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G.R. No. L-9529

August 30, 1958

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convicted of treason, including those whose cases were pending appeal, on condition that such appeals be first withdrawn.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

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

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

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

in his capacity as agent, informer, spy of the Detective Force, Imperial Japanese Army, and in company with other Filipino spies and Japanese soldiers, did then and there, wilfully, unlawfully, feloniously and treasonably conduct and carry out a raid against and mass arrest of persons suspected as guerrilla soldiers and sympathizers, as a consequence of which, about eighty persons, male and female, both young and old were arrested and gathered in a schoolhouse and chapel in the barrio of Buenavista, and thereat investigated, maltreated and tortured by the herein accused and his companions; that subsequently about thirty persons including women and children were taken to the house of Aquilino Sales, where about fourteen persons were bayonetted and killed by Japanese soldiers, namely, Julia Cabilitasan, Mercedes Calopez, Andrea Cahipo, Eustaquia Cabilinga, Isabel Canag, Rosalia Calopez, Luz Caldito, Estelita Camorahan, Roman Cabilinga, Tomas Canag, Luis Cabalfin, Juan Cabalfin, Macario Cabilitasan and Aurelio Caldito; while Paulina Cantara, Alejandro Calsona and Bienvenido Cabankalan received and sustained bayonet wounds but survived and were able to escape after the house of aforesaid Aquilino Sales was set on fire and burned by said patrol of Filipino spies and Japanese soldiers. Aquilina Cabilitasan, Bienvenido Cabankalan, Alejandro Calsena and Perpetua Canag, who testified for the prosecution, corroborating one another, stated that at about eight o'clock in the morning of August 12, 1943, several residents of barrio, Buenavista, Leon, Iloilo, were arrested by the appellant, who was armed with revolver and bayonet, and his companions consisting of Filipinos and Japanese soldiers; that said barrio residents were brought to the barrio schoolhouse where they were investigated. During the investigation, Julia Cabilitasan was singled out by the appellant who tied her hands behind her back and brought her under a "doldol" (kapok) tree, near a chapel, where she was stripped of all her clothings until she was naked. Appellant investigated her regarding the whereabouts of her husband who was a USAFFE soldier. Appellant, after severely beating Julia Cabilitasan, brought her to the house of Aquilino Sales where there were other Filipino prisoners. Shortly thereafter, appellant and his companions started the massacre of the prisoners. Appellant stabbed Julia Cabilitasan three times with a bayonet. In that massacre, fourteen persons including women and children were killed. Among those killed were Julia Cabilitasan, Macario Cabilitasan, Roman Cabelenga, Andrea Cahipos and Julia Calpit. Later, said house was set on fire. Count No. 10. Lastly, the amended information regarding this Count, recites: 10. That on or about March 18, 1944, in the municipalities of Guimbal and 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 officioinstead of filing a brief, made a manifestation dated November 29, 1955, stating that "after a thorough study of the records of the case, he finds nothing therein sufficient to disturb the decisions of the People's Court and of the Court of First Instance of Iloilo imposing capital punishment on the accused." Said counsel further stated that "The accused's only evidence which directly attacked the government's proofs was his denial of what several witnesses testified to." This manifestation was considered by this Tribunal as appellant's brief, in its resolution of December 6, 1955. Certainly mere denial by appellant cannot prevail upon the positive assertion of the witnesses for the government establishing incriminating facts, for it is a well settled rule of evidence that as between positive and negative testimony, the former deserves more weight and credit. Anent the defense of duress allegedly exerted by the Japanese upon appellant for which he had to serve in the detective force of the Japanese Army, we agree with the Solicitor General that "except the lone and selfserving testimony of the appellant that he was coerced to cooperate with and serve the Japanese soldiers, there is not an iota of proof that he was in fact compelled or coerced by the Japanese. Much less is there any evidence showing that the alleged compulsion or coercion was grave and imminent." Duress, force, fear or intimidation to be available as a defense, must be present, imminent and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. A threat of future injury is not enough. (16 C. J., 91). To be available as a defense, the fear must be well-founded, an immediate and actual danger of death or great bodily harm must be present and the compulsion must be of such a character as to leave no opportunity to accused for escape or self-defense in equal combat. It would be a most dangerous rule if a defendant could shield himself from prosecution for crime by merely setting up a fear from or because of a threat of a third person. (Wharton's Criminal Law, Vol. 1, Sec. 384). Fear as an excuse for crime has never been received by the law. No man, from fear or circumstances to himself has the right to make himself a party to committing mischief upon mankind (Lord Denman in Reg. vs. Tyler, 8 Car. and P. (Eng.) 616, vs. Duddely, L. R. 14, Q. B. Div. (Eng.) 273). When the case was remanded to the Court of First Instance of Iloilo for the retaking of lost testimonies, appellant attempted to give the case a new twist by filing a motion to quash on the ground that the pardon extended him has already extinguished his criminal liability and that his conviction by the People's Court had placed him in jeopardy. This motion was denied, but during the trial appellant was allowed to present documentary evidence relative to the clemency extended him, consisting of Exhibit 1 which is a certified copy of his conditional pardon; Exhibit 2, a certified copy of the letter of the Legal Assistant of the President dated June 30, 1953, addressed to the Director of Prisons; Exhibit 3 the motion to withdraw appeal filed before the Court of First Instance of Iloilo; and Exhibit 4, the Tribunal's resolution of September 21, 1953, granting said withdrawal. In addition, appellant presented an Exhibit 5 the decision of the People's Court in the case of People vs. Jesus Astrologo, dated December 11, 1947, sentencing him to death; Exhibit 6 the conditional pardon extended to said accused dated June 27, 1953; and Exhibit 7 the letter of the Legal Assistant of the Office of the President to the Director of Prisons, to show that said Jesus Astrologo who is now enjoying his freedom by reason of the pardon extended, has been allowed by this Tribunal to withdraw his appeal pending review of his death sentence.

