. (b), of the same decree as "any vessel or watercraft used for transport of passengers and cargo from one place to another through Philippine waters. It shall include all kinds and types of vessels or boats used in fishing (emphasis supplied).

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

something against his will, whether it be right or wrong."

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

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

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

A: Yes.

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

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

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

A: Four.

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

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

Q: How many suddenly came aboard your pumpboat?

A: Only one.

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

A: When he boarded our pumpboat he aimed his revolver at us (emphasis supplied).

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

xxx xxx xxx

A: He said, "dapa," which means lie down (emphasis supplied).

COURT:

Q: To whom did he aim that revolver?

A: He aimed the revolver on me.

TRIAL PROS. ECHAVEZ:

Q: What else did he do?

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

Q: What did he do with his revolver?

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

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

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

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

A: To Daan Tabogon. 6

To sustain the defense and convert this case of piracy into one of

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

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

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

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

Whereas, it is imperative that said lawless elements be discouraged from perpetrating such acts of depredations by imposing heavy penalty on the offenders, with the end in view of eliminating all obstacle to the economic, social, educational and community progress of the people.

The Pilapil brothers are mere fisherfolk whose only means of livelihood is fishing in sea waters. They brave the natural elements and contend with the unknown forces of the sea to bring home a bountiful harvest. It is on these small fishermen that the townspeople depend for the daily bread. To impede their livelihood would be to deprive them of their very subsistence, and the likes of

the accused within the purview of PD No. 532 are the obstacle to the "economic, social, educational and community progress of the people." Had it not been for the chance passing of another pumpboat, the fate of the Pilapil brothers, left alone helpless in a floundering, meandering outrigger with a broken prow and a conked-out engine in open sea, could not be ascertained.

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

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

WHEREFORE, finding no reversible error in the decision appealed from, the conviction of accused-appellant EMILIANO CATANTAN y TAYONG for the crime of piracy penalized under PD No. 532 and sentencing him accordingly to reclusion perpetua, is AFFIRMED. Costs against accused-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.

D E C I S I O N

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, ]r., and Cecilio Changco are hereby each meted the penalty of RECLUSION PERPETUA, with all the accessory penalties of the law. The accused Cheong San Hiong is hereby meted the penalty of RECLUSION PERPETUA, pursuant to Article 52 of the Revised Penal Code in relation to Section 5 of PD 532. The accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and Cecilio Changco are hereby ordered to return to the PNOC Shipping and Transport Corporation the "M/T Tabangao" or if the accused can no longer return the same, the said accused are hereby ordered to remit, jointly and severally, to said corporation the value thereof in the amount of P11,240,000.00 Philippine Currency, with interests thereon, at the rate of 6% per annum from March 2, 1991 until the said amount is paid in full. All the accused including Cheong San Hiong are hereby ordered to return to the Caltex Philippines, Inc. the cargo of the "M/T Tabangao", or if the accused can no longer return the said cargo to said corporation, all the accused are hereby condemned to pay, jointly and severally, to the Caltex Refinery, Inc., the value of said

cargo in the amount of P40,426,793.87, Philippine Currency plus interests until said amount is paid in full. After the accused Cheong San Hiong has served his sentence, he shall be deported to Singapore.

All the accused shall be credited for the full period of their detention at the National Bureau of Investigation and the City Jail of Manila during the pendency of this case provided that they agreed in writing to abide by and comply strictly with the rules and regulations of the City Jail of Manila and the National Bureau of Investigation. With costs against all the accused.

SO ORDERED.

G.R. No. L-57292 February 18, 1986

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.JULAIDE SIYOH, OMAR-KAYAM KIRAM, NAMLI INDANAN and ANDAW JAMAHALI, accused-appellants.

 

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:

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 P 18,342.00, 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 Omar-kayam 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 fore going considerations, this Court finds the accused Omar-kayam 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:

THE LOWER COURT ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANTS OMAR-KAYAM KIRAM AND JULAIDE SIYOH HAS BEEN PROVED BEYOND REASONABLE DOUBT. (Brief, p. 8.)

The People's version of the facts is as follows:

Alberto Aurea was a businessman engaged in selling dry goods at the Larmitan 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 held up 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 Omar-kayam Kiram at Pilas Island (pp. 37-38, 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 P 3,500.00. 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 P 12,000.00 (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 t.s.n), 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 armantes. 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:

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:

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 vs. Pedro, 16 SCRA 57; People vs. lndic 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 vs. 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