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

G.R. No. L-409

January 30, 1947

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

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

RESOLUTION

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

G.R. No. 17958

February 27, 1922

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

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

MALCOLM, J.:

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

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

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

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

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

universal hostility.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

G.R. No. L-2128

May 12, 1948

MELENCIO SAYO and JOAQUIN MOSTERO, petitioners, vs. THE CHIEF OF POLICE and THE OFFICER IN CHARGE OF MUNICIPAL JAIL, BOTH OF CITY OF MANILA, respondents.

Enrique Q. Jabile for petitioners. Acting City Fiscal A. P. Montesa, Assistant City Fiscal Arsenio Nañawa and D. Guinto Lazaro for respondents.

FERIA, J.:

Upon complaint of Bernardino Malinao, charging the petitioners with having committed the crime of robbery, Benjamin Dumlao, a policeman of the City of Manila, arrested the petitioners on April 2, 1948, and presented a complaint against them with the fiscal's office of Manila. Until April 7, 1948, when the petition for habeas corpus filed with this Court was heard, the petitioners were still detained or under arrest, and the city fiscal had not yet released or filed against them an information with the proper courts justice.

This case has not been decided before this time because there was not a sufficient number of Justices to form a quorum in Manila, And it had to be transferred to the Supreme Court acting in division here in Baguio for deliberation and decision. We have not until now an official information as to the action taken by the office of the city fiscal on the complaint filed by the Dumlao against the petitioners. But whatever night have been the action taken by said office, if there was any, we have to decide this case in order to lay down a ruling on the question involved herein for the information and guidance in the future of the officers concerned.

The principal question to be determined in the present case in order to decide whether or not the petitioners are being illegally restrained of their liberty, is the following: Is the city fiscal of manila a judicial authority within the meaning of the provisions of article 125 of the Revised Penal Code?

Article 125 of the Revised Penal Code provides that "the penalties provided in the next proceeding article shall be imposed upon the public officer or employee who shall detain any person for some legal ground and shall fail to deliver such person to the proper judicial authorities within the period of six hours."

Taking into consideration the history of the provisions of the above quoted article, the precept of our Constitution guaranteeing individual liberty, and the provisions of Rules of Court regarding arrest and habeas corpus, we are of the opinion that the words "judicial authority", as used in said article, mean the courts of justices or judges of said courts vested with judicial power to order the temporary detention or confinement of a person charged with having committed a public offense, that is, "the Supreme Court and such inferior courts as may be established by law". (Section 1, Article VIII of the Constitution.)

Article 125 of the Revised Penal Code was substantially taken from article 202 of the old Penal Code formerly in force of these Islands, which penalized a public officer other than a judicial officer who, without warrant, "shall arrest a person upon a charge of crime and shall fail to deliver such person to the judicial authority within twenty four hours after his

arrest." There was no doubt that a judicial authority therein referred to was the judge of a court of justice empowered by law, after a proper investigation, to order the temporary commitment or detention of the person arrested; and not the city fiscals or any other officers, who are not authorized by law to do so. Because article 204, which complements said section 202, of the same Code provided that "the penalty of suspension in its minimum and medium degrees shall be imposed upon the following persons: 1. Any judicial officer who, within the period prescribed by the provisions of the law of criminal procedure in force, shall fail to release any prisoner under arrest or to commit such prisoner formally by written order containing a statement of the grounds upon which the same is based."

Although the above quoted provision of article 204 of the old Penal Code has not been incorporated in the Revised Penal Code the import of said words judicial authority or officer can not be construed as having been modified by the mere omission of said provision in the Revised Penal Code.

Besides, section 1 (3), Article III, of our Constitution provides that "the right of the people to be secure in their persons...against unreasonable seizure shall not be violated, and no warrant [of arrest, detention or confinement] shall issue but upon probable cause, to be determined by the judge after the examination under oath or affirmation of the complaint and the witness he may produce." Under this constitutional precept no person may be deprived of his liberty, except by warrant of arrest or commitment issued upon probable cause by a judge after examination of the complainant and his witness. And the judicial authority to whom the person arrested by a public officers must be surrendered can not be any other but court or judge who alone is authorized to issue a warrant of commitment or provisional detention of the person arrested pending the trial of the case against the latter. Without such warrant of commitment, the detention of the person arrested for than six hours would be illegal and in violation of our Constitution.

Our conclusion is confirmed by section 17, Rule 109 of the Rules of court, which, referring to the duty of an officer after arrest without warrant, provides that "a person making arrest for legal ground shall, without unnecessary delay, and within the time prescribed in the Revised Penal Code, take the person arrested to the proper court or judge for such action for they may deem proper to take;" and by section 11 of Rule 108, which reads that "after the arrest by the defendant and his delivery to the Court, he shall be informed of the complaint or information filed against him. He shall also informed of the substance of the testimony and evidence presented against him, and, if he desires to testify or to present witnesses or evidence in his favor, he may be allowed to do so. The testimony of the witnesses need not be reduced to writing but that of the defendant shall be taken in writing and subscribed by him.

And it is further corroborated by the provisions of section 1 and 4, Rule 102 of the Rules of Court. According to the provision of said section, "a writ of habeas corpus shall extend any person to all cases of illegal confinement or detention by which any person is illegally deprived of his liberty"; and "if it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge, or by virtue of a judgement or order of a court of record, and that the court or judge had jurisdiction to issue the process, render judgment, or make the order, the writ shall not be allowed. "Which a contrario sensu means that, otherwise, the writ shall be allowed and the person detained shall be released.

The judicial authority mentioned in section 125 of the Revised Penal Code can not be construed to include the fiscal of the City of Manila or any other city, because they cannot issue a warrant of arrest or of commitment or temporary confinement of a person surrendered to legalize the detention of a person arrested without warrant. (Section 7, Rule 108; Hashim vs. Boncan, 40 Off. Gaz. 13th Supp., p.13; Lino vs. Fugoso, L-1159, promulgated on January 30, 1947, 43 Off. Gaz., 1214). The investigation which the city of fiscal of Manila makes is not the preliminary investigation proper provided for in section 11, Rule 108, above quoted, to which all person charged with offenses cognizable by the Court of First Instance in provinces are entitled, but it is a mere investigation made by the city fiscal for the purpose of filing the corresponding information against the defendant with the proper municipal court or Court of First Instance of Manila if the result of the investigation so warrants, in order to obtain or secure from the court a warrant of arrest of the defendant. It is provided by a law as a substitute, in a certain sense, of the preliminary investigation proper to avoid or

prevent a hasty or malicious prosecution, since defendant charged with offenses triable by the courts in the City of Manila are not entitled to a proper preliminary investigation.

The only executive officers authorized by law to make a proper preliminary investigation in case of temporary absence of both the justice of the peace and the auxiliary justice of the peace from the municipality, town or place, are the municipal mayors who are empowered in such case to issue a warrant of arrest of the caused. (Section 3, Rule 108, in connection with section 6, Rule 108, and section 2 of Rule 109.) The preliminary investigation which a city fiscal may conduct under section 2, Rule 108, is the investigation referred to in the proceeding paragraph.

Under the law, a complaint charging a person with the commission of an offense cognizable by the courts of Manila is not filed with municipal court or the Court of First Instance of Manila, because as above stated, the latter do not make or conduct a preliminary investigation proper. The complaint must be made or filed with the city fiscal of Manila who, personally or through one of his assistants, makes the investigation, not for the purpose of ordering the arrest of the accused, but of filing with the proper court the necessary information against the accused if the result of the investigation so warrants, and obtaining from the court a warrant of arrest or commitment of the accused.

When a person is arrested without warrant in cases permitted bylaw, the officer or person making the arrest should, as abovestated, without unnecessary delay take or surrender the person arrested, within the period of time prescribed in the Revised Penal Code, to the court or judge having jurisdiction to try or make a preliminary investigation of the offense (section 17, Rule 109); and the court or judge shall try and decide the case if the court has original jurisdiction over the offense charged, or make the preliminary investigation if it is a justice of the peace court having no original jurisdiction, and then transfer the case to the proper Court of First Instance in accordance with the provisions of section 13, Rule 108.

In the City of Manila, where complaints are not filed directly with the municipal court or the Court of First Instance, the officer or person making the arrest without warrant shall surrender or take the person arrested to the city fiscal, and the latter shall make the investigation above mentioned and file, if proper, the corresponding information within the time prescribed by section 125 of the Revised Penal Code, so that the court may issue a warrant of commitment for the temporary detention of the accused. And the city fiscal or his assistants shall make the investigation forthwith, unless it is materially impossible for them to do so, because the testimony of the person or officer making the arrest without warrant is in such cases ready and available, and shall, immediately after the investigation, either release the person arrested or file the corresponding information. If the city fiscal has any doubt as to the probability of the defendant having committed the offense charged, or is not ready to file the information on the strength of the testimony or evidence presented, he should release and not detain the person arrested for a longer period than that prescribed in the Penal Code, without prejudice to making or continuing the investigation and filing afterwards the proper information against him with the court, in order to obtain or secure a warrant of his arrest. Of course, for the purpose of determining the criminal liability of an officer detaining a person for more than six hours prescribed by the Revised Penal Code, the means of communication as well as the hour of arrested and other circumstances, such as the time of surrender and the material possibility for the fiscal to make the investigation and file in time the necessary information, must be taken into consideration.

To consider the city fiscal as the judicial authority referred to in article 125 of the Revised Penal Code, would be to authorize the detention of a person arrested without warrant for a period longer than that permitted by law without any process issued by a court of competent jurisdiction. The city fiscal, may not, after due investigation, find sufficient ground for filing an information or prosecuting the person arrested and release him, after the latter had been illegally detained for days or weeks without any process issued by a court or judge.

A peace officer has no power or authority to arrest a person without a warrant upon complaint of the offended party or any other person, except in those cases expressly authorized by law. What he or the complainant may do in such case is to file a complaint with the city fiscal of Manila, or directly with the justice of the peace courts in municipalities and other political subdivisions. If the City Fiscal has no authority, and he has not, to order the arrest even if he finds, after due investigation, that there is a probability that a crime has been committed and the accused is guilty thereof, a fortiori a police officer has no authority to arrest and detain a person charged with an offense upon complaint of the offended party or other persons even though, after investigation, he becomes convinced that the accused is guilty of the offense charged.

In view of all the foregoing, without making any pronouncement as to the responsibility of the officers who intervened in the detention of the petitioners, for the policeman Dumlao may have acted in good faith, in the absence of a clear cut ruling on the matter in believing that he had complied with the mandate of article 125 by delivering the petitioners within six hours to the office of the city fiscal, and the latter might have ignored the fact that the petitioners were being actually detained when the said policeman filed a complaint against them with the city fiscal, we hold that the petitioners are being illegally restrained of their liberty, and their release is hereby ordered unless they are now detained by virtue of a process issued by a competent court of justice. So ordered.

Paras, Actg. C.J., Pablo, and Bengzon, JJ., concur.

SPECIAL FIRST DIVISION
BENITO ASTORGA, Petitioner, G.R. No. 154130 Present: Davide, Jr., C.J. (Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ. Promulgated: August 20, 2004 x ---------------------------------------------------------------------------------------- x

- versus -

PEOPLE OF THE PHILIPPINES, Respondent.

RESOLUTION
YNARES-SANTIAGO, J.:

On October 1, 2003, we rendered a Decision in this case affirming petitioner’s conviction by the Sandiganbayan of the crime of Arbitrary Detention. Petitioner now seeks a reconsideration of our Decision.

The facts are briefly restated as follows:

Private offended parties Elpidio Simon, Moises de la Cruz, Wenefredo Maniscan, Renato Militante and Crisanto Pelias are members of the Regional Special Operations Group (RSOG) of the Department of Environment and Natural Resources, Tacloban City. On September 1, 1997, they, together with SPO3 Andres B. Cinco, Jr. and SPO1 Rufo Capoquian of the Philippine National Police Regional Intelligence Group, were sent to the Island of Daram, Western Samar to conduct intelligence operations on possible illegal logging activities. At around 4:30-5:00 p.m., the team found two boats measuring 18 meters in length and 5 meters in breadth being constructed at Barangay Locob-Locob. There they met petitioner Benito Astorga, the Mayor of Daram, who turned out to be the owner of the boats. A heated altercation ensued between petitioner and the DENR team. Petitioner called for reinforcements and, moments

later, a boat bearing ten armed men, some wearing fatigues, arrived at the scene. The DENR team was then brought to petitioner’s house in Daram, where they had dinner and drinks. The team left at 2:00 a.m.

On the basis of the foregoing facts, petitioner was charged with and convicted of Arbitrary Detention by the Sandiganbayan in Criminal Case No. 24986. On petition for review, we rendered judgment as follows:
WHEREFORE, in view of the foregoing, the petition is hereby DENIED. The Decision of the Sandiganbayan in Criminal Case No., dated July 5, 2001 finding petitioner BENITO ASTORGA guilty beyond reasonable doubt of the crime of Arbitrary Detention and sentencing him to suffer the indeterminate penalty of four (4) months of arresto mayor, as minimum, to one (1) year and eight (8) months of prision correccional, as maximum, is AFFIRMED in toto. Costs de oficio. SO ORDERED.

Petitioner filed a Motion for Reconsideration, which was denied with finality on January 12, 2004.[1] Petitioner then filed an “Urgent Motion for Leave to File Second Motion for Reconsideration”[2] with attached “Motion for Reconsideration,”[3] wherein he makes the following submissions:
1. THE ARMED MEN WERE NOT SUMMONED BY PETITIONER FOR THE PURPOSE OF DETAINING THE PRIVATE OFFENDED PARTIES; THERE IS NO EVIDENCE THAT THE SUPPOSED VICTIMS INSISTED ON LEAVING THE PLACE WHERE THEY WERE SUPPOSED TO BE DETAINED; THE SUPPOSED VICTIMS THEMSELVES HAVE DECLARED THE INNOCENCE OF THE PETITIONER; CRIMINAL INTENT ON THE PART OF THE ACCUSED IS CLEARLY WANTING IN THE INSTANT CASE.[4]

2.

3.

4.

Subsequently, petitioner filed a Supplement to the Second Motion for Reconsideration.[5]

The prosecution was required to comment on petitioner’s second Motion for Reconsideration and the Supplement thereto.

We find the grounds raised by the second Motion for Reconsideration well-taken.[6]

While a second motion for reconsideration is, as a general rule, a prohibited pleading, it is within the sound discretion of the Court to admit the same, provided it is filed with prior leave whenever substantive justice may be better served thereby.
The rules of procedure are merely tools designed to facilitate the attainment of justice. They were conceived and promulgated to effectively aid the court in the dispensation of justice. Courts are not slaves to or robots of technical rules, shorn of judicial discretion. In rendering justice, courts have always been, as they ought to be, conscientiously guided by the norm that on the balance, technicalities take a backseat against substantive rights, and not the other way around. Thus, if the application of the Rules would tend to frustrate rather than promote justice, it is always within our power to suspend the rules, or except a particular case from its operation.[7]

The elements of the crime of Arbitrary Detention are:

1. 2. 3.

That the offender is a public officer or employee. That he detains a person. That the detention is without legal grounds.[8]

The determinative factor in Arbitrary Detention, in the absence of actual physical restraint, is fear. After a careful review of the evidence on record, we find no proof that petitioner instilled fear in the minds of the private offended parties.

Indeed, we fail to discern any element of fear from the narration of SPO1 Rufo Capoquian, the police officer who escorted the DENR Team during their mission. On the contrary, what appears is that petitioner, being then a municipal mayor, merely extended his hospitality and entertained the DENR Team in his house. SPO1 Capoquian testified thus:
ATTY. JUMAMIL:

q a

After Bagacay you arrived in what barangay in Daram? We were on our way to Barangay Sta. Rita in Daram but on our way we saw a boat being constructed there so we proceeded to Barangay Lucodlucod (sic). And you arrived at 5:00 o’clock? Yes sir. And you left at 2:00 o’clock in the morning of September 2? Yes sir. And you ate dinner between 5:00 o’clock to 2:00 o’clock in the morning of September 2, is that correct? Yes sir. Mayor Astorga told us let us have dinner. And Mayor Astorga brought you to a house where you had dinner? Yes sir. And of course you also partook of wine? I know they had wine but with respect to us we had no wine sir. xxx xxx xxx

q a q a q

a q a q a

AJ NARIO: q While you were taking your dinner from 7 to 8:00 o’clock Mayor Astorga was with you having dinner? Yes Your Honor. You did not hear the conversation between the Mayor and the foresters, the complainants here? I could not hear anything important because they were just laughing. xxx AJ PALATTAO: q And then according to you there was laughter what was the cause of this laughter? Probably they were talking of something humorous.[9] xxx xxx

a q

a

a

The testimonial evidence likewise shows that there was no actual restraint imposed on the private offended parties. SPO1 Capoquian in fact testified that they were free to leave the house

and roam around the barangay. Furthermore, he admitted that it was raining at that time. Hence, it is possible that petitioner prevented the team from leaving the island because it was unsafe for them to travel by boat.
ATTY. JUMAMIL: q a q It was raining at that time, is that correct? Yes sir it was raining. And the weather was not good for motorized travel at that particular time that you were in Lucoblucob, Daram? I know it is raining but I could not say that you could not travel. What was the condition of the sea at that time when you were in Lucoblucob? The sea was good in fact we did not get wet and there were no waves at that time. But it was raining the whole day? It was not raining at the day but after we ate in the evening it rained. It was raining hard in fact after 8:00 p.m. up to 1:00 o’clock in the morning is that correct? A little bit hard I don’t know when the rain stopped, sir. It is possible that it rain.. the rain stopped at 1:00 o’clock in the morning of September 2? I don’t remember sir. xxx AJ PALATTAO: q a q Were you told not to go away from the place? No Your Honor. Up to what point did you reach when you were allegedly prevented to go somewhere? They did not say anything sir. Where did you go after that? Just down until it rained. xxx xxx

a q a

q a q

a q

a

a q a

q

If you want to go, let us say, you want to leave that place, on your part, was there somebody prevented you to go to another place? I don’t know Your Honor. But on your part can you just leave that place or somebody will prevent you to go somewhere else? What I felt I will not be able to leave because we were already told not to leave the barangay. In other words, you can go places in that barangay but you are not supposed to leave that barangay, is this Barangay Daram? Barangay Lucoblucob, Your Honor. On your part according to you you can go places if you want although in your impression you cannot leave the barangay. How about the other companions like Mr. Simon, Cruz and Maniscan, can they leave the place? No Your Honor. Why are you very positive that in your case you can leave but in the case of those I have enumerated they cannot, why? If only in that barangay we can leave, Your Honor.[10]

a q

a

q

a q

a q

a

Mr. Elpidio Simon, one of the private offended parties, took the witness stand on August 16, 2000 but did not complete his testimony-in-chief due to lack of material time. His testimony only covered preliminary matters and did not touch on the circumstances of the alleged detention.[11]

On August 23, 2000, all the private offended parties, namely, Elpidio E. Simon, Moises de la Cruz, Renato Militante, Crisanto Pelias and Wenefredo Maniscan, executed a Joint Affidavit of Desistance stating, in pertinent part:
xxx 6. xxx xxx;

That what transpired may have been caused by human limitation aggravated by the exhaustion of the team in scouring the shores of the small islands of Samar for several days. Mayor Benito Astorga may have also been confronted with the same predicament, hence our confrontation resulted to a heated argument and the eventual misunderstanding; Considering that he is the local Chief Executive of the Municipality of Daram, Samar our respect for him prevailed when he ordered us to take dinner with

7.

him and other local residents thereat, so we capitulated whose invitation was misinterpreted by us; 8. That thereafter, a natural and spontaneous conversation between the team and the group of Mayor Astorga during the dinner and we were eventually allowed to leave Daram, Samar; That upon our return to our respective official stations we reported the incident to our supervisors who required us to submit our affidavit; That at present our differences had already been reconciled and both parties had already express apologies and are personally no longer interested to pursue the case against the Mayor, hence, this affidavit of desistance; xxx xxx xxx.[12]

9.

10.

Thereafter, the private offended parties did not appear anymore in court to testify. This notwithstanding, the Sandiganbayan convicted petitioner of the crime of Arbitrary Detention on the basis of the testimonies of SPO1 Capoquian and SPO3 Cinco, the police escorts of the DENR Team.

The quoted portions of SPO1 Capoquian’s testimony negate the element of detention. More importantly, fear is a state of mind and is necessarily subjective.[13] Addressed to the mind of the victim, its presence cannot be tested by any hard-and-fast rule but must instead be viewed in the light of the perception and judgment of the victim at the time of the crime.[14] As such, SPO1 Capoquian and SPO3 Cinco, not being victims, were not competent to testify on whether or not fear existed in the minds of the private offended parties herein. It was thus error for the Sandiganbayan to have relied on their testimonies in convicting petitioner.

Verily, the circumstances brought out by SPO1 Capoquian created a reasonable doubt as to whether petitioner detained the DENR Team against their consent. The events that transpired are, to be sure, capable to two interpretations. While it may support the proposition that the private offended parties were taken to petitioner’s house and prevented from leaving until 2:00 a.m. the next morning, it is equally plausible, if not more so, that petitioner extended his hospitality and served dinner and drinks to the team at his house. He could have advised them to stay on the island inasmuch as sea travel was rendered unsafe by the heavy rains. He ate

together with the private offended parties and even laughed with them while conversing over dinner. This scenario is inconsistent with a hostile confrontation between the

parties. Moreover, considering that the Mayor also served alcoholic drinks, it is not at all unusual that his guests left the house at 2:00 a.m. the following morning.

In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.[15] He is entitled to an acquittal unless his guilt is shown beyond reasonable doubt. Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind.[16]

As held in several cases, when the guilt of the accused has not been proven with moral certainty, the presumption of innocence of the accused must be sustained and his exoneration be granted as a matter of right. For the prosecution’s evidence must stand or fall on its own merit and cannot be allowed to draw strength from the weakness of the evidence for the defense.[17] Furthermore, where the evidence for the prosecution is concededly weak, even if the evidence for defense is also weak, the accused must be duly accorded the benefit of the doubt in view of the constitutional presumption of innocence that an accused enjoys. When the circumstances are capable of two or more inferences, as in this case, one of which is consistent with the presumption of innocence while the other is compatible with guilt, the presumption of innocence must prevail and the court must acquit. It is better to acquit a guilty man than to convict an innocent man.[18]

WHEREFORE, in view of the foregoing, the Decision dated October 1, 2003 is RECONSIDERED and SET ASIDE. The appealed judgment of the Sandiganbayan in Criminal Case No. 24986 is REVERSED. Petitioner Benito Astorga is ACQUITTED of the crime of Arbitrary Detention on the ground of reasonable doubt.

No pronouncement as to costs.

SO ORDERED.